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District Court 2 February 2012

R v Andy William SOARS

[2012] NSWDC 51

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE PURPOSE OF SENTENCE PROTECTION OF COMMUNITY RELEVANT FACTORS PRIOR CRIMINALITY

Citation: R v Andy William Soars [2012] NSWDC 51
Court: District Court of New South Wales
Date: 2 February 2012
Judge: Cogswell SC DCJ

Background

The offender, a 22-year-old man, was sentenced for robbery in company with wounding, contrary to section 98 of the Crimes Act 1900. The offence occurred on the night of 3 December 2010 in a public park in Newcastle, when the offender and a teenage co-offender returned to attack two people who had been sitting together sharing a drink. A glass bottle was used to strike one victim, causing lacerations to his forehead and below his eye, before the offender pushed him to the ground and punched and kicked him, taking his wallet. A second offence of robbery in company against the other victim was taken into account on a Form 1 (a written undertaking under which an offender acknowledges additional offences to be considered at sentencing without separate conviction).

The offender was arrested the same night and remained in custody from that point. He ultimately pleaded guilty shortly before trial, and both parties agreed a 15 per cent discount on sentence was appropriate to reflect that plea. The co-offender was a juvenile.

The offender had a substantial criminal history beginning before adulthood, including prior convictions for assault, assault occasioning actual bodily harm, assaulting a police officer, and dangerous driving. The current offending occurred approximately one month after his release from custody for the assault on a police officer.

  • What was the appropriate head sentence for robbery in company with wounding, having regard to the objective seriousness of the offence and the offender's personal circumstances?
  • Whether the standard non-parole period of 7 years applied, or whether the offence fell below the mid-range of objective seriousness so as to justify a departure from that benchmark.
  • Whether special circumstances existed to justify reducing the non-parole period below the default 75 per cent of the head sentence.
  • What weight to give to the offender's prior criminal record, his limited prospects of rehabilitation, and his relatively young age.
  • How to approach parity given the co-offender was a juvenile dealt with separately.

Decision

His Honour found that the objective seriousness of the offence fell below the mid-range for section 98 offences, though not far below. Relevant to that finding were the treating physician's description of the injuries as "minor" and the absence of proof beyond reasonable doubt that the offender personally wielded the bottle. However, the offence was not entirely spontaneous: the two men discussed and planned the robbery over roughly ten minutes before returning to attack the victims.

The offender's prior record was treated as a significant aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, particularly given it included prior assaults and a conviction for assault occasioning actual bodily harm. His Honour declined to find good prospects of rehabilitation, noting the offender's repeated failures to comply with supervision conditions in the past and that the current offence was committed shortly after release from custody. That said, his relatively young age and the fact that this would be his first substantial period of continuous custody were identified as special circumstances.

On the standard non-parole period, His Honour held that the 7-year benchmark did not apply because the offending fell below the mid-range of objective seriousness and the offender had pleaded guilty. A head sentence of 6 years was imposed, with a non-parole period of 3.5 years (approximately 60 per cent of the head sentence rather than the default 75 per cent). The reduction below 75 per cent was justified by the special circumstances of the offender's young age and his first substantial continuous period in custody, which would require a longer period of supervision on release to support reintegration.

The sentence was backdated to commence on the date of arrest, 3 December 2010.

Orders Made

  • The offender was convicted of robbery in company with wounding under section 98 of the Crimes Act 1900.
  • The additional offence of robbery in company was taken into account pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999 (Form 1).
  • Head sentence of 6 years imprisonment, commencing 3 December 2010 and expiring 2 December 2016.
  • Non-parole period of 3 years and 6 months, commencing 3 December 2010 and expiring 2 June 2014.
  • Balance of term of 2 years and 6 months, commencing 3 June 2014 and expiring 2 December 2016.
  • No parole conditions were fixed, as the sentence exceeded 3 years.

Key Takeaways

  • The District Court confirmed that where an offence of robbery in company with wounding falls below the mid-range of objective seriousness, and a guilty plea has been entered, the standard non-parole period of 7 years under the Crimes (Sentencing Procedure) Act 1999 does not operate as a floor and a substantially lower non-parole period may be imposed.
  • A prior record of convictions involving violence, including assault and assault occasioning actual bodily harm, constitutes an aggravating factor under section 21A(2)(d) and can weigh heavily in the sentencing exercise.
  • Repeated failures to comply with supervision, combined with reoffending shortly after release from custody, can displace an offender's claim to good prospects of rehabilitation even where pre-sentence reports note some positive attitudinal change.
  • Special circumstances justifying a departure from the default 75 per cent non-parole ratio can be found in a combination of the offender's relatively young age and the fact that a sentence represents the first substantial continuous period in custody, where a longer parole period is needed to assist reintegration.
  • Where a co-offender is a juvenile dealt with separately, the sentencing court will take the distinction in treatment into account, though the adult offender's own criminality and history remain the primary sentencing considerations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (robbery in company with wounding; maximum penalty 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 21A(2)(d) (prior convictions as aggravating factor), s 32 (Form 1 procedure for taking additional offences into account)

Cases cited: No cases were cited in the judgment.