R v Leroy

[2020] NSWDC 239

District Court

New South Wales

Medium Neutral Citation:	R v Leroy [2020] NSWDC 239
Hearing dates:	12 May 2020
Date of orders:	15 May 2020
Decision date:	15 May 2020
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Accused found not guilty.
Catchwords:	sexual fantasy – role playing – machetes and rope - Intimidation in circumstances of aggravation
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007. Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Fleming v The Queen (1998) 197 CLR 250 The Queen v Baden-Clay [2016] HCA 35
Category:	Principal judgment
Parties:	Regina (Crown) Terrance Leroy (accused)
Representation:	Counsel: Mr Pincott(Crown) Mr Tuckey (accused)   Solicitors: Mr Baumgarten(Crown) Ms Harris (accused)
File Number(s):	2019/09589

Judgment

1. HIS HONOUR: On 23 April 2020 Terrence Leroy was arraigned and pleaded not guilty to the following count:

“On 14 July 2019 in Goolgowi in the State of New South Wales did enter the dwelling house of John McGregor, situated at 8 Napier Street, Goolgowi, New South Wales with intent to commit a serious indictable offence therein, namely intimidation in circumstances of aggravation; namely he was armed with an offensive weapon, namely a machete, contrary to s 111(2) of the Crimes Act 1900”.

2. The Crown consented to a judge alone trial. The trial was held before me on 12 May. The parties are commended for their brevity. The trial took less than one hour of court time.

3. The Crown tendered the following statements which formed exhibit 1:

Kevin Costello, 14 July 2019;

John McGregor, 14 July 2019;

Constable Spencer, 17 July 2019;

Constable Taylor, 7 August 2019;

Constable Chard, 30 July 2019;

Constable Milne, 17 August 2019;

Two statements from Constable Moran dated 14 July 2019;

Senior Constable Toering, 26 July 2019;

Senior Constable Jordan, 30 July 2019 with attachments.

There were photographs of the motor vehicle, the combat knife, and a machete.

Three pages of a six page incident log printout.

4. There was no cross-examination of the deponents.

5. The facts are not in dispute. What is to be inferred from those facts is in dispute.

6. The elements of the offence which must be proved by the Crown beyond reasonable doubt are:

1. The accused entered a dwelling house.

2. The accused intended to commit a serious indictable offence. Here it is pleaded as intimidation.

3. The accused did so in circumstances of aggravation. Here it is pleaded that he was armed with an offensive weapon, namely a machete.

7. The facts of the case are unusual. Kevin Costello enjoys sexual fantasies; John McGregor does not. Kevin Costello wanted to be tied up with his underwear on. He wanted a broom handle to be rubbed around his underwear. He was willing to pay $5,000 if it was “really good”. Constable Spencer said he had a history and proclivity for engaging the services of people. I infer from that that this was not the first time Mr Costello had engaged others for the realisation of his fantasies.

8. He made arrangements with a man called John on Facebook for people to engage in the role play. On Monday 8 July 2019 at about 10pm Kevin received a phone call from a male who said he would perform the role play. On Tuesday 9 July he contacted Kevin and told him he had enlisted two other males to assist. Kevin sent his address, which was 35 to 37 Napier Street, Goolgowi, to the male. With the assistance of the Salvation Army Kevin moved from the above address to 8 Mallee Street, Hanwood. He informed the male of his new address. John McGregor lives at 8 Napier Street, Goolgowi.

9. On Sunday 14 July, sometime after 6.15am when he (McGregor) went to the toilet and returned to bed, he saw some light coming from his lounge room. He assumed it was a friend who comes daily to make a coffee. He thought his friend was too early and called out, “Bugger off, it’s too early”. It was not his friend. He heard a voice say, “Is your name Kevin?” Mr McGregor turned on his bedside light and took off his sleep apnoea mask. He saw two men standing next to his bed.

10. He gave the following description of the two men to the police:

“The first man was Indian in appearance, approximately 25 years old, thin build, approximately 180 centimetres tall, clean shaven, short dark hair ... I think he was wearing a dark coloured jacket and light coloured pants ... He was carrying a machete in his right hand ... He was pointing the machete downwards towards the ground. The second man was also Indian in appearance, approximately 25 years old, thin build, approximately 185 centimetres tall, clean shaven, short dark hair. I think he was also wearing a dark coloured jacket and light coloured pants. He was also holding a machete ... in his right hand and was pointing it downwards”.

Mr McGregor then engaged in conversation with the shorter guy.

Short guy, “What’s your name?”

McGregor, “John McGregor”.

Short guy, “Are you sure you are not Kevin as we were told to come to 8 Napier Street and pick up Kevin”.

McGregor, “No”.

Short guy, “Does Kevin live here?”

McGregor, “No”.

Short guy, “Did Kevin ever live here?”

McGregor, “No”.

11. McGregor had lived at the house for 11 years. The men proceeded to leave. The shorter one apologised saying, “Sorry, mate” and shook Mr McGregor’s hand. The taller one said, “Bye”. McGregor saw a VE Holden Commodore parked in his driveway. He contacted the police.

12. At about 7.30am Mr Costello called the male. The male told him he was pulling into 35 to 37 Napier Street, Goolgowi. He told the male that was the wrong address. The correct address was 8 Mallee Street, Hanwood. Mr Costello text the address to the male. 30 to 45 minutes later Mr Costello received a text message which read, “We are here”. He walked out his backdoor and saw a white car parking in his garage. A male got out of the driver’s side and identified himself as Peter. The front passenger was described as “tall, plaits in his black hair, and talked fast”. It was the person Costello had previously spoken to from the telephone. The guy in the back got out of the car and was described as having “a black cap, wearing light brown pants and dark sunglasses on, and I think he had a T-shirt on. He was a bit shorter than the driver and front passenger. They all wore black gloves like what they wear at the hospital”.

13. The front passenger had a name like Jenter (Jamal) and had an accent which was very hard to understand. Mr Costello noticed “great big knife which was on Jamal’s pants”. Mr Costello told Jamal he was not bringing the knife into his house. Jamal put it in the car.

14. Mr Costello and the three men went into his house. They had coffee. The third man, who did not offer his name, requested bacon, eggs and noodles. Mr Costello began to cook for him. Jamal and Peter left the house to go down the street. The third man fell asleep on the couch. About 45 minutes later Jamal and Peter returned. Ten minutes later the police arrived. Mr Costello told the police the men were not from Griffith, “They are from Sydney”. The police told Mr Costello that Jenter’s name was Jamal. The police arrested Jamal. Jamal is Jamal Leroy. Peter said he had driven the two men. Peter is Peter Smith. The Holden is registered to Dennis Smith, who is the father of Peter Smith. Police arrested the sleeping man on the couch, who is the accused, Terrence Leroy. The Holden was searched and police recovered two machetes. They were photographed and appear at photos 7, 8 and 12.

15. On the undisputed facts before me two issues arise. First, can the Crown prove beyond reasonable doubt that the accused was one of the men who entered John McGregor’s home with a machete? Second, if yes, can the Crown prove beyond reasonable doubt that upon entry to the home it was the intention of the accused to intimidate John McGregor?

16. The answer to the first question is yes.

17. The answer to the second question is no.

IDENTIFICATION

18. I am satisfied beyond reasonable doubt that the accused entered John McGregor’s house with a weapon in his hand. I am so satisfied as a result of the following:

1. Costello had engaged the services of three people for his fantasy to come to fruition.

2. At approximately 6.15am two men entered McGregor’s house carrying machetes.

3. The two men leave the house and are driven away by a third man in a Commodore.

4. A Holden Commodore arrives at Mr Costello’s house. There are three occupants. The driver introduces himself as Peter.

5. One of the passengers, Jamal Leroy, had “a great big knife” on his pants. He was told not to bring it into the house. He put it in the car.

6. Police found that knife and the second machete in the car.

7. The accused entered Costello’s house, requested food, and went to sleep on the couch.

19. I infer from those established facts that Peter, not Jamal or Terrence, was the driver of the Holden that left Mr McGregor’s house after two men had been inside. Those men were armed and the weapons were subsequently recovered from the car at Mr Costello’s house. I infer that when Peter arrived at Costello’s house he had the same passengers in his car when he left Mr McGregor’s house. They were the same two men he had driven from Sydney. One of the passengers was Jamal Leroy who had a great big knife. The second passenger was Terrence Leroy, the accused.

20. The purpose of the three to go, it would appear mistakenly to Mr McGregor’s home, was to see Mr Costello. The purpose of going to Costello’s house after McGregor’s house was to see Mr Costello. There would be no other reason for three different people to have that purpose and drive a Holden Commodore as described by Mr McGregor and Mr Costello. It is not a coincidence.

21. I also rely upon the finding of the two machetes in the car as proof of the identity of the accused. There is a combination of purpose, proximity between houses, same make of car, and the finding of weapons that leads me to conclude that the accused was one of two people to enter Mr McGregor’s house. He was not the driver. Peter Smith is the driver and is excluded as a person who entered the house.

22. Can the crown prove beyond reasonable doubt it was the intention of the accused to intimidate John Mcgregor?

Crown Submissions

23. The Crown accepts that three men went to the wrong address. The Crown submits that there was an agreement to perform services as requested by Costello. It says that the accused went beyond that agreement and engaged in acts of intimidation. It relies upon two men entering the house with weapons, and at a later point wearing gloves. The Crown asks rhetorically, why did they need to take knives if the agreement was to tie a man up in his underpants? The Crown submits that they were armed with knives with the intention of intimidating Mr Costello. The Crown says that the use of knives for roleplaying is not a reasonable inference. It submits that such an inference is mere conjecture and not a reasonable inference: The Queen v Baden-Clay [2016] HCA 35 at [46] - [47]. The Crown referred me to the definition of “intimidation” contained in s 7 of the Crimes (Domestic and Personal Violence) Act 2007.

Accused’s Submissions

24. Mr Tuckey, who appears on behalf of the accused, submitted that the Crown must exclude all reasonable possibilities. He submitted that if I found it was the accused that entered, which I have so found, then that entry was for a non-criminal purpose. It was a commercial agreement to tie up and stroke a semi-naked man in his underpants with a broom. Entry was not with intent to intimidate. He submits that this is borne out by the interaction of the three men with Mr Costello. When they met him they were not hostile towards him. They were compliant and did not bring the knife into the house; it was placed in the car.

Consideration

25. I am satisfied of the following:

1. Kevin Costello engaged the services of three gentlemen to make his fantasy of being tied up in his underpants and stroked by a broom to come to fruition. They were to be paid $5,000.

2. Peter Smith drove a Holden Commodore from Sydney to central New South Wales with the accused and one other man.

3. The three men went to the house of John McGregor by mistake.

4. The accused and one other man entered the house. Smith remained in the car.

5. At the time of entry both the accused and the other man had in their hands machetes. The machetes were pointed towards the ground.

6. They conversed with Mr McGregor and discovered he was not Kevin Costello. They were polite and respectful to Mr McGregor.

7. The shorter person apologised to Mr McGregor saying, “Sorry mate” and shook Mr McGregor’s hand. The taller one said, “Bye”. There was no allegation either man was wearing gloves.

8. The three men left in the Holden Commodore to find Kevin Costello.

9. They went to Kevin’s house. They did not intimidate him, they had coffee together, and Costello commenced to cook food for the accused who fell asleep on the couch.

10. When Costello saw “a great big knife” on Jamal’s pants he told Jamal not to bring it into the house. Jamal complied and placed it in the car where it was subsequently found by the police.

11. The three had with them the trappings to bring the drama to fruition. There were machetes, and Smith was seen to have a coiled up black rope when police attended.

12. The wearing of gloves at Costello’s house, and the absence of them at McGregor’s house, is consistent with wearing gloves due to the temperature in winter in central New South Wales, not intimidation.

26. I have some suspicion about what was meant when one of the men said to Mr McGregor, “Are you sure you’re not Kevin, as we were told to come to 8 Napier Street and pick up Kevin?” However, suspicion plays no part in the criminal law and cannot displace proof beyond reasonable doubt.

27. The Crown has not excluded as a reasonable possibility that when the accused entered Mr McGregor’s house he did so pursuant to a lawful plan to carry out a sexual fantasy. They carried the machetes either as a prop or something to use in that fantasy. The fantasy was unscripted and there was discretion as to how it would be carried out.

28. I find the accused not guilty.

29. In compliance with s 133(2) of the Criminal Procedure Act, and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I have applied the following principles of law in coming to my decision:

1. Onus and standard of proof.

2. Inferential reasoning.

3. Circumstantial evidence.

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Decision last updated: 11 June 2020