R v Lucas - [2018] NSWDC 480

District Court

New South Wales

Medium Neutral Citation: R v Lucas [2018] NSWDC 480
Hearing dates: 30 May 2018; 28 September 2018
Decision date: 28 September 2018
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
SEQ 002:
Form 1 matters (SEQ 003, 006, 007) taken into account.
Convicted.
Special circumstances found: background, need for a longer period on parole to address his drug use & criminal offending, and assist in rehabilitation and return to a lawful life in the community.
Sentenced to a total term of imprisonment of 6 years and 5 months, comprising a NPP of 4 years and 5 months to commence on 4 July 2016 and to expire on 3 December 2020, and a balance of term of 2 years to commence on 4 December 2020 and expiring on 3 December 2022.
Eligible for release to parole on 3 December 2020.

Catchwords: CRIME – sentence - robbery while armed with dangerous weapon, sawn-off .22 rifle – larceny – joint criminal enterprise – parity - home invasion - subjective matters – deprived background - extensive history of illicit drug use – criminal history – mental health problems
Legislation Cited: Crimes Act 1900
Cases Cited: Bugmy v the Queen (2013) HCA 37
Callaghan v R [2006] NSWCCA 58
R v Fernando (2002) NSWCCA 28
R v Huynh (2003) NSW CCA 239
R v McVittie (2002) NSW CCA 344
R v Moffatt (1990) 20 NSWLR 114
Category: Sentence
Parties: Regina
Robert Henry Lucas
Representation:
Counsel:
Defence: Mr B Walsh
Solicitors:
Crown: Mr J Gibson

File Number(s): 2016/00003600

Judgment

HIS HONOUR: Robert Lucas appears for sentence in respect of a single offence, being robbery armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900. The maximum penalty provided is 25 years and there is no standard non-parole period.
In addition, he asks, when being dealt with in respect of that offence, to have taken into account a further three offences, the first being robbery armed with a dangerous weapon, in respect of which when dealt with alone the maximum penalty is 25 years imprisonment, and two further offences of larceny. In respect of each of those there is a maximum penalty of five years when dealt with alone.
All of the offences were committed on 26 December 2015. He was arrested on 4 January 2016 and has been in custody since that time.
However, from 4 January 2016 until 26 February 2017, he has been serving the balance of parole, having been on parole at the time of committing these offences. From 27 February 2017, he has been in custody only in relation to these offences.
The facts are as follows:
On the evening of 25 December 2015, the victims, Jordan Khatter and Zac Cubbin, Caleb Pholi and Brett Caughlan, were all inside Unit 2, 27 Moad Street, Orange.
At about 4am most of the victims had gone to bed and were either sleeping or about to go to sleep. Khatter and Cubbin were about to go to…

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 Lucas

Details

AGLC: R v Lucas [2018] NSWDC 480
Case: [2018] NSWDC 480
Decision Date: 28 September 2018

CaseChat Overview and Summary

The appellant, Lucas, was convicted of a series of offences including robbery while armed with a dangerous weapon, specifically a sawn-off.22 rifle, and various counts of larceny. The crimes were committed in the context of a joint criminal enterprise, during a home invasion. The case was heard by the court of appeal which reviewed the sentence handed down by the lower court. The main issue before the court was whether the original sentence imposed was appropriate, taking into account the special circumstances of the appellant's background, criminal history, and mental health problems.

The court acknowledged that Lucas's background was marked by significant adversity, including a deprived upbringing, extensive history of illicit drug use, and a lengthy criminal record. The court considered these factors as special circumstances which warranted a degree of leniency. The appellant's mental health problems were also taken into account, as they were deemed to have contributed to his offending behaviour. Despite the severity of the crimes, the court found that a sentence of total imprisonment of 6 years and 5 months, with a non-parole period of 4 years and 5 months, was appropriate given the mitigating factors. The balance of the term was set to expire on 3 December 2022.

The appeal was ultimately dismissed, and the sentence was affirmed. The court held that the original sentence was just and appropriate, considering all the circumstances of the case. Lucas was found eligible for release to parole on 3 December 2020, with the hope that the extended period on parole would provide the necessary support and rehabilitation to address his drug use and criminal behaviour, and facilitate his reintegration into society.

Orders

Orders of the court

SEQ 002:

Form 1 matters (SEQ 003, 006, 007) taken into account.

Convicted.

Special circumstances found: background, need for a longer period on parole to address his drug use & criminal offending, and assist in rehabilitation and return to a lawful life in the community.

Sentenced to a total term of imprisonment of 6 years and 5 months, comprising a NPP of 4 years and 5 months to commence on 4 July 2016 and to expire on 3 December 2020, and a balance of term of 2 years to commence on 4 December 2020 and expiring on 3 December 2022.

Eligible for release to parole on 3 December 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Lucas [2018] NSWDC 480
Hearing dates:	30 May 2018; 28 September 2018
Decision date:	28 September 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	SEQ 002: Form 1 matters (SEQ 003, 006, 007) taken into account. Convicted. Special circumstances found: background, need for a longer period on parole to address his drug use & criminal offending, and assist in rehabilitation and return to a lawful life in the community. Sentenced to a total term of imprisonment of 6 years and 5 months, comprising a NPP of 4 years and 5 months to commence on 4 July 2016 and to expire on 3 December 2020, and a balance of term of 2 years to commence on 4 December 2020 and expiring on 3 December 2022. Eligible for release to parole on 3 December 2020.
Catchwords:	CRIME – sentence - robbery while armed with dangerous weapon, sawn-off .22 rifle – larceny – joint criminal enterprise – parity - home invasion - subjective matters – deprived background - extensive history of illicit drug use – criminal history – mental health problems
Legislation Cited:	Crimes Act 1900
Cases Cited:	Bugmy v the Queen (2013) HCA 37 Callaghan v R [2006] NSWCCA 58 R v Fernando (2002) NSWCCA 28 R v Huynh (2003) NSW CCA 239 R v McVittie (2002) NSW CCA 344 R v Moffatt (1990) 20 NSWLR 114
Category:	Sentence
Parties:	Regina Robert Henry Lucas
Representation:	Counsel: Defence: Mr B Walsh Solicitors: Crown: Mr J Gibson
File Number(s):	2016/00003600