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District Court 20 June 2019

R v McLaughlin

[2019] NSWDC 304

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v McLaughlin [2019] NSWDC 304
Court: District Court of New South Wales
Date: 20 June 2019
Judge: Grant DCJ

Background

The offender, a 32-year-old man with an extensive criminal history across three states, entered a busy Hungry Jacks restaurant in central Sydney late at night armed with a 65-centimetre wooden sword painted to resemble a real blade. He climbed over the service counter, pointed the sword at staff, and demanded money from the registers. Several staff members were placed in fear.

When a member of the public intervened and told the offender he would not be hurting anyone, the offender jumped back to the public side of the counter and attempted to stab the bystander with the sword, making contact with his shoulder. The offender then kicked the bystander's knee. Police arrived shortly after and the offender resisted arrest, struggling with officers and refusing to place his hands behind his back before being handcuffed.

The offender pleaded guilty at the earliest reasonable opportunity in the Local Court to armed robbery (s 97(1) Crimes Act, maximum 20 years), common assault (s 61 Crimes Act, maximum 2 years), and asked the court to take into account a Form 1 matter of resisting a police officer in the execution of duty (maximum 5 years). He had been released from custody on parole just six days before the offences.

  • What sentence was appropriate given the objective seriousness of armed robbery in a public place with a weapon, even one made of wood?
  • What weight should be given to the early guilty plea, including the applicable discount?
  • How did the offender's mental health diagnoses, drug and alcohol dependency, and acute intoxication at the time of the offence bear on sentencing?
  • Did the offender's commission of these offences while on parole, and his lengthy prior record, affect the sentence?
  • Were special circumstances established to justify a non-parole period that departs from the standard ratio?

Decision

Grant DCJ applied the guideline judgment in R v Henry (1999) 46 NSWLR 346 when assessing the objective seriousness of the robbery. His Honour noted that although the sword was made of wood, it had been painted to look metallic, indicating some degree of pre-planning. The offence occurred in a busy public place, the offender climbed into the staff area, pointed the weapon at a staff member, and later attempted to stab a bystander who sought to de-escalate the situation. The court characterised the offending as objectively serious and requiring firm punishment.

The offender received the full 25 per cent discount on sentence for his early guilty plea, entered at the first reasonable opportunity. His mental health history, including substance use disorder, anxiety disorder, and borderline personality disorder, was accepted as providing context to his offending. The psychiatric evidence indicated he was acutely intoxicated with alcohol and diazepam at the time, which likely disinhibited him, although he remained aware of his actions.

The commission of the offences while on parole was treated as an aggravating feature. The offender's lengthy criminal histories in New South Wales, Victoria, and Western Australia disentitled him to leniency, and his prospects of rehabilitation were assessed as bleak given his persistent drug addiction and pattern of recidivism.

The court declined to find special circumstances (which would have allowed the court to set a non-parole period lower than the standard three-quarters ratio), citing the offender's extensive prior history. An aggregate sentence of five years imprisonment was imposed, with a non-parole period of three years and nine months. The dominant sentencing considerations were general deterrence, specific deterrence, and protection of the community.

Orders Made

  • Aggregate sentence of five years imprisonment imposed, commencing 13 January 2019 and expiring 12 January 2024.
  • Non-parole period of three years and nine months, commencing 13 January 2019, with the earliest parole eligibility date of 12 October 2022.
  • The offender was referred to the Drug Court.
  • A copy of the sentencing remarks and the psychiatric report from Dr Richard Furst (dated 14 June 2019) were ordered to be provided to the Drug Court.

Key Takeaways

  • A wooden weapon painted to simulate a real blade can still constitute an offensive weapon for the purposes of armed robbery under s 97(1) of the Crimes Act, and evidence of deliberate disguise may indicate pre-planning relevant to objective seriousness.
  • The full 25 per cent sentencing discount applied where the guilty plea was entered at the earliest reasonable opportunity in the Local Court proceedings.
  • Under the sentencing framework, acute intoxication that reduces inhibition, while not excusing offending, may be taken into account as relevant context when supported by psychiatric evidence.
  • Committing offences while on parole remains a statutory aggravating factor under the Crime (Sentencing Procedure) Act 1999, capable of significantly affecting the overall sentencing assessment.
  • Special circumstances were not established where the offender had a lengthy criminal history, notwithstanding diagnosed mental health and addiction issues, reflecting that those factors do not automatically enliven a favourable departure from the standard non-parole ratio.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 97(1)
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(3)(k), 22

Cases:
- R v Henry (1999) 46 NSWLR 346