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District Court 31 August 2012

R v Skinner; R v Elliott

[2012] NSWDC 138

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE CONSPIRACY TO COMMIT ARMED ROBBERY POSSESS A PROHIBITED FIREARM ARMED ROBBERY FORMS1

Citation: R v Skinner; R v Elliott [2012] NSWDC 138
Court: District Court of New South Wales
Date: 31 August 2012
Judge(s): Berman SC DCJ

Background

Two offenders, referred to here as Skinner and Elliott, appeared for sentence on a charge of conspiring to commit an armed robbery, together with two other co-conspirators to be sentenced separately. Police had been monitoring the group's telephone communications and became aware of the plan. Physical surveillance confirmed the conspiracy was well advanced before police intervened on 10 November 2009.

Skinner faced an additional charge of possessing a prohibited firearm, namely a shortened rifle found concealed in the front seat well of the vehicle in which he was travelling at the time of his arrest. He asked that a charge of being carried in a stolen conveyance be taken into account on a Form 1 (a procedure allowing minor related offences to be considered in sentencing without a separate conviction).

Elliott faced two additional substantive counts of armed robbery committed on 3 October 2009 and 16 October 2009, both involving a shortened shotgun. The first targeted a foreign currency exchange employee and yielded approximately $42,500 in cash; the second targeted a jewellery shop in Rockdale, where staff members actively resisted the robbers.

  • What sentence was appropriate for each offender on the conspiracy charge, having regard to their respective levels of participation and any evidence of withdrawal?
  • Whether Skinner had genuinely abandoned the conspiracy prior to arrest, and how that finding should affect his sentence.
  • What sentences were appropriate for Elliott's two substantive armed robbery offences, having regard to the seriousness of the offending and his criminal history.
  • Whether special circumstances existed for either offender justifying a variation to the standard ratio between the non-parole period and the head sentence.
  • How sentences should be accumulated across multiple offences for each offender.

Decision

Berman SC DCJ accepted Skinner's evidence that he had abandoned the conspiracy when his co-conspirators failed to meet as planned, and that he had asked to be taken to a railway station to go home. The Crown did not challenge this account under cross-examination, and the judge noted it was consistent with the surveillance evidence. Accordingly, the judge sentenced Skinner on the basis that he had withdrawn from the conspiracy before the planned robbery could proceed.

Skinner's personal circumstances were given significant weight. His offending was linked to longstanding drug addiction, he had never previously been sentenced in the District Court, and he had maintained drug-free behaviour in custody supported by clean urinalysis results. His father's evidence in support was described as impressive. The judge noted that Skinner had attempted to enter residential rehabilitation but bail applications had been unsuccessful.

Elliott's position was materially different. He showed no evidence of abandonment or remorse in relation to the conspiracy. His two substantive armed robberies were described as very serious, involving a sawn-off shotgun pointed directly at victims who could not have known the weapon was likely unloaded. The judge noted that staff at the jewellery shop resisted with considerable bravery. Elliott's overall criminality was characterised as very high.

Special circumstances were found in Elliott's case, justifying an extended parole period beyond the statutory norm. The judge identified the length of the cumulative sentence, the risk of institutionalisation, and the importance of extended post-release supervision as relevant factors. The judge observed that lengthy parole supervision represented the most effective means of protecting the community upon Elliott's eventual release.

Orders Made

For Skinner:
- Conspiracy to commit armed robbery (Form 1 taken into account): 4 years imprisonment, dating from 8 July 2010; non-parole period of 2 years and 3 months, expiring 7 October 2012.
- Possessing a prohibited firearm: 3 years imprisonment, dating from 8 July 2010; non-parole period of 2 years and 3 months, expiring 7 October 2012.
- The court recommended Skinner only be released to parole on condition he immediately enter and remain at a residential drug rehabilitation program.

For Elliott:
- Conspiracy to commit armed robbery: non-parole period of 2 years from 10 November 2009; parole eligibility period of 2.5 years.
- Armed robbery of the currency exchange (Form 1 taken into account): non-parole period of 3 years from 10 November 2010; parole eligibility period of 4 years.
- Armed robbery of the jewellery shop: non-parole period of 3 years from 10 November 2011; parole eligibility period of 4 years.
- Earliest release to parole: 9 November 2014; effective overall non-parole period of 5 years; head sentence of 9 years.

Key Takeaways

  • A finding of abandonment of a conspiracy can significantly affect sentence, but only where the evidence supports it and the Crown does not challenge the account. Here, the unchallenged evidence and consistent surveillance material led the District Court to sentence Skinner on the more favourable basis.

  • Drug addiction and demonstrated commitment to rehabilitation in custody, supported by clean urinalysis and credible evidence from family members, were treated as meaningful mitigating factors for an offender with no prior District Court history.

  • The seriousness of armed robbery offences is not diminished simply because the firearm may have been unloaded. The District Court emphasised that the victims had no way of knowing this, and noted that evidence of a loaded weapon would have made the offending even graver.

  • Special circumstances justifying an extended parole period can arise from the combination of a long cumulative sentence, the risk of institutionalisation, and the rehabilitative value of post-release supervision, particularly for offenders assessed as presenting an ongoing community risk.

  • A 15% discount applied to Elliott's sentences to reflect the utilitarian value of his guilty pleas, consistent with the approach taken in R v Henry.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR (discount for utilitarian value of guilty plea)

Legislation:
- No specific legislation was identified in the provided text. The offences involved provisions of the Crimes Act 1900 (NSW) relating to conspiracy, armed robbery, and prohibited firearms, but no sections were cited by name in the judgment extract.