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District Court 11 March 2022

R v Black

[2022] NSWDC 236

Assault & violenceTheft & propertyFirearms & weapons
CRIME ROBBERY ARMED WITH OFFENSIVE WEAPON RECKLESS WOUNDING IN COMPANY SENTENCING RELEVANT FACTORS ON SENTENCE EARLY GUILTY TWO SEPARATE OFFENCES

Citation: R v Black [2022] NSWDC 236
Court: District Court of New South Wales
Date: 11 March 2022
Judge(s): Haesler SC DCJ

Background

In mid-2020, the offender became involved in two serious offences within a fortnight. On 25 July 2020, he drove two others to a service station in Balgownie so that one of them could carry out an armed robbery with a claw hammer. He agreed to share in the proceeds, which amounted to stolen cigarettes.

Less than two weeks later, on 7 August 2020, the offender attended a residential flat in Mangerton with two other men. He was armed with a machete and, when the male occupant opened the door, swung the weapon at the man's head. The blow caused an incised wound ten centimetres long that cracked the victim's skull. The victim required hospital treatment and suturing.

The offender was charged with armed robbery under s 97(1) of the Crimes Act 1900 and reckless wounding in company under s 35(3) of the same Act. He indicated a guilty plea at the earliest opportunity in the Local Court.

  • What was the appropriate objective seriousness of each offence, including the role of a getaway driver in an armed robbery?
  • How should maximum penalties and the standard non-parole period guide, without prescribing, the sentencing discretion?
  • What weight should be given to the offender's strong subjective case, including youth, prior good character, and a short period of criminality?
  • How should the two separate offences be accumulated into an appropriate aggregate sentence, while preserving the benefit of the early guilty pleas?
  • What role do general deterrence, specific deterrence, and the vindication of victims' dignity play when sentencing young, immature offenders?

Decision

Haesler SC DCJ held that both offences required full-time custodial sentences. Although the armed robbery carried a higher maximum penalty of 20 years compared to ten years for reckless wounding, the court found the reckless wounding to be objectively the more serious offence. This was because it involved a planned, nighttime home visit by three armed men, the use of a machete to the head, and a result that the court described as only "miraculous" in its limited severity.

On the armed robbery, the court found the offender's role as driver to be minimal in terms of active participation, but emphasised that the robbery could not have occurred without him. Drawing on the guideline in R v Henry (1999) 46 NSWLR 346, the court identified several favourable subjective features. Standing alone, the court observed, a non-custodial option might have been considered, but the accumulation of two offences made that impossible.

The court addressed intoxication as a circumstance that aggravated rather than mitigated the reckless wounding. Being drunk while armed with a machete made the offender's actions more unpredictable and the risk to victims greater. The court also rejected the absence of a Victim Impact Statement as any form of mitigation.

A strong subjective case was nonetheless acknowledged. The offender was young, had no prior criminal history, and the offending was confined to a short period. The court carefully structured the aggregate sentence to ensure that the 25% discount for early guilty pleas was not lost in the accumulation process. General deterrence and the vindication of victims' dignity were identified as significant sentencing considerations, though the court acknowledged the countervailing principle, drawn from Munda v Western Australia, that general deterrence carries less rational weight for impulsive offending by immature young men.

Orders Made

  • Early guilty plea discount of 25% applied to both offences.
  • For the armed robbery: an indicated sentence of one year and ten months.
  • For the reckless wounding: an indicated sentence of two years and seven months, with a non-parole period of one year and four months.
  • Aggregate sentence of three years imprisonment, commencing 11 March 2022.
  • Non-parole period of one year and six months, expiring 10 September 2023, on which date the offender is to be released to parole.
  • Balance of sentence of one year and six months to run from 11 September 2023, expiring 10 March 2025.
  • No time in pre-sentence custody to be taken into account.

Key Takeaways

  • Maximum penalties and standard non-parole periods serve as guides to sentencing discretion, not as starting points from which deductions are made. The District Court emphasised that the standard non-parole period must be given content but does not prescribe the minimum term.
  • A lower maximum penalty does not automatically reflect lesser objective seriousness. The reckless wounding, carrying a ten-year maximum, was assessed as more serious than the armed robbery, which carried a twenty-year maximum, because of the circumstances of actual violence involved.
  • Where an offender acts as a getaway driver in an armed robbery, the court may still attribute significant culpability even where the offender did not enter the premises, because the offence may not have occurred without that contribution.
  • Intoxication at the time of violent offending does not operate as a mitigating factor. In this case, it was treated as aggravating because it increased the unpredictability of the offender's conduct.
  • Sentencing young offenders with strong subjective cases, including good prior character and a brief period of criminality, does not displace the need for full-time custody where the offending involves serious violence in company. General deterrence, specific deterrence, and the vindication of victims' dignity all remain relevant considerations, even where impulsive or immature conduct is acknowledged.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): s 97(1) (armed robbery), s 35(3) (reckless wounding in company)

Cases
- BP v R [2010] NSWCCA 159
- Clarke-Jeffries v R [2019] NSWCCA 56
- Howard v R [2019] NSWCCA 109
- KT v R [2008] NSWCCA 51
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v Western Australia [2013] HCA 38
- Power v The Queen (1974) 131 CLR 623
- R v AEM [2002] NSWCCA 58
- R v Henry (1999) 46 NSWLR 346
- R v Herring (1956) 73 WN (NSW) 203
- R v Loveridge [2014] NSWCCA 120
- R v Naqelevuki [2021] NSWDC 748
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704