Citation: R v Konza [2018] NSWDC 485
Court: District Court of New South Wales
Date: 7 November 2018
Judge(s): Wilson SC DCJ
Background
The offender pleaded guilty to one count of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW). The offence occurred on 6 May 2016 at the drive-through bottle shop of the Terrigal Hotel, where the offender brandished a machete and demanded cash from two employees, obtaining approximately $330.
A second robbery at the same premises on 29 April 2016, also involving a machete, was listed on a Form 1 and taken into account during sentencing. In that earlier incident, the offender had threatened a lone employee and made off with $795. Both offences were substantially confirmed by CCTV footage and forensic evidence, including the offender's fingerprints on the machete blade.
The guilty plea was entered on 24 August 2017, after two days of pre-trial argument, which the court treated as a relatively late plea when assessing its utilitarian value. The offender had spent time in custody on two separate occasions before sentence was pronounced on 26 October 2018, with formal remarks delivered on 7 November 2018.
Legal Issues
- What was the objective seriousness of the principal offence, having regard to the maximum penalty of 20 years and the R v Henry (1999) guideline judgment?
- How should the Form 1 offence (a second armed robbery of the same type, at the same location) affect the sentence?
- What weight should be given to the late guilty plea in calculating the utilitarian discount?
- How should the offender's personal circumstances, including a psychological report and a serious medical condition (Crohn's Disease), bear on the overall sentence?
- Was the resulting sentence consistent with general sentencing trends and the relevant guideposts?
Decision
Wilson SC DCJ identified the maximum penalty of 20 years imprisonment as the primary legislative guidepost and applied the Henry guideline judgment to assess where the offending fell within the range. The court described the conduct as objectively serious: the offender used a real machete, issued explicit threats to multiple victims, and directed one employee not to press the hold-up button. Although there was no physical contact between the weapon and any victim, all the elements of the offence were clearly established.
The Form 1 offence was treated as a significant aggravating consideration. Consistent with R v Grubbe [2005] NSWCCA 140, a Form 1 matter justifies an increase in penalty, particularly where it elevates the need for specific deterrence and retribution. The court noted the heightened significance of the Form 1 here because the second offence was the same type, committed at the same venue and within days of the principal charge. The court was careful, however, not to allow the Form 1 to produce a sentence that was unduly crushing.
The late timing of the guilty plea limited the utilitarian discount available to the offender. The court acknowledged the psychological report and the offender's medical needs, directing that the psychological report accompany the warrant of commitment and ordering Justice Health to arrange specialist treatment for Crohn's Disease and the offender's mental health condition as soon as practicable.
Having weighed all objective and subjective factors, the court was satisfied that the sentence arrived at was consistent with both the seriousness of the offending and general sentencing trends reflected in available statistics.
Orders Made
- Non-parole period of three years and five months, commencing 29 June 2018 and expiring 28 November 2021.
- Head sentence of five years and eight months, expiring 28 February 2024.
- The psychological report by Sarah Brann to accompany the offender's warrant of commitment.
- Justice Health directed to arrange specialist treatment for Crohn's Disease and the offender's mental health condition as soon as possible.
- Warrant of commitment endorsed accordingly.
Key Takeaways
- A Form 1 offence of the same character as the principal charge, committed at the same location within a short period, can significantly increase the weight given to specific deterrence and retribution in the sentencing exercise, though the court must guard against an outcome that is unduly crushing.
- Under the Henry guideline, the maximum penalty for armed robbery (20 years) operates as a primary legislative guidepost, and the court must assess objective seriousness against that benchmark without necessarily placing the offence on a rigid hypothetical scale.
- A guilty plea entered after two days of pre-trial argument attracts a reduced utilitarian discount compared with an early plea, reflecting the limited savings to the criminal justice system at that stage.
- Sentencing statistics are a blunt instrument, and the District Court confirmed it will, where appropriate, assess the individual circumstances of an offence independently rather than relying mechanically on statistical comparatives.
- Medical conditions and psychological needs, while relevant to subjective circumstances, are addressed through specific orders accompanying the warrant of commitment rather than necessarily producing a reduction in the headline sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon), s 4 (definition of "armed")
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery)
- R v Grubbe [2005] NSWCCA 140 (Form 1 and increase in penalty)
- Muldrock v The Queen (2011) 244 CLR 120
- Barbaro v R; Zirilli v R (2014) 253 CLR 58
- The Queen v Pham (2015) 256 CLR 550
- Veen v The Queen (No 2) (1988) 164 CLR 465
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Conte v R [2018] NSWCCA 209
- Egan v R [2018] NSWCCA 235
- Lawson v R [2018] NSWCCA 215
- Hernandez v R [2013] NSWCCA 51
- Jodeh v R [2011] NSWCCA 194
- Toole v R [2014] NSWCCA 318
- R v Osenkowski (1982) 30 SASR 212
- R v Valentini (1989) 46 A Crim R 23
- R v SY [2003] NSWCCA 291
- R v N (1999) 106 A Crim R 493