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District Court 8 July 2020

R v Andrews

[2020] NSWDC 515

Theft & propertyFirearms & weaponsPublic order & justice offences

Citation: R v Andrews [2020] NSWDC 515
Court: District Court of New South Wales
Date: 8 July 2020
Judge: Bright DCJ

Background

The offender, a 21-year-old man at the time of the offence, was sentenced for one count of robbery armed with a dangerous weapon (firearm) under s 97(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years imprisonment.

In the early hours of 3 August 2019, the offender and an unidentified accomplice entered a tobacconist shop in San Remo, NSW. Both men had their faces covered and were armed with what appeared to be firearms. They demanded cash and cigarettes from the owner, who was confronted while working alone. The victim opened the till and handed over approximately $1,690. When she attempted to defend herself with a baseball bat, the offender pointed his firearm at her before fleeing.

Police executed a search warrant at the offender's home on 15 August 2019, recovering the imitation firearm (hidden in a toilet cistern), a stocking modified into a balaclava bearing the offender's DNA, matching clothing visible in CCTV footage, and the black Nike bag used in the robbery. The offender pleaded guilty at Wyong Local Court on 7 April 2020.

  • What was the appropriate assessment of the objective seriousness of the offending?
  • How should the R v Henry guideline judgment apply, given this offence carried a higher maximum penalty and involved additional aggravating features?
  • What weight should be given to the offender's subjective circumstances, including age, criminal history, and prospects of rehabilitation?
  • What discount applied for the guilty plea, and how should time already served in custody be treated?
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What, if any, moderation was warranted due to the impact of COVID-19 on custodial conditions?

Decision

Bright DCJ assessed the objective seriousness of the offence as just below the middle of the range. Factors pointing toward seriousness included the commission of the offence in company, both offenders being armed, a degree of planning (covered faces, pre-arranged equipment), and the pointing of a firearm at the victim. Factors moderating seriousness included the relatively modest sum stolen and the fact that the weapon was an imitation firearm, which sits below items such as knives in terms of capacity to cause actual harm.

The court applied the R v Henry guideline as a relevant benchmark, noting that while the guideline concerns armed robbery with an offensive weapon (maximum 20 years), it remained a useful guide. It was conceded on the offender's behalf that the present offending was more serious than a typical Henry case, given the use of a dangerous weapon and the involvement of a co-offender. The offending was also committed while the offender was subject to a community corrections order and an intensive corrections order, constituting an aggravating factor.

The court accepted several subjective matters in the offender's favour, including his relatively young age, limited but escalating criminal history, expressions of remorse, difficult upbringing, and evidence of good character from those who knew him. A 25% discount was applied for the guilty plea, having regard to its timing. Bright DCJ also accepted that the offender's custodial conditions had become more onerous as a result of COVID-19, particularly restrictions on visits and access to programs, warranting some moderation of the sentence.

The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act, varying the standard ratio between non-parole period and parole to allow the offender more time on supervised parole. This reflected the offender's youth and the need for structured support during reintegration. The sentence was partially backdated to 15 January 2020 on totality grounds, given that the revocation of the intensive corrections order arose from the same conduct.

Orders Made

  • The offender was convicted of one offence of robbery armed with a dangerous weapon (firearm) under s 97(2) of the Crimes Act 1900 (NSW).
  • Sentenced to imprisonment with a non-parole period of three years, commencing 15 January 2020 and expiring 14 January 2023.
  • Balance of term of two years and seven months, expiring 14 August 2025.
  • Total sentence: five years and seven months (reduced from a starting point of seven and a half years by a 25% plea discount).
  • Special circumstances found; non-parole to total term ratio varied under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • First eligible parole date: 14 January 2023.

Key Takeaways

  • The District Court confirmed that the R v Henry guideline for armed robbery with an offensive weapon remains relevant as a guidepost when sentencing for the more serious offence under s 97(2), even though that provision carries a higher maximum penalty of 25 years.
  • An imitation firearm, while falling within the statutory definition of "dangerous weapon" under s 4 of the Crimes Act 1900, is treated as less serious than weapons actually capable of inflicting harm, such as knives listed in Schedule 1 of the Weapons Prohibition Act 1998.
  • Committing an armed robbery in company, with both participants armed and faces covered, constitutes a degree of planning that bears on objective seriousness, even in the absence of actual physical violence.
  • Sentencing courts may moderate an otherwise appropriate term where COVID-19 has demonstrably increased the hardship of custody, particularly where access to visitors and rehabilitative programs has been severely restricted.
  • Where a breach of an intensive corrections order was caused by the same offending being sentenced, totality principles can support a partial backdating of the sentence to avoid a disproportionate overall period of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2)
- Weapons Prohibition Act 1998 (NSW), Schedule 1

Cases:
- R v Henry [1999] 46 NSWLR 346