Citation: R v Jacobson Fitzsimmons [2013] NSWDC 169
Court: District Court of New South Wales
Date: 11 June 2013
Judge(s): Cogswell SC DCJ
Background
The offender, Jacobson Fitzsimmons, was a young man who had turned 18 only weeks before the offence. On the evening of 6 June 2012, he and two others boarded a train at Kogarah Railway Station and found a lone passenger, Yi Zhang, reading on his mobile phone. One of the group, Raven Edwards, demanded the phone, and when Zhang refused, Edwards punched, grabbed, and kicked him. Zhang was also kicked in the head and neck by one of the others, though the court was not satisfied beyond reasonable doubt that Fitzsimmons was responsible for that violence. The phone and Zhang's bag were taken, and Fitzsimmons was stopped by police after pushing through a ticket barrier at Hurstville.
Fitzsimmons pleaded guilty to robbery in company, an offence under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. He had no prior criminal record, had commenced an apprenticeship, was employed, and had participated in the Salvation Army's Positive Lifestyle Program for Youth.
His co-offender, Raven Edwards, had already been sentenced by the same judge in November 2012, receiving 2.5 years imprisonment with a non-parole period of 12 months.
Legal Issues
- What was the appropriate sentence for robbery in company, applying the guideline judgment in R v Henry [1999] NSWCCA 111?
- How should the sentence be calibrated relative to that imposed on the co-offender (the parity principle)?
- Whether the circumstances of the offender, including age, rehabilitation steps, absence of prior record, and lack of personal involvement in the violence, warranted a non-custodial mode of serving the sentence, specifically an intensive correction order (ICO).
Decision
The court applied the R v Henry guideline, which sets a starting range of 4 to 5 years imprisonment for robbery in company. The prosecution and defence both acknowledged the guideline applied squarely: there was limited planning, limited actual violence, a vulnerable victim (alone on a train at night), a small amount taken, no weapon, and an early guilty plea.
The court set the appropriate commencing sentence at 3.5 years, reduced to reflect that Fitzsimmons had not been shown to have participated in the physical violence. After applying a 25% discount for the early guilty plea, the sentence was reduced to 22 months imprisonment.
The court distinguished Fitzsimmons from co-offender Edwards in important respects. Edwards had a criminal record, was on conditional liberty at the time of the offence, and had additional matters taken into account on a Form 1 (a document listing other offences). Fitzsimmons had none of those features, and his lesser role in the violence was also a distinguishing factor.
Rather than imposing full-time custody, the court referred Fitzsimmons for assessment for suitability for an intensive correction order, noting expert opinion from both a forensic psychologist and a pre-sentence report that community-based sanctions are more effective for rehabilitating young offenders. The court accepted evidence of genuine remorse, positive lifestyle changes, ongoing employment and study, and voluntary community work.
Orders Made
- Fitzsimmons formally convicted of robbery in company contrary to s 97(1) of the Crimes Act 1900
- Compensation order made in favour of the victim, Yi Zhang
- Prison sentence of 22 months imposed (terms of the non-parole period not reproduced in the provided text)
- Matter adjourned to 9 August 2013 for an intensive correction order assessment report
- Bail continued on existing conditions until the return date
- Direction that a transcript of the remarks on sentence be provided to the judge for revision by 5 August 2013
Key Takeaways
- The District Court confirmed that robbery in company, even where the offender did not personally participate in the violence, falls within the R v Henry guideline range and ordinarily warrants a prison sentence.
- Where co-offenders are sentenced separately, parity requires careful comparison: differences in criminal history, conditional liberty at the time of offending, and form 1 matters can justify a meaningfully different sentence without constituting disparity.
- An offender's lack of personal involvement in the violence, while not a complete defence to a robbery in company charge, may reduce the appropriate starting sentence relative to the more culpable co-offender.
- Rehabilitation evidence, including participation in structured youth programs, psychological assessment, employment, and voluntary work, can support referral for an intensive correction order as an alternative to full-time custody, particularly for young offenders.
- A 25% discount applied to the sentence for an early guilty plea, consistent with standard practice under the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company; maximum 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (intensive correction orders); s 69(1)
Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 (guideline judgment for sentencing in robbery in company matters)