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District Court 2 June 2017

R v Rosenberg

[2017] NSWDC 194

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY BAG SNATCHING SUBJECT TO AN ICO AT TIME OF OFFENDING

Citation: R v Rosenberg [2017] NSWDC 194
Court: District Court of New South Wales
Date: 2 June 2017
Judge(s): Berman SC DCJ

Background

The offender and his step-brother attended a shopping centre, where the step-brother had driven a stolen car. Two employees of a food import/export business had just completed banking transactions at the centre. As the employees walked back to their car, the step-brother struck one of them repeatedly with a walking stick, knocking him to the ground, and stole his bag. The victim suffered a forehead wound requiring seven stitches. The offender was present nearby and fled with the step-brother after the bag was taken.

The Crown accepted that the offender did not anticipate or contemplate any violence. On that basis, the offender was charged with robbery in company rather than armed robbery or any violence-related offence. He pleaded guilty at the earliest opportunity.

At the time of the offending, the offender was subject to both a section 9 bond and an Intensive Correction Order (ICO). The ICO was subsequently revoked and he was taken into custody upon arrest on 30 March 2016.

  • What sentence was appropriate for robbery in company where the offender did not contemplate the violence used by his co-offender?
  • How should the court treat the aggravating circumstance of the offender being on conditional liberty (an ICO) at the time of offending, given the ICO had already been revoked?
  • Whether special circumstances existed justifying a longer than standard ratio between the non-parole period and the head sentence.
  • How the guideline judgment in R v Henry applied to an offence of robbery in company rather than armed robbery.

Decision

Berman SC DCJ emphasised throughout the sentencing remarks the importance of accurately calibrating the offender's individual criminal culpability. Because the Crown accepted the offender did not foresee the violence inflicted by his step-brother, the court was careful not to sentence him for conduct for which he bore no criminal responsibility. The court characterised the offending as participation in what the offender believed would be a bag snatch without violence, which, while a serious offence, was meaningfully less serious than armed robbery involving violence.

On the question of conditional liberty, the court noted that the ICO had already been revoked as a consequence of the offending, resulting in the offender being held in custody. To avoid double counting, Berman SC DCJ explicitly stated that no additional increase was made to the sentence to reflect the aggravating circumstance of offending while on conditional liberty.

The court acknowledged the offender's difficult background, including childhood domestic violence, the death of his brother from a serious illness, and a resulting long-standing drug problem. These matters were treated as contextual factors relevant to the offender's personal circumstances, though his prior criminal history and the fact that he was under Probation and Parole supervision at the time of offending prevented the court from finding good prospects of rehabilitation. Mitigating factors included an early guilty plea (attracting a 25% discount), remorse accepted to be consistent with his limited role, an offer of employment, and no drug use while in custody.

The guideline judgment of R v Henry, developed in the context of armed robbery, was applied as the relevant benchmark, as it has been consistently treated as applicable to robbery in company. The court weighed the Henry factors with particular attention to the offender's unawareness of the weapon, the limited planning, the small value of property taken, and the early guilty plea. Special circumstances were found to exist, justifying a greater proportion of time on parole, given the accumulation of sentences and the need for psychological support upon release.

Orders Made

  • For the breach of bond (possession of a prohibited drug): convicted with no further penalty under section 10A of the Crimes (Sentencing Procedure) Act.
  • For robbery in company: sentenced to imprisonment with a non-parole period of 18 months commencing 2 September 2016, and a head sentence of 3 years.
  • Non-parole period to expire 1 March 2018, with an order for release from custody on that date.

Key Takeaways

  • Where co-offenders commit a robbery together, a court must carefully distinguish each offender's individual culpability, particularly where the Crown accepts that one offender did not foresee or contemplate violence used by the other.
  • Offending while subject to an ICO is ordinarily an aggravating circumstance, but where the ICO has already been revoked and the offender held in custody as a result, a sentencing court must avoid double counting by not also increasing the new sentence to reflect that same circumstance.
  • R v Henry, a guideline judgment originally concerning armed robbery, has been consistently applied by NSW courts to the offence of robbery in company.
  • Special circumstances justifying an extended parole period can arise from the accumulation of sentences and the identified need for post-release psychological support.
  • A bag snatch without contemplated violence, while a serious criminal offence, falls meaningfully below armed robbery involving actual violence in the hierarchy of gravity for robbery offences.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), including sections 9, 10A

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