District Court New South Wales Medium Neutral Citation: R v McLaughlin [2019] NSWDC 304 Hearing dates: 20 June 2019 Date of orders: 20 June 2019 Decision date: 20 June 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: An aggregate sentence of five years imprisonment with a non‑parole period of three years and nine months, to date from 13 January 2019. Catchwords: CRIME — Violent offences — Robbery — Circumstances of aggravation SENTENCING — Penalties — Imprisonment Legislation Cited: Crime( Sentencing Procedure) Act 1999 Crimes Act Cases Cited: R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Regina (Crown) David McLaughlin (Offender) Representation: Solicitors: Mr Cromer (Crown) Ms Hedberg (Offender) File Number(s): 2018/00273348 Judgment HIS HONOUR: 1. David McLaughlin appears before me for sentence. He has pleaded guilty to one count of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act which carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period. He has also pleaded guilty to a charge of common assault contrary to s 61 of the Crimes Act which carries a maximum penalty of two years imprisonment. 2. He has asked the Court to take into account one matter on a Form 1, which is resist officer in the execution of his duty. The maximum penalty for that offence is five years. I intend to take into account the Form 1 in relation to sequence 1. The maximum penalty is an important guide post in the assessment of sentence. A judge should steer by the maximum penalties but not aim for them. THE PLEA 1. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant s 21A (3)(k) and s 22 of the Crime( Sentencing Procedure) Act 1999. The guilty plea was indicated and entered at an early stage in the Local Court. The Crown has indicated to me in submissions that the plea was entered at the earliest reasonable opportunity and accordingly, the full 25% discount is applicable. AGREED FACTS 1. David McLaughlin, born 25 January 1986, went to Hungry Jacks business at 505 George Street Sydney on 5 September 2018 at around 11 pm. The business is within the curtilage of the Events Cinemas complex George Street, Sydney, a busy location frequented by members of the public. The offender entered the business wearing a cap, a dark hooded sweatshirt with the hood up, and trousers. He entered the business with a 65 centimetre long wooden samurai sword, the said sword having a black handle. On entry the sword was in a sheath. The sword on examination after the events was found to be made of wood. At the time of the events the blade of the sword had the appearance, shown in photograph 15, of being painted in a metallic colour. The handle of the sword is shown in photograph 19. 2. Inside the address the offender approached the service counter and demanded that the cash registers be opened and that he be given the cash. This was seen by several staff working at the time. The offender knocked over a cash register located on the staff side of the service counter. The offender climbed over the service counter into the staff area of the business, with the sword. In the rear of the staff area of the business, while holding the sword, he kept demanding money and pointed the sword at a staff member while doing so. Staff members were put in a state of fear by the actions of the offender. SEQUENCE 1 ATTEMPTED ROBBERY OF SAM KHADKA 1. Sampurna Khadka, an employee of the business, was attending to his duties at the rear of the business, when a co-worker yelled at him that there is a thief holding a knife. Khadka ran to the service counter and saw the offender holding the sword. Khadka saw the offender was holding what appeared to be a knife that was about 50 to 60 centimetres long with a black handle. Khadka was really scared. He saw the offender was covering his face with a hoodie. The offender, when one and a half metres from Khadka and waving the sword at him said, "Give me money, give me money." The offender was trying to open registers at the service counter while holding the sword in his right hand, and said to Khadka, "Give me 200," while holding up two fingers. SEQUENCE 5, COMMON ASSAULT 1. Twelve members of the public were present in the Hungry Jacks restaurant. A member of the public, Benjamin Hanrahan was in the public area of the business and witnessed the offender demanding from staff that they open the registers and give the offender the cash. Hanrahan told five patrons who had just walked into the business to call police. Hanrahan approached the counter at the point at which the offender was carrying out the events in count 1. Hanrahan told the offender "that the offender would not be hurting anybody tonight." At which point the offender jumped from the staff side to the public side of the business. The offender attempted to stab Hanrahan with the sword and poked Hanrahan in his shoulder. Hanrahan noticed at this point that the sword was not real but that it was made of timber and painted silver. Whilst seeking to restrain the offender, the offender kicked Hanrahan's kneecap causing pain. SEQUENCE 4 , RESIST ARREST (FORM 1) 1. Police arrived and proceeded to try to take control of and arrest the offender. Senior Constable Shane Yates and another officer attended. The offender was yelling and swearing, he refused to keep still and put his hands behind his back. Senior Constable Yates and another officer both attempted to restrain the offender but continued to struggle and who refused to place his hands behind his back before eventually being placed in handcuffs and taken into police custody. OBJECTIVE SERIOUSNESS 1. I have taken the guideline judgment of R v Henry (1999) 46 NSWLR 346 into account. The sword was made of wood, it was brandished in a busy public place. The offender climbed over the service counter pointing the sword at a staff member demanding money. People were placed in fear. He attempted to stab Mr Hanrahan, a member of the general public who was trying to diffuse the situation. There was some degree of pre-planning to paint the weapon to make it look like a sword as opposed to a piece of timber. No money was gained by the offender. 2. What occurred was objectively serious; robbery armed with an offensive weapon is a serious crime requiring condign punishment. SUBJECTIVE CASE 1. The offender was 32 years of age at the time of the offence and is now 33 years old. He was born in Scotland and moved to Australia when he was three years of age. His parents separated when he was 17. He completed year 10 at school before completing a plastering apprenticeship and worked as a plasterer for a number of years until the age of 22. He has a 16 year old daughter from a previous relationship, who currently lives in Western Australia. He has limited family support, being estranged from his mother and having some limited contact with his father. At the time of the offence the offender was unemployed and had been released from custody six days prior to the offence occurring. MENTAL HEALTH 1. Dr Furst has examined the offender and I have a report dated 14 June 2019 before me. Dr Furst concludes that the offender would meet the diagnostic criteria for (A) substance use disorder (opiate, alcohol and benzodiapan dependence) (B) anxiety disorder (features of social anxiety disorder and panic disorder) and (C) borderline personality disorder. 2. Dr Furst also notes that, in his opinion the offence took place whilst the offender was acutely intoxicated with the effects of alcohol and diazepam, a combination that likely made him disinhibited. While Dr Furst further states that the offender was aware of his actions, the offender's alcohol and drug dependency nevertheless provides context to his offending. 3. Dr Furst notes that the offender has a lengthy history of emotional problems with an early onset of drug use, addiction to heroin, alcohol and benzodiapines and long history of drug related offending. Dr Furst also concludes that the offender's drug addiction is his most disabling disorder, having resulted in incarceration in Victoria for drug related offences and a pattern of recidivism in New South Wales. He notes that the offender said he was motivated to engage in rehabilitation in the future. AGGRAVATING FEATURE 1. At the time the offences were committed the offender was on parole for larceny, shop lifting, failing to appear and goods in custody. His parole was revoked on 19 September 2018 and the full term expired on 12 January 2019. REMORSE AND PROSPECTS OF REHABILITATION 1. The offender has lengthy criminal histories in Victoria, New South Wales and Western Australia. His criminal history disentitles him to leniency. I assess his prospects of rehabilitation as bleak in light of his prior history and his continued addiction to drugs. CONSIDERATIONS 1. The major sentencing considerations in this matter are general deterrence, specific deterrence and protection of the community. Ms Hedberg who appears on behalf of the offender quite rightly concedes that s 5 has been crossed and the only sentence available to me is one of immediate imprisonment. SPECIAL CIRCUMSTANCES 1. I decline to find special circumstances due to the lengthy criminal history of the offender. SENTENCE 1. I intend to impose an aggregate sentence with the following indicative terms: * SEQUENCE 1 - The indicative sentence is four years and six months imprisonment but for the 25% discount, the sentence would have been six years imprisonment. * SEQUENCE 5 - The sentence is six months imprisonment. But for the 25% discount, the sentence would have been eight months imprisonment. 1. I impose an aggregate sentence of five years imprisonment and I set a non‑parole period of three years and nine months. The aggregate sentence is to date from 13 January 2019 and will expire on 12 January 2024. The non‑parole period commences from 13 January 2019 and the earliest time at which the offender will be eligible for parole will be 12 October 2022. 2. I refer the offender to the Drug Court and I order that a copy of my sentencing remarks and a copy of exhibit D1, which is the report from Dr Richard Furst forensic psychiatrist dated 14 June 2019, be provided to the Drug Court. ********** 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: 09 July 2019