By Paul Gregoire and Ugur Nedim
The offence of armed robbery is relatively rare in New South Wales, when compared to offences such as assaults not involving larceny or stealing, drug offences and major traffic offences.
But at the end of last century, there had been a rise in such incidents, and as the NSW Court of Criminal Appeal (NSWCCA) had adopted the practice of producing guidelines judgments in 1998, in May the following year, the court determined to produce one of these rulings in relation to armed robbery.
The guidelines produced by the appeal court are not supposed to act a rule, but rather a reference for judicial officers to bring about consistency in sentencing.
In terms of the case, the guideline judgment was formed in regard to the NSWCCA hearing seven appeals of offenders convicted of armed robbery together. Six of the cases were Crown appeals, meaning the prosecution did not consider the sentencing handed down by the lower court was appropriate, and it sought a fresh sentence that did reflect the nature of the crime.
While one case was a severity appeal, which is an appeal against a sentence handed down by a NSW Local Court Magistrate, and it is usually dealt with in the NSW District Court.
The guideline judgment appeal involved convicted armed robbers Paul Henry, Stephen Barber, Hoai Vin Tran, Troy Silver, Theo Tsoukatos, Bill Kyroglou and John Jenkins.
Six of these men had been convicted of armed robbery, contrary to section 67(1) of the Crimes Act 1900 (NSW), which carries up to 20 years imprisonment. And the other had been found guilty of aggravated armed robbery, under section 67(2), which carries up to 25 years gaol time.
Reasons for the guideline
“The Crown sought to rely on crime statistics for the purpose of indicating that sentencing guidelines were required by reason of the prevalence of the offence,” said then Chief Justice James Spigelman in handing down the guideline judgment and he added that “prevalence is a relevant consideration when deciding an appropriate level of sentence.”
This was not a long-term type of prevalence, as armed robbery remained rare in NSW. Instead, this prevalence resulted in relation to a recent increase in the crime and in handing down a guideline, “the objective of general deterrence was given greater weight” than it otherwise would be.
The NSW Bureau of Crime Statistics and Research (BOCSAR) had been presented with three sets of statistics by the NSWCCA and had found that over the period 1995 to 1997 armed robberies that involved the use of a weapons, like a knife, had been on the increase.
“The rate per 100,000 for such offences increased from 30.5 in 1996 to 53.9 in 1997 and reached 69.2 in 1998,” his Honour confirmed. “It is unlikely that, in the case of this offence, such an increase could have been caused by an increased propensity to report the commission of offences.”
But the primary determiner of whether to conduct a guideline sentence were the statistics regarding armed robbery cases kept by the Judicial Commission of NSW, which covered the period December 1994 until October 1998. And these figures revealed that from the 835 cases that had taken place, a total of 688 resulted in a full-time custodial sentence, which accounted for 82 percent of cases.
Only seven of these cases resulted in a sentence that was over half the maximum, or more than 10 years, while one quarter of them resulted in sentences longer than a quarter of the maximum, or over 5 years prison time, and 45 percent of cases involved a sentence of 18 months or less.
The NSWCCA found that the statistical evidence before it revealed that in terms of section 97 armed robbery convictions, the resulting sentences suggest that noncustodial sentences are not reserved for exceptional circumstances, leniency in imposing full-time terms, which was reinforced by the large number of cases with short sentences, and further, the figures revealed wide inconsistencies.
“These statistics strongly suggest both inconsistency in sentencing practice and systematic excessive leniency in the level of sentences,” the then Chief Justice determined. “They justify the promulgation of a guideline judgment.”
The armed robbery guideline set out
In considering constructing the guideline judgment Chief Justice Spigelman looked to the starting point approach, which means a point set at which a trial judge reflecting on a specific case can either move upwards or downwards from, when considering the specific circumstances of a particular crime.
So, the Crown was suggesting a starting point of six years. But his Honour went on to explain that such a point involves establishing a narrow sentencing range, within which the NSWCCA would expect such sentences to fall. And based on the available statistics, there was a category of cases sufficiently common as to which to determine a guideline.
This case involved a young offender with no or little prior convictions, a weapon, like a knife, which could prove lethal, a limited degree of planning, limited actual violence at the scene, if any, but the very real threat of it, the victim being in a vulnerable position, such as a shopkeeper or taxi driver, only a small amount being taken, along with a plea of guilty, which was of limited value.
A sentencing range was appropriate for this crime as the characteristics of the “sufficiently common” case do not cover the full range of factors relevant to sentencing and the characteristics identified come with an inherent variability. Examples of this included the range of different knives used in the commission of the offence and the level of vulnerability a victim finds themselves within.
The identified sentencing range his Honour stipulated was between four and five years, which he came to after consulting the four other members of the five-justice panel presiding over the case.
And besides the usual factors that influence sentencing such as age and criminal record, a number of other circumstances were identified as common factors to consider when sentencing over armed robbery, which include the nature of the weapon, vulnerability of victim, scale of planning, intensity of threat or force, the number of offenders, the amount taken and the effect on the victim/s.
The respondents to the appeal had submitted to the court that drug addiction and the commission of an armed robbery to obtain money to secure illicit substances should be considered a mitigating factor, despite the court having long taken the position that addiction might play a role but is never an excuse for a crime and therefore, does not result in a reduced sentence.
His Honour found that in line with the authorities, drug addiction should not be accepted as a mitigating factor, as those with a drug dependency issue should not be considered a victim in such incidents, although their moral culpability can be seen to vary in this respect.
And in terms of noncustodial sentences in regard to armed robbery, the Chief Justice found this outcome should only apply in exceptional circumstances, and he underscored that this stipulation would most likely act as a deterrent.
The rest of the five-justice panel, which included then NSWCCA Justice Peter Newman, agreed with their colleague’s 12 May 1999 guideline judgment, while then NSWCCA Justices Robert Hulme and Carolyn Simpson, as well as then Chief Justice at Common Law James Woods, provided their own individual additional findings to the case as well.
