R v Connelly-Heap (No 2) [2016] NSWDC 407

District Court New South Wales

Medium Neutral Citation: R v Connelly-Heap (No 2) [2016] NSWDC 407 Hearing dates: 31 October 2016 Date of orders: 31 October 2016 Decision date: 31 October 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: For the offence of armed robbery the offender is sentenced to imprisonment for a period of 2 years. For the offence of possess unauthorised pistol the offender is sentenced to imprisonment for a period of 9 months. Each sentence is suspended under s 12 of the Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW – Sentence – Armed robbery – Possess unauthorised pistol Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: Ellis v R (1986) 6 NSWLR 603, R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR Category: Sentence Parties: The Crown Joshua Ian Connelly-Heap Representation: Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender File Number(s): 2015/268480

SENTENCE 1. HIS HONOUR: This case is yet another illustration of the terrible things that drugs do to people. The offender, Joshua Ian Connelly-Heap, committed two offences whilst addicted to drugs, but motivated by a desire to overcome his addiction, and he has now, demonstrated that he is a very different person to the one who committed the offences some time ago now. 2. I am to sentence the offender for two offences, one of armed robbery and the other, possession of an unauthorised pistol. The maximum penalty for the first offence is 20 years imprisonment, and for the second offence is 14 years imprisonment with a standard non-parole period of four years. I have taken both the maximum penalties and non‑parole period where appropriate into account in determining these sentences. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 3. At 8 o'clock one evening in September 2015, the offender walked into a service station. He asked the attendant for some cigarettes but there was some discussion about Mr Connelly-Heap not having any identification, and so the attendant would not provide him with the cigarettes. 4. After that discussion the offender removed something from his right pocket. It was a small toy gun. Quite whether the attendant appreciated that it was a toy gun is not entirely clear, but I am inclined to think that he did realise that it was not a real weapon. That is because the offender used it to hit the attendant in his head. The attendant noted that it did not feel like metal, but felt soft instead. 5. After he had been hit in the head he told the offender to leave or else he was going to call the police. Mr Connelly-Heap replied, "You give me the smokes and I'm going to go. Open the till and give me the money." The attendant said he would not give him anything, and told him again to go away or he would call the police. 6. Then there were more demands made by the offender. He wanted the till opened and he wanted the cigarettes. He threatened to bash the attendant with something, and eventually he did. He picked up the EFTPOS machine that was on the counter and hit the attendant in the head. The attendant then ran away. As he was going, he saw the offender getting chocolates from under the counter, walk to a fridge, collect a drink and leave. 7. Almost two weeks later he was arrested. Police had received a call indicating that the offender was in his car, threatening self-harm with a rifle. They were also told that he had committed an offence. Police attended, saw the offender in the car with his mother; his mother was driving, and the police pulled them over. The offender's mother said, "I'm taking him to the police station now. I'm his mother." The police officer saw that there was a backpack on the floor in front of the offender's feet. The police officer asked, "Where is the gun?" And the offender responded, "it's in the bag." 8. Police then found two things in the bag. One was an old flintlock pistol which is categorised as an antique firearm and does not require a permit to possess it. It was thus not an offence for the offender to be in possession of it. But they also located an imitation self-loading pistol. It is a very realistic looking item. Although, being an imitation, and incapable of causing injury, it is certainly capable of causing fear. Police did not find the weapon used in the armed robbery almost two weeks earlier. The offender told police that it was a plastic cap gun. 9. He was interviewed and made admissions in relation to these offences. He said that he was motivated by a desire to get help. He said that he had waited around outside the service station for a few minutes in the hope that he would be arrested. When police did not come he threw the clothing that he was wearing and the gun in a bin, changed into other clothes and then rode away on a bicycle. 10. He told police that he had been awake for eight days, having had 15 points of rock. He explained his possession of the replica firearm as being necessary in order to defend himself after he had been grabbed by more serious criminals than him, who held a blowtorch to him. He said he wanted revenge for that act. 11. It is to be noted that at the time of his arrest, police did not know who had committed the robbery. It was his admissions to police which formed the basis for him being charged with that offence. After he was arrested, he was placed into custody and he remained there for almost eight months. 12. When he first appeared before me I granted him bail under section 11 of the Crimes (Sentencing Procedure) Act. That was on the basis that I considered it important that Mr Connelly-Heap be able to demonstrate the rehabilitation that he was promising. Fortunately, this is one of those cases where my optimism has proved to be justified. Material tendered to me today suggests that, as I said earlier, Mr Connelly-Heap is a much different man to the one he was when he committed these offences. 13. His problems with drugs began at a relatively early age. His home life was tumultuous, for reasons explained in a psychological report prepared for these sentencing proceedings. As a result he spent increasing amounts of times outside the family environment, where he was associating with people who were a bad influence upon him. He had no parental supervision and no guidance from a very young age. In those circumstances he began experimenting with drugs and eventually became a significant user of them. 14. When he first appeared before me there were suggestions that matters were improving. They are consistent with what Mr Connelly-Heap described as his motivation for committing the offences in the first place; he wanted to get away from drugs. Evidence of what has occurred since he was released from custody suggests that he has been able to do so. He has been subject to urinalysis, both arranged by the Probation and Parole Service, and also arranged by his employer. There has been no suggestion that he has used drugs in the remand period. 15. I note that he was a very young man at the time of these offences. They are consistent with the sort of offences he committed, an impulsive act, typical of an immature young man, who said that he wanted to go to prison so that he could do something with his drug addiction. 16. Consistent with his immediate admissions to police, he has pleaded guilty at the earliest opportunity, and so the sentences I impose on him will reflect the utilitarian value of his pleas. I am not going to quantify the discount, because the pleas have been one of a number of factors which have led to me imposing a different form of sentence from that I would otherwise impose. 17. While speaking about discounts, I should mention that I have taken into account in the offender's favour the fact that police, at the time they arrested Mr Connelly-Heap, did not know of his involvement in the armed robbery. Although this is not precisely the sort of situation to be found in Ellis v R (1986) 6 NSWLR 603, his cooperation with the authorities, even to the extent of admitting to being the person who committed the armed robbery, where police did not have any information to suggest he was, is also a matter very much in his favour. 18. He has expressed his remorse and I am satisfied that, if he can continue on the path he is on, he is unlikely to commit further offences in the future. It has been some time since the offender was released from custody and there has been no further criminal misconduct. 19. Of course, armed robbery was the subject of the guideline judgment in R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R. There are many features which match the common form of offence postulated in that judgment in this case; the offender is a young offender with little criminal history. But there are differences, too. This gun was not capable of causing injury, but it was certainly, as I have said already, capable of scaring someone, even if the attendant in this case appears to have recognised that it was a toy gun and not capable of harming him. 20. Also different from the common offence postulated in Henry is the circumstance that these pleas of guilty were entered early, rather than the late pleas of guilty referred to in Henry. On the other hand, this was an offence where actual violence was used, the offender striking the attendant twice, firstly with the gun and secondly with the EFTPOS machine. 21. The Henry guideline is just that, a guideline. It is certainly not a straitjacket. In appropriate cases, judges are entitled to deviate from the four to five year sentence contemplated by Henry. This is one such case. 22. It has to be remembered that the ultimate purpose of sentencing offenders is to protect the community. Sometimes, and indeed usually, this is done by imposing penalties which punish the offender, both as a means of persuading the offender not to do it again, but also as a means of deterring others who may be tempted to act in the way the offender has. But in some cases, and this is one, it is important to focus on the rehabilitation of a particular offender. This is not done as any favour to him, but is a recognition that in some cases the best way of protecting the community is to ensure that an offender's rehabilitation continues. 23. Ordinarily in a case such as this I would have considered it essential for the order I make to carry with it a significant component of punishment. After all, it is important that a person is punished for doing the wrong thing, particularly offences as serious as these. But in this case, I note that the offender has done almost eight months in custody. That is, undeniably, significant punishment for a very young man. 24. The sentences I impose in this matter take into account that he has done that eight months in gaol. Unfortunately, for the purposes of sentencing statistics and the like, that circumstance is not recorded, but I will say this: were it not for the fact that the offender did eight months in custody, he would not be getting the benefit of the order I am about to impose. 25. For the offence of armed robbery, the offender is sentenced to imprisonment for two years. I suspend the execution of that sentence under section 12 of the Crimes (Sentencing Procedure) Act on the offender entering into a bond to be of good behaviour. 26. For the offence of possession an unauthorised pistol, the offender is sentenced to imprisonment for nine months. I suspend the execution of that sentence under section 12 of the Crimes (Sentencing Procedure) Act for the period of the sentence, on condition that the offender enter into a bond to be of good behaviour. 27. The conditions of the bond are that the offender is to be of good behaviour; he is to appear before this Court if called upon to do so at any time. He is to advise the registrar of this Court of any change in his residential address. 28. Now, Mr Connelly-Heap, you have avoided being sent back to gaol at this stage, but I have actually imposed a sentence of imprisonment, which will take effect if you commit further offences. It is not a question of, "Oh, the judge will decide whether I go to gaol or not." I have decided you will go to gaol if you commit further offences. So you have done well; you are to be congratulated for that; but there are still going to be times when you might be tempted to use drugs, you might be under stress, you might be tempted to go backwards from where you have been going. When that happens, I want you to think very clearly, "This might put me in gaol." Make sure that does not happen, okay?