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District Court 30 November 2018

R v Kemp; R v Duncan

[2018] NSWDC 471

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCE ARMED ROBBERY IN COMPANY OFFENDERS JOINT CRIMINAL ENTERPRISE PARITY

Citation: R v Kemp; R v Duncan [2018] NSWDC 471
Court: District Court of New South Wales
Date: 30 November 2018
Judge: Neilson DCJ

Background

Two co-offenders, Kemp and Duncan, pleaded guilty to armed robbery in company under s 97(1) of the Crimes Act 1900. On the morning of 25 November 2017, they robbed a pedestrian in Shepherd Street, Darlington, holding a broken wine bottle top beneath his chin and demanding his cash. The victim handed over $90. Each offender was on conditional liberty at the time of the offending.

The pair committed a series of further offences on the same day. These included an attempted robbery of a second pedestrian shortly after the principal offence, and an intimidation incident later that afternoon in which they threatened a security guard at a Redfern housing block. The court took all of these matters into account on a Form 1 (a mechanism that allows a sentencing court to take additional offences into account when passing sentence, without recording separate convictions for them).

Both offenders had prior criminal histories, histories of alcohol and drug abuse, and backgrounds marked by social deprivation and disadvantage. Despite sharing these characteristics, there were meaningful differences in their personal circumstances that influenced the court's approach to parity in sentencing.

  • What was the appropriate sentence for each offender for armed robbery in company under s 97(1) of the Crimes Act 1900, having regard to the guideline judgment in R v Henry?
  • How should the principle of parity apply where co-offenders share broadly similar backgrounds but differ in their personal circumstances?
  • What discount was appropriate for each offender's plea of guilty and other subjective factors?
  • Should special circumstances be found, altering the standard ratio of non-parole period to total sentence?

Decision

Neilson DCJ characterised the principal offence as extremely serious. A broken glass bottle had been held within centimetres of the victim's throat in broad daylight on a public street, and the victim was plainly terrified. The court referenced the Court of Criminal Appeal's guideline judgment in R v Henry (1999) 46 NSWLR 346 as the applicable framework for sentencing armed robbery.

Both offenders were on conditional liberty at the time of offending, which the court treated as an aggravating factor. Each had a prior criminal history, a background of alcohol and drug abuse, and had experienced social deprivation. These shared circumstances formed the baseline for the parity analysis.

The court acknowledged that, viewed objectively, Kemp's conduct might have warranted a longer sentence than Duncan's. However, Kemp's personal circumstances called for greater leniency, which brought the two sentences into alignment. Each offender received a 25 per cent discount for their guilty plea. The court found special circumstances in each case, justifying a departure from the standard non-parole period ratio in order to allow a longer period of supervised parole.

Both offenders were ultimately sentenced to the same total term of three years and nine months, with a non-parole period of one year and eleven months. The sentencing remarks also noted the unsatisfactory practice of including evidentiary material in agreed facts documents, observing that sentencing courts are concerned with facts, not the evidentiary trail used to establish them.

Orders Made

  • Kemp: convicted of armed robbery in company; sentenced to a total of 3 years and 9 months imprisonment, comprising a non-parole period of 1 year and 11 months (commencing 24 August 2018, expiring 23 July 2020) and a balance of term of 1 year and 10 months (expiring 23 May 2022); special circumstances found; Form 1 matters taken into account.
  • Duncan: convicted of armed robbery in company; sentenced to a total of 3 years and 9 months imprisonment, comprising a non-parole period of 1 year and 11 months (commencing 27 September 2018, expiring 26 August 2020) and a balance of term of 1 year and 10 months (expiring 26 June 2022); special circumstances found; Form 1 matters taken into account.

Key Takeaways

  • The District Court applied the R v Henry guideline when sentencing for armed robbery in company under s 97(1) of the Crimes Act 1900, confirming that guideline's continued relevance to street robbery involving a weapon and co-offenders.
  • Parity between co-offenders does not require identical objective culpability. Where one offender's conduct might objectively attract a heavier sentence, sufficiently favourable personal circumstances can justify aligning that sentence with that of the other offender.
  • A 25 per cent discount applied to each offender's sentence for their respective guilty pleas, reflecting the utilitarian value of those pleas to the administration of justice.
  • Special circumstances were found for both offenders, extending the balance of term relative to the non-parole period to allow for a longer period of supervised reintegration into the community.
  • Agreed facts documents used in sentencing proceedings should contain the relevant facts only. Neilson DCJ observed that including evidentiary material in such documents is extraneous to the sentencing exercise and unhelpful to the court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery in company, maximum penalty 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (Court of Criminal Appeal guideline judgment for robbery offences)