Citation: R v Nowland [2015] NSWDC 386
Court: District Court of New South Wales
Date: 5 February 2015
Judge: Berman SC DCJ
Background
The offender, a young man who had fallen under the influence of older associates after a difficult upbringing, was sentenced for attempted armed robbery and a related Form 1 offence of concealing a serious offence. The attempted armed robbery targeted a sports club in Summerland Point, south of Newcastle, where three staff members were inside securing the night's takings. Three men approached the club, covered a CCTV camera, and attempted to gain access through the rear, but ultimately abandoned the attempt when they could not get in.
The offender's role was limited to remaining in the getaway car nearby. He was discovered crouching in a Ford Falcon when police attended the scene, though he was not charged until approximately 14 months later, after telephone intercepts linked him to the group. Upon arrest, he made admissions about his involvement.
The offender's background was a significant part of the sentencing narrative. After his father died when he was young, he left home during school and moved in with an older associate, Cecil Dungay, who was one of the three men seen on the club's CCTV footage. The other two were Cecil's brother Benjamin Dungay and a third man, Luke Talbot. Since being charged, the offender had severed ties with this group and offered to give evidence against them in future proceedings.
Legal Issues
- What was the appropriate sentence for an attempted armed robbery, taking into account the offender's limited role, early guilty plea, and assistance to authorities?
- Whether a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act was appropriate given the seriousness of the offence and the punishment already experienced by the offender?
- How should the R v Henry guideline judgment apply given the specific circumstances of an attempted, rather than completed, armed robbery committed in company?
- What discounts were warranted for the early guilty plea and the offender's past and promised future assistance to the prosecution?
Decision
Berman SC DCJ accepted that the R v Henry guideline judgment was relevant but noted several factors distinguishing this case from the standard scenario contemplated by that decision. The offence was an attempt, thwarted before any violence occurred. It was committed in company, which aggravated the matter, but the offender's role was the most minor of those involved. His early plea of guilty was of genuine utilitarian value, consistent with early admissions made to police.
The court applied a total discount of 45 per cent to the sentence that would otherwise have been imposed, reflecting both the early guilty plea and the offender's past and promised assistance to authorities. Of that 45 per cent, 10 per cent was attributed specifically to future assistance, meaning any failure to honour his undertaking to give evidence could result in his sentence being increased.
The court accepted a submission that substantial extra-curial punishment had already occurred. The offender had been subject to strict bail conditions including a curfew and three-times-weekly reporting to police for an extended period. He had also faced a physical threat, attributed to concerns that he would cooperate with prosecutors, and had experienced significant stress throughout the court process.
Taking all of these factors together, including the offender's employment, his re-established family connections, his ongoing psychological counselling, and his demonstrated break from his former associates, the court determined that a suspended sentence was appropriate. A sentence of 18 months' imprisonment was imposed and suspended under s 12 of the Crimes (Sentencing Procedure) Act, on the condition that the offender enter into a good behaviour bond for the full term.
Orders Made
- The offender sentenced to 18 months' imprisonment.
- Execution of the sentence suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act.
- The offender required to enter into a good behaviour bond for 18 months, on the following conditions:
- To be of good behaviour.
- To continue in paid employment, and if employment ends through no fault of his own, to make active and ongoing efforts to obtain new employment.
- To continue psychological counselling with Paul Constable for the duration of the bond, unless the treating psychologist determines treatment is no longer necessary or refers the offender elsewhere.
Key Takeaways
- The District Court confirmed that the R v Henry guideline judgment for armed robbery requires adjustment where the offence is an attempt rather than a completed robbery, where the offender's role is minor, and where significant mitigating factors are present.
- A combined discount of 45 per cent applied to the base sentence, allocated between an early guilty plea of genuine utilitarian value and past and promised assistance to the prosecution, with 10 per cent specifically attributed to future assistance.
- Where an offender has been subject to prolonged and onerous bail conditions, threats to personal safety, and significant court-related stress, those experiences may constitute sufficient extra-curial punishment to justify a suspended sentence even for a serious offence.
- Suspension of a sentence of imprisonment under s 12 of the Crimes (Sentencing Procedure) Act is available in serious matters where rehabilitation, employment, family support, and a clean break from criminal associates together demonstrate strong prospects of future compliance.
- The court explicitly tied the 10 per cent future-assistance discount to the offender's undertaking to give evidence, making clear that a failure to comply would expose him to an increase in the operative sentence.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
Cases
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)