R v Allan Martin Simpson

[2007] NSWDC 106

CITATION:	R V Allan Martin SIMPSON [2007] NSWDC 106
HEARING DATE(S):	27th April 2007
JUDGMENT DATE:	27 April 2007
EX TEMPORE JUDGMENT DATE:	27 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [17]
CATCHWORDS:	Criminal Law - Sentence - Robbery in company
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	Crown Allan Martin Simpson
FILE NUMBER(S):	06/11/0928
COUNSEL:	K Gilson (Crown)
SOLICITORS:	NSW DPP Sydney Regional Aboriginal Corporation

SENTENCE

1 HIS HONOUR: Allan Martin Simpson appears for sentence today after having been found guilty by a jury on one count of robbery in company. The crown case against him was not that he actually performed the robbery but that he was part of a joint criminal enterprise with those who did. The whole of the offender’s involvement was captured on a number of closed circuit television cameras which were installed at the 7-Eleven store where the robbery took place. The trial of the offender was unusual in the sense that there was no dispute as to the fact that a robbery took place while the accused was in the 7-Eleven store. What was in dispute was whether the offender agreed with those who performed the robbery that the offence would be carried out.

2 The footage from the closed circuit television camera was played in court and I have reviewed the footage in chambers for the purpose of preparing these remarks on sentence. That footage shows three men, one of whom is the offender, coming into the 7-Eleven store. The three men move about the store with one purchasing cigarettes by means of an EFTPOS facility. The offender is seen to surreptitiously enter a back room of the premises and to look around whilst there. It is clear he was searching for something to steal. He then returns to the public area of the store. Shortly thereafter, one of the three men, Mr Hampton, goes behind the counter where the victim of the robbery, Mr Zhang, was standing. He presents a knife to Mr Zhang and demands money. Mr Zhang hands over $1,500 to Mr Hampton, who then passes it to another of the three men, Mr Palmer. Eventually, the two of them leave the store.

3 The footage also reveals the offender leaving the store at about the same time that Mr Palmer commences to go behind the counter. It was the offender’s defence at trial that as soon as he realised what was going on, namely that Mr Hampton was robbing Mr Zhang, he left the store wanting no part of what occurred. His version of events as given to police in an electronically recorded interview, was that he had no knowledge that the robbery was going to be committed and as soon as he realised what was going on he left quickly. The jury clearly did not accept this as a reasonably possible version of events. By their verdict, they must have concluded that the accused entered into an agreement with Mr Hampton and Mr Palmer that a robbery would be committed. The crown case was that the offender’s part in the robbery was to assist by looking around to see if the robbery could take place, an activity summed up by the expression, “casing the joint”.

4 The fact that the offender left the store immediately upon Mr Hampton commencing to rob Mr Zhang, raises the issue of the factual basis on which I am to sentence the offender. Why did he leave the store?

5 I am satisfied that I should sentence the offender consistent with the jury’s verdict on the basis that whilst he agreed with Mr Palmer and Mr Hampton that a robbery would be committed, and whilst it was agreed that that robbery would be in company, and whilst he initially played his role as a person who was casing the joint, he changed his mind as soon as the actual robbery commenced. It may well be that what prompted the offender to change his mind was the presentation of a knife by Mr Hampton, or it may be that the offender simply thought better of it.

6 Whatever the answer to that question, the fact of withdrawal is a very important aspect in assessing the appropriate sentence. It is also very important when comparing the sentence which was imposed by his Honour, then Acting Judge McGuire, on Mr Palmer. He received a sentence consisting of a non-parole period of three years with a balance of term of eighteen months.

7 However, when comparing the sentence imposed on Mr Palmer to that which I will impose on upon the offender, it is important to bear in mind a number of factors, the most important of which is that Mr Palmer was sentenced on the basis that he knew that Mr Hampton was armed with a knife and that he knew that that knife was going to be used in the course of the robbery. Further, of course, Mr Palmer never changed his mind, unlike this offender. The offender is to be sentenced on the basis that he was not aware that a knife was to be used and that he withdrew from the enterprise as soon as the robbery itself commenced.

8 Also in relation to Mr Palmer’s sentence, I have to bear in mind that he pleaded guilty and was on protection at the time he was sentenced. I have to ensure that as far as I can, the offender is not left with a justifiable sense of grievance when he compares the sentence imposed upon him with a sentence imposed upon Mr Palmer.

9 The offender has a lengthy criminal history. Indeed, he was released from custody only a very short period of time before he committed this offence. I will not sentence him on the basis that he was on parole at the time of this offence, the crown being unable to demonstrate to me that that was the case.

10 The offender is now thirty-three years of age. He has four children but is separated from his de-facto partner who is the mother of his children. He had a troubled childhood and has had difficulties with drugs for a long period of time. The offender hopes to reform his relationship with the mother of his children upon his release from custody. It cannot be said that the offender has good prospects of rehabilitation, but he is frankly coming to the age where he might think better of spending large portions of the rest his life in custody.

11 To a psychologist he said that he was disappointed for becoming involved in the present matter. In view of the fact that he pleaded not guilty to the charge that requires some explanation. The offender did plead guilty to an alternative charge laid by the crown of being an accessory after the fact to the robbery. The evidence showed that after the robbery was complete, he met up with the others and assisted them in secreting the proceeds of the robbery. The offender admitted that he had been guilty of that offence but denied that he was guilty of the offence of robbery in company, although the jury did not agree. Nevertheless, that explained why it was that the offender admitted that he had been involved in wrongdoing and was disappointed with himself.

12 This is a case where the victim of the offence was vulnerable. I am not going to take into account as an aggravating circumstance that there was planning in this matter because it was, after all, a robbery in company matter and virtually all, if not all, robberies in company involve at least a limited degree of planning. But nor can I say that there was an absence of planning which amounts to a mitigating factor. The evidence is simply neutral as to whether there was planning or not.

13 The offender also, I am satisfied, expressed his anger at the actions of his co-offenders when he was interviewed by police. I am satisfied that that expression of anger was genuine. That tends to demonstrate that whilst the offender was willing to involve himself in some criminal activity, he was certainly not intending to involve himself in the actual actions of the other two men.

14 Although the offender did not plead guilty to the offence for which he is now to be sentenced he did, as I have said, plead guilty to the alternative count which limited the issues which were before the jury at the trial.

15 The R v Henry (1999) 46 NSWLR 346 guideline is of some limited assistance, although the most important factor, to be borne in mind when looking at Henry, is that that was a guideline judgment for offences of armed robbery. This was an offence of robbery in company and although there was a weapon used, as I have said repeatedly, the offender had no part of that. He is to be sentenced on the basis that he was not aware that Mr Zhang would be robbed by an offender who was armed with a knife.

16 In those circumstances I am satisfied that whilst a period of imprisonment is required, it does not need to be as long as that imposed upon Mr Palmer by Acting Judge McGuire. I am also satisfied that there are special circumstances in this case. They primarily relate to the need for the offender to be assisted in dealing with his problems with drugs, upon his release from custody.

17 The order I make is this, the offender is sentenced to imprisonment, it is agreed that that sentence should commence on 12 April 2006. I set a non-parole period of eighteen months which is to expire on 11 October 2007 and I set a head sentence of three years. The offender is therefore to be released from custody on 11 October 2007. It is a condition of his release to parole that he accept the supervision of the Probation and Parole Service.

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