R v Kemp; R v Duncan [2018] NSWDC 471

R v Kemp; R v Duncan [2018] NSWDC 471

The offence was extremely serious: the victim was robbed in broad daylight, a broken glass bottle top was held close to his throat, and the offenders acted in company. The Form 1 matters, prior records and commission while on conditional liberty aggravated the offending. Although Kemp otherwise warranted a greater sentence because he was older, appeared to lead the offending and had a longer record, his personal circumstances called for greater leniency and parity required the same sentence as Duncan. A custodial sentence exceeding two years was required, so an Intensive Correction Order was not available. Starting from a theoretical head sentence of five years and applying the accepted...

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Criminal Sentence / Sentence After Guilty Pleas
Outcome
Both offenders were convicted and sentenced to imprisonment for three years and nine months, with non-parole periods of one year and eleven months; special circumstances were found.
Legal Topics
['armed Robbery in Company' 'co Offenders' 'joint Criminal Enterprise' 'form 1 Matters' 'conditional Liberty' 'parity' 'guilty Plea Discount' 'special Circumstances' 'alcohol and Other Drug Abuse' 'social Deprivation and Disadvantage']
['criminal Law' 'sentencing'] ['armed Robbery in Company' 'co Offenders' 'joint Criminal Enterprise' 'form 1 Matters' 'conditional Liberty' 'parity' 'guilty Plea Discount' 'special Circumstances' 'alcohol and Other Drug Abuse' 'social Deprivation and Disadvantage']

Case Brief

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Procedural Posture

Criminal Sentence / Sentence After Guilty Pleas

Legal Issues

  1. 1 ['What sentence should be imposed on each offender for robbery while armed with an offensive instrument and in company contrary to s 97(1) of the Crimes Act 1900.' 'How the Form 1 matters, conditional liberty, prior convictions, guilty pleas, personal deprivation, alcohol and drug abuse, parity and prospects of rehabilitation affected sentence.' 'Whether an Intensive Correction Order was appropriate.' 'Whether special circumstances justified a longer period on parole than the statutory ratio would otherwise produce.']

Ratio Decidendi

The offence was extremely serious: the victim was robbed in broad daylight, a broken glass bottle top was held close to his throat, and the offenders acted in company. The Form 1 matters, prior records and commission while on conditional liberty aggravated the offending. Although Kemp otherwise warranted a greater sentence because he was older, appeared to lead the offending and had a longer record, his personal circumstances called for greater leniency and parity required the same sentence as Duncan. A custodial sentence exceeding two years was required, so an Intensive Correction Order was not available. Starting from a theoretical head sentence of five years and applying the accepted...

Court Disposition

Both offenders were convicted and sentenced to imprisonment for three years and nine months, with non-parole periods of one year and eleven months; special circumstances were found.

Orders

  • ['Harley Kevin Kemp is convicted and sentenced to imprisonment with a non-parole period of one year and eleven months commencing on 24 August 2018 and expiring on 23 July 2020, with a further period of imprisonment of one year and ten months commencing on expiry of the non-parole period and expiring on 23 May 2022.'...