By Paul Gregoire and Ugur Nedim
Section 21A of the NSW Crimes (Sentencing Procedures) Act 1999 acts as a checklist of aggravating and mitigating factors which a sentencing court must take into account if they are “relevant and known to the court.”
Mitigating factors – which can lead to a reduced penalty – include whether the defendant was “provoked by the victim,” was “of good character,” and/or “has good prospects of rehabilitation.”
Aggravating factors include the use of violence and/or a weapon, a high level of planning, acting for financial gain, any “gratuitous cruelty,” or if the act “was committed without regard for public safety” or “in company”, provided these are not already an essential element of the offence.
The list is not exhaustive – indeed, a sentencing court can consider a whole range of factors when reaching an appropriate sentence.
Robbery “in company”
In the case of Michael White that went before the NSW Court of Criminal Appeal (NSWCCA) on 4 July last year, one of the grounds of appeal was that the District Court judge had made an error by finding that the robberies he had committed were more serious because he was in the company of another person.
At around 4.30pm on 7 June 2013, Mr White and Rachael Clauscen were near a clothing store in Sydney’s CBD. Mr White pointed towards the shop, and Ms Claucsen walked away.
Mr White entered the store and approached an employee with a toy pistol and demanded money. The employee guided Mr White to a cash drawer and handed him $330. He then left the store, re-joined Ms Clauscen and the two walked away together.
At 12.45am that same evening, the pair approached a restaurant in Darling Harbour, where the staff were at the cash register, counting the day’s takings. As Mr White entered and approached the employees, Ms Clauscen walked away.
Holding the fake weapon, White again demanded money. He was handed $13,000 from the register. He then exited the restaurant, re-joined his friend and the pair fled together.
Mr White was subsequently identified by various witnesses. He was arrested and charged on 19 June 2013.
The District Court proceedings
During the District Court proceedings, the court heard that Mr White had a difficult childhood. His father had disappeared at a young age, and he’d been in and out of foster homes. He had also spent 18 months in a juvenile detention facility from the age of 13.
At the time of the offences, White was 36-years old and he’d been out on parole for close to two months for a series of offences he committed in 2005 and 2006. These included four armed robberies, and one count of using an offensive weapon to prevent lawful apprehension.
However, prior to the series of offences in the mid-2000s, White was managing a finance company with 10 consultants who reported to him. He was married to a lawyer and regularly attended the Hillsong Church.
Mr White told the court that on release from prison, he had gone to stay with a friend who ran a diamond business. His friend was heavily indebted, so the pair started operating a legal roulette system at the casino, which at first was successful.
However, this friend lost all their money, and began to pressure White into obtaining more, and that’s when the defendant carried out the robberies.
The sentencing
On 2 April 2015, NSW District Court Judge Hock sentenced Mr White to six and a half years imprisonment, with a non-parole period of four years for the offence of armed robbery, whilst armed with an offensive weapon, under section 97(1) of the NSW Crimes Act 1900.
The sentence was for the robbery at the Darling Harbour restaurant, and took into account the previous robbery at the CBD clothing store earlier on the same evening.
The offence carries a maximum penalty of 20 years imprisonment. The trial judge reduced the sentence she would have imposed by 25 percent, as White entered a guilty plea at an early stage.
Her Honour also reduced the sentence by a further 10 percent in accordance with section 23 of the Sentencing Procedure Act, which provides that the court can reduce an offender’s sentence in regards to the assistance they’ve provided to law enforcement authorities.
Sentencing remarks
In handing down the sentence, Judge Hock referred to the 1999 decision in R v Henry, which has acted as a guideline judgement in respect to armed robbery offences. It outlines a typical scenario which should result in a range of four to five year imprisonment.
The typical offence and offender profile is as follows:
“(i) young offender with little or no criminal history;
(ii) weapon was produced;
(iii) limited degree of planning;
(iv) limited, if any, actual violence but a real threat thereof;
(v) victim in a vulnerable position, such as shopkeeper or taxi driver;
(vi) small amount taken;
(vii) plea of guilty, the significance of which is limited by a strong Crown case.”
However, Her Honour found that Mr White’s case differed from the Henry profile, as he could not be described as a young offender with little or no criminal history. She added that “the offence was committed in company, an aggravating circumstance.”
She found that the “objective gravity of the offence” was therefore greater than that outlined in the “typical case” described in Henry.
The NSWCCA findings
One of Mr White’s grounds of appeal was that “the proceedings miscarried on account of the finding that the robbery was aggravated because it was committed in company.” This ground was ultimately was upheld by the NSWCCA.
Justice Simpson of that court found that three questions were relevant when determining whether the offence was committed “in company”:
“(i) whether the presence of the other person is such as to have a potential effect on the victim, by way of coercion, intimidation, or otherwise;
(ii) whether the presence of the other person is such as to have a potential effect on the offender, by offering support or encouragement, or “emboldening” that person;
(iii) whether the evidence establishes that the other person is present, sharing a common purpose with the offender.”
The judge noted that the Crown had acknowledged that Ms Clauscen was not a part of the crime, was not in the presence of the victims, and did not have an intimidatory or coercive effect. However, the Crown did argue that her presence had emboldened Mr White.
However, Justice Simpson found this argument to be “unsubstantial,” as there was no evidence to suggest that Ms Clauscen’s presence “lent any support” to Mr White. In fact, there was an inference that she opposed the plans, as she walked away. No encouragement or emboldening could be established.
But according to the judge, the sentencing remarks did not suggest that the fact the offences were committed in company was given any “significant weight” when formulating the penalty.
And it was not necessary to identify the impact the error in judgement had on the sentencing outcome. But rather, the court should “proceed to re-sentence, exercising its own independent sentencing discretion.”
A delay in sentencing
Mr White appealed on a number of additional grounds, one of which was the sentence was manifestly excessive as the trial judge had failed to take into account a considerable delay in his sentencing.
The original District Court hearing was scheduled for 4 September 2014. However, the case was rescheduled on a number of occasions and the sentence was not passed until 2 April 2015, almost two years after the offences and Mr White’s arrest.
Justice Simpson came to the conclusion that the delay had not been taken into account by Judge Hock, and this had resulted in a late commencement date of the sentence.
Due to this error, along with the mistake in finding that the offence had been committed “in company,” the NSWCCA decided to intervene.
Mr White was re-sentenced on 24 August last year to a non-parole period of three years and six months in prison, with a commencement date three months prior to the original date handed down by the NSW District Court.
