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12
Supreme Court 26 July 2016

R v Wran

[2016] NSWSC 1015

Assault & violenceHomicideTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY WHERE NOT KNOWN THAT CO OFFENDERS WERE CARRYING WEAPONS WHERE VICTIM DIED FROM STAB WOUNDS

Citation: R v Wran [2016] NSWSC 1015
Court: Supreme Court of New South Wales
Date: 26 July 2016
Judge(s): Harrison J

Background

The offender, a young woman with a significant methamphetamine addiction, pleaded guilty to robbery in company and to being an accessory after the fact to murder. The offences arose from a single episode on 10 August 2014 at Redfern, in which she participated in a plan to rob the occupants of a housing commission unit. Her co-offenders, unknown to her until they were already inside the unit, were carrying a knife and a balaclava.

During the robbery, one co-offender stabbed the victim Daniel McNulty fatally and also stabbed Brett Fitzgerald multiple times. The offender remained in the lounge room throughout, did not attack either victim, and was not heard or seen encouraging the others. She had not known that weapons were present or that serious violence was contemplated.

The accessory charge arose from the offender's conduct in the three days after the robbery. Having learned from media reports that McNulty had died from stab wounds, she continued to harbour her co-offender, allowed him to stay with friends, and failed to alert police to his identity when she was stopped by officers at Liverpool Station on 12 August 2014. She and the co-offender were arrested the following day. The original murder charge against her had been withdrawn by the Director of Public Prosecutions before sentencing.

  • What sentences were appropriate for robbery in company and for being an accessory after the fact to murder, having regard to the offender's limited role and the agreed facts?
  • What weight should be given to the offender's mental illness and serious drug addiction as mitigating factors?
  • How should extra-curial punishment, including a sustained media campaign and harsh custodial conditions, affect the sentence?
  • Did special circumstances exist to justify varying the standard ratio between the non-parole period and the total term of imprisonment?
  • What discount applied to the early guilty pleas?

Decision

Harrison J accepted that the offender's criminality for the robbery was at the lower end of the range for that offence. She had joined a conditional agreement to rob using threats and some physical force if necessary, based on a co-offender's assurance that only minimal force would be needed. She had no knowledge that weapons were present until after entry into the unit, and did not contemplate that wounding or serious injury might occur. Her role was essentially to gain access by presenting as a lone female.

On the accessory charge, the court found the offence sat at the bottom of its range. Standing alone, it would not have warranted a custodial penalty. However, because the offender had herself participated in the underlying robbery, a custodial sentence was warranted to mark the seriousness of harbouring a person she knew to be involved in the stabbing. The court determined there should be no accumulation of sentences: the imprisonment imposed for the accessory offence was sufficient recognition of its discrete criminality without extending her time in custody.

The court gave substantial weight to a powerful subjective case. The offender had significant mental health conditions and was seriously addicted to methylamphetamine at the time of the offences. She demonstrated genuine remorse and very good prospects of rehabilitation, with no discernible likelihood of re-offending. The court also took into account that she had experienced considerable extra-curial punishment through a sustained newspaper campaign generating damaging headlines, which caused her psychological distress and exposed her to unwanted attention from inmates and prison staff. Her time in custody had been served in especially harsh conditions, including prolonged periods in protective custody and solitary confinement.

A twenty percent discount was applied to the robbery charge for the early guilty plea. Special circumstances were found to exist, justifying a departure from the standard non-parole period ratio, given the need for extended supervision on parole to support the offender's rehabilitation. The court noted limited scope for general deterrence where an offender was severely affected by mental illness and drug addiction at the time of the offending.

Orders Made

  • For being an accessory after the fact to murder (harbouring, maintaining and assisting the co-offender knowing he had committed the murder): convicted and sentenced to a fixed term of 1 year imprisonment, commencing 13 August 2014 and expiring 12 August 2015.
  • For robbery in company of Brett Fitzgerald: convicted and sentenced to 4 years imprisonment commencing 13 August 2014, with a non-parole period of 2 years expiring 12 August 2016 and a balance of term of 2 years expiring 12 August 2018.
  • First eligible date for release on parole: 13 August 2016.

Key Takeaways

  • A participant in a robbery who had no knowledge that co-offenders were armed and did not contemplate serious violence occupies the lower end of the range for robbery in company, even where a victim dies from wounds inflicted during the robbery.
  • The accessory after the fact offence of harbouring a principal to murder sits at the bottom of its range where the harboured period is brief (approximately three days) and the offender's failure to alert police arises in a context of ongoing personal relationship and drug addiction rather than calculated concealment.
  • Extra-curial punishment through a sustained and damaging media campaign, combined with especially harsh custodial conditions including prolonged solitary confinement, constitutes a legitimate mitigating factor to be weighed in sentencing.
  • Serious mental illness and significant drug addiction at the time of offending can substantially reduce the weight of general deterrence as a sentencing objective.
  • Where an offender is convicted of two offences arising from a connected series of events, the sentencing court may decline to accumulate sentences if concurrent terms adequately reflect the totality of the criminality and the discrete offence at the lower end of the range does not independently warrant additional custody.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1
- Kenny v R [2010] NSWCCA 6
- R v Foster (1995) A Crim R 517
- R v Henry (1999) 46 NSWLR 346
- R v Howard [2001] NSWCCA 309
- R v Johnson [2014] NSWSC 1254
- R v Patison [2003] NSWCCA 171; (2003) 143 A Crim R 118
- R v Purtill [2012] NSWSC 566
- R v Rose [2004] NSWCCA 326
- R v Scowen [2007] NSWSC 792
- R v Ward [2004] NSWSC 420
- R v Wilhelm [2010] NSWSC 378
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313