The Guideline Judgment for Armed Robbery is Not Prescriptive

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By Paul Gregoire and Ugur Nedim

At around 11:55am on 19 November 2005, Ashley Ronald Legge approached a man withdrawing money from an automatic teller machine in a shopping mall at Castle Hill. Mr Legge placed his arm around the man’s shoulder, leant in and demanded the cash.

When the man refused, Legge reached into the front pocket of his jumper, told the man he was carrying a knife and demanded the money once more.

Unbeknownst to Mr Legge, the man he was attempting to rob was plain clothes on-duty police officer Kieran Glenzendorf. The officer grabbed Legge and pushed him up against the wall, as the assailant tried to gain access to his knife.

Mr Glenzendorf’s partner, Senior Constable Sharon Brown, moved in and assisted the officer to apprehend Legge. Glenzendorf then identified himself as a police officer, to which Legge replied, “It is just a joke. I thought I knew you.”

At that point, another man approached from nearby and attempted to assist Legge to escape, but failed and fled.

Conflicting versions

Mr Legge was arrested and taken to Castle Hill police station, where he explained he had mistaken Mr Glenzendorf for a man he knew from TAFE, who’d bragged about robbing people at ATMs. He claimed he was setting upon his friend in jest, to give him “some of his own medicine.”

But in another statement on 8 September 2006, Legge said his cannabis dealer had threatened him with violence if he didn’t carry out the robbery. He informed police that he was sent to the mall with two other men to make sure he went through with the act. Legge maintained that he thought the victim was a friend.

However, during evidence given at his sentencing proceedings, Legge admitted he had lied about thinking the victim was the man from TAFE. He again recounted that his dealer, whom he named, had intimidated him, and that the accompanying men were threatening to beat him up.

The subjective circumstances

Mr Legge pleaded guilty to one count of assault with intent to rob whilst armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900. The maximum penalty for the offence is 20 years behind bars.

Mr Legge appeared in the NSW District Court for sentencing on 16 October 2006. The court heard that the offender was 18 at the time of the offence, had no prior convictions, and had a troubled childhood having been diagnosed with ADHD and Tourette syndrome at an early age.

Psychologist Ms Katie Seidler opined that Legge had been groomed into the criminal activity by others and that, since attempting the robbery, he had shown appropriate remorse and regret, as well as expressed empathy for Glenzendorf.

The Henry guideline judgement

During the sentencing proceedings, Legge’s criminal defence lawyer referred Judge Allan Hughes to the guideline judgement established in the 1999 NSW Court of Criminal Appeal (NSWCCA) case of R v Henry.

A guideline judgement is a court decision that can help judges when sentencing for a particular offence.

The Henry guideline provides guidance in relation to armed robbery offences set out under section 97(1) of the Crimes Act. The guideline was established not only to promote consistency in the sentencing process, but due to community concerns about the prevalence of first instance judges finding exceptional circumstances that warranted non-custodial sentences.

NSWCCA Justice Spigelman outlined during the 1999 case that the guideline judgement is to help with sentencing deliberations for a common category of armed robbery offences, which have the following features:

“(i) Young offender with no or little criminal history

(ii) Weapon like a knife, capable of killing or inflicting serious injury

(iii) Limited degree of planning

(iv) Limited, if any, actual violence but a real threat thereof

(v) Victim in a vulnerable position such as a shopkeeper or taxi driver

(vi) Small amount taken

(vii) Plea of guilty, the significance of which is limited by a strong Crown case.”

The five justice bench recommended a head sentence between four and five years for offences of this nature. It stated that aggravating and mitigating factors should be taken into account, which would justify sentences below or above the range.

The sentencing judge’s reasoning

Judge Hughes remarked during sentencing that the Henry guideline made it clear that “a custodial sentence is usual… except for exceptional circumstances”. He added that “given the circumstances” the offender couldn’t avoid prison time.

His Honour also stated that although Legge’s drug dealer had planned the “organised” criminal activity and frightened the offender into carrying it out, this was no excuse to go through with it, as he could have left the scene.

The judge sentenced Legge to 2 years and 7 months in prison, with a non-parole period of 1 year and 4 months. This took into account a 15 percent discount for a guilty plea, as well as a 20 percent discount for assistance he had given to authorities.

The original head sentence before discounting was 4 years behind bars.

Guidelines are not binding

Mr Legge appealed his sentence to the NSWCCA on 27 July 2007. He did so on several grounds, one of which was that the sentencing judge had “misconceived and misapplied the guideline judgment in Henry.”

Justice Carolyn Simpson found the judge had made error when considering the Henry guideline, by stating he could only depart from it if exceptional circumstances were demonstrated.

Her Honour accepted that exceptional circumstances are necessary for imposing a non-custodial sentence, but not for handing down a lesser sentence.

“Guideline judgments, and subsequent judgments that apply them, have repeatedly stressed that the guideline promulgated is not prescriptive,” Justice Simpson explained.

The justice also noted, however, that the sentence had favoured Legge in so far as the sentencing judge had factored in a 15 percent discount for his guilty plea. The Henry guideline takes into account such a plea, so “the additional reduction amounted to double counting,” her Honour identified.

The other grounds of appeal

Mr Legge’s legal team also submitted that the sentencing judge had made errors by failing to take into account that their client was under a degree of duress at the time of the offending – albeit that the type of duress did not amount to a legal defence – as well as by finding the crime was aggravated because it was planned and organised.

The NSWCCA ruled that both these grounds were established. Justice Simpson reasoned that if the sentencing judge didn’t believe Legge’s account, then the offence was not planned. But if his account was believed, then it was to be accepted the offender was under some level of duress.

Mr Legge “was denied the benefit of a mitigating circumstance for which express statutory recognition is given. And he was treated as though the facts giving rise to that circumstance aggravated his offence and exposed him to a more severe penalty,” her Honour explained.

The justice also found a number of aspects of the case that supported the final ground of appeal, which was that the sentence was manifestly excessive. These included the offender’s age, his social isolation and his cooperation following the crime.

The appeal court orders

Justice Simpson ordered that the appeal be allowed and the District Court sentence be quashed. Her Honour re-sentenced the offender to the original head sentence of 2 year and 7 months behind bars, but reduced the non-parole period to 10 months.

This meant that Mr Legge was entitled to immediate release.

Both Justice Harrison and Justice Spigelman agreed with the orders. The latter added that “the authorities in this court make it quite clear that a guideline is not a tramline.”

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