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Court of Criminal Appeal 8 December 2004

R v JOHNSON [2004] NSWCCA 446 revised - 17

[2004] NSWCCA 446

Theft & propertyFirearms & weapons

Citation: R v Johnson [2004] NSWCCA 446 revised – 17/02/2005
Court: NSW Court of Criminal Appeal
Date: 8 December 2004
Judges: Giles JA, Levine J, Hulme J

Background

The appellant pleaded guilty in the District Court to aggravated robbery under s 97(2) of the Crimes Act 1900 (NSW). On 3 May 2003, he rode to a service station, concealed his face with a helmet, and demanded money from two female attendants by revealing what appeared to be a firearm tucked into his pants. The weapon was in fact a pneumatically operated spear gun with no spear, power head, or pneumatic charge attached. The appellant took approximately $502.50, apologised to both attendants, and fled by motorcycle, only to be apprehended after a police chase. His blood alcohol reading at the time of arrest was 0.275.

District Court Judge English sentenced the appellant on 29 August 2003 to a total term of nine years imprisonment, comprising a non-parole period of six years commencing 3 May 2003 and a further term of three years. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.

The appellant had a prior criminal history that included a conspiracy to rob conviction and weapons and domestic violence related offences, though no prior convictions for armed robbery. He had suffered a serious back injury in late 2002 that caused constant pain, preceded significant alcohol abuse, and coincided with the breakdown of his relationship and estrangement from his children.

  • Whether the sentence of nine years (six years non-parole) imposed for aggravated robbery under s 97(2) of the Crimes Act 1900 (NSW) was manifestly excessive.
  • What weight should be given, in the context of re-sentencing, to the appellant's personal circumstances, including his physical and psychological condition, prior record, and post-sentence progress.
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and total sentence.

Decision

Hulme J, with whom Giles JA and Levine J agreed, found the original sentence manifestly excessive. His Honour analysed the circumstances of the offence in detail, noting that while the weapon satisfied the statutory definition of a "dangerous weapon" because it was a spear gun, it had no projectile or charge and was never displayed in a manner that would have clearly revealed its nature to the victims. The robbery was relatively brief, the sum taken was modest, and the appellant apologised to both attendants during the course of the offence.

Hulme J used the sentencing range established in R v Henry (1999) 46 NSWLR 346 as a guide, identifying factors pointing in both directions. The appellant's criminal record, his intoxication, and the fact that he committed the offence while subject to a bond and a recognisance were aggravating. Mitigating factors included the early guilty plea, the absence of a prior armed robbery history, the absence of hard drug use, the appellant's deteriorating physical and psychological condition in the lead-up to the offence, and his post-sentence conduct in custody.

The court accepted that personal deterrence, rehabilitation, and community protection did not loom large in this sentencing exercise, given the appellant's particular circumstances. General deterrence and retribution remained significant, as the court reaffirmed that service station attendants and others in vulnerable occupations are entitled to work without being subjected to armed robbery. Special circumstances were found to exist, justifying a longer balance of term relative to the non-parole period, reflecting the need for ongoing supervision and possible alcohol counselling on release.

Giles JA, agreeing with Hulme J's analysis, noted that re-sentencing also required consideration of the appellant's progress since August 2003. The court ultimately imposed a non-parole period of two years and six months and a balance of term of two years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge English on 29 August 2003 quashed.
  • The appellant sentenced to imprisonment for a non-parole period of 2 years and 6 months commencing 3 May 2003, with a balance of term of 2 years during which the appellant is eligible for parole.
  • Parole eligibility date specified as 3 November 2005.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the sentencing range in R v Henry remains a relevant benchmark for aggravated robbery offences, even where the particular facts require adjustment in either direction.
  • A weapon that satisfies the statutory definition of "dangerous weapon" under s 4 of the Crimes Act 1900 (NSW) may nonetheless be treated as less serious in degree where it lacked any operative capacity and was never fully displayed to victims.
  • Significant mitigating circumstances, including an early guilty plea, serious physical and psychological conditions preceding the offence, absence of hard drug use, and positive post-sentence progress, can collectively warrant a substantial reduction from the otherwise applicable range.
  • Where personal deterrence, rehabilitation, and community protection are not major sentencing concerns on the specific facts, general deterrence and retribution remain operative and must still be given meaningful weight for offences of armed robbery against vulnerable workers.
  • Finding special circumstances can justify lengthening the balance of term relative to the non-parole period, particularly where ongoing supervision and rehabilitation support will be necessary upon release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Cases:
- R v Henry (1999) 46 NSWLR 346