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District Court 8 March 2007

R v MOREIRA

[2007] NSWDC 35

Theft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE ACCESSORY AFTER THE FACT ATTEMPTED ARMED ROBBERY

Citation: R v Moreira [2007] NSWDC 35
Court: District Court of New South Wales
Date: 8 March 2007
Judge(s): Berman SC DCJ

Background

The offender was the partner of a man who attempted to rob a florist at scissors-point. She had no prior knowledge of his intention to commit the robbery. When he fled the shop, she attempted to assist him by driving away from the area, but was unable to start her car. Both she and her partner ultimately fled on foot, and she later returned to her vehicle after calling roadside assistance.

She was charged as an accessory after the fact to attempted armed robbery. Her partner had already been sentenced by Judge Geraghty to a non-parole period of twelve months with a head sentence of two and a half years. Judge Geraghty had earlier placed the offender on a section 11 remand bond, conditional on her residing at a Salvation Army treatment program, recognising a link between her offending and her drug addiction.

When the matter came before Berman SC DCJ for final sentence, it had not been relisted before Judge Geraghty as it should have been. The sentencing judge noted this was a registry failure, but proceeded to sentence the offender to avoid further delay and hardship to her.

  • What is the appropriate sentence for an accessory after the fact to attempted armed robbery, where the offender's involvement was brief and unsuccessful?
  • What weight should be given to demonstrated rehabilitation, including completed drug treatment, at the time of sentence?
  • How should a community service order be structured where the offender has expressed a desire to repay the organisation that assisted her recovery?

Decision

Berman SC DCJ acknowledged that the offending required punishment, noting the attempted armed robbery itself was serious given the use of a weapon, even though the principal offender had abandoned the attempt when confronted. The offender's own role was limited to an unsuccessful attempt to assist her partner's escape.

The court placed considerable weight on the offender's demonstrated rehabilitation. She had completed the Salvation Army's Cello Farm treatment program, continued attending Narcotics Anonymous meetings, and was living independently with her young daughter on the Central Coast. The judge observed that she had achieved rehabilitation rather than merely promising it, and expressly congratulated her on the attitude she had shown toward both her past conduct and her future.

Both the Crown and defence agreed on the appropriate sentence. The court accepted the offender's own suggestion that performing community service with the Salvation Army would allow her to repay the organisation she credited with saving her life.

Orders Made

  • The offender was ordered to perform 300 hours of community service.
  • The offender was directed to report to the Wyong office of the Probation and Parole Service within seven days.
  • The court recommended, where possible, that the community service be performed with the Salvation Army.
  • A condition was imposed requiring the offender to remain drug-free and to submit to regular urinalysis for the duration of the order.

Key Takeaways

  • Demonstrated rehabilitation, as opposed to promised rehabilitation, carried significant weight in mitigation at this sentencing hearing, contributing to a community service outcome for an accessory after the fact charge.
  • A community service order structured around the offender's expressed wish to give back to a rehabilitation organisation was accepted as a legitimate and appropriate sentencing outcome.
  • The District Court flagged a procedural concern: where a judge has personally placed an offender on a section 11 remand bond, that same judge should ordinarily conduct the final sentencing, and registry failures that prevent this are unacceptable.
  • Proceeding to sentence despite the procedural irregularity was justified by the court on the basis that further delay would work hardship on the offender, particularly where the appropriate outcome was uncontroversial.
  • The condition requiring ongoing drug testing and abstinence from illegal drugs was imposed as a term of the community service order, with the court retaining jurisdiction to resentence in the event of a breach.

Legislation and Cases Referenced

Legislation:
- Section 11 bond (Crimes (Sentencing Procedure) Act 1999 (NSW)) (referred to but not cited by name in the judgment)

Cases:
- No cases were cited in the judgment text.