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Supreme Court 14 February 2023

R v Honeysett (No 2) (Sentence)

[2023] NSWSC 103

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ATTEMPTED ROBBERY IN COMPANY COGNITIVELY IMPAIRED OFFENDER LIMITED ROLE IN PLANNING SIGNIFICANT ROLE IN ATTACK

Citation: R v Honeysett (No 2) [2023] NSWSC 103
Court: Supreme Court of New South Wales
Date: 14 February 2023
Judge: Hamill J

Background

On 11 September 2020 in Griffith, the offender and two co-offenders lured a victim to a location under a false pretext and attempted to rob him of his motor vehicle. The offender armed himself with a metal tube and struck the victim several times during the struggle. A co-offender stabbed the victim, who later died. The offender was not aware the co-offender was carrying a knife and played no part in the stabbing.

The offender was originally charged with both murder and attempted robbery in company under s 97(1) of the Crimes Act 1900 (NSW). On the eve of a voir dire concerning the admissibility of his electronically recorded interview, he pleaded guilty to the attempted robbery count. The DPP accepted that plea in full discharge of the indictment, and the murder charge was formally withdrawn.

The sentencing hearing proceeded the following day. Several mitigating factors featured prominently, including the offender's significant cognitive impairment, his Indigenous background, a childhood marked by severe deprivation and neglect, his limited role in planning the offence, and the fact that he had already spent over two years in custody awaiting trial.

  • What was the appropriate objective seriousness of the attempted robbery, given the offender's limited planning role and the need to disregard the victim's death?
  • How should the offender's cognitive impairment, Indigenous background, and deprived upbringing affect his moral culpability and the sentence?
  • What sentencing discount applied under the prescriptive statutory scheme for the guilty plea?
  • How should parity be maintained with a co-offender who received an Intensive Correction Order after agreeing to assist the prosecution?
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio, and how to approach backdating given time already served.

Decision

Hamill J assessed the offence as falling slightly below the mid-range of objective seriousness for all offences under s 97 of the Crimes Act. Two offenders were armed, the attack was planned and involved a calculated deception, and the victim was entirely innocent. However, the offender played little or no part in devising the plan, was not aware a knife was present, and could not lawfully be punished for the victim's death. The starting point was set at two years' imprisonment.

On moral culpability, Hamill J gave substantial weight to the offender's cognitive impairment and his profoundly disadvantaged upbringing. His Honour described the circumstances as an example of "scandalous neglect of young Indigenous people," drawing on the principles in R v Henry and subsequent Court of Criminal Appeal authority. These factors meaningfully reduced the offender's moral culpability without excusing the offending.

On the guilty plea discount, the prosecution conceded a 25% discount was appropriate under the prescriptive statutory scheme in the Crimes (Sentencing Procedure) Act 1999 (NSW). Hamill J accepted that concession. Applying the discount to the two-year starting point produced a total sentence of 18 months. His Honour also found special circumstances existed, given the length of time the offender had awaited sentencing and the potential relevance of the ratio for future sentencing exercises, reducing the non-parole period to 12 months.

On parity, Hamill J noted that a co-offender had received an Intensive Correction Order after agreeing to assist the prosecution, but found the same two-year starting point was appropriate for the present offender. The different ultimate dispositions were explicable by that co-offender's undertaking, not by any difference in the objective gravity of the conduct. Because the total sentence, when backdated to October 2020, had already been served, a full-time custodial order was the only legally available disposition, and the sentence was structured accordingly.

Orders Made

  • The offender was convicted of attempted robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW).
  • Non-parole period of 1 year, commencing 10 October 2020 and expiring 9 October 2021.
  • Additional term (balance of parole) of 6 months, commencing 10 October 2021 and expiring 9 April 2022.
  • The murder charge was formally discharged upon the DPP's acceptance of the guilty plea to the robbery count.
  • A mathematical error in the ex tempore judgment was corrected under the common law slip rule, with the consent of the parties, to give effect to the intended 25% discount from a two-year starting point.

Key Takeaways

  • A sentencing court must disregard consequences of a joint criminal enterprise that the offender neither foresaw nor was complicit in, even where those consequences are as grave as the death of the victim.
  • Cognitive impairment and a childhood marked by severe deprivation and systemic neglect can substantially reduce an offender's moral culpability, and Hamill J applied that principle with particular force in the context of the offender's Indigenous background.
  • Under the prescriptive plea discount scheme in the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25% discount remained available where the prosecution conceded it was appropriate, consistent with the approach in Black v R and related Court of Criminal Appeal authorities.
  • Parity principles require the same starting point where co-offenders are of comparable culpability; differences in ultimate disposition can be justified by individual factors such as an undertaking to assist the prosecution, without disturbing the underlying objective assessment.
  • Where a sentence, once backdated to reflect time already served awaiting trial, has been wholly served by the date of sentencing, a full-time custodial order remains the only legally appropriate disposition, and the court has no discretion to impose an alternative.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25D, 25E

Cases:
- Black v R [2022] NSWCCA 17
- Bresnahan v R [2022] NSWCCA 288
- Green v R [2022] NSWCCA 230
- Ke v R [2021] NSWCCA 177
- R v Camilleri [2021] NSWSC 221
- R v Cardoso [2003] NSWCCA 15
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Honeysett [2023] NSWSC 76 (related decision)
- R v Rifai [2022] NSWDC 74
- R v Tailford (No 2) [2021] NSWSC 695
- Regina v Darrell Terry McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14