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District Court 15 December 2021

R v Hunter

[2021] NSWDC 728

Assault & violenceDrugsTheft & property
CRIME ROBBERY IN COMPANY RELEVANT FACTORS ON SENTENCE QUASI CUSTODY DRUG ADDICTION FROM EARLY AGE PENALTIES

Citation: R v Hunter [2021] NSWDC 728
Court: District Court of New South Wales
Date: 15 December 2021
Judge: R. J. Weber SC DCJ

Background

The offender, an 18-year-old male at the time of the offences, pleaded guilty to one count of robbery in company and one count of demanding property with menaces with intent to steal. Both offences occurred in early 2020 in Sydney's south, and both were committed while the offender was subject to conditional liberty: a Children's Court bond for affray, and subsequently bail for the robbery offence.

The robbery in company arose from an incident in a Caringbah alleyway on 8 February 2020, in which the offender and a co-offender confronted three young men, pushed them against a fence, and took cash totalling $163 from their wallets. The demand property offence occurred on 31 March 2020, when the offender approached a pedestrian in Gymea, falsely claimed to have a knife, and demanded he empty his pockets. The victim called out that there was a CCTV camera, turned to face the offender (who had no knife), and the offender fled. Police arrested him shortly after, during which he resisted a pursuing officer.

Two additional Form 1 matters were attached to the robbery count (a further robbery in company and an attempted robbery in company), and a count of resisting an officer in the execution of his duty was attached to the demand property count. The court took all Form 1 matters into account in increasing the penalties it would otherwise have imposed.

  • What was the appropriate sentence for robbery in company under s 97(1) of the Crimes Act 1900 (NSW), having regard to the R v Henry guideline judgment and the offender's subjective circumstances?
  • What weight should be given to aggravating factors, including that both offences were committed while the offender was on conditional liberty?
  • How should time spent in custody and "quasi-custody" (such as time in residential rehabilitation) be credited against the sentence?
  • Whether an Intensive Correction Order (ICO) was an appropriate sentencing disposition, given the offender's assessed suitability and medium risk of reoffending.

Decision

The court assessed both offences as falling below the mid-range of objective seriousness, but not in the low range. Both parties agreed with that characterisation, and the court proceeded on that basis. Aggravating the offences was the fact that each was committed while the offender was on conditional liberty, a factor the offender himself accepted.

On subjective circumstances, the court considered that the offender came from a disrupted family background, had left school in Year 9, and had developed a serious drug addiction from a young age that had interfered with his employment and contributed to his offending. A psychological report from a consultant psychologist was before the court, and the judge noted some optimism about the offender's prospects of rehabilitation, particularly given his engagement with the Restoration Centre, a residential drug rehabilitation facility at Kellyville.

The court applied the R v Henry guideline, which suggests a full term of 4 to 5 years for offences of that character, while noting the authorities confirm it is a guide or "sounding board" rather than a rigid formula. A 5% discount was applied for the plea of guilty, reflecting the late timing of the plea (entered after COVID-related adjournments of a listed trial date). The court calculated a starting sentence of 3 years imprisonment, then reduced that sentence to 1 year and 10 months to account for time already served in custody and in quasi-custody (including time at the Restoration Centre), rounding down in the offender's favour.

Having obtained a Sentencing Assessment Report confirming ICO suitability and noting a "medium" risk of reoffending (which the court considered may be somewhat overstated), the judge ordered the sentence be served in the community by way of an Intensive Correction Order rather than full-time custody.

Orders Made

  • The offender was convicted of robbery in company and demanding property with menaces with intent to steal.
  • A sentence of imprisonment of 1 year and 10 months was imposed, to be served in the community by way of an Intensive Correction Order (ICO) commencing 15 December 2021 and expiring 14 October 2023.
  • ICO conditions included:
  • Good behaviour and no further offences
  • Supervision by a Community Corrections officer
  • Completion of the residential treatment program at the Restoration Centre, Kellyville
  • Continuing as an outpatient subject to the directions of the Restoration Centre's General Manager
  • Residing with his father upon completing residential treatment
  • Attending rehabilitation courses or treatments as directed by the Restoration Centre or Community Corrections
  • Abstaining from alcohol and unprescribed drugs
  • Completing 12 hours of community service work per month
  • The offender was directed to attend the registry to acknowledge and have explained the ICO terms, and to report to the Sutherland Community Corrections office by telephone no later than 22 December 2021.

Key Takeaways

  • The District Court confirmed that the R v Henry guideline judgment (suggesting 4 to 5 years full term for robbery in company of the relevant character) functions as a guide or sounding board, not a mandatory formula, and must be applied in light of all individual circumstances.
  • Offences committed while the offender is on conditional liberty, including bail or a children's court bond, constitute a statutory aggravating factor that the court will weigh meaningfully against the offender.
  • A guilty plea entered after COVID-related adjournments of a listed trial attracted only a 5% discount, reflecting the late stage at which it was entered rather than the maximum available discount for early pleas.
  • Time spent in quasi-custody, including residential rehabilitation, may be credited against a sentence before the imposition of an ICO, consistent with the Court of Criminal Appeal's approach in Mandaris v R [2021] NSWCCA 97 and R v Edelbi [2021] NSWCCA 122.
  • An ICO remained available even where a Sentencing Assessment Report assessed the offender's reoffending risk as "medium," particularly where the sentencing court formed a view that the assessed risk may have been somewhat overstated having regard to the offender's subjective circumstances and rehabilitation efforts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 99(1), 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on robbery in company)
- Mandaris v R [2021] NSWCCA 97 (quasi-custody credit before ICO)
- R v Edelbi [2021] NSWCCA 122 (quasi-custody credit)
- Markarian v The Queen (2005) 228 CLR 357
- R v Jurisic (1998) 45 NSWLR 209
- R v Pullen [2018] NSWCCA 264
- Legge v R [2007] NSWCCA 244