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District Court 12 August 2021

R v Jackson

[2021] NSWDC 416

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Jackson [2021] NSWDC 416
Court: District Court of New South Wales
Date: 12 August 2021
Judge: R. J. Weber SC DCJ

Background

At around 12:10 AM on 27 September 2014, the offender and a co-offender entered a hotel in Richmond, NSW. The offender produced what appeared to be a black pistol and directed bar staff to hand over cash from the tills, while the co-offender entered the bar area and collected the money. The offender pointed the weapon at multiple people present, including bar staff, the hotel manager, and a security officer, making explicit threats to shoot them. The offenders fled with between $10,000 and $15,000 in cash.

The offender was arrested on 18 July 2019, nearly five years after the offence, and was found guilty at trial on 14 May 2021 of robbery armed with a dangerous weapon (a firearm or imitation firearm) contrary to section 97(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years imprisonment, with no standard non-parole period.

The sentencing hearing required the court to assess objective seriousness, consider a range of aggravating and mitigating factors, and determine an appropriate sentence in light of the guidelines established in R v Henry (1999).

  • How the Henry guidelines for armed robbery applied to the specific features of this offending, and what distinguished this case from the guideline scenario
  • Whether the level of planning exceeded the "limited planning" contemplated by Henry
  • Whether the weapon used was a real firearm or a replica, and how that affected the assessment
  • What aggravating factors were established, and whether they had been taken into account in a way that avoided double-counting
  • How the offender's background of social disadvantage, the significant delay between offence and sentencing, and parity with the co-offender's sentence affected the appropriate penalty
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the total sentence

Decision

Objective seriousness and the Henry guidelines

The court applied the framework from R v Henry as the starting point for assessing the appropriate sentence range. Several features distinguished this case from the guideline scenario. The offender was 41 at the time of the offence, not a young person as contemplated in Henry. The amount stolen was considerably more than a "small amount." No guilty plea was entered, removing any discount that would otherwise have applied. The offender also had an agreed background of significant social disadvantage, which the court noted was relevant to moral culpability.

Planning

The Crown argued that the offending reflected more than "limited planning," pointing to telephone intercept evidence suggesting the offender had surveyed the premises beforehand, the covering of his face, and the obtaining of a firearm. The court rejected this characterisation. The face covering was not treated as indicative of significant planning. The alleged surveillance was not established beyond reasonable doubt; the court found the relevant statement in the intercepts to be "verbal bravado" rather than evidence of actual reconnaissance. Critically, neither offender brought a bag to carry the stolen cash, which the court described as suggesting planning that was "not beyond the embryonic."

Use of the weapon and aggravating factors

The court accepted that the manner in which the weapon was used was a significant feature of objective seriousness. The firearm or replica was pointed directly at multiple individuals from close range and was accompanied by explicit verbal threats to shoot them. The court also accepted that two statutory aggravating factors were present: the offence was committed in company, and there were multiple victims. The court expressly noted these factors had not been applied when calibrating against the Henry range, to avoid double-counting.

Subjective factors and special circumstances

The court found that the offender's background of social deprivation was a relevant mitigating factor, consistent with the principles in PH v R [2009]. The delay of approximately five years between the offence and sentencing, while not excusing the conduct, was also taken into account. On parity, the court considered the sentence appropriate when measured against the co-offender's outcome. Special circumstances were found, on the basis that the offender would require extended counselling and supported reintegration into the community given the significant portion of his adult life spent in custody. This justified a longer-than-standard ratio of parole to non-parole period.

Orders Made

  • The offender was sentenced to a term of imprisonment of 3 years and 8 months, with a non-parole period of 2 years and 2 months.
  • The sentence was backdated to commence on 18 July 2019 (the date of arrest).
  • The non-parole period was set to expire on 17 September 2021, with the balance of the sentence expiring on 17 March 2023.

Key Takeaways

  • The District Court confirmed that the Henry guidelines remain the appropriate framework for armed robbery sentencing, but applied them with careful attention to distinguishing features including the offender's age, the amount stolen, the absence of a guilty plea, and a background of social disadvantage.
  • A finding that an offender "cased" premises before a robbery must be established beyond reasonable doubt before the court can treat it as an aggravating feature; absent that standard, the fact cannot be used against the offender.
  • Failure to bring a bag to collect stolen cash was treated as concrete evidence that planning did not exceed the "limited" threshold in Henry, even where other superficially preparatory conduct existed.
  • Special circumstances were established where an offender with a history of significant time in custody would require extended psychological support and structured reintegration into the community upon release.
  • Aggravating statutory factors (commission in company, multiple victims) must be accounted for separately from the Henry baseline calculation to avoid the error of double-counting.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2) (robbery armed with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- Markarian v The Queen (2005) 228 CLR 357 (instinctive synthesis approach to sentencing)
- PH v R [2009] NSWCCA 161 (social deprivation as a mitigating factor)
- R v Todd (1982) 2 NSWLR 517 (sentencing principles)