Robbery and armed robbery in NSW: the elements, the fake gun, and the penalties.

The news, and the point of law it raises.

Police say a man walked into a tobacconist on Bondi Road just after 9pm, threatened a staff member with a gun believed to be an imitation, took cash, and left. No one was hurt. Detectives have released CCTV and asked the public for help. No one has been charged, and anyone who is later charged is presumed innocent. The purpose of this note is not that matter. It is the question the report puts in a lot of people's minds: how can a robbery with a fake gun be as serious as one with a real one? In NSW, it can be, and often is.

What is robbery in NSW?

Robbery is theft made worse by force or fear. It starts with the four elements of larceny. The prosecution must prove that the accused took and carried away property that belonged to someone else, without consent, with the intention of keeping it permanently, and without an honest belief that they had a legal right to it. You can read more on that base offence in our note on larceny in NSW.

Robbery adds two things to that. First, the property must be taken from the person or in the presence of the victim. Second, force, or a threat of force that puts the victim in fear, must be used either to get the property or to overcome resistance to it being taken. A snatch-and-grab where the victim never feels threatened may be only larceny. The moment fear or force enters, it becomes robbery. Basic robbery and stealing from the person sit in section 94 of the Crimes Act 1900 (NSW), with a maximum of 14 years. Section 94 also covers assault with intent to rob, so the offence is complete even where the offender leaves empty-handed.

What is the difference between robbery and armed robbery?

The charge climbs as the conduct gets worse. Section 95 lifts basic robbery to a 20-year maximum where it happens in circumstances of aggravation, which the Act defines to include using corporal violence, intentionally or recklessly inflicting actual bodily harm, or depriving the victim of their liberty. Section 96 lifts it again, to 25 years, where the aggravated robbery involves wounding or grievous bodily harm.

Armed robbery is the next step and the one people search for most. Under section 97(1), a robbery becomes armed robbery where the offender is armed with an offensive weapon or instrument, or is in the company of another person. That carries 20 years. Where the weapon is a dangerous weapon, section 97(2) applies and the maximum rises to 25 years. Section 98 sits at the top of this group: a robbery committed while armed or in company that also wounds or inflicts grievous bodily harm carries 25 years and, unlike the others, comes with a standard non-parole period of 7 years.

Is it still armed robbery if the gun is fake?

Yes, and this is the part of the Bondi report that catches people out. The line between section 97(1) and section 97(2) turns on the definitions in section 4 of the Crimes Act 1900 (NSW). A dangerous weapon is defined to include a firearm or an imitation firearm within the meaning of the Firearms Act 1996, a prohibited weapon, or a spear gun. Because an imitation firearm falls inside that definition, a robbery with a replica or imitation gun is charged as aggravated armed robbery under section 97(2), with the same 25-year maximum as a robbery with a loaded, working firearm.

The logic is about the victim, not the mechanics. A person facing what looks like a gun is put in the same fear whether or not the thing can fire. Even an object that is not a firearm at all, a knife, a syringe, or anything used to threaten, can make a robbery an armed robbery as an offensive weapon or instrument under section 97(1). What matters is that the offender was armed and used the object to rob, not whether the weapon was capable of causing the harm it threatened.

What does "in company" mean?

A robbery is committed "in company" where two or more people are physically present and share the common purpose of the robbery. The offenders do not each have to lay hands on the victim or the property. Presence and a shared plan are enough, because the point of the aggravation is the added menace of being outnumbered. This is also why a group robbery can put several people in the frame for the same offence through joint criminal enterprise, where each participant is liable for what the group set out to do. Being in company lifts a section 94 robbery into section 97 without any weapon at all.

What are the penalties for robbery and armed robbery in NSW?

The maximum penalties track the seriousness of the conduct. Section 94 robbery or stealing from the person is 14 years. Section 95 aggravated robbery is 20 years. Section 96 aggravated robbery with wounding or grievous bodily harm is 25 years. Section 97(1) armed robbery, with an offensive weapon or in company, is 20 years. Section 97(2) aggravated armed robbery, with a dangerous weapon, is 25 years. Section 98 armed robbery with wounding is 25 years and carries the 7-year standard non-parole period.

Two things about these figures. A maximum marks the worst case, not the going rate, and a standard non-parole period is a reference point for the middle of the range, not a floor the court must reach. All of the robbery offences are strictly indictable, which means they are finalised in the District Court, not the Local Court. Where more than one robbery is charged, or a robbery is charged with related offences such as wounding or grievous bodily harm with intent, the totality of the offending shapes the sentence.

Do you always go to jail for armed robbery?

Full-time prison is the usual outcome, but it is not fixed by law. The guideline judgment in R v Henry describes the sentencing range for a typical armed robbery and treats a full-time custodial sentence as the ordinary result. That reflects how seriously the courts view the fear an armed robbery causes. The guideline is a starting point, not a straitjacket. Youth, a timely guilty plea, mental health or cognitive issues, a minor or coerced role, addiction being addressed, and real progress towards rehabilitation can all pull a sentence down.

In the stronger cases, the court can order that the sentence be served in the community as an intensive correction order rather than in gaol. A plea entered early also matters, because the discount for pleading guilty can be worth up to 25 per cent off the sentence, as explained in our note on the plea discount in NSW. Bail is often the first battle in these matters, and armed robbery is a serious offence for bail purposes, so early advice counts.

What are the defences to a robbery charge?

The defence that fits depends on the brief. Where the case rests on CCTV and a description, as many robbery matters do, identity is the live issue: is the person in the footage the accused, and is the identification reliable. A genuine belief in a legal right to the property can defeat the theft element, so a person taking back what they honestly believe is their own is not committing robbery. Where there was no force and no fear, the charge may fall to simple larceny. Duress is available where the accused acted under a serious and immediate threat.

Robbery also requires the intention to permanently deprive, which is a specific intent, so heavy intoxication can be relevant to whether that intent was formed. None of this is a menu to pick from at will. The right approach comes from reading the whole brief, testing the identification and the CCTV, and finding where the prosecution case is thinnest. Our page on the base charge of robbery in NSW sets out how the firm approaches these matters.

Primary sources: the robbery offences are in sections 94 to 98 of the Crimes Act 1900 (NSW), with the definitions of "offensive weapon or instrument" and "dangerous weapon" in section 4. The armed robbery guideline judgment is R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 on JADE. Standard non-parole periods are in the Table to Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Sentencing guidance is collected in the Judicial Commission's sentencing benchbook.

Common questions

What is robbery in NSW?

Robbery is theft made worse by force or fear. The prosecution proves the four elements of larceny, that the accused took and carried away property belonging to another, without consent, meaning to keep it permanently and without a genuine claim of right, and adds two things: that the property was taken from the person or in their presence, and that force, or a threat that put the victim in fear, was used to get the property or overcome resistance. Basic robbery is section 94 of the Crimes Act 1900 (NSW) and carries 14 years.

What is the difference between robbery and armed robbery?

Basic robbery under section 94 carries 14 years. The charge steps up to armed robbery under section 97 when the offender is armed with an offensive weapon or instrument, or is in company with another person. Section 97(1) carries 20 years. Where the weapon is a dangerous weapon, such as a firearm, section 97(2) applies and the maximum is 25 years. A robbery that wounds or causes grievous bodily harm is charged under section 96 or section 98 and also carries 25 years.

Is it still armed robbery if the gun is fake?

Yes. Under section 4 of the Crimes Act 1900 (NSW), a dangerous weapon includes an imitation firearm. A robbery with a replica or imitation gun is therefore charged as aggravated armed robbery under section 97(2), with the same 25-year maximum as a robbery with a real firearm. Even a non-firearm object can make a robbery an armed robbery if it is used as an offensive weapon or instrument. What the offender did with the object matters more than whether it could fire.

What are the penalties for robbery in NSW?

Section 94 basic robbery is 14 years. Section 95 aggravated robbery is 20 years. Section 96 aggravated robbery with wounding or grievous bodily harm is 25 years. Section 97(1), armed with an offensive weapon or in company, is 20 years. Section 97(2), armed with a dangerous weapon, is 25 years. Section 98, armed or in company and wounding or inflicting grievous bodily harm, is 25 years with a standard non-parole period of 7 years. All are strictly indictable and dealt with in the District Court.

Do you always go to jail for armed robbery in NSW?

A full-time prison sentence is the usual result, but not an automatic one. The guideline judgment in R v Henry sets the range for a typical armed robbery and treats custody as the ordinary outcome. The court can move away from that where the case has strong features in the offender's favour, such as youth, a guilty plea, mental health issues, a minor role, or genuine rehabilitation. In the right case the sentence can be served in the community as an intensive correction order.

What are the defences to a robbery charge in NSW?

The common defences are identification, that the wrong person has been charged, which is often the live issue where the case rests on CCTV; a genuine claim of legal right to the property, which can defeat the theft element; the absence of force or fear, which may reduce the charge to simple larceny; and duress. Whether the accused meant to permanently deprive the owner, and whether intoxication affected that intent, can also be in issue. The defence that fits depends on the evidence in the brief.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 23 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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