Citation: R v Haidas [2021] NSWDC 235
Court: District Court of New South Wales
Date: 9 April 2021
Judge(s): Bourke SC DCJ
Background
The offender, a young man of Islander appearance, pleaded guilty to one count of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900. The offence occurred on 19 May 2020 at a convenience store in Warwick Farm, New South Wales. The offender and a co-offender entered the store wearing hooded jumpers and face masks, the offender carrying what appeared from CCTV footage to be a small tomahawk or axe.
The offender directed his bladed weapon at the sole shopkeeper behind the counter while his co-offender jumped over the counter and grabbed cigarettes. The victim pleaded with the pair not to hurt her and complied when told to open the cash register. The offender directed his co-offender to take only banknotes, not coins, and said "Sorry" to the victim as both men left.
Police investigation included a Facebook post seeking public assistance, telephone intercepts, and CCTV analysis. The offender was arrested at Sydney Airport on 23 June 2020 after checking in for a flight to New Zealand, having failed to attend Liverpool Police Station as requested. The intercepted calls revealed the offender and co-offender discussing destroying evidence and changing their appearances. One call included a deeply troubling remark by the offender expressing regret that he had not physically harmed the victim.
Legal Issues
- What is the appropriate head sentence and non-parole period for an offence of armed robbery under s 97(1), having regard to objective seriousness, the guilty plea, and the offender's personal circumstances?
- Whether the utilitarian value of an early guilty plea warranted a 25% discount.
- Whether special circumstances existed to vary the standard ratio between the head sentence and the non-parole period.
- What weight should be given to youth and the prospects for rehabilitation in the sentencing exercise?
- Whether to take action on a breach of an existing Community Corrections Order.
Decision
Bourke SC DCJ assessed the objective seriousness of the offence as falling slightly below the middle range. The court acknowledged that, while the amount of property taken was relatively small, armed robbery is fundamentally a crime against persons rather than merely a property offence, citing R v Henry [1999] 46 NSWLR 346. The seriousness was aggravated by the offender directing his weapon at the victim, taking a leadership role in directing the co-offender, planning the attack through arming themselves and wearing masks, and committing the offence in company against a lone and vulnerable shopkeeper.
The court applied a 25% discount on the head sentence to reflect the utilitarian value of the early guilty plea. It also noted that the intercepted phone call, in which the offender expressed regret at not harming the victim, weighed heavily against him and indicated limited remorse, though it could not be treated as an aggravating factor as it was not formally part of the agreed facts.
On the question of personal circumstances, the court accepted that the offender's relative youth (he was in his early twenties) was a mitigating factor and that more weight should be given to rehabilitation than deterrence and retribution, drawing on principles from Bugmy v R (2013) and BP v R [2010] NSWCCA 159. However, because the offender was not a juvenile, the court gave this consideration reduced weight compared to what it would receive for a younger offender.
Special circumstances were found on the basis that this was the offender's first time in full-time custody and his relative youth, justifying a variation from the ordinary ratio between the head sentence and non-parole period. The court found the s 5 threshold in the Crimes (Sentencing Procedure) Act 1999 was clearly crossed, with no other sentence than full-time custody being appropriate. In relation to the breach of an existing Community Corrections Order, the court found the breach proved but elected to take no action, while noting that the existence of conditional liberty at the time of the offence was a relevant consideration.
Orders Made
- Head sentence of 3 years and 4 months imprisonment (after 25% discount), commencing 23 June 2020 and expiring 22 October 2023.
- Non-parole period of 20 months (1 year, 8 months), expiring 22 February 2022, from which date the offender is eligible for parole.
- Breach of Community Corrections Order found proved; no action taken on the breach.
Key Takeaways
- Armed robbery is treated as a crime against persons, not merely property, meaning the relatively small value of goods stolen does not significantly reduce objective seriousness.
- A finding of special circumstances, permitting a departure from the standard ratio between head sentence and non-parole period, was available where an offender was serving their first period of full-time custody and was relatively young.
- Under sentencing principles derived from Bugmy v R and BP v R, youth warrants greater weight being given to rehabilitation over deterrence and retribution, though this consideration is tempered where the offender is not a juvenile.
- Telephone intercepts revealing an offender's post-offence conduct, including discussions about destroying evidence and attempts to evade police, formed part of the factual matrix the court considered in assessing character and the circumstances of the offending.
- An early guilty plea attracting a 25% utilitarian discount remains a significant mitigating factor in the sentencing exercise, even in cases of serious armed robbery.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 5 (threshold for full-time custody)
Cases
- R v Henry [1999] 46 NSWLR 346
- Bugmy v R (2013) 302 ALR 192
- BP v R [2010] NSWCCA 159