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District Court 18 December 2019

R v Barnes

[2019] NSWDC 939

Assault & violenceTheft & property
CRIME SENTENCE ROBBERY IN COMPANY

Citation: R v Barnes [2019] NSWDC 939
Court: District Court of New South Wales
Date: 18 December 2019
Judge: Bourke SC DCJ

Background

The offender, a 23-year-old man, appeared for sentencing on a charge of robbery in company following an early guilty plea. The offence occurred on 26 July 2017, when the offender and two co-offenders followed the victim into the secure underground car park of his residential complex after slipping through the security gates behind his vehicle.

Once the victim parked and got out of his car, the co-offenders subjected him to a violent physical assault, punching him near the eye, kicking him, and throwing him against a concrete wall. While the offender did not personally strike the victim, he and one co-offender surrounded the victim to prevent escape. The victim was then robbed of his wallet, iPhone, and car keys. All three men drove off in the stolen vehicle; the offender occupied the front passenger seat.

The offender was also asked the court to take into account, on a Form 1 document, a secondary offence of taking and driving a stolen conveyance. Police later matched the offender's fingerprints and DNA to the victim's car, and he was charged in January 2019, roughly 18 months after the offence.

  • What sentence was appropriate for robbery in company, having regard to the guideline judgment in R v Henry and the particular circumstances of the offence?
  • How should the objective seriousness of the offence be assessed, including aggravating factors such as the location of the robbery and the offender's conditional liberty at the time?
  • What weight should be given to the offender's subjective circumstances, including his troubled background and psychological condition?
  • Whether the sentence should be structured so as not to extend beyond the offender's existing non-parole period, in accordance with the totality principle from Mill v R.

Decision

Bourke SC DCJ found the robbery to be a very serious example of its kind, notwithstanding that the offender did not personally deliver any blows. Under established law, an offender who participates in surrounding a victim to prevent escape is equally responsible for the violence inflicted by co-offenders. The judge accepted the defence concession on this point as appropriate.

Applying the guideline in R v Henry (1999) 46 NSWLR 346, which concerned armed robbery but has been applied by analogy to robbery in company, the court noted that many of the common factors identified in that case were present: limited planning, a relatively small amount taken, and an early guilty plea. However, aggravating factors weighed heavily: there was significant actual violence, the offence was committed at the victim's home (including the secure garage), and the offender was on conditional liberty pursuant to a suspended sentence imposed only three weeks earlier at Parramatta Drug Court.

The offender's subjective circumstances, including his placement in State care as an infant, limited knowledge of his parents, history of drug use, and psychological vulnerabilities, were considered and accepted as mitigating factors under the principles in Bugmy v R [2013] HCA 37. These factors informed the judge's finding of special circumstances, justifying an extended parole period to support the offender's rehabilitation and transition into the community.

The defence submitted that the sentence should not extend the offender's existing non-parole period, consistent with the totality principle from Mill v R (1988) 166 CLR 59. The court declined to adopt that course, concluding it would fail to reflect the seriousness of the offence, the need for specific and general deterrence, and the minimum period the offender must serve to satisfy the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Head sentence of five years imprisonment, commencing 11 September 2019 and expiring 10 September 2024.
  • Non-parole period of three years, expiring 10 September 2022, reflecting special circumstances.
  • A 25% discount applied to the sentence for the early guilty plea.
  • The Form 1 offence of taking and driving a stolen conveyance taken into account.

Key Takeaways

  • Robbery in company is treated as a crime against the person, not merely against property, and a fulltime custodial sentence is ordinarily required absent unusual or exceptional circumstances.
  • Active participation in surrounding a victim to prevent escape renders an offender legally responsible for violence inflicted by co-offenders, even where that offender delivers no blows personally.
  • The R v Henry guideline, while directed at armed robbery, continues to be applied by analogy to robbery in company offences in New South Wales, with head sentences commonly falling between four and five years for offences sharing the guideline's identified common features.
  • Committing an offence while subject to conditional liberty (such as a suspended sentence) constitutes an aggravating factor that can increase the sentence beyond what the totality principle might otherwise suggest.
  • Special circumstances justifying an extended parole period may be found where the offender has significant rehabilitation needs, including psychological vulnerabilities and a history of substance abuse requiring ongoing monitoring after release.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery, applied by analogy to robbery in company)
- Bugmy v R [2013] HCA 37 (subjective circumstances and disadvantaged background in sentencing)
- Mill v R (1988) 166 CLR 59 (totality principle for offenders already subject to existing sentences)