Citation: R v Doolan, Justin; Costello, Matthew Joseph [2016] NSWDC 391
Court: District Court of New South Wales
Date: 16 February 2016
Judge: Judge S Norrish QC
Background
Two co-offenders appeared for sentence arising from an early-morning armed robbery at a newsagency in Cootamundra on 8 June 2015. One offender (Doolan) entered the newsagency armed with a hunting knife, concealed his face, threatened the owner, and took $200 in cash. The other offender (Costello) was the driver waiting in the car outside, unaware that a robbery was about to occur.
After the robbery, Costello drove Doolan away from the scene at speed. The pair travelled to a service station in Junee, where they used robbery proceeds to buy fuel and cigarettes. A Highway Patrol officer who had received a description of their vehicle was present at the service station, and both men were arrested.
Doolan faced sentencing for armed robbery, ongoing supply of a prohibited drug (methylamphetamine) under s 25A of the Drug Misuse and Trafficking Act 1985 over a 30-day period, and a further single supply offence the day after that period ended. Costello faced sentencing for accessory after the fact to armed robbery, plus three additional offences dealt with on a s 166 certificate: dealing with suspected proceeds of crime, dishonestly obtaining property by deception (using a debit card at the service station), and driving whilst suspended.
Legal Issues
- What sentence was appropriate for Doolan for armed robbery, where the offence was opportunistic and the victim was vulnerable, but Doolan pleaded guilty at the first reasonable opportunity?
- What sentences were appropriate for Doolan's drug supply offences, including the question of culpability where an offender promised but lacked the actual intention or capacity to supply?
- What sentence was appropriate for Costello as an accessory after the fact to armed robbery, given he was unaware of the robbery until after it occurred and cooperated fully with police?
- How should parity principles apply when sentencing co-offenders whose involvement and moral culpability differed substantially?
- Whether special circumstances existed to justify adjusting the balance between non-parole period and head sentence for either offender?
- What discount applied for early pleas of guilty under the guideline in R v Thomson; R v Houlton?
Decision
Both offenders received a 25% discount on their respective sentences for the utilitarian value of early guilty pleas, consistent with the Court of Criminal Appeal's guideline judgment in Thomson and Houlton. Both had pleaded guilty at the Local Court at the first reasonable opportunity and were committed for sentence.
For Doolan, the Court treated the armed robbery as an opportunistic offence aggravated by the vulnerability of the victim (the newsagency owner confronted alone at 5.30am), the use of a weapon, and the deliberate concealment of identity. The drug supply offences were treated as a related but separately distinct course of criminal conduct, and the sentences for those matters were made partly concurrent with the armed robbery sentence. The total effective sentence for Doolan was four years and nine months, with a non-parole period of two years and six months, dating from 8 June 2015.
For Costello, the Court carefully distinguished his culpability from Doolan's. The Court found that the Crown could not prove Costello knew a robbery was planned, or even that Doolan was armed. His accessorial liability arose only from the moment he became aware a crime had been committed and nonetheless assisted Doolan's escape. His early and full cooperation with police was a significant mitigating factor. The principal sentence for the accessory offence was structured so that, after applying the guilty plea discount, Costello received a sentence that properly reflected this substantially lower level of involvement.
For the additional offences on Costello's s 166 certificate, the Court held that the proceeds of crime and deception offences were so minor that they should not increase the overall sentence beyond that imposed for the accessory offence. The driving whilst suspended matter resulted in a conviction under s 10A with no further penalty, accompanied by a two-year licence disqualification.
Orders Made
Doolan:
- Supply offence (22 May 2015, s 25 Drug Misuse and Trafficking Act): convicted; sentenced to one year's imprisonment from 8 June 2015, expiring 7 June 2016.
- Ongoing supply offence (s 25A Drug Misuse and Trafficking Act): convicted; non-parole period of one year from 8 June 2015, expiring 7 June 2016; balance of sentence of one year and three months, expiring 7 September 2017.
- Armed robbery: convicted; non-parole period of one year and six months from 8 June 2016, expiring 7 December 2017 (earliest parole eligibility); balance of sentence of two years and three months, expiring 7 March 2020.
- Total effective sentence: four years and nine months; non-parole period of two years and six months; directed to be released to parole.
Costello:
- Accessory after the fact to armed robbery: convicted; sentenced to a term of imprisonment (specific head sentence not reproduced in the provided text, but structured as the principal sentence).
- Dishonestly obtain property by deception: convicted; good behaviour bond of 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions including good behaviour, notification of change of address, appearance before the Court if called upon, and supervision by Community Corrections Service.
- Driving whilst suspended: convicted under s 10A; no additional penalty imposed; disqualified from holding a driver's licence for two years from the date of sentence.
- Proceeds of crime offence: no additional sentence beyond the principal term.
Key Takeaways
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Where co-offenders have substantially different levels of involvement in an offence, the parity principle requires that sentencing reflect those differences rather than produce equivalent outcomes. The District Court here imposed markedly different sentences on Doolan and Costello to reflect the fact that Costello was unaware of the robbery until after it had been committed.
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Accessory after the fact liability attaches from the point at which an offender becomes aware a crime has occurred and acts to assist the principal, not from the point of any earlier (innocent) conduct such as driving a car or waiting outside a premises.
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A 25% guilty plea discount applied where both offenders entered pleas at the first reasonable opportunity in the Local Court, consistent with the Court of Criminal Appeal's guideline in R v Thomson; R v Houlton [2000] 49 NSWCCA 309.
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Under the totality principle, minor offences sentenced alongside a principal offence need not add to the overall custodial term where their seriousness is so low that increasing the total sentence would be disproportionate.
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Opportunistic armed robberies targeting vulnerable victims in isolated circumstances remain seriously aggravated, even where the offence is unplanned, due to the impact on victims and the danger created by the presence of a weapon.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
Cases:
- R v Thomson; R v Houlton [2000] 49 NSWCCA 309
- Kalpaxis [2001] NSWCCA 119
- R v Henry (1999) 46 NSWLR 346
- R v Jurisic (1998) 45 NSWLR 209
- Makarian v The Queen [2005] HCA 25
- Lattouf v R [1999] NSWSC 1382
- R v Gu [2006] NSWCCA 104
- R v Clark (NSWCCA, unreported, 5 March 1990)
- Smiroldo (2000) 112 A Crim R 47
- Giang [2001] NSWCCA 276
- R v Mirza [2007] NSWCCA 248