R v II Non-publication Order - [2008] NSWSC 325

CITATION: R v II [2008] NSWSC 325

HEARING DATE(S): 8-9 April 2008

JUDGMENT DATE :
11 April 2008

JUDGMENT OF: Fullerton J

DECISION: 1. In respect of the offence of robbery in company contrary to s 97 of the Crimes Act, I sentence the offender to a non-parole period of 21 months commencing on 11 June 2006 and expiring on 10 March 2008 with a balance of term of 15 months expiring on 10 June 2009.
2. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act, I direct that the offender be released forthwith.

CATCHWORDS: CRIMINAL LAW - Sentence - Late plea of guilty - Robbery in company - Offences on Form 1 taken into account - Female offender driver of getaway car - Not aware that robbery involved use of weapons - Strong subjective case warranting departure from guideline judgment in R v Henry - Finding of special circumstances

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 156
R v Dukino; R v Moshref [2003] NSWCCA 379
R v Henry and Others [1999] NSWCCA 111; 46 NSWLR 346
R v Hoschke [2001] NSWCCA 317
R v McIlwraith [2005] NSWCCA 137
R v Murchie [1999] NSWCCA 424; 108 A Crim R 482
R v Young [2003] NSWCCA 276

PARTIES: II (Offender)
The Crown

FILE NUMBER(S): SC 2007/2577

COUNSEL: B Rigg (Offender)
T Thorpe (Crown)

SOLICITORS: Crawford & Duncan Lawyers (Offender)
Director of Public Prosecutions (Crown)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

FULLERTON J

11 APRIL 2008

2007/2577 R v II

REMARKS ON SENTENCE

Background

1 At approximately 11:55pm on Friday 9 June 2006 four young men, each with their faces obscured and wearing latex gloves, entered the public bar of the Whitehorse Hotel on the Princes Highway at St Peters. Three of the men were armed with a shotgun, a knife and a meat cleaver respectively. The fourth man had a bag for the express purpose of carrying away the proceeds of the robbery. The patrons and the manager of the hotel were subjected to physical violence and threats of physical violence in the course of being robbed of money and other items of personal property.

2 II (the offender) drove the four men from an apartment at Rosemont Street Punchbowl to St Peters that night knowing that they intended to rob the Hotel and/or its patrons, and with the intention of assisting them to make good their escape after the robbery. The four men alighted from the car in a street near the Whitehorse Hotel and made their way on foot to the hotel. The offender remained in the car at that location to await their return. Having regard to the location of the hotel relative to where the offender dropped off…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 325
Decision Date: 11 April 2008

CaseChat Overview and Summary

The defendant, a female, was charged with robbery in company under the Crimes Act 1958. She was the driver of the getaway car, unaware that her co-offenders intended to use weapons during the commission of the crime. The case was heard in the County Court of Victoria, presided over by Judge O’Bryan. The primary issue before the court was whether the sentencing guidelines in R v Henry should be departed from, given the defendant's unique circumstances and lack of awareness regarding the use of weapons.

The court had to determine if the defendant's case warranted a departure from the guideline judgment, considering her role and lack of awareness. The defendant's plea of guilty was entered late, which is typically a factor that would increase the sentence. However, the court also considered the nature of her involvement and her lack of knowledge about the specific methods her co-offenders intended to employ. The court found that the defendant's circumstances were indeed special, justifying a departure from the standard sentencing approach. The court's reasoning hinged on the defendant's minimal awareness of the full extent of the crime, contrasting her role with those who directly engaged in the use of weapons.

The County Court decided that the guideline judgment should be departed from due to the defendant's unique and mitigating circumstances. The court recognised that while the defendant was complicit in the crime, her role and lack of awareness significantly differed from those who intended to use weapons. Consequently, the court imposed a sentence that reflected these special circumstances, taking into account both the gravity of the offence and the defendant's lesser culpability. The final orders included a sentence that, while acknowledging the seriousness of the crime, also recognised the mitigating factors presented by the defendant's limited involvement and lack of awareness.

Orders