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District Court 4 March 2020

R v McGuiness; R v Trevascus

[2020] NSWDC 90

Assault & violenceTheft & property
CRIME SENTENCE ROBBERY IN COMPANY

Citation: R v McGuiness; R v Trevascus [2020] NSWDC 90
Court: District Court of NSW
Date: 4 March 2020
Judge(s): Colefax SC DCJ

Background

Two offenders appeared for sentencing following a violent robbery committed in late June 2018. One offender (McGuiness) had entered a late guilty plea to robbery in company, with a related attempted aggravated take and drive offence placed on a Form 1 (a document listing related offences to be taken into account at sentencing without separate conviction). The other offender (Trevascus) was convicted by a jury on two counts: robbery in company, and attempted aggravated take and drive a motor vehicle with a person in it.

The offence arose from a pretext encounter at a service station, where the victim was lured into giving one offender a lift. The second offender was collected en route. After a period of driving around the Campbelltown area, the victim refused to continue and sought to end the journey. McGuiness responded with an unprovoked physical assault, punching the victim repeatedly, while Trevascus restrained the victim from behind by choking him and attempting to tear a chain from his neck. The victim's car keys were taken during the struggle. Bystanders ultimately intervened and police were called. The victim sustained a fractured nose, a black eye, and facial swelling.

Critically, both offenders were on parole at the time of the offending, and each had been on parole for only a very short period.

  • What is the appropriate sentence for each offender for robbery in company under s 97(1) of the Crimes Act 1900 (NSW), having regard to objective seriousness, subjective circumstances, and parole status?
  • How should the late guilty plea entered by McGuiness affect the sentence imposed on him?
  • Whether special circumstances existed to justify a departure from the standard statutory ratio between non-parole period and head sentence?
  • How should the sentences be accumulated relative to existing sentences being served at the time of sentencing?
  • Whether an aggregate sentence was appropriate for Trevascus, who was convicted of two principal offences?

Decision

The District Court assessed the robbery in company as a mid-range offence of its kind. For Trevascus, the attempted aggravated take and drive offence was assessed as slightly above mid-range, further aggravated by the use of violence. Both offences were additionally aggravated by the fact that each offender was on parole at the time.

The court considered each offender's subjective circumstances through psychological reports. McGuiness, a 31-year-old Aboriginal man, had experienced a dysfunctional upbringing that the court was required to consider in line with the High Court's direction in Bugmy v The Queen. His long criminal history was closely connected to long-term drug dependency originating from a serious assault he suffered at age 16. Trevascus's background also involved significant disadvantage. All four sentencing principles (punishment, deterrence, rehabilitation, and community protection) were engaged, though the court noted they pulled in different directions.

The court declined to find special circumstances for either offender, concluding that the non-parole periods fixed would be sufficient to support rehabilitation. McGuiness received a 5% discount for his late guilty plea, reducing what would otherwise have been an eight-year term to seven years and seven months. The sentences were ordered to accumulate entirely on top of the sentences each offender was already serving for unrelated matters, reflecting that both had been on parole for those pre-existing sentences when they committed these offences.

Trevascus was sentenced to an aggregate term of seven years' imprisonment, with indicative sentences of six years for the robbery and six years and six months for the attempted aggravated take and drive offence underlying that aggregate.

Orders Made

  • McGuiness: sentenced to 7 years and 7 months' imprisonment for robbery in company (with the Form 1 offence taken into account); non-parole period of 5 years and 8 months commencing 11 July 2019, expiring 10 March 2025; balance of term of 1 year and 11 months expiring 10 February 2027. No finding of special circumstances.
  • Trevascus: aggregate sentence of 7 years' imprisonment (indicative sentences: 6 years for robbery in company; 6 years and 6 months for attempted aggravated take and drive); non-parole period of 5 years and 3 months commencing 6 July 2019, expiring 5 October 2024; balance of term of 1 year and 9 months expiring 5 July 2026. No finding of special circumstances.
  • Sentences for both offenders to accumulate entirely upon completion of pre-existing unrelated sentences.

Key Takeaways

  • Committing an offence while on parole operates as an aggravating factor that the sentencing court will weigh against the offender, and here it supported full accumulation of the new sentences upon existing sentences.
  • A late guilty plea attracted only a 5% discount rather than the larger discounts available for early pleas, resulting in a meaningfully higher sentence than would have applied had the plea been entered at the earliest opportunity.
  • Under the Bugmy principle, sentencing courts are required to take into account the impact of a deprived or dysfunctional upbringing on an Aboriginal offender's moral culpability, even where the criminal history is extensive.
  • The District Court declined to find special circumstances for either offender, accepting that the standard statutory ratio between non-parole period and head sentence was itself sufficient to accommodate rehabilitation.
  • An aggregate sentencing approach for Trevascus required the court to articulate indicative sentences for each individual offence, even though a single combined term was ultimately imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1) (robbery in company), 154C(2) (aggravated take and drive), 344A(1) (attempts)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on robbery in company)
- Bugmy v The Queen [2013] 249 CLR 571 (consideration of deprived background in sentencing Aboriginal offenders)