Citation: R v Connelly-Heap (No 2) [2016] NSWDC 407
Court: District Court of New South Wales
Date: 31 October 2016
Judge: Berman SC DCJ
Background
The offender, a young man with a significant drug addiction, entered a service station one evening in September 2015 and attempted to rob it using a small toy gun. When the attendant refused to comply, the offender struck him twice: first with the toy gun and then with an EFTPOS machine from the counter. He left with some chocolates and a drink.
Almost two weeks later, police received a report that the offender was in a car threatening self-harm with a rifle. When they stopped the vehicle, the offender directed them to a backpack at his feet, which contained an imitation self-loading pistol. The offender then made admissions to police about the earlier robbery, at a time when police had no information linking him to it.
The offender pleaded guilty to armed robbery and possession of an unauthorised pistol. He had spent approximately eight months in pre-sentence custody. When he first appeared before the sentencing judge, bail was granted under section 11 of the Crimes (Sentencing Procedure) Act to allow the offender an opportunity to demonstrate rehabilitation.
Legal Issues
- What sentences were appropriate for armed robbery and possession of an unauthorised pistol, having regard to maximum penalties, standard non-parole periods, and the guideline judgment in R v Henry?
- Whether the standard non-parole period for the firearms offence should be departed from, and if so, on what basis.
- What weight should be given to the offender's early guilty plea, cooperation with police, pre-sentence custody, youth, rehabilitation, and prospects of reoffending?
- Whether a fully suspended sentence was available and appropriate in the circumstances.
Decision
Berman SC DCJ sentenced the offender against the backdrop of the R v Henry guideline for armed robbery, which contemplates a sentence in the range of four to five years for the typical offence. His Honour noted several features consistent with that common form: a young offender with limited criminal history. However, several factors distinguished this case, including early guilty pleas (rather than the late pleas assumed in Henry), a weapon incapable of causing physical injury, and the offender's demonstrated rehabilitation.
The court gave substantial weight to the offender's cooperation with police. Although this was not a textbook Ellis v R situation (where an offender gives information that exposes others to prosecution), the offender had effectively implicated himself in a robbery of which police were unaware. His Honour treated this as a significant mitigating factor. Early guilty pleas, genuine remorse, youth, a difficult upbringing without parental supervision, and the drug addiction underlying the offending all counted in the offender's favour.
A critical feature of the sentencing reasoning was the eight months already served in pre-sentence custody. His Honour described that period as undeniable and significant punishment for a young man, and made clear that the suspended sentences being imposed were only available because of that prior custody. The court also emphasised that the primary purpose of sentencing is community protection, and that in appropriate cases the best way to achieve that purpose is to support an offender's continued rehabilitation rather than impose further imprisonment.
The standard non-parole period for the firearms offence was not imposed. His Honour's reasons for departing from it were embedded in the same considerations that led to the suspended sentences overall.
Orders Made
- For armed robbery: sentenced to two years imprisonment, execution suspended under section 12 of the Crimes (Sentencing Procedure) Act, on the offender entering a good behaviour bond.
- For possession of an unauthorised pistol: sentenced to nine months imprisonment, execution suspended under section 12 of the Crimes (Sentencing Procedure) Act for the period of the sentence, on the same condition.
- Bond conditions: the offender must be of good behaviour, appear before the court if called upon, and notify the court registrar of any change of residential address.
Key Takeaways
- The District Court confirmed that R v Henry provides a guideline, not a straitjacket, and that sentencing judges may depart from the four-to-five year range in appropriate cases where distinguishing factors are sufficiently compelling.
- Substantial pre-sentence custody served as a pivotal factor in this decision: the court expressly stated that the suspended sentences were conditional upon, and reflective of, the eight months already spent in gaol.
- Where an offender makes admissions to police about an offence of which police were unaware, that cooperation can attract a sentencing discount analogous to, though distinct from, the Ellis v R principle.
- A genuine and evidenced history of rehabilitation following custody, supported by employer and Probation and Parole urinalysis results, can displace what would otherwise be a substantial custodial sentence, particularly for young offenders.
- Community protection, while typically pursued through punishment and deterrence, may in some cases be better served by allowing an offender's rehabilitation to continue outside custody.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act (NSW), ss 11 and 12
Cases
- Ellis v R (1986) 6 NSWLR 603
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R