Criminal law
Robbery and armed robbery charges in NSW
These charges run from fourteen years to twenty five, and where yours sits often turns on a single feature: whether someone else was with you, what was in your hand, and whether anyone was injured. Full-time custody is the expected outcome for armed robbery, and youth by itself is not an exception to that. Which charge is laid is therefore the most important thing that happens in the matter, and it is regularly arguable.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales and in the District Court, and we can attend a police station.
On this page
What robbery is The offences What lifts a charge Court and bail How courts sentence Defences Sentencing options Common questions
What robbery is
Robbery is stealing with force, or with the fear of force. The essence of it is that violence is done or threatened to the person standing between the offender and the property, in order to overcome their resistance and make them give it up.
- Force does not have to be applied. Conduct that puts the victim in fear of violence is enough, and the threat can be implied rather than spoken
- The force and the taking must coincide. A threat made after the property has already been taken is not robbery. This is a real argument and it arises more often than it is run
- Stealing from the person, without any force at all, is charged under the same provision and carries the same fourteen year maximum. Most bag snatching is prosecuted this way
- Nothing has to be taken. Assault with intent to rob is the same offence as robbery, with the same maximum
The offences and their maximums
| Offence | Maximum penalty |
|---|---|
| Robbery, or assault with intent to rob | 14 years |
| Stealing from the person | 14 years |
| Robbery in circumstances of aggravation | 20 years |
| Robbery while armed with an offensive weapon, or in company | 20 years |
| Aggravated robbery with wounding or grievous bodily harm | 25 years |
| Robbery while armed with a dangerous weapon | 25 years |
| Robbery while armed or in company, with wounding or grievous bodily harm | 25 years, with a standard non-parole period of 7 years |
| Demanding property with menaces, with intent to steal | 10 years, or 14 years if done in company |
Only the last of the robbery offences carries a standard non-parole period. Where one applies, the court is directed to a reference point of seven years for an offence in the middle of the range, which changes how the whole sentencing exercise is approached.
The three things that lift a charge
Circumstances of aggravation
A closed list of three, not a general description of seriousness:
- The use of corporal violence
- The infliction of actual bodily harm, whether intentionally or recklessly
- Depriving a person of their liberty
Any one of them takes a fourteen year matter to a twenty year one. Where the aggravating feature relied on is corporal violence, the nature and extent of the violence still matters to seriousness, and the courts draw a real distinction between using force and inflicting injury.
Being in company
Committing a robbery with another person is enough on its own to reach the twenty year offence, without any weapon and without any injury. It is the most commonly alleged aggravating feature and the most consequential, and it also takes the matter out of the Local Court entirely.
The weapon, and which kind it was
Offensive weapon
Anything made or adapted for offensive purposes, and anything that in the circumstances is used, intended for use, or threatened to be used for offensive purposes, whether or not it is ordinarily a weapon and whether or not it could actually cause harm. Everyday objects qualify. Maximum 20 years.
Dangerous weapon
A much narrower category: a firearm or an imitation firearm, a prohibited weapon, or a spear gun. Maximum 25 years. Whether a particular item falls inside this definition is worth five years and is not always as obvious as the fact sheet suggests.
A robbery with a dangerous weapon is not automatically more serious than one with an offensive weapon. It depends on the weapon. Where the item could not in fact have killed or seriously injured anyone, that bears directly on where the offence sits in the range.
Which court, and bail
Robbery, assault with intent to rob and stealing from the person can be dealt with in the Local Court, where the ceiling is two years whatever the offence carries on indictment. Everything above those goes to the District Court, where the full maximum applies.
That makes whether an aggravating feature is genuinely made out the difference not only in maximum penalty but in which courthouse you stand in, and it is one of the first things worth testing. Where a matter can be kept in the Local Court, the exposure changes from twenty years to two.
Bail. Where a firearm is involved these are show cause offences, which means the onus falls on you to satisfy the court that your detention is not justified before the ordinary bail considerations are reached. Preparation for a bail application starts immediately, not at the first mention. Accommodation, employment, treatment and a proposed surety are what make the difference, and they take days to assemble.
How the courts approach these matters
We will be direct about this. A guideline judgment applies to armed robbery. It identifies a common category of case, being a young offender with little criminal history, a weapon such as a knife capable of causing serious injury, limited planning, a threat rather than actual violence, a vulnerable victim such as a shopkeeper or taxi driver, a small amount taken, and a late plea, and it directs courts to a particular range for that case.
An offender convicted of armed robbery should expect full-time custody save in exceptional circumstances. Youth by itself is not an exceptional circumstance and neither, on its own, is rehabilitation.
That is the starting point, not the finish. A guideline is a reference point rather than a tramline, and what moves the outcome is:
- Which offence is charged, and whether the aggravating feature relied on is actually made out. The single largest lever, and the reason not to plead before someone has examined it
- Whether the matter can stay in the Local Court, where the ceiling is two years
- An early plea, because the discount is substantial and it reduces as the matter progresses
- Your role. Parties to a joint criminal enterprise are not automatically equally culpable, and the difference between organising something and driving a car can be real. Parity between co-offenders is a live issue in almost every one of these matters
- The weapon and how it was used. Carrying, presenting, discharging and aiming are steps on a scale, and where the item was incapable of causing serious injury that matters
- Addressing the cause. Where offending is driven by drug dependency, documented engagement with treatment started early carries genuine weight. Where a deprived background is established, the weight given to general deterrence is moderated
- Whether the facts are agreed, because the court sentences on the fact sheet and not on your account of what happened
Defences and arguments
It was not you
Identification is the central issue in most robbery matters and the evidence is usually circumstantial: CCTV of poor quality, an identification made under pressure shortly after the event, phone location data, clothing said to match.
No force, or force at the wrong time
Where nothing was done or threatened to overcome resistance, or where the threat came after the property was already taken, the offence charged is not made out. What remains may be larceny, which is an entirely different matter.
No intention to steal
A fight over property, a dispute about a debt, or a taking that was never intended to be permanent.
The aggravating feature is not made out
Not a defence to the underlying charge, but usually the most valuable argument available, because it moves the matter down a tier and can move it out of the District Court.
Duress
You acted under a threat of serious harm. It arises regularly where a group is involved and one person was pressured into a role.
Self-defence
Where the violence rather than the taking is the disputed element, and you were responding to what the other person did.
A claim of right can negative the stealing element even on a robbery charge, where you honestly believed you were legally entitled to the property. It does not excuse an assault committed in the course of taking it, so in practice it reduces what you are facing rather than answering it altogether.
More on break and enter, and more on assault, both of which frequently accompany these charges.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. It is not available for some offences. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you, your circumstances or anything mitigating. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document.
The lower end of these offences does resolve without full-time custody, particularly where the matter stays in the Local Court and there is no weapon and no injury. The upper end usually does not, and we will tell you which of those you are looking at rather than what you would prefer to hear.
Common questions
There were two of us. Does that matter?
A great deal. Being in company is enough by itself to lift a fourteen year offence to a twenty year one, without any weapon and without any injury, and it takes the matter out of the Local Court. It is the most commonly alleged aggravating feature in these prosecutions and the one worth examining first.
I never touched anyone. Can it still be robbery?
Yes. Force does not have to be applied. Conduct that puts the person in fear of violence is enough and the threat can be implied. Conversely, if nothing was done or threatened to overcome their resistance, and they simply did not notice, the charge may be stealing from the person rather than robbery, which is a different offence even though the maximum is the same.
The weapon was not real.
An imitation firearm falls inside the definition of a dangerous weapon, so the charge can still be the twenty five year offence. But whether the item was capable of killing or causing serious injury bears directly on where the offence sits in the range, and a robbery with an object incapable of harming anyone is not the typical case the guideline judgment addresses.
I was the driver. I never went in.
You can still be liable as a party to a joint criminal enterprise, and an aider or abettor is liable to the same penalty as the principal. That said, culpability is not automatically equal. Whether you were centrally involved, what you knew about a weapon, and whether the offence went beyond what was agreed are all live questions.
Will I go to gaol?
For armed robbery, expect full-time custody unless exceptional circumstances are established, and youth alone is not one. For the lower offences, particularly where the matter can stay in the Local Court, there is real scope for another outcome. Which of those applies to you turns on the charge, and that is where the work starts.
Can I get bail?
Often, but where a firearm is involved these are show cause offences and the onus is on you. What matters is what can be put forward: stable accommodation, employment or study, treatment where dependency is involved, and someone able to offer a surety. That takes days to assemble, so tell us immediately rather than after the first mention.
Police want to interview me.
You are not obliged to answer questions beyond providing your name and address. In these matters the case usually turns on identification and on whether a weapon was involved, and an explanation offered at the station tends to resolve both in the prosecution’s favour. Get advice first.
What should I bring to a first appointment?
The court attendance notice, the police fact sheet, any bail conditions, and the names of anyone else charged. If treatment or counselling is relevant, bring whatever you have. If you have none of it, come anyway.
Which charge you face is decided in the first few weeks
The gap between the tiers is measured in years, and whether an aggravating feature is actually made out is regularly arguable. Get advice before you plead to anything, and before the question of which court hears it is settled.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. We appear in Local Courts across New South Wales and in the District Court. Courts we appear in.