Citation: R v Sturgess [2024] NSWDC 208
Court: District Court of New South Wales
Date: 4 April 2024
Judge: Haesler SC DCJ
Background
The offender, a young Aboriginal man born in 1996, appeared for sentencing on two serious offences arising from events on 30 September 2022 in the Wollongong area. He had been on parole since January 2022 but had ceased taking his medication, lost contact with his parole officer, resumed drug use, and was associating with others who had criminal histories.
The offending involved a coordinated attack on a complainant who was lured to an isolated lookout at Mt Kembla. The offender drove a second vehicle to the location, approached the complainant's car, demanded the keys and mobile phone, and punched the complainant in the face when he initially refused. The complainant was then detained in his own vehicle for some hours while he was driven around parts of Wollongong, with the offender later driving the complainant's car. A co-offender produced a knife and demanded money be transferred from the complainant's account, though the offender was not charged in relation to that specific act.
The offender had previously been sentenced alongside two co-offenders, Girdler and Nyrhinen, who had been dealt with separately by the same judge. The offender pleaded guilty to both charges in the Local Court. His subjective case involved a deeply troubled background, including a deprived and abusive childhood, sexual abuse in juvenile detention, entrenched drug addiction, diagnosed mental illness, and significant institutionalisation.
Legal Issues
- What sentences were appropriate for taking and detaining a person with intent to obtain an advantage (s 86(2)(b), Crimes Act 1900) and robbery in company (s 97(1), Crimes Act 1900), each carrying a maximum of 20 years imprisonment?
- How should parity with the co-offenders' sentences be achieved given the different charge formulations applied to each?
- What weight should be given to the offender's complex subjective circumstances, including Aboriginality, mental illness, drug addiction, childhood trauma, and institutionalisation?
- How should the principles of totality, accumulation, and special circumstances apply in constructing an aggregate sentence?
- What reduction applied for the utilitarian value of the early guilty plea?
Decision
His Honour assessed the objective seriousness of both offences as high. The complainant was lured to an isolated location, physically assaulted, deprived of his liberty for several hours, driven around Wollongong against his will, and had his property taken. The offender initiated the intimidation by his approach and the punch, and later drove the complainant's vehicle during the detention. These features, combined with the joint criminal enterprise and the vulnerability of the complainant's position at an isolated lookout, elevated the seriousness of the conduct.
On parity, His Honour noted that the co-offender Nyrhinen had been sentenced to 3 years and 9 months for armed robbery (with the detention offence placed on a Form 1), while Girdler had also been sentenced previously. Because the offender faced two separate charges rather than one charge with a Form 1, the sentence structure necessarily differed, though His Honour emphasised that no co-offender should feel a justified sense of grievance about their relative treatment.
The offender's subjective case carried significant weight. His Honour accepted that the offender's background, including profound childhood disadvantage, sexual abuse in juvenile detention, entrenched addiction, and serious mental illness, explained (though did not excuse) his offending and his then-limited capacity for empathy toward his victim. A 25% reduction was applied for the utilitarian value of the early guilty plea. Special circumstances were found, justifying a longer-than-standard parole period, on the basis that structured supervision and mental health support on release would be critical to any prospect of rehabilitation.
His Honour also noted that, at the time of sentencing, the offender had begun to reflect more clearly on his conduct, potentially for the first time given his history. While genuine remorse for the victim was not yet present, the offender expressed regret. The court directed that copies of the relevant reports be forwarded to Corrective Services to support the development of a Mental Health Care Plan and appropriate release planning before the parole eligibility date.
Orders Made
- Indicated sentence for robbery in company (the more serious offence given the offender's role): 3 years and 4 months imprisonment.
- Indicated sentence for taking and detaining a person with intent to obtain an advantage: 3 years imprisonment.
- Aggregate sentence: 4 years imprisonment, commencing 12 April 2023 and expiring 11 April 2027.
- Non-parole period: 2 years and 6 months, dating from 12 April 2023.
- Eligible for release to parole: 12 October 2025.
Key Takeaways
- In sentencing for robbery in company and detention for advantage, the District Court treated the offender's role as initiator of the physical violence, and his continued participation in the multi-hour detention, as significant factors elevating objective seriousness even where another co-offender produced a weapon and committed further offences.
- Parity across co-offenders does not require identical sentence structures; where charge formulations differ (for example, one offender facing two discrete charges while another had a matter placed on a Form 1), proportionality and the absence of justifiable grievance remain the operative standard.
- An early guilty plea attracted a 25% utilitarian discount, and His Honour took care to ensure accumulation of the two sentences did not erode that benefit in the aggregate result.
- A finding of special circumstances reflected the offender's acute need for structured supervision, mental health treatment, and support services on release, reinforcing that rehabilitation remains a relevant sentencing purpose even for serious offending.
- Complex subjective circumstances, including Aboriginality, childhood sexual abuse, mental illness, drug addiction, and institutionalisation, were treated as contextual factors bearing on moral culpability and prospects for rehabilitation, without diminishing the custodial component required for deterrence and community protection.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 86(2)(b), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A and Form 1 procedure
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 (guideline judgment on Form 1 approach)
- R v Girdler [2023] NSWDC 616
- R v Nyrhinen [2023] NSWDC 615