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District Court 15 March 2013

R v Clarke

[2013] NSWDC 335

Theft & propertyPublic order & justice offences
CRIMINAL

Citation: R v Clarke [2013] NSWDC 335
Court: District Court of New South Wales
Date: 15 March 2013
Judge: Judge S Norrish QC

Background

The offender pleaded guilty to two offences arising from events in March 2012. The first was being an accessory after the fact to an armed robbery at a Sylvania chemist shop, where the principal offender (her long-term acquaintance and then-partner, who had been living with her for approximately two months) used a tyre iron to steal $2,000 in cash and a quantity of Xanax. The second offence was receiving stolen property, specifically $500 in cash and a half packet of Xanax that were proceeds of the robbery.

The offender was present in a car park near the pharmacy at the time of the robbery, in her own vehicle. The statement of facts confirmed she did not intentionally encourage or assist the principal offender before or during the commission of the offence, and witness accounts indicated she and the principal were observed arguing near the car beforehand. Her accessorial liability arose after the fact: she travelled from the scene with the principal offender, made a false report to police that her car had been stolen (to distance the vehicle from the robbery), and provided misleading assistance when police investigated the alleged theft.

Both the offender and the principal offender were users of Xanax and other drugs at the relevant time, a circumstance the court considered relevant to the background of the offending. The matter came before the District Court for sentence following guilty pleas entered in the Local Court.

  • What sentences were appropriate for the offences of accessory after the fact to armed robbery and receiving stolen property, taking into account the maximum penalties, the nature of the offending, and the offender's subjective circumstances?
  • What weight should be given to rehabilitation as a sentencing purpose under s 3A of the Crimes (Sentencing Procedure) Act, balanced against deterrence and other purposes?
  • Whether suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act were appropriate, given the offender's circumstances and the nature of the offences?
  • What discount applied for the utilitarian value of the early guilty plea, consistent with the guideline in Thomson and Houlton?

Decision

Judge Norrish sentenced the offender to two suspended terms of imprisonment. For the accessory after the fact offence, the sentence was one year, seven months and two weeks. For the receiving stolen property offence, the sentence was twelve months. Both sentences were suspended under s 12 of the Crimes (Sentencing Procedure) Act, with the offender released on good behaviour bonds for the respective terms. The judge noted that, had full custodial terms been imposed with partial accumulation, the total would not have exceeded two years.

The court considered the full range of sentencing purposes under s 3A, while acknowledging they do not all carry equal weight in every case. The judge drew on the principle articulated in Yardley and Betts (1979) and approved in Blackman and Walters [2001] NSWCCA 121, that the protection of the community is served not only by punishment but also by the successful rehabilitation of offenders, particularly those who have not developed settled criminal habits. The court expressly found the offender was not a threat to the community, making protection of the community a matter of little weight in the sentencing exercise.

The offender received a 25 percent discount on the otherwise appropriate sentence for the utilitarian benefit of her early guilty pleas, in accordance with the guideline established in Thomson and Houlton. The suspended sentences were accompanied by conditions requiring the offender to be of good behaviour, accept supervision from the NSW Probation and Parole Service (particularly at Miranda), report within seven days, and comply with directions concerning drug treatment, counselling, and any required urine analysis or aftercare programs.

Orders Made

  • Convicted of accessory after the fact to armed robbery; sentenced to one year, seven months and two weeks imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act for the term of the sentence.
  • Convicted of receiving stolen property; sentenced to twelve months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act for the term of the sentence.
  • Released on good behaviour bonds for the respective terms of each sentence, subject to the following conditions: appear before court if called upon; be of good behaviour; notify the Criminal Listing Directorate of any change of residential address; accept supervision and guidance of NSW Probation and Parole Service (Miranda) and obey reasonable directions, including as to drug treatment, counselling, and psychological counselling; report to the Probation and Parole Service at Miranda within seven days.

Key Takeaways

  • Rehabilitation carries genuine sentencing weight under s 3A of the Crimes (Sentencing Procedure) Act, and the District Court here applied the principle from Yardley and Betts that sentences which assist offenders in avoiding future offending enhance, rather than undermine, community protection.
  • A 25 percent discount for the utilitarian value of an early guilty plea was applied consistently with the Thomson and Houlton guideline, confirming its continuing relevance to sentence calculation.
  • Suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act can carry an inherent element of personal and general deterrence even where no period of actual custody is served, as the court expressly recognised here.
  • Where an offender's accessorial liability arises after the fact rather than by way of prior planning or participation in the principal offence, that distinction bears on the assessment of objective seriousness and the overall sentencing exercise.
  • The sentencing court found the offender was not a threat to the community, which reduced the weight given to community protection as a sentencing purpose, while other purposes such as rehabilitation and deterrence were treated as more significant.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12
- Crimes Act 1900 (NSW), ss 188(1) (receiving stolen property, maximum 10 years), 349(2) (accessory after the fact to armed robbery, maximum 14 years)

Cases
- Blackman and Walters [2001] NSWCCA 121
- Douar v R [2005] NSWCCA 455
- Pearce v R (1998) 194 CLR 610
- Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Yardley and Betts (1979) 22 SASR 108
- R v Zamagias [2002] NSWCCA 17