R v Steven Thomas Edwards

[2011] NSWDC 114

District Court

New South Wales

Medium Neutral Citation:	R v Steven Thomas EDWARDS [2011] NSWDC 114
Decision date:	30 March 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Non-parole period of 2 years 3 months. Balance of the term of 2 years 3 months.
Catchwords:	CRIMINAL LAW - sentence - armed robbery with a dangerous weapon - offence committed in company - armed with air rifle - plea of guilty at earliest opportunity - relevant criminal history - offence committed with on conditional liberty - multiple victims - some planning involved - evidence of remorse - special circumstances to justify adjusting ratio - applicability of guideline judgment
Legislation Cited:	Crimes Act 1900 s 97(2)
Cases Cited:	R v Henry (1999) 46 NSWLR 346 R v Steven Katich [2008] NSWSC 1330
Category:	Sentence
Parties:	Regina Steven Thomas Edwards
Representation:	Dr B Boss for Mr Edwards Ms L Cocca for Director of Public Prosecutions Mr C Lynch for Mr Edwards
File Number(s):	2010/336003

Judgment

1. Steven Edwards is a young man who committed an extraordinarily serious crime with his brother. He has pleaded guilty to this crime and it is for me to sentence him today. The crime he committed is armed robbery with a dangerous weapon. It carries a maximum of twenty-five years imprisonment. It is an offence against s 97(2) of the Crimes Act 1900.

2. What happened was that Mr Edwards met up with his brother who was then a young person. They took themselves to the Huskisson Retired Services League Club - the RSL - and climbed the rear balcony at about half past 10 on a Sunday night, 10 October 2010. Mr Edwards had armed himself with an air rifle which his brother had picked up along the way. There were four staff members in the club at the time but no patrons. Mr Edwards and his brother had gone to the trouble of covering their faces with clothes and they were both wearing gloves. His brother was unarmed.

3. They walked through the club to the main area. There Mr Edwards " instructed three of the staff members to get on to the ground, pointing the air rifle at them as he made the demand ". (I am quoting from the agreed facts which are part of exhibit A.) His brother found the manager and told the manager to take him to the safe. When the safe was open they got about nearly $50,000 in cash. They got a further $20,000 from an ATM machine.

4. Mr Edwards and his brother moved all the staff into an office area behind the reception. They were told to lie on the ground and not to move for twenty minutes. They were told by Mr Edwards that if they called the police he would return and shoot the staff members. They drove away from the scene in a car which was parked nearby. The car was in fact owned by Mr Edwards' brother.

5. The car was seen by police the following day. There was a pursuit which got up to speeds of between 170 and 190 kilometres an hour with Ms Edwards' brother driving. It got even faster at other times. Eventually Mr Edwards and his brother were arrested and his brother had about $65,000 in cash.

6. It is important for a judge to take into account, in sentencing a person, information which is personal to the offender. In this case Mr Edwards has no criminal history in New South Wales but he does have a criminal history in the ACT. He has some traffic offences including theft of a car but, significantly, one of his convictions occurred on 21 October 2009, about a year before this crime. It was an offence of aggravated burglary with intent to commit theft. Mr Edwards was placed on a two year good behaviour bond.

7. There are two significant features about that entry, one is that Mr Edwards has committed an offence before which involved breaking and entering a premises. It was not clearly as serious the crime which he committed, but it involved a burglary and theft. The second significant feature of that offence is that the judge who sentenced him, Refshauge J, gave Mr Edwards - appropriately - the benefit of a good behaviour bond. In committing the crime which I am sentencing him for, Mr Edwards abused the trust which the judge had given him and used the liberty which he had been given to commit another and even more serious crime.

8. Dr Boss of counsel who appeared for Mr Edwards tendered a detailed psychological report from Kim Lehmann, a Clinical Psychologist from Canberra. She found that there was no clinical diagnosis which she could establish. She did not think he had a personality disorder and although he had increased his cannabis and alcohol use he did not appear to be dependent on either. Ms Lehmann singled out the death of Mr Edwards's father as being a very significant event in his life. It lead, she said, to a number of significant environmental stressors. She observed that he had not been charged with any criminal offences before his father died. We know from separate evidence that Mr Edwards' father died in 2007. After the death, Mr Edwards, as the psychologist said, " found himself homeless, unemployed, and with few practical skills to maintain an independent lifestyle ". There was also a good deal of guilt surrounding the placing of his father in a nursing home when Mr Edwards himself found that he could not continue to cope with his father's condition after his father had had a stroke. Ms Lehmann saw some prospects for rehabilitation given that there was no antisocial personality disorder or substance dependence. She thought that he could benefit from some psychological assistance.

9. Dr Boss called her client to give evidence before me. He had a job which he had enjoyed before he was arrested. He referred in evidence to the impact which the death of his late father in 2007 had on him. It was, he described, a dramatic change. He became depressed. He described his family situation, including the brother whom he was accompanying in this offence. He was asked about the circumstances of the offence. His brother had apparently contacted him. The brother was " on the run" from some form of custodial order, and was talking about suicide. Mr Edwards, to his credit, put aside his own plans and joined his brother for what he thought would be just a day with his brother. But then the brother started talking about a robbery and they picked up a rifle and Mr Edwards realised that his brother had other, far more serious plans. Mr Edwards saw no evidence of any ammunition which accompanied the air rifle, and I am not satisfied beyond reasonable doubt, either that it was loaded, or that he had any understanding that it was loaded. In fact I accept that his understanding was that the air rifle was empty. His brother had apparently been planning the robbery, Mr Edwards thought, for some weeks.

10. He is prepared to get help in the form of counselling, and expressed his understanding of the fear that he would have instilled in the people at the RSL through pointing the weapon at them. Cross-examined by Ms Cocca who appeared for the Director of Public Prosecutions, he acknowledged that he had not written to the victims but understandably gave as his reason that he did not want to upset them by giving the impression that he knew where they lived or worked. Dr Boss drew my attention to the CCA's guideline judgment in R v Henry (1999) 46 NSWLR 346, and also to a sentence imposed by Hidden J in R v Steven Katich [2008] NSWSC 1330.

11. Both Dr Boss and Ms Cocca were helpful in their written and oral submissions. Ms Cocca emphasised that Mr Edwards had a record for previous convictions which I have already referred to. She correctly observed that this offence was committed in company. She submitted that the emotional harm upon the victims was substantial. I am not satisfied beyond reasonable doubt of that. That is not to say that being the victim of a crime such as this would not be of itself terrifying, but the maximum penalty for this crime takes into account the terror which would be instilled into a victim, and I do not take it into account as an additional aggravating factor.

12. Ms Cocca correctly points out that the crime was committed whilst Mr Edwards on conditional liberty. I accept that. She also correctly points out that the victims of the crime, the staff at the RSL, were vulnerable. Clubs provide a valuable service to members of the community. Many would go to a club on a Sunday night to spend time with their family and friends. I am not suggesting that this crime was committed against members of the public. But it is the staff who are the victims of this offence and who, as people would know, must stay on afterwards to clean up and secure the premises. Obviously being a club there was likely to be a substantial amount of money so that the staff would be aware of their vulnerability and were in fact vulnerable. There were multiple victims to this offence. It was not one victim who has suffered because of this crime, but four. There was some planning in the offence.

13. I accept Dr Boss's submission that there was not a substantial degree of planning so far as Mr Edwards was concerned. But there was a degree of planning to the extent that he knew at least from the time that the air rifle was collected what was in his brother's mind, and that his brother was serious about it. He then obviously went through the process of discussing what would happen with his brother, and putting on the disguise and the gloves. He went to the effort of accompanying his brother in climbing up onto the deck and then carrying out the robbery. This was not a spontaneous or impulsive crime.

14. Ms Cocca has acknowledged that Mr Edwards pleaded guilty at the earliest available opportunity. I accept Dr Boss's submission that her client is relatively young, being only twenty-one, and that he is obviously very remorseful. I accept that from his evidence in the witness box. There was a certain degree of pressure involved so far as his brother was concerned, but as I have said, Mr Edwards was clearly involved in this offence.

15. Dr Boss submitted that the usual ratio of seventy-five per cent between the nonparole period and the parole period should be changed. She said there were special circumstances justifying this: her client's age and need for rehabilitation amounted to special circumstances. Ms Cocca acknowledged the force of that submission. I find that there are special circumstances justifying an adjustment in that ratio.

16. The Court of Criminal Appeal said in Henry that the normal range for an armed robbery offence with typical characteristics is four to five years. In this case some of the normal characteristics are different. Although Mr Edwards is a young offender he does have a criminal history and one of the entries is significant. I do not regard the amount of nearly $70,000 as a small amount. It is not as if they were holding up a corner shop or a convenience store and hadstolen a couple of hundred or a couple of thousand dollars. This was a substantial amount of money to be stolen from an institution within the community. I accept that the weapon was unloaded and, as I have said, that the offence was not spontaneous or impulsive. There are certain features - I have already referred to them - which aggravate the offending in this case.

17. I would regard an appropriate sentence in this case as being five years imprisonment for this crime. However, because the guideline judgment in Henry does not take into account the fact that the plea of guilty in this case should attract a twenty-five per cent discount I propose to reduce that sentence to four and a half years. Henry does take into account that there was a plea of guilty, but I will adjust the sentence downwards to reflect the additional allowance that should be made to accommodate the fact that the plea was at the earliest opportunity, and that the current rate of discount is twenty-five per cent. Accordingly, having determined that an appropriate sentence is four and a half years, I regard an appropriate non-parole period as two years and three months. That is adjusted from the normal ratio - which would be three quarters - to fifty per cent because of the special circumstances which I have found.

18. If you would stand up, Mr Edwards, I am going to sentence you now. I will date the sentence from 10 October 2010 which is the day you committed the offence, although you may have been arrested the next day. I set a non-parole period - which is the minimum period for which you must be kept in detention - of two years and three months. It is to commence on 10 October 2010 and expire on 9 January 2013. The balance of the term will be two years and three months which will commence on 10 January 2013 and expire on 9 April 2015. The earliest date on which it appears on the information I have that you will be eligible to be released on parole is 9 January 2013.

HIS HONOUR: Have a seat, Mr Edwards. Now anything - in a moment I will explain as I have to your client - Dr Boss?

BOSS: Nothing arising your Honour.

HIS HONOUR: Nothing arising, Ms Cocca?

COCCA: No your Honour, I can't think of anything.

HIS HONOUR: Yes, I have a photocopy of exhibit 1. I will just ask the corrective officers, this is something that I would like to accompany Mr Edwards into custody, it has personal information about him. Are you happy with that Dr Boss?

BOSS: Yes your Honour, I'll just confirm, we haven't had a chance to speak to each other but.

HIS HONOUR: Yes.

BOSS: Yes, your Honour, confirm.

HIS HONOUR: What is the best way of doing that? To give it to one of you or to have it attached to another document?

CORRECTIVES OFFICER: No sir, we'll take it and we'll place it in his property and it will remain in his property, sir.

HIS HONOUR: Thank you very much, I appreciate that.

19. Mr Edwards, you have got four and a half year sentence for the crime you committed for the reasons that I have now explained, and some of the aggravating factors about it I have explained. It was a serious crime. You got yourself into serious trouble, but you pleaded guilty which has reduced the overall sentence. I am just going to look up the maximum. The maximum penalty which you were facing was twenty-five years imprisonment, that is how serious your behaviour was. Now I have given you four and a half years. You must serve two and a quarter of those, two years and three months. I have dated it from the date of the offence, 10 October last year, so you will be eligible to be considered for parole on 9 January 2013. Whether you get parole or not is up to the Parole Authority which you probably understand and after that you are on parole for a longer than normal period. Normally you would be on parole for only a quarter of the overall sentence. But I have accepted what Dr Boss has said and I have reduced it to half instead of just a quarter, or I increased it to a half. So your overall sentence expires on 9 April 2013, do you understand that?

OFFENDER: Yes your Honour.

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Decision last updated: 30 August 2011