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District Court 9 July 2021

R v BARTHOLOMEW

[2021] NSWDC 307

Assault & violenceTheft & property
SENTENCE ARMED ROBBERY OF TAXI DRIVER TWO COUNTS HENRY GUIDELINE BREACH OF CONDITIONAL LIBERTY

Citation: R v Bartholomew [2021] NSWDC 307
Court: District Court of New South Wales
Date: 9 July 2021
Judge: Lerve DCJ

Background

The offender, a 24-year-old man, faced sentencing on two counts of armed robbery under s 97(1) of the Crimes Act 1900 (NSW). On 7 September 2020 and again on 9 September 2020, he robbed two separate taxi drivers at knifepoint in Wagga Wagga, taking cash, a wallet, and other property amounting to between $200 and $300 per incident.

The timing was a significant aggravating feature. The offender had been released on parole on 2 September 2020, having served a sentence for a prior armed robbery of a service station committed in company. The first of the current offences occurred just five days after that release, and the second only seven days after it.

The offender pleaded guilty to both charges and was committed for sentence to the Wagga Wagga District Court. He made full admissions to police when arrested on the morning of 9 September 2020.

  • What sentence was appropriate under the R v Henry Guideline Judgment for armed robberies of taxi drivers at knifepoint?
  • How should the offender's prior armed robbery conviction and the breach of conditional liberty (parole) affect the sentence?
  • Whether the offences warranted an aggregate sentence, and whether special circumstances existed to justify a non-parole period shorter than the statutory default of one-half of the total sentence.

Decision

Lerve DCJ applied the R v Henry & Ors (1999) Guideline Judgment, which identifies a sentencing range of four to five years for the archetypal armed robbery involving a young offender with limited criminal history, a knife, limited planning, a vulnerable victim such as a taxi driver, and a small sum taken. His Honour found the present offences broadly matched those characteristics, noting limited planning, a real but not physically executed threat of violence, and the production of a knife (held toward one victim's abdomen in the second offence).

The offender's prior criminal history materially departed from the Henry "template." He had a previous District Court sentence for armed robbery and was on parole when both offences were committed. These factors attracted statutory aggravation under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 and elevated the starting point above the baseline Henry range. His Honour noted that the offender had received little practical support upon release, a circumstance taken into account but not as a mitigating factor that could displace the seriousness of the conduct.

His Honour identified a starting point of five years and six months for the aggregate, reduced by 25 per cent for the utilitarian value of the early guilty pleas to arrive at four years, with minor rounding in the offender's favour producing a total aggregate of five years and three months. Special circumstances were found, principally because of the partial accumulation of sentences covering two separate offences and two separate victims, justifying a non-parole period of three years and four months (approximately 63 per cent of the total sentence rather than the default 50 per cent).

Orders Made

  • The offender was convicted on both counts of armed robbery under s 97(1) of the Crimes Act 1900.
  • An aggregate sentence of 5 years and 3 months was imposed.
  • Non-parole period of 3 years and 4 months, commencing 10 March 2021 and expiring 9 July 2024.
  • Balance of term commencing 10 July 2024 and expiring 9 June 2026.
  • The offender was recommended for parole release at the expiration of the non-parole period.
  • The total effective sentence (including balance of parole) runs from 9 September 2020 to 9 June 2026 (5 years and 9 months); actual custody from 9 September 2020 to 9 July 2024 (3 years and 10 months).
  • A copy of the psychologist's report (exhibit 2) was directed to be annexed to the warrant forwarded to the Department of Corrective Services.

Key Takeaways

  • The R v Henry Guideline Judgment sets a sentencing range of four to five years for archetypal armed robbery of a taxi driver, but the range is a starting point only; individual factors can move a sentence above or below it.
  • Committing serious indictable offences within days of release on parole is a significant aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, capable of lifting the sentence beyond the standard Henry range.
  • A 25 per cent discount for the utilitarian value of an early guilty plea applies even where the Crown case is strong, reflecting the practical benefit to the justice system rather than an expression of remorse.
  • Special circumstances justifying a non-parole period below the statutory default may be established by partial accumulation of sentences where multiple offences and multiple victims are involved.
  • The District Court treated the limited support available to the offender upon release as part of the factual background, consistent with the approach in Bugmy v The Queen [2013] HCA 37, though it did not displace the weight given to the commission of serious offences while on conditional liberty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v Henry & Ors (1999) 46 NSWLR 346 (Guideline Judgment on armed robbery)
- Qoro v R [2020] NSWCCA 276
- Dungay v R [2020] NSWCCA 209
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Valentine v R [2020] NSWCCA 116
- Bugmy v The Queen [2013] HCA 37
- Locke v R (2010) 207 A Crim R 34
- White v R [2016] NSWCCA 190