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District Court 13 August 2010

R v Roberson aka Luke

[2010] NSWDC 216

Assault & violenceTheft & property
CRIME SENTENCE ROBBERY IN COMPANY

Citation: R v Roberson aka Luke [2010] NSWDC 216
Court: District Court of New South Wales
Date: 13 August 2010
Judge(s): Norrish QC DCJ

Background

The offender, Michael Luke, was just under 19 years of age when he committed a series of violent offences over three days in early April 2009. The offences included a carjacking (assault with intent to take and drive a conveyance), an aggravated taking and driving of a vehicle in company, and two robberies in company.

The first offence occurred in the early hours of 3 April 2009, when the offender approached a driver stationary at traffic lights in Maroubra, threatened him, punched him in the head, and drove away his vehicle. The following day, acting in company with two other men, he participated in the theft of a second vehicle at Kingsford and robbed another victim. A further robbery in company of a young woman occurred on 5 April 2009.

The offender was arrested on 2 June 2009, though he had already been in custody since 13 May 2009 on an unrelated assault charge. He pleaded guilty to the principal charges. Three additional driving offences and an accessory-after-the-fact charge were taken into account on a Form 1 (a procedural mechanism allowing a court to consider additional charges when sentencing on a principal offence, without recording separate convictions for those additional matters).

  • How the aggregate sentence should be structured across multiple serious offences committed over a short period, having regard to principles of accumulation and totality
  • Whether the commencement date of sentences should be made fully or partially cumulative upon prior custodial periods
  • The appropriate weight to give to the offender's youth and background as mitigating factors against the objective seriousness of the offending
  • Whether special circumstances existed justifying a longer-than-usual parole period on certain charges
  • Whether a referral to the Compulsory Drug Treatment Correctional Centre program was appropriate

Decision

Norrish QC DCJ noted at the outset that this case presented a particularly complex sentencing exercise, describing it as an illustration of the difficulties in correctly applying the High Court principles from Pearce and Markarian when multiple serious offences are to be sentenced together.

The court imposed an aggregate effective sentence of six and a half years imprisonment with a non-parole period of three years, backdated to 7 August 2009. Sentences were structured as partially cumulative upon the earlier Local Court sentences and revoked parole period, rather than wholly cumulative upon them, which the judge regarded as the appropriate accommodation of the pre-existing custody.

Special circumstances were found in relation to two of the charges, allowing the balance of term (the period after the non-parole period ends) to exceed the standard one-third ratio. The court took into account the offender's comparative youth at the time of offending and his background, while also acknowledging his familiarity with the criminal justice system.

The court referred the offender for assessment for the Compulsory Drug Treatment Correctional Centre program at Parklea, noting that having served at least one year of the non-parole period by the time of sentencing, the offender met the threshold for that referral.

Orders Made

  • Charge 001 (assault with intent to take and drive a conveyance): convicted and sentenced to imprisonment with a non-parole period of 1 year commencing 7 August 2011, expiring 6 August 2012; balance of 2 years expiring 6 August 2014; eligible for parole 6 August 2012.
  • Charge 002 (aggravated taking and driving in company): convicted and sentenced to imprisonment with a non-parole period of 1 year commencing 7 August 2011, expiring 6 August 2012; balance of 3 years and 6 months expiring 6 February 2016; special circumstances found; eligible for parole 6 August 2012.
  • Charge 004 (robbery in company, with Form 1 matters taken into account): convicted and sentenced to imprisonment with a non-parole period of 9 months commencing 7 November 2011, expiring 6 August 2012; balance of 3 years and 6 months expiring 6 February 2016; special circumstances found; eligible for parole 6 August 2012.
  • Charge 005 (robbery in company): convicted and sentenced to 2 years and 3 months commencing 7 August 2009, expiring 6 November 2011.
  • Charge 006 (robbery in company): convicted and sentenced to 2 years and 3 months commencing 7 August 2009, expiring 6 November 2011.
  • Offender referred to the Drug Court for assessment as to eligibility for the Compulsory Drug Treatment Correctional Centre program at Parklea.

Key Takeaways

  • Sentencing an offender for multiple serious offences committed over a short period requires careful application of the totality and accumulation principles established in Pearce and Markarian, and the District Court here described that task as particularly difficult on these facts.
  • Where an offender is already serving unrelated custodial sentences, a court may commence new sentences at a date that is only partially cumulative upon earlier periods, rather than wholly cumulative, where that better reflects the overall just outcome.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 permits the court to extend the balance of term beyond the standard ratio, producing a longer parole period to support rehabilitation.
  • Youth at the time of offending is a recognised mitigating factor, though the court weighed it against the objective gravity of the offences and the offender's demonstrated familiarity with the criminal justice system.
  • Eligibility for referral to the Compulsory Drug Treatment Correctional Centre program arises once an offender has served at least one year of a non-parole period, and such a referral does not equate to a direction for parole release, which remains at the discretion of the Parole Board.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 154C(1)(a), 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25
- Henry v R (1999) 46 NSWLR 346
- R v O'Callaghan [2006] NSWCCA 58
- Attorney General's Reference No 2 (2002) 56 NSWLR 147
- Way v The Queen [2004] NSWCCA 131
- Anderson v The Queen [2008] NSWCCA 211
- R v MLP [2006] NSWCCA 271
- R v MMK (2006) 164 A Crim R 481
- R v XX [2009] NSWCCA 115
- Arnaouto v The Queen (2008) 191 A Crim R 149
- Jagou & Ors [2009] NSWCCA 167
- Blackman and Waters [2001] NSWCCA 121