Regina v Lesi [2005] NSWCCA 63

New South Wales Court of Criminal Appeal

CITATION: Regina v Lesi [2005] NSWCCA 63

HEARING DATE(S): 15 February 2005

JUDGMENT DATE: 1 March 2005

JUDGMENT OF: Grove J at 1; Bell J at 40; Buddin J at 41

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - PARITY CO-OFFENDER INVOLVED IN ONE ONLY OF TWO MAJOR CRIMINAL ACTIONS BUT FOR ADDITIONAL OFFENCE RELATIVE TO IT - GUIDELINE IN R v HENRY APPROPRIATELY USED FOR OFFENCE OF ROBBERY IN COMPANY - SEPARATE CHARGE CONCERNING PARTICULAR VICTIM - OFFENDER NOT DOUBLY SENTENCED - TEST OF EXCEPTIONAL CIRCUMSTANCES NOT APPROPRIATE FOR DEPARTURE FROM GUIDELINE - IN OVERALL CIRCUMSTANCES LESSER SENTENCE NOT WARRANTED

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: s6(3) Criminal Appeal Act 1912

R v Henry 1999 46 NSWLR 346 R v Murchie 1999 108 A Crim R 482 CASES CITED: Pearce v The Queen 1998 194 CLR 610 R v Smith 2004 144 A Crim R 577 R v Stanley [2003] NSWCCA 233

PARTIES: Regina v Billy Lesi

FILE NUMBER(S): CCA 2004/2561

W. Dawe QC ( (Crown) COUNSEL: P. Boulten SC (Applicant)

S. Kavanagh (DPP) SOLICITORS: Galloways (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0316; 03/21/0138

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2561

GROVE J BELL J BUDDIN J

1 March 2005 REGINA v BILLY LESI Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed in the District Court by Sorby DCJ. 2 The applicant had pleaded guilty to a number of charges when presented in the Local Court and he was committed for sentence. Due to technical irregularities some matters were the subject of re-presentment on indictment but the applicant had effectively admitted his guilt at the earliest opportunity. 3 The first set of charges dealt with on committal for sentence arose out of his participation in a robbery at the Victoria Hotel, Annandale shortly after 1 am on 24 February 2002. The substantive charges were robbery in company (the victim being Mr Colin Hindmarch) and assault (the victim being Mr Alan McIlveen). Taken into account on a Form 1 were four further charges namely robbery in company of Mr McIlveen, assault with intent to rob Leslie Brock; assault with intent to rob Kate Brock, and assault of Leslie Brock. 4 The applicant and an unidentified co-offender entered the hotel, which was closed, but there were then present staff members and some friends of theirs. The offenders claimed to be armed with a gun but it does not appear that a gun was produced. Nevertheless, under the constraints of such representation, Mr Hindmarch was forced to hand over cash holdings of the hotel amounting to over $40,000. 5 The assault of Mr McIlveen followed his compliance with a direction to empty his pockets, during which he produced a set of car keys. The applicant repeatedly asked him where the car was and Mr McIlveen responded on each occasion that it was at Randwick. These responses were met by the applicant punching him about the head and in the face with a closed fist. 6 On the Form 1 matters, the charge of robbery in company of Mr McIlveen involved taking his watch and about $100 in cash. The assaults with intent to rob each of Leslie and Kate Brock involved corporal violence and demands that the victims give up everything they had. It would appear that before taking anything, the offenders became distracted by the larger loot available from the cash holdings of the hotel, which included poker machine receipts and the contents of an automatic teller machine. 7 The assault on Leslie Brock scheduled in the Form 1 occurred as the applicant punched and slapped him and then kicked him in the stomach, extracting a response that he would say nothing to police. Mr Brock was a barman employed at the hotel. 8 The second set of charges arose out of events shortly after 10 pm on 3 June 2002 at the Smithfield Tavern, Smithfield. The first count charged armed robbery of Nadene Heaphy. She was an assistant manager at the tavern. The weapon involved was a replica pistol and the amount taken was just over $4,250. The charge alleging that the applicant allowed himself to be carried in a stolen car related to his escape from the scene. Pursuant to the Form 1 procedure a further charge of armed robbery at the same place and on the same date was asked by the applicant to be taken into account. The victim in that case was Mr Sommer Lewis and the amount involved $129.70. Mr Lewis was employed at the tavern as a gaming attendant and he performed bar service and cash payment of poker machine winnings to patrons. 9 The applicant, one Ricardo Fisher and an unidentified third male entered the tavern. The applicant was armed with the replica firearm and Fisher had a 30 cm bladed knife. 10 Unsurprisingly, the events thereafter became somewhat confused as one of the customers had been able to make an exit from the tavern and waved down a passing police officer. This was Senior Constable Abernathy whose ordinary duty was as a police dog handler but, commendably, he entered the tavern in response to the request for help. The applicant and Fisher had removed a quantity of cash but the appearance of Senior Constable Abernathy caused Fisher to flee to a car park. By this time the third male also armed with a knife was waiting. The stolen motor vehicle in which the applicant rode was there. 11 While the constable was seeking to deal with Fisher and the third offender, the applicant, armed with the pistol, had forced two employees into a rear office and obtained money from a safe. He then proceeded to the area where they had no doubt left the car for the purpose of enabling escape. The struggle between police officer and offenders was not static and at one stage the unidentified male threw a knife, which Senior Constable Abernathy evaded by moving himself out of the path of the weapon. In the meantime, other police had been summoned and Fisher was taken into custody but the applicant and the unidentified offender escaped in the stolen motor vehicle. 12 In the course of time police received information from members of the public identifying the applicant as one of the offenders and scientific investigation of the getaway car, which had been abandoned, located a fingerprint of the applicant. 13 The applicant was arrested on 20 November 2002 and execution of a search warrant at his home located a number of items which could be connected with the robbery at the tavern. Upon interview the applicant made full admissions regarding his and Fisher's involvement in the offence. The applicant has remained in custody since 20 November 2002. 14 The learned sentencing judge structured his impositions as follows: