Citation: R v Steven Craig Francis [2019] NSWDC 18
Court: District Court of New South Wales
Date: 14 February 2019
Judge(s): Mahony SC DCJ
Background
The offender pleaded guilty to conspiracy to commit a robbery while armed with a dangerous weapon, arising from events on 3 April 2018 in the Forster/Tuncurry area of New South Wales. The planned target was a cash-in-transit vehicle servicing local clubs. The offender's father had previously operated a cash-in-transit business in the area for over 25 years, and the family's insider knowledge of the routes, timing, and security arrangements formed the basis of the plan.
The conspiracy involved the offender, his father (a co-offender), and two others. An undercover police operative (UCO) infiltrated the group, participating in planning meetings, a reconnaissance drive, and a dry run of the robbery. Recorded conversations captured the detailed planning, including the proposed use of firearms, getaway vehicles, clothing, and a hoax call to police intended to divert resources away from the scene.
The offender and one co-offender were arrested at a motel in Tuncurry on 3 April 2018, moments after the UCO left the room on the pretext of retrieving weapons. No robbery was carried out. The offender remained in custody from the date of his arrest.
Legal Issues
- What was the appropriate head sentence and non-parole period for a guilty plea to the common law offence of conspiracy to commit armed robbery under s 97(2) of the Crimes Act 1900, which carries no maximum penalty and no standard non-parole period?
- What discount applied to the sentence by reason of the early guilty plea?
- Whether the offender's personal circumstances, including mental health issues, a prior brain injury, and drug addiction, mitigated the sentence or established special circumstances.
- Whether special circumstances existed warranting a variation of the statutory ratio between the head sentence and the non-parole period under s 44(2) of the Crimes (Sentencing Procedure) Act.
Decision
Mahony SC DCJ sentenced the offender to five years' imprisonment with a non-parole period of three years, commencing 4 April 2018. The offending was characterised as serious: the conspiracy was well-organised and advanced, involved detailed planning over several weeks, contemplated the use of firearms against security guards, and included a scheme to deceive police through a hoax call. Although no robbery was ultimately carried out, the court found these factors substantially aggravated the offence.
The court applied a 25% utilitarian discount to reflect the early guilty plea, noting this was substantially greater than the 10% discount discussed in the guideline judgment of R v Henry (which arose from a late plea against a strong Crown case). The court placed little weight on the offender's expressed remorse, given that neither his statements to a psychologist nor his letter to the court were supported by sworn evidence.
Regarding the offender's personal circumstances, the court accepted that methamphetamine (ice) addiction was causally connected to the offending, but found that mental health issues and a prior brain injury from a 2015 motor vehicle accident were not. The court did not accept that the offender had good prospects of rehabilitation. However, special circumstances were found to exist based on the offender's need for drug and alcohol rehabilitation and post-release supervision to assist with accommodation and reintegration into the workforce. This justified varying the ratio between the head sentence and non-parole period under s 44(2).
The court identified significant distinctions from the R v Henry guideline case: the offender was older, carried a significant criminal history, and the offence involved no actual violence (though threatened violence was planned). Those distinctions informed the court's approach to the appropriate sentence range.
Orders Made
- The offender was convicted of conspiracy to commit a robbery while armed with a dangerous weapon under the common law and s 97(2) of the Crimes Act 1900.
- Non-parole period of 3 years, commencing 4 April 2018 and expiring 3 April 2021.
- Balance of term of 2 years, commencing 4 April 2021 and expiring 3 April 2023.
- The offender was informed that release to parole is not automatic and is subject to Parole Board determination, including conditions as to residence, supervision by Community Corrections, and non-reoffending.
Key Takeaways
- Conspiracy to commit armed robbery under common law and s 97(2) of the Crimes Act 1900 carries no prescribed maximum penalty and no standard non-parole period, requiring the sentencing court to apply guideline case principles, particularly from R v Henry, while accounting for the specific facts.
- A 25% utilitarian discount was available for an early guilty plea even where the Crown's case was strong, which represents a notable departure from the 10% discount typically discussed in R v Henry in equivalent circumstances.
- Where an offender's expressions of remorse are not supported by sworn evidence, the sentencing court may place little weight on them, even if contained in a letter to the court or reported by a psychologist.
- The involvement of an undercover police operative does not, of itself, significantly reduce the offender's criminality where the offender was a driving force behind the conspiracy and the planning was detailed and advanced.
- Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act can be established by reference to rehabilitation needs and the requirement for post-release supervision, even where the court does not accept that the offender has good prospects of rehabilitation.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44(2)
Cases
- R v Henry (1998) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- Auimatagi v R [2011] NSWCCA 248
- Couloumbis v R [2012] NSWCCA 264
- Petterson v R [2013] NSWCCA 20
- Sabbis v R [1995] HCA 29
- Tyler v R; R v Chalmers [2007] NSWCCA 247