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District Court 6 May 2022

R v Karen Ah-See

[2022] NSWDC 192

Assault & violenceTheft & property
CRIME ROBBERY IN COMPANY SENTENCING RELEVANT FACTORS LIMITED DEGREE OF PLANNING PRIOR CRIMINALITY ALCOHOL AND DRUG MISUSE

Citation: R v Ah-See [2022] NSWDC 192
Court: District Court of New South Wales
Date: 6 May 2022
Judge: Coleman SC DCJ

Background

The offender pleaded guilty to robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum sentence of 20 years imprisonment. The offence arose from an elaborately staged fake iPhone sale arranged via Facebook Marketplace in January 2021.

The victim had arranged to purchase an iPhone 12 for $950. He was lured to a Bidwill address in the early morning of 25 January 2021, where the offender met him with an iPhone 11 instead. When the victim declined the substitute device and moved to return to his car, an unidentified male produced a butcher's knife, threatened to stab the victim, and demanded his cash. The victim surrendered $700. The offender then entered the victim's car and removed a further $140 from his wallet before the pair fled.

The offender had been communicating with a person called "Gee" in the lead-up to the offence. She had pleaded guilty at the first available opportunity in the Local Court and was therefore entitled to the maximum 25% discount for the utilitarian value of that early plea.

  • Whether the offender had engaged in substantial planning of the robbery, or whether the robbery was a spontaneous escalation of a fraudulent transaction
  • How the R v Henry (1999) guideline judgment applied to the sentencing exercise for robbery in company
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the balance of term
  • How to account for time already spent in custody, including time not solely referable to the present offence, in light of the totality principle

Decision

Planning. Coleman SC DCJ accepted the offender's submission that planning for the robbery could not be established beyond reasonable doubt. The communications between the offender and "Gee" on 24 January were equally consistent with an intention to fraudulently pass off an iPhone 11 as an iPhone 12. Crucially, the unidentified male who participated in the robbery on 25 January was a different person from Gee. The court found no substantial planning for the robbery. The court also found it could not be established beyond reasonable doubt that the offender knew her co-offender had a knife before it was produced. However, once the knife appeared, the offender continued to participate actively in the robbery.

Application of the Henry guideline. The R v Henry guideline, which sets a reference range of 4 to 5 years for armed robbery, applies equally to robbery in company. The court considered the common features identified in that guideline, as well as aggravating and mitigating factors specific to this offender. The court noted that robbery in company is a crime against the person, not merely a property offence, and that condign punishment is required to reflect the serious harm such offences cause victims. A starting sentence of three years was set before the 25% discount was applied, yielding a head sentence of two years and three months.

Special circumstances. The court accepted that special circumstances existed within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Relevant factors included the effects of the COVID-19 pandemic on in-custody rehabilitation programs and supervision, and the significant risk of institutionalisation given that the offender had spent 1,246 days in custody between March 2010 and April 2022. A non-parole period of 18 months was set, representing a lower proportion of the head sentence than the statutory default.

Backdating. The offender had spent 26 days in custody solely referable to the present offence and a further 168 days in custody that was not solely referable to it. Applying the totality principle, the court backdated the sentence by a total of 120 days rather than the full 194.

Orders Made

  • The offender was convicted of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW)
  • Sentenced to imprisonment for two years and three months (after the 25% early plea discount applied to a head sentence of three years)
  • Non-parole period set at 18 months (special circumstances found)
  • Sentence backdated to commence 6 January 2022
  • Sentence to expire 5 April 2024
  • First eligible parole date: 5 July 2023

Key Takeaways

  • The District Court confirmed that the R v Henry guideline judgment, which sets a 4 to 5 year reference range for armed robbery, applies equally to the offence of robbery in company under s 97(1) of the Crimes Act 1900 (NSW).
  • Where a co-offender's possession of a weapon cannot be established beyond reasonable doubt, a sentencing court will not treat that weapon as part of the offender's own conduct, though continued active participation after the weapon is revealed remains a relevant aggravating consideration.
  • A limited degree of planning is a mitigating factor in the sentencing exercise; where ambiguous communications are equally consistent with an intention to commit fraud rather than robbery, planning for the more serious offence cannot be found to the requisite standard.
  • Substantial periods of prior imprisonment, combined with the disruption of rehabilitation programs during the COVID-19 pandemic, can support a finding of special circumstances justifying a reduction in the non-parole period below the statutory ratio.
  • In applying the totality principle when backdating a sentence, a court is not required to credit all time in custody that is not solely referable to the offence being sentenced; the court retains discretion to credit a portion that avoids a crushing overall sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24(a), 25D(2)(a), 44, 47(2)(a)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery/robbery in company)
- R v Murchie [1999] NSWCCA 424; 108 A Crim R 482 (Henry applies to robbery in company)
- R v Il [2008] NSWSC 325 (Henry applies to robbery in company; methodology for guideline application)
- Arnold v R [2011] NSWCCA 150 (risk of institutionalisation supports special circumstances finding)
- Bugmy v R [2013] HCA 37; 302 ALR 192
- R v Blackman [2001] NSWCCA 121
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Veen v R (No 2) [1998] HCA 14; 77 ALR 385