Citation: R v Towney; R v Simon [2015] NSWDC 218
Court: District Court of NSW
Date: 11 June 2015
Judge: Cogswell SC DCJ
Background
Two young men, aged 18 and 19 at the time of sentencing, pleaded guilty to armed robbery carried out in the early hours of 3 December 2014 at a small family-operated convenience store. Both offenders had been drinking and using methamphetamine before deciding opportunistically to rob the store after spotting it open as they drove past.
One offender armed himself with a knife taken from his home; the other carried a metal tyre brace. They confronted the store owners, a husband and wife, demanding cash. When the husband resisted, the first offender lunged at him with the knife and a physical struggle followed. The second offender, meanwhile, returned to the store, threatened the wife by waving his weapon over her and dropping it onto her shoulder, then took the cash register, which held approximately $1,800.
Both men were arrested on 22 December 2014 and made admissions in police interviews, though neither named the other. The first offender was on parole at the time of the offence and had a prior armed robbery on his record. The second offender had a less extensive criminal history.
Legal Issues
- What was the appropriate head sentence for armed robbery under s 97(1) of the Crimes Act 1900 (NSW), having regard to the R v Henry sentencing guidelines?
- Whether special circumstances existed to justify a departure from the standard ratio between the head sentence and the non-parole period.
- How the personal circumstances of each offender, including youth, Indigenous background, substance dependency, criminal history, and conditional liberty status, should be weighed in sentencing.
Decision
His Honour applied the R v Henry framework, which establishes guideline ranges for armed robbery sentences. The offence was placed at the higher end of the scale, given the degree of planning (even if relatively unsophisticated), the use of two weapons, actual violence inflicted on the male victim, and the threatening conduct directed at the female victim inside the store.
Both offenders entered early guilty pleas, which the court took into account as a mitigating factor. The court also considered the victim impact statement from the male store owner, which described lasting psychological harm, changed trading hours, and a pervasive sense of insecurity affecting the entire family. His Honour read the statement in full, observing that it illustrated how a crime lasting only minutes can have profound long-term consequences.
In assessing each offender's personal circumstances, the court noted a dysfunctional upbringing, early exposure to substance abuse, and an Indigenous background for both men. Each had expressed some degree of remorse and indicated a willingness to engage with rehabilitation programs. One offender had engaged with a clinical psychologist and another pre-sentence report highlighted the potential value of structured support.
His Honour found special circumstances warranting a reduction in the non-parole period from the standard three-quarters of the head sentence to one-half. The primary reasons were the youth of both offenders, their Indigenous backgrounds, the need to allow sufficient time for rehabilitation on parole, and the benefits anticipated from the Yetta Dhinnakkal custodial program. The court imposed a five-year head sentence on both offenders, with a non-parole period of two and a half years, though commencing on different dates given the different dates of custody.
Orders Made
• Pierce Towney and Tyler Simon each sentenced to five years imprisonment
• Non-parole period fixed at two and a half years for each offender
• Pierce Towney eligible for release on 21 June 2017
• Tyler Simon eligible for release on 21 October 2017
• Recommendation that offenders be referred to Yetta Dhinnakkal programme in custody
• Report of Dr Furst (exhibit 2) to be sent to Department of Corrective Services in respect of Mr Simon
However, the following terms were stated clearly in the judgment:
- Both offenders sentenced to five years imprisonment.
- Non-parole period fixed at two and a half years for each offender (half the head sentence, reflecting special circumstances).
- First offender eligible for parole from 21 June 2017; second offender eligible from 21 October 2017.
- Both offenders recommended for the Yetta Dhinnakkal custodial rehabilitation program.
- Psychological report in respect of the second offender directed to be forwarded to Corrective Services (with that offender's consent).
Key Takeaways
- The District Court applied the R v Henry guidelines and placed this armed robbery at the higher end of the scale, reflecting the use of two weapons, actual violence, and threats directed at multiple victims.
- Special circumstances under NSW sentencing law permitted a departure from the standard non-parole to head sentence ratio; here, the youth of the offenders, their Indigenous backgrounds, and rehabilitation prospects justified fixing the non-parole period at half rather than three-quarters of the head sentence.
- Being on conditional liberty (parole) at the time of the offence is an aggravating factor in sentencing, and the court took this into account in respect of the first offender.
- Early guilty pleas, expressions of remorse, and engagement with psychological support were all treated as mitigating factors, even where criminal history and the seriousness of the offence remained weighty considerations.
- Victim impact statements carry genuine weight in sentencing; the court read the statement in full and expressly noted the lasting harm inflicted on the victims' daily lives, livelihood, and sense of safety.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery, maximum 20 years imprisonment)
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery sentencing)