Citation: R v Hampton; R v Wright [2020] NSWDC 725
Court: District Court of New South Wales
Date: 21 August 2020
Judge(s): R. J. Weber SC DCJ
Background
Two co-offenders appeared before the District Court for sentencing following a robbery in company at a Dulwich Hill newsagency on 5 June 2019. The victim, a 62-year-old man who had operated the business with his wife for 15 years, was behind the counter when the offence occurred. Between $100 and $200 was taken from the till.
The principal offender, Hampton, entered the shop with an unknown male, punched the victim to the face, and pinned him against the counter while the till was emptied. The second offender, Wright, acted as aider and abetter: he distracted the victim with a fabricated dispute over a Scratchie lottery ticket, allowing Hampton and the unknown male to enter unobserved. Wright remained in the shop watching the robbery unfold before leaving with the others.
Both offenders pleaded guilty. The Crown accepted that each was entitled to a 25% discount on sentence to reflect the utilitarian value of their early pleas.
Legal Issues
- How the guideline judgment in R v Henry (1999) applied to sentences for robbery in company, including where one offender was an aider and abetter rather than a principal.
- Whether the absence of a weapon and the limited violence placed the offending below the Henry starting range.
- What aggravating and mitigating factors applied to each offender, including prior criminal history, offending on conditional liberty, brain injury, institutionalisation, and the effect of time already spent in custody.
- Whether the COVID-19 pandemic was a relevant consideration in the sentencing exercise.
- How to avoid double-counting when applying Henry factors alongside the statutory aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act 1999.
Decision
The court confirmed that the Henry guidelines applied broadly to both offenders, establishing a starting range of four to five years for a standard robbery in company of this character. Applying the agreed 25% guilty plea discount reduced the adjusted range to a head sentence of between 40 months (three years and four months) and 50 months, with non-parole periods of 30 and 37 months respectively. Both parties agreed the offending fell below the mid-range of objective seriousness, and the court accepted that Wright's role as an aider and abetter, combined with the larger plea discount, justified sentences below the core Henry range.
The court declined to treat the offenders' extensive criminal histories as a formal aggravating factor under s 21A, but held that those records precluded any claim that the offending was an aberration and disentitled both men to leniency. Hampton's offending while on conditional liberty was treated as an aggravating factor. The court also considered subjective factors including Hampton's acquired brain injury and both offenders' histories of institutionalisation, drawing on the principles in Bugmy v The Queen regarding the relevance of profound disadvantage to moral culpability.
The court expressly rejected any reduction in sentence on account of COVID-19, holding it was not appropriate to bring pandemic conditions into the sentencing task.
To avoid double-counting the conditional liberty aggravating factor for Hampton, the court backdated his sentence to the date of his arrest: 1 August 2019. Wright's sentence was backdated to 27 February 2020, a date calculated to account for the five months and 23 days he had spent in pre-sentence custody solely attributable to this offence.
Orders Made
Hampton:
- Convicted of robbery in company contrary to s 97(1) of the Crimes Act 1900.
- Sentenced to three years and four months imprisonment with a non-parole period of two years and six months.
- Sentence backdated to commence 1 August 2019; non-parole period to expire 31 January 2022; balance of sentence to expire 30 November 2022.
Wright:
- Convicted of robbery in company contrary to s 97(1) of the Crimes Act 1900.
- Sentenced to three years imprisonment with a non-parole period of two years.
- Sentence backdated to commence 27 February 2020; non-parole period to expire 26 February 2022; balance of sentence to expire 26 February 2023.
Key Takeaways
- The District Court confirmed that the Henry guidelines remain the applicable framework for sentencing robbery in company offences, with the specified factors operating as a structured starting point rather than a rigid formula.
- A 25% guilty plea discount, where agreed by the Crown, contracts the Henry range significantly. The court noted that Henry itself contemplated only a 10% discount for an early plea, making the adjustment from that baseline material to the final sentence.
- Wright's role as an aider and abetter, rather than a principal, was treated as a discrete mitigating consideration not contemplated in the Henry category, supporting a sentence below the adjusted range.
- Applying the Bugmy principles, profound personal disadvantage (including acquired brain injury and entrenched institutionalisation) remained relevant to the assessment of moral culpability even for adult offenders with lengthy criminal histories.
- COVID-19 conditions in custody were held to be an inappropriate basis for reducing the sentences imposed; the court expressly declined to factor the pandemic into its sentencing analysis.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors); s 47 (commencement of sentence)
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery in company)
- Bugmy v The Queen [2013] HCA 37 (relevance of background disadvantage to moral culpability)
- Markarian v The Queen (2005) 228 CLR 357 (instinctive synthesis in sentencing)