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District Court 6 March 2024

R v Gobbo

[2024] NSWDC 510

Assault & violenceTheft & property

Citation: R v Gobbo [2024] NSWDC 510
Court: District Court of New South Wales
Date: 6 March 2024
Judge: Allen DCJ

Background

The offender, Cameron Gobbo, was 21 years old when he committed two armed robberies two days apart, on 27 and 29 June 2023, at the same convenience store in Kingswood, NSW. On each occasion he robbed a store employee at knifepoint, taking $400 on the first occasion and $100 on the second. The weapon used was a silver-coloured butcher's knife.

The offender pleaded guilty before the Local Court at Penrith on 13 October 2023 to the principal offence of armed robbery on 27 June 2023, contrary to s 97(1) of the Crimes Act 1900 (NSW). The second robbery was dealt with on a Form 1 document, meaning it was taken into account in sentencing on the principal offence without attracting a separate penalty.

Evidence before the court included a forensic psychiatric report, a sentencing assessment report prepared by Community Corrections, a letter from the jail chaplain at Bathurst, a letter from the offender's grandfather, and a personal letter from the offender himself. The offender's mother and extended family attended the hearing in person.

  • What was the objective seriousness of the two armed robbery offences, having regard to the circumstances of their commission?
  • How should the Form 1 offence affect the sentence for the principal offence?
  • What role did the guideline in R v Henry (1999) play in assessing seriousness, and how should it be applied?
  • What weight should be given to the offender's mental illness (diagnosed schizophrenia) and his youth as mitigating factors?
  • Were there special circumstances justifying a departure from the standard ratio of non-parole period to head sentence?
  • What discount applied to reflect the utilitarian value of the early guilty plea?

Decision

Allen DCJ assessed the objective seriousness of the offending by reference to the maximum penalty of 20 years imprisonment, the agreed facts, and the principles established in case law. The court applied the guideline judgment in R v Henry, while noting, consistent with Hetherington v R, that the Henry guideline is not a mandatory or automatic formula. The court found the offending fell broadly within the Henry category: a young offender, a knife capable of causing serious injury, limited planning, limited actual violence but a real threat, and a vulnerable victim in a shop environment. The relatively modest sums taken and the absence of prior relevant criminal history were also considered.

The court took account of the offender's diagnosed schizophrenia. The forensic psychiatric report from Dr Richard Furst established that the offender's mental illness had played a role in the offending. This finding reduced the weight given to general deterrence, consistent with the principle that a mentally ill offender is not an appropriate medium through which to deter others. The illness did not, however, excuse the conduct or remove the need for punishment, denunciation, and specific deterrence.

A finding of special circumstances was made. The court identified two bases: first, the offender's ongoing need for targeted long-term treatment for schizophrenia, including pharmacological therapy and supervision through a community mental health team following release; and second, the substantially more onerous nature of custody for the offender, whose mental illness and young age had resulted in him being placed in protection. These factors together were held to warrant a generous extension of the parole period relative to the non-parole period.

The offender's early guilty plea attracted a 25 per cent discount from the sentence that would otherwise have been imposed. Absent the plea, the court indicated it would have imposed a total sentence of three years imprisonment. After applying the discount and the special circumstances finding, the court arrived at a non-parole period of one year and a total term of two years and three months.

Orders Made

  • The offender was convicted of robbery whilst armed with an offensive weapon at Kingswood on 27 June 2023, contrary to s 97(1) of the Crimes Act 1900 (NSW).
  • Sentenced to imprisonment with a non-parole period of 1 year and a total term of 2 years and 3 months, commencing 29 June 2023.
  • Eligible for release on parole on 28 June 2024, with the court recommending such release.
  • Total sentence to expire on 28 August 2025.
  • A finding of special circumstances was made.

Key Takeaways

  • The District Court confirmed that the R v Henry guideline remains a relevant and instructive tool for assessing the seriousness of armed robbery offences, but it does not operate as a checklist or produce automatic outcomes once particular factors are present.
  • A Form 1 offence does not attract separate punishment but must result in an appropriate increase to the sentence on the principal offence, reflecting greater weight on personal deterrence and community entitlement to retribution.
  • Where a sentencing court finds that an offender's mental illness played a causative role in the offending, that finding reduces the offender's utility as a vehicle for general deterrence, though it does not eliminate the need for punishment and specific deterrence.
  • Special circumstances justifying a longer parole period relative to the non-parole period may be established not only by the need for post-release supervision and treatment, but also by the additional hardship that custody has imposed on a young, mentally ill offender placed in protection.
  • An early guilty plea entered in the Local Court attracted the full 25 per cent statutory discount, reducing a notional head sentence of three years to a total term of two years and three months.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 32

Cases
- R v Henry (1999) 46 NSWLR 346
- Hetherington v R [2016] NSWCCA 165
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- R v Roberts (1994) 73 A Crim R 306
- Elias v The Queen (2013) 248 CLR 483
- R v Dawson [2022] NSWSC 1632
- R v Warwick (No 94) [2020] NSWSC 1168
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39
- Hoskins v R [2015] NSWCCA 245
- Tuvunivono v R [2013] NSWCCA 176
- Ortiz v R [2014] NSWCCA 7
- Kennedy v R [2022] NSWCCA 215
- Legge v R [2007] NSWCCA 244
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Clark-Jeffries v R [2019] NSWCCA 56
- Primmer v R [2015] NSWCCA 155
- Moiler v R [2021] NSWCCA 73
- R v Goundar [2001] NSWCCA 198
- R v Israil [2002] NSWCCA 255