Citation: R v Soli [2022] NSWDC 330
Court: District Court of New South Wales
Date: 31 March 2022
Judge: Bourke SC DCJ
Background
The offender pleaded guilty to one count of robbery armed with an offensive implement, contrary to the Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment. The offending took place on a highway near Branxton in the early hours of 7 March 2021.
The offender, travelling as a passenger in a silver hatchback, pulled over the victim's car on the Hunter Expressway by using flashing lights to simulate a law enforcement stop. The offender then approached the victim and his companion while brandishing an implement that appeared to both men to be a sawn-off double barrel shotgun. He demanded the victim empty his pockets, entered the victim's car, and drove it away, forcing the victim to jump clear. The stolen property included the victim's Toyota Prado, wallet, mobile phone, and assorted tools. The companion identified the offender to police, and subsequent DNA and fingerprint evidence placed the offender in the vehicle.
The offender was arrested on 12 March 2021 on unrelated matters and found in possession of the victim's mobile phone. He was later arrested and charged with the robbery on 13 May 2021 while already in custody. He pleaded guilty at the earliest opportunity.
Legal Issues
- What discount was appropriate for the early guilty plea?
- How should the objective seriousness of the offence be assessed, particularly given the nature of the offensive implement and the presence of an accomplice?
- How should the De Simoni principle operate to prevent the sentencing court from treating the implement as a "dangerous weapon" and thus sentencing for a more serious offence than that charged?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
- What starting point and final head sentence was appropriate, and from what date should the sentence run, having regard to existing Local Court sentences and totality principles?
Decision
Guilty plea discount. The offender received a 25% discount on his sentence for the utilitarian value of his early guilty plea. This was the maximum standard discount available in the circumstances.
Objective seriousness. Bourke SC DCJ assessed the offence as below mid-range in objective seriousness, while acknowledging it remained a serious armed robbery. The weapon had the appearance of a sawn-off double barrel shotgun and was pointed directly into the victim's face. The offence was committed in company, and the property stolen was of considerable value. Mitigating factors included the minimal planning involved, the relatively short duration of the incident, and the offender's failure to take any steps to conceal his identity or avoid leaving forensic evidence.
The De Simoni principle. The court was careful to avoid sentencing the offender for an offence more serious than that charged. Section 97(2) of the Crimes Act 1900 creates a distinct and more serious offence of robbery while armed with a "dangerous weapon," carrying a maximum of 25 years. Because the implement was not proven to be a dangerous weapon within the meaning of that provision, the court confined its assessment to the s 97(1) offence and did not treat the weapon's appearance as escalating the seriousness beyond what that charge permits.
Special circumstances and sentence calculation. The court found special circumstances based on the offender's relative youth, this being his first substantial period of custody, the need for extended post-release supervision, and the impacts of the COVID-19 pandemic on prisoners. Starting from a head sentence of four years and three months, the court applied the 25% discount to arrive at a head sentence of three years and two months, with a non-parole period of one year and nine months. The sentence was backdated to 13 May 2021, the date of the offender's arrest on this charge, providing a degree of concurrency with the existing Local Court sentences while maintaining some accumulation.
Orders Made
- Head sentence of three years and two months imprisonment, commencing 13 May 2021 and expiring 12 July 2024.
- Non-parole period of one year and nine months, expiring 2 February 2023.
- Finding of special circumstances recorded.
- Copies of the psychological report (Jason Borkowski, 9 March 2022) and psychiatric report (Dr Gordon Elliot, 23 April 2021) to be forwarded to Corrective Services and Justice Health.
Key Takeaways
- The District Court applied the De Simoni principle carefully, declining to treat the threatening appearance of the implement as equivalent to a proven "dangerous weapon" under s 97(2) of the Crimes Act 1900, which would have attracted a higher maximum penalty and potentially heavier sentencing.
- Armed robbery will ordinarily attract a full-time custodial sentence of some severity, reflecting both personal and general deterrence, given that robbery is an offence against persons as well as property.
- A 25% discount for an early guilty plea in an armed robbery matter remains available and was applied in full here, consistent with the utilitarian value principle confirmed in R v Henry & Ors and related authorities.
- Special circumstances can be established by a combination of the offender's youth, first experience of significant custody, post-release supervision needs, and the impact of the COVID-19 pandemic on conditions of imprisonment.
- Where an offender is already serving a Local Court sentence, the commencement date of a new sentence involves a discretionary assessment of totality principles, and some degree of concurrency with existing sentences may be appropriate.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) and s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- BP v R [2010] NSWCCA 159
- R v De Simoni (1981) 147 CLR 383
- R v Harris [2011] NSWCCA 105
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Johnson [2004] NSWCCA 446