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District Court 13 August 2019

R v RYAN

[2019] NSWDC 650

Assault & violenceTheft & property
CRIMINAL SENTENCING ROBBERY RETAIL OUTLETS MENTAL HEALTH ISSUES TOTALITY

Citation: R v Ryan [2019] NSWDC 650
Court: District Court of New South Wales
Date: 13 August 2019
Judge: Bright DCJ

Background

The offender, a 27-year-old man with a prior history of serious offending, appeared for sentencing on two counts of robbery under s 94(a) of the Crimes Act 1900. Both offences occurred within approximately 25 minutes of each other on 23 November 2018 at Lake Haven Shopping Centre on the NSW Central Coast.

In the first robbery, the offender entered a jewellery store, threatened a sales assistant by claiming to have a knife, and took cash of approximately $64 and jewellery valued at approximately $4,130. In the second, he entered a bottle shop and again threatened a staff member with an alleged knife, taking $645 in cash. No knife was ever found. The offender was arrested nearby shortly after the second robbery, still in possession of the stolen property.

At the time of the offences, the offender was on parole from an earlier sentence. His parole was subsequently revoked, in part because of this offending.

  • What was the objective seriousness of each robbery offence?
  • What weight should be given to the offender's subjective circumstances, including mental health issues and time spent in custody?
  • Whether a 25% discount for guilty plea was appropriate given the timing of the plea.
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the parole period.
  • How the totality principle applied when imposing an aggregate sentence, particularly given the offender was also serving a parole breach term.

Decision

Bright DCJ assessed each offence as falling in the middle of the range of objective seriousness. Relevant factors included the value of property taken, the threats made while claiming to be armed (even though no knife existed), the retail context, and what the court characterised as limited planning. Being on parole at the time of the offences was treated as an aggravating factor, though the threatened use of a weapon was not double-counted as a separate aggravating factor, having already been considered in the objective seriousness assessment.

The offender's criminal history, which included prior armed robbery convictions resulting in an eight-year sentence, was treated as disentitling him to leniency and as making specific deterrence a particularly significant sentencing consideration. The court noted the absence of victim impact statements but accepted that both retail employees would have experienced genuine fear and emotional trauma.

The court accepted mental health material tendered on behalf of the offender, noting it was relevant to both moral culpability and the need for supervision and rehabilitation on release. These factors, combined with the offender's limited time outside custody since 2012 (approximately 20 months in total) and the risk of institutionalisation, led the court to find special circumstances justifying an extended parole period relative to the non-parole period.

An aggregate sentence was imposed under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999. The indicative sentence for each offence was four years, discounted by 25% for the guilty plea to three years each. Applying the totality principle and backdating the commencement date to 23 May 2019 (six months after the offender entered custody), the court imposed an aggregate term of four years with a two-year non-parole period.

Orders Made

  • The offender was convicted of two offences of robbery under s 94(a) of the Crimes Act 1900.
  • An aggregate sentence of four years' imprisonment was imposed, commencing 23 May 2019 and expiring 22 May 2023.
  • A non-parole period of two years was fixed, commencing 23 May 2019 and expiring 22 May 2021.
  • Special circumstances were found, resulting in a two-year parole period following the two-year non-parole period.

Key Takeaways

  • Robberies committed at retail outlets, even where no weapon is actually present, may still be assessed at the mid-range of objective seriousness where threats of violence are made and property is taken from vulnerable employees in the course of their work.
  • A 25% guilty plea discount was applied based on the timing of the plea at the Local Court committal stage, consistent with the approach in Cahyadi v R [2007] NSWCCA 1.
  • Where an offender is already serving a parole breach term partly attributable to the current offending, backdating the commencement of the new sentence is a relevant tool in achieving an appropriate total sentence.
  • Special circumstances warranting a variation of the statutory non-parole to parole ratio can be established where an offender has significant mental health needs, requires structured rehabilitation on release, and faces a risk of institutionalisation due to an extended history of custody.
  • The District Court treated prior robbery convictions as a significant factor in assessing the weight to be given to specific deterrence, with those antecedents also disentitling the offender to any sentencing leniency.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94(a) (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 3AA, 5(1), 53A(1), 53A(2)(b)

Cases:
- Cahyadi v R [2007] NSWCCA 1 (guilty plea discounts)