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District Court 6 November 2019

R v Henson

[2019] NSWDC 846

Assault & violenceTheft & propertyFirearms & weapons
SENTENCING ARMED ROBBERY ASSAULT WITH INTENT TO ROB WHILE ARMED POSSESS SHORTENED FIREARM SENTENCING RELEVANT FACTORS ON SENTENCING EARLY GUILTY PLEA

Citation: R v Henson [2019] NSWDC 846
Court: District Court of New South Wales
Date: 6 November 2019
Judge: Haesler SC DCJ

Background

The offender, a man born in 1991 with a prior criminal history, pleaded guilty to three serious offences arising from a single incident on 23 December 2018 in Dapto, NSW. On that evening, he entered a medical practice and then an adjoining pharmacy while armed with a shortened air rifle, wearing a disguise, and demanded money and methadone from the staff and cleaners present. He was apprehended shortly after fleeing the scene, when he was observed by nearby police dropping the firearm, helmet, clothing and some of the stolen cash.

The offender later admitted in a recorded interview that he had committed the offences to pay off a drug debt of $1,000 for methylamphetamine, and that he had shortened the air rifle on the day of the robbery specifically for use in the crimes. He acknowledged that another person was involved, that the firearms barrel and stock had been cut down, and that he loaded the weapon before entering the pharmacy. Victim impact statements from two of the victims described the lasting psychological harm caused by the offending.

The matter came before the District Court for sentencing following the offender's guilty pleas entered in the Local Court. The court considered the applicable guideline judgment for armed robbery, the offender's personal circumstances, his drug dependency, his early plea, and the need to balance rehabilitation against the purposes of punishment.

  • What aggregate sentence appropriately reflects the objective seriousness of three related but distinct offences arising from a single criminal episode?
  • How should the court apply the totality principle (that an aggregate sentence must not be disproportionately crushing) across multiple serious counts?
  • What weight, if any, should be given to the offender's drug debt and directions from others as a mitigating factor, particularly whether those circumstances could constitute duress?
  • How should the early guilty plea, expressions of remorse, and prospects of rehabilitation be balanced against the significant need for general and specific deterrence and community protection?
  • Whether special circumstances existed warranting a departure from the standard non-parole period ratio, so that a longer parole period could support supervised reintegration.

Decision

Haesler SC DCJ characterised the offending as seriously planned and executed across multiple victims in community settings. The judge noted that the victims had no reason to know the weapon was an air rifle, that it was loaded before the robbery, and that it had been deliberately shortened for use in this very episode. The use of the weapon against multiple people in places that ordinary citizens rely upon, such as chemists and medical practices, compounded the seriousness of the offending and its potential for broader community harm.

The court rejected any suggestion that the drug debt owed by the offender, or the instructions he said he received from those to whom he owed it, could amount to duress as a legal defence or a significant mitigating circumstance. Drug debts of that nature do not, as a matter of principle, meet the threshold required for a duress argument. The judge acknowledged the offender's drug addiction as relevant background context but drew a firm distinction between addiction as an explanation and as an excuse.

In the offender's favour, the court gave credit for his early guilty pleas, noting the utilitarian value of those pleas under the applicable sentencing principles. Some weight was also attributed to his expressions of remorse toward the victims, his family support, his two young children, and his stated intent to address his drug dependency. However, the court was clear that general deterrence carried substantial weight, given the seriousness of armed robbery offences and the guideline judgment issued by the NSW Court of Criminal Appeal in Henry v R (1999).

The court found special circumstances warranting a longer parole period than the standard ratio would ordinarily produce. The judge reasoned that, after a significant period in custody, the offender would require intensive supervision and support upon release to address the underlying drug dependency and to reduce the risk of reoffending. An extended parole period was considered the appropriate mechanism to provide that structured transition.

Orders Made

  • Convicted on each count.
  • Assault with intent to rob while armed (s 97(2) Crimes Act 1900): 3 years and 9 months.
  • Armed robbery while armed with a dangerous weapon (s 97(2) Crimes Act 1900): 4 years and 6 months.
  • Possess shortened firearm (s 62(1)(b) Firearms Act 1996): 2 years and 3 months.
  • Aggregate sentence of 6 years and 2 months, commencing 23 December 2018.
  • Non-parole period of 3 years and 11 months; eligible for parole on 22 November 2022.
  • Parole period of 2 years and 3 months; sentence to expire 22 February 2025.
  • Firearms destruction order made.

Key Takeaways

  • A drug debt, and instructions received from those to whom a drug debt is owed, do not constitute duress and carry little mitigating weight in sentencing for armed robbery in NSW.
  • The District Court applied the guideline judgment in Henry v R (1999) 46 NSWLR 346, confirming that custodial sentences are the near-inevitable consequence of armed robbery offences of this kind, and that consistency in sentencing is a significant consideration.
  • Where multiple serious offences arise from a single criminal episode, the totality principle requires the sentencing court to ensure the aggregate sentence is proportionate and not crushing overall, as confirmed in Pearce v R (1998) 194 CLR 610 and Mill v R (1988) 166 CLR 59.
  • Special circumstances may be found, justifying a longer parole period, where an offender with a significant drug dependency will require extended supervised reintegration after a lengthy custodial term.
  • Shortening a firearm specifically for use in a robbery, loading it before entering a premises, and deploying it against multiple victims in a public community setting are all factors that elevate the objective seriousness of firearms and robbery offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Firearms Act 1996 (NSW), s 62(1)(b)

Cases
- Henry v R (1999) 46 NSWLR 346 (NSW Court of Criminal Appeal guideline judgment on armed robbery)
- Pearce v R (1998) 194 CLR 610 (totality principle, multiple offences)
- Mill v R (1988) 166 CLR 59 (sentencing for multiple offences)
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 (disadvantage and background on sentencing)
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Giang v R [2017] NSWCCA 25
- R v Z [2005] 2 AC 467
- Tiknius v R (2011) 221 A Crim R 365