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District Court 23 March 2018

R v Kyle Churchill; R v Michael Churchill

[2018] NSWDC 63

Assault & violenceTheft & propertyFirearms & weapons
ARMED ROBBERY OFFENDERS

Citation: R v Kyle Churchill; R v Michael Churchill [2018] NSWDC 63
Court: NSW District Court
Date: 23 March 2018
Judge: Mahony SC DCJ

Background

Two co-offenders, Kyle Churchill and his uncle Michael Churchill, were convicted by a jury of two counts of armed robbery contrary to s 97(1) of the Crimes Act 1900. The offences occurred on 25 January 2017 at Nabiac, NSW. The maximum penalty for armed robbery under that provision is 20 years imprisonment.

The facts established at trial were that Kyle Churchill had arranged for one of the victims to travel from Gloucester to Nabiac, ostensibly to purchase go-carts and, covertly, to buy the drug ice. When the drug supply fell through at the property, Kyle Churchill told Michael Churchill to "roll" the victims. Kyle Churchill retrieved a baseball bat and Michael Churchill produced a black steel pole. Together they threatened and robbed the two brothers of $505 in cash and an Apple iPhone 4, and made threats referencing the victims' home address to discourage them from going to police.

Both offenders had been held in custody since early February 2017. The sentence hearing took place on 19 March 2018, following the jury verdict on 16 February 2018.

  • What was the appropriate objective seriousness of the two armed robbery offences?
  • What weight should be given to the aggravating and mitigating factors for each offender under s 21A of the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a variation from the standard non-parole period ratio.
  • What individual sentences were appropriate for each offender, having regard to their different personal circumstances and criminal histories?

Decision

His Honour assessed the objective seriousness of the offending as falling just below the mid-range. No physical injuries were inflicted on either victim, and while baseball bats and iron bars are plainly offensive weapons, His Honour accepted the Crown's submission that they sit below weapons such as knives and machetes in terms of seriousness. The element of premeditation, however, was a significant feature: the victims were lured to the property under false pretences, and the threats made to discourage any police report added to the gravity of the conduct.

The court identified the offending as committed in company, involving threatened violence, with the offenders exploiting the isolated setting of the shed. In Michael Churchill's case, an additional aggravating factor was that he committed the offences while subject to a conditional bond. The court acknowledged the personal circumstances of each offender, including Michael Churchill's medical evidence, in arriving at the final sentences.

His Honour found no special circumstances warranting a departure from the standard non-parole to balance of sentence ratio. Both offenders received total sentences of four years and six months, comprising a non-parole period of two years and six months followed by a balance of two years, with the sentences on each count served concurrently.

Orders Made

Kyle Churchill (both counts, concurrent):
- Non-parole period: 2 years and 6 months, commencing 6 February 2017, terminating 5 August 2019
- Balance of sentence: 2 years, commencing 6 August 2019, terminating 5 August 2021

Michael Churchill (both counts, concurrent):
- Non-parole period: 2 years and 6 months, commencing 3 February 2017, terminating 2 August 2019
- Balance of sentence: 2 years, commencing 3 August 2019, terminating 2 August 2021

Key Takeaways

  • The District Court assessed armed robbery with a bat and a steel pole as falling just below mid-range objective seriousness where no injuries were inflicted, distinguishing the weapons from blades and other more dangerous instruments.
  • Premeditation, in the form of luring victims to a secluded location under false pretences, was treated as a material consideration in assessing the seriousness of the offending, even where it was not separately listed as a statutory aggravating factor.
  • Offending while subject to a conditional liberty order (in this case, a s 9 bond) constituted a distinct aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 for the offender to whom it applied.
  • No special circumstances were found to justify reducing the non-parole period below the standard ratio, reflecting the court's view that the offending and the offenders' circumstances did not warrant extended post-release supervision at the expense of the custodial term.
  • Sentencing statistics drawn from JIRS were referenced by the Crown but were treated with caution, consistent with the approach in R v Henry & Ors (1999) 46 NSWLR 346.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44(2)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346 (guideline judgment on robbery sentences)
- R v Goundar (2007) 127 A Crim R 331