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District Court 21 June 2019

R v Stavely

[2019] NSWDC 630

Assault & violenceTheft & propertyFirearms & weapons
CRIME BLACK REPLICA PISTOL MACHETE JOINT CRIMINAL ENTERPRISE BREACH OF CONDITIONAL LIBERTY VULNERABLE VICTIMS

Citation: R v Stavely [2019] NSWDC 630
Court: District Court of New South Wales
Date: 21 June 2019
Judge: Norrish QC DCJ

Background

The offender, a 38-year-old man, pleaded guilty to armed robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment. The offence arose from a robbery at the Hunters Hill Hotel in the early hours of 9 December 2017, during which approximately $30,000 to $32,000 in cash was stolen. The offender participated in the robbery as part of a joint criminal enterprise with a co-accused, Scott Barrie.

The offender and Barrie arrived at the hotel by motorcycle, both wearing helmets to conceal their identities. The offender carried a machete (approximately 40 centimetres in blade length) supplied by Barrie, while Barrie wielded a black replica pistol. Barrie directed the robbery, threatening the security guard at gunpoint, while the offender held the machete in a threatening manner. The offender's DNA was later recovered from the machete handle, and he was arrested in August 2018.

The offender was on parole at the time of the robbery, having been sentenced in 2017 for ongoing supply of prohibited drugs. His criminal history included prior offences, and he had a background of homelessness, drug dependency, and ADHD.

  • The appropriate head sentence and non-parole period for an offence of armed robbery in company under s 97(2) of the Crimes Act 1900
  • The relevance and weight of the joint criminal enterprise, including the respective roles of the offender and his co-accused
  • The application of relevant aggravating and mitigating factors, including breach of conditional liberty (parole), vulnerability of victims, drug dependency, homelessness, ADHD, guilty plea, remorse, and prospects of rehabilitation
  • Whether "special circumstances" existed justifying a departure from the standard ratio between non-parole period and head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • The applicability and weight of the guideline judgment for armed robbery

Decision

His Honour accepted the offender's evidence that Barrie had organised the robbery and supplied both weapons. That finding was consistent with the Agreed Statement of Facts and supported by evidence of Barrie's extensive criminal history, which included multiple other armed robberies of hotels using a black pistol and machete in the period surrounding this offence. The offender played a secondary but active role, wielding the machete in a threatening manner during the robbery itself.

The court identified several aggravating factors: the offence was committed in company, a dangerous weapon (the machete) was used, the victims were vulnerable, the offending occurred at night and in a workplace, and the offender was on parole at the time. His Honour noted, however, that the planning was unsophisticated and that drug dependency was a significant motivating factor, which reduced (though did not eliminate) the offender's moral culpability.

Mitigating factors carried meaningful weight. The guilty plea attracted a discrete discount. His Honour accepted that the offender had shown genuine remorse and had good prospects of rehabilitation. Homelessness and ADHD were also taken into account, as was the fact that Barrie had been the organising force behind the enterprise. The court found that special circumstances existed, justifying a longer-than-standard balance of sentence to allow for supervised release and continued rehabilitation.

His Honour noted that the guideline judgment in R v Henry provided a guidepost rather than a fixed rule, and concluded that the appropriate sentence in this case fell outside the parameters set by that guideline.

Orders Made

  • The offender was convicted of armed robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900
  • Sentenced to a total term of imprisonment of six years, comprising:
  • A non-parole period of four years, commencing 20 August 2018 and expiring 19 August 2022
  • A balance of sentence of two years, expiring 19 August 2024
  • A recommendation was made that the offender be admitted to the intensive drug and alcohol treatment program during his sentence

Key Takeaways

  • A conviction under s 97(2) of the Crimes Act 1900 for armed robbery in a joint criminal enterprise does not require the offender to have personally wielded the weapon particularised in the charge; participation in the enterprise suffices where a co-participant carried the relevant dangerous weapon.
  • Breach of conditional liberty (here, parole) is an aggravating factor in sentencing, though the District Court noted it does not necessarily alter the ultimate sentence in isolation from other considerations.
  • Where a co-accused organised the criminal enterprise, supplied the weapons, and directed the execution of the offence, that relative role is relevant to assessing the offender's moral culpability, even where the offender played an active part.
  • The guideline judgment in R v Henry [1999] NSWCCA 111 operates as a guidepost for armed robbery sentencing, not a fixed boundary; the District Court confirmed it may sentence outside the guideline parameters where the specific facts warrant it.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be established where factors such as drug dependency, homelessness, and rehabilitation prospects indicate a need for an extended period of supervised release beyond the standard ratio.

Legislation and Cases Referenced

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

Cases
- R v Henry [1999] NSWCCA 111
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Way [2004] NSWCCA 131