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District Court 5 October 2022

R v Jackson

[2022] NSWDC 450

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING AGGRAVATED (ARMED) ROBBERY APPLICABILITY OF BUGMY PRINCIPLES OFFENCES COMMITTED IN 2001 SIGNIFICANCE OF DELAY

Citation: R v Jackson [2022] NSWDC 450
Court: District Court of New South Wales
Date: 5 October 2022
Judge: Abadee DCJ

Background

The offender pleaded guilty to two serious offences arising from an armed robbery at a jewellery store in Erina on 25 October 2001. He robbed the store owner of approximately $55,000 in cash and jewellery while armed with a shortened rifle, and shortly afterwards discharged that firearm in the direction of an off-duty police officer who had pursued the getaway vehicle on foot.

The offending did not come to light until 2018, when a police informant named the offender during an electronically recorded interview. Surveillance listening devices subsequently captured the offender making incriminating references to the robbery and the shooting. He was taken into custody in July 2019 and appeared for sentence in October 2022, more than 21 years after the events in question.

A third matter, an offence of being carried in a stolen motor vehicle (which had served as the getaway car), was admitted on a Form 1 and taken into account for sentencing on the principal robbery count.

  • Whether the R v Henry guideline judgment applied to sentencing for the aggravated robbery offence
  • Whether the Bugmy principles applied in light of the offender's background of childhood disadvantage
  • What weight to give to the extraordinary delay between the 2001 offending and the 2022 sentencing
  • The appropriate discount for guilty pleas entered at different stages
  • Whether the parity principle required regard to be had to the sentence imposed on the police informant
  • Whether special circumstances existed justifying a longer than standard parole period
  • How the totality principle should apply to aggregate the sentences for the two distinct offences

Decision

The District Court held that the R v Henry guideline judgment applied to the aggravated robbery offence, as the offence fell within the category of armed robberies to which that guideline is directed. The court also applied Bugmy principles, acknowledging the offender's childhood disadvantage as a mitigating factor going to moral culpability, while noting that such disadvantage does not diminish the need to protect the community or to hold an adult offender to account.

The court placed considerable weight on the objective gravity of both offences. Pointing a loaded shortened rifle at the store owner's stomach, at his 15-year-old son, and at staff, and then firing a shot toward a pursuing police officer from a moving vehicle at close range, placed the offending at the serious end of the respective scales. The additional offence of travelling in the stolen getaway vehicle was found to have enabled the principal offending and to elevate the weight given to specific deterrence and retribution.

The significant delay between offending and sentencing was treated as a relevant but not determinative factor. The parity principle was considered in light of the sentence received by the informant, though the court imposed its own assessment of the offender's criminality independently. Guilty plea discounts of 10 per cent were applied to the aggravated robbery count (the plea having been entered on the eve of trial) and 25 per cent to the firearm discharge count (which was the subject of an ex officio indictment to which the offender pleaded promptly). Special circumstances were found to exist given the offender's psychological needs and the desirability of a supervised transition back into the community, resulting in a non-parole period that departs from the statutory default ratio.

The court applied the totality principle to impose an aggregate sentence, allowing some concurrency given that the discharge offence occurred substantially within the same episode, while accumulating a portion of the firearm sentence to reflect the distinct nature of that offending and the different victim.

Orders Made

  • The offender was convicted of both the aggravated robbery offence and the firearm discharge offence.
  • An aggregate sentence of 10 years' imprisonment was imposed, commencing 20 July 2019 and expiring 19 July 2029.
  • A non-parole period of 6 years and 6 months was set, expiring 19 January 2026, after which the offender becomes eligible for release on parole.
  • The sentence was backdated to 20 July 2019, the date the offender was taken into custody.

Key Takeaways

  • The District Court confirmed that the R v Henry guideline applies to aggravated (armed) robbery even where sentencing occurs decades after the offending, with the applicable maximum penalties being those in force at the time of the offence.
  • Bugmy principles require a sentencing court to take childhood disadvantage into account when assessing moral culpability, but that recognition does not displace the purposes of specific deterrence, general deterrence, retribution, and community protection.
  • Where a plea of guilty is entered only on the eve of a jury trial, the discount available for that plea is substantially reduced; a 10 per cent discount for the robbery count (compared with 25 per cent for the count to which the offender pleaded promptly) illustrates this principle in practice.
  • Substantial delay between offending and sentencing is a relevant sentencing consideration, but the weight it carries depends on the particular circumstances, including the reason the offending remained undetected.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) may be warranted where an offender's psychological needs and entrenched recidivism make a longer supervised parole period appropriate, even in cases involving serious offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 33A, 97, 117, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases
- Bugmy v R (2013) 249 CLR 571
- Lloyd v R [2017] NSWCCA 303
- R v Alameddine [2004] NSWCCA 286
- R v Hamied [2007] NSWCCA 151
- R v Hathaway [2005] NSWCCA 368
- R v Henry (1999) 46 NSWLR 346
- R v Shorten [2005] NSWCCA 106
- R v Todd [1982] 2 NSWLR 517
- R v Way (2004) 60 NSWLR 168
- Taylor v R [2015] NSWCCA 12
- The Queen v De Simoni (1981) 147 CLR 383
- Veen v R (No.2) (1988) 164 CLR 465
- Jackson v R [2010] NSWCCA 162