Robbery

Robbery is an aggravated form of theft. This charge is generally laid in situations where a person commits a theft and, immediately before or at the time of doing so, uses force on any person, or puts or seeks to put fear in any person that they or another person will be then and there subjected to force. Sometimes these charges can be negotiated down to a theft and an assault in the factual situation that the theft occurs before the assault. If this can be done, it reduces the maximum penalties involved significantly.

Jurisdictional Limits

Robbery is an indictable offence, which means that it may be heard in the higher courts. However, it is generally the sort of charge regularly heard in the Magistrates’ Court as it is incredibly rare for the value of the property alleged to have been stolen to exceed $100,000.00.

It is sometimes heard in the County Court if a person is initially charged with an armed robbery and that charge results in being withdrawn or a jury finds a person not guilty of the element of being armed. Hence the offending will fall exactly within the meaning of “robbery” and not within that of “armed robbery”.

In terms of the sentencing range available, the Act stipulates that the offence carries a 15 year term of imprisonment as the highest possible sentence. However the maximum term of imprisonment that can be imposed in the Magistrates’ Court for a single offence is two years. Further, the maximum aggregate total sentence that can be imposed is five years.1

Depending on the circumstances of the offender and the nature of the robbery, it may also be possible to argue for a penalty that does not involve any actual gaol time, such as a Community Corrections Order.

The Statutory Provision

This offence is governed by section 75 of the Crimes Act 1958 (Vic) (‘the Act’). It reads as follows:

  1. A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force.

The Elements: What Circumstances Will Satisfy the Meaning of Robbery?

Pursuant to section 75(1) of the Act, the Prosecution must prove the following elements:

  1. The accused committed theft (stole something);The first element the Prosecution must prove is that the accused committed a theft (i.e. stole something). A person steals if s/he dishonestly appropriates property belonging to another and does so with the intention of permanently depriving the other of the property.2
     
  2. Immediately before or at the time of the theft, the accused either:

    1. Used force on any person, or
    2. Put any person in fear that the accused or another person would, then and there, be subject to the use of force, or
    3. Sought to put any person in fear that s/he or another person would, then and there, be subject to the use of force.
       

    The use of force will often be easily established by way of physical force. However, it is important to note that there is no legal standard or baseline for the minimum physical contact required to constitute ‘use of force’.3 Physical force need not be applied to the body. It may be sufficient for force to be applied to items that a person is carrying.4 If a dispute arises as to whether the actions of an accused person can be said to amount to a use of force, it will be a question for the jury to determine.

    To put any person in fear of force will involve the use of some kind of threat. It requires that the victim must have feared that the force would be used “then and there”.5 It is not sufficient that there to be a threat of force at some distant point in the future. There is a minimum standard for threats capable of meeting this element. The threat must be sufficient enough to cause personal intimidation.6

    Sought to put any person in fear requires that the accused sought to put the victim in fear, even if that attempt was not successful. Under this head, it is not a requirement that the victim was actually fearful.

  3. The accused did so immediately before or at the time of stealing;This is in reference to element 2, namely, the force, fear of force, or act that sought to inflict fear of force, was applied “immediately before or at the time” of the theft.7 Force applied or fear induced after the fact will not meet the requirements of this element.

    The act of theft can be a continuous act. The force applied or fear of force induced can occur at any time prior to the act of stealing being complete.8

  4. The accused did so in order to commit a theft.Lastly, the force must have been used or threatened in order to carry out the theft.9

These elements constitute the legal definition of robbery and they need to be established beyond reasonable doubt to prove that the accused is guilty.

In a trial, the questions a judge will ask the jury to consider are:

  1. Did the accused commit theft?
    1. Did the accused appropriate property that belonged to another person>
      (Consider – Did the accused take something without the owner’s consent?)
      If yes, then he will ask 1b.
      If no, then the accused is not guilty of robbery.
    2. Did the accused intend to permanently deprive another person of that property?
      If yes, then he will ask 1c.
      If no, then the accused is not guilty of robbery.
    3. Was the accused acting dishonestly?
      (Consider – Might the accused have believed that s/he had a legal right to take the property?)
      If yes, then he will ask 2.
      If no, then the accused is not guilty of robbery.
  2. Immediately before or at the time of the theft, did the accused use force against another person?
    If yes, then he will ask 4.
    If no, then he will ask 3.
  3. Immediately before or at the time of the theft, did the accused put a person in fear, or seek to put a person in fear, that force was going to be used on him or her or another person, then and there?
    If yes, go to 4.
    If no, then the accused is not guilty of robbery.
  4. Did the accused act in this way in order to commit the theft?
    (Consider – Did the accused use or threaten the use of force for the purpose of stealing, rather than for another purpose).
    If yes, then the accused is guilty of robbery.
    If no, then the accused has not committed all the actions necessary to satisfy the definition of a robbery. Therefore the accused is not guilty.

Possible Defences to a Robbery Charge

Aside from general defences such as mistaken identity and factual dispute, defences to this charge can include duress imposed on the accused by another, lack of intent, and the concept of beyond reasonable doubt. A defence to the charge may also be an honest belief in the accused to a claim of right to the property obtained. Without an act of theft, which within itself requires the accused to appropriate property belonging to another and which is a major component defining a robbery charge, this offence cannot be made out.

Sentencing outcomes in the Magistrates’ court

The Sentencing Advisory Council has released sentencing statistics for the sentencing of robbery in the Magistrates’ Court between July 2011 and June 2014.

Over the three year period:

  • 657 cases were before the Court
  • 35.9% of people sentenced received a period of imprisonment
  • 14.2% received a wholly suspended period of imprisonment
  • 5.3% received a partially suspended sentence
  • 2.7% received a fine
  • about 32% received some form of community based order.

The most common length of imprisonment imposed was between 12 and 18 months with 27.1% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.

Sentencing outcomes in the higher courts

The Sentencing Advisory Council has released sentencing statistics for the sentencing of robbery in the County and Supreme Court’s between July 2009 to June 2014.

Over the five year period:

  • 379 cases were heard before the higher courts
  • 62% of people sentenced received a period of imprisonment
  • 8.4% received a wholly suspended period of imprisonment
  • 1.8% received a partially suspended sentence
  • 1.1% received a fine
  • about 11.8% received some form of community based order.

The most common length of imprisonment imposed was between 1 and 2 years with 34.9% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.

To view sentencing decisions by Victorian County Courts for the charge of Robbery, visit this page.

Check out some of the criminal cases we’ve defended in court that involve the offence of Robbery:



[1]Sentencing (27 March 2014) Magistrates’ Court of Victoria:
<https://www.magistratescourt.vic.gov.au/jurisdictions/criminal-and-traffic/criminal-proceedings/sentencing>.
[2]s72 Crimes Act 1958.
[3]Dawson & James (1976) 64 Crim App R 170; Hood v R [2000] WASCA 98 – cited in Criminal Charge Book, 7.5.1.2.1 – Bench Notes: Robbery (26 March 2009) Judicial College of Victoria:
http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#5100.htm.
[4]R v Clouden [1987] Crim LR 56 - cited in Criminal Charge Book, 7.5.1.2.1 – Bench Notes: Robbery (26 March 2009) Judicial College of Victoria:
http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#5100.htm.
[5]s75(1) Crimes Act 1958.
[6]R v Butcher [1986] VR 43 cited in Criminal Charge Book, 7.5.1.2.1 – Bench Notes: Robbery (26 March 2009) Judicial College of Victoria:
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#5100.htm>.
[7]Above n 4.
[8]R v Hale (1978) 68 Cr App R 415 cited in cited in Criminal Charge Book, 7.5.1.2.1 – Bench Notes: Robbery (26 March 2009) Judicial College of Victoria:
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#5100.htm>.
[9]Above n 4.