Citation: R v Cobb [2015] NSWDC 66
Court: District Court of New South Wales
Date: 4 February 2015
Judge: Berman SC DCJ
Background
The offender, a man with an extensive criminal history dating back to his juvenile years, was convicted by jury of one count of armed robbery in company at a hotel in Merewether, Newcastle. He and two co-offenders, Lane and McGee, disguised themselves, arrived in a stolen vehicle, and entered the hotel as it was closing for the night. Each offender carried a bladed weapon: the offender and Lane carried machetes or swords, and McGee carried a large knife.
Inside the hotel, the offenders ordered patrons and staff to lie on the ground. A patron who did not immediately comply was struck with weapons by the offender and Lane, suffering minor injuries. The offender then forced a bar employee to assist in gaining entry to the office, where he took approximately $30,000 in cash. The proceeds were divided primarily between the offender and Lane, each receiving around $14,000. The offender used some of his share to purchase a motor vehicle within hours of the robbery.
The offender was on parole at the time of the offence and had been using drugs that night. His co-offenders, Lane and McGee, had already been sentenced separately: both had pleaded guilty, and McGee's sentence was further reduced in exchange for an undertaking to give evidence against the offender.
Legal Issues
- What sentence was appropriate for a serious armed robbery in company, having regard to the guideline judgment in R v Henry?
- How should the court treat the aggravating circumstance that the offender was on parole at the time of the offence, without double-counting?
- How should parity principles apply when co-offenders who pleaded guilty had already received their sentences?
- Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the head sentence.
Decision
Berman SC DCJ characterised the offence as a serious example of armed robbery. The court noted multiple aggravating factors: the offender was one of the driving forces behind the robbery, actual violence was inflicted, dangerous weapons were used, multiple victims were present and terrified, and the offender was on parole at the time. The court found that the R v Henry guideline, which addressed a more ordinary armed robbery scenario, warranted significant departure upward given the offender's extensive criminal history, the absence of a guilty plea, the commission of the offence in company, and the actual use of violence.
On the parole question, the court accepted that being on parole at the time of the offence was a seriously aggravating factor. To avoid double-counting, however, the court commenced the sentence from 3 July 2013, the date on which the offender completed the balance of the earlier sentence following revocation of his parole.
On parity, the court acknowledged that the co-offenders had pleaded guilty and that McGee's sentence was further discounted for agreeing to give evidence. The court accepted that, absent the need to ensure the offender did not have a justifiable sense of grievance when comparing his sentence to those of Lane and McGee, a significantly longer sentence would have been imposed.
The court accepted a submission that special circumstances existed, given the offender's profound need for supervision and support upon eventual release. The court also took into account two personal matters: that the offender had reportedly been sexually assaulted by Juvenile Justice workers at age 13, and that he had suffered extensive burns to a significant portion of his body. Both were found likely to make the period of custody harder than it would otherwise be. The court made a finding of a continuing attitude of disobedience toward the law and emphasised the need for personal deterrence.
Orders Made
- Non-parole period of five years, commencing 3 July 2013, expiring 2 July 2018.
- Head sentence of eight years.
Key Takeaways
- The District Court confirmed that the R v Henry guideline for armed robbery requires significant upward departure where the offender has an extensive criminal history, did not plead guilty, committed the offence in company, and actual violence was inflicted.
- Where an offender is on parole at the time of the offence and parole is subsequently revoked, the sentencing court must treat that fact as a seriously aggravating circumstance while being careful not to double-count it against the offender in the same sentence.
- Parity principles required the court to consider the sentences already imposed on co-offenders who had pleaded guilty, even where those co-offenders were clearly less culpable. The court found that parity resulted in a materially lower sentence than would otherwise have been imposed.
- Personal circumstances capable of making custody more burdensome than usual, including a history of serious trauma and significant physical injury, are relevant mitigating considerations at sentencing, even where rehabilitation prospects are assessed as bleak.
- A finding of special circumstances can be made where an offender with entrenched disadvantage and lengthy custodial history will require extended supervision and support on release, justifying a longer parole period relative to the non-parole period.
Legislation and Cases Referenced
Cases:
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
Legislation: No specific legislation was cited in the judgment text.