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District Court 25 May 2012

R v Page (No 2)

[2012] NSWDC 308

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE PARTICULAR OFFENCE ROBBERY IN COMPANY RELEVANT FACTORS NATURE OF OFFENCE

Citation: R v Page (No 2) [2012] NSWDC 308
Court: District Court of New South Wales
Date: 25 May 2012
Judge: Cogswell SC DCJ

Background

The offender, Harley Page, was convicted by jury of robbery in company following a trial in Newcastle in February 2012. The offence occurred on the streets of Newcastle late at night on 20 January 2011, when the offender and his brother approached a group of four young people. The offender confronted one of the group, Jordan Smith, while carrying what appeared to be an iron bar or steel bar.

Smith backed away under the threat of the weapon and handed over the coins in his wallet. Although no verbal threat was made, the court found the offender's conduct was calculated to compel compliance. Both brothers were arrested shortly afterwards.

The offender's brother, Levi Page, had separately pleaded guilty to assault with intent to rob a different member of the group. That is a distinct offence carrying a lower maximum penalty. Sentencing proceeded for Harley Page on the more serious charge of robbery in company.

  • Whether the threatened use of a weapon constituted an aggravating factor under the relevant sentencing framework
  • How to apply the armed robbery guideline judgment in R v Henry to a case where the offender was convicted after trial rather than by way of guilty plea
  • Whether parity with the co-offender's sentence was applicable, given that the co-offender was sentenced for a different offence
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio
  • How to treat the period of pre-sentence custody, including time spent on remand for separate unresolved charges

Decision

The court found that the threatened use of the iron bar was an aggravating factor, noting that the weapon was capable of inflicting serious injury even though it was not brandished in a directly threatening manner. The court declined to treat the threat of violence separately as an additional aggravating factor, considering it sufficiently captured by the weapon-use aggravation.

Cogswell SC DCJ applied the guideline judgment in R v Henry, which covers both armed robbery and robbery in company. The court noted that most factors in that guideline were relevant to the offender's case, while acknowledging that an iron bar is marginally less serious than a knife. The significant point of departure from the guideline's assumed context was the absence of a guilty plea: the offender received no discount for a plea and therefore could not receive the benefit factored into the guideline's sentencing range.

Parity with the co-offender's sentence (a two-year suspended term) was acknowledged as inapplicable in strict terms, since the co-offender was sentenced for a different offence under a lower maximum. The court nevertheless took the shared factual background into account as part of the overall sentencing exercise.

The court identified special circumstances in the offender's youth, his acknowledgment of a significant drug and alcohol problem, and his service of the sentence in protective custody. Those factors justified a reduction in the non-parole period from the standard three-quarters ratio to a shorter period. The sentence was backdated to 26 August 2011, when the offender first entered custody on separate unresolved charges, to avoid a potential injustice if he were later acquitted of those matters.

Orders Made

  • The offender was convicted of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW)
  • Total sentence of 4 years imprisonment, backdated to commence 26 August 2011 and expiring 25 August 2015
  • Non-parole period of 2 years and 6 months, commencing 26 August 2011 and expiring 25 February 2014
  • Balance of term of 18 months, commencing 26 February 2014 and expiring 25 August 2015
  • Release on parole referred to the Parole Authority (no court order for release made, as the sentence exceeded 3 years)

Key Takeaways

  • The District Court treated the threatened use of an iron bar as an aggravating factor under the Henry guideline framework, but declined to add a further aggravating layer for threatened violence, finding the weapon-use factor already captured that element in the circumstances.
  • Where a co-offender is sentenced for a materially different offence carrying a different statutory maximum, the parity principle does not strictly apply, even when both offences arise from the same facts.
  • An offender convicted after a jury trial receives no guilty plea discount, and the sentencing court must apply guideline ranges on that basis rather than on the assumptions built into the guideline for those who do plead guilty.
  • Special circumstances justifying a reduced non-parole period ratio can be established through a combination of youth, acknowledged substance dependence, and the added hardship of serving custody in a protective custody arrangement.
  • Pre-sentence custody served while on remand for separate, unresolved charges may still be backdated into the sentence being imposed, with any overlap left for the future sentencing court to account for if the offender is later convicted on those other charges.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 12

Cases
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346; 106 A Crim R 149 (armed robbery guideline judgment)