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Sentencing Robbery Offenders Since the Henry Guideline Judgment

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Sentencing Robbery Offenders Since the Henry Guideline Judgment Sentencing Robbery Offenders since the Henry Guideline Judgment Lynne A Barnes Patrizia Poletti Senior Research Officer (Legal) Principal Research Officer (Statistics) Acknowledgment: Maree D’Arcy, Librarian, assistance with reference material. Published in Sydney by the: Judicial Commission of New South Wales Level 5, 301 George Street, Sydney NSW 2000 DX 886 Sydney GPO Box 3634 Sydney NSW 2001 www.judcom.nsw.gov.au Barnes, Lynne (Lynette Ann). Sentencing robbery offenders since the Henry guideline judgment Bibliography. ISBN 9780731356188 (pbk.). 1. New South Wales Crimes Act 1900. 2. New South Wales. Court of Criminal Appeal. 3. Sentences (Criminal procedure) — New South Wales. 4. Robbery — New South Wales. 5. Criminal justice, Administration of — New South Wales. I. Poletti, Patrizia. II. Judicial Commission of New South Wales. III. Title. 345.9440772 © Judicial Commission of New South Wales 2007 This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior permission. Enquiries should be addressed to the publisher. The views expressed in this monograph are the views of the individual authors and do not represent any official views of the Judicial Commission of New South Wales, nor are they necessarily shared by all members of the staff of the Commission. Whilst all reasonable care has been taken in the preparation of this publication, no liability is assumed for any errors or omissions. Editors: Angela Damis and Rowena Johns Graphic design and typesetting: Lorraine Beal Printed by: Emerald Press ii Contents Table of cases . vii Table of statutes . xiii List of tables and figures . .xv Summary of findings . xvii Introduction . 1 Part 1 Robbery in context 1.1 The development of the offence of robbery at common law and in statute . 7 1 .1 .1 A definition of robbery at common law . 7 1 .1 .2 Legislative history of robbery offences in NSW . 9 1.2 The historical role of deterrence and the Henry guideline . 21 1 .2 .1 The colonial period . 22 1 .2 .2 The post-colonial period . 28 1 .2 .3 The R v Henry guideline judgment . 31 1 .2 .4 The implications of the armed robbery guideline for other robbery offences and particular offenders . 32 1 .2 .5 Henry and the purposes of punishment . 34 1.3 Prevalence of robbery offences . 37 1 .3 .1 Incidence and prevalence of robbery in the community since the Henry guideline (1999–2005) . 39 1 .3 .2 Attrition of robbery offences from the NSW criminal justice system (1999–2005) . 41 Part 2 Overview of sentencing patterns for robbery offences under ss 94–98 of the Crimes Act 1900 2.1 Methodology . 45 2.2 Analysis and findings . 47 2 .2 .1 Higher courts . 47 2 .2 .2 Local Court . 55 2 .2 .3 Children’s Court . 58 2 .2 .4 Summary of findings . 62 Part 3 The research study: an analysis and discussion of remarks on sentence 3.1 Methodology . 67 3 .1 .1 The sample selected . 67 3 .1 .2 The areas of inquiry . 68 iii Sentencing Robbery Offenders since the Henry Guideline Judgment 3.2 The setting . 71 3 .2 .1 Jurisdiction and location of courts . 71 3 .2 .2 Period between offence date and sentence date . 71 3 .2 .3 The sentencing exercise . 71 3.3 The offences . 73 3 .3 .1 Secondary offences and Form 1 matters . 73 3.4 Plea and assistance to authorities . 75 3 .4 .1 Plea . 75 3 .4 .2 Assistance to authorities . 77 3 .4 .3 Discounting for guilty plea and assistance to authorities . 78 3.5 Objective facts of the offence . 81 3 .5 .1 Target of robbery . 81 3 .5 .2 Location of robbery . 81 3 .5 .3 Time of robbery . 81 3 .5 .4 Type of property taken . 83 3 .5 .5 Value of property taken . 83 3 .5 .6 Offender was alone or in company . 83 3 .5 .7 Offender was armed or unarmed . 84 3 .5 .8 Type of weapon . 85 3 .5 .9 Role of the offender . 87 3 .5 .10 Degree of planning . 88 3 .5 .11 Use of disguises . 88 3 .5 .12 Violence . 88 3 .5 .13 Victims . 90 3.6 Subjective circumstances of the offender . 93 3 .6 .1 Age . 93 3 .6 .2 Ethnicity . 94 3 .6 .3 Level of education . 94 3 .6 .4 Employment status . 95 3 .6 .5 Marital status . 95 3 .6 .6 Dependent children . 95 3 .6 .7 Criminal history at the time of the offence . 95 3 .6 .8 Supervision status at the time of the offence . 96 iv Contents 3 .6 .9 Addictions generally . 97 3 .6 .10 History of drug and alcohol use/abuse . 97 3 .6 .11 Drug and alcohol addiction at the time of the offence . 97 3 .6 .12 Under the influence of drugs/alcohol at the time of the offence . 97 3 .6 .13 Motivation for committing the offence . 98 3 .6 .14 Mental health history . 98 3.7 Sentencing . 101 3 .7 .1 The general rule . 101 3 .7 .2 Failure to apply the general rule – Henry guideline judgment . 101 3 .7 .3 The distribution of penalties . 102 3 .7 .4 Exceptional circumstances . 104 3 .7 .5 Terms of full-time imprisonment and findings of special circumstances . 105 3 .7 .6 Reasons for special circumstances . 106 3 .7 .7 Bail status at the time of sentencing . 108 3 .7 .8 Pre-sentence custody and diversion . 108 3.8 The most important sentencing factors . 111 3 .8 .1 Selection of variables and categories . 111 3 .8 .2 Bivariate analysis . 115 3 .8 .3 Multivariate analysis . 122 3 .8 .4 Discussion of findings of the multivariate analysis . 126 3.9 Issues surrounding the application of the Henry guideline judgment . 133 3 .9 .1 The common case described in Henry . 133 3 .9 .2 Identifying the common case in the study . 134 3 .9 .3 “Henry cases” . 136 3 .9 .4 Penalties imposed for “Henry cases” . 137 Part 4 CCA sentence appeals 4.1 CCA sentence appeals . 141 4 .1 .1 Crown appeals against sentences for s 97 robbery offences . 142 4 .1 .2 Severity appeals against sentences for s 97 robbery offences . 144 Conclusions . 147 Selected bibliography . 151 Appendix . 157 v Table of cases Anon (1562) 2 Dyer 224b; 73 ER 496 Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515 Cameron v The Queen (2002) 209 CLR 339 Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222 Dinsdale v The Queen (2000) 202 CLR 321 Director of Public Prosecutions v Coleman (2001) 120 A Crim R 415 Dominus Rex v Turner (1718) 93 ER 435 Everett & Phillips v The Queen (1994) 181 CLR 295 Gillard v The Queen (2003) 219 CLR 1 Griffiths v The Queen (1977) 137 CLR 293 Johnson v The Queen (2004) 205 ALR 346 Kable v Director of Public Prosecutions (1995) 36 NSWLR 374 Lowe v The Queen (1984) 154 CLR 606 McArthur v R [2006] NSWCCA 200 McAuliffe v The Queen (1995) 183 CLR 108 Pearce v The Queen (1998) 194 CLR 610 Pemble v The Queen (1971) 124 CLR 107 Postiglione v The Queen (1997) 189 CLR 295 R v Alameddine [2004] NSWCCA 286 R v Allpass (1993) 72 A Crim R 561 R v AS [2006] NSWCCA 309 R v Baker (Supreme Court of NSW, 18 August 1828, Sydney Gazette)* R v Barton (2001) 121 A Crim R 185 R v Bavadra (2000) 115 A Crim R 152 R v Bellamy (unrep, 15/2/93, NSWCCA) R v Bettini (unrep, 13/4/93, NSWCCA) R v Blackman (unrep, 4/8/92, NSWCCA) R v Blackman & Walters [2001] NSWCCA 121 R v Brewster (1998) 1 Cr App R 220 R v Brindley (1993) 66 A Crim R 204 R v Broad (unrep, 1/12/92, NSWCCA) R v Brougham (1986) 43 SASR 187 vii Sentencing Robbery Offenders since the Henry Guideline Judgment R v Brown (1989) 17 NSWLR 472 R v Broxham (unrep, 3/4/86, NSWCCA) R v Button & Griffen (2002) 54 NSWLR 455 R v Calderoni [2000] NSWCCA 511 R v Campbell [2000] NSWCCA 157 R v Cartwright (1989) 17 NSWLR 243 R v Cimone (2002) 121 A Crim R 433 R v Clark (1997) 95 A Crim R 585 R v Coleman (1990) 47 A Crim R 306 R v Colgan [1999] NSWCCA 292 R v Cooke & Woolmington (1955) 72 WN (NSW) 132 R v Cooper, Jones & Harris (1978) 17 SASR 472 R v Cotter [2003] NSWCCA 273 R v Crombie [1999] NSWCCA 297 R v Crotty (unrep, 28/2/94, NSWCCA) R v Cunningham (1993) 96 Cr App R R v Cuthbert [1967] 2 NSWR 329 R v Darkin (unrep, 10/9/97, NSWCCA) R v Davies [2004] NSWCCA 319 R v Delk (1999) 46 NSWLR 340 R v Diamond (unrep, 18/2/93, NSWCCA) R v Dicker (unrep, 3/7/80, NSWCCA) R v Dickson (unrep, 14/12/67, NSWCCA) R v Donaldson (1968) 87 WIN (Pt 1) (NSW) 501 R v Donnally (1779) 168 ER 199 R v Donovan [2003] NSWCCA 324 R v Doorey [2000] NSWCCA 456 R v Douglas (Supreme Court of NSW, 14 July 1834, Sydney Gazette)* R v Downie [1988] 2 VR 517 R v Duncan (unrep, 7/12/78, NSWCCA) R v Dunn [2003] NSWCCA 169 R v Ellis (1986) 6 NSWLR 603 R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 R v Farah (unrep, 11/12/98, NSWCCA) viii Table of cases R v Farrell, Dingle & Woodward (1831) 1 Legge 5 R v Fernando (1992) 76 A Crim R 58 R v Fernando [2002] NSWCCA 28 R v Forrest (unrep, 26/3/97, NSWCCA) R v Forrester [2000] NSWCCA 66 R v Francis (1735) 2 Strange 1015 R v Gallagher (1991) 23 NSWLR 220 R v GDR (1994) 35 NSWLR 376 R v Geddes (1936) 36 SR (NSW) 554 R v Goundar (2001) 127 A Crim R 331 R v Govinden (1999) 106 A Crim R 314 R v Grainger (unrep, 3/8/94, NSWCCA) R v Griggs (2000) 111 A Crim R 233 R v Haining & Barratt (unrep, 3/7/75, NSWCCA) R v Hall (unrep, 28/9/95, NSWCCA) R v Henry (1999) 46 NSWLR 346 R v Herring (1956) 73 WN (NSW) 203 R v Hetherington (unrep, 25/2/93, NSWCCA) R v Hickman (1783) 1 Leach 278 R v Hodge (unrep, 2/11/93, NSWCCA) R v Hooper [2004] NSWCCA 10 R v Hoschke [2001] NSWCCA 317 R v House [2005] NSWCCA 88 R v Hua [2002] NSWCCA 384 R v Hughes [2000] NSWCCA 366 R v Hughes & Wellings (1825) 1 Lew CC 301 R v Israil [2002] NSWCCA 255 R v Jeffries & Pearce (Supreme Court of NSW, 8 May 1833, Sydney Herald)* R v Jenkins [1999] NSWCCA 110 R v.
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