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District Court 28 May 2021

R v Havet

[2021] NSWDC 320

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Havet [2021] NSWDC 320
Court: District Court of New South Wales
Date: 28 May 2021
Judge(s): Bright DCJ

Background

A 22-year-old offender entered a Coles Express service station in Killarney Vale at approximately 4:14 am on 14 May 2020, while a lone attendant was on shift. After requesting cigarettes, the offender produced a knife with a blade of approximately six to seven inches and demanded cash from the till. The attendant complied, handing over $70 and two packets of cigarettes.

Nine days after the robbery, police identified the offender through CCTV footage released on social media. When police attended his home, they located a knife, a replica pistol, cocaine, and steroids. The offender initially denied involvement in the robbery but later participated in a second police interview in which he made full admissions.

The offender pleaded guilty on 19 January 2021 to armed robbery, and was dealt with for related offences including larceny of the knife used in the robbery, possessing a prescribed restricted substance, possessing a prohibited drug, and possessing an unauthorised pistol.

  • What was the appropriate objective seriousness of the armed robbery offence?
  • What weight should be given to mitigating factors, including youth, good character, remorse, and the guilty plea?
  • How should the totality principle apply when sentencing across multiple offences?
  • Whether special circumstances existed to justify a variation of the standard ratio between the non-parole period and the balance of the sentence on parole.

Decision

Bright DCJ assessed the objective seriousness of the armed robbery as below the mid-range. Relevant factors included the use of a knife capable of inflicting injury, the threatening manner in which it was wielded, the vulnerability of service station employees working at 4:14 am, and limited (though present) planning by the offender. The value of property taken, $70 and cigarettes, placed the offence toward the lower end of the seriousness scale for this type of offending.

The Court applied the guideline judgment in R v Henry (1999) 46 NSWLR 346, identifying several features common to the offence: a young offender with minimal criminal history, a knife as the weapon, limited planning, and a real but ultimately restrained threat of violence. The starting sentence for the armed robbery (taking Form 1 matters into account) was set at four and a half years, reduced by 25 per cent for the guilty plea to three years and four months. The starting sentence for possessing the unauthorised pistol was 16 months, similarly reduced to 12 months after the plea discount.

The Court found special circumstances warranting a reduction in the non-parole period relative to the overall sentence. The offender was serving his first custodial term and would benefit from an extended period of supervised parole. An aggregate sentence was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), with the totality principle applied to ensure the combined sentence was proportionate to the overall criminality.

The drug possession charge was dealt with separately by way of a community correction order, given its comparative seriousness relative to the principal offences.

Orders Made

  • Convicted on all offences.
  • Aggregate sentence of 4 years imprisonment, backdated to 23 May 2020 and expiring 22 May 2024.
  • Non-parole period of 2 years, commencing 23 May 2020 and expiring 22 May 2022, with release to parole directed on 22 May 2022.
  • Community correction order of 12 months for the possess prohibited drug offence, commencing 28 May 2021 and expiring 28 May 2022, on conditions of good behaviour and appearance before the Court if called upon.

Key Takeaways

  • The District Court assessed an armed robbery involving a knife, $70, and cigarettes taken from a lone service station attendant in the early hours as falling below the mid-range of objective seriousness, having regard to the limited value of property stolen and the restrained, though real, threat of violence.
  • Under the R v Henry guideline, the combination of youth, minimal criminal history, limited planning, and a knife as the weapon were identified as relevant common features shaping the sentencing range for armed robbery.
  • A 25 per cent discount applied where a guilty plea was entered on 19 January 2021, reflecting the timing of that plea relative to the proceedings.
  • Special circumstances were established on the basis that the offender was serving his first term of imprisonment and would benefit from an extended period of parole supervision, justifying a departure from the standard non-parole period ratio.
  • Where an offender faces multiple charges of significantly different gravity, an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the totality principle operate together to ensure the overall penalty remains proportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Firearms Act 1996 (NSW), s 7(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases:
- R v Henry (1999) 46 NSWLR 346; NSWCCA 111
- Cahyadi v The Queen (2007) 168 A Crim R 41; NSWCCA 1