Robbery in company – s 97 of the Crimes Act 1900

This means that someone assisted in committing the crime. In White v R [2016] NSWCCA 190 at [94], Justice Simpson considered that defining ‘in company’ requires the consideration of three questions:

1. whether the presence of the other person is such as to have a potential effect on the victim, by way of coercion, intimidation, or otherwise;
2. whether the presence of the other person is such as to have a potential effect on the offender, by offering support or encouragement, or “emboldening” that person;
3. whether the evidence establishes that the other person is present, sharing a common purpose with the offender.

• A ‘dangerous weapon’ is defined in s 4(1) of the Act as either a firearm within the meaning of the Firearms Act 1996, a prohibited weapon within the meaning of the Weapons Prohibition Act 1988, or a spear gun. (Sentencing Bench Book.)

The maximum penalty for this offence is imprisonment for 20 years.

In circumstances of aggravation (eg. armed with a dangerous weapon), the penalty increases to imprisonment for 25 years

Please note that such a penalty is reserved for the most serious cases only.

This option is recommended only where you accept that:

• You were in the company of another person; or
• at least one person was armed; and
• an intention to steal had been formed; and
• force or coercion was threatened on the victim, or the victim was assaulted; and
• property was taken from victim’s immediate control or presence.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

In the vast majority of cases, a term of imprisonment will be given.

This has been confirmed in R v Roberts (1994) 73 A Crim R 306 at [308] where the court held that an offender convicted of this offence should expect to receive a full-time custodial sentence, except in the “most exceptional circumstances”: 

In the guideline judgment of R v Henry (1999) 46 NSWLR 346 at [162], Judge Spigelman gave regard to the following factors in determining an appropriate sentence:

1. young offender with no or little criminal history;
2. weapon like a knife, capable of killing or inflicting serious injury
3. limited degree of planning
4. limited, if any, actual violence but a real threat thereof
5. victim in a vulnerable position such as a shopkeeper or taxi driver
6. small amount taken
7. plea of guilty, the significance of which is limited by a strong Crown case.

As a starting point, a term of imprisonment of between four and five years is given to an offender where the above criteria is met. Other factors will determine whether the sentence falls below or above this range.

Very few offenders are given an Intensive Corrections Order (where a term of imprisonment can be served in the community.) Even fewer (less than 3%) offenders are given a Community Corrections Order, where an offender is placed under the supervision of Community Corrections.

To prove robbery in company, the Prosecution must establish beyond a reasonable doubt that:

• You were in the company of another person; or
• at least one person was armed; and
• an intention to steal had been formed; and
• force or coercion was threatened on the victim, or the victim was assaulted; and
• property was taken from victim’s immediate control or presence.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then a finding of not guilty should be given.

Defences:

• The circumstances in which the victim handed over property do not support a charge of robbery in company. EG.
  • A threat of violence is made after the property is stolen. See R v Foster (1995) 78 A Crim R 517.
  • Following an act of violence, an item or items are randomly stolen. In other words, these are discrete or separate incidents.
• A claim of right – a bonafide belief that you were entitled to take the property.
• No intention to steal had been formed. EG. intoxication rendered you incapable of forming the requisite intent.
• The offence was not committed in company or with a weapon.
• No threat or force was inflicted on the victim.