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District Court 30 March 2011

R v Steven Thomas EDWARDS

[2011] NSWDC 114

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ARMED ROBBERY WITH A DANGEROUS WEAPON OFFENCE COMMITTED IN COMPANY ARMED WITH AIR RIFLE PLEA OF GUILTY AT EARLIEST OPPORTUNITY

Citation: R v Steven Thomas Edwards [2011] NSWDC 114
Court: District Court of New South Wales
Date: 30 March 2011
Judge(s): Cogswell SC DCJ

Background

The offender, a 21-year-old man, pleaded guilty to armed robbery with a dangerous weapon under s 97(2) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment. The offence occurred on the night of 10 October 2010 at an RSL club in Huskisson, where the offender and his younger brother climbed onto the rear balcony, disguised themselves, and carried out a robbery of four staff members. The offender pointed an air rifle at three staff members, ordering them to the ground, while his brother escorted the manager to the safe. Approximately $70,000 in cash was taken in total.

The offender had no criminal history in New South Wales but held convictions in the ACT, including an aggravated burglary conviction from October 2009 for which he had received a two-year good behaviour bond. That bond was still in force at the time of this offence. The offender joined his brother on the day in question after his brother, who was subject to a custodial order and had spoken of suicide, contacted him. The offender's involvement escalated once his brother revealed plans for a robbery, and the offender accepted he understood the plan before the robbery commenced.

A psychological report from a clinical psychologist noted no diagnosable personality disorder or substance dependence. It attributed a significant deterioration in the offender's circumstances to the death of his father in 2007, after which he became homeless and unemployed. The psychologist identified some prospects for rehabilitation.

  • What is the appropriate head sentence and non-parole period for an armed robbery with a dangerous weapon, committed in company, against multiple victims, with some planning?
  • What weight should be given to mitigating factors, including an early guilty plea, relative youth, remorse, and the personal circumstances surrounding the offender's father's death?
  • What weight should be given to aggravating factors, including prior convictions, commission of the offence whilst on conditional liberty, and the vulnerability of the victims?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio under sentencing law.
  • Whether the guideline judgment in R v Henry (1999) applied to the sentencing exercise.

Decision

Cogswell SC DCJ identified several significant aggravating features. The offence was committed in company and whilst the offender was on conditional liberty, having breached the trust placed in him by the sentencing court in the ACT. The victims were four staff members who were vulnerable by reason of their work environment and the likely presence of substantial cash. Although not a spontaneous offence, the court accepted that the degree of planning attributable specifically to the offender was not substantial; his brother had organised the robbery over several weeks and the offender joined on the day with knowledge of the plan rather than as its architect.

The court declined to treat emotional harm to the victims as an additional aggravating factor beyond what was already reflected in the maximum penalty, noting it was not satisfied beyond reasonable doubt that the harm was substantial in the particular sense relied upon by the prosecution. The court also accepted that the offender did not know whether the air rifle was loaded and was not satisfied beyond reasonable doubt that it was. The offender's genuine remorse was accepted on the basis of his evidence in the witness box. His early guilty plea, relative youth, and the absence of an antisocial personality disorder were further mitigating considerations.

On the question of special circumstances, the court accepted the submission that the non-parole period should be extended relative to the standard ratio. Given the offender's prospects for rehabilitation and the personal circumstances identified in the psychological report, the court found it appropriate to set the non-parole period at half the total sentence rather than the standard two-thirds proportion, resulting in a longer parole period to support rehabilitation upon release.

The total head sentence imposed was four years and six months, with the court noting the 25-year maximum underscored the serious nature of the offending even at this level of sentence.

Orders Made

  • Head sentence of four years and six months imprisonment for the offence of armed robbery with a dangerous weapon under s 97(2) of the Crimes Act 1900.
  • Non-parole period of two years and three months, commencing 10 October 2010 and expiring 9 January 2013.
  • Balance of term of two years and three months, commencing 10 January 2013 and expiring 9 April 2015.
  • Earliest eligible parole date: 9 January 2013.

Key Takeaways

  • The District Court confirmed that emotional harm to victims is not automatically treated as an aggravating factor separate from the maximum penalty where the court is not satisfied beyond reasonable doubt of the requisite level of harm in the individual case.
  • Committing an offence while subject to a conditional liberty order (here, a good behaviour bond) remains a significant aggravating factor, reflecting the breach of trust placed in the offender by the sentencing court.
  • A finding that the offender did not know whether a weapon was loaded, and genuinely believed it to be unloaded, is available where the evidence supports it and the prosecution does not establish loading beyond reasonable doubt.
  • Special circumstances justifying an extended parole period can be established where a psychological assessment identifies genuine rehabilitation prospects and no entrenched antisocial or substance-dependence pathology, notwithstanding a prior criminal record.
  • An early guilty plea, youth, and credible in-court expressions of remorse all operated to reduce the sentence below what the objective seriousness of the offending would otherwise have attracted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2) (armed robbery with a dangerous weapon, maximum 25 years imprisonment)

Cases
- R v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)
- R v Steven Katich [2008] NSWSC 1330 (sentence imposed by Hidden J, cited for comparison)