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District Court 27 July 2021

R v CAMPBELL-BETTS; R v COE

[2021] NSWDC 346

Assault & violenceTheft & propertyFirearms & weapons
CRIME ROBBERY IN COMPANY, CAR OFFENDERS BOTH ON CONDITIONAL LIBERTY BUGMY FACTORS PARTIAL ACCUMULATION

Citation: R v Campbell-Betts; R v Coe [2021] NSWDC 346
Court: District Court of New South Wales
Date: 27 July 2021
Judge: Lerve DCJ

Background

Two young offenders, aged 20 and 19 at the time of the offending, robbed a taxi driver at knifepoint in Wagga Wagga in April 2020. Both were armed with knives. They directed the victim to stop near a bus shelter, held the knife to his chest, and demanded and took cash, a coin dispenser, and his mobile phone before forcing him from the vehicle and driving it away. The entire incident lasted approximately six minutes and was captured on CCTV.

Both offenders were arrested within a week of the offence and were committed for sentence to the Wagga Wagga District Court from the Local Court in December 2020. Each maintained guilty pleas entered in the Local Court, entitling them to the full 25 percent discount for the utilitarian value of those pleas.

Each offender faced two charges: robbery in company under section 97(1) of the Crimes Act 1900 (maximum 20 years) and aggravated car-jacking under section 154C(2) of the same Act (maximum 14 years, with a standard non-parole period of 5 years). Campbell-Betts faced an additional charge of driving while never licensed, dealt with under section 10A of the Crimes (Sentencing Procedure) Act 1999 (meaning a conviction was recorded but no further penalty imposed).

  • Whether the robbery offence fell within, above, or below the guideline sentencing range established in R v Henry & Ors (1999) 46 NSWLR 346
  • How to assess the objective seriousness of the aggravated car-jacking offence under the framework from R v Barker & Gibson [2006] NSWCCA 20
  • What weight to give the offenders' criminal histories, their youth, and their deprived backgrounds (including Bugmy factors) in the sentencing exercise
  • Whether the offenders were entitled to any leniency given their conditional liberty status at the time of offending
  • How to structure aggregate sentences and non-parole periods, including partial accumulation where one offender was also serving time for revocation of an Intensive Correction Order (ICO)
  • Whether special circumstances existed justifying a non-parole period of less than the standard proportion of the total sentence

Decision

Lerve DCJ found no practical distinction between the roles of the two offenders: both were armed, both participated in the robbery, and both had planned the offences to some degree, though that planning was not described as substantial. The court placed the robbery within the Henry guideline range of four to five years (before discounts), noting the early plea of guilty but counterbalancing that against the criminal histories of both offenders. Neither offender could be said to have a limited criminal history, which is one of the common features of the Henry guideline scenario, and Coe's record was particularly significant.

On the car-jacking charge, the court applied the framework from Barker & Gibson, assessing factors including the degree of planning, the use of weapons, the threats made, and the fear instilled in the victim. The use of knives in a coordinated attack on a lone taxi driver elevated the seriousness of the offending. Both offenders were on conditional liberty at the time, which weighed against leniency.

The court acknowledged Bugmy principles, which recognise that severe social disadvantage and deprivation experienced in childhood can moderate, though not excuse, moral culpability. However, the court found that neither offender's background entitled them to a reduction in sentence sufficient to displace the weight of their criminal histories and the seriousness of the offending.

The court found special circumstances in each case, justifying a non-parole period set at two-thirds of the total sentence rather than the standard three-quarters. The reasons included the need for extended supervision upon release and the rehabilitation prospects of young offenders. For Coe, partial accumulation was applied to account for time served on the revoked ICO, and the court noted that Coe's co-offender would have a justifiable sense of grievance if Coe received a materially shorter non-parole period as a result of that accumulation.

Orders Made

Campbell-Betts:
- Convicted on both charges
- Aggregate sentence of 4 years 9 months
- Non-parole period of 3 years 2 months, commencing 23 April 2020, expiring 22 June 2023
- Balance of term (1 year 7 months) expiring 22 January 2025
- Parole recommended upon expiry of non-parole period, with supervision and alcohol and substance use counselling also recommended

Coe:
- Convicted on both charges
- Aggregate sentence of 4 years 9 months
- Non-parole period of 3 years 2 months, commencing 28 October 2020, expiring 27 December 2023
- Balance of term (1 year 7 months) expiring 27 July 2025
- Parole recommended upon expiry of non-parole period, with supervision and alcohol and substance use counselling also recommended
- Total effective sentence (including partial accumulation for ICO revocation): 5 years 3 months

Campbell-Betts (unlicensed driving):
- Convicted under section 10A with no further penalty

Key Takeaways

  • The District Court confirmed that the Henry guideline for aggravated robbery operates as a range, not a fixed point, and that criminal history can prevent an offender from benefiting fully from features that would otherwise place a matter at the lower end of that range.

  • A finding of special circumstances does not require exceptional facts: here, the youth of the offenders and the need for extended post-release supervision were sufficient to justify setting the non-parole period at two-thirds rather than three-quarters of the total term.

  • Bugmy principles acknowledge the relevance of social disadvantage to moral culpability, but the District Court's reasons demonstrate that those principles do not automatically reduce sentences where serious, planned offending is involved and criminal histories are substantial.

  • Parity between co-offenders is an active consideration when structuring sentences involving partial accumulation. The court expressly adjusted Coe's sentence to avoid a result that would give Campbell-Betts a justifiable sense of grievance.

  • Being on conditional liberty (such as an ICO) at the time of offending is treated as an aggravating factor that weighs against leniency, regardless of the offender's age or background.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Road Transport Act 2013 (NSW), s 53(3)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346 (guideline judgment for aggravated robbery)
- R v Barker & Gibson [2006] NSWCCA 20 (objective seriousness of aggravated car-jacking)
- Bugmy v The Queen (2013) 249 CLR 571 (social disadvantage and moral culpability)
- Cahyadi v R [2007] NSWCCA 1
- Dungay v R [2020] NSWCCA 209
- Locke v R (2010) 207 A Crim R 34
- Nguyen v R [2007] NSWCCA 14
- Qoro v R [2020] NSWCCA 276
- R v Merrin (2007) 174 A Crim R 100
- Atkinson v Coles Supermarkets Pty Ltd [2020] NSWSC 1063