Citation: R v Karl HERDEN and Iga SOSINSKA [2013] NSWDC 219
Court: District Court of New South Wales
Date: 29 August 2013
Judge(s): Cogswell SC DCJ
Background
Two offenders, a man aged 37 and a woman aged 34 who were in a relationship with each other, were sentenced for robbery in company following a jury trial. The offence occurred on a busy Saturday evening in Oxford Street, Darlinghurst, when the female offender attempted to snatch $60 from a man who had just withdrawn the money from an ATM. When her initial attempt failed, both offenders chased the victim, tackled and punched him, and took the money.
The female offender had offered to plead guilty to the lesser charge of robbery, but the Crown declined that offer and proceeded to trial on the charge of robbery in company against both. The jury convicted both offenders on 13 June 2013.
Both offenders had prior criminal records, predominantly for petty offences dealt with in the Local Court. The male offender had one prior District Court matter involving aggravated enter a dwelling in company, for which he received a two-year prison sentence. Significantly, the female offender was on parole at the time of this offence, having been released only approximately one week earlier.
Legal Issues
- What was the appropriate sentence for each offender convicted of robbery in company under s 97(1) of the Crimes Act 1900, carrying a maximum of 20 years imprisonment?
- Where did the offence sit on the spectrum of objective seriousness?
- What weight should be given to each offender's personal circumstances, including childhood trauma, drug addiction, prior criminal history, and post-offence rehabilitation efforts?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
- How should the female offender's parole status at the time of the offence affect the relative severity of her sentence compared to her co-offender?
Decision
His Honour placed the offence in the lower third of the range of objective seriousness. While robbery in company is a serious crime, the circumstances here were relevant: the offence was spontaneous and unplanned, the amount taken was small ($60), and the violence, though real, was not extreme. The court drew on the sentencing principles in R v Henry and Callaghan v R in assessing the appropriate range.
Neither offender pleaded guilty to the charge ultimately before the court, meaning neither received a discount for a guilty plea. The court noted, however, that both had experienced significant childhood trauma. The male offender had suffered the suicide of a sibling, the death of a grandfather, and the death of his mother while still at school. The female offender reported childhood sexual assault from around age 12. Both had developed serious drug addictions as a way of coping with those experiences, and their criminal records reflected the consequences of those addictions.
The court acknowledged post-offence rehabilitation steps taken by both offenders. The female offender had completed a three-month residential drug and alcohol program and had engaged in individual therapy. Psychological reports for both offenders identified ongoing needs for drug relapse prevention counselling and mental health support. The court found special circumstances in each case, justifying a greater proportion of the sentence being served on parole to facilitate supervised rehabilitation in the community.
The female offender received a longer sentence than her co-offender, principally because she had been on parole when the offence was committed and had initiated the robbery. The male offender's sentence was reduced by three months to reflect that he was not on conditional liberty at the time.
Orders Made
Karl Herden:
- Sentenced to 3 years and 9 months imprisonment, backdated to 15 June 2012.
- Non-parole period of 1 year and 10 months, expiring 14 April 2014.
- Sentence to expire 14 March 2016.
Iga Sosinska:
- Sentenced to 4 years imprisonment, backdated to 6 March 2013 (incorporating time served and one week credited for the balance of the revoked parole).
- Non-parole period of 2 years, expiring 5 March 2015.
- Sentence to expire 5 March 2017.
Key Takeaways
- Robbery in company under s 97(1) of the Crimes Act 1900 carries a maximum of 20 years imprisonment, but the District Court confirmed that a spontaneous, unplanned offence involving moderate violence and a small sum can properly be placed in the lower third of objective seriousness.
- Childhood trauma and resulting drug addiction are relevant personal circumstances in sentencing, capable of providing some mitigation even where an offender has an existing criminal record.
- Being on parole at the time of the offence is an aggravating factor that directly affects the length of the sentence relative to a co-offender who was not on conditional liberty.
- Special circumstances justifying an adjusted non-parole period can be established where an offender has genuine rehabilitation needs requiring extended supervised support in the community upon release.
- Where the Crown declines a plea of guilty to a lesser charge and proceeds to trial on a more serious charge, an offender convicted at trial receives no sentencing discount for the declined plea.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
- Callaghan v R [2006] NSWCCA 58