Citation: R v Daley & McDonald [2018] NSWDC 344
Court: District Court of New South Wales
Date: 2 November 2018
Judge: Berman SC DCJ
Background
Two offenders, a man and a woman, were sentenced following a violent armed robbery committed against three backpackers in Enmore in March 2017. The victims had been socialising near their campervans when one of the offenders approached them seeking help with jumper leads and a cigarette lighter. The victims responded with genuine kindness, offering assistance freely.
The offenders exploited that goodwill. Once one victim accompanied two of the co-offenders to a stolen BMW to help reconnect a battery cable, the third offender initiated a series of robberies. The male offender produced a knife with a 20-centimetre serrated blade and demanded wallets and phones from each victim in turn. The female offender placed one victim in a headlock, forced her to the ground, punched her multiple times in the face, and stole her bag, which contained bank account passwords. All three victims were robbed.
Additional offences followed. The female offender used a stolen credit card and the victim's recorded passwords to purchase goods. The male offender, when subsequently located by police, headbutted an officer in the chest. Both offenders were on parole at the time the offences were committed. They each pleaded guilty, though at a late stage.
Legal Issues
- What aggregate sentences were appropriate for two broadly equally culpable co-offenders who committed three separate armed robberies?
- How should the parity principle be applied where the offenders played different roles, one using a weapon and the other inflicting direct physical violence?
- What weight should be given to each offender's background, including childhood sexual abuse, entrenched substance dependence, institutionalisation, and limited prospects of rehabilitation?
- What sentencing discount was warranted for late guilty pleas?
- How should the Form 1 matters (additional offences taken into account, including assault on a police officer and dishonestly obtaining financial advantage by deception) affect the sentences?
Decision
The District Court characterised the offences as "particularly nasty," emphasising that the victims had shown genuine kindness and had their goodwill repaid with violence and threats. Berman SC DCJ accepted that the robberies may not have been extensively planned, but found the violence inflicted by the female offender was entirely gratuitous, given the victims were co-operating throughout.
On parity, the court found the two offenders were broadly equally culpable. The male offender had brandished the knife, while the female offender had delivered actual physical violence. A modest degree of disparity between the final sentences was nonetheless justified by two factors: the male offender's Form 1 matter of assaulting a police officer, and the female offender's comparatively better (though still limited) prospects of rehabilitation.
The court applied the guideline judgment in R v Henry and considered both offenders' deeply disadvantaged backgrounds. Each had suffered childhood sexual abuse, had long-standing substance dependence beginning in early adolescence, and had become significantly institutionalised through repeated contact with the justice system. The court applied the principles from Bugmy v The Queen and R v Fernando in assessing how those backgrounds bore on moral culpability, while also noting that neither offender could be said to have strong rehabilitation prospects.
A 10 per cent discount was applied to both sentences to reflect the utilitarian value of the late guilty pleas. The court imposed aggregate sentences rather than individual consecutive or concurrent terms, noting that some degree of concurrence was appropriate to reflect that the three robberies arose from a single episode, while still acknowledging three separate victims were harmed.
Orders Made
- Mr McDonald: aggregate sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years commencing 10 March 2017, expiring 9 March 2020.
- Ms Daley: aggregate sentence of 5 years and 3 months imprisonment, with a non-parole period of 2 years and 6 months commencing 13 April 2017, expiring 12 October 2019.
- A third co-offender (Mr Lynch) was not sentenced at this hearing due to his failure to attend, and his matter was listed separately.
Key Takeaways
- The District Court confirmed that the parity principle requires that no co-offender should have a justifiable sense of grievance when comparing sentences, but that modest disparity remains appropriate where offenders differ in their specific conduct or individual circumstances.
- Broadly equal culpability does not require identical sentences: differences in Form 1 matters and in rehabilitation prospects each provided legitimate grounds for sentencing differentiation between the male and female offender here.
- Where multiple offences arise from a single episode involving separate victims, entirely concurrent sentences are not appropriate. Some accumulation is required to reflect the distinct harm suffered by each victim.
- A late guilty plea attracted only a 10 per cent discount, reflecting its limited utilitarian value compared with an early plea.
- Applying Bugmy v The Queen and R v Fernando, deeply disadvantaged backgrounds, including childhood abuse, entrenched substance dependence, and institutionalisation, are relevant to the assessment of moral culpability, but do not overcome the seriousness of the offending or the need to protect the community through appropriately substantial sentences.
Legislation and Cases Referenced
Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
Legislation: No specific legislation was cited in the provided text, though the offences involved armed robbery, knowingly being carried in a stolen conveyance, assault of a police officer in the execution of duty, and dishonestly obtaining a financial advantage by deception (New South Wales criminal law).