Citation: R v Close [2018] NSWDC 352
Court: District Court of New South Wales
Date: 29 June 2018
Judge: Wilson SC DCJ
Background
The offender, a 22-year-old man, appeared for sentencing on a single charge of robbery in company under s 97(1) of the Crimes Act 1900 (NSW). The offence was committed on 20 August 2017, while the offender was on parole for earlier offending.
The victim was a taxi driver who had picked up the offender and a co-offender in Alexandria in the early hours of the morning. After directing the driver to a street in Marrickville where the offender lived nearby, both men attacked the victim from behind, punching him repeatedly around the head. While the victim lay on the ground, the offender re-entered the taxi and stole a wallet containing approximately $300 cash, bank cards, and identification, along with glasses cases and loose coins. The victim sustained a fractured cheekbone, lacerations inside his mouth, and bruising to his hands.
The offender was arrested the following day when police executed a search warrant at his home and found the stolen items. He initially denied involvement but later pleaded guilty, receiving a 25% discount on sentence.
Legal Issues
- What is the appropriate sentence for robbery in company, applying the guideline judgment in R v Henry (1999) 46 NSWLR 346?
- How should the court weigh the offender's youth against his significant criminal history?
- What weight should be given to sentencing statistics alongside the guideline judgment?
- Whether a custodial sentence was the only appropriate sentencing option.
Decision
His Honour applied the guideline judgment in R v Henry, which concerned robbery in company, noting both similarities and differences with the present case. Two key distinctions were identified. First, unlike the young offender in Henry who had little or no criminal history, the offender here had a significant record of offending from childhood. Second, no weapon capable of causing death or serious injury was used, which distinguished the case from some of the more serious scenarios contemplated in Henry.
The court recognised the offender's youth as a relevant mitigating factor but gave it reduced weight because of his extensive prior criminal history. The nature of the offending was described as a planned ambush of a vulnerable worker, committed in darkness in the early hours of the morning, with violence that caused real injury and fear.
His Honour also considered sentencing statistics, which showed that 93% of offenders in similar circumstances received imprisonment, with an average term of approximately four years. The court noted that statistics should not be given undue weight and, in this case, placed greater reliance on the Henry guideline given the factual similarities.
Applying all these considerations, including the 25% guilty plea discount, the court was satisfied that imprisonment was the only appropriate sentence. The co-offender had not yet been sentenced, so no parity issues arose at this stage.
Orders Made
- The offender was convicted of robbery in company under s 97(1) of the Crimes Act 1900.
- A non-parole period of two years was imposed, commencing 1 January 2018 and expiring 31 December 2019.
- A head sentence of three years was imposed, expiring 31 December 2020.
- A copy of the psychologist's report (Patrick Sheehan, 29 May 2018) was directed to accompany the offender's warrant.
Key Takeaways
- The District Court confirmed that the R v Henry guideline judgment remains the primary reference point for sentencing robbery in company offences, with sentencing statistics playing a secondary role.
- A young offender's age carries reduced mitigating weight where there is a significant criminal history, even where that history began in childhood.
- The absence of a weapon capable of killing or inflicting serious injury is a factor that distinguishes an offence from the more serious end of the Henry range, though violence causing physical injury still weighs heavily in objective seriousness.
- Parity between co-offenders is deferred where the co-offender has not yet been sentenced; the issue may arise when that sentencing occurs.
- A guilty plea resulting in a 25% discount on sentence reflected the timing and utility of the plea in the context of this proceeding.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Criminal (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for imprisonment)
Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery in company)
- R v McNaughton (2006) 66 NSWLR 566