Citation: R v Minkley [2019] NSWDC 422
Court: District Court of New South Wales
Date: 9 August 2019
Judge: Weber SC DCJ
Background
The offender pleaded guilty to two counts of robbery while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 20 years' imprisonment. Both offences occurred on 17 November 2018, within approximately two hours of each other, in the Mt Colah and Asquith areas of Sydney's northern suburbs.
In the first offence (the hairdresser offence), the offender entered a hair salon wearing a balaclava, placed a backpack on the counter, and indicated while handling a knife tucked in his waistband that money should be placed in the bag. The salon employee complied, handing over approximately $200. In the second offence (the pharmacy offence), the offender entered a chemist carrying a 40 to 50 centimetre machete with a recently sharpened blade and demanded cash from the register, obtaining $500.
The offender was arrested two days later, initially denied involvement, but was ultimately charged after his mother contacted police. He had a prior criminal record including offences of violence and was on conditional liberty at the time. The offences were motivated by drug addiction.
Legal Issues
- What was the objective seriousness of each armed robbery offence, assessed by reference to the guideline judgment in R v Henry (1999)?
- What weight should be given to aggravating factors, including breach of conditional liberty, prior convictions, planning, and medium to high risk of reoffending?
- What weight should be given to mitigating factors, including early guilty plea, remorse, drug addiction, and absence of physical injury to victims?
- How should an aggregate sentence be structured across the two principal offences and the bond breaches, with form 1 matters taken into account?
- Whether the offender was eligible for referral to the Drug Court under the Drug Court Act 1998 (NSW)?
Decision
The court assessed the hairdresser offence as falling in the low to mid-range of objective seriousness, and the pharmacy offence at the mid-range. Both offences aligned closely with the category of armed robbery described in the R v Henry guideline judgment: a weapon capable of causing serious injury, limited planning, a real threat of violence without actual physical harm, a vulnerable victim such as a shopkeeper, and a small amount taken. The machete used in the pharmacy offence was treated as a more serious weapon than the concealed knife in the hairdresser offence.
Several aggravating factors weighed against the offender. He was on conditional liberty at the time, had a prior record including crimes of violence, the offences involved an element of planning (including stealing registration plates to disguise his vehicle), and he presented a medium to high risk of reoffending. The court noted, applying R v Henry and Johan v R, that committing armed robbery to fund a drug addiction provides neither an excuse nor a mitigating factor.
On the other side of the ledger, the court credited the offender's early guilty plea with an applicable discount, accepted genuine remorse as a mitigating factor, and noted that no physical injury was caused to any victim. The absence of a standard non-parole period for this offence meant the court exercised its full discretion in structuring the sentence.
The court imposed an aggregate sentence, finding this approach best accommodated the requirements of accumulation, concurrence, and totality. Applying the instinctive synthesis described by McHugh J in Markarian v The Queen, indicative sentences were set for each component before arriving at the overall term. The offender was referred to the Drug Court under s 18B of the Drug Court Act 1998 (NSW), the court being satisfied that the eligibility criteria were met.
Orders Made
- The offender was convicted of each count on the indictment.
- An aggregate sentence of 4 years and 8 months' imprisonment was imposed, with a non-parole period of 3 years and 6 months.
- The sentence commenced on 19 November 2018 (the date of arrest and entry into custody).
- The non-parole period was set to expire on 18 May 2022, with the balance of the sentence expiring on 18 July 2023.
- The offender was referred to the Drug Court pursuant to s 18B of the Drug Court Act 1998 (NSW).
Key Takeaways
- The District Court confirmed the continued relevance of the R v Henry guideline for calibrating objective seriousness in armed robbery matters, treating proximity to the guideline factors as a significant starting point in the analysis.
- A drug addiction that motivates armed robbery does not operate as a mitigating factor at sentencing. Both R v Henry and Johan v R [2015] NSWCCA 58 affirm this principle, and the District Court applied it here without qualification.
- Aggregate sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW) was found to be the appropriate mechanism where two principal offences and a bond breach required consideration of accumulation, concurrence, and totality together.
- Genuine remorse and an early guilty plea remained relevant mitigating factors even where the Crown case was strong and the offender had initially denied the offences.
- Eligibility for Drug Court referral under the Drug Court Act 1998 (NSW) is a separate determination that can be made alongside the imposition of a custodial sentence, including an aggregate term.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 114(1)(a), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 53A
- Drug Court Act 1998 (NSW), s 18B
- Drug Court Regulation 2015 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- Markarian v The Queen (2005) 228 CLR 357 (instinctive synthesis in sentencing)
- Johan v R [2015] NSWCCA 58 (drug addiction not a mitigating factor for armed robbery)
- Chung v R [2017] NSWCCA 48
- Attorney General's Application under section 37 of the Sentencing Act (2002) 56 NSWLR 146 (form 1 principles)