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District Court 19 June 2020

R v Achurch

[2020] NSWDC 312

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE ROBBERY ARMED WITH A DANGEROUS WEAPON

Citation: R v Achurch [2020] NSWDC 312
Court: District Court of New South Wales
Date: 19 June 2020
Judge: Colefax SC DCJ

Background

The offender, a 28-year-old man, was sentenced for offences arising from a violent armed robbery on 29 January 2019 in Bradbury, NSW. At the time of the offending, he was serving an aggregate term of imprisonment by way of an intensive correction order and was also subject to a section 9 bond. He was therefore on conditional liberty when the offences occurred.

The offender drove a vehicle with two co-offenders as passengers, pursuing another car carrying three occupants. The three men had agreed to use the offender's vehicle as an offensive weapon to force the other car to stop, intending to rob its occupants at gunpoint. Over a prolonged and dangerous pursuit, the offender repeatedly blocked and rammed the victims' vehicle before the group ultimately cornered it and carried out the robbery.

During the robbery, one co-offender held a shortened .22 calibre rifle out of the car window, and another co-offender subsequently pointed it at a victim through a car window and fired, narrowly missing the target. The bullet struck the bonnet of the victims' vehicle. All three offenders were arrested shortly afterwards at separate locations.

  • The appropriate sentence for robbery armed with a dangerous weapon, contrary to section 97(2) of the Crimes Act 1900 (NSW), carrying a maximum of 25 years imprisonment
  • The appropriate sentence for firing a firearm in a manner likely to injure persons, contrary to section 93G(1)(c) of the Crimes Act 1900 (NSW), carrying a maximum of 10 years imprisonment
  • The weight to be given to Form 1 matters (assault with intent to rob, armed with a dangerous weapon; and use of an offensive weapon with intent to commit an indictable offence, in company)
  • The relevance of joint criminal enterprise to the offender's criminal responsibility and culpability
  • The application of a 25 per cent guilty plea discount
  • The appropriate aggregate sentence and non-parole period, having regard to the offender's personal circumstances, criminal history, and prospects of rehabilitation

Decision

Colefax SC DCJ found that both principal offences fell within the mid-range of objective seriousness for their respective categories. Each offence was additionally aggravated by the fact that the offender was on conditional liberty at the time. All three co-offenders were found to be equally criminally culpable for both principal offences by virtue of their joint criminal enterprise.

The Form 1 matter of assault with intent to rob (taken into account alongside the armed robbery count) warranted only a modest sentencing increase, given its close factual connection to the principal offence. The Form 1 matter of using a vehicle as an offensive weapon during the pursuit (taken into account alongside the firearm discharge count) warranted a more meaningful increase, reflecting the distinct and dangerous nature of that conduct.

The offender did not give evidence in the sentencing proceedings and made no direct expression of remorse. His secondhand expression of remorse, recorded in a psychologist's report, was viewed with scepticism. His criminal history, though not an additional aggravating factor, precluded any leniency applicable to first offenders. His mother's ongoing support was noted as a positive factor, though his prospects for rehabilitation were characterised as guarded.

The offender received a 25 per cent discount for his guilty plea entered at the first available opportunity. His indicative sentence for the armed robbery (including the Form 1 matter) was reduced from 8 years to 6 years, and his indicative sentence for the firearm offence (including its Form 1 matter) was reduced from 7 years to 5 years 3 months. An aggregate sentence of 8 years was imposed.

Orders Made

  • Aggregate term of imprisonment of 8 years, commencing 29 January 2019 (the date of arrest, fixed as a deliberate act of leniency)
  • Non-parole period of 6 years, expiring 28 January 2025
  • Balance of term of 2 years, expiring 28 January 2027

Key Takeaways

  • Conditional liberty at the time of offending (here, an intensive correction order and a section 9 bond) operates as an additional aggravating factor in sentencing.
  • Under the joint criminal enterprise doctrine, all participants in a planned armed robbery can be held equally criminally responsible for offences committed in furtherance of that enterprise, including the discharge of a firearm, where the use of that firearm was contemplated as a possibility.
  • A 25 per cent sentencing discount applied where the offender entered a guilty plea at the first available opportunity, consistent with established NSW sentencing practice.
  • Form 1 matters are not sentenced separately but do increase the sentence for the principal offence to which they are attached. The extent of that increase depends on the nature and connection of the Form 1 matter to the principal offence.
  • Secondhand expressions of remorse, recorded only in a psychologist's report and not given directly in evidence, may be afforded limited weight by a sentencing court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 93G(1)(c)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- Bugmy v The Queen (2013) 249 CLR 571