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District Court 6 December 2019

R v Ilic

[2019] NSWDC 885

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE ARMED ROBBERY. SENTENCE RELEVANT FACTORS ON SENTENCE IMPACT OF ARMED ROBBERY OFFENCES VULNERABLE VICTIM DESPERATE CRIME BY DESPERATE OFFENDER

Citation: R v Ilic [2019] NSWDC 885
Court: District Court of New South Wales
Date: 6 December 2019
Judge: Haesler DC DCJ

Background

The offender was sentenced for an armed robbery committed on 20 February 2018 at a service station in Warilla, NSW. He entered the premises carrying a 47-centimetre timber stake, approached a 69-year-old attendant, and demanded she open the till. When she resisted, a confrontation ensued during which the offender wrestled her own stick from her, struck the computer screen, and eventually fled. He took only her cigarettes and some chocolate bars. No physical injury was inflicted, though the attendant was plainly put in fear.

The offender was itinerant and drug-dependent at the time, living with a partner in similar circumstances and struggling to care for a young child. He was identified through a DNA match and CCTV footage, and arrested in May 2019 while already in custody for separate matters from the Goulburn Local Court. He pleaded guilty, wrote a letter expressing remorse, and engaged with a psychologist.

The sentencing proceedings in the District Court followed immediately after Haesler DCJ dismissed the offender's appeal against his earlier Goulburn sentence, making the structure and commencement date of the present sentence the principal structural question.

  • What sentence was appropriate for armed robbery of a vulnerable victim, having regard to the guideline in R v Henry (1999) 46 NSWLR 346?
  • How should the sentence be structured and when should it commence, given the offender was already serving a non-parole period for the Goulburn matters?
  • What weight should be given to the early guilty plea, remorse, the offender's background, and the modest value of property taken?
  • Was there a basis for finding special circumstances to increase the proportion of the sentence spent on parole?
  • How should the principles of general deterrence, specific deterrence, retribution, and rehabilitation be balanced?

Decision

Haesler DCJ accepted that the Henry guideline applied as a relevant benchmark but emphasised it is a guideline, not a mandatory formula, citing Legge v R [2007] NSWCCA 244. His Honour found there were grounds for moderation of that guideline given the offender's background, including the early loss of his mother, disrupted adolescence, absence of prior significant criminal history before this desperate series of offences, and use of illicit substances as a maladaptive response to unresolved grief.

The court acknowledged the gravity inherent in any armed robbery of a vulnerable victim. The attendant's age of 69, her isolation at the time, and her active resistance all featured in the assessment of the offending's seriousness. The absence of a Victim Impact Statement was not treated as reducing the weight of harm caused, either to the individual or the broader community.

On structure, the court declined to backdate the sentence to the date of arrest. Instead, it commenced the sentence on 14 November 2019, allowing a period of custody attributable solely to the Goulburn matter. Applying the principle of totality, the court structured the sentence to partially accumulate with, rather than simply stack upon, the earlier Local Court sentence. A significant finding of special circumstances was made, extending the parole period beyond the statutory default, reflecting both the rehabilitation needs of the offender and the partially cumulative nature of the sentence.

The court expressed frank scepticism about the practical utility of general deterrence for offenders in the offender's circumstances, noting that the inevitability of detection and widely reported sentencing remarks had not prevented the crime. Nevertheless, general deterrence, specific deterrence, and retribution were all weighed in reaching the sentence, with the court noting that the victim's dignity required vindication through appropriate punishment.

Orders Made

  • The offender was convicted of armed robbery.
  • The notional head sentence, absent the guilty plea, was assessed at four years.
  • A sentence of three years was imposed, commencing 14 November 2019.
  • Non-parole period: one year and six months, with the offender to be released to parole on 13 May 2021.
  • Balance of sentence (one year and six months) to run from 13 May 2021, expiring 13 November 2022.

Key Takeaways

  • The District Court confirmed that R v Henry (1999) provides guidance, not a fixed formula, in armed robbery sentencing. Moderation of the guideline is available where the offender's background, lack of prior criminal history, and personal circumstances provide sufficient reason.

  • A vulnerable victim, defined here by age, isolation, and the nature of the workplace, operates as an aggravating feature even where no physical injury results and only a trivial amount of property is taken.

  • Totality requires a sentencing court to consider all sentences an offender is serving when structuring a new sentence, including by partially accumulating rather than simply adding the new term.

  • Special circumstances findings are not confined to rehabilitation needs alone. The District Court here grounded the finding in both the offender's rehabilitation prospects and the structural consequence of partial accumulation with an existing sentence.

  • Haesler DCJ observed explicitly that the absence of Drug Court programs in the Illawarra region was a significant gap, noting this case was one where compulsory drug treatment could have best addressed the risk of reoffending and the offender's path back into the community.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- Legge v R [2007] NSWCCA 244 (guideline not a tramline)

Legislation: No specific legislative provisions were cited by name in the text provided.