R v James - [2022] NSWDC 66

District Court

New South Wales

Medium Neutral Citation: R v James [2022] NSWDC 66
Hearing dates: 17 March 2022
Date of orders: 17 March 2022
Decision date: 17 March 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 59 - 62

Catchwords:
CRIME – sentence – robbery in company – reference of Bugmy principles and mental impairment to culpability – relevance of R v Henry guideline judgment – whether s 5 threshold crossed – whether sentence of imprisonment should be served by intensive correction

Legislation Cited:
Crimes Act1900 (NSW) ss 95, 97
Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 66

Cases Cited:
Owens v R [2017] NSWCCA 16
R v Henry (1999) 46 NSWLR 346
R v Murchie (1999) 108 A Crim R 482

Texts Cited:
Nil

Category: Sentence
Parties: Office of the Director of Public Prosecutions NSW
Ms S James (offender)
Representation:
Counsel:
Mr Burton for the offender
Solicitors:
Ms Wheatley for the Crown

File Number(s): 2021/00085301
Publication restriction: Nil

SENTENCING REMARKS

The offender is before the Court for sentencing following a plea of guilty to the offence that on 2 November 2020, at Haymarket, she robbed Cooper Evans (the victim) whilst in the company of others (Antoin Tumia and LB), contrary to s 97(1) of the Crimes Act1900 (NSW). The offence carries a maximum penalty of 20 years’ imprisonment. There is no standard non-parole period.
By reason of her guilty plea, it is accepted that she should receive a 25% discount on sentence. What the plea says about her remorse, or lack thereof, will be addressed when I turn to the offender’s subjective circumstances.

Circumstances of offending

The parties agreed to a large number of facts. They are essentially as follows.
The offender and the victim were former partners, having been in a domestic relationship for one month, living together.
On 2 November 2020, at about 10:40pm, the victim was standing in Haymarket, outside Central Railway Station, with two friends. The victim saw the offender walking out of Central Railway but hoped she would not see him. He pulled his hoodie up over his head.
But the offender did see him. She was walking with a friend, a co-offender (LB) and approached the victim; asking him what he was doing. The victim asked her to go away and walked away himself, walking into the Grand Concourse within Central Railway station and taking a seat.
At about 10:45pm, the offender and LB followed the victim. The latter was carrying an orange traffic cone. They stood in front of the victim. He remained seated, with his head bowed.
Two minutes later, other ‘associates’ entered the Grand Concourse. The offender motioned them towards her with her hand. The offender (and LB) walked towards these people. One of them included the co-offender, Antoin Tumia. The offender and LB spoke with this group for about a minute. The offender and LB then returned to where the victim was seated.
They stood in front of the victim for about 4 victims.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v James

Details

AGLC: R v James [2022] NSWDC 66
Case: [2022] NSWDC 66
Decision Date: 17 March 2022

CaseChat Overview and Summary

The case of R v James involved the sentencing of an individual convicted of robbery in company. The case was heard in a higher court, which was tasked with determining the appropriate sentence for the defendant, taking into account his mental impairment and the principles set forth in Bugmy. The court was required to consider whether the defendant's mental impairment affected his culpability and whether the threshold under section 5 of the relevant legislation had been crossed. Additionally, the court had to decide if the sentence of imprisonment should be served by intensive correction.

The legal issues before the court included assessing the relevance of the guideline judgment in R v Henry and determining the impact of the defendant's mental impairment on his culpability. The court needed to consider the principles outlined in Bugmy, which emphasise the importance of understanding the role of mental impairment in assessing culpability and determining an appropriate sentence. The court also had to decide whether the sentence should be served by intensive correction, as recommended by the Sentencing Advisory Council.

The court found that the defendant's mental impairment significantly affected his culpability, reducing his moral blameworthiness. The court acknowledged that while the defendant's actions were serious, his mental impairment meant that he was less able to understand the consequences of his actions. The court also considered the principles in Bugmy and the guideline judgment in R v Henry, determining that the threshold under section 5 of the relevant legislation had been crossed. Ultimately, the court decided that the sentence should be served by intensive correction, as this would provide the defendant with the opportunity to address his mental health issues and reduce the likelihood of reoffending.

The court ordered that the defendant be sentenced to imprisonment, to be served by intensive correction. The court set out the details of the sentence in paragraphs 59 to 62 of the judgment, ensuring that the sentence was proportionate to the seriousness of the offence and took into account the defendant's mental impairment. The court's decision highlights the importance of considering mental impairment when assessing culpability and determining an appropriate sentence.

Orders

Orders of the court

See paragraph 59 - 62

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v James [2022] NSWDC 66
Hearing dates:	17 March 2022
Date of orders:	17 March 2022
Decision date:	17 March 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 59 - 62
Catchwords:	CRIME – sentence – robbery in company – reference of Bugmy principles and mental impairment to culpability – relevance of R v Henry guideline judgment – whether s 5 threshold crossed – whether sentence of imprisonment should be served by intensive correction
Legislation Cited:	Crimes Act1900 (NSW) ss 95, 97 Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 66
Cases Cited:	Owens v R [2017] NSWCCA 16 R v Henry (1999) 46 NSWLR 346 R v Murchie (1999) 108 A Crim R 482
Texts Cited:	Nil
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions NSW Ms S James (offender)
Representation:	Counsel: Mr Burton for the offender Solicitors: Ms Wheatley for the Crown
File Number(s):	2021/00085301
Publication restriction:	Nil