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District Court 11 May 2020

R v London

[2020] NSWDC 404

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v London [2020] NSWDC 404
Court: District Court of New South Wales
Date: 11 May 2020
Judge: Buscombe DCJ

Background

The offender was sentenced following a judge-alone trial on two counts of armed robbery under s 97(2) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 25 years imprisonment. The charges arose from two separate incidents at service stations on Elizabeth Drive, Kemps Creek, on consecutive days in May 2018. No standard non-parole period applied to either offence.

In the first incident, the offender entered a BP service station at approximately 4:26 am, threatened the lone attendant with what appeared to be a silver handgun, and took approximately $670 from the till before leaving within about 30 seconds. The following morning, he entered a nearby United service station, pointed the handgun at the attendant, and demanded money. The attendant said he could not open the till, and the offender left without taking anything. In both instances, the offender wore a black hoodie, face covering, and gloves. The court found the handgun was an imitation firearm, not an actual firearm.

The sole issue at trial was identification: whether the court was satisfied beyond reasonable doubt that the offender committed both offences. At the sentencing stage, the factual circumstances of the offences were not in dispute.

  • What was the objective seriousness of each offence, including whether any statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied?
  • What weight should be given to the offender's youth, personal circumstances, and rehabilitation prospects when sentencing a young adult offender?
  • How should prior criminal history, including offending while on conditional liberty, bear on the sentence?
  • What aggregate sentence and non-parole period was appropriate?

Decision

Objective seriousness. Buscombe DCJ assessed both offences as slightly below the midrange of objective seriousness. The offender had engaged in a degree of planning, evidenced by the disguise, gloves, and imitation firearm, but this did not rise to the level of an aggravating factor under s 21A. The pointing of the handgun was fleeting and unaccompanied by verbal threats, so the aggravating factor of actual threatened weapon use was not established beyond reasonable doubt. Both service station attendants were, however, found to be vulnerable victims within the meaning of s 21A, being persons working alone in the early hours of the morning.

Subjective case. The offender was 19 years and four months old at the time of the offences and 21 at sentencing. His Honour applied the principles from Bullock v R and BP v R, recognising that rehabilitation and treatment ordinarily warrant greater emphasis than general deterrence, denunciation, or retribution when sentencing young adult offenders. The court accepted significant mitigating circumstances: a turbulent childhood marked by early loss, a diagnosis of ADHD, a period of homelessness during which he experienced assault and sexual abuse, family trauma including a sister being shot and another being raped, and his mother's cancer diagnosis.

Criminal history and conditional liberty. The offender's prior record, including juvenile robbery offences and adult break-and-enter offences dealt with in the Drug Court, disentitled him to leniency. Importantly, both offences were committed while he was subject to a suspended sentence, which constituted a statutory aggravating factor as offending on conditional liberty under s 21A.

Aggregate sentence. Applying the aggregate sentencing provisions, his Honour recorded indicative sentences of four years and four months for each count. Taking into account all objective and subjective factors, including the principle of totality, an aggregate sentence of six years with a non-parole period of three years and six months was imposed, commencing 7 February 2019.

Orders Made

  • Count 1 (armed robbery, 23 May 2018): indicative sentence of 4 years and 4 months imprisonment.
  • Count 2 (attempted armed robbery, 24 May 2018): indicative sentence of 4 years and 4 months imprisonment.
  • Aggregate sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months, commencing 7 February 2019, expiring 6 February 2025, with earliest parole eligibility on 6 August 2022.

Key Takeaways

  • The District Court assessed objective seriousness as slightly below midrange where the robbery was brief, no verbal threats were made, the weapon was an imitation firearm, and the amount taken was modest.
  • A fleeting pointing of an imitation firearm, without verbal threats, did not satisfy the aggravating factor of actual threatened weapon use under s 21A of the Crimes (Sentencing Procedure) Act 1999 to the required standard of beyond reasonable doubt.
  • Service station attendants working alone in the early hours of the morning were treated as vulnerable victims within the meaning of s 21A.
  • Under the principles in Bullock v R and BP v R, rehabilitation and treatment carry greater weight than general deterrence and retribution in the sentencing of young adult offenders, though a significant prior record and offending on conditional liberty can substantially limit the practical benefit of that approach.
  • Committing offences while subject to a suspended sentence constitutes an aggravating factor under s 21A, reflecting that the offender was already on conditional liberty at the time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases
- R v Henry (1999) 46 NSWLR 346
- Bullock v R [2016] NSWCCA 131
- BP v R [2010] NSWCCA 159