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District Court 5 July 2024

R v Forbes

[2024] NSWDC 270

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE FOLLOWING GUILTY VERDICTS ARMED WITH A DANGEROUS WEAPON

Citation: R v Forbes [2024] NSWDC 270
Court: District Court of New South Wales
Date: 5 July 2024
Judge: Fitzsimmons SC DCJ

Background

The offender was found guilty by a jury of seven offences arising from an armed robbery at Sussex Inlet RSL Club on 25 July 2019. He and an unidentified co-offender, both wearing balaclavas and armed with sledgehammers, broke into the closed club. The co-offender also carried a sawn-off double-barrelled shotgun (or imitation).

Six staff members remained in the club after closing. During the robbery, the offenders confronted and controlled those staff at gunpoint, forced the duty manager to open a safe, and stole $62,345 in cash. They then directed all six staff into the safe and locked them inside, where they remained for approximately 20 minutes until released by the club's general manager.

The offender had a prior conviction for a similar offence (a ram-raid ATM theft) for which he had served over six years' imprisonment. On the day of the robbery, he was under significant financial pressure, including rental arrears of $7,600 and a bank account balance of nine cents.

  • What was the appropriate aggregate sentence for one count of specially aggravated break and enter (with armed robbery in company while armed with a dangerous weapon) and six counts of detaining a person in company with intent to obtain advantage?
  • How should the principle of totality be applied across seven offences involving a single criminal episode but multiple victims?
  • What weight, if any, should be given to subjective mitigating factors, including the offender's background and personal circumstances?
  • What adjustments, if any, were warranted by the time the offender had already spent in custody?

Decision

The District Court sentenced the offender following agreed facts. Count 1 (specially aggravated break and enter) carried a maximum of 25 years and a standard non-parole period of 7 years. Each of Counts 2 to 7 (detaining a person in company) carried a maximum of 20 years with no standard non-parole period. Fitzsimmons SC DCJ treated these maximum penalties and the standard non-parole period as sentencing guideposts rather than fixed targets.

The court considered the significant objective seriousness of the offending. The attack was premeditated and carefully planned, involving prior reconnaissance visits to the club, the purchase of sledgehammers on the day, and exploitation of the offender's brother's employment at the venue. The victims were particularly vulnerable as locked-in employees confronted by armed offenders. The court acknowledged that the stolen cash was largely spent quickly, including a $15,000 cash deposit to the offender's landlord and a cash purchase of a television the following morning.

On subjective factors, the court considered the offender's difficult childhood, limited formal education, and history of substance use. However, the offender's prior conviction for a materially similar offence, his failure to rehabilitate, and his continued dishonesty (including attempts to construct a false alibi) significantly reduced the weight available to those factors. The offender offered no remorse and had not pleaded guilty.

Applying the totality principle, the court found that the six detention counts (Counts 2 to 7) involved the same criminal conduct but six individual victims, warranting significant concurrency with some accumulation to reflect that fact. As between Count 1 and the detention counts, the court applied a modest allowance for concurrency while recognising the distinct criminality of the break-and-enter offence. The resulting aggregate sentence of 17 years with a 10-year non-parole period was backdated to reflect 788 days already served in custody.

Orders Made

  • The offender is convicted of all seven offences.
  • An aggregate sentence of 17 years' imprisonment is imposed, expiring 8 May 2039.
  • A non-parole period of 10 years is imposed, expiring 8 May 2032.
  • The earliest date of eligibility for parole is 8 May 2032.
  • Orders made in accordance with the Short Minute of Consent Order signed by the parties on 28 June 2024.

Key Takeaways

  • The District Court applied the totality principle to avoid double punishment across seven offences arising from a single episode, but preserved some accumulation where each count involved a separate victim.
  • Premeditation and exploitation of insider knowledge (a family member's employment at the venue) were treated as factors elevating objective seriousness.
  • A prior conviction for a materially similar serious offence substantially reduced the weight accorded to the offender's subjective circumstances and diminished any rehabilitation prospects the court might otherwise have recognised.
  • Under ss 86(2) and 112(3) of the Crimes Act 1900, the maximum penalties of 20 and 25 years respectively function as sentencing guideposts rather than presumptive outcomes, calibrated against the overall criminality of the conduct.
  • Attempted construction of a false alibi, including calculated statements about phone records in intercepted conversations, was treated as a factor against the offender rather than a neutral matter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2), 97, 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A

Cases:
- De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32
- DR v R [2022] NSWCCA 151
- Dungay v R [2020] NSWCCA 209
- Hall v R [2021] NSWCCA 220
- Hesketh v R [2021] NSWCCA 262
- R v Henry (1999) 46 NSWLR 346
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v Newell [2004] NSWCCA 183
- R v Speechley [2012] NSWCCA 130
- Van Der Baan v R [2012] NSWCCA 5