R v Stewart & R v Wilmot

Citation: R v Stewart & R v Wilmot [2015] NSWDC 378
Court: District Court of New South Wales
Date: 2 December 2015
Judge: Berman SC DCJ

Background

Two offenders pleaded guilty to armed robbery following an incident in the early hours of 16 April 2015 at a 7-Eleven service station in Mayfield. One offender produced a knife, leaned over the counter, and threatened the lone console operator, demanding cash and cigarettes. The other offender stood by and assisted with the bag. The total take was $305 in cash and $150 worth of cigarettes.

Both offenders were identified after an associate reported the incident to police. Each made immediate admissions upon arrest and entered guilty pleas at the earliest opportunity, entitling them to a 25 percent sentencing discount.

Both offenders had experienced severe childhood trauma, including sexual abuse, and had long histories of substance misuse originating from early childhood. The sentencing remarks address how those circumstances bear on the exercise of the sentencing discretion.

Legal Issues

• What sentence was appropriate for each offender, having regard to the objective gravity of armed robbery committed in company against a vulnerable victim?
• How did the R v Henry guideline judgment apply to these offenders, including any departures from the common offence postulated in that case?
• In what circumstances can drug use constitute a mitigating factor in sentencing?
• Whether findings of special circumstances were warranted, justifying an adjustment to the standard non-parole period ratio.
• How the parity principle applied between the two co-offenders, given their different roles.

Decision

Berman SC DCJ applied the R v Henry guideline judgment as the primary framework but noted several distinctions. The pleas were entered early rather than late as contemplated by the guideline. One offender could not be described as young. Critically, the offence was committed in company, which is an aggravating feature beyond the baseline in Henry.

On the question of drug use as a mitigating factor, the court applied the exception recognised in Henry: ordinarily, drug use is a matter of personal choice and does not mitigate. However, where drug use began at an early age in circumstances where personal choice was not truly exercised, it can mitigate. Both offenders began using drugs in childhood, one from around age nine (introduced by a foster carer) and the other from age 13. The court was satisfied that the drug use underlying the offence was a mitigating factor for both.

Special circumstances were found for each offender. The court identified two bases: the direct link between each offender's childhood trauma and their long-standing drug dependency, and the fact that each was entering custody for the first time. The finding allowed the court to set a non-parole period that represented a lesser proportion of the head sentence than the standard ratio.

The parity principle required that neither offender have a justifiable sense of grievance when comparing his sentence with the other's. The court treated the first offender as the leader, as he produced the knife and directed proceedings, and the second as a follower who was largely passive. This role distinction was reflected in a meaningfully shorter non-parole period and head sentence for the second offender. Despite the genuine mitigation available, the court emphasised that the objective gravity of armed robbery required substantial periods of imprisonment.

Orders Made

Stewart:
- Sentenced to imprisonment with a non-parole period of 18 months and a head sentence of 3 years, commencing 20 April 2015; non-parole period to expire 19 October 2016.
- Condition of release to parole: entry into a residential rehabilitation facility.
- Further conditions: supervision by the Probation and Parole Service; compliance with reasonable directions regarding drug rehabilitation, courses, and counselling.

Wilmot:
- Sentenced to imprisonment with a non-parole period of 15 months and a head sentence of 2.5 years, commencing 20 May 2015; non-parole period to expire 19 August 2016.
- Conditions of parole: supervision by the Probation and Parole Service; compliance with reasonable directions regarding drug rehabilitation, courses, and counselling.

Key Takeaways

• Under the R v Henry guideline, drug use is not ordinarily a mitigating factor at sentence, but an exception applies where drug use began in circumstances that did not involve genuine personal choice, such as introduction to drugs in early childhood by a carer.

• The District Court confirmed that the Henry guideline remains the relevant framework for armed robbery sentencing, but departures are appropriate where the facts differ materially from the common offence postulated, including as to the timing of the plea, the offender's age, or the presence of aggravating features such as commission in company.

• A finding of special circumstances can be grounded in the combination of an offender's first time in custody and a demonstrated causal link between childhood trauma and the drug dependency underpinning the offending.

• Applying the parity principle, the different roles played by co-offenders in a joint enterprise are a legitimate basis for different sentences, provided neither offender would have a justifiable sense of grievance.

• General deterrence carries significant weight in armed robbery cases involving vulnerable victims targeted at isolated workplaces, and the court held it necessary to impose substantial custodial sentences notwithstanding the genuine personal mitigation available to both offenders.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R (Court of Criminal Appeal guideline judgment on armed robbery and the role of drug use as mitigation)

Legislation:
- No specific legislation was cited in the text of the judgment provided.