Citation: R v Inu [2019] NSWDC 783
Court: District Court of New South Wales
Date: 6 December 2019
Judge: Colefax SC DCJ
Background
The offender, a 20-year-old Samoan-born man, appeared for sentence on two counts of robbery in company under s 97(1) of the Crimes Act 1900 (NSW). Both offences occurred in December 2018, within two days of each other, and both were committed while the offender was on bail for five other matters.
The first offence involved a group following a man who had won money at a hotel poker machine, punching him and stealing his wallet in an isolated area. The second involved a group following a man and his 13-year-old son home from an English class, grabbing the father around the throat, pushing him over a wall, holding him down, and robbing him of his wallet and backpack. During the second offence, one group member held a sharp object against the victim's stomach, though no penetration occurred.
The offender was arrested the day after the second offence and remained in custody from 18 December 2018. He pleaded guilty at an early opportunity.
Legal Issues
- What objective seriousness attached to each offence of robbery in company, assessed against the guideline judgment in R v Henry?
- What weight should be given to the offender's youth, limited criminal history, and subjective circumstances in mitigation?
- Whether a finding of special circumstances was warranted to adjust the standard ratio between the non-parole period and the balance of the sentence?
- What discount applied for early guilty pleas, and how should the aggregate sentence be structured?
Decision
His Honour assessed both robberies as falling roughly equidistant between the bottom and middle of the range for offences of their kind. Both were aggravated by the fact the offender was on conditional liberty at the time. The second offence carried the further aggravating feature of being committed in the presence of a child. The court applied the guideline judgment in R v Henry (1999) 46 NSWLR 346, which remains the governing authority for robbery in company sentences and expressly accounts for youthful offenders.
On subjective matters, the court treated the offender effectively as a first offender, noting that all prior matters had been resolved by conditional release orders. His Honour acknowledged the offender's age of 19 at the time of the offences, his use of illicit substances since age 13, and his reasonable prospects of rehabilitation, supported by family. The court noted the absence of direct testimony of remorse in the witness box, though expressed regret was noted in the sentencing assessment report. Considerations of both general and specific deterrence were held to be fully engaged.
A 25% discount was applied for the early guilty pleas. The court then imposed an aggregate sentence, noting indicative terms of 2 years and 7 months for the first offence and 3 years and 4 months for the second. A finding of special circumstances was made on account of the offender's age and his first period of full-time custody, justifying a departure from the standard non-parole ratio.
Orders Made
- Aggregate term of imprisonment of 4 years and 6 months, commencing 18 December 2018
- Non-parole period of 2 years and 3 months, expiring 17 March 2021
- Balance of sentence of 2 years and 3 months, commencing 18 March 2021 and expiring 17 June 2023
Key Takeaways
- The District Court confirmed that both offences fell below the midpoint in objective seriousness for robbery in company, despite the presence of physical violence and the use of a sharp object in the second offence.
- Being on conditional liberty at the time of offending operated as an aggravating factor for both counts, and the presence of a child during the second offence added further aggravation.
- A 25% sentencing discount applied where the offender entered guilty pleas at an early opportunity.
- Special circumstances justifying a lengthened parole period were established by reference to the offender's age and the fact that this was his first custodial sentence, consistent with the courts' recognised approach to young adult offenders.
- Under R v Henry, youth is a factor already built into the guideline, yet courts retain discretion to extend considerable leniency to offenders who were barely adults at the time of offending and who demonstrate reasonable rehabilitation prospects.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company; maximum penalty 20 years' imprisonment)
Cases:
- R v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment for robbery in company)