Citation: R v Smith [2025] NSWDC 71
Court: District Court of New South Wales
Date: 14 March 2025
Judge(s): Fitzsimmons SC DCJ
Background
In the early hours of 15 October 2023, the offender and a co-offender approached a 15-year-old victim and his female companion at Central Station in the Sydney CBD. The offender separated the victim from his friend, walked him out of sight, and then, in the presence of the co-offender, pushed him against a wall and threatened to stab him. The victim was robbed of his jumper and mobile phone. The offender then walked the victim further into the station, extracted phone passwords, and threatened on multiple occasions to stab him if he reported the incident.
The offender was identified through CCTV footage and arrested pursuant to a search warrant at his mother's home. During the search, he cooperated by pointing out the items he had been wearing during the offence. He pleaded guilty to robbery in company, which carries a maximum penalty of 20 years imprisonment with no standard non-parole period.
The offender had a significant criminal history commencing in his juvenile years, including a prior conviction for robbery in company. He had been released on parole only months before committing this offence, and his parole was subsequently revoked.
Legal Issues
- What was the appropriate sentence for robbery in company, having regard to objective seriousness and the applicable maximum penalty?
- What weight should be given to the offender's profoundly deprived upbringing, mental health difficulties, and the principle established in Bugmy v The Queen (2013) regarding the ongoing relevance of childhood deprivation to sentencing?
- How should the aggravating factor of a vulnerable victim (a 15-year-old) be weighed?
- Was the absence of planning a mitigating factor?
- What credit was appropriate for the guilty plea?
- How should time already spent in custody, including periods referable to the revoked parole, be accounted for in backdating the sentence?
Decision
Fitzsimmons SC DCJ identified several aggravating features: the victim was a child aged 15 at the time (a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999), the offending involved multiple threats of serious violence, and the offender committed the offence while on parole. The court also noted the co-offender filmed part of the interaction, adding a further dimension of intimidation.
The court accepted the absence of planning as a mitigating factor, and gave appropriate credit for the early guilty plea. Drawing on Bugmy v The Queen, the court considered the offender's severely disadvantaged background at length: both parents were drug users; there was sustained domestic violence in the home; the family experienced serious financial hardship; and the offender was sexually abused while in juvenile detention. The court noted that this background, though not diminishing objective seriousness, reduced the weight that general deterrence could bear in the overall sentencing calculus.
The court also took into account a series of significant personal losses in the years immediately preceding the offence, including the stillbirth of the offender's daughter, the murder of his father, and the suicide of his sister. A psychological report identified unresolved grief, difficulties with emotional regulation, and a history of untreated mental health issues. The court noted the offender's prospects of rehabilitation and expressed the view that he should be given the earliest opportunity to address the underlying causes of his offending in the community.
On the question of pre-sentence custody, the court carefully differentiated between time in custody attributable to the revoked parole and time solely referable to the index offence. It backdated the sentence accordingly, taking into account four months for the parole revocation period, a further four months and eight days, and two additional months in custody before sentence.
Orders Made
- The offender is convicted of robbery in company.
- The offender is sentenced to a term of imprisonment of two years and six months.
- The sentence is backdated to 6 May 2024 and expires on 5 November 2026.
- A non-parole period of one year and six months is imposed, expiring on 5 November 2025.
- The earliest possible date of release is 5 November 2025.
Key Takeaways
- The District Court confirmed that a profoundly deprived upbringing, consistently with Bugmy v The Queen, remains relevant to sentencing even where an offender has prior convictions, and may reduce the weight attributed to general deterrence.
- A 15-year-old victim constitutes a "vulnerable person" for the purposes of the statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999, and that factor was given significant weight alongside multiple explicit threats of serious violence.
- Where parole is revoked as a direct consequence of the index offence, courts may backdate a sentence to take into account a proportion of the time served during the parole revocation period, though the precise apportionment requires careful analysis of the periods in question.
- The absence of planning or organisation, while mitigating, does not negate other serious objective features such as the vulnerability of the victim or the number and nature of threats made.
- Rehabilitation prospects and the offender's underlying psychological and personal circumstances, including significant unresolved grief and untreated mental health issues, can inform the structuring of the non-parole period even where medium-to-high reoffending risk is assessed.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Baden v R [2020] NSWCCA 23
- Bugmy v The Queen (2013) 249 CLR 57
- DC v R [2023] NSWCCA 82
- DG v R (No 1) [2023] NSWCCA 320
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1
- Giles-Adam v Preka; Preca v R [2023] NSWCCA 122
- Green v R; Quinn v R (2011) 244 CLR 462
- Muldrock v R (2011) 244 CLR 120
- R v Henry (1999) 46 NSWLR 346