R v King [2020] NSWDC 931

District Court New South Wales

Medium Neutral Citation: R v King [2020] NSWDC 931 Hearing dates: 3/6/20 Date of orders: 3/6/20 Decision date: 03 June 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to a term of imprisonment of 4 years 3 months with a NPP of 2 years 8 months (3/12/19-2/8/22). I find special circumstances.

I direct that a copy of the psychological report of Derek Gilligan dated 26 May 2020 be provided to Corrective Services and Justice Health. Catchwords: Crime – Sentence – Robbery whilst armed with an offensive weapon Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Henry and Ors (1999) 46 NSWLR 346 Category: Sentence Parties: NSW DPP – Crown Kyle Mitchell - Offender Representation: Ms Palmer for Crown Ms Stroinovsky for Offender File Number(s): 2019/324022

sentence 1. The offender Mr Mitchell King, also known as Mr Kyle Mitchell, is to be sentenced for an offence of robbery while armed with an offensive weapon, that being an offence under s 97(1) of the Crimes Act 1900, which was committed on 16 October 2019. The maximum penalty for that offence is 20 years imprisonment. 2. Mr King pleaded guilty to that offence at the earliest opportunity and he is entitled to a discount of 25% on account of the utilitarian value of that plea.

FACTS 1. The facts are set out in an agreed statement of facts, which I summarise as follows. The robbery took place on the morning of 16 October 2019 at the Ice Box liquor store in West Wallsend. The victim, a Ms Albrew, who was the manager of the store, was working alone that morning. Shortly before 11am, while the victim was standing at the counter, she looked up to see the offender standing in front of her, wearing a black long-sleeve shirt and with a surgical mask covering his nose and mouth. He had a black backpack on his back and he was holding a medium-sized diving knife. The offender placed the blade of the knife on the counter in front of the victim and said, "Put all the money in the bag." The victim replied with a question, "What?" The offender repeated, "Put all the money in the bag." Sensibly, the victim walked to the register and opened it. The offender then used the knife he was holding to flick a brown paper bag which was on the counter bench towards the victim and said, "Use this. Don't press any buttons." The victim then placed the contents of the cash register, being almost $270, into a paper bag. As she did this, the offender returned the knife to a sheath he was carrying and moved closer to the victim, who handed him the brown paper bag containing the money. The offender then left the shop. The entire incident, which was captured on CCTV, lasted about 45 seconds. 2. The victim then activated a duress alarm and called triple 0 and locked the doors. When police arrived, she replayed the CCTV footage from the store to them. Shortly afterwards, police who were patrolling nearby stopped the offender while he was driving his vehicle. When questioned about the robbery, he initially denied any involvement, stating that he had just come from a nearby supermarket and was going for a drive. Police indicated that they intended to search his vehicle, upon which the offender told them that he had a diving knife in the car, as he sometimes went swimming with it. A search of the car located a large knife, a brown paper bag, cash in the sum of $267.65, a black backpack, a black long-sleeved shirt matching that shown in the CCTV footage, and a surgical mask. The offender was placed under arrest for the robbery. 3. Later that day he participated in an interview in which he told the police, among other things, that he had driven his vehicle to and had parked near the liquor store, that he had walked around the block and then "just decided to go and do it", that is, do the robbery and that he then went in and demanded the money, saying, "Just put the money in the bag. Don't trip the silent alarm." He also told police that as the victim was emptying the cash register he moved a bag, that is a paper bag, in her direction and then stepped back because he did not want to hurt her. Also, that he had had the knife and the bag with him for legitimate purposes because it was a diving knife that he used when he went recreational diving. He told police that he had come out of custody about two years ago and had been struggling to make his way in the world since then and feels that he does not fit in as he went into custody at age 19 and still cannot even cook. Finally, he told police he had wanted to kill himself but could not and ended up in West Wallsend. He said to police that he felt really bad with regards to the victim because, "This is a normal person going about their life and, because I'm just a fucking piece of shit, I can do this to people."