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District Court 24 November 2020

R v Coe; R v Singh

[2020] NSWDC 828

Fraud & dishonestyTheft & property
OFFENDERS

Citation: R v Coe; R v Singh [2020] NSWDC 828
Court: District Court of New South Wales
Date: 24 November 2020
Judge(s): Bennett SC DCJ

Background

Two co-offenders, Coe and Singh, were sentenced following a judge-alone trial arising from events on 7 July 2019 in the Canterbury area of Sydney. The central incident involved an armed robbery of a victim (identified only by initials), in which an iPhone, cash, and a bank card were taken. Coe directly confronted the victim while armed with what appeared to be a semi-automatic pistol but was in fact a plastic toy gun. Singh acted as a lookout some distance away.

After the robbery, both men went to Singh's nearby home, changed clothing, and then used the stolen bank card at a petrol station and a service station along Canterbury Road. Those subsequent transactions formed the basis of three fraud charges under s 192E(1)(a) of the Crimes Act 1900.

Both offenders had pleaded guilty to Counts 2, 3, and 4 (the fraud offences), though Coe had initially attempted to withdraw those pleas before trial. Count 1, the armed robbery, proceeded to a contested trial.

  • Whether Coe was guilty of robbery whilst armed with a dangerous weapon under s 87(2) of the Crimes Act 1900
  • Whether Singh was guilty of the same aggravated offence, or only the lesser alternative of robbery in company under s 97(1)
  • Whether Coe should have been permitted to withdraw his earlier guilty pleas to the fraud counts, and what plea discount applied
  • What discount Singh was entitled to for his guilty pleas entered after committal but upon arraignment
  • What aggregate sentences were appropriate for each offender, including whether an intensive corrections order was suitable for Singh
  • How Aboriginal background, age, mental health, and other subjective factors bore on each sentence

Decision

Trial verdicts

The court found Coe guilty of armed robbery under s 87(2), being satisfied that the toy pistol he carried met the statutory definition of a dangerous weapon under s 4D(3) of the Firearms Act 1995, based on its appearance to the victim. Singh's conviction was on the lesser alternative of robbery in company under s 97(1). The court was not satisfied beyond reasonable doubt that Singh knew the toy pistol had been used as a weapon in the robbery, even though the item was found in his bedroom during a subsequent search warrant. While that discovery formed part of the circumstantial case implicating Singh in the robbery itself, it did not establish the additional element of knowledge required for the aggravated form of the offence.

Plea withdrawal and discounts

Coe's application to withdraw his guilty pleas to Counts 2, 3, and 4 was refused after a contested hearing, and he was held to those pleas. Because of the procedural disruption he caused by pursuing the withdrawal application, his discount for the guilty pleas was reduced to 5 percent rather than the 25 percent his counsel sought. Singh, who pleaded guilty upon arraignment approximately 14 days before the trial commenced, received a 10 percent discount under s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999.

Singh's sentence

The court imposed an aggregate sentence of 3 years imprisonment on Singh, to be served by way of an intensive corrections order (ICO) in the community. The court was satisfied that an ICO was appropriate in light of Singh's age, mental health issues documented by two expert psychiatrists, his Aboriginal background (considered under the principles in Bugmy v R), and the finding that community supervision was more likely to address his risk of reoffending than full-time custody. The court noted that the offences did not fall within s 67(1) of the Crimes (Sentencing Procedure) Act 1999, which would have precluded an ICO. Conditions included a curfew from 8pm to 8am (with exceptions for parental supervision and employment), abstention from prohibited drugs and non-prescribed medication, and attendance at Community Corrections at Narrandera in conjunction with the Weave organisation.

Coe's sentence

The text provided does not include the full sentencing remarks for Coe, but the judgment records that his matter was dealt with separately, with the court applying the relevant sentencing principles including totality, the limited plea discount, and his subjective circumstances.

Orders Made

  • Singh: aggregate sentence of 3 years imprisonment, to be served by way of an intensive corrections order commencing 24 November 2020
  • ICO conditions include curfew (8pm to 8am), exceptions for parental accompaniment and employment travel, abstention from prohibited drugs and non-prescribed medication, and supervision through Community Corrections at Narrandera in conjunction with the Weave organisation
  • Community service was not imposed, in favour of continued rehabilitation and mental health treatment

[Orders for Coe not fully located in provided text]

Key Takeaways

  • A co-offender acting as a lookout during an armed robbery may be convicted of robbery in company under s 97(1) of the Crimes Act 1900 without also being guilty of the aggravated form under s 97(2), where the evidence does not establish beyond reasonable doubt that the lookout knew a dangerous weapon was being used by the principal offender.

  • The appearance of an object to a victim can satisfy the "dangerous weapon" element for the person who physically used it, even where that object is a toy, provided it meets the relevant statutory definition.

  • Where a defendant pursues an unsuccessful application to withdraw guilty pleas and thereby disrupts proceedings, the sentencing court may substantially reduce the guilty plea discount, in this case from a potential 25 percent to only 5 percent.

  • An intensive corrections order remains available even for offences involving violence, provided those offences are not within the categories excluded by s 67(1) of the Crimes (Sentencing Procedure) Act 1999, and provided the court is satisfied that community safety considerations support the order.

  • Under the principles in Bugmy v R, the effects of profound disadvantage associated with an offender's Aboriginal background remain a relevant consideration at sentencing regardless of the seriousness of the offence, and do not diminish over time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 87(2), 97(1), 97(2), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 25F, 66, 67
- Firearms Act 1995 (NSW), s 4D(3)

Cases
- Bugmy v R [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Er v R [2018] NSWCCA 286
- Foaiaulima v R [2020] NSWCCA 270
- Markarian v The Queen (2005) 228 CLR 357
- McNaughton v R [2006] NSWCCA 242
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v State of Western Australia [2013] HCA 38
- R v Henry (1999) 46 NSWLR 346
- R v Street [2005] NSWCCA 139
- Tepania v R [2018] NSWCCA 247
- Xiao v R [2018] NSWCCA 4