Robbery

[20-200] The essence of robbery

The Crimes Act 1900 does not contain a definition of robbery. The common law definition is used to inform the meaning of the term where it is used in offences created in Pt 4, Div 2 of the Act: R v Delk (1999) 46 NSWLR 340 at [14]–[26]. In R v Foster (1995) 78 A Crim R 517 at 522, robbery was defined in the following terms:

The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person’s resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft: Smith v Desmond [1965] AC 960 at 985–987, 997–998; (1965) 49 Cr App R 246 at 260–263, 275–276. It is not sufficient that the threat of violence is made after the property has been taken; both elements of the offence must coincide: Emery (1975) 11 SASR 169 at 173.

It is not necessary that the offender applies force. It is enough that the offender by his or her conduct (which may involve an express or implied threat) puts the victim in fear of violence: R v King (2004) 59 NSWLR 515 at [52], [114] and [126].

[20-210] The statutory scheme

Part 4, Div 2 Crimes Act 1900 (“the Act”) sets out five sections under the heading “Robbery”: robbery or stealing from the person (s 94); robbery in circumstances of aggravation (s 95); robbery with wounding (s 96); robbery etc or stopping a mail, being armed or in company (s 97); and robbery with arms etc and wounding (s 98). The related offence of demanding property with intent to steal is contained in s 99, Pt 4, Div 3 of the Act.

The provisions in Pt 4, Div 2 of the Act “establish a series of offences, in ascending degrees of seriousness, and with ascending orders of maximum penalty, depending on the circumstances of the case”: R v Brown (1989) 17 NSWLR 472 at 473. For this reason, the principle enunciated in The Queen v De Simoni (1981) 147 CLR 383 by Gibbs J at 389 that “a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence” has particular relevance to robbery offences.

The application of the De Simoni principle is dealt with in the discussion of each of the offences under ss 94–99 below.

It was said over twenty years ago that a robbery, whether with or without arms, is to be regarded “in virtually all circumstances as an offence of the utmost gravity, which must carry a custodial sentence”: R v Murray (unrep, 11/9/86, NSWCCA) per Lee J; R v Valentini (1989) 46 A Crim R 23 at 26. This approach was affirmed in the guideline judgment of R v Henry (1999) 46 NSWLR 346. It applies to armed robbery sentences and has sentencing implications for other robbery offences in s 97(1) and elsewhere in the Act: see The R v Henry Guideline judgment in Robbery etc or stopping mail, being armed or in company: s 97(1) at [20-250].

Section 98 is included in the Table of Standard non-parole period offences in s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW): see Standard non-parole period in [20-270] below.

A study by the Judicial Commission of robbery sentences in the six-year period since R v Henry found that the most common robbery offence was an offence under s 97(1), which accounted for 60.2% of all robbery offences in the higher courts. The majority of offenders sentenced for offences under s 97 received a full-time custodial sentence: 88.7% in the case of armed robbery and assault with intent to rob whilst armed, and 76.3% in the case of robbery in company and assault with intent to rob in company. See further, L Barnes and P Poletti, Sentencing Robbery Offenders since the Henry Guideline Judgment, Research Monograph 30, Judicial Commission of NSW, 2007, pp 47 and 51.

[20-220] Robbery or assault with intent to rob or stealing from the person: s 94

Section 94 provides:

Whosoever:

  • robs or assaults with intent to rob any person, or

  • steals any chattel, money, or valuable security from the person of another,

shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years.

Stealing from the person is robbery without the element of violence or threat of violence: R v Delk (1999) 46 NSWLR 340 at [30]. A common form of this offence is bag snatching: see, for example, R v White (unrep, 29/5/98, NSWCCA).

Summary disposal of the offence of stealing from the person

Stealing from the person is the only offence in Pt 4, Div 2 of the Act that can be dealt with summarily. Where the value of the property, matter or thing stolen exceeds $5,000 it is a Table 1 offence and subject to a maximum penalty of 2 years’ imprisonment or a fine of 100 penalty units: ss 267(2), (3) Criminal Procedure Act 1986. 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].

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) 223 A Crim R 460 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

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:

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. It also embraces respect for the property of others.

Offences of the kind committed by the present respondent are not trivial instances of disrespect for private property. They are serious breaches of the peace. They are direct attacks upon the security of person and property which the law exists to protect.

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 De Simoni principle and s 94

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) 160 A Crim R 178 at [103]; Iese v R [2005] NSWCCA 418 at [18].

[20-230] Robbery in circumstances of aggravation: s 95

Section 95 provides:

(1)

Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years.

Section 95(2) sets out three circumstances of aggravation.

When the circumstance of aggravation relied upon is the use of corporal violence, the nature and extent of the violence will be relevant to the seriousness of the offence: R v Atonio (2005) 154 A Crim R 183 at [29]. Sentences must reflect the distinction between using force and inflicting actual injuries “lest it be thought that there is no point in limiting the violence used to commit crimes”: Gray v R [2007] NSWCCA 366 at [28] per Adams J.

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) 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) 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 1999 as it breached the suffix to s 21A(2) (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) where the offender had been convicted of aggravated robbery where the circumstance of aggravation was deprivation of liberty.

[20-240] Robbery in circumstances of aggravation with wounding: s 96

Section 96 provides:

Whosoever commits any offence under s 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to imprisonment for 25 years.

All offences under s 96 involving the infliction of grievous bodily harm are serious, but those resulting in permanent disability are necessarily more so: R v MS2 (2005) 158 A Crim R 93 at [13]. This must be reflected in the severity of the sentence.

A sentencing judge is entitled to take into account the R v Henry guideline judgment as a means to assess the seriousness of an offence under s 96: R v Thomas [2007] NSWCCA 269 at [22], [91].

[20-250] Robbery etc or stopping mail, being armed or in company: s 97(1)

Section 97(1) provides:

(1)

Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person,

  • robs, or assaults with intent to rob, any person, or

  • stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same,

shall be liable to imprisonment for 20 years.

An “offensive weapon” is defined in s 4(1) of the Act as either a dangerous weapon, any thing made or adapted for offensive purposes, or any thing that, “in the circumstances, is used, or intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm”.

Armed robbery

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

Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the 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.

Full time custody unless exceptional circumstances

An offender convicted of armed robbery should expect to receive a full-time custodial sentence, save in the “most exceptional circumstances”: R v Roberts (1994) 73 A Crim R 306 at 308. In R v Henry, Spigelman CJ at [113] applied the Roberts principle with the phrase “most exceptional circumstances” in favour of the phrase “wholly exceptional and unusual circumstances” employed in R v Crotty (unrep, 29/2/94, NSWCCA) at 5. However, a number of subsequent cases refer to R v Henry as authority for the principle that merely “exceptional circumstances” (as opposed to “most exceptional circumstances”) are required: see, for example, Legge v R [2007] NSWCCA 244 at [44]. The court in R v Henry described the test as being “most exceptional circumstances” at one point in its judgment ([113]) and later being “exceptional circumstances”: see, for example, [210] and [270]. The differences between these expressions may not be material.

Youth by itself is not an exceptional circumstance: R v Tran [1999] NSWCCA 109 at [18]. Nor necessarily is the attempt or achievement of rehabilitation: R v Tran, above, at [18]. The provision of assistance to authorities may qualify as an exceptional circumstance but the case would need to be compelling and the assistance to authorities substantial; what constitutes exceptional circumstances will depend upon the particular case: R v Tran at [21]. Cases of note since the guideline where exceptional circumstances have been found include: R v Govinden (1999) 106 A Crim R 314 at [35]; R v Metcalf [2000] NSWCCA 277 at [36]; R v Blackman [2001] NSWCCA 121 at [45]; R v Parsons [2002] NSWCCA 296 at [70]; R v Nair [2003] NSWCCA 368 at [17]; and R v Gadsden [2005] NSWCCA 453 at [36].

See also Table 1 at [20-310] for details of Crown appeals to the CCA since 1999 where a non-custodial sentence was imposed at first instance for a s 97(1) offence.

The R v Henry Guideline judgment

The guideline judgment of R v Henry (1999) 46 NSWLR 346 is directed at the offence of armed robbery pursuant to s 97(1) of the Act. The rationale and impetus for the guideline judgment was “the inconsistency in sentencing practice and systematic excessive leniency in the level of sentences” for s 97(1) offences: per Spigelman CJ at [110]. In particular, the judgment expressed concern regarding the prevalence of first instance judges finding exceptional circumstances warranting the imposition of a non-custodial sentence.

Spigelman CJ promulgated the following guideline at [162]:

A Guideline for New South Wales

It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:

(i) 

Young offender with no or little criminal history

(ii) 

Weapon like a knife, capable of killing or inflicting serious injury

(iii) 

Limited degree of planning

(iv) 

Limited, if any, actual violence but a real threat thereof

(v) 

Victim in a vulnerable position such as a shopkeeper or taxi driver

(vi) 

Small amount taken

(vii) 

Plea of guilty, the significance of which is limited by a strong Crown case.

Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.

There are two principal reasons why a sentencing range is appropriate for this offence:

(i) 

The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.

(ii) 

Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of “limited actual violence” in (iv); degree of vulnerability in (v); amount in (vi).

In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.

Aggravating and mitigating factors will justify a sentence below or above the range, as this Court’s prior decisions indicate. The narrow range is a starting point.

In addition to factors which may arise in any case eg youth, offender’s criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:

(i) 

Nature of the weapon

(ii) 

Vulnerability of the victim

(iii) 

Position on a scale of impulsiveness/planning

(iv) 

Intensity of threat, or actual use, of force

(v) 

Number of offenders

(vi) 

Amount taken

(vii) 

Effect on victim(s).

Spigelman CJ has since clarified that the guilty plea component (number (vii)) at [162] refers to a late plea of guilty for the purposes of the application of the guideline promulgated in R v Thomson and Houlton (2000) 49 NSWLR 383 at [161]. Therefore, where there is an early plea, all other things being equal, the sentence should be lower than the suggested range: R v Thomson and Houlton per Spigelman CJ at [161]. For dealing with a late guilty plea, see R v Thomas [2007] NSWCCA 269 at [26].

Spigelman CJ said in Legge v R [2007] NSWCCA 244 at [59]: “a guideline is not a tramline.” It is not the case exceptional circumstances must be demonstrated before a sentence of less than the guideline promulgated in R v Henry may be imposed: at [44]. Such an approach impermissibly confines the exercise of sentencing discretion. It is also inconsistent with the nature of guideline as a check, a guide or an indicator or as a sounding board: Legge v R at [59]. R v Henry [2007] NSWCCA 90 and R v II [2008] NSWSC 325 are other recent applications of the R v Henry guideline judgment.

The Guideline judgment and s 21A Crimes (Sentencing Procedure) Act 1999

In “Section 21A and the Sentencing Exercise” (2005) 17(6) JOB 43, Howie J expressed the opinion that s 21A(2), which sets out various aggravating matters, has limited operation where there is a guideline judgment for an offence:

The guideline judgments are offence specific. The facts relevant to a determination of whether or not the guideline applies will generally merely be specific aspects of the aggravating and mitigating factors in s 21A. There will be few, if any, aggravating or mitigating features to take into account once the specific offence-related matters have been considered.

In the armed robbery case of R v Street [2005] NSWCCA 139, the sentencing judge first considered the guideline judgment in R v Henry which referred to factors, the absence or presence of which indicated that the guideline judgment was applicable, and then by way of separate analysis took into account the specific factors referred to in s 21A, albeit in a collective and non-specific way as has been described. This approach “exacerbated the risk of aggravating factors being double counted”: Hoeben J at [35].

See also Armed robbery and s 21A at [20-260] below.

The De Simoni Principle and s 97(1)

It is not an error for the judge, when sentencing for an offence of armed robbery, to take into account the actual bodily harm suffered by the victim: Liao v R [2007] NSWCCA 132 at [8]–[12]. Section 95 (which provides for a specific offence of robbery in circumstances where an offender uses corporal violence) carries the same maximum penalty as s 97(1): at [12].

Robbery in company and the guideline

The R v Henry guideline judgment is equally applicable to an offence of robbery in company, which has the same maximum penalty as an offence of armed robbery and which can be seen as broadly equivalent: R v Murchie (1999) 108 A Crim R 482 at [20]; R v Lesi [2005] NSWCCA 63 at [31]; R v II [2008] NSWSC 325 at [24].

The seven considerations enumerated by the Chief Justice in [162] of R v Henry apply “mutatis mutandis” to the s 97 offence of assault in company and with intent to rob: R v Stanley [2003] NSWCCA 233 at [14].

See also Joint criminal enterprise and Parity at [20-290] below.

[20-260] Robbery armed with a dangerous weapon: s 97(2)

Section 97(2) provides:

Aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

A “dangerous weapon” is defined in s 4(1) of the Act as either a firearm within the meaning of the Firearms Act 1996, a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or a spear gun.

A sentencing judge is entitled to take into account the R v Henry guideline judgment as a means to assess the seriousness of an offence under s 97(2): R v Hamied [2007] NSWCCA 151 at [11]–[13]; R v Franks [2005] NSWCCA 196 at [32].

Armed robbery offences escalate in seriousness according to how weapons are used. Maxwell J said in R v Readman (1990) 47 A Crim R 181 at 185:

[T]his Court indicated in Regina v Dicker, 3 July 1980 that robberies can be viewed in escalating seriousness of carrying a firearm, of a firearm being loaded, of the loaded firearm being discharged, and of discharge being deliberately aimed at a victim or important target.

This principle was applied in R v Campbell [2000] NSWCCA 157 at [24].

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].

Armed robbery and s 21A

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.

Section 21A(2)(b) – the offence involved the actual or threatened use of violence

In Hamze v R [2006] NSWCCA 36 at [26] and R v Dougan (2006) 160 A Crim R 135 at [30], it was held that the threatened use of violence is a necessary element of armed robbery, but that actual use of violence as referred to in s 21A(2)(b) is not necessarily an element. The nature and extent of the threat (as opposed to the bare fact of the threat) can be taken into account via s 21A(2)(b) to assess the seriousness of the crime: R v Way (2004) 60 NSWLR 168 at [106]–[107]. Thus, in Dougan, the court held at [29] that it would have been permissible for the judge to have assessed the precise circumstances in which violence was threatened as a factor which increased the seriousness of the offence. Similarly in Hamze v R at [29], it would have been permissible for the judge to have regard to “the nature of the threatened use of violence in considering the seriousness of the offence”. However in both cases the sentencing judge erred by failing to make clear precisely how s 21A(2)(b) was applied to the facts of the case.

In Dougan, considering the “nature and extent” of the threatened use of violence, the judge would have been entitled to have regard to the fact that the offence involved the actual pointing of a pistol at the victim’s neck. This was indicative of a heightened level of threat and a very specific use of the weapon, which increased the seriousness of the offence: at [29]. But it is not entirely clear whether the CCA will persist with the distinction drawn in Dougan. Bell J said in Fairbairn v R (2006) 165 A Crim R 434 at [31]:

The Judge was satisfied that the applicant’s offences were aggravated by factors (b), (c) and (m). The threatened use of violence and the threatened use of the knife were each elements of the offences and it was not open to the Judge to regard them as factors that aggravated the offence: R v Ibrahimi [2005] NSWCCA 153 at [17]–[18]; R v Street [2005] NSWCCA 139 at [32]; R v House [2005] NSWCCA 88 at [8]–[9]; R v Suaalii [2005] NSWCCA 206 at [12]–[15]; R v McNamara [2005] NSWCCA 195 at [31].

The appellant in that case had pleaded guilty to assault with intent to rob whilst armed with an offensive weapon (knife).

Section 21A(2)(c) – the offence involved the actual or threatened use of a weapon

In R v Dougan (2006) A Crim R 135, the judge was entitled to take into account that the offence involved actual or threatened use of a pistol, as an aggravating factor in sentencing for the offence of assault with intent to rob while armed with a dangerous weapon. This is because “actual or threatened use of a weapon” is not an element of the offence under s 97(2) of the Crimes Act. The requirement that the offence was committed “while armed with a dangerous weapon” means possession of a weapon available for immediate use (R v Farrar (1983) 78 FLR 10), not its actual or threatened use: at [32]. Hoeben J said at [32]:

robbery when armed with a dangerous weapon may be made out even if the offender does not threaten to use or use the weapon. The victim may submit to the theft by fear as a result of the knowledge that the offender is armed with a dangerous weapon.

The fact that the applicant pointed the pistol at the victim’s neck was an additional aggravating factor.

In Huynh v R [2006] NSWCCA 224, the judge was entitled to take into account the firing of a gun as an aggravating factor pursuant to s 21A(2)(c) in sentencing for an offence under s 97(2). Hidden J said at [18]:

True it is that the threatened use of violence, if not the infliction of it, is an element of robbery. The presentation of a weapon is an element of armed robbery, and the expression “use” of a weapon could embrace the presentation of it. Clearly, however, by the phrase she used her Honour was referring compendiously to the firing of the gun by Pham. That act could be described as the use of the weapon, and as an act of actual violence carrying with it the threat of further violence. The firing of the gun, of course, was not an element of the offence.

Mere possession of a weapon cannot be taken into account as a factor aggravating an armed robbery offence: R v House [2005] NSWCCA 88. The judge erred there by treating mere possession by the applicant of a tyre lever and socket wrench as a factor to which additional regard could be given per s 21A(2): at [8].

Section 21A(2)(e) – the offence was committed in company

It may be double counting for a judge sentencing for an offence under s 97(2) to take into account as an aggravating factor the fact that the offence was committed in company for the purposes of s 21A(2)(e). In Hamze v R [2006] NSWCCA 36 Giles JA said at [37]:

Section 97(2) builds upon s 97(1), and incorporates the commission of an offence under s 97(1). The two limbs in s 97(1) can also be cumulative, and the applicant was charged with an offence with the two elements … It would be an error in this case to take into account that the robbery was [committed] in company. It would still be open to a sentencing judge, in assessing the seriousness of an offence, to conclude that the company of a number of men rather than a few increased the seriousness; this would depend on the facts (see R v Way [(2004) 60 NSWLR 168]). But I am unable to conclude that the judge took this approach … In my opinion, there was error in this respect.

Section 21A(2)(g) – the injury, emotional harm, loss or damage caused by the offence is substantial

It is double counting for a judge to take into account as an aggravating feature pursuant to s 21A(2)(g), the effects of a crime upon a victim of an armed robbery where the effects are those that would be expected to result from the commission of that type of offence. In R v Solomon (2005) 153 A Crim R 32, Howie J stated at [19] that: “… the court assumes, without evidence, that the victim of a robbery would be affected both physically and psychologically from the commission of the offence …”. Therefore “something more is required” to aggravate the offence.

Similarly in R v Youkhana [2004] NSWCCA 412, Hidden J stated at [26] that before a judge could find substantial emotional harm within the meaning of s 21A(2)(g), the evidence “would need to disclose an emotional response significantly deleterious than that which any ordinary person would have when subjected to an armed robbery”. In Moore v R [2005] NSWCCA 407, involving an offence of armed robbery and another of aggravated robbery, the court held (at [29]–[30]) there was insufficient evidence to support a finding that the emotional harm caused by the offences to the victims (a taxi driver and pizza deliverer) was substantial.

Section 21A(2)(l) – the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)

Vulnerable victims in robbery cases are discussed at [20-290].

Section 21A(3)(a) – the injury, emotional harm, loss or damage caused by the offence was not substantial

This mitigating factor in s 21A(3)(a) is the converse of the aggravating factor set out under s 21A(2)(g), dealt with above.

In the armed robbery case of Bichar v R [2006] NSWCCA 1, when considering the mitigating factors under s 21A(3)(a), the sentencing judge concluded “so far as the long term is concerned” the injury and emotional harm caused by the offence was not substantial. The CCA held that there was simply no evidence on the subject and the judge erred in assuming that there was no lasting impact upon the victim. Howie J said at [22] that, as was explained in R v Solomon (2005) 153 A Crim R 32, the court assumes that the effect upon a victim of an armed robbery is substantial and this is taken into account in the penalty to be imposed. Had there been evidence of a long-lasting effect on the victim, this might have been a matter of aggravation.

[20-270] Robbery with arms and wounding: s 98

Section 98 provides:

Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years.

Robbery with wounding in company will usually constitute a serious offence, and will be more serious if it extends over a longer period, involves a more serious degree of bodily harm or results in a greater loss of property: Krishna v DPP [2007] NSWCCA 318 at [37].

Standard non-parole period

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:

the offence under s 98 had a standard non-parole period of 7 years but a maximum penalty of 25 years. This Court has remarked about the problems that are posed for a sentencing court by a standard non-parole period that is out of proportion to the maximum penalty and the difficulty in determining the rationale of parliament in specifying a standard non-parole period that is well above or well below half the maximum penalty: see Marshall [v R [2007] NSWCCA 24] at [34].

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.

Effect of the standard non-parole period on the relevance of the R v Henry guideline judgment

Simpson J stated in R v Tobar (2004) 150 A Crim R 104 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]:

I do not see anything inconsistent between the Henry guideline and the standard non-parole period for the s 98 offence. The Henry guideline looks to the total sentence and it is dealing with the normal case for an offence under s 97. Therefore, it is considering an offence in the midrange of seriousness where the maximum penalty is imprisonment for 20 years. The sentence suggested in the guideline, however, is the end result of the application of the relevant s 21A matters to an offence objectively of midrange seriousness. So it takes into account the young age of the offender and the lack of serious record. It also takes into account a late plea. Bearing those matters in mind, it still represents a guide to the sentencing for related offences, such as an offence under s 98 even though that offence carries a standard non-parole period. It is another reference point but one indicating a range of sentences that would not normally be appropriate for a s 98 offence.

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].

Section 98 offences and s 21A

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.

[20-280] Demanding property with intent to steal: s 99

Section 99 provides:

(1)

Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to imprisonment for ten years.

(2)

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.

(3)

It is immaterial whether any such menace is of violence or injury by the offender or by any other person.

Demanding property with intent to steal is a Table 1 offence and is to be dealt with summarily unless an election is made for trial on indictment: s 260 of the Criminal Procedure Act 1986. The maximum penalty which can be imposed by the Local Court is two years’ imprisonment: s 267(2).

The jurisdictional maximum set by the Criminal Procedure Act 1986 does not supplant the maximum penalty for the offence. The jurisdictional maximum is not necessarily to be reserved for a worst category case (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256; R v Doan (2000) 50 NSWLR 115 at [35]. See also Cases that attract the maximum at [10-005]).

The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case and if the offender’s criminality was too serious for the matter to be dealt with in the Local Court it will have little effect: R v El Masri [2005] NSWCCA 167 at [29]. In R v Cage [2006] NSWCCA 304, the respondent pleaded guilty to two offences under s 99. The court held that the sentencing judge had placed undue emphasis on the fact that the offences could theoretically have been disposed of summarily. Although capable of summary disposition, the offences were the result of very generous concessions made by the prosecution for the purposes of securing the pleas of guilty: at [32].

The R v Henry guideline judgment is not applicable when sentencing an offender pursuant to s 99(1): R v Smith (2004) 144 A Crim R 577 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].

[20-290] Objective factors relevant to all robbery offences

Joint criminal enterprise

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) 127 A Crim R 331 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:

While there is a difference between the circumstances which are sufficient to render a person criminally liable for conduct that comes within joint [criminal] enterprise principles, and that which establish the extent of such offender’s culpability, inevitably this becomes a question of degree.

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]:

It is rare that precise quantifications can be made as to the extent to which each offender in a joint criminal enterprise contributes to the planning and execution of an offence … [I]t matters not whether the respondent was involved in the planning of the offence to a substantial extent or not. The fact that he was a party to such a criminal enterprise is the essence of his liability.

It is also relevant 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: R v Donovan [2003] NSWCCA 324 at [26].

Aiders, abettors and principals in the second degree

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 appellant’s role was “very much less” than 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 of the 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.

Parity

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:

There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. … [However] any difference between the sentences imposed on co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.

Matters such as the age, background, criminal history and general character of the offender and the part which he or she 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.

The parity principle may still apply even when co-offenders have been convicted of robbery offences with different maximum penalties: R v Rend (2006) 160 A Crim R 178.

See also Parity at [10-800] above.

Multiple counts/totality

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) 174 A Crim R 116 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].

Form 1 offences

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) 115 A Crim R 152 at [31]; R v Harris (2001) 125 A Crim R 27 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].

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

Use of weapons

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.

Firearms

Robberies can be viewed in escalating seriousness of carrying a firearm, of a firearm being loaded, of the loaded firearm being discharged, and of discharge being deliberately aimed at a victim or important target: R v Readman (1990) 47 A Crim R 181 at 185.

A loaded shotgun is much more dangerous than a knife and much more capable of causing death or grievous bodily harm. Even if not loaded, a shotgun is prone to cause panic and fear in victims: R v Campbell [2000] NSWCCA 157 at [22].

The fact that the firearm may not have been loaded means that the offence was not as serious as it may have been but is still a very serious offence: R v Mangan [1999] NSWCCA 194 at [13].

It can be inferred from the fact that a firearm was found to be loaded when the accused was arrested a short time after the robbery that the firearm was loaded at the time of the robbery: R v Taha (2000) 120 A Crim R 161 at [32].

While a replica pistol used in the course of a robbery may not pose a physical risk to victims or members of the public and in this respect is a less serious factor than a weapon such as a loaded gun or a knife, a sentence for a robbery involving a replica pistol should recognise that the use of the weapon was designed to strike fear into victims: R v Majstrovic [2000] NSWCCA 420 at [9]–[10].

Syringes

The use of a syringe apparently filled with blood is a particularly serious factor because of the terror and revulsion it causes in victims: R v Fernando [2002] NSWCCA 28 at [17]. The use of a blood-filled syringe is more serious than the use of a knife or the category of weapon envisaged in the R v Henry guideline judgment: R v Kyrogolu [1999] NSWCCA 106 at [88]; Rumble v R [2006] NSWCCA 211 at [40]. Sentences for offences involving the use of syringes should deter anyone from adopting this “easy and terrifying method of imposing their will on others”: R v Hodge (unrep, 2/11/93, NSWCCA).

Knives

Those who use knives when perpetrating criminal offences must expect to receive a significant measure of criminal punishment: R v House [2005] NSWCCA 88 at [18] quoting R v Underhill (unrep, 9/5/1986, NSWCCA).

The degree of seriousness involved in the use of a knife is not proportionate to its size: R v Doorey [2000] NSWCCA 456 at [27]. The fact that the type of knife used is a Swiss army knife does not make the offence less serious, since such a weapon can inflict a serious or mortal wound: R v Randell [2004] NSWCCA 337 at [32]

Victims

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].

When a person is charged with, and convicted 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 he or she will not hurt the victim will not alleviate the seriousness of the offence: R v Speeding (2001) 121 A Crim R 426 per Giles JA at [24].

Vulnerable victims

One of the characteristics of the category of cases to which the R v Henry guideline judgment applies is that the victim was in a vulnerable position, such as a shopkeeper or taxi driver: R v Henry at [162]. In relation to taxi drivers, see also R v Sotheren, above, at [27] and R v Matthews [2007] NSWCCA 294 at [27]. The seriousness of robbery offences involving other types of vulnerable victims has also been recognised. For example, service station attendants (R v Goundar (2001) 127 A Crim R 331 at [36], citing R v Thwaites (unrep, 6/10/93)), motel receptionists (R v Sharma (2002) 54 NSWLR 300 at [75]) and operators of small retail shops (R v Fernando [2002] NSWCCA 28 at [62]). Section 21A(2)(l) lists the fact that the victim was vulnerable as an aggravating factor. In addition to taxi drivers and service station attendants, s 21A(2)(l) gives as examples of vulnerable victims bus drivers and other public transport workers, and bank tellers.

The examples of vulnerable victims given in s 21A(2)(l) do not comprise an exclusive list and the CCA has declined to decide the precise scope of vulnerability for the purposes of the section. In R v Ibrahimi [2005] NSWCCA 153, a robbery in company case, Latham J said at [19] that s 21A(2)(l) is not limited to a vulnerability that depends upon either the personal attributes of the victim or arising out of the victim’s occupation. The judge had not erred in taking into account as a factor aggravating the offence that the robbery victims were young men relying upon public transport late in the evening. Even if such victims did not fall within the s 21A(2)(l) definition of “vulnerable”, the factor could be taken into account in light of s 21A(1), which allows other matters required or permitted to be taken into account under any Act or rule of law to be considered: at [20]–[24].

In R v Atonio (2005) 154 A Crim R 183, a case involving an offence of aggravated assault with intent to rob, the victim was “on the railway station in circumstances where it [wa]s difficult … to escape, with the drop onto the railway tracks on each side.” Hislop J declined to rule upon the issue of whether these circumstances meant that the victim was vulnerable pursuant to s 21A(2)(l), stating at [32]:

The matters which caused his Honour to categorise the victim as vulnerable were objective factors which affected the relative seriousness of the offence, and which his Honour was entitled to take into account pursuant to s 21A(1)(c) if those matters were not appropriately categorised as within s 21A(2)(l). Accordingly, it is unnecessary and unproductive to seek to determine the precise meaning and extent of the word “vulnerable” in s 21A(2)(l).

See also s 21A, subsections (2)(a), (cb), (eb), (g), (h), (ib), (k), (l) and (m), which list other aggravating factors relating to victims that are to be taken into account, and s 21A, subsections (3)(a) and (c), which list mitigating factors relating to victims to be taken into account.

[20-300] Subjective factors commonly relevant to robbery

Drug addiction

See Drug addiction at [10-485].

Mental health and intellectual functioning

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].

Youth

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) 124 A Crim R 451 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 him or herself 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:

Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender.

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) 111 A Crim R 206 at [20]; R v Drollett [2002] NSWCCA 13 at [19].

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].

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].

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

Juvenile and adult co-offenders — sentencing parity

It is not uncommon when robbery offences are committed by multiple offenders for one or more of the offenders to be a juvenile and the other or others an adult. Recent examples include DGM v R [2006] NSWCCA 296, Ersman v R [2007] NSWCCA 161 and DFS v R [2007] NSWCCA 77. The different sentencing objectives and considerations applicable to sentencing offenders in the Children’s Court and adult courts restrict comparison of the sentences handed down to co-offenders under the two regimes: R v Ho (unrep, 28/2/97, NSWCCA).

The sentence imposed on a person in the Children’s Court that would otherwise give rise to issues of parity is not always irrelevant, however. In R v Colgan [1999] NSWCCA 292 Spigelman CJ said at [15]: “… an individual sentenced as an adult may very well have a justifiable sense of grievance with respect to that very difference of the regimes”: following R v Govinden (1999) 106 A Crim R 314 at [36]–[38]. It was subsequently held in the two judge bench case of R v Boney [2001] NSWCCA 432 at [14] per Wood CJ; approved in Ersman v R at [74]:

There is no longer an inflexible rule that there is no utility in comparing the sentences imposed upon co-offenders who are separately dealt with: one in the Children’s Court and the other as an adult.

In R v Tran [2004] NSWCCA 6 the court held at [17] that, while the sentences were within the range indicated in the R v Henry guideline judgment, the appellant had a justifiable sense of grievance arising from the difference between his sentence and that of his co-accused. The latter received a control order in the Children’s Court of 15 months. Despite the fact that there are different sentencing objectives in the Children’s Court, which limit the worth of any comparison, the sentencing judge should have paid some regard to the control order imposed on the co-offender.

The relevance of comparing such sentences is the greater in cases where all offenders were sentenced in the District Court in accordance with law pursuant to the Children (Criminal Proceedings) Act 1987: R v Cox [2004] NSWCCA 413 at [28].

See further Juvenile and adult co-offenders at [10-820].

[20-310] Table 1: Crown appeals against the non-imposition of full-time custodial sentences for s 97(1) offences 1999–2007[*]

Matter

NSWCCA

Section

Penalty

Age

Was error disclosed?

Appeal result

Most exceptional circumstances

1999

R v Tran

109

97(1)

s 558 Recog. 3 yrs, 6 mths.

18

Yes

Allowed

> min 2 yrs, add 1 yr 6 mths. Discussed.

R v Govinden

118

97(1)/346

s 558 Recog. 2 yrs.

18

No

Dismissed

Most exceptional circumstances.

R v Khamas

436

97(1)/ 344A (x2)

PD fixed 2 yrs.

18

Yes

Allowed

> PD fixed 3 yrs. Discussed.

2000

R v Calderoni

511

97(1)

s 12 susp. W/o super. — 2 yrs.

22

Yes

Dismissed — CCA discretion

Not discussed. Assistance to authorities.

R v Metcalf

277

97(1) (x2)

PD fixed 3 yrs.

19

No

Dismissed

Most exceptional circumstances.

R v Mastronardi

12

97(1)

s 558 Recog. 3 yrs.

28

Yes

Allowed

> PD fixed 3 yrs. Not discussed.

R v Griggs

33

97(1)

s 558 Recog. 2 yrs.

19

Yes

Allowed

> PD fixed 18 mths. Not discussed.

2001

R v Cimone

98

97(1)

PD head 3 yrs, npp 2 yrs.

19

No

Dismissed

Not discussed. Technical issue.

R v Pamplin

327

97(1)

s 12 susp. W super. — 14 mths.

28

Yes

Allowed

Not discussed. Technical issue re s 12 sentences — became mentally ill on remand.

R v Hoschke

317

97(1)

PD head 2 yrs, npp 18 mths.

18

Yes

Allowed

> Head 2 yrs, 9 mths, npp 16 mths. Discussed.

2002

R v Israil

255

97(1)

s 12 susp. W super. — 2 yrs.

26

No

Dismissed

Not discussed. Mental illness and rehabilitation the issues.

R v Barre

432

97(1)/346

s 9 GBB W super. — 2 yrs.

18

No

Dismissed

Not discussed. Assistance to authorities.

2003

R v Azzi

10

97(1)

s 12 susp. W super. — 2 yrs.

19

Yes

Dismissed — CCA discretion

Discussed as intellectual. disability and parity issues. Should have been sentenced to PD.

R v Bendt

78

97(1) (x2)

Control Order — susp GBB 18 mths

17

Yes

Allowed

> Head 18 mths, npp 12 mths. Not discussed.

R v Russell

273

97(1)

s 12 susp. W super. — 2 yrs.

19

Yes

Dismissed — CCA discretion

Not discussed. Joint criminal enterprise.

R v Iremonger

273

97(1)

s 12 susp. W super. — 2 yrs.

19

Yes

Dismissed — CCA discretion

Not discussed. Joint criminal enterprise.

R v Nair

368

97(1)

s 12 susp. W super. — 12 mths.

22

No

Dismissed

Most exceptional circumstances.

2004

R v DT

349

97(1)

s 12 susp. W super. — 18 mths.

17

No

Dismissed

Exceptional case.

2005

R v Alameddine

68

97(1) (x2)

s 11 — remand for 4 mths 13 days on 28/10/2004

20

Yes

Dismissed — CCA discretion

Following remand sentenced on 10/3/2005 to head 20 mths, npp 11 mths. Not discussed.

R v DV

319

97(1)

PD term of sentence 3 yrs, npp 2 yrs, 3 mths

22

No

Dismissed — CCA discretion

This was an appeal by the Crown under s 5DA where the respondent had reniged on his offer of assistance. The quality of the assistance to authorities was the exceptional circumstance, even when the respondent withdrew his offer. DV had completed service of the entirety of the custodial element of his sentence and the delay in bringing the co-offender before the court was not the fault of the respondent.

R v Gadsden

453

97(1)

CSO 200 hrs

18

No

Dismissed

Most exceptional circumstances.

2006No cases.

2007

R v Naji

198

97(1) (x2)

s 12 susp. — 2 yrs.

22

Yes

Allowed

> Npp 2 yrs, balance of term 2 yrs. No exceptional circumstances.



[*] Details relate to the principal offence only.