Published by Geoff Harrison | 22 July 2023
The offence of Robbery is under s94 of the Crimes Act 1900. The maximum penalty is 14 years imprisonment. If the offence is aggravated it is 20 years imprisonment. However, if the offence is armed, in company or with wounding the maximum penalty is 25 years imprisonment. The offence under s98 of the Crimes Act 1900 ie. robbery with arms etc and wounding has a standard non-parole period of 7 years imprisonment.
The term "Robbery" is not defined within the Crimes Act however, in R v Foster (1995) 78 A Crim R 517 at 522, robbery was defined in the following terms:
The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person’s resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft: Smith v Desmond [1965] AC 960 at 985–987, 997–998; (1965) 49 Cr App R 246 at 260–263, 275–276. It is not sufficient that the threat of violence is made after the property has been taken; both elements of the offence must coincide: Emery (1975) 11 SASR 169 at 173.
There is a guidline judgment that has been handed down in respect of sentencing for offences of armed robbery see: R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111. The guidline for sentecing for armed robbery was handed down by Howie J, at [161]:
161 In the cases now before this Court, the Crown has propounded a starting point for New South Wales of six years full term, in circumstances where there is a plea of guilty.
162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:
(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.
163 Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.
164 There are two principal reasons why a sentencing range is appropriate for this offence:
(i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.
(ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi).
165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.
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CRIMES ACT 1900 - SECT 94
94 ROBBERY OR STEALING FROM THE PERSON
Whosoever--
(a) robs or assaults with intent to rob any person, or
(b) steals any chattel, money, or valuable security from the person of another,
shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years.
CRIMES ACT 1900 - SECT 95
95 SAME IN CIRCUMSTANCES OF AGGRAVATION
(1) Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years.
(2) In this section,
"circumstances of aggravation" means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following--
(a) the alleged offender uses corporal violence on any person,
(b) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,
(c) the alleged offender deprives any person of his or her liberty.
CRIMES ACT 1900 - SECT 96 Same (robbery) with wounding
96 SAME (ROBBERY) WITH WOUNDING
Whosoever commits any offence under section 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to imprisonment for 25 years
CRIMES ACT 1900 - SECT 97 Robbery etc or stopping a mail, being armed or in company
97 ROBBERY ETC OR STOPPING A MAIL, BEING ARMED OR IN COMPANY
(1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person,
robs, or assaults with intent to rob, any person, or
stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same,
shall be liable to imprisonment for twenty years.
(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.
(3) Alternative verdict If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
CRIMES ACT 1900 - SECT 98
98 ROBBERY WITH ARMS ETC AND WOUNDING
Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years.
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R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111
....
A Guideline for New South Wales
161 In the cases now before this Court, the Crown has propounded a starting point for New South Wales of six years full term, in circumstances where there is a plea of guilty.
162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:
(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.
163 Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.
164 There are two principal reasons why a sentencing range is appropriate for this offence:
(i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.
(ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi).
165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.
166 Cases consistent with the range are Sandaford 10 September 1995; Sedgwick 7 July 1992; Martin 19 February 1993; Sarkas 8 September 1992; Walters and Watkins 2 June 1994; Achurch & Brady 8 July 1994; Willett 6 November 1995; Maretta 30 October 1996; Bragias 12 March 1997; Basaga & Weleilakeba 9 August 1998.
167 Cases above the range to varying degrees are Salameh 12 March 1991; Sneddon 28 March 1991; Marsden 15 April 1993; Antoce 22 April 1993; Walker 21 February 1994; Pettit 9 March 1994; Sneddon 28 March 1994; Nguyen 14 April 1994, Burger 19 July 1994; Rafter 23 September 1994; Harborne 12 October 1994; Murray 7 November 1995; ; Putescu 20 December 1996; White 7 April 1997; Lowe 24 April 1997.
168 Cases below the range being sentences between 2 and 3½ years are Bateman 15 July 1993; Roberts 24 May 1994; Amohanga 25 May 1995; Davies 29 November 1995; Wright 28 February 1997; Fisher 8 September 1998; Wightman 2 November 1998.
169 Aggravating and mitigating factors will justify a sentence below or above the range, as this Court's prior decisions indicate. The narrow range is a starting point.
170 In addition to factors which may arise in any case eg youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:
(i) Nature of the weapon
(ii) Vulnerability of the victim
(iii) Position on a scale of impulsiveness/planning
(iv) Intensity of threat, or actual use, of force
(v) Number of offenders
(vi) Amount taken
(vii) Effect on victim(s)
171 The Respondents to the Crown Appeals also submitted that this Court should now declare that the fact that the offender was addicted to drugs, and committed the crime to obtain money to feed his or her habit, is a mitigating circumstance. This would require the Court to overturn a long line of prior decisions.
172 In 1990, the Australian Institute of Criminology published a detailed analysis of the practice of this Court with respect to sentencing for robbery over the course of a ten year period. That report made it clear that the Court had consistently regarded drug addiction as a mere explanation, not an excuse. (Potas Sentencing Robbers in New South Wales (1990) at pp142, 163).
173 As a joint judgment of the Court put it in Valentini (1989) 46 ACrimR 23 at 25:
"This Court has said on countless occasions that addiction to heroin is not to be considered as a factor for the reduction of what would otherwise be an appropriate sentence for the nature of the offences which have been committed. It serves, however, to provide an explanation for the commission of the offences."
This has been reiterated in a number of later cases (eg Stanford NSWCCA 23 November 1993; Atkins NSWCCA 27 May 1998).
174 Drug addiction is one of the circumstances of a particular offence that is relevant to the sentencing exercise. It may, for example, be pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case.
175 In Engert (1995) 84 ACrimR 67, Gleeson CJ emphasised the complexity of the sentencing task and the multiplicity of the, sometimes conflicting, objectives it must serve. His Honour concluded:
"It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." (68)
176 His Honour went on to say that the existence of a causal relationship between a mental disorder and the commission of an offence does not automatically produce the result that the offender will receive a lesser sentence (at 71). Nor, in my opinion, should the existence of a causal relationship between drug addiction and the commission of an offence.
177 The circumstances in which motive may be a mitigating factor should, in my opinion, be confined to cases in which motive impinges upon the moral culpability of the offender. This can include mental, emotional or medical problems or impulsive conduct. In any event the degree to which motive may be pertinent must depend on the whole of the circumstances. (White NSWCA 23 June 1998 at 24).
178 As noted above, it has long been the position taken in this State that addiction is not, of itself, a mitigating circumstance. This is also the position in England, (Brewster (1998) 1 CrAppR 220 at 226) Canada (Johnas (1982) 2 CCC (3d) 490 at 497). It was submitted for the Respondents to the Crown appeals that authorities in other Australian states indicate a different approach.
179 Reliance was placed on Nolan (1998) VICCA 135 (2 December 1998). This was a majority decision to allow a severity appal. One member of the majority, Buchanan JA, referred to drug addiction in terms of "mitigating circumstances" (par 15). The other member of the majority, Butt JA, did not adopt that terminology, but rather that of "explanation" (par 19).
180 Buchanan JA referred without disapproval to Halewyn (1984) 12 ACrimR 202 at 203 where Young CJ said:
"... it has been said a number of times in this Court that the fact that an armed robbery is committed to support a drug habit is of little consequence in mitigating the sentence to be imposed."
181 Buchanan JA also referred to Bouchard (1996) 84 ACrimR 499 where at 501-502, Callaway JA quoted Hallwyn but identified a case of "a man crazed by a drug craving who committed an offence on the spur of the moment and later repented".
182 Nolan was such a case. It should be understood as an authority on the issue of planning/impulsiveness, and that the impulsiveness was the "mitigating circumstance", rather than the drug addiction itself.
183 I do not understand there to be any difference between the position in New South Wales and that in Victoria in this regard.
184 In Douglas (1995) 56 FCR 465 the Full Court of the Federal Court heard an appeal from the Supreme Court for the Australian Capital Territory. In a joint judgment, Von Doussa, Higgins and R D Nicholson JJ said (at 470):
"It is, of course, not a mitigating factor that a person commits a crime to feed a drug addiction. However, that is not a principle of universal application. As Jenkinson J noted, at 105, in Talbot (1992) 34 FCR 100, the moral and legal fault for the acquisition of the addiction has to be considered:
`... evaluation of moral culpability remains in my opinion as fundamental to one system of punishment for crime as evaluation of the degree of harm caused or threatened by the criminal act or actor.'
The age of the offender when he or she becomes addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct."
185 Douglas involved an addiction that commenced at age eight and was total by age 13. This is an extreme case of little assistance in establishing a general principle that addiction lessens moral culpability. On the contrary, it affirms that self induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice. That was the very distinction made by the Full Court in Talbot (1992) 34 FCR 100 at 105-106.
186 In that case, the Court took into account an addiction that was caused by medical treatment "to which his consent was at best merely formal" (105). (See also the Victorian decision in Redenbach (1990) 52 ACrimR 95 at 99). The Court referred with approval to, whilst distinguishing, the reasons of King CJ in Spiero (1979) 22 SASR 543:
"One feels sympathy for the person who has become entangled in drug addiction, but the courts cannot treat addiction as an excuse, or even a mitigating factor, in relation to serious crime. Those who are addicted to drugs must understand that if they allow their addiction to lead them into serious crime, they must expect to receive the same serious punishment as would be received by others." (549)
187 In Terizakis (1986) 41 SASR 252 at 256, the Full Court reiterated this reasoning. O'Loughlin J added:
"Despite the cravings caused by the addiction, the majority of drug addicted persons still retain, in varying measures, the ability to distinguish between right and wrong and the ability to comprehend that the consequence of armed robbery will be a lengthy term of imprisonment. To give way, out of sympathy and concern, by imposing lesser terms of imprisonment that would otherwise be imposed, might appear to be an act of humanity, but it will do nothing to stamp out the drug trade and worse, it might even give some indirect encouragement to would-be offenders." (256)
188 Another authority on which the Respondents to the Crown appeals rely is the decision of the Queensland Court of Appeal in Hammond [1996] QCA 508; (1996) 92 ACrimR 450.
189 In Rosenberger (1996) 76 ACrimR, that Court had indicated that intoxication, whether by alcohol or drugs, would not mitigate penalty save in the case where the original addiction did not involve a free choice, (as in Talbot or Redenbach supra, the latter being quoted in Rosenberger).
190 In Hammond the Court distinguished Rosenberger and said:
"The true relevance of drug addiction as a factor contributing to the commission of crime and its effect in the sentencing process has never been adequately explained. In our view it is a factor that may help an offender to the extent of showing that his or her descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice. It may be inferred in many cases (and the present case is very much in point) that the offender would almost certainly never have become a thief but for loss of control of an ordered life through drug addiction. The proposition that the results of drug addiction are self-inflicted is half true and therefore dangerous. The offender must of course be held responsible for his or her own actions. The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber. That may be by no means inconsequential. It is however a two-edged factor; it may also tell the court that rehabilitation is going to be difficult.
Just how these factors are to be applied to particular cases had not been spelled out, and it may be undesirable to attempt to do so. In our view the fact that drug addiction has led to criminal activity can properly lead to a wider understanding of the offender's character and motivation for the crime. Depending on the circumstances of the particular case this may sometimes show the offender to be less deserving of condemnation than the primary facts, without more, might suggest." (455-456)
191 In its conclusion the Court returned to this theme:
"Addiction to drugs at the time of the offence is not an excuse but may tell the court that the primary weakness of character is that of an addict rather than that of a robber. Such a factor tends to be mentioned along with an unfortunate family life as an explanation of the offender's descent into bad habits. When the original problem was not something for which the offender was responsible, it is natural to feel some sympathy for the offender, though this must not obscure the offender's direct responsibility for the ultimate criminal act he or she chose to do." (467)
192 This latter passage appears in the context of the Court listing aggravating and mitigating factors. It is noticeable that addiction is not identified as a mitigating factor. In neither passage is addiction, of itself, treated as a basis for imposing a lower sentence than would otherwise be imposed. In both passages it is emphasised that addiction is "not an excuse". In both passages the offender's responsibility for his or her conduct is mentioned.
193 In my opinion, Hammond affirms that drug addiction is a relevant circumstance but is not, of itself, a mitigating factor. If, contrary to this conclusion, the remarks in Hamilton were intended to suggest otherwise - and some of the language chosen may be so interpreted - then they should be regarded as anomalous and should not be followed.
194 The authorities are against the proposition that drug addiction should, of itself, be accepted as a mitigating factor. There is authority that where the original addiction was not a willed act, that may be taken into account by way of mitigation. The authority does not go beyond that.
195 It is in the context of this line of authority that the submissions made for Respondents to the Crown appeals to the effect drug addiction, at least where it can be shown to be causally related to the commission of an offence, should now be accepted to be a mitigating circumstance.
196 It was submitted that the degree of moral culpability of a particular offender is diminished by addiction. Evidence was put before the Court that there is, at least in some cases, a genetic predisposition to addiction and that addiction generally is not simply a state of mind but has a neurobiological or physiological base. It was put that an addict's decision to perform a criminal act was not "a completely free choice".
197 In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.
198 First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.
199 Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about that state of "well-being" is, relevantly, a moral choice.
200 Thirdly, nothing in either the process of addiction or its neuro-biological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice.
201 Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.
202 There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money.
203 Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a physiological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected.
204 It was also submitted that the principle of general deterrence should be given less weight in the context of offenders who commit their crimes for the purposes of assuaging a drug addiction. In this submission, reliance was placed on the often expressed doubts about the direct effect on potential offenders of increases in penalties imposed. Particular reliance was placed on the driven nature of a drug addicts, many of whom engage in high risk activity, like exchange of needles notwithstanding the risk of HIV infection. This kind of submission has been made many times before and I have quoted a few instances above. It has always been rejected. This Court should do so again.
205 General deterrence always operates at the margin. Some people will continue to engage in criminal conduct notwithstanding the level of, or increases in the level of, the penalties they suffer. However, some people will be deterred. It is not to the point that some addicts engage in high risk activities. It would be necessary to establish that all addicts do so. Neither the submissions, nor the materials in support, suggest anything of this character.
206 I attach particular significance to the impact that acknowledgment of drug addiction as a mitigating factor would have on drug use in the community. The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message. The concept that committing crimes in order to obtain monies to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other, but legal, purpose is perverse.
207 It may very well be the fact that increased possibility of detection has greater effect by way of deterrence than increased punishment. There is no warrant, however, for the Courts abandoning reliance on the latter. In any event the two propositions are related. It is only because detection, when it occurs, leads to a level of punishment, that increases in detection have their deterrent effect.
208 It may very well be that the criminal justice system has a modest role to play in the control of drug addiction. But however modest that role may be, it must be performed in accordance with the basic structure of the criminal sentencing process. At the level of a structure deeply embedded in our society, not merely at the level of an individual's calculus of risks and benefits for specific conduct, the criminal justice system is now, and has always been, based on the proposition that punishment deters and, within limits of tolerance, increased punishment has a corresponding effect by way of deterrence. This Court should not change such a longstanding assumption. Legislation would be required to alter the common law in this way.
209 I reiterate that the process of imposing penalties for the commission of crimes, has its primary deterrent effect through its operation as a structural phenomenon of the criminal justice system. That is not capable of being assessed from the perspective of what particular penalties, or increases in penalty, may have in the case of individuals.
210 In any event, the reasons for the guideline propounded in this judgment do not relate merely to an increase in the size of penalty. The guideline is particularly directed to overcoming the very significant proportion of cases in which non custodial sentences have been imposed. Henceforth, such sentences should be restricted to the exceptional cases to which the authorities have always referred.
211 The deterrent effect of a sharp reduction in the proportion of non-custodial sentences which, as a result of this judgment, become custodial sentences, may well be much more significant than the deterrent effect from an increase in the level of custodial sentences. That is not to say that the latter does not have some deterrent effect but the sentencing practices, which I have analysed above, have been such as to significantly attenuate the deterrent effect of sentencing for the offence of armed robbery in the past. It is my opinion that that should change.
212 I have now read the additional observations of Wood CJ at CL. I agree with his Honour's judgment.