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District Court 8 March 2024

R v Scott

[2024] NSWDC 150

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Scott [2024] NSWDC 150
Court: District Court of New South Wales
Date: 8 March 2024
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW). The offence occurred at a KFC restaurant on the NSW south coast on 9 March 2023. The offender entered the store, threatened a 17-year-old employee at the counter with what appeared to be a knife, and took approximately $250 from the cash register before fleeing. He was arrested within an hour, and a large knife matching the victim's description was recovered.

At the time of the offence, the offender had been on parole for only one month, having been released in February 2023 following sentences imposed at Nowra District Court in November 2022. The commission of this offence constituted a breach of that parole. The offender has spent the substantial majority of his adult life in custody, with only approximately three and a half years in the community over the preceding 15 years.

His background is marked by significant disadvantage: removal from his mother as a young child, early exposure to drugs and alcohol, disrupted schooling, an acquired brain injury from a motor vehicle accident at age 11, and diagnoses of Major Depressive Disorder and Substance Abuse Disorder. A forensic psychologist's report was tendered and formed a central part of the subjective case.

  • What sentence was appropriate for armed robbery under s 97(1) of the Crimes Act 1900, having regard to the R v Henry guideline judgment?
  • What weight should be given to the offender's profound background disadvantage and reduced moral culpability under the principles in Bugmy v The Queen?
  • How should the guilty plea discount, Form 1 offences, breach of parole, and special circumstances findings affect the sentence?
  • How should the court balance community protection, deterrence, and rehabilitation given the offender's history of escalating institutionalisation?

Decision

Haesler SC DCJ characterised the offence as objectively serious. The victim was a 17-year-old in his first job, threatened with a knife and told he would be stabbed. The court noted the broader community impact of such offences, with the maximum penalty of 20 years providing one guide to the exercise of sentencing discretion. The R v Henry guideline judgment applied, though the offender's age and extensive criminal record distinguished his case from the guideline's typical profile.

On the subjective case, the court applied the High Court's decision in Bugmy v The Queen and accepted that the offender's deprived background, acquired brain injury, and mental health conditions significantly reduced his moral culpability. His history was described as tragic. The psychologist's report indicated that repeated incarceration had worsened, rather than improved, his mental health and social functioning. The court noted the absence of drug court programs in the South Coast and Illawarra regions and the limited availability of rehabilitation facilities suited to people with the offender's combination of acquired brain injury, mental health impairments, and drug and alcohol problems.

A 25% discount was applied for the utilitarian value of the guilty plea. Two shoplifting offences were taken into account on a Form 1 (meaning they were acknowledged in setting the sentence without imposing separate penalties). The breach of parole was treated as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, though the court was careful not to double-count it. Special circumstances were found, extending the parole period beyond the statutory norm, to allow more time for supervised reintegration and targeted rehabilitation on release.

The court acknowledged the apparent leniency of the sentence relative to the R v Henry guideline but was explicit that this did not reflect a failure to take the victim's experience seriously. The sentence was moderated by the weight of the subjective material, while the non-parole period was set to reflect the seriousness of the offending and the aggravating factors. The court also noted that preventative detention is not a permissible sentencing purpose, citing Veen v The Queen (No 2), and that the offender must ultimately be released to the community with appropriate support.

Orders Made

  • Total sentence of 3 years and 1 month imprisonment, commencing 9 March 2023
  • Non-parole period of 2 years, with the offender eligible for consideration for release to parole on 8 March 2025
  • Parole period of 1 year and 1 month (reflecting a finding of special circumstances), commencing 9 March 2025
  • Sentence to expire on 23 April 2026
  • The sentence runs concurrently with the balance of the offender's prior parole period
  • The psychologist's report to be provided to Corrective Services and the State Parole Authority

Key Takeaways

  • Under Bugmy v The Queen, a background of profound childhood deprivation, early exposure to drugs and alcohol, and acquired brain injury can substantially reduce an offender's moral culpability, even where the offending is serious and the criminal record is extensive.
  • The R v Henry guideline for armed robbery remains a mandatory consideration under s 24A of the Crimes (Sentencing Procedure) Act 1999, but the court must synthesise it with the High Court's subsequent Bugmy principles, the statutory purposes of sentencing, and the s 21A aggravating and mitigating factors.
  • A sentence below the R v Henry guideline range does not necessarily reflect insufficient weight given to victims. The District Court was explicit that the moderation of sentence reflected the subjective evidence, not indifference to the victim's experience.
  • Preventative detention is not a permissible sentencing purpose. As confirmed by reference to Veen v The Queen (No 2), a sentence cannot be extended beyond what is proportionate to the offence simply to keep an offender away from the community.
  • Special circumstances findings, which extend the parole period relative to the non-parole period, are available where an offender requires a longer supervised period upon release to access rehabilitation and reduce reoffending risk.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with offensive weapon), s 117 (larceny)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 136

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 (Form 1 guideline)
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 (background deprivation and moral culpability)
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Millwood [2012] NSWSC 2 (application of Bugmy principles)
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 (prohibition on preventative detention)