R v Leal

[2020] NSWDC 810

District Court

New South Wales

Medium Neutral Citation:

R v Leal [2020] NSWDC 810

Hearing dates:

7 October 2020

Decision date:

07 October 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of three years four months. Non parole period of two years.

Catchwords:

CRIME- robbery while armed with a dangerous weapon

SENTENCING - relevant factors on sentence - early guilty plea - on parole – prior offending of similar type - background of disadvantage – substance abuse problems - multiple mental health issues - crossroads case - special circumstances - release to parole must be earned

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

R v Henry (1999) 46 NSWLR 346

Category:

Sentence

Parties:

Trevor Leal (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr S Fraser, Public Defender (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Mr L McGonigal (for Director of Public Prosecutions)

File Number(s):

2020/00062097

SENTENCE – ex tempore revised

Introduction

1. On 25 February 2020 Trevor Leal and his friend Michael Black committed a serious crime - robbery while armed with a dangerous weapon. As a consequence, Leal, who was on parole at the time, has had his parole revoked and is facing another lengthy sentence with a maximum penalty of 25 years imprisonment. As a consequence of his arrest and imprisonment, Michael Black is now dead. He was stabbed to death in the AVL room of a gaol.

2. Judges are told time and time again to impose harsh sentences for armed robbery offences in an attempt to deter people such as Leal and Black from committing such offences. Sentencing Judges must give effect to principles of general deterrence. But time and time again they also note that for people like Leal and Black, who do not think through the consequences of their actions, their pronouncements, and those of the NSW Court of Criminal Appeal, seem to fall on deaf ears.

3. This is because Leal, like his friend the late Mr Black, did not think through the consequences of their actions beyond their short sighted action of disguising themselves and going to, in this case, a Post Office, to confront the shop attendant with weapons. As will become clear, like many other offenders, Leal was not particularly capable of thinking through the consequences of his actions.

4. The two men were caught that afternoon because a community-minded citizen alerted police to suspicious activity he noted at the home where they retreated following the robbery. Leal was arrested almost immediately. He has been in custody ever since and he will spend a further period in custody.

Facts for sentence

5. The robbery occurred at the Berkeley Post Office. Both men were disguised by a mask and dark clothing. One was wielding a knife. The other had an air pistol that looked like a pistol capable of firing a bullet. The owner of the shop was not to know that it was an air pistol. In any event, an air pistol can cause injury. Leal had been photographed with the pistol immediately prior to the offence. It is not clear on the facts which offender did what in the Post Office. It does not make a difference who held which weapon or who jumped the counter; both robbers were equally culpable.

6. The Post Office owner was conducting a business; providing a valuable public service to the people of Berkeley. Having been confronted and threatened, having secured the time lock on the safe, he retreated but he was not to know whether the weapons would be used against him and whether this was his last minute on the earth.

7. Courts do not ignore the personal impact of robberies such as this. Courts do not ignore the other consequence to small businesses. The amount taken, $1,000, would have had an impact on his business. It was not a significant sum, but nevertheless, actions such as this cause people to question whether they should provide services such as Post Offices in local communities. If those services are not provided, the community as a whole suffers.

8. Armed robbery also causes a general problem in the community. We learn to fear, not to trust each other. If we do not trust each other, we are not a community. For that reason, Leal must be removed from the community for a substantial period. He has shown by his actions that he is not fit to take his part in the community. At the same time, he has to be returned to the community after his punishment is served.

The offender

9. Leal’s past gaol terms have not left him with the resources to avoid future crime. If he takes advantage of this sentence, if he takes advantage of the support he has from his sister and others in the community, if he uses his time in custody and earns parole, he may have an opportunity of changing and turning his life around.

10. Parole will have to be earned. It is not automatic. He could spend the entire sentence in custody. He will not be released unless the State Parole Authority believes it is in the interest of community safety that he be released. It must be recognised that with a background such as his, which unfortunately started with armed robbery offences committed while a juvenile, if he does not turn his life around, he can look forward to spending most of his life in adult custody.

11. His record does not entitle him to leniency but it helps explain the man that is presently before the Court. He was on parole when he committed this offence. There must be some independent punishment for the breach of parole, and his breach of parole aggravates the sentence that I must impose. That said I have to be careful to avoid double-counting matters that could increase the sentence.

12. In the circumstances here, however, there will be some accumulation. He entered custody 25 February 2020. His formal breach of parole occurred in March but was taken to have commenced on that 25 February date. It went to the 22 April, just under two months. I intend to start this sentence from 22 April 2020.

13. Leal was released to parole with referrals to the Illawarra Drug and Alcohol Service and Headspace. His particular problems were noted then as heroin and methylamphetamine use. If he had done what he was asked, he would not be in the position he is today.

14. I am indebted, as always, to Ms Van De Velde, psychologist, for her comprehensive report. Although not supported by evidence on oath, it is not controversial. Her opinions seem soundly based on her testing and her professional expertise. They can be accepted.

15. In short summary: she notes a history as a child of witnessing physical abuse towards his mother and of problematic alcohol use and abuse and neglect. Leal was the victim of sexual abuse in his early teens. His subsequent illicit drug and substance abuse, anxiety, depression and trauma-related symptoms and offending behaviour all can account for and help explain what she refers to as “problematic personality traits leading to a number of comorbid disorders.” Ms Van De Velde lists and details those disorders in her Report; stimulant use, stimulant use disorder, opioid use disorder, post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder and antisocial personality disorder.

16. She notes Leal’s comments about his offending behaviour: while in custody he was prepared to express regret, shame and remorse, he also stated frankly that at the time he “Didn’t give a fuck”. He did not care about himself, his children, his partner or his victim.

17. Leal has two children. He professes to still have a relationship with the mother of his younger daughter and they have frequent AVL visits; actual visits having been prohibited because of the COVID pandemic. He notes the impact of the death of Mr Black upon him. The report notes the assistance offered by his sister, who is here today with family and friends to support him.

18. Ms Van De Velde concludes that Leal is at a medium/high risk of reoffending, but that programs can be put in place to manage and decrease his risk of committing further offences. In particular, he needs help motivating himself to act in his own best interests and the interests of his family. He needs to engage in drug and alcohol relapse prevention and, if possible, cognitive behaviour therapy. Psychiatric consultation and medication may help treat what she determines is his ADHD. As he has never really contributed to society, he will need vocational education and help learning employment skills.

Submissions

19. The oral and written submissions before me from Mr Fraser, Public Defender, and Mr McGonigal, solicitor for the Director, set out all the relevant matters, although I have referred to them only briefly I have taken them into account. Both put emphasis, appropriately, on the guidance offered by the decision of Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. Both note the individual nature of the sentencing exercise and the need to sensitively take into account Leal’s upbringing, background and the impact of that upbringing and background and deprivation on his moral culpability for offending such as this.

20. As Mr McGonigal says, quoting the High Court in Bugmy v The Queen (2013) 249 CLR 571:

"An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated, such that the offender’s moral culpability for the inability that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from an offender, and the community must be protected from the offender by his removal from it for a minimum period”.

21. I have sought to assess the minimum period that must be spent in custody by reference to what was done and other relevant factors. It is accepted that special circumstances will apply to that minimum period, but as I have said, release to parole must be earned.

Synthesis

22. The time has not yet come to throw away the key, but there must be a substantial minimum period spent in custody and a substantial period allowed for time on parole. But I can say this: that given Leal’s record to date, the time will come, if there is further offending of this nature, that the only way the community can be protected from him is to remove him from it for a very substantial period. I hope he understands that. I hope he takes advantage of the relative leniency that I intend to extend to him.

23. Leal is at a crossroads in his life. If he takes the opportunities offered, he may be able to turn his life around and become a father to his children. If he decides that the best way of coping with what life has dealt him is a return to drugs, this will mean inevitably committing offences and more time in gaol. He knows well the consequences of drug abuse and further crime. Gaols are, as he is well aware, nasty, violent places, but if wants to spend the rest of his life there, the choice is his.

24. I allow a reduction in the otherwise appropriate sentence of 25% because of the early guilty plea’s utilitarian value.

25. I will do my best to give effect to the submissions put to me. I take account of the maximum penalty and the guidance offered by decisions of the Court of Criminal Appeal. I give full weigh to Leal’s relative youth and what are commonly called Bugmy factors and the mental illness matters raised by Ms Van de Velde. Synthesising all of those relevant matters, had it not been for the plea of guilty there would have been a sentence of four years and six months’ imprisonment.

Orders

26. The term of the sentence is three years and four months. To give effect to my finding of special circumstances, there will be a non-parole period of two years. That will be accumulated on his balance of parole. It will start on 22 April 2020. He will be eligible for consideration for release to parole on 21 April 2022. The balance of the term of one year and four months will expire on 21 August 2023.

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Decision last updated: 14 January 2021