Citation: R v English [2010] NSWDC 308
Court: District Court of New South Wales
Date: 5 November 2010
Judge(s): Berman SC DCJ
Background
The offender, a 30-year-old man with a prior history of armed robbery, pleaded guilty shortly before trial to three serious offences committed on 7 July 2009. All three occurred while he was on bail and under the influence of both Xanax and heroin. A fourth related offence, involving an attempted carjacking and aggravated assault on 25 August 2009, was placed on a Form 1 to be taken into account during sentencing on one of the armed robbery charges.
The offending on 7 July began with a carjacking in a Hurstville shopping centre car park, where the offender held a knife to a woman's stomach and demanded her car keys and handbag. He then used the stolen vehicle to carry out two separate armed robberies at nearby convenience stores, threatening staff with a knife at each location. During one robbery, a prolonged physical struggle occurred in which the victim was knocked to the ground.
The Form 1 matter involved the offender approaching a woman waiting in a council car park, threatening her with a Stanley knife held close to her face, and pulling her from her vehicle. He fled when he was unable to start the car and the victim's screaming drew attention. The offender was identified and arrested on 28 August 2009.
Legal Issues
- What sentences were appropriate for each of the three principal offences, having regard to their individual objective gravity?
- How should the sentences be structured, given the principle of totality and the fact that the offences occurred within a short period on the same day?
- Whether the carjacking offence fell within the middle range of objective seriousness, given that a standard non-parole period applied to that offence?
- What weight should be given to the offender's personal circumstances, including his drug dependency, troubled upbringing, and early guilty plea?
- How should the court treat the aggravating factor that the offences were committed while the offender was on bail?
Decision
His Honour found that the carjacking offence fell within the middle range of objective seriousness for offences of that type, noting that the standard non-parole period of five years applied and that the court was assessing a range rather than a fixed point. The armed robbery offences were also treated as serious, with the third (the convenience store robbery involving a prolonged struggle) assessed as objectively worse than the second, although identical non-parole periods were imposed on both armed robbery counts given their overall circumstances.
The court acknowledged mitigating factors including the offender's drug-affected state, his difficult upbringing in a household marked by parental alcohol abuse and domestic violence, his above-average intelligence, his satisfactory completion of a prior parole period, and the causal link between his drug reliance and the offending. However, his bail status at the time of the offences was treated as a serious aggravating factor, and his prior armed robbery history weighed against a significant reduction in sentence.
Berman SC DCJ declined to impose fully concurrent sentences. Because the offences were serious and distinct acts of criminality, the sentences were structured to be partially accumulative on one another, and fully accumulative on a pre-existing six-month fixed term for a separate break, enter and steal matter. Special circumstances were found to exist, warranting some adjustment to the standard ratio between the non-parole period and the overall head sentence, primarily because of the partially accumulative structure of the sentences.
The sentences were expressed to be the minimum the court considered appropriate. His Honour emphasised the prevalence of armed robbery, the significant harm caused to each victim, and the need for both personal and general deterrence.
Orders Made
- Offence 1 (carjacking): Non-parole period of 3 years from 24 February 2010; head sentence of 5 years.
- Offence 2 (armed robbery, with Form 1 matter taken into account): Fixed term of 2 years from 24 February 2012.
- Offence 3 (armed robbery): Non-parole period of 2 years from 24 February 2013; head sentence of 4.5 years.
- Overall aggregate: Non-parole period of 5 years (expiring 23 February 2015); total term of 7.5 years.
Key Takeaways
- Committing serious offences while on bail remains a significant statutory aggravating factor, and the District Court here treated it as weighing heavily against the offender despite mitigating personal circumstances.
- Where multiple serious offences are committed within a short period, sentences need not be fully concurrent; partial accumulation may be appropriate where each offence represents a distinct and serious criminal act.
- Drug intoxication at the time of offending can be a mitigating factor where it affected rational decision-making, but it does not diminish the objective gravity of threatening victims with weapons.
- A guilty plea entered shortly before trial still attracts a discount, though typically a lesser one than a plea entered at the earliest opportunity.
- The Court of Criminal Appeal's guideline judgment in R v Henry (1999) 46 NSWLR 346 remains a relevant reference point for sentencing armed robbery offences, reflecting the prevalence of such offending and the legislative intention behind significant maximum penalties.
Legislation and Cases Referenced
Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R
Legislation:
- Specific provisions were not cited by name in the text provided, but the judgment references the standard non-parole period applicable to the carjacking offence (aggravated take and drive a motor vehicle with a person whilst armed with a weapon), consistent with the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes Act 1900 (NSW).