Citation: R v Thornton [2024] NSWDC 556
Court: District Court of New South Wales
Date: 27 September 2024
Judge: D Barrow SC DCJ
Background
The offender, a 25-year-old man with an extensive criminal history, pleaded guilty to armed robbery with wounding under s 98 of the Crimes Act 1900. The offending occurred on 1 July 2022 at a residential property on the Central Coast of NSW. The offender acted together with a co-offender in what the court characterised as a joint criminal enterprise.
The pair entered the victims' home armed with a replica firearm and a machete. Their stated aim was to locate money they believed was held at the property by one victim's father, who they understood to be a cannabis dealer. Two young men were present in the house at the time, neither of whom were the intended target. Both were subjected to threats of violence, including death threats, and one sustained machete wounds requiring surgery.
At sentencing, the court also took into account two further matters on a Form 1: a second armed robbery charge relating to the second victim in the same incident, and a stealing-from-dwelling charge involving cash and jewellery taken during the same episode. The offender had been in custody since his arrest on 8 July 2022.
Legal Issues
- What was the objective seriousness of the armed robbery with wounding, and where did it fall on the range?
- How should the standard non-parole period of 7 years inform the sentence?
- What discount applied to the guilty plea, given it was entered on the first day of trial?
- How should the offender's extensive criminal history, institutionalisation, and limited prospects for rehabilitation affect the sentence?
- Whether special circumstances justified a non-parole period shorter than the statutory standard.
- How should pre-sentence custody, including time served on a revoked parole order, be treated in fixing the commencement date?
Decision
Judge Barrow characterised the offending as at least mid-range in objective seriousness. Aggravating features included that the offence was committed in company, occurred inside the victims' home in broad daylight, involved the use of a replica firearm and a real machete, included explicit death threats, and resulted in physical injury to one victim requiring surgery. The court noted that the offender, as a participant in a joint criminal enterprise, bore responsibility for the injuries inflicted by his co-offender.
The court applied the guideline judgment in R v Henry [1999] 46 NSWLR 346, which treats armed robbery as a crime against the person, not merely against property. Although the firearm was a replica, the victims had no way of knowing that, and the terror caused was real. The court rejected any suggestion that the victims' circumstances (living in a household connected to cannabis dealing) reduced the gravity of the offence. The victims were innocent bystanders to the intended target's activities.
The guilty plea was entered on the first day of trial. Under s 25D(3)(c) of the Crimes (Sentencing Procedure) Act 1999, the parties agreed this attracted a 5% discount for utilitarian value. The offender's criminal history was extensive, and the court found he was significantly institutionalised. This weighed heavily against prospects of rehabilitation. The court was not satisfied that genuine remorse had been established. All purposes of sentencing applied: general deterrence, specific deterrence, community protection, denunciation, and the possibility of rehabilitation through a structured sentence.
Special circumstances were found, warranting a non-parole period shorter than the 7-year standard. The court accepted that three months of the pre-sentence custody period, during which the offender served the balance of a revoked parole order on unrelated matters, should be absorbed into the sentence. The sentence was set to commence on 7 October 2022.
Orders Made
- Count 2 (armed robbery with wounding of the first victim, NA): starting sentence of 7 years, reduced by 5% for the guilty plea to 6 years and 8 months.
- Non-parole period of 4 years and 2 months, commencing 7 October 2022, with earliest release to parole on 6 December 2026.
- Additional term of 2 years and 6 months.
- Full sentence to be served by 6 June 2029.
- Special circumstances found, resulting in a non-parole period below the standard.
- Form 1 matters (second s 98 offence and stealing from dwelling) taken into account.
Key Takeaways
- A participant in a joint criminal enterprise is responsible at sentencing for injuries inflicted by a co-offender during the course of that enterprise, even where the participant did not personally inflict those injuries.
- Armed robbery committed inside a victim's home, with weapons and death threats, and resulting in physical injury requiring surgery, will fall at least in the mid-range of objective seriousness for s 98 offences.
- Under s 25D(3)(c) of the Crimes (Sentencing Procedure) Act 1999, a guilty plea entered on the first day of trial attracts a utilitarian discount of only 5%.
- The District Court confirmed that the perceived character or activities of a victim's household do not diminish the gravity of an armed robbery against innocent persons present at that location.
- Where an offender's pre-sentence custody includes time served on a revoked parole order for unrelated matters, the sentencing court retains a discretion to incorporate only a portion of that period into the commencement date of the new sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 98 (armed robbery with wounding; maximum 25 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(3)(c) (guilty plea discount), s 21A (remorse as a mitigating factor)
Cases:
- R v Henry [1999] 46 NSWLR 346 (guideline judgment on armed robbery sentencing)