Citation: R v King [2020] NSWDC 931
Court: District Court of New South Wales
Date: 3 June 2020
Judge: Bourke SC DCJ
Background
The offender pleaded guilty to one count of robbery while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The offence occurred on the morning of 16 October 2019 at a liquor store in West Wallsend, where the offender entered wearing a surgical mask and holding a diving knife, demanding the store manager place cash into a bag.
The entire incident lasted approximately 45 seconds and was captured on CCTV. The offender took just under $270 in cash before leaving the store. He was stopped by police shortly afterwards while driving nearby, and items matching those in the CCTV footage were found in his vehicle, including the knife, cash, backpack, shirt, and surgical mask.
The offender was 28 years old at the time of the offence. He had a prior criminal history that included robberies and assaults with intent to rob, and he was on parole as well as subject to a community correction order when the offence was committed.
Legal Issues
- What head sentence and non-parole period was appropriate for robbery whilst armed with an offensive weapon in light of the guideline judgment in R v Henry and Ors (1999)?
- What weight should be given to mitigating factors, including an early guilty plea, the offender's troubled background, mental health difficulties, and prospects for rehabilitation?
- What aggravating factors applied, and which of the Crown's proposed aggravating factors were properly available?
- Whether special circumstances existed justifying an adjustment to the standard ratio of non-parole period to head sentence.
Decision
Bourke SC DCJ assessed the objective seriousness of the offence by reference to the guideline judgment in R v Henry and Ors, which identifies armed robbery as a serious personal crime warranting fulltime custody in all but exceptional circumstances. His Honour found the offence was serious but not in the most serious category, noting no actual violence was used and the incident was brief. The knife was, however, described as a substantial weapon clearly capable of causing serious injury or death.
The Henry guideline indicated a head sentence in the range of four to five years where there is a late guilty plea. His Honour then applied a 25% discount for the offender's early guilty plea, which brought the starting point down. The aggravating features of offending while on parole and subject to a community correction order, combined with a prior history of similar offences, partly offset the benefit of the early plea. His Honour noted that the offender's age of 28 meant he had limited entitlement to leniency on grounds of youth.
His Honour accepted significant subjective mitigating matters, including the offender's difficult upbringing, early departure from the family home, homelessness as a teenager, prior incarceration from a young age, diagnosed mental health conditions, and genuine remorse. A psychological report from Dr Derek Gilligan was before the court and directed to Corrective Services and Justice Health. His Honour also noted, as a minor factor, that the offender's time in custody had been made more onerous by COVID-19 restrictions limiting personal visits.
The Crown conceded during submissions that using a weapon (an element of the offence itself), and committing the offence for financial gain (inherent in robbery), were not properly available as additional aggravating factors. His Honour agreed. Victim vulnerability was accepted as an aggravating feature, though it was noted this is common to many robberies and had already been factored into the Henry analysis.
Orders Made
- Head sentence of four years three months imprisonment, commencing 3 December 2019 and expiring 2 March 2024.
- Non-parole period of two years eight months, commencing 3 December 2019 and expiring 2 August 2022.
- The offender convicted of the offence.
- A copy of Dr Derek Gilligan's psychological report directed to be provided to Corrective Services and Justice Health.
Key Takeaways
- The District Court applied the R v Henry and Ors guideline, which establishes that fulltime custody is the expected outcome for armed robbery absent exceptional circumstances, and that a head sentence in the four-to-five-year range is a general guide for typical features of the offence.
- A 25% discount for an early guilty plea is available and was applied here, even where the prosecution case was reasonably strong, though the strength of the evidence reduced the overall weight given to that plea.
- Offending while on parole and subject to a community correction order constituted aggravating circumstances that partially offset the benefit of the early plea and the offender's subjective mitigation.
- Proposed aggravating factors that are already elements of the offence charged (such as use of a weapon in an armed robbery count) or are inherent in the nature of the offence (such as financial gain in a robbery) are not available as stand-alone aggravating features under the sentencing framework.
- Genuine subjective mitigation, including a troubled upbringing, mental health difficulties, early incarceration, and demonstrated remorse, can influence the sentence imposed, though its effect is moderated where a prior criminal history and conditional liberty at the time of offending are also present.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)
Cases
- R v Henry and Ors (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)