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District Court 30 January 2025

R v Mizzi

[2025] NSWDC 6

Assault & violenceTheft & property
MENTAL HEALTH — CO OFFENDERS — I NTENSIVE CORRECTION ORDER

Citation: R v Mizzi [2025] NSWDC 6
Court: District Court of New South Wales
Date: 30 January 2025
Judge: Fitzsimmons SC DCJ

Background

In the early hours of 15 October 2023, a 15-year-old victim and his female friend arrived at Central Station in Sydney after catching the light rail from Town Hall. The offender and a co-offender approached the pair. The co-offender separated the victim from his friend and, in the presence of the offender, grabbed the victim's collar, pushed him against a wall, and threatened to stab him. The offender then grabbed the victim's glasses, reached into his pocket, and took his phone. The victim was also forced to hand over his jumper and provide phone passwords.

The offender was 20 years old at the time of the offending. He had a limited but escalating criminal history that included a stalking and intimidation offence, an affray conviction (for which he had received an Intensive Correction Order), and an AVO contravention, among other matters. He declined to participate in a recorded police interview but cooperated with a forensic procedure.

The offender pleaded guilty to robbery in company, a charge carrying a maximum penalty of 20 years imprisonment with no standard non-parole period. The matter proceeded to a sentence hearing before the District Court.

  • What was the appropriate sentence for the offence of robbery in company, having regard to the objective seriousness of the offending and all relevant aggravating and mitigating factors?
  • What weight should be given to the offender's deprived upbringing, mental health history, and personal circumstances?
  • Whether the offender was suitable to serve the sentence by way of an Intensive Correction Order (ICO) rather than full-time custody, and whether community safety would be better served by that course.

Decision

The District Court assessed the objective gravity of the offence as significant. The victim was a 15-year-old, making him a vulnerable person, which was an aggravating factor. The offending involved threats to stab the victim, physical force, and took place late at night at a public transport hub. The Court noted, however, that the robbery was not part of a planned or organised criminal enterprise, and the offender played a secondary role to the co-offender.

The Court placed considerable weight on the offender's subjective circumstances. Evidence from the offender's grandmother, sister, and partner painted a picture of severe childhood disadvantage: an absent father imprisoned for manslaughter, serious bullying, early cessation of formal schooling, and diagnoses including suspected ADHD, autism, learning difficulties, Tourette's syndrome, and anxiety. The Court accepted that these circumstances reduced the offender's moral culpability to a meaningful degree. His grandmother observed that he continued to behave emotionally like a 14-year-old, a characterisation the Court found relevant.

Turning to the ICO question, the Court was satisfied that the offender's risk of reoffending was more suitably addressed by supervision in the community than by full-time imprisonment. The Court pointed to the strong support network available through the offender's sister, grandmother, and partner, and his demonstrated compliance with bail conditions since June 2024, including abstaining from illicit substances and returning home by 8:00 PM each night. The Court was "overwhelmingly satisfied" that community safety was best promoted by an ICO, with conditions designed to continue meeting the purposes of sentencing, including punishment, accountability, and rehabilitation.

On the question of pre-sentence custody, the Court declined to reduce the ICO term to reflect time already spent in full-time custody, in line with the approach in Mandranis v R, noting it had taken that period into account in a general sense when fixing the appropriate sentence.

Orders Made

  • The offender is convicted of robbery in company.
  • The offender is sentenced to a term of imprisonment of two years, commencing 30 January 2025.
  • Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence is to be served by way of an Intensive Correction Order in the community.
  • Standard conditions: the offender must not commit any offence; the offender must submit to supervision by a community corrections officer.
  • Additional conditions:
  • 300 hours of community service work;
  • Abstain from consumption of any drug other than as prescribed by a medical practitioner or authorised person;
  • Comply with any directions as to treatment from a general practitioner or treating psychologist;
  • Report to the Minto Community Corrections office within seven days.

Key Takeaways

  • The District Court confirmed that a vulnerable victim (here, a 15-year-old) remains a statutory aggravating factor even where the offender was not the principal actor in the offence.
  • Where an offence of robbery in company is not pre-planned and the offender played a secondary role, those features operate as mitigating considerations when assessing objective seriousness.
  • A severely deprived upbringing, documented mental health diagnoses from childhood, and a disrupted educational history can meaningfully reduce an offender's moral culpability, even where a prior criminal history exists.
  • An Intensive Correction Order remains available for serious offences such as robbery in company, provided the court is satisfied that community safety is better promoted by supervised community service than by full-time custody, particularly where strong support networks are in place.
  • Pre-sentence custody need not be mechanically deducted from an ICO term; the District Court found it sufficient to take that period into account in a general sense when fixing the original sentence length, consistent with Mandranis v R.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 7(1)

Cases:
- Baden v R [2020] NSWCCA 23
- DC v R [2023] NSWCCA 82
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Giles-Adam v R; Preca v R [2023] NSWCCA 122
- Kennedy v R [2022] NSWCCA 215
- Mandranis v R [2021] NSWCCA 97
- Miller v R [2015] NSWCCA 86
- Muldrock v The Queen (2011) 244 CLR 120
- R v Henry (1999) 46 NSWLR 346
- R v Millwood [2012] NSWCCA 2
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3