Citation: R v Shane Carusi [2014] NSWDC 191
Court: District Court of New South Wales
Date: 7 November 2014
Judge: Mahony SC DCJ
Background
Just after midnight on 25 July 2013, a 24-year-old offender entered a BP service station at Merrylands. He had disguised his face with a scarf, and once inside he produced a single-barrel shortened shotgun from under his jumper, pointed it at the attendant, and demanded money. The attendant handed over $170. The entire incident was captured on CCTV, the offender was identified the same day, and he was arrested at his workplace the following morning.
During his police interview, the offender stated he had no memory of committing the robbery because he was heavily affected by drugs and alcohol at the time, but acknowledged the CCTV showed him. He directed police to the location of the shotgun at his home. He had purchased the unlicensed firearm approximately one month earlier.
The offender pleaded guilty to one charge of robbery armed with a dangerous weapon under s 97(2) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment. The sentence hearing took place in the Parramatta District Court on 2 October 2014.
Legal Issues
- What was the appropriate total sentence and non-parole period, having regard to the objective seriousness of the offence and the guideline judgment in R v Henry (1999) 46 NSWLR 346?
- Whether the sentence should depart above the guideline range, given the use of a shotgun and other aggravating factors.
- What weight should be given to the offender's subjective circumstances, including youth, substance abuse, genuine remorse, early plea, cooperation with police, and prospects of rehabilitation?
- How should the 25% utilitarian discount for the guilty plea be applied?
Decision
The District Court accepted that the objective seriousness of the offence was very high. The victim had a loaded-appearing shotgun pointed at his face and was placed in extreme fear for his life. The court identified several aggravating features: the victim's vulnerability as a lone service station attendant late at night, the degree of planning involved (disguising his face, concealing the weapon under his clothing), and the use of a firearm. Both Crown and defence relied on the guideline judgment in R v Henry, though the Crown contended that the circumstances here warranted a sentence above the guideline range.
The court balanced those aggravating features against powerful subjective matters in the offender's favour. At 24, he had no prior convictions for violence. He had cooperated fully with police, including directing them to the weapon. He entered a guilty plea at the first available opportunity, entitling him to the full 25% utilitarian discount. He had completed the SMART drug and alcohol rehabilitation program in custody, had the support of his family, and had the prospect of returning to steady employment with a former employer who was prepared to re-engage him. The court accepted that substance abuse had played a significant role in the offending.
The court also had regard to the principles of proportionality, parity, and totality as discussed in Pearce v R (1998) 194 CLR 610, and the maximum penalty of 25 years as a sentencing guidepost. Although the need for general deterrence and the aggravating features required a substantial custodial term, the offender's youth, rehabilitation progress, and first-time violent offending status were significant mitigating factors.
The court imposed a total term of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months, commencing from the date of arrest on 26 July 2013.
Orders Made
- Convicted of robbery armed with a dangerous weapon under s 97(2) of the Crimes Act 1900.
- Non-parole period of 2 years and 3 months, commencing 26 July 2013 and expiring 25 October 2015.
- Balance of term of 1 year and 3 months; total term of 3 years and 6 months, expiring 25 January 2017.
- Parole eligibility date of 25 October 2015 (with release subject to determination by the State Parole Authority, not automatic).
Key Takeaways
- Under s 97(2) of the Crimes Act 1900, armed robbery with a dangerous weapon carries a maximum of 25 years imprisonment, with the guideline judgment in R v Henry providing an important sentencing reference point even where specific facts may support a departure from its range.
- A guilty plea entered at the first available opportunity attracted a full 25% utilitarian discount, confirming that the timing of a plea remains a material factor in quantifying sentence reduction.
- The District Court found that objective seriousness, vulnerability of the victim, and use of a firearm are significant aggravating factors capable of pushing a sentence above the guideline range, even where the amount obtained is small.
- Youth, absence of prior violent offending, active rehabilitation efforts, cooperation with police, and strong community and employer support were treated as powerful counterweights in the sentencing calculus.
- Where an offender's substance abuse is established as a contributing factor to offending, it does not diminish the need for general deterrence but may inform the court's assessment of rehabilitation prospects and moral culpability.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2) (robbery armed with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10 (referred to variously as the Sentencing Act in the judgment)
Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery)
- Pearce v R (1998) 194 CLR 610 (proportionality, parity, and totality principles)
- Hart v R [2013] NSWCCA 13
- R v Sydney [2004] NSWCCA 63