Citation: R v Green; R v Upton [2012] NSWDC 230
Court: District Court of New South Wales
Date: 9 November 2012
Judge: Berman SC DCJ
Background
On the evening of 7 April 2012, two offenders, Steven Green (then 23, now 25) and Joshua Upton (then 18), together with a third man, approached three young people walking along Hunter Street, Newcastle. The group demanded money and phones. Upton punched one victim in the face twice and the victim handed over his wallet and iPhone. Green and the third man confronted the other two victims, waving their fists, causing those victims to surrender a wallet and a purse out of fear of assault. Green did not throw punches and did not receive any of the stolen property.
The offenders were arrested shortly after when the victims flagged down a passing police car. Both Green and Upton pleaded guilty to three counts each of robbery in company. A third offender, Murphy, was to be sentenced separately.
The sentencing proceedings addressed the personal circumstances of both men, who had significantly disadvantaged backgrounds, and determined appropriate sentences that balanced punishment, community protection, and prospects for rehabilitation.
Legal Issues
- What head sentence and non-parole period were appropriate for robbery in company in these circumstances, having regard to the guideline judgment in R v Henry?
- Whether sentences for three separate offences against three separate victims should be accumulated (served consecutively, at least in part) or made concurrent.
- How the principle of parity applied where the two offenders had differing roles and personal circumstances.
- Whether special circumstances existed justifying a longer-than-standard parole period.
- How to treat the commencement dates of each offender's sentence, given both were already serving sentences when sentenced.
Decision
Berman SC DCJ found the offences were serious, noting that people should be able to walk city streets at night without being assaulted and robbed. The court applied the guideline from R v Henry, which postulates a sentence of four to five years for armed robbery in particular circumstances, but found that robbery in company is ordinarily less serious than armed robbery even though both carry the same maximum penalty. The absence of any weapon and the early pleas of guilty distinguished these matters from the scenario contemplated in the Henry guideline.
Despite acknowledging that partial accumulation across three offences against three separate victims would have been the usual approach, the court imposed fully concurrent sentences as a deliberate act of leniency, accepting that the offending formed a single course of conduct. The crown prosecutor had conceded partial accumulation was appropriate, but the court declined to follow that course.
The court found special circumstances in each case, warranting an extended parole period to support rehabilitation. Both offenders had profoundly difficult upbringings, histories of homelessness, and substance abuse problems. Upton's moral culpability was reduced, the court found, because of the severe neglect and abuse he suffered as a child, though Upton was on a bond at the time of the offending, which was an aggravating factor. Green had been assaulted early in his custodial term and was serving his sentence on strict protection, a harsher custodial condition than that experienced by the general prison population.
Applying the parity principle, the court held that the differing factors relevant to each offender effectively cancelled each other out, warranting identical sentences. The sentences commenced from different dates to reflect each offender's distinct custodial history and to avoid double-counting in Upton's case.
Orders Made
- Joshua Upton: in each of three counts, a non-parole period of 18 months with a head sentence of 3 years, sentences to run concurrently from 7 April 2012, with release to parole on 6 October 2013.
- Steven Green: in each of three counts, a non-parole period of 18 months with a head sentence of 3 years, sentences to run concurrently from 7 July 2012, with release to parole on 6 January 2014.
- The psychiatric report on Upton prepared by Dr Christopher Bench was ordered to be attached to the warrant and accompany him into custody.
Key Takeaways
- Robbery in company, while carrying the same maximum penalty as armed robbery, was found by the District Court to be ordinarily less serious than armed robbery for the purpose of applying the R v Henry guideline.
- Where an offender is already serving a separate sentence that arose from the same events as the offence being sentenced, commencing the new sentence from the date of arrest avoids double-counting when the breach of the original order is also treated as an aggravating factor.
- Fully concurrent sentences across three counts affecting three separate victims were imposed as a recognised departure from usual practice, with the court expressly characterising the approach as lenient.
- Special circumstances justifying a longer parole tail than standard can be established where an offender's background and rehabilitative needs make extended post-custody supervision particularly important for reducing reoffending risk.
- The parity principle does not require identical personal circumstances between co-offenders; it requires that each offender have no justifiable sense of grievance when comparing sentences, and differing aggravating and mitigating factors can offset one another to produce the same outcome.
Legislation and Cases Referenced
Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R (guideline judgment on robbery sentencing)
Legislation:
No specific legislation was cited in the decision text.