R v Buxton

[2015] NSWDC 409

District Court

New South Wales

Medium Neutral Citation:	R v Buxton [2015] NSWDC 409
Hearing dates:	3 December 2015
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment consisting of a non-parole period 5 years and a head sentence of 8 years
Catchwords:	CRIMINAL LAW – Sentence – Form 1 -Armed robbery – Assault with intent to rob whilst armed with an offensive weapon – Bag snatching – Offender on parole at time of offence - Breach of the peace
Cases Cited:	R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR 149, R v Ranse unreported NSWCCA, 8 August 1994
Category:	Sentence
Parties:	The Crown Zachary Peter Buxton
Representation:	Counsel: B Bickford – The offender   Solicitors: Director of Public Prosecutions
File Number(s):	2014/124710

SENTENCE

1. HIS HONOUR: The offender, Zachary Peter Buxton, is to be sentenced for an offence of armed robbery. When I sentence him for that matter, he asks that I take into account an offence of assault with intent to rob whilst armed with an offensive weapon.

2. The two offences were what is commonly described as “bag snatching”, or at least attempted bag snatching. Such offences are not unknown to the criminal law. They have been subject of repeated consideration in these courts. As long ago as 1994, then Chief Justice Gleeson, in R v Ranse unreported NSWCCA, 8 August 1994, said this:

“One of the primary purposes of the system of criminal justice is to keep the peace. In this connection, the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence.”

3. That is a very important consideration when sentencing the offender for what he has done.

4. People are entitled to go out about their daily affairs, without fear that they will be robbed by a knife wielding bandit. The consequences for victims of such offences are, no doubt, significant. Not everyone, of course, is affected the same way, but a common effect of such offences is that the victims of them are frightened to go out, less willing to go about their daily affairs, less able to enjoy the simple act of walking home from a hotel in the evening.

5. On 25 April last year two women were visiting Newcastle from Sydney. They were staying at a hotel in Islington. They had been at the Kent Hotel in Hamilton when, at about 5.30 in the evening, they were walking back to where they were staying. They were approached by the offender. He was wearing a black hooded jumper and had dark hair and a dark unkempt beard.

6. He stood about a metre away from them and produced a knife which was between 15 and 20 centimetres long. He said, “Bags, ladies, please.” Notwithstanding the politeness of that request, it was clearly a threat backed up with the production of the knife.

7. One of the ladies ran across the road, yelling “Run” to her companion. She also screamed out, “Help”. The other lady threw her bag at the offender and also ran across the road. Fortunately, there were three young men across the road and they were told what happened. Two of them saw the offender with a lady’s handbag. They ran after him. They saw him crouched over the bag and yelled at him to drop it. The offender got up, faced the men and then ran away. The bag was returned to its owner who checked and found nothing was missing.

8. When police arrived they found a black mobile phone. This turned out to be registered to the offender. He had clearly dropped it in the kafuffle.

9. Only a very short time later that evening, the same good Samaritans were on the balcony of the Kent Hotel when they saw the offender again. They called police, told police where the offender was and watched until he was arrested. Police found a black-handled fishing knife, which was probably the one used in the offences I have described.

10. These were serious examples of a serious offence. The offence of robbery whilst armed with an offensive weapon carries with it a maximum penalty of twenty years imprisonment. It is important to bear that maximum penalty in mind. Of course, when sentencing for an armed robbery matter attention immediately turns to the guideline decision of R vHenry (1999) 46 NSWLR 346; (1999) 106 A CrimR 149, but Henry in no way sets out the limit. Regard must be had to the maximum penalty as well as the Henry guideline in determining the appropriate sentence to be imposed on someone who has committed such an offence.

11. The offender has an unfortunate upbringing. The main problem was his parents’ attitude to drugs. His parents separated when he was about five and he was raised for the most part by his paternal grandmother. However, his father’s influence was, at least in some areas, not a positive one. His father was a drug user and he provided drugs and alcohol to the offender from a very young age; indeed, introducing him to cannabis at the age of but five. His grandmother tried hard to keep him on the straight and narrow but, as is obvious from what has occurred in the offender’s life up until now, she was unsuccessful. Part of the problem, according to a psychiatric report tendered today, was the significant emotional neglect which the offender reports, especially caused by his father’s substance abuse problems.

12. In the other hand, not too much can be made of the offender’s background. This was not a case where there is any suggestion that he was exposed to domestic violence on a daily basis. This is not a case where he was forced to live on the streets from a young age. He had a positive person in his life; his grandmother. He does report being subject to some physical abuse by her, but how much of that was perhaps overenthusiastic chastisement and how much was serious physical abuse is difficult to determine.

13. That is not to underplay the effect of drugs in the offender’s life. One thing Henry looks at, as well as providing a guideline sentence for the commonly occurring offence of armed robbery, concerns the circumstances in which addiction to drugs can be a mitigating feature. One such circumstance is when the decision to first take drugs is not really one of personal choice. It could hardly be said that the offender made a personal choice to commence using cannabis when it was his father who gave it to him at the age of five. The problems which the offender has faced and which he has caused society have, in a large part, flowed from that early exposure to drugs. He is an enthusiastic drug user. There is at least the possibility that this drug use has led to thought disorders such as psychosis which have been present in the offender from time to time.

14. Mr Bickford, who appears for the offender today, submits that one aspect of the relevance of the offender’s drug use, and its connection with his offending, is that it may suggest that the offender’s decision to commit offences such as these, and I will be referring to some aspects of his criminal history, is not born of some evil disposition but is a result of his drug addiction. Of course, another aspect of relevance of that is that it affects his prospects of rehabilitation. If the offender’s drug addiction can be dealt with, it is much less likely that he will commit offences in the future.

15. It is a significantly aggravating feature that the offender was on parole for an offence of aggravated robbery with wounding at the time he committed the offence for which I must specifically sentence him. The Crown has tendered the statement of facts in relation to that matter. It was a most serious offence. It involved the offender and others setting upon a seventeen year old boy who ended up being stabbed and requiring open heart surgery. Of course, he is not to be punished again for an offence for which he has already been punished, but that the offender would produce a knife and threaten two women with it after having been sentenced for an earlier offence, and whilst on parole for that offence, does suggest in very concrete terms the increased need for an element of personal deterrence to be built into the sentence that I must ultimately impose upon the offender.

16. The offender has other robbery offences on his criminal history too; three armed robberies in 2008. This is one of those cases where the offender has demonstrated a continuing attitude of disobedience to the law which must be reflected in the sentence.

17. Having mentioned that the offender was on parole, I should make it clear that I do regard that as a significantly aggravating feature but have to be careful not to double-count that factor by commencing the sentence earlier than is thus appropriate. I have chosen the date of the offender’s arrest as the date on which the sentence I will announce will commence but taking into account in selecting the length of that sentence that he was on parole for an earlier offence of robbery in which a knife was also used.

18. The offender pleaded guilty, not at the earliest opportunity but on the day his trial was due to commence, having alerted the Court earlier through his lawyers that he would be pleading guilty a few days beforehand. In those circumstances, the sentence I will impose upon the offender is 15 per cent less than it would otherwise have been.

19. Mr Bickford relied on the principles to be found in R vHemsley [2004] NSWCCA 228. He summarised them accurately in his written submissions. However, he made no submission, indeed conceded that it could not be said that his moral culpability should be reduced. I do not regard the offender’s mental illness as being a significant reason to reduce the need for general deterrence to any large extent. There is no real suggestion in any material that the custodial sentence that must be imposed upon the offender would weigh more heavily on him, especially as he is apparently not using drugs whilst in custody and his thought disorders might be thought, therefore, to have improved.

20. I do not want to underestimate the effect of the offender’s upbringing on the sentence that I will shortly announce. Who knows how Mr Buxton’s life would have turned out had he not been introduced to drugs by his father at the age of five? It is undeniable that that feature of the offender’s early life has remained an important factor in how his life has turned out. It was not his decision to commence using drugs. It is probably his decision to keep using them but even that decision has to be looked at in the context of the fact that his drug addiction is not really one of his own making.

21. Not without some hesitation, I will make a finding of special circumstances in the offender’s favour. My hesitation arises from the circumstance that he did not take advantage of the leniency that was offered to him by a finding of special circumstances made when he was sentenced for the aggravated robbery with wounding matter. He committed this offence only about six months after having been released from custody, in the context of having consumed a large quantity of drugs. However, I will make a finding of special circumstances in the offender’s favour, primarily for two reasons; the effect of accumulation of this sentence, and the offender’s need for assistance to overcome his drug addiction. If he can be assisted to give up his life of drugs, then not only will he benefit but perhaps, more importantly, the community will as well.

22. A significant sentence of imprisonment is required, and that is what I will now impose.

23. The offender is sentenced to imprisonment. I set a non-parole period of five years to date from 25 April 2014 and a head sentence of eight years. The non-parole period will thus expire on 24 April 2019, on which day the offender is eligible to be released to parole.

**********

Decision last updated: 31 August 2016