Sentencing Bench Book — Particular offences

Offences under s 94 may be dealt with summarily.

An offence of robbery or assault with intent to rob contrary to s 94(a) is a Table 1 offence and subject to a maximum penalty of 2 years imprisonment or a fine of 100 penalty units: s 267(2), (3) Criminal Procedure Act 1986. An offence of stealing from the person contrary to s 94(b), where the value of the property, matter or thing stolen exceeds $5,000, is a Table 1 offence and is subject to a maximum penalty of 2 years imprisonment or a fine of 100 penalty units: s 267(2), (3) Criminal Procedure Act. Where the value does not exceed $5,000 it is a Table 2 offence and subject to a maximum penalty of 2 years imprisonment or a fine of 50 penalty units, or both. Where the value does not exceed $2,000 the maximum penalty that the Local Court may impose is a penalty of 2 years’ imprisonment or 20 penalty units, or both: s 268(2)(b) Criminal Procedure Act.

The jurisdictional maximum set by the Criminal Procedure Act does not supplant the maximum penalty for the offence. Nor is the jurisdictional maximum necessarily to be reserved for a worst category case (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256; see also [10-005] Cases that attract the maximum): R v Doan (2000) 50 NSWLR 115 at [35]; Park v The Queen [2021] HCA 37 at [19], [23].

The fact that stealing from the person can be dealt with in the Local Court is not automatically a matter in mitigation if the offender is dealt with on indictment in the District Court. The offender’s case must come within the exceptional circumstances outlined in Zreika v R [2012] NSWCCA 44 at [107]–[109].

See further Possibility of summary disposal at [10-080].

In Trindall [2005] NSWCCA 446, the applicant pleaded guilty to two offences of steal from the person. The judge erred in not referring to the maximum penalties in the Local Court. However, given the circumstances of the case, including the fact that the offences were committed while the applicant was on parole, and aggravating circumstances surrounding the second steal from person offence, this error did not warrant appellate intervention: at [40].

Bag snatching offences are often dealt with under s 94 because the offender steals the bag unbeknown to the victim. It has been consistently held that general deterrence should play a significant part in the sentencing process for such offences, because of the comparative ease with which they can be committed: R v Ranse (unrep, 8/8/94, NSWCCA).

In R v Ranse, Gleeson CJ said of bag snatching offences:

R v Ranse was quoted with approval in R v Maloukis [2002] NSWCCA 155 at [15] and R v Marinos [2003] NSWCCA 136 at [17].

It was said more than 10 years ago that a bag snatching offence will attract a full-time custodial sentence when violence is involved, unless there are exceptional circumstances: R v Taylor [2000] NSWCCA 442 per Wood CJ at CL at [48]. This is necessary to reflect the element of general deterrence which has a particular significance for a bag snatching offence given its prevalence and the fact the victims are most often the aged and infirm: at [48].

The courts have grappled with the De Simoni principle as it applies to offences contained with s 94. The applicant in R v Young [2003] NSWCCA 276 had originally been charged with robbery but the Crown accepted a plea to stealing from the person in full satisfaction of the charges. The judge referred to the charge as “robbery” and took into account the fact that the applicant had a knife and frightened his victims. This was an error for it “blurred the distinction between the two offences, and [gave] rise to a reasonable apprehension that the sentencing exercise was not focussed upon the elements of the alternative charge to which the applicant had pleaded guilty”: at [10].

However, in Edwards v R [2009] NSWCCA 199 at [40], it was asserted that the judge breached the De Simoni principle by finding that it “was an offence where violence was offered during the stealing”. The finding was based on the action of the applicant of squeezing the victim’s hand. The applicant submitted it was available for a robbery offence but not for an offence of stealing from the person. Johnson J at [41] rejected the submission on the basis that both robbery and stealing from a person have the same maximum penalty and that the latter offence “usually involves a personal confrontation and the potential for personal conflict and force or fear, particularly if the victim endeavours to stop the theft: R v Delk (1999) 46 NSWLR 340 at 343 [15]. Stealing from the person is a variant of robbery rather than a variant of larceny: R v Delk at 345 [29]. Not every offence of stealing from the person is less serious than robbery, with such an assessment depending upon the particular facts of the case: R v Hua [2002] NSWCCA 384 at [19]”.

The court held that nothing said in R v Young [2003] NSWCCA 276 or R v Hooper [2004] NSWCCA 10 required a contrary conclusion that the De Simoni principle had been breached: [41].

It is a breach of the De Simoni principle if a judge takes into account circumstances of aggravation that would have warranted a conviction for any of the offences found in s 97: see Robbery etc or stopping mail, being armed or in company: s 97(1) at [20-250]. For example, the fact that the offender was armed: R v Grainger (unrep, 3/8/94, NSWCCA); or for example, that the offence was committed in company: Rend v R [2006] NSWCCA 41 at [103]; Iese v R [2005] NSWCCA 418 at [18].

Many of the characteristics considered in the R v Henry armed robbery guideline judgment (quoted below at [20-250]) are common to offences contrary to s 95. The court in Azzi v R [2008] NSWCCA 169 at [37] accepted that the guideline is a “relevant reference point”. However, because R v Henry considers the circumstance where a weapon is used, the use of the armed robbery guideline must be approached with caution when sentencing for an offence contrary to s 95: R v Tortell [2007] NSWCCA 313 at [14]. Even when all of the characteristics set out at [162] of the guideline judgment in R v Henry are satisfied (apart from the characteristic that the offender was armed), a sentencing judge is not permitted to adopt as a starting point, or as a prima facie sentence, a sentence of four to five years. Nor can the judge oscillate around the four to five year figure by enquiring whether any circumstances are present which would justify a heavier or a lighter sentence: R v Yates [2002] NSWCCA 520 at [366].

It is permissible to take into account as an aggravating factor the fact that the offence was committed in company for a s 95 offence. This is because the offence of robbery in company contrary to s 97 carries the same maximum penalty as an offence pursuant to s 95: Moore v R [2005] NSWCCA 407 at [33].

Where the s 95 robbery offence is based on conduct consisting of the threat of violence, it is permissible to apply s 21A(2)(b) Crimes (Sentencing Procedure) Act 1999 and take into account any actual violence without double counting: Hamze v R [2006] NSWCCA 36 at [26]. The statements in R v Mauai [2005] NSWCCA 207 at [13]–[16] concerning the application of s 21A(2)(b) Crimes (Sentencing Procedure) Act to offences under s 95 should be read in light of Hamze v R.

It was an error in Kukovec v R [2014] NSWCCA 308 where the Crown charged an offence of aid and abet aggravated (corporal violence) robbery, for the judge to take into consideration the aggravating factor “in company” under s 21A(2)(e) Crimes (Sentencing Procedure) Act as it breached the suffix to s 21A(2) Crimes (Sentencing Procedure) Act (the court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence). It was an element of the offence when the offender was a principal in the second degree, that the offence was committed in company.

In McDonald v R [2015] NSWCCA 280, the court held that the sentencing judge was entitled to take into account actual use of violence as an aggravating factor under s 21A(2)(b) Crimes (Sentencing Procedure) Act where the offender had been convicted of aggravated robbery where the circumstance of aggravation was deprivation of liberty.

In Melaisis v R [2018] NSWCCA 184, the offending was held to be at a low level of seriousness due to the offence being spontaneous and unpremeditated, the threatening and physical conduct being short-lived, the actual bodily harm having no significant long-term consequences, and the victim not permanently losing his property: [16].

In R v Henry (1999) 46 NSWLR 346 Spigelman CJ stated at [99]:

It is not a breach of the De Simoni principle, when sentencing for a s 97(2) offence, to take into account as a circumstance of aggravation the fact that the victim was wounded. In R v Hooper [2004] NSWCCA 10, James J said at [38] that robbery with wounding under s 98 is not a more serious offence than an offence under s 97(2). Both offences have the same statutory maximum penalty: at [35]. The elements of ss 97(2) and 98 are not the same, nor do the elements of a s 98 offence wholly encompass the elements of a s 97(2) offence. A wounding under s 98 may not necessarily involve a serious injury. It may be any injury involving the breaking of the skin: at [36].

Note: For a general discussion of s 21A factors see Section 21A Factors “in addition to” any Act or Rule of Law at [11-000] above. The cases below are confined to the application of the section to armed robbery.

Where a s 98 offence was committed on or after 1 February 2003, the offence carries a standard non-parole period of seven years. In R v Henry [2007] NSWCCA 90 at [26], Howie J stated:

A list of the appeal cases and summaries for offences which carry a standard non-parole period is accessible via “SNPP Appeals” on the JIRS website.

Simpson J stated in R v Tobar [2004] NSWCCA 391 at [55] that, in relation to the offence of armed robbery with wounding, the introduction of the standard non-parole period “must be taken to have excluded, or at least significantly reduced, the application of the guideline judgment in R v Henry”.

In R v Henry [2007] NSWCCA 90, Howie J stated that the R v Henry guideline judgment of 1999 has a reduced role to play in determining a sentence for a s 98 offence even without the standard non-parole provisions, because there is a higher maximum penalty for such offences by reason of the fact that there has been a wounding: at [34]. If a court imposes a sentence for a s 98 offence that is less than that proposed in the armed robbery R v Henry guideline, that fact alone should cause the court to consider whether the sentence is justified, given that s 98 has a higher maximum penalty than s 97(1): at [34].

His Honour said at [35]:

In short, the relevance of the R v Henry guideline is that it states a range that is below the range appropriate for a s 98 offence: R v PB [2008] NSWCCA 109 at [25].

It is an error for a sentencing judge, when sentencing for an offence of assault with intent to rob in company with wounding, to take into account as an aggravating factor the actual or threatened use of violence. This factor is implicit in the assault element of the offence: R v LLM [2005] NSWCCA 302 at [38].

The applicant in McArthur v R [2006] NSWCCA 200 pleaded guilty to one count of robbery armed with an offensive weapon with which he inflicted grievous bodily harm upon the victim. The victim suffered a fractured skull which required surgery. Other effects included broken teeth, sinus difficulties, eye discomfort, nightmares, sleep deprivation and a loss of confidence about going out at night. The applicant submitted that the sentencing judge erred in taking into account as an aggravating factor the fact that the emotional harm was substantial (s 21A(2)(g)), arguing that this was an element of the offence. Grove J rejected the submission. He said at [13] that “[b]y definition, grievous bodily harm is really serious physical injury” and that emotional harm is not necessarily an element of grievous bodily harm.

The R v Henry guideline judgment is not applicable when sentencing an offender pursuant to s 99(1): R v Smith [2004] NSWCCA 95 at [15]. The court held that it was “unnecessary and unhelpful” for the sentencing judge to have referred to the guideline judgment in such a case, and that: “[t]he guidelines laid down in the Court of Criminal Appeal in R v Henry are not to be extended outside the range of cases in circumstances to which it was directed”: at [13].

It is a breach of the De Simoni principle for a sentencing judge to take into account a circumstance that elevates a s 99 offence to one of robbery. Thus in R v Smith, it was held that in sentencing for an offence of demanding money with menaces, the sentencing judge should not have mentioned in his remarks the fact that the applicant took $200 from the person of the victim: at [16].

A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime: R v Cotter [2003] NSWCCA 273 at [87]. If the agreed crime is committed by one or other or all of the parties to the joint criminal enterprise, all parties are equally guilty of the crime regardless of the part played by each in its commission: at [88]. It is inappropriate to attempt to assess with any degree of precision the role which each played in the consummation of the criminal enterprise: R v Hoschke [2001] NSWCCA 317 at [18].

This does not automatically mean that every participant in a joint enterprise shares the same degree of objective criminality. There may be a proper basis for differentiation, for example, if one offender stands out as the obvious ring-leader, or is the person who elects to carry out the threat of violence by using the weapon to injure the victim. However where the robbery proceeds according to plan, without violence beyond that contemplated and threatened by the presence of the weapon, each participant shares equal responsibility: R v Goundar [2001] NSWCCA 198 at [30]–[34].

In R v Alameddine [2004] NSWCCA 286, the applicant had pleaded guilty to one count of robbery in company while armed with a dangerous weapon under s 97(2). The applicant submitted that he was less objectively culpable than the other offenders involved in the robbery, as he had not entered the premises or personally participated in the violence. Wood CJ at CL at [52] stated:

The court ultimately held at [59]–[61] that even if the applicant did not enter the premises, he was “centrally involved”. He was the co-ordinator of what occurred at the scene and therefore his culpability was equally as great as the others who were there: R v Hoschke applied.

In R v Fepuleai [2007] NSWCCA 325, the applicant had pleaded guilty to one count of assault with intent to rob whilst armed with a dangerous weapon under s 97(2). The offence was committed in the company of four co-offenders. Latham J said at [21]:

The R v Henry guideline judgment may be considered when sentencing a person who is not the principal offender, and whose criminal liability is founded upon the doctrine of joint criminal enterprise or common purpose, even though R v Henry did not expressly deal with such an offender: R v Donovan [2003] NSWCCA 324 at [26].

It is not always the case that an aider and abettor will be less culpable than a principal offender. “A manipulative or dominant aider and abettor may be more culpable than a principal. And even when aiders and abettors are less culpable, the degree of difference will depend upon the circumstances of the particular case”: GAS v The Queen (2004) 217 CLR 198 at [23]; R v Swan [2006] NSWCCA 47 at [72].

In R v Anderson [2002] NSWCCA 485, the appellant drove the car involved in a robbery and pleaded guilty to robbery in company as a principal in the second degree. Hidden J at [28] found that the offender’s role was “very much less” than that of her co-offenders.

The R v Henry guideline judgment is relevant to sentencing for an offence of aiding and abetting an armed robbery: R v Goundar, above, at [37]–[38]. Sections 345 and 346 Crimes Act clarify that an abettor or accessory to the commission of an offence is liable to the same penalty as the person who commits the principal offence.

In the armed robbery case of Lowe v The Queen (1984) 154 CLR 606 Dawson J, with whom Wilson J agreed, said of the principle of parity at 623:

Matters such as the age, background, criminal history and general character of the offender and the part which they played in the commission of the offence may result in different sentences for offenders involved in the same robbery: Lowe v The Queen, above, at 609.

Where co-offenders are broadly involved in a joint criminal enterprise, the parity principle may not be applied if there are significant differences between the respective offences for which each co-offender is to be sentenced, the objective roles of each co-offender, and their subjective circumstances: Hiron v R [2018] NSWCCA 10 at [54].

The parity principle may still apply even when co-offenders have been convicted of robbery offences with different maximum penalties: R v Rend [2006] NSWCCA 41.

See also Parity at [10-800] above.

Where a court sentences an offender for more than one offence, or sentences an offender serving an existing sentence, the aggregate or overall sentence must be “just and appropriate” to the totality of the offending behaviour: Johnson v The Queen (2004) 78 ALJR 616 at [18], citing Mill v The Queen (1988) 166 CLR 59 at 63.

Multiplicity of offences calls for a total sentence well in excess of the guideline promulgated in R v Henry in relation to one offence. As the offending continues, each succeeding offence calls for a greater punishment than the earlier offence, to reflect the need for specific deterrence: R v Smith [2007] NSWCCA 100 at [66].

In Vaovasa v R [2007] NSWCCA 253 at [19], the judge failed to properly apply the principle of totality by imposing wholly concurrent sentences for three robbery in company offences upon the basis that the offences, committed against three victims, were part of one course of criminality of short duration.

See also Concurrent and Consecutive Sentences at [8-200].

Where a Form 1 includes serious offences, they must be taken into account at sentence. This involves taking into account the totality of the offender’s criminality. However, the penalty imposed should be significantly less than that which would have been imposed had the Form 1 offence(s) been prosecuted separately: R v Bavadra [2000] NSWCCA 292 at [31]; R v Harris [2001] NSWCCA 322 at [27]; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Form 1 guideline judgment) per Spigelman CJ at [66].

The judge erred in TS v R [2007] NSWCCA 194 by failing to impose a longer sentence for the principal offence by reason of the offences on the Form 1, than that imposed for the other offences. Imposing identical sentences for all of the offences breached the principles set out in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002: at [24].

Conversely, in Cummins v R [2019] NSWCCA 163, the judge erred in increasing the objective seriousness of the principal offences by considering additional offences placed on Form 1. A permissible use of Form 1 offences however is in giving greater weight to personal deterrence and retribution: [44], [51]–[53]; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 at [42]–[44].

See also Taking Further Offences into Account (Form 1 Offences) at [13-200].

The objective seriousness of a robbery will be affected by whether a weapon or weapons are used, and if so, the nature of the weapons and the manner in which they are used: R v Jenkins [1999] NSWCCA 110 at [5]; R v Anaki [2006] NSWCCA 414 at [38]; R v Readman (1990) 47 A Crim R 181 at 185.

As noted above, armed robbery is not simply a crime against property. It is a crime against persons. “[T]he fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment”: R v Henry (1999) 46 NSWLR 346 per Spigelman CJ at [99]. The actual impact of an offence on victims will vary from case to case and cause variations in the sentences imposed: R v Henry at [95]. The devastating psychological damage that can result from the trauma of being the victim of an armed robbery offence is a matter that should be given due weight in the sentencing process: R v Broxam (unrep, 28/9/95, NSWCCA) at 3; R v Sotheren [2001] NSWCCA 425 at [44]–[46].

In respect of an offence of assault with intent to rob, the sentence should take into account the effect of the assault on the victim: R v Hall (unrep, 28/9/95, NSWCCA). When robbery is committed under the threat of a knife, an offender’s assurance to a victim that they will not hurt the victim will not alleviate the seriousness of the offence: R v Speeding [2001] NSWCCA 105 per Giles JA at [24].

In Tammer-Spence v R [2021] NSWCCA 90, the offender was sentenced for an offence of demanding money with menaces (s 99(1) Crimes Act) from an inmate in custody, as well as further offences against the person. Section 56 applied so that the s 99(1) sentence is to be consecutive on the other sentences as the offence was committed while the offender was a convicted inmate in a correctional centre. The Court also emphasised the need for general deterrence in sentencing for violent offences committed while in custody as it was important to maintain discipline in the custodial environment: [45]–[46].

See Drug addiction at [10-485].

The sentencing principles to be applied in respect of an offender who suffers from a mental disorder or severe intellectual disability are discussed at [10-460].

Where a young offender’s resort to violence during an aggravated robbery is a product of their deprived childhood, the principles in Bugmy v The Queen (2013) 249 CLR 571 apply and the weight to be given to general deterrence should be moderated in favour of other purposes of punishment, particularly rehabilitation: IS v R [2017] NSWCCA 116 at [62]–[65]. This especially will be the case where the offending occurs at a time when an offender has not yet gained maturity and the effect of the deprivation is at its fullest: IS v R at [62]. Notwithstanding a strong subjective case involving a severely deprived background, a sentence for robbery must still be reasonably proportionate to the gravity of the offending: Edwards v R [2021] NSWCCA 57 at [65].

See further Deprived background at [10-470].

Where an offender has made substantial effort, and achieved progress, towards rehabilitation, this warrants a significant ‘downward departure’ from the R v Henry guideline: Gardiner v R [2018] NSWCCA 27 at [60].

Youth is a recognised mitigating factor and, generally, the younger an offender, the greater the weight that should be given to the element of youth: R v Hearne [2001] NSWCCA 37 at [27]. The rehabilitation of youthful offenders will for the most part take precedence over deterrence and retribution in the sentencing exercise: R v GDP (1991) 53 A Crim R 112; R v DM [2005] NSWCCA 181 at [61].

However, when a juvenile offender conducts themself in a way that an adult does, and commits a crime that involves violence or is one of considerable gravity, it is the function of the court to protect the community, and to appropriately give effect to the retributive and deterrent elements of sentencing: R v Pham (1991) 55 A Crim R 128 at [13]; R v Tran [1999] NSWCCA 109 at [10].

In R v Sharma (2002) 54 NSWLR 300, Spigelman CJ observed at [74] in relation to armed robberies committed by youthful offenders:

It has been held that youth is not a cloak of convenience behind which those who deliberately engage in armed robbery can shelter from the just consequences of their conduct: R v Mastronardi [2000] NSWCCA 12 at [20]; R v Drollett [2002] NSWCCA 13 at [19]. Simply because offenders are in their late teens does not signify deterrence and retribution cease to be important, particularly where the crimes entail physical violence on a vulnerable victim: R v El Sayah [2018] NSWCCA 64 at [61]. In TM v R [2023] NSWCCA 185, the court held that the qualification to the relevance of youth where young people “conduct themselves in an ‘adult-like manner’” should be applied with some caution. The gravity of an offence does not of itself demonstrate “adult-like” behaviour, an assessment is required of maturity and conduct and not only of the degree of violence: at [49]. The judge failed to take account of the youth of the 15-year-old offender in assessing his moral culpability: at [61], [66].

In the R v Henry guideline judgment, Spigelman CJ included the expression “young offenders” among the characteristics of the category of cases which was “sufficiently common for purposes of determining a guideline” at [162]. The youth of the offender is one of the factors that might mitigate a sentence below the indicative range: at [170]. In addition to chronological age, it is also important to be mindful of an offender’s relative maturity or otherwise when applying the R v Henry guideline judgment: Yildiz v R [2020] NSWCCA 69 at [61].

Although the R v Henry guideline judgment was not specifically addressed to the sentencing of offenders under 18 years of age, there is no error in using the guideline as a starting point when sentencing a child: R v SDM (2001) 51 NSWLR 530 at [40]–[43]; TS v R [2007] NSWCCA 194 at [25]. The special considerations that apply under s 6 of the Children (Criminal Proceedings) Act 1987 can be taken into account, along with all the other aspects of sentencing policy and principle relevant to offenders who were children at the time of offending, within the ambit of the guideline judgment: R v SDM, above, at [20].

Adult offenders’ Children’s Court criminal histories (where no convictions are recorded) are not admissible in sentencing proceedings and it is an error to take such matters into account: Dungay v R [2020] NSWCCA 209 at [95]; ss 14, 15 Children (Criminal Proceedings) Act 1987; see further Child offenders at [10-405] Prior record .

See further Youth at [10-440] and Sentencing principles applicable to children dealt with at law at [15-090].