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District Court 5 May 2016

R v Connelly-Heap

[2016] NSWDC 303

DrugsTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ARMED ROBBERY

Citation: R v Connelly-Heap [2016] NSWDC 303
Court: District Court of New South Wales
Date: 5 May 2016
Judge(s): Berman SC DCJ

Background

The offender faced sentencing for two serious offences, including armed robbery, committed during a period of drug use and association with what the court described as "the wrong crowd." At the time of the offences, the offender had been largely indifferent to the prospect of imprisonment.

By the time of the sentencing proceedings, the offender had been in custody for approximately eight months. He reported having abstained from drug use during that period, had gained weight, and had an offer of employment waiting for him upon release. His father, mother, and oldest brother were present in court.

The central question before the court at this stage was not whether to impose a custodial sentence, but whether to adjourn sentencing to allow the offender an opportunity to demonstrate genuine rehabilitation before the final sentence was determined.

  • Whether bail should be granted under s 11 of the Crimes (Sentencing Procedure) Act to adjourn sentencing and allow the offender to demonstrate rehabilitation in the community
  • What conditions should attach to any such bail grant
  • How the offender's conduct during the adjournment period would bear on the nature and length of any final custodial sentence

Decision

His Honour noted the seriousness of the offences from the outset. One offence carried a standard non-parole period of four years, and the other carried a maximum penalty of 20 years' imprisonment. The R v Henry guideline judgment suggested a sentence in the vicinity of four years as a starting point for the armed robbery offence.

The court acknowledged genuine uncertainty about whether the offender's stated intentions would translate into actual conduct. Many offenders make similar promises at the point of sentencing and do not follow through. The court observed that it needed real evidence of rehabilitation, not merely assertions of it, before determining the final sentence.

In those circumstances, his Honour exercised the power under s 11 of the Crimes (Sentencing Procedure) Act to grant bail and adjourn sentencing to 31 October 2016. The court was explicit that even good conduct during the adjournment period would not guarantee a non-custodial outcome, but that it would be a material factor in both whether a custodial sentence was imposed and its length.

A pre-sentence report was also ordered for the next occasion.

Orders Made

  • Bail granted under s 11 of the Crimes (Sentencing Procedure) Act, subject to the following conditions:
  • Supervision by the Probation and Parole Service
  • No use of illegal drugs
  • Regular and random urinalysis to verify drug abstinence
  • The offender to take up and maintain employment with EC Throsby Pty Ltd (or make consistent and substantial efforts to obtain alternative employment if that position is lost through no fault of his own)
  • Residence with his father at an address known to the court
  • Pre-sentence report ordered for the next occasion
  • Matter adjourned part-heard to 31 October 2016 at 9:30 am

Key Takeaways

  • Section 11 of the Crimes (Sentencing Procedure) Act provides a mechanism for a sentencing court to grant bail and adjourn proceedings, allowing an offender's conduct in the community to inform the final sentencing determination.
  • The District Court treated demonstrated rehabilitation as distinct from promised rehabilitation, and regarded actual evidence of conduct in the community as materially more probative than assertions made at the bar table.
  • Even where bail is granted for this purpose, a positive outcome during the adjournment period does not guarantee a non-custodial result, particularly where the offences carry significant standard non-parole periods or guideline sentences.
  • The R v Henry guideline judgment remained the relevant reference point for the armed robbery offence, with a sentence of approximately four years identified as a likely starting range.
  • Conditions attached to sentencing bail in this matter were tailored to directly test the specific claims the offender had made, including drug abstinence, stable accommodation, and engagement with employment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), s 11

Cases
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R (guideline judgment on armed robbery sentencing)