Citation: R v Marcus Kenneth BUCHANAN (aka BUCHANAAN) [2017] NSWDC 406
Court: District Court of New South Wales
Date: 10 November 2017
Judge: King SC DCJ
Background
The offender was convicted by jury of two counts of robbery while armed with a dangerous weapon, contrary to s 92(2) of the Crimes Act 1900, each carrying a maximum penalty of 25 years imprisonment. The offences occurred on 2 November 2015 at a shopping complex in Kempsey, New South Wales, while the offender was at large having escaped from custody days earlier.
Armed with a shortened .22 calibre bolt-action rifle, the offender entered a Target store and robbed a staff member at the cash register, then walked directly to a nearby Coles supermarket and robbed a second staff member in the same manner. Both robberies were captured on CCTV. The precise amounts stolen from each store could not be established, but notes were observed being removed from the tills. The weapon was later recovered concealed under cushions at a relative's premises.
The offender attended with three others who drove him to and from the shopping centre. No other person was charged, the court noting there was insufficient specific evidence to prove beyond reasonable doubt a joint criminal enterprise. The offender ran a defence at trial based on the unreliability of identification evidence, which the jury rejected.
Legal Issues
- What was the appropriate objective seriousness of the two robbery offences?
- What weight should be given to the offender's subjective circumstances, including his Indigenous background, history of substance abuse, domestic violence, and disadvantaged upbringing?
- Whether special circumstances existed to justify a variation from the standard 75/25 non-parole period to parole ratio under the Crimes (Sentencing Procedure) Act 1999.
- What aggregate sentence was appropriate having regard to the totality principle and the offender's time already in custody?
Decision
King SC DCJ assessed each offence as falling within the mid-range of objective seriousness. Both prosecution and defence accepted that characterisation. The court emphasised that armed robbery with a shortened firearm, whether or not loaded, is a serious offence causing community concern and real distress to victims. The pre-planning involved, including the use of a disguise, a getaway vehicle, and a reconnaissance of the Target store before the robbery, elevated the objective gravity of the conduct.
On subjective matters, the court acknowledged the offender's Indigenous background and the principles in R v Fernando and Bugmy v R, which direct courts to consider the effects of social disadvantage, including histories of substance abuse, in mitigation. However, the court found limited mitigating weight available given the offender's significant criminal history commencing in juvenile years, his poor response to all prior supervision, and his continued misconduct in custody since recapture.
The court declined to find special circumstances to reduce the non-parole period below the statutory norm. King SC DCJ was not persuaded that the offender had any genuine interest in addressing his drug or behavioural problems, or in participating meaningfully in rehabilitation programs. The court noted the long continuous period of custody since recapture but expressly declined to treat that alone as a basis for special circumstances.
An indicative sentence of seven years imprisonment was set for each offence. The court then imposed an aggregate sentence of eight years with a non-parole period of six years, commencing 3 March 2017 and expiring 2 March 2023, with the full term expiring 2 March 2025.
Orders Made
- Indicative sentence of seven years imprisonment for each of the two offences of robbery while armed with a dangerous weapon.
- Aggregate sentence of eight years imprisonment.
- Non-parole period of six years, commencing 3 March 2017, expiring 2 March 2023.
- Balance of term of two years, with the full term expiring 2 March 2025.
- Special circumstances not found; no variation to the standard non-parole period ratio.
Key Takeaways
- The District Court confirmed that armed robbery with a shortened firearm sits at the mid-range of objective seriousness even where the weapon is not proven to be loaded and the precise sum stolen cannot be established.
- Pre-planning elements, including reconnaissance, disguise, and use of a getaway vehicle, are relevant aggravating factors in assessing the objective gravity of an armed robbery.
- Under the principles in Bugmy v R and R v Fernando, an offender's Indigenous background and history of social disadvantage must be taken into account in mitigation, but those principles do not operate as a formula guaranteeing reduced sentences where the court finds a poor response to prior supervision.
- Refusing special circumstances, the court held that a genuine willingness to engage in rehabilitation programs is a relevant consideration; a history of disengagement from all prior interventions can weigh against a finding of special circumstances.
- A lengthy period of continuous pre-sentence custody does not automatically warrant a finding of special circumstances or a reduction in the non-parole period ratio, particularly where the sentencing court expressly turns its mind to that factor and declines to apply it.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 92(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Bugmy v R [2013] 249 CLR 571
- Currie v R [2013] NSWCCA 267
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- Veen v R (No 2) (1987-1988) 164 CLR 465