District Court New South Wales Medium Neutral Citation: R v Shane Carusi [2014] NSWDC 191 Hearing dates: 2 October 2014 Decision date: 07 November 2014 Before: Mahony SC DCJ Decision: Full time custodial sentence. For Orders see [49] Catchwords: Armed Robbery with a dangerous weapon; application of guideline judgment Legislation Cited: Crimes Act 1900 Cases Cited: Hart v R [2013] NSWCCA 13 Pearce v R 1998 194 CLR 610 R v Henry (1999) 46 NSWLR 346 R v Sydney [2004] NSWCCA 63 Category: Sentence Parties: Director of Public Prosecutions (Crown) Shane Carusi (Offender) Representation: S Velcic (Crown) S Singh-Panwar (Offender) File Number(s): 13/228166 Publication restriction: Nil remarks on sentence 1The offender has pleaded guilty to one offence of robbery armed with a dangerous weapon pursuant to s 97(2) of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. 2The sentence hearing took place at the Parramatta District Court on 2 October 2014. The Crown bundle (exhibit A) included a statement of facts which were not in dispute, together with a criminal history and custodial history of the offender. The Crown also tendered a presentence report under the hand of Simon West dated 1 October 2014 (exhibit B). 3The offender gave evidence, as did his former employer, Mr Giovanni Angeloni. In addition, the offender tendered a letter from the Salvation Army dated 22 August 2013 in respect of his suitability for admission into its Bridge program in respect of drug and alcohol rehabilitation. Circumstances of the Offending 4A summary of the facts is that the offender attended the BP service station at 40 Sherwood Road Merrylands just after midnight on 25 July 2013. He was wearing a blue hooded jumper with the hood pulled up and his face was partially covered by what looked like a black scarf. The service station attendant refused him admission and indicated for him to uncover his face. The offender removed the face covering and he was allowed entry into the premises while the attendant returned to his position behind the console. Having entered the premises, the offender re-covered his face. As he approached the main counter the attendant had his back to the offender. The offender told the attendant to give him all the money he had and the attendant froze in fear. At that point, the offender removed a single barrel shortened shotgun from under his jumper and pointed it at the victim, again demanding all the money. The sum of $170 was handed over to the offender who then ran from the store. The robbery was captured on CCTV and the offender was identified the same day and arrested on the following day, 26 July 2013, at his workplace. During his ERISP interview the offender claimed he did not remember committing the robbery as he was affected by drugs and alcohol, but admitted that it was him shown in the CCTV footage. He also told the police that they could find the shotgun on his bed at home. The Sentence Hearing 5The criminal history of the offender revealed no offences of violence (in 2009 he had been sentenced by way of a s 10 bond to be of good behaviour for 25 months in respect of a charge of affray). In 2011 he had been sentenced by way of a fine for offences that occurred on 24 December 2011. An offence of possess prohibited drug on 19 August 2011 had been dismissed pursuant to s 10 of the Sentencing Act. In 2013 he had been convicted of destroying or damaging property and fined $500. 6The offender's custodial history revealed breaches for possessing a drug implement and failing a prescribed urine test, as well as possession of a drug. 7The pre-sentence report noted that he was the youngest of three children and had enjoyed a stable and supportive upbringing. His mother suffered a disability following a brain aneurism several years ago which had impacted upon the family dynamics. She had separated from her husband following that illness. The offender completed year 10 at high school where he excelled at sport. After a year he found work with Mr Angeloni's company as a concreter. The offender acknowledged that he had a problem with drugs and alcohol. He was a user of both cannabis and methamphetamines, and had injected drugs. He also gambled regularly on poker machines. 8Under the heading "Attitude to Offending", the report stated: "Mr Carusi found it hard to explain why he had committed the offence. He claimed that he was intoxicated, had not slept for three nights and said that he does not remember doing it. He also said that he was not under any particular financial pressure, although he did have some debts. Nevertheless, his pattern of previous offences reflects irresponsible and impulsive actions in which substance abuse has played a part." 9He was assessed as a low to medium risk of re-offending and it was considered that he would benefit from a period of supervision by Community Corrections with case management strategies focussing on substance abuse, gambling and treatment for any psychological or mental health issues. He was assessed as suitable for a Community Service order. 10The offender gave evidence that he was now 24 years of age. He had worked full time for L & G Concrete for a period of four years and earned between $800 and $1000 per week. Of that, he had spent between $500 and $600 per week on average on drugs, including ecstasy, amphetamines (Ice), cannabis and alcohol. 11The offender said he admitted the offence but had no memory of it because "I was off my face on drugs". He did not need to obtain money to buy drugs and was not sure why he did it. If he needed money he could have borrowed money and in any event, he had enough money from his income to buy drugs. 12The offender gave evidence about the custodial breaches referred to above. He had failed the urine test on 15 February 2014 after smoking one joint. He had not taken amphetamines whilst in gaol because he said it ruined lives, including his own life. The breach in respect of possessing a drug implement on 16 July 2014 concerned a needle which was found in a light fitting in his cell. He claimed that it was not his as he did not use needles. 13As to what occurred on 25 July 2013, the offender said he had been at work on that day, which was a Wednesday. After work he went to the Coolabah Hotel for an hour and then went home where he smoked cannabis and took 0.1 of a gram of Ice. Later he took more Ice, to a total of 0.4 grams. He returned to the hotel and drank four to five beers and vodka. He had a recollection of going home and next remembered waking up feeling awful. He felt sick but knew that he had done something stupid. 14The offender gave evidence that he had purchased the shortened shotgun one month beforehand. He had no ammunition for it and it could not have been loaded. It was a single barrelled shotgun which took only one single round. 15In respect of the service station attendant, the offender gave evidence that he was sorry for what he had done. He understood that the victim would have felt petrified and scared. 16The offender gave evidence that he had been assessed as suitable for the Bridge Program conducted by the Salvation Army in August 2013 and that he would participate in that course upon release. He also gave evidence that he had completed the SMART program whilst in custody, which was the only program available to him for drugs and alcohol rehabilitation. 17The offender gave evidence that he had assisted the police by telling them where the firearm was and where the clothes that he was wearing were located. He realised that the offence was very serious and was sorry for his conduct. He told the Court, "Give me a chance and I'll show you I will change". In cross-examination the offender said he had owned the firearm for one month. When asked why he purchased it, he said he thought it was "cool". In answer to questions from the Court, he acknowledged that the firearm was not licensed and said that he had bought it from a "bloke from the pub", but he did not remember who that was. 18Mr Giovanni Angeloni also gave evidence on behalf of the offender. He had known the offender all of his life and had employed him for the last four years. He gave evidence that the offender had a great work ethic and was one of his best workers. He never had any issues with him and was willing to re-employ him upon his release from custody. 19When asked whether he was aware that the offender was addicted to drugs whilst working for him, Mr Angeloni said he was not really, although he did notice that the offender took a few days off and was sometimes late for work. He gave evidence that he would support the rehabilitation of the offender. Crown Submissions 20The Crown conceded that the offender had entered a plea of guilty on 9 July 2014 to the offence, which was the first available opportunity. He was therefore entitled to a full 25% utilitarian discount on sentence. 21The Crown submitted that the objective seriousness of the offence was very high. It was an aggravating feature that the victim was vulnerable and had a shotgun pointed at his face and was placed in extreme fear of his life. 22The Crown submitted that the guideline judgment in R v Henry (1999) 46 NSWLR 346 applied, but that the sentence should be above the guideline because the offender here was slightly older and had a criminal history. Further, he had used a shotgun in the offence. 23The Crown submitted that the offence involved some planning, namely, that it involved the use of a gun and the scarf to cover his face. The Crown conceded that a small amount of money was taken. 24The fact that the offender was affected by drugs and alcohol was not a mitigating factor here. The Offender's Submissions 25The offender conceded that the Henry guideline was applicable here. It was submitted that the offender was a young offender with some criminal history, but no relevant criminal history. There was no history of any offence of violence. It was conceded that the victim was a vulnerable person, being a service station attendant. 26It was submitted that the fact that the shotgun was shortened does not aggravate the offence because it was an element of the offence. Further, it does not escalate the seriousness of the offending. The firearm was not loaded. 27It was submitted on behalf of the offender that the Court would take into account that he had made full admissions to the police and had assisted the authorities in locating the firearm and the clothes that he was wearing. 28Notwithstanding that the victim was within close range and it was understandable that he would have been terrified, there is no evidence before the Court that he suffered substantial emotional harm, that is, over and above what an ordinary person would suffer if subjected to an armed robbery. 29It was submitted that whilst the intensity of the threat was reflected in the use of the weapon, no words amounting to intimidation were spoken by the offender threatening to use that weapon. There was also no evidence of planning at all, and no real attempt to disguise himself, given that him removed his face cover before entering the premises and was inevitably identified by the CCTV. 30It was further submitted on behalf of the offender that no real thought had been obviously given to this offence. He was a regular customer at that service station, having given evidence that he visited it once a month. It was an impulsive act, clearly fuelled by his consumption of Ice and alcohol and he had no real memory of either the planning or the robbery. Whilst drugs and alcohol were not a mitigating factor for the Court to take into account, it was relevant to his state of mind at the time of the offending. There was no clear motive for him to do so because he was earning good money, half of which he spent on drugs each week. 31The offender submitted that the Court would take into account the following mitigating factors: (1)That the injuries suffered by the victim were not substantial. (2)There was no planning or organised criminal activity. (3)He had no significant criminal history. (4)He generally was of good character and had a full time job. (5)He had good prospects of rehabilitation. (6)He is quite young, and has been assessed as suitable for the Salvation Army Bridge Program. (7)He had completed the SMART program whilst in custody awaiting sentence. (8)He has a job to go back to upon release from custody. (9)He had expressed remorse in his evidence and in his interview with the police. (10)He had entered a plea of guilty at the earliest possible opportunity. 32As a relatively young offender, there was a need in the sentencing process to acknowledge that he was to serve a custodial sentence for the first time and was in need of rehabilitation. 33In respect of comparative cases, it was submitted that the decision in Hart v R [2013] NSWCCA 13 was close to the present case on the facts, except in Hart there was an offence on a Form 1 of possess restricted substance. In that case, there are a number of similar features and the offender was sentenced to a total sentence of 4 years and 6 months imprisonment with a non-parole period of 2 years and 8 months. Given that there are good prospects of rehabilitation here, it was submitted that the offender should be sentenced to a lesser sentence than the offender in Hart. 34The Court was referred to the JIRS statistics in relation to the offence, and in particular, the non-parole periods therein. They demonstrated that 48% of offenders were sentenced to a non-parole period of up to 30 months duration. 35Finally, it was submitted that the time served by the offender in custody since 26 July 2013 should be taken into account. Determination 36In the guideline judgment of R v Henry, supra, Spigelman CJ at [162] identified the category of case upon which the guideline was based. It involved the following features: (i)Young offender with no or little criminal history (ii)Weapon like a knife, capable of killing or inflicting serious injury (iii)Limited degree of planning (iv)Limited, if any, actual violence, but a real threat thereof (v)Victim in a vulnerable position such as a shopkeeper or taxi driver (vi)Small amount taken (vii)Plea of guilty, the significance of which is limited by a strong Crown case. 37The Court identified a range of sentences for such a case of 4-5 years for the full term, with aggravating and mitigating factors justifying a sentence above or below the range. At [170] Spigelman CJ said as follows: "170 In addition to factors which may arise in any case, for example, youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail et cetera, a number of circumstances are particular to the offence of armed robbery. These include: (i) Nature of the weapon (ii) Vulnerability of the victim (iii) Position on a scale of impulsiveness/planning (iv) Intensity of threat, or actual use of force (v) Number of offenders (vi) Amount taken (vii) Effect on the victim(s)." 38The guideline judgment also took into account a guilty plea of limited value. That should be understood to involve a late plea of guilty for the purpose of the application of the guidelines. Here, the plea of guilty was entered at an early stage and the Crown has acknowledged the offender is entitled to a utilitarian discount of 25%, whereas the 4-5 year term referred to in Henry incorporated a discount of 10% - see R v Sydney [2004] NSWCCA 63 per Beasley JA (as she then was) (with whom O'Keefe and Bell JJ agreed). 39The objective seriousness of the offending here was within the lower range of seriousness of offences pursuant to s 97(2) of the Crimes Act 1900. The offence, however, was still very serious, involving the use of a shortened shotgun which was directed at the face of the victim. This was clearly a terrifying incident for the victim who did not know that the weapon was not loaded. 40The offending conduct was borne of an abuse by the offender of alcohol and drugs. That does not constitute a mitigating feature of the case. There seemed to be no motivation, given that he was earning a good income as a concreter and was able to afford to purchase illicit drugs on a weekly basis. The fact that he presented himself in a disguised fashion by use of a scarf over his face and with the weapon concealed, demonstrates that there was so me planning involved and the offending conduct was not entirely opportunistic. I accept that there is no relevant criminal history but that is reflected in the guideline judgment along with other features of this case, including that he was a young offender, there was a limited degree of planning, limited actual violence but a real threat thereof, and a small amount of money taken. Once he removed his disguise it was inevitable that he would be identified on the CCTV. 41I accept that the offender has expressed remorse for his involvement in the offence and accepted responsibility for his criminal conduct. Notwithstanding that he had failed one urine test whilst in custody, I accept his evidence that he does not use needles and has not consumed illicit drugs whilst in custody. It is no simple thing to overcome a drug addiction in any circumstances, let alone whilst incarcerated. 42There are significant subjective features which the Court has to take into account. The offender is supported by his family and his employer. He is well regarded by his employer and has a job to go back to upon his release from custody. He has already undertaken some steps to rehabilitate himself and address his drug and alcohol problems by completing the SMART program and being assessed for the Salvation Army Bridge program. 43I am satisfied that there are special circumstances pursuant to s 44(2) of the Sentencing Act established, and that the usual ratio of 75% of head sentence should be altered to reduce his non-parole period, due to his young age, his remorse and his need for rehabilitation to address his drug and alcohol problems to assist in his return to the community as a constructive member of society. Sentence 44Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 45It is clear from the guideline judgment in R v Henry, supra, and the offender accepts, that no penalty other than a full time custodial sentence is appropriate here pursuant to s 5 of the Sentencing Act. Further, it is clear that the aggravating features referred to above and the need for general deterrence mandate a lengthy period of imprisonment to meet the objects of sentencing set out in s 3A above. 46However, there are also powerful subjective matters in favour of the offender which have to be taken into account. The offender is still a young person at 24 years of age and this is his first offending in terms of a crime of violence. He has already embarked on rehabilitation and has made some progress. He also has the support of his family and employer who will assist him in making a constructive return to the community. 47I have had regard to the maximum penalty for the offence pursuant to s 97(2) of 25 years imprisonment. This is a guide post to be taken into account in considering all of the circumstances of the offending. I am also mindful of the principles of parity, proportionality and totality set out in Pearce v R 1998 194 CLR 610 at [45]. 48I intend to sentence the offender to a total term of imprisonment of 3 years and 6 months, and impose a non-parole period of 2 years and 3 months commencing on 26 July 2013 and terminating on 25 October 2015. Orders 49I make the following orders: (1)You are convicted of the offence of robbery armed with a dangerous weapon pursuant to s 97(2) of the Crimes Act 1900. (2)I sentence you to a non-parole period of 2 years and 3 months commencing on 26 July 2013 and expiring on 25 October 2015. (3)I sentence you to a balance of term of imprisonment of 1 year and 3 months. The total term of imprisonment will be 3 years and 6 months expiring on 25 January 2017. (4)Your parole eligibility date will be 25 October 2015. 50You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2014