Citation: R v Angell, Monique [2008] NSWDC 277
Court: District Court of New South Wales
Date: 9 October 2008
Judge(s): Nicholson SC DCJ
Background
The offender pleaded guilty to two counts of robbery in company, with a further robbery in company and one robbery taken into account on a Form 1 (a procedural mechanism by which additional charges are noted and taken into account at sentencing without separate convictions being recorded). The offences, committed in February 2007, involved the offender joining two co-offenders in robbing victims of their mobile phones. No weapon was used.
Following the guilty pleas, the court released the offender on bail under section 11 of the Crimes (Sentencing Procedure) Act in November 2007, with stringent conditions aimed at facilitating rehabilitation. That bail period lasted approximately five months before the offender was arrested on an unrelated matter and remanded in custody from 3 April 2008.
Because the offender remained in custody on the unrelated matter, the court was unable to complete the intended rehabilitation monitoring process. By the time of sentencing on 9 October 2008, the offender was in the late stages of pregnancy, having earlier suffered a miscarriage during the bail period.
Legal Issues
- What weight should be given to a guilty plea entered just before trial, where the Crown case was moderately strong?
- How should the Henry guideline judgment apply to robbery in company offences where no weapon was used and the offences fell below the mid-range of seriousness?
- Whether limited accumulation of sentences was required under Pearce v The Queen to reflect that the two robberies were committed against different victims.
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence.
- How the court should assess rehabilitation potential where an intervening incarceration on an unrelated matter disrupted a section 11 bail program.
Decision
Nicholson SC DCJ accepted the Crown's concession that the offences fell below the mid-range of seriousness. The absence of a weapon and the presence of another female of similar appearance to the offender (which moderated the strength of the Crown case) placed the offender in a more favourable position than the typical Henry guideline offender. The offender's prior conviction for a similar offence, dealt with in the Children's Court in 2003, was treated as a disentitlement to leniency rather than a specific aggravating feature, consistent with the approach in R v Veen.
A discount of approximately five months was applied to reflect the guilty plea, discounting from a notional head sentence of three years and three months to arrive at a total sentence of two years and ten months. The court noted the plea had been indicated shortly before the trial date, which limited the full discount otherwise available.
The court applied limited accumulation between the two sentences, consistent with Pearce v The Queen, to reflect that each offence involved a different victim and carried its own criminality. However, the degree of accumulation was kept modest given the overall totality of the offending.
Special circumstances were found, based on the offender's youth, the fact that this was her first period of actual custody, and her late-term pregnancy. This justified setting a longer-than-standard balance of term (the portion of the sentence served on parole). The court acknowledged it could not fully assess the offender's rehabilitation prospects because her section 11 bail had been cut short by the unrelated incarceration, making it impossible to determine whether early signs of difficulty were genuinely concerning or merely temporary setbacks.
Orders Made
- First offence: non-parole period of nine months, backdated to 10 January 2008, expiring 9 October 2008; balance of term of two years, two months and twenty days, expiring 8 January 2011.
- Second offence: non-parole period of six months, dating from 10 April 2008, expiring 9 October 2008; balance of term of two years and four months, expiring 9 February 2011 (sentences partially accumulated by three months).
- Offender released to parole on 9 October 2008.
- Supervision by Probation and Parole ordered as a condition of release under section 52 of the Crimes (Sentencing Procedure) Act.
Key Takeaways
- The District Court confirmed that the Henry guideline judgment remains relevant to sentencing for robbery in company, with factors such as the absence of a weapon and a moderately strong (rather than overwhelming) Crown case capable of placing an offender in a more favourable position than the guideline's typical scenario.
- Where a guilty plea is entered just before the trial date, the available sentencing discount is limited, reflecting the reduced utilitarian value of the plea at that stage.
- Under Pearce v The Queen, sentences for separate robberies committed against different victims should be at least partially accumulated to reflect the individual criminality of each offence, even where the overall sentence is moderated by totality principles.
- A prior conviction dealt with in the Children's Court for a similar offence operates as a disentitlement to leniency rather than a formal aggravating factor where the relevant statutory provision was not in force at the time of the current offence.
- Where a section 11 bail program is interrupted by unrelated incarceration, the sentencing court may find itself unable to make a reliable assessment of the offender's rehabilitation capacity, a factor that shaped but did not preclude the exercise of the sentencing discretion here.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including sections 11, 21A, and 52
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Henry (guideline judgment, referenced via Crown submissions)
- R v Veen (referenced in relation to prior criminal record as disentitlement to leniency)