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District Court 1 October 2015

R v Weismantel (No 3)

[2015] NSWDC 227

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE AT LEAST TWO CO OFFENDERS 87 YEAR OLD VICTIM PLANNING, THOUGH NOT BY OFFENDER

Citation: R v Weismantel (No 3) [2015] NSWDC 227
Court: District Court of New South Wales
Date: 1 October 2015
Judge(s): Neilson DCJ

Background

The offender, an Aboriginal Australian man with a significant criminal history, appeared for sentencing on five offences arising from events on 23 September 2013 and 31 December 2013. The September offences involved four co-offenders who, in a single evening, took a vehicle from an 87-year-old man and then carried out two armed robberies in company. A fifth offence, an attempted robbery causing grievous bodily harm at a restaurant on New Year's Eve 2013, had proceeded to a judge-alone trial before the same judge, resulting in a guilty verdict.

The September offences were interconnected. The offender and his co-offenders took the elderly victim's car from his garage after following him home, then used that vehicle to commit a robbery at a cinema in Roseville and, later the same evening, a robbery at a hotel in Revesby. A sawn-off shotgun and an axe were used across the robberies. DNA evidence linked the offender to both robbery scenes.

The offender pleaded guilty to the four September counts on a fresh indictment. His personal circumstances included a disturbed childhood, a history of alcohol abuse from age 12, drug use from age 14, psychotic symptoms, and prior convictions for armed robbery both as a juvenile and as an adult. He was on parole at the time of these offences.

  • What was the objective seriousness of each offence, including the role of planning and the offender's level of participation relative to co-offenders?
  • How should parity principles apply, given that co-offender Roach had already been sentenced for these offences?
  • What weight should be given to the offender's personal circumstances, including his Aboriginality, psychiatric history, and background of disadvantage?
  • What discount applied for the guilty pleas and for the s 98 offence following the judge-alone verdict?
  • Whether special circumstances existed justifying a longer-than-standard parole period.
  • How should totality be applied to avoid a crushing sentence across five serious offences?
  • What was the appropriate commencement date for the sentence, given time already spent in custody on an earlier unrelated sentence?

Decision

On the objective seriousness of the offences, the court found a degree of planning across the September crimes, but accepted that the organising mind behind the robberies was most likely co-offender Daniel Roach rather than the offender himself. The offender was characterised as an "acquaintance or follower" rather than the architect of the scheme. Nonetheless, the use of a sawn-off shotgun, the presence of multiple armed co-offenders, the vulnerability of the 87-year-old car theft victim, and the terror inflicted on cinema and hotel staff and patrons all elevated the seriousness of the conduct.

On parity with Roach, the court was mindful of the principle that co-offenders sentenced for the same crimes should not receive sentences so disparate as to give rise to justifiable grievance, without good reason. The offender's own more extensive prior record, including earlier adult convictions for armed robbery, was a factor distinguishing his position from Roach's.

The court gave considerable weight to the offender's personal circumstances. His Aboriginality, background of profound disadvantage, psychiatric history involving ongoing psychotic symptoms, and long-standing substance abuse were treated as relevant to moral culpability and to the prospects of rehabilitation. A consultant forensic psychiatrist had recommended intensive supervision upon release, including placement in a community-based drug and alcohol rehabilitation facility. The court found special circumstances, which justified departing from the standard ratio of non-parole period to total sentence under the Crimes (Sentencing Procedure) Act 1999, to allow for a longer period of supervised parole and structured support.

On totality, the court acknowledged that the cumulative effect of sentences for five serious offences could become crushing if not moderated. The sentence was structured to reflect the overall criminality without destroying any realistic prospect of rehabilitation. A 15 per cent discount applied to the s 98 offence following the judge-alone trial. The court exercised its discretion to commence the head sentence on 1 March 2014, attributing the majority of the period in custody from 31 December 2013 to 9 December 2014 to the current sentencing exercise, while acknowledging that part of that period properly related to the offender's earlier sentence.

Orders Made

  • The offender was convicted of all five offences.
  • A single aggregate sentence was imposed of 8 years and 6 months imprisonment.
  • Non-parole period: 4 years and 6 months, commencing 1 March 2014, expiring 31 August 2018.
  • Balance of sentence: 4 years, commencing 31 August 2018, expiring 31 August 2022.
  • Special circumstances were found.
  • The offender became eligible for consideration for parole release at the expiration of the non-parole period.

Key Takeaways

  • A sentencing court may find special circumstances under the Crimes (Sentencing Procedure) Act 1999 where an offender presents a complex psychiatric and substance abuse history requiring an extended period of supervised parole to support rehabilitation.
  • Where a co-offender has already been sentenced, parity principles require the court to examine whether any disparity between sentences is explicable by legitimate differences, such as a more extensive prior record of comparable offending.
  • The District Court treated the offender's role as a follower rather than the planner of the robberies as a mitigating factor going to moral culpability, even where the offender physically carried and deployed the sawn-off shotgun.
  • Under the guideline judgment in R v Henry (1999) 46 NSWLR 346, a sawn-off shotgun was found to fall outside the standard categories of weapons considered in that guideline, a factor relevant to assessing the objective gravity of the armed robbery counts.
  • Sentencing for multiple serious offences requires attention to totality: the court must structure concurrent and cumulative terms so that the aggregate sentence does not become so severe as to extinguish any realistic prospect of the offender's eventual rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 98 (robbery with wounding/grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39
- R v Barker [2006] NSWCCA 20
- R v Clinch (1994) 72 A Crim R 301
- R v Henry (1999) 46 NSWLR 346
- R v MAK [2006] NSWCCA 381
- R v Thomson (2000) 49 NSWLR 383
- R v Weismantel (No 1) [2015] NSWDC 122
- R v Weismantel (No 3) [2015] NSWDC 213
- Veen v The Queen No 2 [1988] HCA 14