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District Court 17 August 2018

R v Moller

[2018] NSWDC 355

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE ARMED ROBBERY TOY GUN OFFENSIVE WEAPON ROBBERY OF CHEMIST FOR PAINKILLERS

Citation: R v Moller [2018] NSWDC 355
Court: District Court of New South Wales
Date: 17 August 2018
Judge(s): Wilson SC DCJ

Background

The offender, a 53-year-old man, entered a pharmacy at Kanwal, New South Wales, on 17 January 2018. He partially produced a toy gun from a shopping bag and demanded OxyContin and Endone from the pharmacist and a 17-year-old pharmacy assistant. Both staff believed the gun was real. The pharmacist pressed a silent alarm and handed over 657 tablets of opioid medication with a retail value of approximately $588.

The offender had become dependent on OxyContin following a workplace injury in 2011 and told police his treating doctors were reducing his prescriptions. Within hours of the offence, he returned to his motorhome, confessed to his wife, and voluntarily surrendered to police that night. He made full admissions in a recorded interview and handed over the stolen drugs and the toy gun.

The offender pleaded guilty and was committed to the District Court for sentence. He had spent no time in custody prior to sentencing.

  • What was the appropriate sentence for robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900, which carries a maximum of 20 years' imprisonment?
  • What discount should apply for the early guilty plea and for assistance to authorities?
  • Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the head sentence.
  • Whether full-time imprisonment was the only appropriate sentencing option.

Decision

His Honour assessed the objective seriousness of the offence by reference to the wide range of conduct captured by s 97(1). The weapon was a toy gun with its orange safety cap removed and replaced with grey tape, which the offender deliberately modified so staff would not recognise it as a toy. Both victims genuinely believed the gun was real. The court treated the toy gun as an offensive weapon for the purpose of the provision.

Mitigating factors were significant. The offender self-reported within hours, cooperated fully with police, pleaded guilty at the earliest opportunity, and had no prior relevant criminal history. His addiction and the chronic pain underpinning it were accepted as relevant background, though they did not excuse the conduct. Character references and a Wesley Mission report supported his prospects of rehabilitation.

His Honour identified special circumstances, conceded by the Crown, based on the offender's addiction, poor health, need for ongoing rehabilitation, and the fact that this was his first period of full-time custody. On that basis, the court adjusted the ratio between the non-parole period and the head sentence to 50 percent, rather than the standard statutory ratio.

Starting from a four-year term, His Honour applied a 25 percent discount for the early guilty plea and a further 10 percent for assistance to authorities. Both parties agreed that full-time imprisonment was the only appropriate sentence.

Orders Made

  • The offender was convicted of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900.
  • Head sentence of 31 months' imprisonment, commencing 17 August 2018 and expiring 16 March 2021.
  • Non-parole period of 15 months, commencing 17 August 2018 and expiring 16 November 2019.
  • The offender was to be released on parole at the expiry of the non-parole period.

Key Takeaways

  • A toy gun with its safety markings deliberately removed and used to intimidate victims who reasonably believed it was real was treated as an offensive weapon for the purpose of s 97(1) of the Crimes Act 1900.
  • Under the sentencing framework applied, an early guilty plea attracted a 25 percent utilitarian discount, and voluntary and full cooperation with police attracted a further 10 percent reduction.
  • Special circumstances warranting a departure from the standard statutory non-parole ratio can be established where an offender presents with addiction, serious health issues, and genuine rehabilitation needs, even where first-time custody is also raised. However, the District Court noted the Court of Criminal Appeal's caution in R v Collier [2012] NSWCCA 213 that first-time custody alone is insufficient to ground such a finding.
  • Voluntary surrender within hours of an offence, combined with full admissions and return of stolen property, were treated as meaningful indicators of remorse and cooperation, and were reflected in the sentence imposed.
  • Where both the prosecution and defence agreed that the s 5 Crimes (Sentencing Procedure) Act 1999 threshold was crossed, the sentencing court confirmed that full-time imprisonment was the only appropriate disposition.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- R v Collier [2012] NSWCCA 213
- R v Crowe [2011] NSWCCA 251
- R v Henry (1999) 46 NSWLR 346
- R v McNaughton (2006) 66 NSWLR 566
- Turner v R [2011] NSWCCA 189