AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 14 April 2000

Regina -v- Malone

[2000] NSWCCA 156

Assault & violenceTheft & propertyPublic order & justice offences
ARMED ROBBERY GUIDELINE JUDGMENTS

Citation: Regina v Malone [2000] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 14 April 2000
Judge(s): Dowd J; Hulme J

Background

The appellant pleaded guilty in the District Court to three offences under section 97 of the Crimes Act 1900: armed robbery in company, robbery in company, and armed robbery using offensive weapons. Each offence involved luring pizza delivery workers to a location and then robbing them at knifepoint. A further offence of stealing from a dwelling was taken into account on a Form 1.

The sentencing judge imposed concurrent minimum terms of two years with additional terms of two to two-and-a-half years, commencing from the date of sentence on 21 May 1999. The judge credited the appellant for his early guilty plea, treating it as evidence of contrition, and noted the vulnerability of the victims and the degree of planning involved.

The appellant sought leave to appeal against the sentences, raising grounds relating to how the sentencing judge had characterised the offences and applied the guideline judgment in R v Henry.

  • Whether the sentencing judge impermissibly took into account aggravating circumstances that were not elements of the charges as framed, contrary to the principle in R v De Simoni
  • Whether a sentencing court dealing with robbery in company may take into account the presence of a weapon, and conversely, whether a court dealing with armed robbery may take into account the presence of co-offenders
  • Whether armed robbery is, as a general proposition, a more serious offence than robbery in company under section 97(1)
  • Whether the guideline judgment in R v Henry applied to the offences and, if so, whether it was correctly applied

Decision

On the De Simoni ground, the Court held that the sentencing judge was entitled to take into account the presence of weapons when sentencing for robbery in company. The principle in De Simoni prohibits a sentencing court from punishing an offender for an offence of which they have not been convicted, and prevents taking into account circumstances that would have warranted conviction for a more serious offence. However, the Court found that under section 97(1), the various elements (being armed, being in company) are simply different ways of committing the same offence and carry the same maximum penalty. Accordingly, neither element elevates the offence to a "more serious offence" within the meaning of De Simoni, and each element may be considered as a circumstance of aggravation when the other forms the basis of the charge.

The Court rejected the submission that armed robbery is inherently more serious than robbery in company as a general proposition. Hulme J stated that even comparing the worst conceivable circumstances of each form of the offence, no such hierarchy could be asserted. The Court also observed that in R v Henry itself, both forms of the offence under section 97(1) were before the court and no distinction of this kind was drawn by any judge or counsel in that case.

On the application of the Henry guideline, the Court confirmed that it remained applicable and was not to be treated as having a more restricted operation than that of a guideline judgment. While Hulme J noted that the sentencing judge appeared at times to have overlooked the fact that two of the three charges were robbery in company rather than armed robbery, this did not produce a sentence warranting appellate intervention under section 6(3) of the Criminal Appeal Act 1912. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under section 97(1) of the Crimes Act 1900, being armed with an offensive weapon and being in company are distinct but equivalent elements of the same offence, carrying the same maximum penalty of 20 years' imprisonment.
  • The principle in R v De Simoni does not prevent a sentencing court from considering the presence of a weapon when sentencing for robbery in company, nor from considering the presence of co-offenders when sentencing for armed robbery, because neither element elevates the offence to a "more serious offence."
  • No general proposition exists that armed robbery under section 97(1) is more serious than robbery in company; the Court of Criminal Appeal rejected this as a categorical rule.
  • The guideline judgment in R v Henry applies to offences under section 97(1) generally and is not to be confined or given a more restricted operation than that of a guideline.
  • In dismissing the appeal, the Court acknowledged a degree of imprecision in the sentencing judge's reasoning but held this did not produce a result that warranted interference under section 6(3) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97
- Sentencing Act 1989 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Henry & Ors (1999) 46 NSWLR 246
- R v De Simoni (1981) 147 CLR 383
- R v Bakewell (unreported, NSW Court of Criminal Appeal, 27 June 1996)