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District Court 27 August 2024

R v Graham

[2024] NSWDC 464

Assault & violenceDrugsTheft & propertyFirearms & weapons

Citation: R v Graham [2024] NSWDC 464
Court: District Court of New South Wales
Date: 27 August 2024
Judge: Haesler SC DCJ

Background

The offender, a 42-year-old man with an extensive criminal history spanning 24 years, appeared for sentencing on three matters arising from an armed robbery at a post office in southern Wollongong on 7 September 2023. He had spent 17 of the preceding 24 years in custody. At the time of the robbery, he had been in the community for approximately eight months and was on bail for other offences already dealt with in the Local Court.

During the robbery, the offender entered the post office wearing a mask and cap, carrying a Glock Gel Blaster pistol. He confronted a young female employee, demanded cash, and left with just under $2,500. Two further matters were brought before the District Court on a s 166 certificate from the Local Court: possession of methylamphetamine found on the offender at arrest, and possession of an unauthorised prohibited firearm (the Gel Blaster pistol).

The offender had pleaded guilty in the Local Court but disputed three factual matters going to the objective seriousness of the offence, including whether he had uttered a specific threat to the victim. This required the victim to give oral evidence at the sentencing hearing.

  • Whether the prosecution could prove beyond reasonable doubt the disputed facts said to increase the objective seriousness of the offence, particularly that the offender threatened the victim with words to the effect of "If you want to live today, do as you're told"
  • What reduction, if any, should apply to the guilty plea discount in light of the factual dispute and the victim being required to give evidence
  • How the offender's extensive criminal history, institutionalisation, drug dependency, and difficult background should be weighed against the need for retribution, deterrence, and community protection
  • What aggregate sentence, non-parole period, and any finding of special circumstances were appropriate across the three matters

Decision

Disputed facts. The Court accepted the victim's evidence beyond reasonable doubt that the offender uttered the threat "If you want to live today, do as you're told" while brandishing the pistol. His Honour rejected the offender's account, finding that by repeatedly replaying the events in his mind, the offender had constructed a version that minimised his own conduct. The other disputed threats were not established because the victim gave no evidence of them. The Court found that the offender also pulled back the pistol's slide to emphasise the threat, and that the victim froze in terror.

Guilty plea discount. The standard utilitarian discount for a Local Court guilty plea is 25%. Because one disputed matter was resolved against the offender and because the victim was required to give evidence, causing her real distress, the discount for the principal charge was reduced to 23%. The two ancillary matters were not contested on facts, and the offender retained the full 25% discount for those.

Subjective case and sentencing purposes. The Court accepted the findings of the forensic psychologist that the offender had become institutionalised, with correctional routines having eroded his capacity to function in the community. His Honour acknowledged this as a mitigating factor reducing moral culpability, and applied the principle from Bugmy v The Queen that disadvantage and background do not diminish in weight over time. However, the Court weighed these factors against the seriousness of the offence, the harm to a vulnerable victim, a breach of bail, and a near-identical prior offending history. Consistent with Veen v The Queen (No 2), His Honour noted that criminal history can warrant a more severe penalty with additional emphasis on retribution, deterrence, and community protection, provided the sentence remains proportionate to the current offence.

Sentence structure. A starting point of 6 years for the armed robbery was adopted, reduced to 4 years and 7 months after the plea discount. The Gel Blaster possession attracted 11 months after discount. The methylamphetamine possession was dealt with under s 10A of the Crimes (Sentencing Procedure) Act (a formal finding of guilt with no further penalty), as a custodial term was not considered warranted for that matter. Special circumstances were found given the accumulation of sentences and the need for an adequate period of supervised parole to assist reintegration, producing an aggregate sentence of 5 years with a non-parole period of 3 years and 3 months.

Orders Made

  • Possession of methylamphetamine: dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), no further penalty imposed
  • Armed robbery (s 97(2) Crimes Act 1900): starting point of 6 years, reduced by 23% to 4 years and 7 months
  • Possession of prohibited firearm (Gel Blaster): 11 months after 25% plea discount
  • Aggregate sentence: 5 years imprisonment
  • Non-parole period: 3 years and 3 months, commencing 8 December 2023
  • Parole period: 1 year and 9 months
  • Earliest eligible date for consideration for release to parole: 7 March 2027

Key Takeaways

  • A guilty plea discount can be reduced below the standard rate where a factual dispute requires the victim to give oral evidence, causing additional distress, even when most disputed matters are resolved in the offender's favour. Here the District Court reduced the discount from 25% to 23% for the principal charge.
  • Where disputed facts are said to increase the objective seriousness of an offence, the prosecution bears the burden of proving those facts beyond reasonable doubt. Facts not established to that standard cannot be relied upon to aggravate the sentence.
  • Under the principle in Veen v The Queen (No 2), a prior criminal history can warrant greater emphasis on retribution, deterrence, and community protection, but cannot produce a sentence disproportionate to the gravity of the current offence.
  • Institutionalisation, recognised by forensic psychological evidence, can reduce an offender's moral culpability as a mitigating factor; however, this did not displace the need for a substantial custodial term where the offending was serious and the victim was vulnerable.
  • Special circumstances justifying a longer-than-standard parole period can arise from the accumulation of sentences and an offender's particular need for supervised community reintegration, as the District Court found here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2) (armed robbery with dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25F(4)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 46
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Crawley [2021] NSWCCA 354
- R v Graham [2017] NSWDC 478
- R v Andrew (No 2) [2018] NSWDC 382
- R v Lucas [2023] NSWSC 1357