Citation: R v Perksane [2025] NSWDC 474
Court: District Court of New South Wales
Date: 15 July 2025
Judge: Bourke SC DCJ
Background
The offender, a 44-year-old man with a prior criminal history including robberies and assaults, pleaded guilty to robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment. The plea was entered at the earliest opportunity, attracting a 25% discount for its utilitarian value.
The offence occurred on 5 May 2024 at a service station in Boolaroo. The offender entered the service station, moved behind the counter, and approached two employees holding a pair of red-handled safety scissors with the blades pointed towards them. He directed one victim to open the till and took $240 in cash before leaving. Police located him at his residence within hours, finding the scissors and cash in a bag in his possession.
The offender was diagnosed with Schizophrenia, Autism Spectrum Disorder, Epilepsy, and Substance Use Disorder. Psychiatric evidence indicated he was hearing voices and was delusional at the time of the offence. His experience of custody had been particularly onerous, including extended periods in observation cells and multiple assaults by other inmates.
Legal Issues
- What was the objective seriousness of the offence, and where did it fall within the sentencing range?
- What weight should be given to the offender's significant mental health conditions, both as a mitigating factor and as a contribution to the offending?
- Whether the Henry guideline range applied, and how it interacted with the 25% plea discount and the offender's mental health circumstances
- Whether special circumstances existed justifying a departure from the standard ratio between head sentence and non-parole period
Decision
Objective seriousness: Bourke SC DCJ assessed the offence as below the mid-range and towards the lower end of objective seriousness. Aggravating features included the presence of two vulnerable victims (employed service station attendants), a clear threat of violence, the fact the victims were effectively trapped, and the commission of the offence while the offender was subject to a Community Correction Order. Mitigating features included the unsophisticated and unplanned nature of the offence, the brief duration, the relatively small amount taken ($240), and the nature of the weapon. The scissors were described as safety scissors with rounded points, unlikely to cause a fatal injury, though the victims would reasonably have perceived them as a stabbing implement in the moment.
The weapon: His Honour accepted that the scissors qualified as an offensive weapon for the purposes of s 97(1), while acknowledging their limited capacity for fatal harm. The Crown's initial submission that the offence was financially motivated was withdrawn in light of psychiatric evidence about the offender's mental state at the time.
Mental health and sentencing: Psychiatric reports from Dr Nielssen and Dr White established that the offender's mental health conditions materially contributed to the offending and that continued custody was producing little therapeutic benefit. Both doctors noted the offender's condition was more likely to improve in a supported community setting. His Honour gave significant weight to this evidence, treating the mental health circumstances as a basis to depart downward from the Henry guideline range.
Special circumstances and sentence: His Honour found special circumstances existed, given the particularly onerous nature of the offender's custody and the need for a lengthy period of supervised community support upon release. Applying the Henry guideline (as adjusted for a 25% discount, suggesting a head sentence range of approximately three years four months to four years two months), His Honour departed below that range to reflect the mitigating weight of the mental health evidence.
Orders Made
- Head sentence of two years and seven months, commencing 5 May 2024 and expiring 4 December 2026
- Non-parole period of one year and four months, expiring 4 September 2025
- Special circumstances found, justifying the adjusted ratio between head sentence and non-parole period
Key Takeaways
- The District Court confirmed that the Henry guideline remains a relevant reference point for armed robbery sentences, but is not prescriptive and may be departed from where significant mental health factors substantially explain the offending and affect the utility of continued imprisonment.
- A diagnosis of Schizophrenia, Autism Spectrum Disorder, and Epilepsy, combined with uncontested clinical evidence that custody was counterproductive, justified a sentence below the guideline range.
- Where psychiatric evidence establishes that a custodial environment is making an offender's condition materially worse and that community-based treatment is more appropriate, that evidence can support both a reduced head sentence and a finding of special circumstances.
- The short duration of an armed robbery does not materially lessen its seriousness, consistent with the Court of Criminal Appeal's approach in Chung v R [2017] NSWCCA 48.
- Safety scissors with rounded points may constitute an offensive weapon under s 97(1) of the Crimes Act 1900, though their limited capacity for fatal harm is a relevant consideration in assessing the objective gravity of the offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Henry and Ors [1999] NSWCCA 111 (guideline judgment on armed robbery)
- R v Harris [2011] NSWCCA 105 (application of Henry guideline with 25% plea discount)
- Chung v R [2017] NSWCCA 48 (short duration does not reduce seriousness of armed robbery)
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Kirkwood v R [2006] NSWCCA 181