Citation: R v Gordon; R v Smith [2020] NSWDC 355
Court: District Court of New South Wales
Date: 22 April 2020
Judge: Payne DCJ
Background
Two offenders, Gordon (born 1996) and Smith (born 1997), pleaded guilty to armed robbery under s 97(1) of the Crimes Act 1900 following a coordinated hold-up at a Tamworth hotel on 1 October 2018. Both men entered the hotel wearing disguises and carrying large knives, demanded cash from staff at four tills, and made off with $3,420. As they fled, they smashed a glass sliding door, causing $580 in damage.
Gordon was linked to the offence through DNA recovered from discarded items near the escape route. Smith was identified after voluntarily admitting his involvement to police at a Newcastle police station on an unrelated matter, subsequently participating in a recorded interview in which he identified himself from CCTV stills. The agreed facts noted that without Smith's full and frank admissions, it was unlikely he would have been charged.
Both offenders also asked the court to take into account, on a Form 1, a charge of destroying or damaging property under s 195(1)(a) of the Crimes Act 1900, relating to the smashed glass door.
Legal Issues
- What was the appropriate objective seriousness of the armed robbery, by reference to the guideline judgment in R v Henry?
- What weight should be given to each offender's plea of guilty, given differing strengths of the Crown case against each?
- How should parity between co-offenders be applied, given their different criminal histories, subjective circumstances, and roles in the offending?
- Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to total sentence.
Decision
Payne DCJ assessed the offending as falling at the bottom of the middle range of objective seriousness. The R v Henry guideline (as clarified by R v Thomson and Houlton) provided the sentencing framework: a starting point of four to five years for a late plea, with several features present here, including the use of knives capable of inflicting serious injury, limited planning, a real threat of violence, and a modest amount taken. The victims were two women in the course of their employment, which the court accepted placed them in a vulnerable position.
On guilty pleas, both offenders received a 25% utilitarian discount. However, the court recognised a distinction between the two men: the Crown case against Gordon was circumstantial (based on mixed DNA profiles and the location of discarded items), whereas Smith effectively secured his own prosecution through his spontaneous admissions and co-operation in the recorded interview. This difference was reflected in the sentences imposed.
The court applied parity principles in calibrating the disparity between the two sentences. Gordon received a heavier sentence, reflecting his more serious criminal history and the fact that he was on conditional liberty at the time of the offending, having been released from custody only four days before the robbery. Smith's frank co-operation with police and his distinct subjective circumstances, including housing instability and substance use on the night, were weighed in his favour.
Special circumstances were found in both cases, justifying an extended parole period relative to the non-parole period. The court noted the significance of supervision and support on release for both men, given the material before it concerning their personal backgrounds.
Orders Made
Gordon:
- Convicted of armed robbery (s 97(1), Crimes Act 1900); Form 1 property damage offence taken into account
- Pre-discount sentence: 4 years 9 months; reduced by 25% to 3 years 6 months
- Non-parole period: 1 year 8 months, commencing 10 May 2019, expiring 9 January 2021
- Total term: 3 years 6 months, commencing 10 May 2019, expiring 9 November 2022
- Total effective period: 3 years 10 months; eligible for parole on 9 January 2021
Smith:
- Convicted of armed robbery (s 97(1), Crimes Act 1900); Form 1 property damage offence taken into account
- Pre-discount sentence: 3 years 3 months; reduced by 25% to 2 years 5 months
- Non-parole period: 1 year 3 months, commencing 8 May 2019, expiring 7 August 2020
- Total term: 2 years 5 months, commencing 8 May 2019, expiring 7 October 2021
Key Takeaways
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The District Court placed this armed robbery at the bottom of the middle range of objective seriousness, applying the R v Henry guideline framework as clarified by R v Thomson and Houlton, with reference to the type of weapon used, the degree of planning, and the vulnerability of the victims.
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A 25% utilitarian discount for guilty pleas was applied to both offenders, but the value of each plea was assessed differently: Gordon's plea carried greater weight because the Crown case against him was circumstantial, while Smith's plea was of more limited utilitarian value given his spontaneous admissions had effectively secured the prosecution.
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Breach of conditional liberty operated as a significant aggravating factor for Gordon, who had been released from custody only four days before the robbery.
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Parity between co-offenders does not require identical sentences. The court imposed meaningfully different sentences to reflect the distinct criminal histories, subjective circumstances, and roles of each offender.
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Special circumstances were found for both men, resulting in a lower non-parole period relative to the total term than the statutory default, to allow for a longer period of supervised parole on release.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Thomson and Houlton (2000) 49 NSWLR 383 (clarifying the Henry guideline in the context of early pleas)
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (relevance of disadvantaged background to sentencing)