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District Court 16 November 2023

R v LEROY

[2023] NSWDC 457

Theft & propertyFirearms & weapons
CRIME SENTENCING ROBBERY WHILST ARMED WITH GEL BLASTER SERVICE STATION PLEA OF GUILTY

Citation: R v Leroy [2023] NSWDC 457
Court: District Court of New South Wales
Date: 16 November 2023
Judge: Lerve DCJ

Background

The offender, a 28-year-old man, pleaded guilty to armed robbery contrary to s 97(1) of the Crimes Act 1900. On the night of 31 August 2022, he entered a Shell service station in Junee wearing dark clothing, a stocking mask, and gloves, carrying a black gel blaster pistol that closely resembled a real firearm. He demanded money, grabbed one victim by the scruff of his jumper, held the weapon to the back of his head, and pointed it at a second victim before fleeing with $647.15 in cash and a cash register valued at $185.

The offender was identified through CCTV footage, DNA evidence found on a SIM card holder recovered with the weapon, and information provided by a co-offender, Bradley Smith, who was charged as an accessory after the fact. Smith directed police to the hidden weapon and identified the offender as the person who had been in his vehicle that night.

The offender was also dealt with on a Form 1 matter: between 16 and 17 August 2022, he had dishonestly used a debit card belonging to his biological father and his father's partner, withdrawing $1,153.50 from their joint account without authorisation. The offender was on parole for an earlier offence at the time of the robbery.

  • What was the appropriate sentence for armed robbery under s 97(1) of the Crimes Act 1900, having regard to the Henry Guideline Judgment?
  • Whether the replica nature of the gel blaster was a factor that could be taken into account in sentencing, given the constraints imposed by R v Di Simoni?
  • How should the offender's significant mental health and substance abuse history, his prior criminal record, and the breach of parole be weighed in determining the sentence?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio?

Decision

His Honour held that the court was effectively prevented from treating the gel blaster as a dangerous weapon capable of killing or inflicting serious injury, because the charge was under s 97(1) rather than the more serious s 97(2). The principle from R v Di Simoni prohibits a sentencing court from taking into account facts that would have supported a more serious charge. His Honour acknowledged some artificiality in this exercise, noting that both victims had genuinely believed the weapon to be a real firearm. He was also unable to make any finding as to whether the gel blaster was capable of killing or inflicting serious injury, despite submissions from the defence that it was not.

Several factors aggravated the offending. The offender's prior criminal record was accepted as an aggravating circumstance under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. The offence was committed whilst on parole, actual physical force was used against one victim, the weapon was pointed at both victims, and there was a limited degree of planning. The court accepted that the victims would have experienced genuine fear.

In mitigation, the court had regard to the offender's significant and longstanding mental health and substance abuse issues. Applying the principles from Bugmy v The Queen, his Honour accepted that these conditions, along with an adverse childhood, remained relevant to the assessment of moral culpability, even though the offender was not a young man in the context of the Henry Guideline. The plea of guilty attracted a full 25% utilitarian discount.

His Honour set a starting point of 6 years and 6 months, which after the 25% discount produced a total sentence of 4 years and 10 months. Special circumstances were found, warranting a reduction in the proportionate non-parole period, principally because of the partial accumulation of the new sentence onto the existing parole period and the offender's need for extended supervision to access ongoing treatment and counselling.

Orders Made

  • The offender was convicted of armed robbery contrary to s 97(1) of the Crimes Act 1900.
  • Taking into account the Form 1 matter, the offender was sentenced to a non-parole period of 2 years and 10 months, commencing 9 March 2023 and expiring 8 January 2026.
  • A balance of term of 2 years on parole commences 9 January 2026 and expires 8 January 2028.
  • The court recommended release to parole at the expiration of the non-parole period.
  • Release to parole was recommended to be conditioned on supervision by the Department of Community Corrections and compliance with all reasonable directions relating to treatment and counselling for substance abuse and mental health issues.
  • The non-parole period represents approximately 58% of the head sentence, reflecting a finding of special circumstances.
  • Total effective sentence (including the balance of the existing parole period) runs from 9 September 2022 to 8 January 2028, being 5 years and 4 months, with 3 years and 4 months in actual custody (approximately 63% of the total effective sentence).
  • A copy of Dr Ellis's report was directed to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • The Di Simoni principle operates to prevent a sentencing court from treating the use of a replica or gel blaster weapon as a circumstance of aggravation where the charge is under s 97(1) rather than s 97(2), even where victims could not distinguish the replica from a real firearm.
  • Where a sentencing court cannot make a positive finding that a replica weapon was capable of killing or inflicting serious injury, it proceeds on the basis that such a finding is unavailable, regardless of how realistic the weapon appeared.
  • Under Bugmy v The Queen, the ongoing relevance of mental health conditions and a deprived background to moral culpability does not automatically diminish with age, though their weight in mitigation must be assessed in context.
  • Special circumstances justifying a departure from the standard non-parole period ratio can arise from the combination of partial accumulation onto an existing sentence and a demonstrated need for extended supervised treatment and rehabilitation.
  • Committing an indictable offence whilst on parole remains a significant aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, and counsel for an offender in that position should expect to concede the point.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(d), s 37

Cases
- R v Henry & Ors (1999) 46 NSWLR 346 (the "Henry Guideline")
- R v Di Simoni (1981) 147 CLR 383
- Bugmy v The Queen [2013] HCA 37
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 156 (Form 1 Guideline Judgment)
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Moiler v R [2021] NSWCCA 73
- R v Millwood [2012] NSWCCA 2