Legal Research
Cases
R v Leroy

R v Leroy

Case [2023] NSWDC 457 16 November 2023

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v LEROY [2023] NSWDC 457
Hearing dates: 20 October 2023
Date of orders: 16 November 2023
Decision date: 16 November 2023
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragaphs [69] - [74]

Catchwords:
CRIME – SENTENCING – robbery whilst armed with gel blaster – service station – committed whilst on parole for earlier offence - co-offender accessory after the fact identified offender to police – plea of guilty - significant mental health and substance abuse issues

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v the Queen [2013] HCA 37
Di Simoni v The Queen
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Moiler v R [2021] NSWCCA 73
Moiler v R [2021] NSWCCA 73
R v Di Simoni (1981) 147 CLR 383
R v Millwood [2012] NSWCCA 2

Category: Sentence
Parties: Rex
Zack LEROY
Representation:
Counsel:
Mr P Kerr for the Director of Public Prosecutions
Mr J Leaver for the Offender
Solicitors:
Ms G McKenzie, Office of the Director of Public Prosecutions
Ms T Mudditt, Legal Aid Commission of NSW

File Number(s): 2022/00270306, 2023/00113988
Publication restriction: No

Judgment

The offender was committed for sentence from the Local Court at Wagga Wagga on 23 June 2023 in respect of a charge that he:

On 31 August 2022 at Junee in the State of New South Wales, did rob Mark Jennings and Vanessa George of certain property, namely $647.15 and a cash register the property of Vantage Fuels Pty Ltd whilst being armed with an offensive weapon, namely a gel blaster.

The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 20 October 2023 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The offence for which the offender appears for sentence is contrary to s 97(1) of the Crimes Act, 1900 and carries a maximum penalty of 20 years imprisonment. Although there is no standard non-parole period specified in respect of the offence the Court will need to consider the Guideline Judgment in R v Henry & Ors (1999) 46 NSWLR 346.
The offender asks that when passing sentence, the court takes into account a charge of Dishonestly Obtain Financial Advantage by Deception contrary to s 192E(1)(b) of the Crimes Act which attaches to a Form 1 document. In passing sentence I will need to apply the principles enunciated by the Court of Criminal Appeal in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002, otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 156. That matter will have some impact on the ultimate sentence to be imposed but that impact will essentially be minimal.

Facts

The facts are before the court by way of a statement of agreed facts contained at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Leroy

Details

AGLC: R v Leroy [2023] NSWDC 457
Case: [2023] NSWDC 457
Decision Date: 16 November 2023

CaseChat Overview and Summary

Leroy was charged with robbery committed at a service station whilst armed with a gel blaster. The matter came before the court on the basis of a plea of guilty. Leroy had been on parole at the time of the offence for an earlier offence. His co-offender, who acted as an accessory after the fact, later identified Leroy to the police. Leroy had significant mental health issues and a history of substance abuse. The court was required to consider the nature of the offence, the circumstances in which it was committed, Leroy’s criminal history and his personal circumstances in determining an appropriate sentence.

The primary legal issues the court needed to address included the appropriate sentencing principles to apply, the relevance of Leroy’s prior convictions and parole status, the factors indicating a high risk of reoffending, and the need to consider Leroy’s mental health and substance abuse issues in the sentencing process. The court had to balance the need for punishment and deterrence against the need to rehabilitate Leroy and protect the community.

In determining the sentence, the court first considered the severity of the offence. The use of a gel blaster, albeit not a firearm, contributed to the seriousness of the crime as it created a perception of a lethal weapon. The court also took into account Leroy’s criminal history, including his earlier offence for which he was on parole at the time of the current offence, and the fact that his co-offender identified him to the police. The court found that Leroy’s mental health and substance abuse issues significantly contributed to his offending behaviour but did not mitigate the seriousness of the crime. The court ultimately decided that a custodial sentence was necessary to adequately address the seriousness of the offence and the risk of reoffending. Leroy was sentenced to a term of imprisonment, with specific details provided in paragraphs [69] to [74] of the judgment.

The court made several orders, including the imposition of a custodial sentence, a non-parole period, and directions for Leroy’s mental health and substance abuse treatment while in custody. The specific details of the sentence and associated orders can be found in paragraphs [69] to [74] of the judgment.

Orders

Orders of the court

Sentenced – see paragaphs [69] - [74]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Leroy [2023] NSWDC 457

Most Recent Citation

R v Jabal [2020] ACTSC 230

Cases citing this decision · 21 of 21 shown

R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R
[2022] NSWCCA 24 Para 236

…offender’s good character played a role in their ability to commit the offence are those involved in drug trafficking: see, for example, R v Leroy (1984) 2 NSWLR 441 and R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106. In R v Leroy , Street CJ observed that some offenders in the chain of drug trafficking are s…
R v Mousa
[2021] NSWDC 799 Para 29

…is of little or no relevance where couriers and people of that kind are often recruited because they do not have criminal antecedents: see Leroy v R (1984) 2 NSWLR 441 per Street CJ at 446.…
Udunna v R (Cth)
[2020] NSWCCA 304 Para 1

…offences involving the importation and distribution of drugs require a high degree of emphasis on requirements of general deterrence ( R v Leroy (1984) 2 NSWLR 441);…
R v Jabal
[2020] ACTSC 230 Para 1

…, it was submitted that good character carries less weight in drug offences than in most others: R v Cheikh [2004] NSWCCA 448 at [50] and R v Leroy (1984) 2 NSWLR 441 ( Leroy ).…
R v Bittner; R v Martinez
[2020] NSWDC 292 Para 32

…the case that the lack of a criminal record may have less significance for a drug trafficking offence than for some other fields of crime (R v Leroy (1984) 2 NSWLR 441), it is submitted by the offender that his very limited criminal record (at 59 years of age) would justify mitigation of his sentence. It is submitte…
Tran and Minister for Immigration and Border Protection (Migration)
[2018] AATA 2093 Para 13

…rity that the absence of a prior criminal record carries less weight in relation to drug courier offences than in other areas of criminal law.[13] In R v Leroy (1984), the Court held that: This court and other criminal courts have said on many occasions that, in the drug trafficking particular, the circumstances th…
R v Yuan
[2015] NSWCCA 198 Para 77

…s who, it is said, are chosen because their lack of criminal history will make it less likely that they will be detected: see, for example, R v Leroy (1984) 2 NSWLR 441 at 446–447. In R v Brown [1999] NSWCCA 323, it was said:…
R v Ricky Gaganjot Singh
[2014] NSWDC 135 Para 1

…ly to be given less weight as a mitigating factor on sentence than for many other offences, R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]; R v Leroy (1984) 2 NSWLR 441 at [446]-[447]. This principle is of particular relevance in relation to drug couriers where persons with clear records are selected so as not to att…
Athos v R
[2013] NSWCCA 205

…Crim R 267 R v Howard [2004] NSWCCA 348 R v llbay [2000] NSWCCA 251 R v Kennedy [2000] NSWCCA 527 R v Kollas and Mitchell [2002] NSWCCA 491 R v Leroy (1984) 2 NSWLR 441 R v Najam [2008] NSWCCA 32 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 Application by the Attor…
R v Cooper
[2012] ACTCA 9 Para 1

…of general deterrence can outweigh the need to give an offender credit for their good character in sentencing, for example: drug couriers ( R v Leroy (1984) 2 NSWLR 441 at 446-447), white collar offenders ( R v Rivkin [2004] NSWCCA 7 at 410) and those who commit child sexual offences ( Ryan v R (2001) 206 CLR 267 at…
R v Viana
[2008] NSWCCA 188

…e Queen [2008] NSWCCA 121 The Queen v De Simoni (1981) 147 CLR 383 R v Barrentos [1999] NSWCCA 1 R v Huang, R v Siu (2007) 174 A Crim R 370 R v Leroy (1984) 2 NSWLR 441 R v Z [2006] NSWCCA 342 Regina v Wall [2002] NSWCCA 42 PARTIES: Regina John Paul Viana FILE NUMBER(S): CCA 2006/12673 COUNSEL: Mr D Staehli SC (Appel…
R v Fowler
[2007] ACTCA 4 Para 1

…tions of trust with access to other people’s money. A similar approach has been taken in the case of offences involving drug couriers. In R v Leroy (1984) 2 NSWLR 441, Street CJ, with whom Glass JA and Yeldham J agreed, observed (at 446-7) that:…
Vu v R
[2006] NSWCCA 188 Para 32

…In Regina v. Leroy (1984) 13 A. Crim. R. 469 at 474, Street, CJ. stated:- “This Court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields o…
R v Gent
[2005] NSWCCA 370

…lland v The Queen [2005] WASCA 140 R v Stroempl (1995) 105 CCC(3d) 187 R v Jones (1999) 108 A Crim R 50 Ryan v The Queen (2001) 206 CLR 267 R v Leroy (1984) 2 NSWLR 441 Weininger v The Queen [2003] 212 CLR 629 R v Levi (NSW Court of Criminal Appeal, 15 May 1997, unreported, BC9703123 per Gleeson CJ) R v Smith (1982)…
R v Mirzaee
[2004] NSWCCA 315

…r to avoid attracting suspicion in relation to those who carry those substances across immigration and customs barriers upon their behalf. (See Leroy (1984) 2 NSWLR 441 at 446/7, and Lawson, Wu and Thapa (1997) 98 A Crim R 463.) (b) The subjective circumstances of an offender standing for sentence need to be kept in…
R v Emanuel
[2004] NSWCCA 267 Para 1

…In R v Leroy (1984) 13 A Crim R 469 at 474, Street CJ held: This Court and other criminal courts have said on many occasions that, in the drug traffic, in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, thos…
Tramontano v The Queen
[2002] NTCCA 4 Para 8

…g importations, usually select such persons as couriers as they are likely to attract less attention with customs and immigration officers: see Leroy (1984) 2 NSWLR 441 at 446-7; R v Warfield (1994) 34 NSWLR 200 at 203; R v Klein [2001] NSWCCA 120 at par [24]. This may be a logical approach if one starts with sentenc…
R v Doney
[2001] NSWCCA 463

…89) 167 CLR 259 R v Pedrana [2001] NSWCCA 66 Mickelberg v The Queen (unreported, CCA, Supreme Court of Western Australia, 12 February 1999) R v Leroy (1984) 2 NSWLR 441 Grayden v The Queen (1989) WAR 208 Medina v The Queen (1990) 3 WAR 21 Adami v The Queen (1959) 108 CLR 605 DECISION: (1) Appeal upheld (2) Conviction…
R v Klein
[2001] NSWCCA 120

…R v Gallagher (1991) 23 NSWLR 220 R v Laurentiu and Becheru (NSW CCA 1 October 1992); R v Lawson, Wu and Thapa (NSW CCA 12 December 1997); R v Leroy (1984) 2 NSWLR 441; R v Stead 99 NSW CCA 4; R v Wong (1999) 48 NSWLR 340; R v Zayat (NSW CCA 22 November 1996). DECISION: Appeal dismissed.…
R v Meggett
[1999] NSWSC 606

…ent for offences of the kind with which I am now concerned. That is, for the reasons explained in Leroy (1984) 2 NSWLR 441 at 466-467, Ferrer-Esis (1991) 55 A Crim R 231 at 238, Chai (1992) 27 NSWLR 153 at 201, and Smith (Court of Criminal Appeal New South Wales 20 August 1998). 31 The fact that the prisoner will be…
R v Blanco
[1999] NSWCCA 121

…. (4) Age and prior character are of less significance when offences of this kind are before the court. Ferrer-Esis (1991) 55 A Crim R 231; Leroy (1984) 2 NSWLR 441; Chai (1992) 60 A Crim R 305; Smith (NSWCCA, 20 August 1998, unreported); Budiman (NSWCCA, 8 September 1998, unreported), considered. (5) There was no su…

View all 21 citing cases →

Cases cited in this decision · 6 of 6 shown

Moiler v R
[2021] NSWCCA 73 Para 45

…[177]-[178] still have an important role to play in the sentencing exercise. Counsel relied heavily in this regard on the decision in Moiler v R [2021] NSWCCA 73. In that decision Button J (Basten JA agreeing with brief additional comments, Davies J agreeing) said at [58]-[62]:…
Bugmy v The Queen
[2013] HCA 37 Para 52

…Clearly, given the history given to Dr Ellis, the principles enunciated by the High Court in Bugmy v the Queen [2013] HCA 37 are enlivened to a meaningful extent, again reducing the offender’s moral culpability. In this regard I note the exposure to drug-related activity as a child, separation of his parents, hi…
R v Millwood
[2012] NSWCCA 2 Para 54

…In this regard I also note the decision in R v Millwood [2012] NSWCCA 2 and in particular the judgment of Simpson J (as her Honour then was) at [69] of that decision.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 45

…impulses and consider the consequences of his actions, the principles relating to the offender suffering mental illness in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] still have an important role to play in the sentencing exercise. Counsel relied heavily in this regard on the decision in Moiler v R [2021…
R v Henry
[1999] NSWCA 111 Para 3

…there is no standard non-parole period specified in respect of the offence the Court will need to consider the Guideline Judgment in R v Henry & Ors (1999) 46 NSWLR 346.…
R v De Simoni
[1981] HCA 31 Para 19

…he weapon that was used in the robbery fulfils the description of a dangerous weapon. However, because of the effect of the decision in R v De Simoni (1981) 147 CLR 383 the court is effectively prevented from taking into account the fact that a replica pistol was used in the robbery. I observe, for what it is worth,…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 20)

Medium Neutral Citation:	R v LEROY [2023] NSWDC 457
Hearing dates:	20 October 2023
Date of orders:	16 November 2023
Decision date:	16 November 2023
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragaphs [69] - [74]
Catchwords:	CRIME – SENTENCING – robbery whilst armed with gel blaster – service station – committed whilst on parole for earlier offence - co-offender accessory after the fact identified offender to police – plea of guilty - significant mental health and substance abuse issues
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v the Queen [2013] HCA 37 Di Simoni v The Queen DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Moiler v R [2021] NSWCCA 73 Moiler v R [2021] NSWCCA 73 R v Di Simoni (1981) 147 CLR 383 R v Millwood [2012] NSWCCA 2
Category:	Sentence
Parties:	Rex Zack LEROY
Representation:	Counsel: Mr P Kerr for the Director of Public Prosecutions Mr J Leaver for the Offender Solicitors: Ms G McKenzie, Office of the Director of Public Prosecutions Ms T Mudditt, Legal Aid Commission of NSW
File Number(s):	2022/00270306, 2023/00113988
Publication restriction:	No