Lochie White & Martin Warawanisha

1. Lochie White & Martin Warawanisha

2. The Essence of Robbery Robbery must be carried out with violence or threats towards the owner of the property stolen. The victim has to be forced or have a sense of fear towards the perpetrator and if the threat was made after the theft it is not considered robbery, both actions must coincide. Real force does not need to be dealt, as long as the victim is in fear of violence.

3. The Statutory Scheme • The Crimes Act 1900 (NSW) has 5 crimes under the heading “Robbery”. They are: • robbery or stealing from the person (s. 94) • robbery in circumstances of aggravation (s. 95) • robbery with wounding (s. 96) • robbery etc. or stopping a mail, being armed or in company (s. 97) • robbery with arms etc. and wounding (s. 98).

4. Robbery or Assault with intent to rob or stealing from the person • Summary Disposal • If the value of the stolen goods exceed $5000, then the crime is a “table 1 offence” and is subject to maximum 2 years imprisonment. If it does not exceed $5000, it is a “table 2 offence” and is subject to 12 months imprisonment. Any sum below $2000, is a maximum fine of 20 penalty units. • Bag Snatching • Dealt with under section 94 because the offender steals the bag unbeknown to the victim. • The De Simoni principle and s. 94 • The De Simoni principle is breached when a court takes information (such as crimes the accused has committed, but not charged for) into account and punishes them for it. • For example, for a court to take into account the fact that grievous bodily harm had been caused by the offender, when only actual bodily harm had been charged in the indictment, would be contrary to the De Simoniprinciple.

5. Robbery in Circumstances of Aggravation • In cases where aggravation is relevant, the accused may face a sentence of up to twenty years imprisonment. The seriousness of the offence depends on the nature and extent of the violence. Deprive the victims of their liberty.

6. Robbery in Circumstances of Aggravation with Wounding: s. 96 • “Whosoever commits any offence under s 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to imprisonment for 25 years.” Any offences that include grievous bodily harm (GBH) or more serious consequences such as a permanent disability, will be given a more severe sentence.

7. Robbery etc. or Stopping mail, Being Armed or in Company: s. 97(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 20 years.” Offensive Weapon: a dangerous item, or any thing made or adapted for offensive purposes.

8. Robbery etc. or Stopping Mail, Being Armed or in Company: s. 97(1) • Armed Robbery In the R v Henry Guideline, the court stated that there should be a narrow sentencing range as there are many contributing factors which may make one case more severe to another. The 7 considerations are: Nature of the weapon, vulnerability of the victim, position on a scale of impulsiveness/planning, intensity of threat, or actual use, of force, number of offenders, amount taken, effect on victim(s). • Robbery in Company and Guideline The 7 factors also apply to offences of robbery in company. When in company (2 or more persons) the severity of the sentence increases.

9. Robbery armed with a Dangerous Weapon: s.98 • Armed robbery and s 21A • “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.”

10. Robbery with arms and wounding: s. 98 • Section 21A(2)(b) the offence involved the actual or threatened use of violence with a weapon • Standard non-parole period = liable to a 7 years imprisonment. • Effect of the standard non-parole period on the relevance of the Henry guideline judgment • Henry Guideline judgment as a means to assess the seriousness of an offence under section 97. • Section 98 offences and s 21A • Section 98 is the sentence of grievous bodily harm and section 21A is inflicting emotional harm.

11. Demanding property with Intent to Steal: s. 99 • (Subsection 1) if committed with menace, force or demanding of property with the intent to steal, they shall be liable with intent to steal. (Subsection 2) is the same as subsection 1 just that if it is committed with company, they shall be liable of 14 years of imprisonment. (Subsection 3) it does not matter if any menace or violence is inflicted by the offender or any other person you will still be charged of robbery under subsection 3.

12. Objective factors relevant to all robbery offences • Joint criminal enterprise • When two or more persons plan and come to an agreement of some sort regarding the committing of a crime. If the agreed crime is committed, then all participating criminals are equally guilty of it – regardless of their involvement in the crime. Depending on the circumstances, accused individuals may have a much more significant contribution into the committing of the crime, and therefore are sentenced accordingly. A member of a joint criminal enterprise does not have to enter the premises of the crime to be guilty. • Aiders, abettors and principals in the second degree • Usually, the aiders or abettors are “less guilty” than the primary offender, but there could be cases where they are more culpable than the principle offender. • In R v Anderson (2002) the appellant drove a car with the primary offenders away from the crime scene. She pleaded guilty to Robbery in Company as a principle of the 2nd degree. They found that the appellant “much less guilty” than the principle offender. The Henry Guideline is relevant to aiders and abettors – therefore, individuals with varying levels of involvement may be sentenced less severly.

13. Objective factors relevant to all Robbery Offences • Parity • The principle of parity refers to the differing levels of sentencing for co-offenders. In a case, Lowe v The Queen (1984), it was agreed by Dawson J & Wilson J that “Any difference between the sentences imposed on co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.” • The only matters for varying sentences of co-offenders are age, background, criminal history and general character of the offender and the part which he or she played in the commission of the offence. • Multiple Counts/Totality • Courts and judges need to ensure that defendants who have committed more than one crime and have been charged for this, that they do not exceed a total sentence that is not “just and appropriate” for the offending behaviour.

14. Objective factors relevant to all Robbery Offences • Form 1 Offences • These are offences that have not been charged for but can be taken into account when an offender is being sentenced. Theses offences must be admitted by the accused and are only accounted for in court if they believe it is appropriate. • Use of weapons • The use of weapons may seriously increase the severity of a sentence as there are many factors involved. Whether the gun is loaded, if the gun is fired, whether it is fired with intention to kill, whether the knife is used, whether a weapon is used to cause fear in the witnesses. All of these have varying levels of seriousness. • Victims • Robbery is not only a crime against property, but is a crime against persons. The effect on the victim must be taken into account when giving a sentence. For example, a victim may suffer from long-term psychological effects and therefore the sentence would be more severe. Vulnerable victims are individuals like taxi drivers and petrol stationassistants. The robbery becomes aggravated if these victims are involved.

15. Subjective factors commonly relevant to Robbery • Drug addiction: Drug addiction itself is not mitigated as a serious offence but it cannot be used an excuse to commit an armed robbery or any similar offence. • Mental health and intellectual functioning:if the offender was suffering from mental illness either during the offence or during the trial it will be taken into consideration as a mitigation. • Youth: is a very known mitigating factor and normally the younger the offender the more the weight of that should be given to the element of youth. However, if a youth performs like an adult; for example, by committing a crime that is serious (involves violence, in company or use of dangerous weapons) than it is assumed that the court will do their best to bring justice to the community and deal out a suitable sentence.