Criminal law: November 2017

Sentencing – meaning of ‘in company’ in two different contexts

White v R [2016] NSWCCA 190

What does ‘in company’ mean? Does ‘in company’ in the Crimes Act mean the same as ‘in company’ in section 21A of the Crimes (Sentencing Procedure) Act (‘CSPA’)? In this decision, a majority of the Court of Criminal Appeal (CCA) found that although the language used is subtly different, the meanings are effectively the same – and then went some way to defining what is meant by those words.

The appellant was charged with two counts of robbery whilst armed with an offensive weapon (one was taken into account on a Form 1). In the first, the offender pointed at a clothing store and the co-offender (described as a ‘female acquaintance’) walked away. The offender entered the store, pointed something that looked like a pistol at a store employee, and demanded money. He eventually got $330, re-joined the co-offender, and they walked away. In the second robbery, he walked to a restaurant with the co-offender, and again entered while the co-offender walked away. Again the appellant produced something that looked like a pistol, took $13,000 from the cash register (it was the end of the night), re-joined the co-offender, then ran away. Taking into account a number of factors (including combined discount for plea and assistance of 30 per cent), he was sentenced to imprisonment for 6 years, 6 months, with a non-parole period of 4 years. At the sentencing proceedings, the offender’s lawyer expressly conceded in written submissions that the offences had been committed in company. The co-offender pleaded guilty to two charges of concealing a serious indictable offence (one of which was on a Form 1).

On appeal it was argued that the judge erred by taking into account, as an aggravating factor, that the offences were committed in company. The CCA (Simpson JA, Bathurst CJ agreeing with additional reasons; Basten JA dissenting) found that it was an error to take it into account – although it was an error into which the judge was led by the appellant’s counsel (at [98]). The words ‘in company’ in s 21A(2)(e) of the CSPA have the same meaning as at common law – that is, it means the same in s 21A as it does in the context of the Crimes Act more generally (at [2]-[4] of Bathurst CJ’s judgment, in which his Honour summarises Simpson JA’s conclusions).

Perhaps of most interest is the general analysis of the concept of ‘in company’ which Simpson JA embarks upon from [81] of her judgment, in which her Honour observes that the meaning in each case will turn upon its own facts. There are a number of factors which may be relevant, including: the potential effect of the presence of the second person on the victim, the potential effect of the presence of the second person on the offender, and whether it can be said that there was a common purpose (at [94]).