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District Court 18 February 2022

R v White

[2022] NSWDC 265

Assault & violenceTheft & propertyFirearms & weapons
CRIME RELEVANT FACTORS ON SENTENCE GUILTY PLEA JOINT CRIME BUT LESSER CULPABILITY YOUNG OFFENDER SIGNIFICANT CHILDHOOD DEPRIVATION

Citation: R v White [2022] NSWDC 265
Court: District Court of New South Wales
Date: 18 February 2022
Judge: Haesler SC DCJ

Background

The offender, a 25-year-old woman born in 1996, pleaded guilty to two counts of robbery while armed with a dangerous weapon, with a further offence of damaging property by fire taken into account on a Form 1. All three offences arose from events on 13 April 2021 in the isolated Mt Keira area near Wollongong.

On that morning, the offender and her co-offender, a 42-year-old man named Daniel, were together in a vehicle that had broken down. Over the course of about an hour, Daniel used what appeared to be a sawn-off shotgun (later confirmed to be an imitation firearm) to rob two victims: first a truck driver, whom he bound with electrical tape and detained for approximately 20 minutes, and then a second man parked at a nearby lookout. The offender played a supporting role throughout, guarding the first victim while Daniel took his truck, and remaining in the truck during the second robbery. An attempt was then made to set the truck alight, damaging its interior, before both offenders fled in the second victim's car.

The offender was arrested on 12 May 2021 after DNA evidence linked her to the offences, and she had been in custody from that date. She participated in a recorded police interview making partial admissions and ultimately entered guilty pleas in the Local Court, which she maintained at sentencing.

  • What sentence was appropriate for two counts of robbery while armed with a dangerous weapon, given the offender's lesser role in a joint offence committed with a more dominant co-offender?
  • What weight should be given to the offender's guilty pleas, cooperation with authorities, youth, significant childhood deprivation, history of drug use, and history of victimisation by older men?
  • Whether special circumstances existed justifying an adjustment to the standard ratio of non-parole period to total sentence, particularly given the offender's rehabilitation prospects.
  • How the Form 1 offence (damaging property by fire) should be reflected in the sentence for Count 1.

Decision

His Honour applied a 25% discount to each sentence to reflect the utilitarian value of the guilty pleas under s 25D of the Crimes (Sentencing Procedure) Act 1999. The pleas were entered following a comprehensive police investigation and the offender's own admissions, and her cooperation with authorities was also taken into account.

The court assessed the objective seriousness of the offences as significant. Both victims were confronted in isolated locations, subjected to considerable psychological trauma, and forced into vulnerable positions by two apparently desperate individuals acting under the influence of drugs. Although the imitation firearm could not fire a projectile, neither victim knew this, and each genuinely feared being shot. The court noted that while there was little premeditation, Daniel had engaged in some active planning, and the offender had pre-knowledge of the firearm, having handled and passed it to him. Her drug use at the time, including methamphetamine consumed on an almost hourly basis, did not mitigate the offending and was regarded as making both offenders more dangerous.

The court accepted that the offender played a lesser role than Daniel. He was the principal, he produced and wielded the weapon, he controlled each victim, and he drove the stolen truck. Her role, however, was not passive: she guarded the first victim, she called out to Daniel to hurry, and she was present throughout. The court accepted her evidence, on the balance of probabilities, that she was unaware the truck had been set alight until spoken to by police, though she had accepted guilt for that matter on the Form 1.

His Honour placed significant weight on the offender's background: a history of childhood deprivation, prolonged drug use since her early teens, a pattern of falling in with older and manipulative men (a pattern repeated in her relationship with the 42-year-old Daniel), and her status as effectively a first offender for serious offences. The court made a substantial finding of special circumstances, recognising that a longer parole period was necessary to support rehabilitation. The need for the community's protection, denunciation, deterrence, and the vindication of victims' dignity were all acknowledged as weighty considerations, but the court found that rehabilitation remained a genuine and important objective in this case.

Orders Made

  • Count 1 (robbery while armed, with Form 1 damage by fire taken into account): four years imprisonment.
  • Count 2 (robbery while armed): three years imprisonment.
  • Aggregate sentence of four years and four months imprisonment.
  • Sentence to commence on 12 May 2021.
  • Non-parole period of two years and four months, with eligibility for parole consideration from 11 September 2023.
  • Parole period of two years from that date.

Key Takeaways

  • In sentencing a joint offender for armed robbery, the District Court gave meaningful weight to the principle that a participant's culpability must be assessed individually, even where the offending was serious and the victims suffered significant psychological harm.
  • A guilty plea's value extends beyond its utilitarian component: His Honour noted that a plea carries additional significance beyond the formal percentage reduction, and those additional factors are to be synthesised into the overall sentencing exercise.
  • Significant childhood deprivation and a history of victimisation and manipulation by older men are relevant mitigating circumstances in sentencing, consistent with the High Court's approach in Bugmy v The Queen (2013) 249 CLR 571, though they cannot excuse serious offending.
  • Drug intoxication at the time of offending did not mitigate: the court treated the offender's near-continuous methamphetamine use as an aggravating feature, on the basis that it rendered her and her co-offender more dangerous and their conduct more irrational.
  • A substantial special circumstances finding was made where a young, effectively first-time offender with genuine rehabilitation prospects required a longer supervisory period on parole to maximise the prospects of successful reintegration into the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 136
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Irwin v R [2019] NSWCCA 133
- Johnson v R [2010] NSWCCA 124
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Millwood v R [2012] NSWCCA 2
- Moodie v R [2020] NSWCCA 160
- Munda v Western Australia [2013] HCA 38; 249 CLR 600
- Postiglione v The Queen (1997) 189 CLR 295
- R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Herring (1956) 73 WN (NSW) 203
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Windle [2012] NSWCCA 222
- R v XX (2009) 195 A Crim R 38
- Ryan v The Queen (2001) 206 CLR 267