R v Mellis [2020] NSWDC 749

District Court New South Wales

Medium Neutral Citation: R v Mellis [2020] NSWDC 749 Hearing dates: 21 August 2020; 4 September 2020; 18 September 2020; 13 November 2020 Decision date: 13 November 2020 Jurisdiction: Criminal Before: M Adams QC ADCJ Decision: Bail Granted – adjourned for purposes of rehabilitation Catchwords: BAIL – Rehabilitation Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 R v Henry (1999) 46 NSWLR 346 Category: Procedural and other rulings Parties: Office of the Director of Public Prosecutions (Crown) David Mark Mellis (Offender) Representation: Solicitors: K McKenzie (ODPP) M Betts (Offender) File Number(s): 2019/00213535 Publication restriction: NONE

Judgment

INTRODUCTION 1. David Mellis is before the Court to be sentenced for one offence committed on 8 July 2019 of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment. The offender was arrested on 9 July 2019 and was in custody until 30 October 2020, referable solely to this offence from 25 September 2019, when he was granted bail. On 27 February 2020 the offender was committed for sentence in the Local Court. He adhered to his plea in this Court and is convicted of the offence.

Facts 1. The following account is taken from a statement of facts that was almost entirely agreed and tendered in the proceedings. As I explain, it is unnecessary to resolve the factual disputes, since they are not significant. On 8 July 2019 the victim was working as a retail assistant at a fashion store in Oxford Street, Paddington. At about 4pm, the offender was outside the store with a female, Kim Apter. The victim was finishing up with a customer when she saw the offender speaking to Apter outside the store. The offender began to yell at the victim who recognised him from a previous interaction when he had asked for a cigarette. Apter walked away. The customer left the store and the offender entered shortly afterwards. The victim approached the offender in order to assist him with any purchase. No one else was inside the store at the time. 2. After a short time, the offender picked up a belt and brought it to the desk. The victim started to put it in a bag when the offender said, "Now put all the money in it". The victim looked up to see the offender with what appeared to be a pistol in his hand. She began to shake and hyperventilate as, unsurprisingly, she believed him to be holding a real gun. She complied with the offender's demand and open the till. The offender lent over, still holding the gun, took the cash from the till and put it into the bag. Someone walked past the store. The offender saw the victim looking at her and allegedly said, "Don't scream, if you scream I will shoot you". (The offender denies making this threat. Since, however, he was holding a gun with plainly an implicit threat to use it were the victim to refuse to comply with his demands or attempt to prevent the robbery, it does not matter whether this was made explicit. The implicit threat is no less serious than the explicit one. I am prepared to accept it as reasonably possible that the offender does not recall voicing this threat. I am left in some doubt about the matter, although I am minded to think that the victim's account is probably true. This issue not, however, need to be determined since, even if no threat was voiced, the offender's culpability is not reduced.) 3. The offender said, "I am not going to take anything that is yours. Okay, now go upstairs". The victim thought that she was going to be physically injured. She took her mobile and laptop and asked if she could go into the back room instead. The offender said, "Yes, all the way in the back". The victim then went into the back room and was told by the offender, "Look at the back wall and don't look at me or I will shoot you". (The offender denies saying the words in italics. Again, even if he had not said them, the threat was implicit and his culpability is not reduced even if his account were accepted. As with the other disputed phrase, I would accept that the victim's account is probably true but do not think it necessary to determine the issue.) The victim faced away for a short period of time and then, turning around, she saw the offender grab something and heard him touching items on the wall next to the desk. The offender yelled, "Don't turn around". 4. The offender then left the store. The victim attempted to call the stores operation manager but was unsuccessful and called 000. She feared for her safety and remained on the phone in the back room until she was told police were nearby. 5. In the morning of the following day, the offender was seen walking through Darlinghurst with Apter. They were both arrested and cautioned. The two watches were located together with $400 cash. The offender participated in an interview with police, denying the commission of any offences, asserting he had purchased the watches from someone else and that he was not the person depicted in a CCTV still shown to him. He did, however, admit to being in Oxford Street, Paddington at the time of the offence. A ballistics expert could not determine from the CCTV images whether the weapon was a genuine or an imitation firearm. It follows from this and the agreed facts that I cannot be satisfied to the requisite degree that the firearm was genuine and must proceed upon the basis that it was an imitation weapon. 6. The offender had stolen $1,418.85, a leather belt ($59.95) and two watches ($179.95 each).