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District Court 24 April 2024

R v Gallacher

[2024] NSWDC 207

Assault & violenceTheft & propertyDomestic & family violence

Citation: R v Gallacher [2024] NSWDC 207
Court: District Court of New South Wales
Date: 24 April 2024
Judge: Haesler SC DCJ

Background

In the early hours of 28 December 2022, two women carried out an armed robbery at a BP service station in Warrawong. One produced a boxcutter, demanded cash from the till, and threatened that an associate with a gun was waiting outside. The attendants locked themselves in the office and refused to comply. Before leaving, the offender took several packets of cigarettes. Both attendants later described being frightened by the incident.

The offender, who wielded the boxcutter, entered pleas of guilty and appeared for sentence in the District Court. Her co-offender was adjourned to be sentenced separately. The matter had previously been adjourned to allow the offender to demonstrate progress toward rehabilitation under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The sentencing proceedings took into account a substantial body of material, including a psychological report, a Sentence Assessment Report from Community Corrections, character references, and the offender's own evidence. Her background included exposure to domestic violence, a history of substance abuse, and recent victimisation in a separate serious crime.

  • What was the appropriate starting point for sentence, having regard to the maximum penalty of 20 years under s 97 of the Crimes Act 1900 (NSW) and the guideline judgment in R v Henry?
  • What discount applied for the offender's early guilty plea and, separately, for her voluntary surrender to police when her guilt was not yet known to authorities?
  • How should the offender's subjective circumstances, including her history as a victim of domestic violence, opioid addiction, mental health needs, and primary carer status, affect the assessment of moral culpability and the sentencing outcome?
  • Whether a sentence of imprisonment of 1 year and 9 months was appropriately served by way of an Intensive Correction Order (ICO) rather than full-time custody, with community safety as the paramount consideration.

Decision

Objective seriousness and starting point. Haesler SC DCJ characterised the offence as a case of ordinary armed robbery, aggravated by the fact it was committed in company. The court noted that armed robbery of people providing community services, particularly in the early hours of the morning, is treated seriously because of the fear and risk of harm imposed on vulnerable workers. The guideline judgment in R v Henry required serious consideration. A starting sentence of 3 years' imprisonment was arrived at before applying any discounts.

Discounts for plea and surrender. The offender identified herself from a Facebook post of CCTV footage and, after taking legal advice, voluntarily surrendered to police and made full admissions at a time when her guilt was not known to authorities. The court accepted this as an unusual and significant mitigating factor. A 25% utilitarian discount applied for the early guilty plea. A further 15% reduction was applied for the voluntary surrender, consistent with the principles in R v Ellis and Ryan v The Queen and the quantification requirement confirmed in Panetta v R following CMB v Attorney General (NSW). The combined reduction of 40% brought the sentence to 1 year and 9 months.

Subjective circumstances. The court gave careful attention to the offender's history as a long-term victim of domestic violence and coercive control by a former partner, noting that courts must assess a victim's moral culpability in light of the trauma they have suffered. Her opioid addiction (arising from treatment for endometriosis) and history of self-harm were noted, as was her apparent progress in addressing those issues. The court also considered the impact of full-time imprisonment on her 11-year-old daughter, the primary carer relationship, and the research, noted in R v Zerafa, about the consequences of maternal imprisonment for children. The offender was also herself the victim of a recent serious crime and remained a prosecution witness in those proceedings.

ICO versus full-time custody. Applying s 66(1) of the Crimes (Sentencing Procedure) Act, the court assessed whether community safety was better served by an ICO or full-time imprisonment. The court concluded that an ICO was the more appropriate option, pointing to the offender's demonstrated progress during the adjournment period, her engagement with a Mental Health Care Plan, her accommodation and employment prospects, her responsibilities as a primary carer, and the range of supervision and compliance conditions available under an ICO. The court was explicit that an ICO is not a lenient option, requiring good behaviour, supervision, and compliance with conditions.

Orders Made

  • The offender was convicted.
  • The Form 1 matter (relating to the taking of cigarettes) was taken into account.
  • A sentence of imprisonment of 1 year and 9 months was imposed, commencing 24 April 2024.
  • The sentence is to be served by way of an Intensive Correction Order in the community.
  • Two additional conditions were imposed: engagement with a Mental Health Care Plan as directed, and engagement with a drug rehabilitation relapse prevention program as directed.
  • The court noted that breach of the order could result in imprisonment or additional conditions, and that the offender would not return to court for re-sentencing.

Key Takeaways

  • Voluntary surrender to police, made when the offender's guilt was not yet known to authorities, can attract a significant additional sentencing discount beyond the utilitarian discount for a guilty plea. The District Court here applied a combined 40% reduction: 25% for the guilty plea and 15% for the surrender, consistent with the quantification requirement confirmed in Panetta v R.

  • Where a female offender has been a victim of domestic violence and coercive control, the sentencing court must factor the resulting trauma into the assessment of moral culpability, not treat it merely as background context.

  • The imprisonment of mothers who are primary carers raises recognised complexities. While R v Edwards sets the governing principles on hardship to family members in NSW, the District Court noted that the stringency of that principle has been questioned in light of emerging research on the impact of maternal imprisonment on children's development.

  • An ICO represents a structured sentencing alternative to full-time custody, not a soft option. Compliance requirements, including supervision, non-association, drug testing, and program engagement, can be tailored to the individual offender's circumstances and risks.

  • Under the Crimes (Sentencing Procedure) Act, community safety under s 66(1) is the paramount consideration when deciding between an ICO and full-time custody, and that concept is broad enough to encompass outcomes achieved through community-based supervision rather than incarceration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97 (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 23, 23(3), 42A, 66(1)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 187

Cases
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (guideline judgment on armed robbery)
- R v Ellis (1986) 6 NSWLR 603 (discount for surrender when guilt unknown)
- Ryan v The Queen (2001) 206 CLR 267 (flexible application of Ellis discount)
- CMB v Attorney General for the State of NSW [2015] HCA 9; 256 CLR 346 (s 23 quantification requirement)
- Panetta v R [2016] NSWCCA 85 (quantification of Ellis discount)
- R v Edwards (1996) 90 A Crim R 510 (hardship to family members)
- R v Zerafa [2012] NSWSC 978 (research on impact of maternal imprisonment)
- Legge v Regina [2007] NSWCCA 244
- Nasrallah v R [2021] NSWCCA 207
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3