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District Court 23 March 2010

R v Mark Edward KIPLING

[2010] NSWDC 97

DrugsTheft & property
CRIMINAL LAW SENTENCE ARMED ROBBERY USE OF KNIFE PLEA OF GUILTY AT EARLIEST OPPORTUNITY HISTORY OF DRUG AND ALCOHOL ADDICTION

Citation: R v Mark Edward Kipling [2010] NSWDC 97
Court: District Court of New South Wales
Date: 23 March 2010
Judge(s): Cogswell SC DCJ

Background

The offender pleaded guilty to armed robbery under s 97(1) of the Crimes Act 1900, carrying a maximum penalty of twenty years imprisonment. On 16 October 2007, he entered a corner store in Burwood armed with a serrated steel knife and demanded cash from the shopkeeper, who complied. He was detained the following day on an unrelated matter but subsequently travelled to Queensland before police had built a sufficient case to charge him with the robbery.

The offender accrued further convictions in Queensland during 2008 and was sentenced to imprisonment there. A New South Wales arrest warrant was obtained after that Queensland sentence was served, and he was arrested in New South Wales in June 2009. He pleaded guilty at the earliest available opportunity once the charge was formally put to him.

The sentencing proceedings considered the offender's extensive criminal history, including a prior armed robbery in 1996 and a 2005 theft from the person, alongside his long history of drug and alcohol addiction, a serious leg injury sustained in 1992, and more recent efforts to remain drug and alcohol free since 2007.

  • What was the appropriate starting point for sentence, having regard to the objective seriousness of the offence?
  • What discount should apply for the early guilty plea?
  • Whether special circumstances existed to justify a departure from the standard non-parole to balance-of-term ratio.
  • Whether, and to what extent, the delay caused by the offender's Queensland custody warranted backdating of the sentence.

Decision

The court assessed the objective seriousness of the offence as just below the middle of the range, a position accepted by both the prosecution and defence. That assessment placed the matter within the framework of the guideline judgment in R v Henry, which both parties acknowledged as applicable. The court noted the Henry guideline factors were all relevant except that the offender could not be characterised as a young person with limited criminal history.

The court set a starting point of six years imprisonment. Applying a 25 per cent discount for the early guilty plea reduced the head sentence to four and a half years (54 months). The prior armed robbery conviction and the 2005 theft from the person increased the weight given to specific deterrence, notwithstanding the mitigating features of addiction, the circumstances of the leg injury, and the offender's reported rehabilitation efforts.

The court accepted that special circumstances existed to justify a lower non-parole period than the standard 75 per cent of the head sentence. The risk of institutionalisation noted in the psychological report, the need for supervised re-integration into the community, and the ongoing requirement for drug and alcohol support all supported a longer parole period. The non-parole period was set at two and a half years rather than the standard three years and four months.

The court also backdated the sentence by six months to 23 December 2008, in recognition that the delay in bringing the charge was partly attributable to the offender's Queensland custody and that the matter could have been processed earlier.

Orders Made

  • Head sentence of four and a half years imprisonment for armed robbery.
  • Non-parole period of two and a half years (earliest release date: 22 June 2011).
  • Balance of term of two years (sentence expiry: 22 June 2013).
  • Sentence backdated to commence 23 December 2008.
  • Recommendation to the Parole Authority to consider drug and alcohol counselling as raised in the psychological report.
  • Recommendation that the offender serve the balance of his non-parole period at Grafton Correctional Centre to facilitate family contact.
  • Direction that the psychological report accompany the offender into custody.

Key Takeaways

  • The District Court applied the R v Henry guideline to an armed robbery offence, confirming its relevance even where one of the guideline's typical mitigating factors (youth and limited history) was absent.
  • A 25 per cent discount for a guilty plea entered at the earliest available opportunity reduced a six-year starting point to four and a half years, reflecting the utilitarian value of an early plea in freeing court resources.
  • Special circumstances justifying a reduced non-parole period can be established by a combination of factors including risk of institutionalisation, the need for community reintegration, and ongoing addiction treatment requirements, without any single factor being determinative.
  • Where administrative or procedural delay in charging an offender is partly attributable to their being in custody in another jurisdiction, a sentencing court may backdate the sentence to reflect that delay.
  • An extensive criminal record, particularly one including prior offences of the same type, increases the weight the sentencing court must give to specific deterrence, even where genuine rehabilitation efforts are evident.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 97(1) (armed robbery)

Cases:
- R v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)