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District Court 19 May 2025

R v Tanswell; R v Leilua

[2025] NSWDC 178

Assault & violenceFraud & dishonestyTheft & property
CRIMINAL SENTENCE ROBBERY IN COMPANY EXPERT WITNESSES CONSEQUENCES PARITY

Citation: R v Tanswell; R v Leilua [2025] NSWDC 178
Court: District Court of NSW
Date: 19 May 2025
Judge: Colefax SC DCJ

Background

Two co-offenders were sentenced for five offences of robbery in company, committed across a three-week period in May and June 2023. The offending arose from a scheme in which both men used fake profiles on the Grindr dating application to arrange meetings with male victims at their homes, under the pretence of a social or intimate encounter.

Once inside each victim's home, the offenders used threats and, in some incidents, actual violence to steal mobile phones, cash, and banking credentials. They then accessed victims' bank accounts electronically to make further withdrawals. Five separate victims were targeted, ranging in age from 27 to 66 years.

In addition to the five principal robbery charges, each offender also had several Form 1 matters for dishonestly obtaining a financial advantage by deception (relating to the fraudulent bank account access), which the court took into account in sentencing. One offender also faced a charge of possessing ammunition without authorisation, dealt with by certificate.

  • What were the appropriate sentences for five offences of robbery in company, having regard to the guideline judgment in R v Henry (1999)?
  • How should parity between co-offenders be applied where the two offenders had different criminal histories and different personal circumstances?
  • Whether special circumstances existed, justifying an adjustment to the statutory ratio between non-parole period and head sentence, for either offender.
  • What consequences follow when expert witnesses fail to comply with the Expert Witness Code of Conduct under Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)?

Decision

His Honour sentenced each offender for five counts of robbery in company, with indicative sentences set for each incident before applying a guilty plea discount of 25 per cent. The aggregate head sentences differed slightly to reflect the offenders' different personal circumstances, including criminal history and this being the first period of custody for one of them.

On parity, the court recognised that while both men played roles in each offence, their personal backgrounds and histories warranted a modest difference in the total sentences imposed. Tanswell received an aggregate sentence of 6 years 8 months, with a non-parole period of 5 years commencing 30 September 2023. Leilua received an aggregate sentence of 6 years 2 months, with a non-parole period of 4 years commencing 15 June 2023.

The court declined to make a finding of special circumstances for Tanswell. His Honour noted that the Court of Criminal Appeal has cautioned against this finding being made too frequently, that Tanswell had prior experience in custody, and that the statutory ratio would be adequate for rehabilitation. For Leilua, special circumstances were found, on the basis that this was his first time in custody and that an extended supervision period would enhance his rehabilitation prospects. This produced a longer balance of sentence (2 years 2 months) relative to his non-parole period.

A notable feature of the judgment was the court's treatment of two expert witnesses, Mr Albassit and Ms Hawil, whose psychological reports had been tendered in the proceedings. His Honour found that those reports did not comply with the Expert Witness Code of Conduct under Schedule 7 of the UCPR. As a consequence, the court directed that the reports not accompany the warrants of commitment, and strongly recommended to Community Corrections that neither expert be selected to prepare supervision plans for the offenders. The court's reasoning on this point drew on established authority regarding the obligations of expert witnesses and the consequences of non-compliance.

Orders Made

  • Tanswell sentenced to an aggregate term of imprisonment of 6 years 8 months; non-parole period of 5 years from 30 September 2023 (expiring 29 September 2028); balance of 1 year 8 months expiring 29 May 2030.
  • Leilua sentenced to an aggregate term of imprisonment of 6 years 2 months; special circumstances found; non-parole period of 4 years from 15 June 2023 (expiring 14 June 2027); balance of 2 years 2 months expiring 14 August 2029.
  • In relation to the section 166 certificate offence (possessing ammunition), a conviction was entered against Leilua but no further penalty was imposed pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The reports of Mr Albassit and Ms Hawil were directed not to accompany the warrants.
  • A strong recommendation was made to Community Corrections that Mr Albassit and Ms Hawil not be selected as external psychologists for the offenders' supervision plans.
  • Non-publication orders were made in respect of the names and identifying details of all five victims.

Key Takeaways

  • The District Court applied the R v Henry guideline judgment in structuring indicative sentences for each incident of robbery in company, before arriving at an aggregate sentence through the totality principle.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) requires genuine justification; the Court of Criminal Appeal has indicated that first-instance courts make this finding too frequently, and a prior custodial history will weigh against it.
  • Where an offender's first period of custody is a relevant factor, combined with rehabilitative need, special circumstances may be established to reduce the proportion of the sentence served before parole eligibility.
  • Non-compliance with the Expert Witness Code of Conduct (Schedule 7, UCPR) carries real procedural consequences: a non-compliant report may be excluded from accompanying warrant documents, and the court may make formal recommendations against the expert's further engagement in related proceedings.
  • Parity between co-offenders does not require identical sentences; differences in criminal history and personal circumstances can justify a modest divergence in aggregate terms, provided the sentences are not unjustifiably disparate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 192E(1)(b)
- Firearms Act 1996 (NSW), s 65(3)
- Court Suppression and Non-Publication Act 2010 (NSW), s 8(a), (d) and (e)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Uniform Civil Procedure Rules 2005 (NSW), Schedule 7 (Expert Witness Code of Conduct)

Cases:
- R v Henry (1999) 46 NSWLR 346
- Vakauta v Kelly (1989) 167 CLR 568
- R v Fitzroy (a pseudonym) [2020] NSWDC 218
- R v Kaplantzi [2023] NSWDC 42
- R v Bojcevski; Birkic; Drenovac [2024] NSWDC 299
- R v Al-Mansoori [2024] NSWDC 466
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v GWM [2012] NSWCCA 240
- Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
- Roads and Traffic Authority (NSW) v Barrie Toepfer Earthmoving Land Management Pty Ltd (No 3) [2012] NSWSC 937
- Bechara v DPP, unreported, 14 May 2025