Citation: R v Leeton John Buchanan; R v Jerrymee Maine Kelly [2017] NSWDC 408
Court: District Court of New South Wales
Date: 11 August 2017
Judge: King SC DCJ
Background
Two co-offenders, aged 19 and 28 at the time, entered a country store in Greenhill, NSW, armed with large kitchen knives. They threatened the two shopkeeper victims at knifepoint, demanding money, cigarettes, and the keys to the victims' car. The robbery netted property valued at approximately $1,540, all of which was recovered when both offenders were arrested shortly after fleeing the scene.
Both offenders pleaded guilty to armed robbery under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The older offender also had a Form 1 matter taken into account: damaging a police surveillance camera while in custody. Each was entitled to a 25% sentencing discount for the utilitarian value of the guilty plea, consistent with R v Thomson; R v Houlton.
The sentencing hearing addressed the objective seriousness of the offending and a range of subjective matters specific to each offender, including extensive criminal histories, drug dependency, time spent in institutional settings, and the fact that one offender committed the robbery while on parole.
Legal Issues
- Whether the offending fell within, above, or below the ordinary sentencing range established by the guideline judgment in Henry [1999] NSWCCA 111
- How each offender's subjective circumstances, including criminal history, institutionalisation, drug dependency, and mental health, affected the appropriate sentence
- Whether parity between co-offenders was required, and if so, how differences in their circumstances justified different sentences
- Whether the commission of the offence while on parole was a relevant aggravating factor
- Whether the principles in Bugmy v the Queen [2013] HCA 7 (regarding the ongoing relevance of deprived backgrounds) applied to reduce moral culpability
Decision
Applying the seven factors from the Henry guideline, the court found the offending fell above the ordinary range in each case. Both offenders used large kitchen knives capable of causing death or serious injury, the victims were vulnerable shopkeepers, and the robbery was pre-planned, if only briefly. While no actual violence was inflicted, the threat was real and directed at both victims simultaneously.
The court accepted that each offender had a highly disadvantaged background and had spent much of their life in institutional settings, which reduced, but did not eliminate, the weight to be given to general and specific deterrence. The principles from Bugmy were applied: the effects of profound deprivation on moral culpability do not diminish with repeated offending, and the court acknowledged both offenders' extensive juvenile histories and exposure to violence from a young age.
Specific aggravating factors distinguished the two offenders. The older offender had committed the robbery while on parole and carried a significantly more extensive adult criminal record, including prior violence offences. These factors elevated the sentence imposed on him relative to the younger offender, whose lesser history and age justified a marginally lower sentence, notwithstanding the requirement of parity.
The court was satisfied that no alternative to full-time imprisonment was appropriate. It noted candidly that, given past custodial conduct, neither offender could be guaranteed release at the expiration of the non-parole period, as that determination would rest with the relevant parole authority based on each offender's conduct in custody.
Orders Made
- Leeton Buchanan: convicted of armed robbery; sentenced to a total term of 4 years imprisonment, comprising a non-parole period of 2 years and 3 months commencing 12 May 2017, with first eligibility for parole on 11 August 2019, and a balance of term of 1 year and 9 months expiring 11 May 2021
- Jerrymee Kelly: convicted of armed robbery (with the Form 1 property damage offence taken into account); sentenced to a total term of 4 years and 6 months imprisonment, comprising a non-parole period of 2 years and 9 months commencing 12 November 2016, expiring 11 August 2019, and a balance of term of 1 year and 9 months expiring 11 May 2021
Key Takeaways
- The District Court confirmed that the Henry guideline sentencing range requires adjustment where a 25% discount applies for an early guilty plea, as distinct from the 10% discount that applied in Henry itself.
- Committing an armed robbery while on parole is a significant aggravating factor that warrants an elevated sentence relative to an otherwise comparable co-offender.
- Under Bugmy, the mitigating effect of a severely deprived background and institutionalisation persists regardless of the number of prior convictions, though it reduces rather than eliminates the weight given to deterrence.
- A fortuitous recovery of stolen property, resulting from arrest rather than voluntary return, does not convert that recovery into a mitigating factor in favour of the offender.
- Where co-offenders are sentenced together, parity principles apply, but meaningful differences in age, criminal history, and parole status can justify materially different sentences without infringing parity.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 32
- Mental Health Act 2007 (NSW)
Cases
- Bugmy v the Queen [2013] HCA 37
- Callahan v R [2006] NSWCCA 58
- Henry [1999] NSWCCA 111
- R v Fernando [2002] NSWCCA 28
- R v Huynh [2003] NSWCCA 239
- R v McVittie [2002] NSWCCA 344
- R v Moffatt (1990) 20 NSWLR 114
- R v Thomson; R v Houlton (2000) 49 NSWLR 383