R v Beau Leglise

[2010] NSWDC 123

CITATION:	R v Beau LEGLISE [2010] NSWDC 123
HEARING DATE(S):	11/02/10
JUDGMENT DATE:	11 February 2010
JURISDICTION:	CRIMINAL
JUDGMENT OF:	Finnane QC DCJ
DECISION:	In each matter I sentence him to a four year head sentence and effectively a one year six month non parole period, which is an exceptionally generous non parole period.
CATCHWORDS:	CRIMINAL LAW - sentence - sentencing orders - multiple aggravated robbery whilst on bail -
LEGISLATION CITED:	CRIMES (SENTENCING PROCEDURE) ACT 1999 (NSW) s 95(1) Crimes Act1900 (NSW)
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	Regina v Beau William LEGLISE
FILE NUMBER(S):	2009/153809
SOLICITORS:	Director of Public Prosecutions (Crown) Ms C Donnelly (Offender)

1. HIS HONOUR: Beau Leglise, who was born on xx xxxx 1989, is before this Court on three charges. The first is aggravated robbery committed on 14 April 2009. That is proffered under s 95(1) of the Crimes Act1900 (NSW) and carries a maximum penalty of twenty years imprisonment. The second is robbery in company on 15 April 2009, the victim being Daniel Jones. The third is a robbery in company on the same day, the victim being Diego Valverdi.

2. The second and third counts involved a robbery in company of two people who were together at the same time. The first count involved a robbery on a man called Kim at a totally separated time and in a different place.

3. At the time these robberies were committed he was on bail for offences with which he had been charged on 21 December 2008, that is, of assaulting an officer, resisting arrest and behaving in an offensive manner and another offence for which he had been charged on 11 December 2008, one of possessing implements with an intention to use them for the purpose of breaking and entering a motor vehicle.

4. Those particular matters, the 2008 matters, were eventually brought to court on 2 December 2009. He was given a sentence of three months imprisonment for assaulting an officer in the execution of his duty, a concurrent three months imprisonment for resisting an officer in the execution of his duty and four months for possessing implements with an intention to enter a motor vehicle. Those sentenced commenced on 2 December 2009. The three months sentences will cease on 1 March 2010 and the four months sentence will cease on 1 April 2010.

5. At the time he committed these offences he was on a form of bail that permitted him to be at liberty so that he could take part in a conference program being organised in the local court, obviously with a view to keeping him out of gaol. However, he on 14 and 15 April committed offences that resulted in his being in gaol. He was arrested on 15 April, he was refused bail, and he is still there.

6. The details of the offences are contained in a statement of facts. It is not necessary that I read out everything in the statement of facts. It suffices to say that the first offence at 9pm on 14 April was an attack on a Mr Kim who, with two of his friends, was walking home through Prince Alfred Park, towards Central Railway station, after he had attended an evening class. He was confronted by five or six people in a group and the offender was one of them. The facts produced by the Crown are to the effect that the offender, personally, grabbed a bag being held by Mr Kim over his shoulder and pulled it in an attempt to get it and that caused Mr Kim’s right shoulder to become dislocated. At that point the offender then took the mobile phone, rummaged through the bag that he had been attempting to get, looked at it, but left without doing anything more than take the mobile phone. The other men with the offender prevented Mr Kim’s friends from assisting him.

7. Mr Kim was taken to St Vincent’s Hospital and was treated for a dislocation of his right shoulder joint. So, in the course of this robbery he suffered actual bodily harm.

8. About three hours later the offender, with the same group of people, probably, certainly a group of people, approached two men, Diego Valverdi and Daniel Jones, who were sitting in Bourke Street, Darlinghurst, near Taylor’s Square. He demanded that they hand over their money and he threatened to bash Mr Jones and his wife. The others were with him at the time these threats were made. One of them was holding a beer bottle and was swinging the beer bottle in a hand. The offender made offensive remarks to Mr Jones, alleging, amongst other things that he was a homosexual, and again demanding money. Eventually Mr Jones succumbed to the threats and gave him ten dollars and his mobile phone. One of the people in the group was a woman, she approached Mr Valverdi and demanded his phone and threatened to smack him in the head if he did not give it to her. The other people in the group took Mr Valverdi’s sunglasses. And the offender, just to complete the assault and show his contempt for the people he was assaulting, spat in Mr Valverdi’s left ear. Before the group left they handed Mr Valverdi back his phone, apparently believing it had a tracking device in it. Mr Valverdi and Mr Jones left the area. They people continued to pursue them and harass them until other persons intervened. The two victims then went to the Surry Hills police station and reported the robbery.

9. Ultimately the offender was arrested and admitted that he was involved in both the robberies. I think it is fair to say, as his solicitor put to me, but for that admission it is unlikely he could have been charged with the robbery of Mr Valverdi and Mr Jones as they could not identify him.

10. He has an unfortunate background, as is often the case with people who come to the court for offences such as this. He commenced attending courts when he was about fourteen years old and became involved in a number of offences for stealing motor vehicles, entering enclosed lands and similar offences. He was dealt with gently in the juvenile courts and spent really very little time locked up in juvenile institutions. It would appear that at an early age he was sexually assaulted by a family friend but could not bring himself to do anything much about it. He has also been sexually assaulted by other men and has found great difficulty in being able to talk to anyone about it; that is very understandable, it is a very difficult thing for anyone who has been sexually assaulted, particularly if he is a male, to be able to admit to other people that he has had that assault carried out on him.

11. He has been assessed by a psychologist as having a fairly low IQ and has given evidence before me and having heard him give evidence I would agree with the assessment of the psychologist in that regard. The psychologist has also assessed him as suffering from post traumatic stress disorder and I would think that is a perfectly correct diagnosis. On the night concerned it would appear he had been drinking to excess from a flagon of wine and in fact he has very little memory of what went on. He accepts that he did what the Crown has said he did, but he cannot distinctly remember doing any of these things. He has expressed upset that he has hurt the victims in this way, and his expressions of regret and contrition appear to me to be perfectly genuine. He has had periods in his life when he has not been in trouble and those periods have been when he has had relationships with young women who have helped him to stay out of trouble. He has had employment on occasions. In gaol he has been working and in particular in Bathurst gaol he has been working in an area where small electrical goods are repaired. He is clearly frightened of gaol and related in evidence some threats that had been made to him. He I think has every reason to fear those threats.

12. It is difficult to know precisely what to do with him. The first offence is more serious than the classic Henry guideline robbery because someone was actually injured. I think it likely he did not, when he was grabbing the bag, consider that possibility. There is no evidence that he set out to cause injury to someone or that he was gratuitously injuring someone in the course of a robbery. All offences are aggravated by the fact that he was on bail at the time and indeed the Local Court was attempting to get him to accept that he had problems and he could do something about it, and to keep him out of the criminal justice system. It is the first time he has been in custody in a prison. He has done a health survival course, he has done an occupational health and safety course. He has applied to do a drug and alcohol course, but there are currently no vacancies in that course. He is entitled to twenty five per cent discount on sentence because he pleaded guilty at the first opportunity, and indeed he made known to the police information that resulted in him being charged with the second and third offences.

13. I am required to impose separate sentences for each offence. It is clear that for offences such as this only in very exceptional circumstances can there be a sentence otherwise than of imprisonment. There are no very exceptional circumstances here, or even exceptional circumstances here. All that can be said is there are some very sad circumstances from his background. Clearly he has been a disadvantaged young man. He can read and write, a little, but not very well, his education is very limited and he has unresolved problems arising from sexual assaults that have been perpetrated upon him.

14. That being said, there can be no excuse for anybody robbing people who are quite lawfully walking across a park. The park in question, Prince Alfred Park, is very much used as a thoroughfare for people attending courses in the Redfern area who wish to go back to Central Railway station or to Surry Hills.

15. Taylor Square, Darlinghurst, the offence of the second and third robberies, is a place where many people gather. There are seats for them to sit in, there’s a fountain, great care has been taken by the council to make the area an attractive one, there are lights, there are cafes, there are places of entertainment nearby, and anybody should be able to feel perfectly safe and free of threat and able to sit there at any hour of the day or night.

16. I have no doubt that the fact that he was drinking heavily had a lot to do with these offences. That being said, that does not excuse what was done. Because he is young and it is the first time he has been in a gaol I think there is some reason for some leniency. Normally, it would not be appropriate to make all sentences concurrent. As the prosecution has quite correctly put to me, the offences committed on 15 April, though some hours later, were separate offences and in normal circumstances would require a separate cumulative, or partially cumulative sentence.

17. In this case, because of his youth, because of his very sad background circumstances, because of the attempts he has made to rehabilitate himself, I have decided I am going to give him an exceptionally generous sentence which will be the same for each offence and each sentence will be concurrent. I have done that deliberately, not accidentally, and I have done it recognising that in normal circumstances it would not be correct to do it. But I have done it because in this case I think he should be given some chance at rehabilitation - that should outweigh everything else at this stage. And that chance of rehabilitation, if it is accepted by him, will see him not come back to gaol in the future. If I am wrong, he will be back and regretfully things will get worse and worse for him.

18. In each matter I sentence him to a non-parole period in each case that will commence on 15 April 2009 and will cease on 14 October 2010. The balance will go from 15 October 2010 to 14 April 2013. There will thus be a four year head sentence and effectively a one year six month non-parole period, which is an exceptionally generous non-parole period.

19. I recommend that when he is on parole, the parole authorities should consider finding a rehabilitation facility to place him in for the purpose of dealing with his alcohol problem, which is a marked one. I recommend that when he is in custody he be given access to drug and alcohol programs and anger management programs and literacy programs and education programs. I recommend that the gaol authorities, if they possibly can, return him to Bathurst gaol and permit him to continue to work in the small electrical repair shop.

20. The larger than usual non-parole period should enable an intensive effort to be made to keep him out of trouble, I have to tell you Mr Leglise, when you are released on 14 October 2010, and I direct that you be released on that date. If you go back to what you were doing before and get yourself into any sort of trouble, at all, the parole authority will revoke your parole. And that in all likelihood means you will be required to serve the balance of the term, which is a four year term, in a gaol. That is not absolutely fixed, they have their own discretions, I do not have anything to do with it. The parole officers will help you, if you wish to be helped. They will give you the benefit of programs and assistance, if you wish to be assisted. If you do not, and you want to go back to drinking and robbing, you will be back in gaol again. And, indeed, not only will they revoke the parole and put you back for that, but for what other offence you have committed you will get another sentence and it just gets worse and worse. Now, I have had people before me that have spent most of their adult life in gaol. They have spent twenty-five, thirty years, in and out of gaol. They go in for a couple of years, they come out for a couple of months, they go in for three years, they come out, they go in again, they come out again - and when they are fifty-five they have served already a life sentence in short sentences, all the way till they are fifty-five years. Now, that can be your fate if you just keep offending. It is really up to you to decide. If you do the right thing, you will be released on 14 October this year. The parole authority, although I have said you should be released on that date I directed you be released, they can prevent that if they considered you were for some reason not suitable. Now, I do not think they would do that. You apparently are doing the right thing in the gaol. But you have to continue doing the right thing.

21. I have made recommendations for courses I think will be made available to you as people become able to give them to you, you should take advantage of them when they are offered. I also recommend that you be classified as soon as possible. They may then, when they classify you, put you in a lower security classification. That again depends on your conduct. If they do that there are minimum security sections at Bathurst Gaol.

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