Citation: R v McLaws [2019] NSWDC 933
Court: District Court of New South Wales
Date: 5 July 2019
Judge: Norrish QC DCJ
Background
The offender, an Aboriginal man aged 18 at the time of the offence, pleaded guilty to robbery in company contrary to s 97(1) of the Crimes Act 1900. The offence arose from an early-morning armed robbery at a 7-Eleven store in Glebe on 17 October 2017, committed alongside three co-offenders aged 16 and 17. The victim, a store employee, was confronted by co-offenders armed with a golf club, a hammer, and a machete, and was robbed of cash, cigarettes, and a backpack containing a MacBook computer and personal items.
The offender's role was that of a lookout (described in the proceedings as a "cockatoo"), standing outside the store and visible on CCTV footage. A related offence of being carried in a conveyance taken without the owner's consent was placed on a Form 1 to be taken into account at sentence. The co-offenders, who had each pleaded guilty to more serious charges including five counts of armed robbery, were to be sentenced separately.
The original committal had been for more serious charges. The Crown ultimately proceeded on a single count of robbery in company, reflecting the offender's lesser role in the joint criminal enterprise.
Legal Issues
- What objective seriousness should be attributed to the offence, given the offender's lesser role compared to his co-offenders?
- What discount was available for the utilitarian benefit of the plea of guilty, in circumstances where the indictment had been amended and the plea entered late?
- What weight should be given to the offender's background, including his Aboriginality, dysfunctional upbringing, history of substance abuse, lack of maturity, and absence of adult convictions?
- Whether "special circumstances" existed justifying a longer than standard parole period.
- How to treat time spent in a drug rehabilitation facility (Orana Haven) as quasi-custody for the purposes of backdating the sentence.
Decision
Norrish QC DCJ accepted that the offender played a clearly subordinate role in a joint criminal enterprise led by his co-offenders. The co-offenders had armed themselves, planned the robbery, and confronted the victim directly. The offender acted as a lookout and there was no evidence he personally benefited from the robbery or that the victim's vehicle was damaged. His Honour declined to differentiate between the offender and his co-offenders on age grounds, noting that despite being the oldest participant, the co-offenders were clearly capable of committing the offences independently.
The plea of guilty was entered on the day of trial following a series of adjournments and amendments to the indictment. His Honour awarded a discount of 20% for the utilitarian benefit of the plea, reflecting the relatively late timing. The otherwise appropriate sentence before discount was assessed at three years' imprisonment, reduced to two years and five months after rounding down.
Applying the principles in Bugmy v R [2013] HCA 37, His Honour gave weight to the offender's Aboriginality and the profound disadvantage of his upbringing, including exposure to alcohol and substance abuse and a dysfunctional family environment. The offender had no adult convictions, though he had findings of guilt in the Children's Court for similar offending. His Honour also noted the offence was committed while on bail, which was an aggravating factor.
His Honour found special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999, noting this was the offender's first term of full-time custody, his comparative youth, and his need for an extended period of supervision, drug and alcohol counselling, and mentoring. A period of one year and five months was set as the parole period, producing a non-parole period of 12 months. Credit of 354 days was granted for pre-sentence custody, which included 22 days (50%) for time at Orana Haven drug rehabilitation, backdating the commencement of the sentence accordingly.
Orders Made
- The offender was convicted of robbery in company (s 97(1), Crimes Act 1900), with the Form 1 offence (being carried in a conveyance taken without consent) taken into account.
- Total sentence: 2 years and 5 months imprisonment, commencing 16 July 2018, expiring 15 December 2020.
- Non-parole period: 12 months, expiring 15 July 2019 (making the offender eligible for parole on 15 July 2019).
- Balance of sentence: 1 year and 5 months, expiring 15 December 2020.
Key Takeaways
- The District Court applied Bugmy v R to give meaningful weight to the offender's Aboriginality and the cumulative disadvantage of his upbringing when assessing moral culpability, even where the offending itself was objectively serious.
- A lookout role in a joint criminal enterprise may attract a meaningfully lower sentence than that imposed on co-offenders who armed themselves, planned the offending, and directly confronted the victim.
- Special circumstances were established where the offender was serving his first term of full-time custody, was comparatively young, and had a demonstrated capacity to engage with drug and alcohol support and mentoring programmes.
- A 20% discount for the utilitarian value of a guilty plea was available even where the plea was entered on the day of trial, following amendments to the indictment that reduced the charges.
- Time spent in a drug rehabilitation facility prior to sentencing may be treated as quasi-custody, with the court here allowing credit at 50% of the days spent at the facility.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 154A(1)(b), 166
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Attorney General's Application No 1 (2002) 56 NSWLR 147
- Bugmy v R [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Helmsley v R [2004] NSWCCA 228
- Kentwell v R (No 2) [2015] NSWCCA 96
- KR v R [2012] NSWCCA 32
- R v BP [2010] NSWCCA 159
- R v Engert (1995) 84 A Crim R 67
- R v Henry [1999] NSWCCA 111
- Thompson and Houlton v R [2000] NSWCCA 309