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2
Court of Criminal Appeal 3 December 2003

Regina v Nair

[2003] NSWCCA 368

Assault & violenceTheft & property
ROBBERY IN COMPANY (2) SUSPENDED SENTENCE AND S 9 BOND RESPONDENT'S ROLE LIMITED VERY FAVOURABLE SUBJECTIVE CASE.

Citation: Regina v Nair [2003] NSWCCA 368
Court: NSW Court of Criminal Appeal
Date: 3 December 2003
Judges: Spigelman CJ, Dunford J, Hidden J

Background

The respondent pleaded guilty in the District Court to two charges of robbery in company, arising from a single incident in the early hours of 15 June 2002 at an adult bookshop in the Sydney CBD. His co-offenders carried out the actual robberies and assaults, while the respondent stood near the exit doorway throughout. He had no prior knowledge of the plan until moments before the offenders returned to the premises to commit the offences.

Karpin DCJ sentenced the respondent to twelve months' imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, together with a twelve-month supervised good behaviour bond on the first count, and an eighteen-month good behaviour bond under s 9 of the Act on the second count. The Director of Public Prosecutions appealed, arguing the sentences were manifestly inadequate.

  • Whether a suspended sentence and s 9 bond were manifestly inadequate for offences of robbery in company, given the objective seriousness of such offences
  • Whether the respondent's peripheral role, age, and highly favourable subjective circumstances justified the departure from a full-time custodial sentence
  • Whether the sentencing judge's exercise of discretion fell outside the legitimate range available to her

Decision

The Court of Criminal Appeal, delivering judgment through Hidden J (with Spigelman CJ and Dunford J agreeing), dismissed the appeal. The Court accepted that robbery in company is a serious offence ordinarily warranting full-time imprisonment, but affirmed that exceptional cases can justify a suspended sentence or even a s 9 bond.

The respondent's role was found to be genuinely peripheral. He took no part in the assaults or the actual robbery, was not aware of the plan until it was about to be executed, and had no knowledge of any firearm. His presence nonetheless contributed to the intimidation experienced by the victims, but the Court accepted the sentencing judge's characterisation of his involvement as "fairly peripheral."

The subjective case was described as very favourable. The respondent was twenty-four at the time of sentence, had ceased drinking after his arrest, severed ties with negative associates, and had substantially re-engaged with his family and community. Pre-sentence and psychological reports were positive, and the sentencing judge found he was unlikely to reoffend.

The Court acknowledged the outcome was "clearly very lenient," but held it was not outside the legitimate bounds of the judge's sentencing discretion. The Court also noted the ongoing jeopardy facing the respondent: any significant breach of either bond would expose him to a full-time custodial sentence.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a suspended sentence and s 9 bond can be appropriate for robbery in company offences where the offender's role was peripheral and the subjective case was exceptionally strong.
  • A conviction for robbery in company does not automatically require full-time imprisonment; sentencing courts retain a discretion that allows for rehabilitation-focused outcomes in genuinely exceptional circumstances.
  • Where rehabilitation has substantially been achieved before sentence, that consideration can legitimately take precedence over deterrence, retribution, and denunciation.
  • The Court emphasised that suspended sentences and s 9 bonds carry a genuine punitive dimension: the respondent remained at risk of full-time custody for any significant breach of either bond.
  • No error was established simply because the sentence was lenient; the Crown must demonstrate that the sentence fell outside the range legitimately open to the sentencing judge, not merely that a different outcome was available.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12

Cases:
- R v Barre [2002] NSWCCA 432
- R v Blackman and Walters [2001] NSWCCA 121
- R v Donovan [2003] NSWCCA 324
- R v Henry (1999) 46 NSWLR 346
- Murchie (1999) 108 A Crim R 482
- R v Zamagias [2002] NSWCCA 17