Citation: R v Malinda Lee RICE; R v Paul SALMOND [2011] NSWDC 50
Court: District Court of New South Wales
Date: 27 January 2011
Judge(s): Cogswell SC DCJ
Background
A man and a woman were sentenced after pleading guilty to robbery in company, contrary to s 97(1) of the Crimes Act 1900. The offence occurred on 2 April 2010 at the victim's Housing Commission home in Darlinghurst. The female offender had a prior social and commercial relationship with the victim, giving her access to his home.
On the night of the offence, the female offender visited the victim twice, ultimately gaining re-entry under the pretext of a social visit. Once inside, the male offender forced his way in. He repeatedly punched the victim to the face, and the two men wrestled to the floor. The female offender located and took the victim's wallet, calling out that she had it, after which both offenders fled. The victim lost around two hundred dollars, his phone, and some tobacco.
Both offenders were arrested the same evening. Additional Form 1 offences were taken into account at sentencing: hindering a police officer for the male offender, and goods in custody for the female offender. Each offender had a prior criminal history, and the male offender had been released on parole only weeks before committing the offence.
Legal Issues
- What sentences were appropriate for robbery in company under s 97(1) of the Crimes Act 1900, applying the R v Henry guideline judgment?
- Was the offence the product of planning, so as to constitute an aggravating feature?
- What weight should be given to the aggravating factor of the offence being committed in the victim's home?
- What discount applied for early pleas of guilty, and what were the appropriate non-parole periods having regard to each offender's circumstances?
- Did special circumstances justify adjusting the standard ratio between the non-parole period and the balance of sentence?
Decision
The Henry guideline and where this offence sat. Cogswell SC DCJ applied the Court of Criminal Appeal's guideline judgment in R v Henry, which indicated that in typical armed robbery cases a total sentence in the range of four to five years is appropriate. The court found the present offence fell above the typical case envisaged in Henry: neither offender was young or without criminal history, and the victim was not the type (such as a taxi driver or shopkeeper) contemplated by the guideline. The offence was committed in company rather than with a weapon, and the violence was not insignificant.
Planning. The court rejected a submission by counsel for the female offender that planning had not been proved beyond reasonable doubt. The judge was satisfied beyond reasonable doubt that a degree of planning existed, pointing to the struggle over the victim's trousers and the female offender's call-out that she had located the wallet. However, the court found the planning was no more than limited, which brought it within that aspect of the typical case described in Henry.
Aggravating features and individual circumstances. The commission of the offence in the victim's home, and the breach of the trust he placed in the female offender by admitting her, were identified as aggravating features for both offenders. The male offender's parole status at the time of the offence, having been released only weeks earlier, was a significantly aggravating feature specific to him. His criminal record, which included multiple convictions for assault and dishonesty offences dating back to 1990, was considerably worse than the female offender's record. Both offenders received a 25 per cent discount for their early guilty pleas, the maximum available.
Non-parole periods and special circumstances. The court found special circumstances in both cases, adjusting the ratio between the non-parole period and the total sentence below the standard 75 per cent. For the female offender, the adjustment was more significant, reflecting factors including her personal background. The male offender's sentence commenced from 16 July 2010, when his revoked parole period expired.
Orders Made
- Paul Salmond: sentenced to six years imprisonment, commencing 16 July 2010 and expiring 15 July 2016, with a non-parole period of four years, making him eligible for parole from 15 July 2014.
- Malinda Lee Rice: sentenced to four and a half years imprisonment, commencing 2 April 2010 and expiring 1 October 2014, with a non-parole period of two and a half years, making her eligible for parole from 1 October 2012.
- Form 1 offences taken into account: hindering a police officer (Salmond) and goods in custody (Rice).
Key Takeaways
- The District Court confirmed that the R v Henry guideline, developed for armed robbery, also applies to robbery in company under s 97(1) of the Crimes Act 1900, though it requires careful calibration where the offending differs from the guideline's typical scenario.
- A finding of planning in a robbery does not require elaborate pre-arrangement; here, circumstantial evidence from the conduct of both offenders during the robbery itself was sufficient to establish limited planning beyond reasonable doubt.
- Committing a robbery in the victim's own home, particularly where entry is obtained by exploiting an existing relationship of trust, constitutes an aggravating feature at sentencing.
- Being on parole at the time of the offence was treated as a significantly aggravating feature specific to the male offender, and the commencement of his sentence was calculated from the date his revoked parole period ended rather than from arrest.
- Special circumstances were found in both cases, permitting the court to adjust the ratio between the non-parole period and the balance of sentence below the standard proportion, with a more marked adjustment made for the female offender.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23; s 32 (Form 1 procedure)
Cases
- R v Henry (1999) 46 NSWLR 246 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)