R v Lambert

[2024] NSWDC 622

District Court

New South Wales

Medium Neutral Citation:

R v Lambert [2024] NSWDC 622

Hearing dates:

30 October 2024

Date of orders:

30 October 2024

Decision date:

30 October 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 6 years with a non-parole period of 3 years, 11 months

Catchwords:

CRIME — Violent offences — Armed robbery with wounding — Assault with intent to rob

SENTENCING — Aggravating factors — Record of previous convictions

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty — Limited remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — General principles — Multiple offences — Crushing sentence — Moral culpability — Objective seriousness — Purposes of sentencing

SENTENCING — Relevant factors on sentence — Deterrence — General deterrence

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Multiple mental disorders — Depraved and abusive childhood

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Mill v The Queen (1988) [1988] HCA 70; 166 CLR 59

R v Cahyadi [2007] NSWCCA 1

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v XX (2009) 195 A Crim R 38

Category:

Sentence

Parties:

Daniel Lambert (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
K Gourlie solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2023/460246

JUDGMENT – Ex tempore revised

Agreed facts

1. Monday 18 December 2023 was a quiet evening at a local bar. Two staff were on duty; the male victim aged 22 years, the female victim, aged 20. At about 8.45 PM Daniel Lambert came into the bar and purchased a schooner from the female victim. The bar has high quality CCTV which captures both visual and audio, and a portion of that CCTV was played to the Court: Exhibit C.

2. About 9.30 PM the two staff were in the main bar area. Lambert, now wearing a hooded jumper with the hood pulled over his head, re-entered the premises and approached the bar. He has obvious facial tattoos. They could not have been fully disguised by the hoodie.

3. As he approached her the female victim said, “Hey sorry, upstairs is shut right now”. At that point she noticed he was holding a 30-centimetre-long knife with a 20-centimetre-blade, in his hand. He raised it above her head and swung it at the male victim, who was able to dodge away. The female victim moved behind the male. The offender said, “Give me all the money now before I stab you”. The male victim said, “We’re going to get you the money, we’re going to get you the money”, and attempted to put his code into the till, but it did not open. She then moved to the till and said, “I can do it, I can do it”.

4. As she entered her code, attempting to open the till, CCTV audio reveals that the offender started counting down. When he got to “one”, the till had not quite opened. As the till opened, he struck out at her in an overhand chopping movement. The knife hit her left shoulder blade. She screamed and retreated. The male victim picked up a bottle and held it up as the offender began taking cash from the till.

5. The offender said to the female victim, “It’s only a scratch, toughen up”. He then left. The male victim assisted her by applying pressure to her wound.

6. Triple-0 was called. Ambulance officers arrived promptly. They treated her at the scene and took her to Wollongong Hospital. She required an operation to repair the damage to her back. That repair involved numerous sutures to close the wound. In her Victim Impact Statement, to which I will refer shortly, she set out the harm she suffered as a consequence of the injury.

Guilty pleas

7. When the matter was before the Local Court Lambert said that he would plead guilty to two serious offences, firstly, that he robbed the female victim of property, at the time he wounded her whilst armed with an offensive weapon, namely a knife: Crimes Act 1900 (NSW), s 98. Secondly, that he robbed the male victim of the same property while armed with an offensive weapon: Crimes Act, s 97.

8. The pleas of guilty in the Local Court require that I reduce each sentence to be indicated by 25% to reflect the utilitarian value of the early guilty plea. As I will be imposing an aggregate sentence, I will take care that that benefit is not eroded by the process of accumulation.

Maximum penalties and standard non-parole periods

9. The first offence charged pursuant to s 98 Crimes Act carries a maximum penalty of 25 years’ imprisonment and there is a standard non-parole period of 7 years. The second matter, charged pursuant to s 97 Crimes Act has a maximum penalty of 20 years’ imprisonment.

10. Both maximum penalties and, where applicable, standard non-parole periods, are important guides to the exercise of any sentencing discretion. Content should be given to the standard non-parole period. Both convey Parliament’s view of the relative seriousness of the offence. That said, a court does not simply start with the non-parole period and make proportional deductions to or from it.

Objective seriousness

11. In sentencing, I am required to identify all the factors relevant to the sentence, discuss their significance and ultimately make a value judgment about the appropriate sentence, taking everything into account. Sentences must be individual, both to the crime and the person for sentence. The sentence must be proportionate to what was done. That requires an assessment of the objective seriousness of the offence as one essential matter in the process of synthesising all relevant factors.

12. My ex tempore sentence was interrupted because the offender was unwell. I had gotten to the point where I was saying that a sentence has to be proportional. I noted that care needs to be taken because the legislative provisions in the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 21A(2) and the aggravating matters that are often taken into account when assessing objective seriousness, generally can overlap. Care has to be taken not to further aggravate an offence where an aggravating factor is an element of the offence and thus intrinsic to it. A further complicating the process is that the guideline judgment, to which I will soon refer, contains within the guideline both objective and subjective matters.

13. Where citizens are robbed, assaulted and threatened at knifepoint it can have, and generally does have, an impact on them. Where citizens are robbed, assaulted and threatened at knifepoint and then stabbed, it can have a terrible impact on them, as the statement read to the Court reveals. Some crimes, particularly when they occur near places many of us use, such as bars, can have other serious consequences. People lose confidence about going out to public places. They can feel that their town or their workplace is not safe. They feel they cannot be protected by police. They learn to fear others and lose trust in others. Where people are fearful the entire community suffers. As a consequence, we lose our freedom to go out and participate in community activities.

14. Where criminals are caught committing offences such as those now before the Court, the community can lose trust in the courts if they do not punish such crimes and punish them severely.

15. The need for consistency in sentencing, particularly in matters of armed robbery, and a fear that there was excessive leniency by judges of this Court, led the highest Court in New South Wales in 1999 to publish a guideline judgment designed to guide the sentencing discretion of judges. While not prescriptive, careful attention is required to the judgment which must be taken into account: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; Crimes (Sentencing Procedure) Act, s 42A.

16. The Court of Criminal Appeal indicated in the ordinary case of an armed robbery, and tragically, the matter involving the male victim was such a case. Sentences which fell at the lower end of the range would require a sentence in the vicinity of 4 years’ imprisonment following the late plea of guilty.

17. In contrast, the offence against the female victim was obviously more serious than that. It is accepted that the harm done was not insignificant. It carried with it an element of gratuitous violence, as the CCTV demonstrates. Nothing warranted the offender’s further use of violence by striking her with the knife.

18. Although the use of an offensive weapon is an element of the offence, the knife, a particularly nasty weapon, was used either to threaten or to inflict the wounding. A wound would have been inevitable once he struck out with it, as he well knew.

19. It is accepted that the offending was opportunistic. There was limited planning.

20. The prosecution submit that the victims were both “vulnerable”. With great respect, they were doing their job in a public place and to that extent were vulnerable, but they do not fall into the category of people, such as single persons at night in service stations, who are isolated and thus regarded as particularly vulnerable. Nevertheless, all these matters must be taken into account; and will be.

21. The s 98 matter was a grave offence requiring a significant degree of punishment. In both matters, it is accepted, this can only be achieved by custodial sentences of some length.

Victim Impact Statement

22. The female victim read a Victim Impact Statement to the Court. She spoke of the profound impact of this offence on her and how her “world was changed irrevocably” by this brief interaction and unnecessary violence.

23. She spoke of the “excruciating pain” she suffered when the knife entered her back. That was obvious from her screams which echoed around the courtroom when the video was played. She says she was struck, “while [my] back was turned, as if I was an animal”. She described the laceration to her back and the extensive surgery and medical treatment required to repair a wound that went through many layers of muscle and caused nerve damage. She still suffers sensitivity as a consequence.

24. Apart from the immediate trauma and physical injury, her life has been changed because she is now hypervigilant. Counselling has not yet helped. She still has back pain and trouble moving which means that work is more difficult for her than it used to be. The emotional burden continued and has impacted on her friendships.

25. She was an innocent. She had her back turned to the offender. She did not deserve any of this.

26. The statement serves the very practical purpose of drawing to the offender’s, the Court’s and the community’s attention the personal and psychological harm caused by crimes such as this.

27. The absence of a Victim Impact Statement from the male victim does not give rise to an inference the offence had little or no impact: Crimes (Sentencing Procedure) Act, s 30E.

Subjective case for the offender

28. I have to consider the offender himself. He was born in 1986. He has come to the attention of the Court on a number of occasions. He has previously served a short period in custody. There have been gaps of years in his criminal antecedents and although there are matters of violence on his record, this matter represents a significant escalation in the type and nature of his offending. His record means that he is not entitled to the leniency often given to first offenders.

29. I have the benefit of a comprehensive psychological report from Ms Cornell: Exhibit 1. It details in an uncontroversial and professional manner, his personal history. She puts forward a diagnosis. Although it is not supported by evidence on oath, it is clearly a professional report which does not simply parrot the opinions or wishes of the offender. To the contrary, it appears to be a fair assessment of him and his risks.

30. In her opinion, he presents with a number of psychiatric or psychological conditions; Major Depressive Disorder, Post-Traumatic Stress Disorder and Borderline Personality Disorder. He presents with antisocial personality characteristics, such as his failure to conform with social norms and his reckless disregard for the safety of himself and others.

31. She notes, however, that such traits exist within what she has earlier described in her report at par [71] as:

“Maladaptive coping system, in context of his high levels of distress associated with perceived rejection and abandonment, and therefore more aligned with a Borderline Personality Disorder presentation.”

32. She also notes he has chronic and severe substance abuse problems which, in turn, influence antisocial behaviours and unproductive lifestyle and antisocial beliefs.

33. She notes an upbringing where he was subject to abuse and violence in the home when young. There is evidence he suffered parental neglect as his parents were both substances abusers, although he never went without. His mother coped as best she could, she had her own mental health difficulties and problems with alcohol abuse. His stepfather was physically abusive. His mother’s decline in physical health coincided with the commission of this offence. He has few other family ties.

34. He has had experience of abandonment when a teenager. He has been able to maintain Department of Housing accommodation for a period, but for much of his adult life has been, effectively, homeless.

35. He did not cope well at school and left school early. He has only worked in casual employment for relatively short periods. That employment was impacted on by his long-term use and abuse of both alcohol and illicit drugs. He took up the use and abuse of illicit drugs before he was really old enough to make rational choices and has used both illicit drugs and alcohol continually.

36. He has engaged in SMART recovery group, and he is currently receiving opioid substitution therapy. He has a number of drug use disorders.

37. He self-describes as “unreliable” and “self-centred”. He has few friends. He has been subject to being assaulted in custody, which reflects his personality problems. He told Ms Cornell that he fears public rejection and “worries about being stared at in public”. She queried his decision to obtain face tattoos. He said he “obtained [them] … to intimidate others … to reduce the likelihood of him becoming a victim [of] physical harm”. He admits to an unstructured and unproductive lifestyle, and she believes his background confirms that he has a problem with interpersonal relationships.

38. He acknowledged to her that he is unsure where to start with his rehabilitation but has shown some insight in his willingness to accept support and guidance.

39. Given his vulnerabilities, a history indicative of chronic suicidality, drug use and apparent lack of boundaries, she recommends that he would benefit from programs such as RUSH and EQUIPS. He should be supervised and have access to a forensic psychologist on release. He will need to engage in a Mental Health Care Plan, he will need to continue with his opioid substitution treatment. He will need assistance in obtaining housing, developing vocational skills and accessing appropriate services. All of this will have to be undertaken with care given the cognitive impacts of his long-term substance abuse. He would benefit from some prosocial supports; at the moment there are none.

40. She suggests that his time will be spent in custody much harder than the person without those underlying conditions, and that seems self-evident. It is also clear that having been assaulted in custody, he will be continually vigilant of repetition of that occurrence. He was unable to be protected from others in the past and that may occur again.

41. Judges do not ignore the lived experience of gaols; they are nasty, violent places.

42. The material before me indicates Lambert has shown some insight into his offending. He has shown some regret for what he did, particularly the stabbing, but he is hardly in a position to express anything more. There is no indication he has any understanding of the impact of his offending, particularly on his female victim.

43. He expressed visible distress during the CCTV and during her reading of her statement, which I noted. He was ill and had to leave the video booth when I commenced my sentencing. The consequences of his action may now be dawning on him.

Structure of the sentence

44. There are two matters for sentence. I will indicate a sentence appropriate to each. The aggregate sentence should be just and appropriate to his crimes: Mill v The Queen (1988) [1988] HCA 70; 166 CLR 59 at [62]-[63].

45. This was a single episode of criminality and there are common elements to both offences. There must be considerable concurrence as a consequence, but there must also be recognition in the structure of the sentence that there were two victims here: R v Cahyadi [2007] NSWCCA 1 at [27]; R v XX (2009) 195 A Crim R 38 at [52].

46. The evidence relating to the offender’s need for treatment, psychiatric, psychological, alcohol and other drug treatments, and help adjusting to normal community life, provide a basis for a finding of special circumstances allowing him to spend longer than would ordinarily be the case on parole; if he earns that parole.

47. Parole will not be granted to him unless the State Parole Authority is convinced that community safety concerns can be met: Crimes (Administration of Sentences) Act 1999 (NSW), s 135. That finding, however, must be constrained by the requirement of the minimum period for which he must be imprisoned, it should affect the gravity of his crimes and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Submissions

48. I am indebted to Mr Gourlie, solicitor for the Director, and Mr Kwan, solicitor for the offender, for their comprehensive written and oral submissions. There were differences of emphasis of course, but I have sought to address them in the course of this judgment. They have been of great assistance to me.

Synthesis

49. There are matters which require, because of my findings that a grave crime was committed against the female victim and a serious crime committed against the male victim, a custodial sentence of some length.

50. There should be some reduction in the sentence because of the individual circumstances of the offender. His moral culpability is less than a person who did not have his disadvantages. I have to give effect to childhood trauma and deprivation, and I have to have proper regard to the impact of his mental health issues; and there are a number of them. These matters are, as is often the case, inextricably linked.

51. His capacity to develop prosocial values or, as it is sometimes put, acquire a moral compass, has been impacted on by his background. His capacity to make behavioural decisions and think consequentially has been compromised.

52. The gaol sentence will weigh more heavily upon him than a person who had a different background and without his disabilities. Any sentence of imprisonment of some length will deter him, I am sure.

53. Mr Kwan asked that I not impose a “crushing” sentence. Whether a sentence is appropriately described as “crushing” often depends upon the perspective of the observer, whether it be the victim or the offender, the community, or appellate or sentencing courts. What is important that he not lose motivation to engage in treatment and programs in custody and that he has a goal to work towards.

54. There are reasons in his background, in his mental health conditions, to reduce the need to denounce the crime by what is commonly called a sentence with a strong component for general deterrence. That said, it is still appropriate that there be a proper sentence, and a proper sentence lets other wrongdoers know the retribution that will fall upon them if they do what Lambert did. His custodial sentence will weigh more heavily upon him.

49. It also has to be accepted here that Ms Cornell’s report and the personality disorders and behavioural disorders that she notes mean that real consideration has to be given to protection of the public from repetition of this offence. A copy of her report should go to Community Corrections as that potential risk will be critically important as to when and if he is released to parole. Obviously, the more he can be assisted and the longer he is supervised in the community the better. He is not to be punished for that. It is simply an illustration of how the matters that have to be taken into account do not always point in the same direction.

50. To that end, I note that his criminal history shows long periods when he has been able to remain offence free, and that past history being a good indication of future history. It may be that these particularly serious offences were ‘one-offs’. Nevertheless, there must be appropriate punishment and that punishment must reflect the community’s disapproval of what occurred and must, so far as it is possible, vindicate the dignity of the two people who were direct victims of his violence.

51. The indicated sentences will take into account the required reduction of 25% for the early guilty pleas’ utilitarian value.

Orders

58. For the offence pursuant to s 98 Crimes Act, I indicate a sentence of 5 years and 3 months’ imprisonment and an indicated non-parole period of 3 years 4 months. For the armed robbery, I indicate a sentence of 3 years and 4 months.

59. The aggregate sentence will be 6 years’ imprisonment. It will commence on 19 December 2023, the day Lambert went into custody. The non-parole period will be 3 years and 11 months. He becomes eligible for consideration for parole on 18 November 2027. There will be a parole period, reflecting my finding of special circumstances, of 2 years and 1 month. Total sentence will expire on 18 December 2029.

Decision last updated: 23 January 2025