The Crimes Act 1900 does not contain a definition of robbery.
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
It is not sufficient that the threat of violence is made after the property has been taken; both elements of the offence must coincide.
It is not necessary that the offender applies force. It is enough that the offender by his or her conduct (which may involve an express or implied threat) puts the victim in fear of violence.
Part 4, Div 2 Crimes Act 1900 (“the Act”) sets out five sections under the heading “Robbery”: 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); and robbery with arms etc and wounding (s 98). The related offence of demanding property with intent to steal is contained in s 99, Pt 4, Div 3 of the Act.
The provisions in Pt 4, Div 2 of the Act establish a series of offences, in ascending degrees of seriousness, and with ascending orders of maximum penalty, depending on the circumstances of the case.
It was said over twenty years ago that a robbery, whether with or without arms, is to be regarded “in virtually all circumstances as an offence of the utmost gravity, which must carry a custodial sentence”.
This approach was affirmed in the guideline judgment of R v Henry (1999) 46 NSWLR 346. It applies to armed robbery sentences and has sentencing implications for other robbery offences in s 97(1) and elsewhere in the Act.
Section 94 provides:
- robs or assaults with intent to rob any person, or
- 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.
Stealing from the person is robbery without the element of violence or threat of violence. A common form of this offence is bag snatching.
Section 95 provides:
(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.
Section 95(2) sets out three circumstances of aggravation.
When the circumstance of aggravation relied upon is the use of corporal violence, the nature and extent of the violence will be relevant to the seriousness of the offence.
Sentences must reflect the distinction between using force and inflicting actual injuries.
Section 96 provides:
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.
All offences under s 96 involving the infliction of grievous bodily harm are serious, but those resulting in permanent disability are necessarily more so. This must be reflected in the severity of the sentence.
Section 97(1) provides:
(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,
In R v Henry (1999) 46 NSWLR 346 Spigelman CJ stated at :
Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment.
An offender convicted of armed robbery should expect to receive a full-time custodial sentence, save in the “most exceptional circumstances”:
The guideline judgment of R v Henry (1999) 46 NSWLR 346 is directed at the offence of armed robbery pursuant to s 97(1) of the Act.
Spigelman CJ promulgated the following guideline:
A Guideline for New South Wales
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.
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.
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).
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.
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.
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).
Section 97(2) provides:
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.
A “dangerous weapon” is defined as either a firearm within the meaning of the Firearms Act 1996, a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or a spear gun.
Armed robbery offences escalate in seriousness according to how weapons are used.
Section 98 provides:
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.
Robbery with wounding in company will usually constitute a serious offence, and will be more serious if it extends over a longer period, involves a more serious degree of bodily harm or results in a greater loss of property.
Where a s 98 offence was committed on or after 1 February 2003, the offence carries a standard non-parole period of seven years.
Section 99 provides:
(1) Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to imprisonment for ten years.
(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.
(3) It is immaterial whether any such menace is of violence or injury by the offender or by any other person.
Demanding property with intent to steal is a Table 1 offence and is to be dealt with summarily unless an election is made for trial on indictment. The maximum penalty which can be imposed by the Local Court is two years’ imprisonment: s 267(2).