R v Kyle Churchill; R v Michael Churchill [2018] NSWDC 63

District Court New South Wales

Medium Neutral Citation: R v Kyle Churchill; R v Michael Churchill [2018] NSWDC 63 Hearing dates: 16 March 2018 Decision date: 23 March 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentences. For orders see [67] and [68] Catchwords: Armed robbery; co-offenders Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Goundar (2007) 127 ACrimR 331 R v Henry & Ors(1999) 46 NSWLR 346 Category: Sentence Parties: Director of Public Prosecutions (Crown) Kyle Chuchill (Offender) Michael Churchill (Offender) Representation: Counsel: B Queenan (Crown Prosecutor) B Neild (Offender Kyle Churchill) P De Dassel (Offender Michael Churchill) File Number(s): 17/38255, 17/35998 Publication restriction: Nil

REMARKS ON SENTENCE

Introduction 1. The offenders pleaded not guilty to two counts on an Indictment as follows: 1. That on 25 January 2017, at Nabiac in the State of New South Wales, while armed with an offensive weapon, namely a baseball bat and an iron bar, robbed Kaben Genoli of an Apple Iphone 4. 2. That on 25 January 2017, at Nabiac in the State of New South Wales, while armed with an offensive weapon, namely a baseball bat and an iron bar, robbed Tristan Genoli of a sum of money. 1. Both counts were offences pursuant to s 97(1) of the Crimes Act 1900. 2. The trial commenced on 8 February 2018 at Taree District Court, and on 16 February 2018, both offenders were found guilty on both counts on the Indictment. 3. The following summary of facts may be derived from the jury's finding. In the early hours of the morning on Boxing Day 2015, Kaben Genoli met the offender Kyle Churchill at Gloucester. They smoked the prohibited drug ice together in a car with other people, and had a conversation about "bikes, go‑carts, pocket rockets, and drugs". In that conversation, Kyle Churchill told Kaben Genoli that he had, or could get access to go-carts for sale, and Kaben Genoli told him that he had a brother, Tristan, who was interested in buying them for his children. Kyle Churchill also offered to sell Kaben Genoli the drug ice, but told him that he would have to travel to Nabiac to obtain it. They exchanged contact details and throughout January 2016 contacted each other. On 25 January 2016, they had a telephone conversation in which Kaben Genoli agreed to purchase ice from Kyle Churchill in Nabiac. That transaction was to be done "on the sly", because Tristan Genoli was going to drive his brother Kaben from Gloucester to Nabiac to purchase a go-cart or go-carts from Kyle Churchill. 4. On that day, there were a number of text messages and phone calls between Kyle Churchill and Kaben Jenoli. Kyle Churchill knew that Kaben Genoli was driving to Nabiac with his brother, and the arrangement was that Kaben Genoli would contact him once they arrived in Nabiac. 5. Kaben Genoli rang Kyle Churchill following their arrival in Nabiac, and met him at a local park, where he was with the co-offender, Michael Churchill, his uncle. The two men got into Tristan Genoli's vehicle and Kyle Churchill directed them to a home in Nabiac. When they arrived at the house, Kaben Genoli, Tristan Genoli and Michael Churchill went to a shed at the rear of the premises where there were two children's electric go-carts. Kyle Churchill went into the house. 6. A short time later, a woman called out from the house, asking for Michael Churchill to come into the house. He left the shed and entered the house. 7. The female voice was that of Tanya Sultana, who lived at the premises. Kyle Churchill had intended to obtain ice from Tanya Sultana, who had a brother who had supplied it to them in the past. On this occasion, she was unable to obtain any ice. Kyle Churchill said to Michael Churchill, in the presence of Tanya Sultana, "They owe me money, let's roll 'em". 8. Kyle Churchill then obtained a baseball bat from Tanya Sultana's bedroom. Michael Churchill had a black steel pole, about half a metre in length. They left the house and went into the shed. 9. Inside the shed, Kyle Churchill demanded money from Kaben Genoli. Michael Churchill threatened to "kneecap" Tristan Genoli. 10. Kaben Genoli told them that he did not have the money, and Michael Churchill turned to Tristan Genoli. He took $505 from his wallet, and then took his driver's licence out of his wallet, and when looking at it said, "If youse go to the police or youse do anything, I'm going to come – we're going to come to this address". He then gave the wallet and licence back to Tristan Genoli. 11. Kaben Genoli had cash hidden in his sock. He was told to kneel down and asked to empty his pockets, and when he did so, Kyle Churchill took his Apple iphone 4. 12. The offenders then told Kaben and Tristan Genoli to get out of the shed, and they left the premises with the two offenders walking behind them. When they were in the car, Kaben Genoli told his brother Tristan to drive around the block. They did that, and returned to the house where Kaben Genoli got out of the car and saw the offender Kyle Churchill near the front door. He said to him, "Give us me stuff back or you're going to be sorry. Just give me that stuff back or you'll regret it". Kyle Churchill went inside and Kaben Genoli threw a rock at the house, hitting a window which broke. He then threw another rock which missed the house, at which stage Kyle Churchill came out of the house with the baseball bat. Kaben Genoli got into his brother's car and they went to the Nabiac Police Station. That station was unmanned and they called the Forster Police. They were told that there would be a delay, and so they drove back to Gloucester where they were later interviewed by police at Gloucester Police Station, where they made statements. 13. In his statement, Kaben Genoli made no disclosure about his purpose of going to Nabiac to purchase drugs from Kyle Churchill. He later disclosed that in a statement to police, within a week of the trial commencing. 14. The offenders contended that what in fact occurred was that Kyle Churchill had exchanged not the drug ice, but rock salt in return for money, and when the Genolis discovered that fact, they returned to the house to demand their money back. That contention was not accepted by the jury by their verdicts. 15. The maximum penalty proscribed for an offence pursuant to s 97(1) of the Crimes Act 1900, is 20 years imprisonment. 16. The criminal antecedents of each offender were tendered and were marked as Ex A for each sentence.