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District Court 12 April 2023

R v Alcock

[2023] NSWDC 326

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences

Citation: R v Alcock [2023] NSWDC 326
Court: District Court of New South Wales
Date: 12 April 2023
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to specially aggravated break, enter and commit a serious indictable offence (namely, robbery armed with a dangerous weapon) under s 112(3) of the Crimes Act 1900 (NSW), and to possession of a prohibited weapon (a flick knife) without a permit. The principal offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. Two further matters were placed on a Form 1 to be taken into account on sentence: knowingly dealing with proceeds of crime and possession of a knuckle duster.

The underlying events involved a violent home invasion at a residential address in southern Wollongong in the early hours of 10 February 2021. Four masked men forced their way into a home, threatened the occupants with a firearm and a machete, physically assaulted the female victim, and stole a collection of opals valued by the owner at approximately $500,000. The offence was planned, well-coordinated, and executed quickly.

The offender appeared for sentence as one of four co-offenders. Linked proceedings involving the others were before the same judge, enabling direct comparison for parity purposes.

  • Whether the offender could be found, beyond reasonable doubt, to have held the firearm during the robbery, given disputed facts and contested co-offender evidence
  • How the court should evaluate evidence from a co-offender who had received a cooperation discount, without a formal Evidence Act application
  • Where the offence fell on the spectrum of objective seriousness by reference to the guideline judgment in R v Henry
  • Whether it was appropriate to impose a non-conviction order under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the flick knife offence, or whether a custodial term was warranted
  • How to apply the 25% guilty plea discount, find special circumstances, and fix the sentence start date to achieve overall proportionality (totality)

Decision

Disputed role: firearm
The Crown sought a finding that the offender was the person who held the firearm to the female victim's forehead. The judge heard evidence from a co-offender (who had been promised a cooperation discount of approximately 20%) and considered victim identification evidence and telephone intercepts. His Honour found the co-offender was not an altogether convincing witness and could not be accepted as a witness of truth in describing the roles of the participants. The victim's descriptions also did not accord with photographic evidence in material respects. Applying the relevant principles, the judge declined to find beyond reasonable doubt that the offender held the gun. The judge observed, however, that the precise role mattered little given the offender's integral participation: he helped plan the offence, drove his own disguised vehicle, and received a share of the proceeds.

Objective seriousness
Applying the R v Henry guideline, the judge characterised the offence as falling well above the guideline range. Multiple aggravating features were present: use of multiple weapons, the intensity of their deployment, actual corporeal violence against the female victim, brief isolation of the male victim, the planned and well-executed nature of the enterprise, and the substantial value of the property taken.

Flick knife offence
Defence counsel submitted that it would be inexpedient to impose any additional penalty for the flick knife, relying on s 10A of the Crimes (Sentencing Procedure) Act. The judge rejected that submission. The knife was kept alongside other weapons, its possession served no lawful purpose, and the offender's antecedent history made a custodial sentence appropriate, albeit a modest one.

Mitigating factors and sentence construction
The judge accepted the full utilitarian value of the early guilty plea, reducing the sentence by 25%. Mitigating personal circumstances, including the offender's background, the impact of multiple traumas, and illicit drug use (consistent with the principles in Bugmy v The Queen), were given full weight despite the offender's prior record. A finding of special circumstances was made, extending the parole period beyond the statutory default. The sentence was backdated to 11 May 2022, approximately one year after the offender entered custody, to reflect time already served.

Orders Made

  • For the s 112(3) offence (taking into account the Form 1 matters): 6 years and 9 months imprisonment, with a non-parole period of 4 years and 2 months
  • For the flick knife offence: 9 months imprisonment
  • Aggregate sentence: 7 years imprisonment
  • Aggregate non-parole period: 4 years and 3 months
  • Sentence to commence: 11 May 2022
  • First eligible parole date: 10 August 2026 (subject to State Parole Authority determination)
  • Parole period: 2 years and 9 months (reflecting special circumstances finding), commencing 11 August 2026 and expiring 10 May 2029

Key Takeaways

  • A sentencing court may decline to make a factual finding adverse to an offender (here, that the offender wielded the firearm) where co-offender evidence is unreliable and victim identification evidence does not provide sufficient independent support to reach the required standard of proof beyond reasonable doubt.
  • Even where a specific disputed role cannot be established, an offender who planned the enterprise, provided resources, and shared in the proceeds remains an integral party to a joint criminal enterprise and is sentenced accordingly.
  • Under the R v Henry guideline for robbery offences, multiple weapon types, actual physical violence, isolation of a victim, and careful planning are all factors capable of placing an offence well above the guideline range.
  • Section 10A of the Crimes (Sentencing Procedure) Act (a provision allowing a court to record a conviction without imposing any further penalty) will not automatically apply to secondary offences simply because a substantial principal sentence is already being imposed; the nature of the conduct and the offender's history remain relevant.
  • Personal mitigating circumstances, including deprived background and the effects of trauma, retain their full weight on sentence even where an offender has a prior criminal record, consistent with the High Court's approach in Bugmy v The Queen.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112(3), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 42A
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), s 7(1)
- Evidence Act 1995 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hili v The Queen (2010) 242 CLR 520
- Millwood v The Queen [2012] NSWCCA 2
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Brennan (a pseudonym) [2023] NSWDC 328
- R v Gee [2023] NSWDC 327
- R v Goundar [2001] NSWCCA 198
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Munn [2023] NSWDC 264
- The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550