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Supreme Court 23 November 1999

REGINA v. JANCEK

[1999] NSWSC 1126

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ARMED ROBBERY HEROIN ADDICTION STRONG PROSPECTS OF REHABILITATION YOUNG CHILDREN

Citation: [1999] NSWSC 1126
Court: Supreme Court of New South Wales
Date: 23 November 1999
Judge(s): Greg James J

Background

The offender pleaded guilty to three offences arising from two separate armed robbery incidents in 1997. The first involved an attempted TAB robbery at Blacktown on 4 August 1997, where the offender and an unknown male accomplice, both masked and gloved, entered the premises and threatened customers. The manager activated a hold-up alarm and escaped, and no money was taken.

The second incident occurred on 26 October 1997 at a bottle shop in Lurnea. The offender drove a co-offender to the scene and remained in the vehicle while he entered the shop armed with a loaded revolver. When a struggle broke out and customers restrained the co-offender, the offender entered the shop and attempted to free him, then drove a car at the group of people restraining him. The employee who had struggled with the co-offender, Ian Hagarty, subsequently died. The court noted expressly that the offender was not charged with any complicity in his death.

The offender was Aboriginal, had a significant heroin addiction at the time of the offences, and had young children. By the time of sentencing, she had undertaken residential rehabilitation and made efforts toward education and employment. The sentencing proceedings were extensive, spanning multiple hearing dates across 1999.

  • What was the appropriate sentence across three offences, applying the totality principle and the principles in Pearce?
  • What weight should be given to the offender's heroin addiction as it bore on her moral culpability and as context for the offences?
  • What mitigatory effect, if any, should be given to the offender's Aboriginal background under the principles in Fernando?
  • Whether special circumstances existed under s 5(2) of the Sentencing Act 1989 justifying a longer additional term (and therefore shorter minimum term) than the standard ratio.
  • What role did the offender's rehabilitation prospects and her responsibilities to her children play in determining the appropriate sentence?

Decision

Greg James J approached sentencing by applying the totality principle across the three offences, noting the objective gravity of armed robbery and the serious aggravating features, including the use of a loaded firearm by the co-offender in the second incident and the deliberate driving of a vehicle at people. The court acknowledged these were not minor offences and that deterrence and proportionality remained relevant considerations.

The court accepted, however, that the offender's heroin addiction substantially reduced her moral culpability and that her Aboriginal background and prior deprivation were relevant under the principles established in Fernando. The court found her to have strong and genuine prospects of rehabilitation, supported by her participation in residential programmes, her efforts toward education, and her dependent personality responding to structured support.

The court identified special circumstances under s 5(2) of the Sentencing Act 1989, including the offender's addiction, her comparatively young age, her young children, her dependent personality, and the need for extended supervision to consolidate her rehabilitation. These factors justified a longer additional term than the standard proportion would produce. The court also noted that the community stood to benefit from a period of supervised liberty allowing her to maintain her recovery and her role as a parent.

The court concluded that a total sentence of six years penal servitude, with a minimum term of two years, was appropriate. Time already spent in actual custody and in residential rehabilitation programmes was taken into account in setting the commencement date.

Orders Made

  • First charge (s 97(1), armed robbery at Blacktown): penal servitude for four years, comprising a minimum term of two years and an additional term of two years.
  • Second charge (s 97(2), armed robbery as accessory before the fact at Lurnea): penal servitude for six years, comprising a minimum term of two years and an additional term of four years.
  • Third charge (s 33B, use of offensive weapon to prevent apprehension): penal servitude by way of fixed term for two years.
  • All sentences to be served concurrently, producing a total of six years penal servitude.
  • Minimum term of two years commencing 23 November 1999, expiring 22 November 2001.
  • Additional term of four years commencing 23 November 2001, expiring 22 November 2005.
  • Earliest eligible parole date: 22 November 2001.

Key Takeaways

  • Under the principles in Fernando, an offender's Aboriginal background and the social disadvantage and deprivation associated with it are relevant mitigatory considerations in sentencing, even for serious offences such as armed robbery.
  • Heroin addiction, where it bears on an offender's moral culpability at the time of offending, can reduce the weight given to personal deterrence and support a finding that the offender is not to be treated as fully morally responsible for choices made under its influence.
  • Special circumstances under s 5(2) of the Sentencing Act 1989 can be established by a combination of factors, including addiction, young age, parental responsibilities, dependent personality, and the need for extended post-release supervision to support rehabilitation.
  • The court found that proportionality requirements in sentencing need not preclude leniency where the prospects of rehabilitation are strong and the community interest in avoiding future offending is better served by a supervised period of liberty than by a longer custodial term.
  • Where an offender has spent time in restrictive residential rehabilitation programmes pending sentence, that period is a relevant factor when the court fixes the commencement date and structure of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 33B
- Sentencing Act 1989 (NSW), s 5(2)

Cases:
- The Queen v Pearce (1998) 156 ALR 684 (High Court: totality principle in multiple offence sentencing)
- Henry & Ors [1999] NSWCCA 111
- R v Fernando (1992) 76 A Crim R 58 (Aboriginal background as a sentencing consideration)
- Day (1998) 100 A Crim R 275