Citation: R v Wiles; R v George [2020] NSWDC 689
Court: District Court of New South Wales
Date: 11 September 2020
Judge: Colefax SC DCJ
Background
On 29 January 2019, three men, Dean Achurch (the driver), Braddly Wiles (front passenger), and Jackson George (rear passenger), pursued another vehicle along St John's Road, Bradbury, NSW. A shortened .22 calibre bolt-action rifle was in their vehicle. The three formed a spontaneous joint agreement to use their vehicle as an offensive weapon to force the occupants of the other car to stop, intending to rob them at gunpoint.
The pursuit was prolonged and dangerous. Achurch drove aggressively and rammed the victims' vehicle at a roundabout. George pointed the firearm out of a rear window at the victims' car. The three victims, including the driver and two passengers, attempted several desperate manoeuvres to escape before their vehicle eventually broke down and was blocked in by the offenders.
Achurch had already been sentenced separately on 19 June 2020. Wiles and George appeared for sentence on 11 September 2020. Each offender faced a different combination of principal offences and associated Form 1 matters (additional charges taken into account at sentencing without separate conviction), which required the court to navigate meaningful factual and legal distinctions between them.
Legal Issues
- What aggregate sentences were appropriate for Wiles and George, given the seriousness of the offending and their individual circumstances?
- How should the court manage sentencing co-offenders at different times, for different combinations of offences, and on different agreed facts?
- What weight should be given to pleas of guilty, background, and the relevant guideline judgment in R v Henry for armed robbery?
- How should parity be maintained between Wiles, George, and the previously sentenced Achurch, while accounting for their different charges and personal histories?
Decision
Colefax SC DCJ identified the sentencing exercise as particularly complex. Achurch, Wiles, and George were each sentenced for two principal offences, but the combination differed. Achurch's second principal offence was firing a firearm in a manner likely to injure (maximum 10 years). For Wiles and George, those charges were effectively reversed: their second principal offence was using an offensive weapon (the vehicle) in company with intent to commit robbery (maximum 15 years), and the firearm discharge appeared on their Form 1 instead. This difference in maximum penalties was a significant sentencing consideration.
His Honour found that all three men were criminally responsible for both the vehicle-as-weapon offence and the armed robbery through the joint criminal enterprise. Wiles and George were also responsible for the firearm discharge, via the extended doctrine of joint criminal enterprise. Wiles was identified as the person who passed the firearm from the front seat to George in the rear.
In assessing parity with Achurch (who received a non-parole period of six years), the court considered that Achurch bore greater responsibility as the driver and active participant who fired the weapon. George and Wiles, while serious participants, had lesser roles. The court also noted that both Achurch and George had dysfunctional upbringings relevant under Bugmy v The Queen, while Wiles did not. Both Wiles and George received discounts for guilty pleas: 10 per cent for Wiles, reflecting a late plea, and 25 per cent for George, reflecting an earlier one.
His Honour sentenced each offender to an aggregate term of imprisonment, with the non-parole periods backdated to the date of arrest on 29 January 2019.
Orders Made
- Braddly Wiles: Aggregate term of 8 years imprisonment. Non-parole period of 4 years 9 months, commencing 29 January 2019 and expiring 28 October 2023. Balance of term of 3 years 3 months, expiring 28 January 2027.
- Jackson George: Aggregate term of 7 years 6 months imprisonment. Non-parole period of 4 years 6 months, commencing 29 January 2019 and expiring 28 July 2023. Balance of term of 3 years, expiring 28 July 2026.
Key Takeaways
- Sentencing co-offenders on different dates, for different offences arising from the same criminal enterprise, creates significant complexity for maintaining parity and consistency across sentences.
- Under the extended doctrine of joint criminal enterprise, Wiles and George were held criminally responsible for the firearm discharge even though it was George alone who pointed and fired the weapon.
- A 10 per cent guilty plea discount applied to Wiles, whose plea was entered late, while George received 25 per cent for an earlier plea, illustrating that the timing of a plea directly affects the quantum of discount applied.
- The District Court applied Bugmy v The Queen in considering the dysfunctional backgrounds of Achurch and George as mitigating factors, while noting Wiles did not share that background.
- Differences in the maximum penalties applicable to technically equivalent roles in the same offending can produce meaningful differences in indicative and aggregate sentences, even where the underlying conduct is closely comparable.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33B(2) (using an offensive weapon with intent to commit an indictable offence in company; maximum 15 years)
- Crimes Act 1900 (NSW), s 97(2) (robbery armed with a dangerous weapon; maximum 25 years)
- Crimes Act 1900 (NSW), s 93G(1)(c) (firing a firearm in a manner likely to injure; maximum 10 years)
Cases:
- R v Achurch [2020] NSWDC 312
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery)
- Bugmy v The Queen (2013) 249 CLR 571 (consideration of background disadvantage in sentencing)