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Supreme Court 11 April 2008

R v II

[2008] NSWSC 325

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE LATE PLEA OF GUILTY ROBBERY IN COMPANY OFFENCES ON FORM 1 TAKEN INTO ACCOUNT FEMALE OFFENDER DRIVER OF GETAWAY CAR

Citation: R v II [2008] NSWSC 325
Court: Supreme Court of New South Wales
Date: 11 April 2008
Judge(s): Fullerton J

Background

Shortly before midnight on 9 June 2006, four men entered a hotel at St Peters and robbed the manager and patrons at gunpoint and with other weapons. The offender, a young woman, had driven the four men to the area, dropped them nearby, and waited in the car to assist their escape. She was arrested the following day.

The offender initially faced a joint trial on charges of murder and armed robbery. The murder charge arose because, after the robbery, a patron who had pursued the robbers was fatally stabbed during a struggle near the getaway car. At the close of the Crown case, the trial judge directed the jury to acquit all accused on the murder count, finding no evidence that the fatal stabbing was a deliberate act of any of the accused.

The offender then pleaded guilty to the lesser charge of robbery in company (under s 97(1) of the Crimes Act 1900), rather than armed robbery (s 97(2)). The Crown accepted this plea in full discharge of the indictment. Crucially, it was accepted that the offender had not known the men were carrying weapons before or during the robbery, only learning of that fact afterwards.

  • What sentence was appropriate for a getaway driver convicted of robbery in company where she was unaware of the weapons used by the principal offenders?
  • What discount, if any, was appropriate for a late plea of guilty entered after the Crown case closed at trial?
  • Whether the strong subjective case warranted a departure from the guideline judgment in R v Henry and Others [1999] NSWCCA 111?
  • Whether special circumstances existed justifying a variation in the statutory ratio between the non-parole period and the balance of term?

Decision

Fullerton J accepted that the offender's role was limited to that of a driver and lookout. She knew a robbery was planned but was not aware that weapons were involved. This lack of weapons knowledge meant she was sentenced under s 97(1), which carries a maximum of 20 years, rather than the 25-year maximum for armed robbery with a dangerous weapon.

On the late plea, the court found it carried some utilitarian value despite being entered at the conclusion of the Crown case. The Crown case against the offender had been overwhelming, meaning the plea did not spare a full trial. However, the plea was accepted as having some practical benefit and as reflecting remorse, warranting a 10 per cent discount on sentence. This approach was consistent with existing authority on pleas to lesser charges accepted by the prosecution after the original charge has been run.

The court found that a strong combination of subjective factors warranted departure from the R v Henry guideline, which establishes indicative sentences for robbery offences. The judgment refers to the offender's relative youth, the two years she had already spent on remand, her lack of prior criminal history, and apparent rehabilitation efforts during custody, including pursuing vocational training. Fullerton J was careful to note that these subjective factors, while significant, could not be allowed to overwhelm the sentencing purposes of general deterrence and reflecting community denunciation of serious offending.

Special circumstances were found to exist, justifying a slight adjustment to the statutory relationship between the non-parole and balance-of-term periods under s 44(2) of the Crimes (Sentencing Procedure) Act. The court limited the variation so that the non-parole period still adequately served the purposes of punishment. The eleven additional offences of robbery in company listed on a Form 1 (relating to property taken from individual patrons during the same robbery) were taken into account in fixing the overall term, though the court noted they were so closely connected to the principal offence that they added little to the existing deterrence reflected in the sentence.

Orders Made

  • The offender was sentenced for robbery in company (s 97, Crimes Act 1900) to a non-parole period of 21 months, commencing 11 June 2006 and expiring 10 March 2008, with a balance of term of 15 months expiring 10 June 2009.
  • Pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999, the offender was directed to be released forthwith.

Key Takeaways

  • A getaway driver who was unaware that the principal offenders were carrying weapons fell to be sentenced under s 97(1) of the Crimes Act (robbery in company) rather than s 97(2) (armed robbery), even though those principals were liable for the more serious offence.
  • Late pleas of guilty to a lesser charge, accepted by the prosecution at the close of a trial, may still attract a discount for utilitarian value, though a reduced one, where the Crown case was overwhelming and no full trial was avoided.
  • Departure from the R v Henry guideline judgment is available where the offender's subjective circumstances, taken in combination, are sufficiently compelling, but the court must ensure those factors do not displace the sentencing purposes of general deterrence and community denunciation.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be established by a combination of time spent on remand, lack of prior offending, and relative youth, though any adjustment to the non-parole and balance-of-term ratio must not reduce the non-parole period to a point that fails to reflect the seriousness of the offending.
  • Form 1 offences committed in the course of the same criminal event as the principal offence may carry limited additional weight in sentencing where the deterrence considerations are already substantially addressed by the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 44(2), 50(1)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v Henry and Others [1999] NSWCCA 111; 46 NSWLR 346 (guideline judgment on robbery sentences)
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 156 (Form 1 offences)
- R v Young [2003] NSWCCA 276 (discount for late plea to lesser charge)
- R v Dukino; R v Moshref [2003] NSWCCA 379
- R v Hoschke [2001] NSWCCA 317
- R v McIlwraith [2005] NSWCCA 137
- R v Murchie [1999] NSWCCA 424; 108 A Crim R 482