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District Court 19 January 2016

R v LEOTA, Damien Jerome

[2016] NSWDC 384

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL ARMED ROBBERY WITH AN OFFENSIVE WEAPON IN COMPANY CCTV FOOTAGE DNA EVIDENCE

Citation: R v LEOTA, Damien Jerome [2016] NSWDC 384
Court: District Court of New South Wales
Date: 19 January 2016
Judge: Judge S Norrish QC

Background

The offender appeared for sentence on three counts of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 20 years imprisonment. Two offences occurred on consecutive days in December 2013: an armed robbery of a convenience store at Belmore, and an armed robbery in company of a taxi driver at Wiley Park. The third offence was committed approximately 11 months later at a convenience store in Lakemba.

In each offence the offender used a knife. The taxi robbery, committed with a co-offender named Rio who had already been separately sentenced by Judge McClintock, involved a sustained physical assault on the driver, who was hospitalised with injuries. The store robberies involved threatening shop attendants at knifepoint. All three incidents were captured on CCTV, and DNA evidence linked the offender to the first and third offences.

The offender had a substantial criminal history and a background involving alcohol and illicit substance abuse as well as mental health issues. Significantly, the offences were committed while the offender was on parole. He was arrested in November 2014 on an unrelated matter and had remained in custody since 15 November 2014.

  • What sentences were appropriate for three offences of armed robbery, taking into account objective seriousness, the offender's personal circumstances, and the requirement of totality?
  • What discount applied for guilty pleas entered at the first reasonable opportunity?
  • How should the offender's mental health history, substance abuse, and substantial criminal history bear on the sentence, particularly in relation to specific deterrence?
  • How should parity principles constrain sentencing, given that the co-offender in the taxi robbery had already been sentenced by another judge?
  • What weight should be given to the offender's claim of having no memory of the offences?

Decision

Judge Norrish accepted that the offender pleaded guilty at the first reasonable opportunity, entering his pleas at the Local Court and maintaining them on committal for sentence. Consistent with the guideline judgment in R v Thomson; R v Houlton (2000), a 25% discount was applied to each sentence to reflect the utilitarian value of the pleas.

The court examined the offender's claim of having no memory of the relevant events, as set out in a handwritten statement. His Honour rejected any suggestion that the offences were unplanned or committed in an unthinking state, noting that each robbery involved deliberate and purposeful conduct, including planning, disguise, use of weapons, and steps taken to dispose of evidence. The CCTV footage and DNA evidence firmly established the offender's identity.

The offender's mental health history and substance abuse were considered in the context of general and specific deterrence. Consistent with the approach in R v Engert (1995), mental condition was treated as relevant to specific deterrence. However, the offender's substantial criminal history and the fact that he committed the offences while on parole remained significant aggravating features. The vulnerability of the victims, including a lone female shop attendant and a working taxi driver, also weighed in the objective gravity of the offences.

On parity, the court constrained the sentence for the taxi robbery to reflect the sentence already imposed on the co-offender Rio by Judge McClintock, applying the principles in R v Postiglione (1997) and Mill v The Queen (1988).

Orders Made

  • Offence 1 (10 December 2013, Belmore store robbery): convicted; non-parole period of 2 years commencing 15 December 2014, expiring 14 December 2016; balance of term of 2 years, expiring 14 December 2018; total sentence 4 years.
  • Offence 2 (11 December 2013, taxi robbery in company): convicted; non-parole period of 2 years commencing 15 December 2014, expiring 14 December 2016; balance of term of 1 year; total sentence 3 years; to be served concurrently with Offence 1.
  • Offence 3 (November 2014, Lakemba store robbery): convicted; non-parole period of 1 year and 6 months commencing 15 December 2016, expiring 14 June 2018; balance of term of 3 years, expiring 14 June 2021.
  • Effective total sentence: 6 years and 6 months imprisonment.
  • Effective non-parole period: 3 years and 6 months, commencing 15 December 2014; eligible for release to parole from June 2018, subject to the Parole Authority.

Key Takeaways

  • A guilty plea entered at the first reasonable opportunity attracted a 25% discount on the otherwise appropriate sentence, consistent with the Thomson and Houlton guideline.
  • Under the principles in R v Engert, a sentencing court may treat an offender's mental health condition as relevant to specific deterrence, without it necessarily mitigating overall sentence in the presence of a serious criminal history.
  • Committing offences while on parole was treated as a significant aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Parity principles required the District Court to have regard to the sentence already imposed on the co-offender in the taxi robbery, constraining what would otherwise have been the appropriate sentence for that count.
  • Deliberate, methodical conduct during each offence, including the use of disguises, weapons, and post-offence steps to destroy evidence, undermined the offender's claim of no memory and bore on the objective seriousness of each count.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Callaghan v R [2006] NSWCCA 58
- DPP v De La Rosa [2010] NSWCCA 194
- Markarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Osenkowski (1982) 30 SASR 212
- Pearce v The Queen (1998) 194 CLR 610
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Jimmy [2010] NSWCCA 60
- R v Lattouf [1999] NSWSC 1382
- R v Postiglione [1997] HCA 26
- R v Thomson; R v Houlton (2000) 49 NSWLR 381