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District Court 30 October 2024

R v Lambert

[2024] NSWDC 622

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Lambert [2024] NSWDC 622
Court: District Court of New South Wales
Date: 30 October 2024
Judge(s): Haesler SC DCJ

Background

On the evening of 18 December 2023, the offender entered a bar in Wollongong and, approximately 45 minutes after an initial visit, returned wearing a hooded jumper and carrying a knife with a 20-centimetre blade. He approached two young bar staff, a 22-year-old male and a 20-year-old female, raised the knife, and demanded all the money from the till.

As the female victim attempted to open the till, the offender counted down aloud. When the till opened, he struck her in an overhand chopping motion. The knife struck her left shoulder blade, causing a wound requiring surgery and leaving lasting physical and psychological effects. He then took cash from the till and left.

The offender pleaded guilty in the Local Court to two offences: armed robbery with wounding of the female victim while armed with a knife (s 98 Crimes Act 1900 (NSW)), and armed robbery of the male victim while armed with a knife (s 97 Crimes Act 1900 (NSW)). The proceedings before the District Court concerned the appropriate sentences for those offences.

  • What was the objective seriousness of each offence, having regard to the use of a knife, the infliction of injury, and the circumstances of the victims?
  • How should the court apply the guideline judgment in R v Henry to the armed robbery offences?
  • What weight should be given to the early guilty pleas, and how should the 25% utilitarian discount be preserved in an aggregate sentence?
  • What mitigating factors arose from the offender's personal circumstances, including drug addiction, multiple mental health conditions, and a severely deprived upbringing?
  • Whether special circumstances existed to justify a non-parole period that departs from the statutory default ratio, producing a longer parole period.

Decision

Haesler SC DCJ assessed the objective seriousness of both offences carefully, noting the need to avoid double-counting factors that are already elements of the offences. The s 98 offence (armed robbery with wounding) was characterised as grave. The knife wound was described as involving gratuitous violence: nothing in the situation warranted the further act of stabbing the female victim once the till had opened. The s 97 offence against the male victim was treated as falling at the lower end of the armed robbery range, broadly consistent with the Henry guideline.

The court rejected the prosecution's submission that the victims should be treated as "particularly vulnerable" in the legal sense. While the young staff were exposed to risk by virtue of working in a public venue, they did not fall within the category of isolated or specially vulnerable persons (such as a lone worker at a late-night service station) that the law treats as a distinct aggravating feature.

On the offender's subjective circumstances, the court accepted significant mitigation. Reports documented a depraved and abusive childhood, longstanding drug addiction, and multiple diagnosed mental health and personality disorders. These factors reduced the weight to be given to general deterrence and increased the moral complexity of assessing culpability, though they did not eliminate the need for substantial punishment. The court also acknowledged the public protection dimension raised by the psychiatric evidence, directing that the relevant report accompany the offender's file to Community Corrections.

The court found special circumstances justifying a departure from the standard non-parole period ratio, producing a longer parole period. This reflected the offender's rehabilitation needs and the importance of supervised reintegration. The 25% discount for the early guilty pleas was applied to each indicated sentence, with care taken to ensure that discount was not eroded when the sentences were aggregated.

Orders Made

  • For the s 98 offence (armed robbery with wounding): indicated sentence of 5 years and 3 months' imprisonment, with an indicated non-parole period of 3 years and 4 months.
  • For the s 97 offence (armed robbery): indicated sentence of 3 years and 4 months' imprisonment.
  • Aggregate sentence: 6 years' imprisonment, commencing 19 December 2023.
  • Aggregate non-parole period: 3 years and 11 months; eligible for parole consideration from 18 November 2027.
  • Parole period (reflecting special circumstances): 2 years and 1 month.
  • Total sentence expires: 18 December 2029.

Key Takeaways

  • The District Court confirmed that sentencing courts must avoid double-counting aggravating factors that are already elements of the offence charged, particularly when applying the statutory list in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Under the Henry guideline, an ordinary armed robbery attracting a sentence at the lower end of the range requires a term in the vicinity of 4 years following a late guilty plea; offences involving wounding or gratuitous violence will warrant significantly more.

  • A finding that victims were "vulnerable" in the legal sentencing sense requires more than that they were present in a public workplace; the court drew a distinction between general exposure to risk and the recognised category of isolated or particularly vulnerable persons.

  • Severe childhood trauma, drug addiction, and diagnosed mental disorders can reduce the weight given to general deterrence in sentencing, though they do not displace the need for punishment that reflects community condemnation and vindicates the dignity of victims.

  • Special circumstances can be established where an offender's rehabilitation needs and psychiatric profile make extended post-release supervision particularly important, justifying a non-parole period below the default statutory ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97, 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 42A

Cases
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- R v Cahyadi [2007] NSWCCA 1
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v XX (2009) 195 A Crim R 38