R v Tanswell; R v Leilua

[2025] NSWDC 178

District Court

New South Wales

Medium Neutral Citation:

R v Tanswell; R v Leilua [2025] NSWDC 178

Hearing dates:

26 September and 20 December 2024

Decision date:

19 May 2025

Jurisdiction:

Criminal

Before:

Colefax SC DCJ

Decision:

For Mr Tanswell: Incidents 1 to 5 - aggregate term of imprisonment of 6 years 8 months - no special circumstances - non-parole period of 5 years.

For Mr Leilua - Incidents 1 to 5 - aggregate term of imprisonment of 6 years 2 months - special circumstances - non parole period of 4 years - s166 Certificate offence - conviction entered but no other penalty.

Catchwords:

CRIMINAL - SENTENCE - robbery in company - dishonestly obtain a financial advantage by deception - expert witnesses - non compliance the Expert Code of Conduct - consequences - Parity - Special circumstances.

Legislation Cited:

Crimes Act 1900 (NSW): ss97(1), 192E(1)(b); Firearms Act 1996 (NSW): S65(3); Court Suppression and Non Publication Act 2010 (NSW): s8(a), (d) and (e); Crimes (Sentencing Procedure) Act 1999 (NSW): s10A; Uniform Civil Procedure Rules 2005 (NSW): schedule 7.

Cases Cited:

R v Henry (1999) 46 NSWLR; Vakauta v Kelly (1989)167 CLR 568; R v Fitzroy (a pseudonym) [2020] NSWDC 218); R v Kaplantzi [2023] NSWDC 42; R v Bojcevski; Birkic; Drenovac [2024] NSWDC 299; R v Al-Mansoori [2024] NSWDC 466; Bugmy v The Queen [2013] HCA 37; DPP (Cth) v De La Rosa [2010] NSWCCA 194; R v GWM [2012] NSWCCA 240; Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279; Roads and Traffic Authority (NSW) v Barrie Toepfer Earthmoving Land Management Pty Ltd (No 3) [2012] NSWSC 937; Bechara v DPP, unreported, 14 May 2025 matter No: 2024/00274154

Category:

Sentence

Parties:

Rex (Crown)

Andrew James Tanswell (Offender)

George Phoenix Leilua (Offender)

Representation:

Ms Marquard -Karp (ODPP Parramatta)

Mr Eurell (Counsel for Mr Tanswell)

Mr Cassells (Counsel for Mr Leilua)

File Number(s):

2023/00193383; 2023/00193393

Publication restriction:

Non-publication order of the name of each of the five victims and any other matter which might identify any of them, directly or indirectly

judgment

1. Andrew James Tanswell and George Phoenix Leilua, you both appear for sentence in relation to five principal offences of robbery in company which you committed together in the period 29 May 2023 to 15 June 2023 inclusive and which arose from five discrete incidents. Each of those incidents involved a different victim.

2. On the Court’s own initiative, and pursuant to s8(a), (d) and (e) of the Court Suppression and Non-Publication Act 2010 (NSW), I make a non-publication order of the name of each of those five victims and any other matter which might identify any of them, directly or indirectly.

3. Each of those five principal offences involved a contravention of s97(1) of the Crimes Act 1900 (NSW).

4. The maximum penalty for each principal offence is 20 years imprisonment. There is no standard non-parole period. There is, however, a relevant guideline judgment: R v Henry (1999) 46 NSWLR 346.

5. For you, Mr Tanswell, those five principal offences (chronologically) are: H…3961, sequences 11, 3, 5, 12 and 13 (respectively, incidents 1 to 5).

6. For you, Mr Leilua, those five principal offences (chronologically) are: H…7371, sequences 13, 4, 6, 14 and 15 (also, respectively, incidents 1 to 5).

7. In addition to those (same) five principal offences, each of you has asked me to take into account, in sentencing you for three of those principal offences, matters on a relevant Form 1 of dishonestly obtain a financial advantage by deception, all of which I have certified. Those matters involve contraventions of s192E(1)(b) of the Crimes Act.

8. In your case, Mr Tanswell, the relevant principal offences are sequences 11, 3 and 12; and the relevant Form 1 matters are, respectively, sequences 2, 4 and 7.

9. In your case, Mr Leilua, the relevant principal offences are sequence 13 (the relevant Form 1 matters being sequences 2 and 3); sequence 4 (the relevant Form 1 matter being sequence 5); and sequence 14 (the relevant Form 1 matter being sequence 8).

10. Further, in your case, Mr Leilua, you have consented to me dealing with one offence on a s166 certificate. That offence is possessing ammunition without being authorised. This is sequence 9 and involves a contravention of s65(3) of the Firearms Act 1996. The maximum penalty for that offence is a fine of $5,500.00.

11. The facts for the five principal offences, the matters on the various Form 1 certificates, and the s166 certificate offence are set out in some detail in the agreed statements of facts.

12. The nature of the offending (exclusive of the s166 offence) is helpfully summarised at [4] of those statements:

“Grindr is a mobile phone application largely used by men to meet other men for dating and sexual purposes. Between 29 May 2023 – 15 June 2023, [you together] used Grindr to meet up with [the five victims in incidents 1 to 5], under false pretences, and robbed them.”

13. You both created and used Grindr accounts to carry out these crimes.

14. Incident 1 occurred on 29 May 2023.

15. The first victim (aged 57 years) lived with his wife at Guildford.

16. At about 5:00am, the first victim began exchanging messages with one of the Grindr accounts you had both established. Whilst it is not expressly stated in the statements of agreed facts, the only rational inference is that the first victim thought he was communicating with only one man (this finding is applicable in relation to all five incidents). These communications involved the exchange of intimate messages and photos between the participants.

17. Ultimately, an agreement was reached whereby the first victim invited the person he thought he had been communicating with to his home.

18. At about 11:45am, Mr Tanswell arrived at the first victim’s house and was let in. Mr Leilua was waiting outside. There was some initial face to face conversation – and, by trickery, and whilst the first victim was distracted, Mr Tanswell opened the front door of the premises to allow Mr Leilua to come into the first victim’s house.

19. As a result of threats made by each of you, the first victim was robbed of his wallet and mobile phone – after compelling him to disclose his password and to login to his NAB application on that phone.

20. You both then left the premises at about 12:00pm noon – after threatening the first victim that if he told police you would return. The implicit threat of violence is unmistakable.

21. After you left the first victim’s premises, and at about 12:15pm, you accessed and withdrew $2,000.00 from his NAB account. You split the proceeds equally.

22. About 10 minutes later, you, Mr Leilua, used the NAB account to purchase cigarettes and a drink with a total value of $51.33.

23. It is the taking of the first victim’s wallet and mobile phone which is sequence 11 for you, Mr Tanswell, and sequence 13 for you, Mr Leilua.

24. It is the taking of the $2000.00 from the first victim’s bank account which is sequence 2 for you, Mr Tanswell, and sequence 2 for you, Mr Leiulua.

25. It is the additional use of the NAB account to purchase the cigarettes and drink which is sequence 3 for you, Mr Leilua.

26. Incident 2 also occurred on 29 May 2023.

27. The second victim (aged 60 years) lived at Auburn with his mother.

28. At about 2:00pm, the second victim received a notification on his Grindr account from one of the accounts set up by you; thereafter, further communications between you and the second victim continued.

29. At about 9:00pm that evening, your account again contacted the second victim to arrange a “catch up” at the second victim’s house. In those communications, you were expressly told by the second victim that he lived with his elderly mother.

30. At about 10:00pm, you both were outside the second victim’s house. Again, you, Mr Tanswell, were the one to gain initial access. And, again, through trickery, you arranged access for Mr Leilua.

31. After Mr Leilua came into the house, the second victim was aggressively confronted by both of you. His phone was forcefully taken from him; and he was threatened with violence to provide you with the PIN. Not only was personal violence to the second victim himself threatened, but violence was also threatened towards his mother (although she was not immediately present).

32. You both took his mobile phone, the PIN to his bank account and $150.00, and then you left the premises.

33. At 10:31pm, 10:36pm and 10:37pm, that PIN was used to electronically transfer a total of $15,000.00 from the second victim’s account into Mr Leilua’s PayID account.

34. It is the taking of the second victim’s iPhone and $150.00 which is sequence 3 for you, Mr Tanswell, and sequence 4 for you, Mr Leilua.

35. It is the taking of the money from the second victim’s bank account which is sequence 4 for you, Mr Tanswell, and sequence 5 for you, Mr Leilua.

36. Incident 3 occurred on 4 June 2023. It followed a similar pattern to incidents 1 and 2.

37. The third victim (aged 66 years) lived at Granville with a housemate.

38. At about 2:00am, the third victim was using Grindr and received a message from one of your Grindr accounts.

39. An arrangement was made by the person with whom the third victim thought he was communicating to meet at the third victim’s house.

40. Again, it was you, Mr Tanswell, who gained initial access to the house; and again, through trickery, it was you who allowed access to Mr Leilua.

41. In the confronting encounter that followed, and which involved actual violence as well as the threat of violence, you stole the third victim’s mobile phone and wallet, which contained $160 and his: driver’s licence; pension card; senior citizen’s card; and Medicare card.

42. The third victim was later treated by paramedics for the injuries he received at your hands: a bruise to his left bicep; a scratch to his left forearm; bruises and cuts to his right forearm; a cut to his right shin; and a strain injury to his left hamstring.

43. It is these facts which are sequence 5 for you, Mr Tanswell, and sequence 6 for you, Mr Leilua.

44. Incident 4 occurred on 12 June 2023. Again, it followed a (by now) familiar pattern.

45. The fourth victim (aged 27 years) lived at Guildford with three housemates.

46. At about 9:40pm, communications on Grindr began between the fourth victim and one of your Grindr accounts.

47. Ultimately, at about 10:00pm, you both were outside the fourth victim’s house. Mr Tanswell gained initial access and then, through trickery, Mr Leilua gained access to the house.

48. The fourth victim was confronted in his bedroom by both of you. Demands for money and his phone were made. The fourth victim resisted giving up his phone, despite verbal threats of implied injury. Your response to this was for Mr Leilua to produce, and threaten, the fourth victim with a kitchen knife. Feeling afraid of being stabbed or otherwise assaulted, the fourth victim handed over his phone to Mr Tanswell. The fourth victim was then forced to provide the PIN to the phone and to open his Westpac and Commonwealth Bank apps, after which you both left the premises.

49. At about 8:29pm, and using the information forced from the fourth victim, $28.00 was transferred from his Bankwest account into an account in the name of Mr Tanswell.

50. At an unknown time on 12 June 2023, a further $100.00 was transferred from the fourth victim’s Commonwealth Bank account into Mr Tanswell’s account.

51. It is the taking of the fourth victim’s mobile phone which is sequence 12 for you, Mr Tanswell, and sequence 14 for you, Mr Leilua.

52. It is the two transfers of money from the fourth victim’s bank accounts which is sequence 7 for you, Mr Tanswell, and sequence 8 for you, Mr Leilua.

53. Incident 5 occurred on 15 June 2023.

54. The fifth victim (aged 45 years) lived in a home unit at Liverpool.

55. Somewhere between 1:30am and 1:45am on that day, the fifth victim’s Grindr account received a message from one of your Grindr accounts. In the conversation which followed, the fifth victim agreed to meet the person he thought he had been communicating with. Again, it was Mr Tanswell who was initially admitted into the relevant premises to be shortly followed by Mr Leilua.

56. And, again, following threats of violence, the fifth victim handed over his two mobile phones. He also opened his ANZ bank apps which disclosed that one account held a balance of $600.00; and another account a balance of $5,000.00.

57. You subsequently attempted to access those accounts, but, it would seem, that you only succeeded in transferring the $5,000.00 in one account to the other account, no doubt in anticipation of withdrawing the total of $5,600.00 from that second account. But before you could do so, the fifth victim had contacted his bank and the account was locked.

58. It is these facts which are sequence 13 for you, Mr Tanswell, and sequence 15 for you, Mr Leilua.

59. Mr Leilua, you were arrested on 15 June 2023. At the time of your arrest, the police seized a number of items including 44 .22 calibre Hollow Point bullets. This is the section 166 certificate offence, sequence 9.

60. Mr Tanswell, you were arrested the next day on 16 June 2023.

61. Both of you participated in ERISPs in which each of you gave various untruthful versions of events, no doubt seeking to minimise your criminality. However, each of you ultimately made proper and full admissions of guilt as is set out in the agreed statement of facts for each of you.

62. It is necessary for the Court to make a finding as to the objective seriousness of each of the principal offences for an offence of its kind.

63. In my opinion, incidents 1, 4 and 5 are about the mid-range; and incidents 2 and 3 are slightly above the mid-range. The matter on the s166 certificate is towards, but not at, the bottom of the range.

64. Each principal offence is additionally aggravated for both of you because the offence occurred in the relevant victim’s home.

65. Each principal offence is further additionally aggravated in your case, Mr Tanswell, because, at the time of those offences, you were on parole.

66. The principal offence concerning incident 4 is further additionally aggravated for both of you because Mr Leilua was armed.

67. Insofar as the Form 1 certificates are concerned:

1. the Form 1 certificates for incidents 1 and 4 will result in only a modest increase in the sentence for the relevant principal offence;

2. the Form 1 certificates for incident 2 will result in a meaningful increase in the sentence for the relevant principal offence.

68. Victims 1, 2, 3 and 5 have provided the Court with victim impact statements. Each of those statements clearly sets out the significant psychological consequences sustained by each of those victims – and, in the case of victim 1, his wife; and in the case of victim 2, his mother.

69. I earlier referred to the guideline judgment of R v Henry. Of the 7 characteristics listed in that judgment, notably that of being a young offender with no or little criminal history is not applicable, and neither (to a lesser extent) is limited planning.

70. I shall now turn to the separate subjective cases for each of you.

71. In your case, Mr Tanswell, you did not give sworn evidence in the sentence hearing. Your subjective circumstances were placed before the Court through the following documents:

1. a sentencing assessment report dated 26 August 2024;

2. an undated letter of apology from you;

3. two certificates obtained whilst you have been on remand; and

4. a report from a psychologist, Mr Albassit, dated 26 November 2024.

72. In preparing that report, Mr Albassit purported to abide by the Expert Code of Conduct prescribed by Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW).

73. The history of the use of experts reports (in both criminal and civil proceedings) has not been without difficulties. In the 1980's and 1990's the use (or misuse) of experts reports in civil litigation (and the "gun for hire" perceptions which not unreasonably arose) gave rise to very considerable judicial concern - (see, for example, Vakauta v Kelly (1989)167 CLR 568).

74. It was that judicial concern (in part) which eventually led to the Expert Code of Conduct to which I have referred. The Code has been legislatively mandated by Part 31, Subdivision 2 of the Uniform Civil Procedure Rules 2005.

75. Clause 31.23 of those Rules relevantly provides:

"(1) An expert witness must comply with the code of conduct set out in Schedule 7

...

(3) Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it."

76. In my opinion, notwithstanding that an expert (by words) purports to be bound by the code that expert may, by conduct, reveal an intention (actual or implicit) not to be so bound. There is, after all, the well known expression: "actions speak louder than words".

77. Failure by an expert to comply with the Code without dispensation by the Court (which may only be done for good reasons - although exceptional circumstances are not required - see Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279; and Roads and Traffic Authority (NSW) v Barrie Toepfer Earthmoving Land Management Pty Ltd (No 3) [2012] NSWSC 937) may (and often should) result in a report not being admitted into evidence (see, for example, R v Fitzroy (a pseudonym) [2020] NSWDC 218 - although that case did not involve conflict of interest issues).

78. And because the Court has an interest in preserving the integrity of its own procedures, in an appropriate case, the Court can and should reject an expert's report even in the absence of objection by the opposing party.

79. In this general context, in R v Kaplantzi [2023] NSWDC 42 (published 17 March 2023), I made the following observation in relation to an “expert” psychologist’s report tendered on behalf of that offender:

“…

[33]   It is appropriate here to pause to make some observation about that report.

[34]   The author purported to subscribe to the Expert Code of Conduct. Clause 2 of the Code provides:

“An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness”.

[35]   This duty is, to my observation over many years, frequently honoured in the breach than the observance.

[36]   Of concern in the present case is the fact that, simultaneously with purporting to comply with the Code, the author of the report was prospectively offering his services (no doubt, for financial reward) to [the offender]. The conflict of interest is glaring. In an appropriate case, such a substantial departure from the Code could result in a significant reduction in the weight to be given to a report.…”

80. The author of the report in Kaplantzi (who was then deliberately not identified) was not Mr Albassit, but the observations are apposite to the present case. However, the warning has gone unheeded – both by some experts and some legal advisers to offenders.

81. In R v Bojcevski and Ors [2024] NSWDC 299 (published 19 July 2024), I made the following observations:

“[70]   A number of observations need to be made of the three experts reports which are the principal documents in your subjective cases.

…

[73]   Thirdly, the following additional observation is applicable to the expert report of (only) Mr Awit [the author of the report in Kaplantzi] and Mr Albassit. The weight to be given to the reports (both as to history and opinion) are diminished by the clear conflict of interest in the relevant author purporting to comply with the expert witness code of conduct and, at the same time, seeking to obtain financial remuneration… for future financial treatment services to be supplied.”

82. In R v Al-Mansoori [2024] NSWDC 466 (published 9 October 2024), I made the following observation:

“[66]   Before concluding, there is one final remark I wish to make. The sentencing assessment report speaks of a supervision plan being put in place for you by Community Corrections upon your release.

[67]   One of the aspects of that supervision plan is your referral to an external psychologist.

[68]   Because of the unsatisfactory nature of the conduct of Mr Albassit in the preparation of the report before the Court (i.e., in, yet again, failing to comply with the Expert Code of Conduct in the manner discussed during submissions), I shall not be directing a copy of his report go with the warrant; and I strongly recommend to Community Corrections that Mr Albassit not be selected as the external psychologist for the purposes of the supervision plan I have referred to.”

83. These published decisions are not, by any means, exhaustive of the sentence matters which have come before me in which the relevant “expert’s” departure from the Code of Conduct has been referred to by me. There have been numerous others which have not been published involving not only Mr Albassit and Mr Awit but also other “experts”. And, as I shall soon note, it arises in relation to the expert retained in Mr Leilua’s subjective case.

84. It is appropriate to note that on no previous occasion, when I have drawn attention to the breach of the Code of Conduct because of these conflicts of interest, has any legal representative for an offender (including senior counsel) disputed the fact of the conflict of interest or the consequential departure from the Code of Conduct.

85. Very considerable sums of public money are spent by the Legal Aid Commission on “expert reports”. Similarly, where there is no grant of legal aid, individual offenders expend considerable sums on such reports. Such expenditures are seriously compromised when the weight to be given to a report is diminished because of the “expert’s” departure from the Code of Conduct. Because the Court relies heavily on the compliance by experts with the Code of Conduct, persistent departure from it tends to bring the administration of justice into disrepute.

86. In these circumstances, these questions arise:

1. why does an expert initially depart from the Code?

2. why do some experts persistently breach the Code?

3. why do some solicitors file and serve such reports?

4. why do some solicitors continue to retain experts who persistently breach the Code?

5. why do solicitors, whose clients are not the subject of a grant of legal aid, require their clients to pay for such reports? and

6. why does the Legal Aid Commission continue to fund such practices?  

87. Because of the seriousness of the recurrent problem I have identified, parties should not be surprised in the future if, rather than reduced weight being given to such prospective reports, insofar as I am concerned, they are rejected. Indeed, since these Reasons were drafted, such an order was made in Bechara v DPP, unreported, 14 May 2025 matter No: 2024/00274154. The expert in that case was not an expert I have already named. 

88. In the present case, Mr Albassit initially prepared a report dated 9 September 2024. That report was filed and served as part of the defence sentence bundle (pages 6 – 17). The report, however, was not formally tendered. Rather, when the problematic nature of the report was raised by the Court (i.e. yet again purporting to subscribe to the Code and simultaneously offering future services for financial reward) the report was withdrawn (see T19:33-21:29, 26 September 2024).

89. The sentence hearing did not complete on 26 September 2024; it was stood over part-heard to 20 December 2024.

90. On that latter date (and surprisingly), a further report of Mr Albassit dated 26 November 2024 was tendered. Whilst it does not breach the Expert Code of Conduct by expressly offering to provide future treatment for financial reward, it, nevertheless, gives rise to concern as to whether the author has fully and properly subscribed to at least to the spirit of Code.

91. At [45] of the second report, Mr Albassit wrote:

“[45]   I have attached a treatment plan for your perusal. I have provided the Court with a comprehensive treatment plan that will aid in the necessary rehabilitation required while providing sufficient and intensive treatment to treat the psychiatric and psychological conditions outlined above.”

92. In the “treatment plan”, the author recommended that “an experienced Psychiatrist” be retained and nominated Dr Saker.

93. Concerningly, for present purposes, the author then went on to write:

“Should the Court entrust me with the responsibility, an appointment will be made with Dr Saker on behalf of Mr Tanswell in the coming week.”

94. Further in the “treatment plan”, the author wrote:

“Mr Tanswell is to engage in a supplement Anger Management Program through Blue Horizon Counselling Service. I will see that Mr Tanswell is enrolled in the following courses:

•   Impulsive, destructive, and explosive anger management

•   Psychology of self-control. Core impulsivity crash course

•   Be in control. Psychology of self-control core impulsivity.”

95. The following observations may be made of those parts of the treatment plan.

96. First, it is apparent that the author had already taken it upon himself to "engage" Dr Saker and Blue Horizon Counselling Service.

97. Secondly, on what basis was that past involvement, and the ongoing involvement to be, provided? It seems improbable that it was for no financial reward.

98. In these circumstances, I accept the oral submission of the Crown (T38:12-16, 20 December 2024) that only limited weight should be given both as to the history which you have purportedly provided to the author of the report of 26 November 2024 and his consequential “expert” opinion.

99. Because: (a) you did no give sworn evidence; (b) of your criminal history of dishonesty; and (c) of the reduced weight to be given to Mr Albassit's report, I am (only just) satisfied on the balance of probabilities of the following matters. 

100. At the time of your offending, you were 39 years old; and your involvement in these offences was to support your long-term abuse of illicit drugs.

101. Your childhood was a sad and dysfunctional one. You never knew your father. You were raised by your mother with the assistance of her parents and brothers.

102. Unfortunately, your mother and uncles were users of illicit drugs so that such drugs were all around you during your childhood.

103. Your mother remarried when you were 13 years old. Although you got on well with your stepfather, your relationship with your mother deteriorated: she became frequently physically and verbally abusive towards you. Your uncles and stepfather did not intervene.

104. At around that time, you ran away from home and your life deteriorated even further.

105. At about age 15, you commenced using illicit drugs, specifically cannabis.

106. You attended school until Year 11, but you were constantly in trouble at school.

107. You were more or less effectively homeless from age 16 when you were thrown out of home by your mother, and you then resorted to committing petty crime in order to survive on the streets.

108. Ultimately, you were sent to a Juvenile Justice detention facility when you were about 17 years old and there you were sexually assaulted.

109. On your release from juvenile detention, your life continued to deteriorate, including the expansion of your use of illicit drugs from only cannabis to also speed.

110. You had no meaningful employment until about 2005 when you were 23 years old. For the next few years after that you worked as a shearer. In 2011, at age 28, you started working as a chef. You pursued that career for the next approximately 10 years until you were incarcerated in February 2021 for a period of 6 months.

111. At the time of that incarceration, you had been in a relationship with your (now former) partner since 2009. You had three children with her – one of whom sadly died the day he was born in 2010.

112. After you were incarcerated in 2021, your partner took the two children and moved away from the location where you and she had been living. You have had no contact with those children since that time, and this has had an adverse impact on your mental health and has also led to you adding ice to your illicit drug problems.

113. As to your mental health, you have been diagnosed by Mr Albassit with post-traumatic stress disorder; cyclothymic disorder; and substance dependence disorder. Allowing for reduced weight being given to Mr Albassit’s report, I am (just) satisfied that your mental health issues, in part, are “correlated” to your offending generally.

114. You were, however, able to have periods of abstinence from drugs in the period 2005 to 2020.

115. Your prolonged use of illicit drugs was not initially accompanied by (other) significant criminal offending. But that changed in 2020. In that year, there was a significant escalation in the frequency and severity of your offending, including domestic violence offences, as well as offences of robbery and dishonesty.

116. You were supervised by Community Corrections in 2023 in relation to this expanded offending. The author of the sentencing assessment report says that your response to supervision at that time was largely unsatisfactory. However, the author of that report also went on to say that you had engaged satisfactorily with Community Corrections for the purposes of the preparation of the sentencing assessment report. Nevertheless, that report assesses you as being at a medium to high risk of reoffending.

117. In your interviews with the author of the sentencing assessment report, you expressed what that author described as genuine and insightful remorse. I have no reason to doubt his opinion.

118. On balance, I regard your prospects for rehabilitation as being guarded. However, I am not satisfied that those prospects would be enhanced by a longer period on parole.

119.  As well as rehabilitation, general and specific deterrence are relevant sentencing principles.

120. The full application of general deterrence is somewhat reduced because of Bugmy and De La Rosa considerations. Specific deterrence, however, is fully engaged.

121. No sentence for any of the five principal offences other than full-time imprisonment is appropriate.

122. I intend imposing an aggregate sentence in relation to those offences.

123.  It is agreed between you and the Crown that the start date of your sentence should not be the date of your arrest but, rather, 30 September 2023 to take into account the balance of parole that you served following your arrest for these present matters. 

124. It is necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence. In this context, you entered early pleas of guilty and there will, therefore, be a 25 per cent discount applied to each of the indicative sentences. Because there are 5 discrete victims, and taking into account totality, there must be some meaningful accumulation.

125. I shall announce those indicative sentences and the ultimate aggregate sentence after I have considered Mr Leilua’s subjective case; and then considered parity.

126. Mr Leilua, your subjective case was placed before the Court through:

1. a sentencing assessment report dated 12 September 2024;

2. an affidavit made on 23 September 2024 by your current partner, Ms Catherine Carter;

3. a letter of apology from you dated 23 September 2024;

4. a collection of certificates of completion of programs you have successfully undertaken whilst on remand;

5. your sworn oral evidence given on 20 December 2024; and

6. a report prepared by a psychologist, Ms Hawil, dated 17 September 2024.

127. I immediately want to say something about that report.

128. The author purported to subscribe to the Expert Code of Conduct. The author practices under the trading name of Mindways Psychological Services and her rooms are Suite 8, Ground Floor, 12/16 Daniel Street, Wetherill Park (see page 1 of 23 of that report).

129. In the final dot point of page 18 of the report, Ms Hawil wrote:

“A treatment plan has been added to this report, specifying details of treatment….”

130. The “Confidential Psychological Treatment Plan Annexure” commences at page 19 of 23 of the report. Under the heading “Place of treatment” appears the following:

“Mr Leilua will attend for treatment at Mindways Psychological Services located at Suite 8, 12/16 Daniel Street Wetherill Park…”

131. In other words (and this was not challenged by Mr Cassels of counsel who appeared for you on sentence (cf T16:1-18, 26 September 2024)), this expert has also placed herself in the same type of conflict of interest that I have mentioned earlier in these remarks on sentence in connection with Mr Tanswell.

132. Accordingly, and as the Crown has submitted, her report (as with Mr Albassit’s) will receive reduced weight as to history and opinion.

133. Notwithstanding that conclusion, because: (a) you gave sworn evidence; and (b) you do not have a criminal history of dishonesty, I can be more easily satisfied, on the balance of probabilities, of the following facts.

134. As at the date of the offences, you were almost 36 years old.

135. You were the only child born to your parents. However, you had seven half siblings from your parents’ prior relationships.

136. Your childhood was a deeply unhappy and troubled one. Your father was a violent man towards both you and your mother.

137. In addition, you were subjected on six or seven separate occasions to sexual abuse by one of your mother’s sisters when you were about 4 or 5 years of age.

138. When you were about 6 or 7 years of age, your father commenced an intimate relationship with that sister of your mother.

139. You commenced using illicit drugs (cannabis) at 12 years of age; and alcohol at 13 years of age.

140. Your parents formally separated when you were 14 years old. You remained with your mother, with weekend visitations with your father.

141. When you were 14, and about the time your father and mother had a particularly confronting physical confrontation, you first attempted suicide.

142. Shortly afterwards, you moved to New Zealand to live with another sister of your mother for almost a year before you returned to Australia.

143. You entered into your first intimate relationship when you were 16 years old in 2004. That relationship ended in 2010. One child was born to that relationship, a son (Phoenix) who is now 16 years of age, and you are still in contact with him.

144. In 2011, you entered into a second intimate relationship (with Tegan). That relationship ended in 2017. Two children were born to that relationship (they are now 11 and 18 years old), but because of your issues with illicit drugs, Tegan will not allow you to have contact with them.

145. Towards the end of 2017, you entered into a third intimate relationship (with Ms Carter). That relationship is ongoing. However, Ms Carter seems to have, like you, issues with both illicit drugs and gambling. Three children have been born to that relationship (those children are aged 4, 3 and 2). However, because of your drug issues and those of Ms Carter, those children are now in the care of the State.

146. Your separation from your children (except Phoenix) is a matter of concern to you. But on the material before me, resumption of contact with those children does not seem likely – at least in the immediate future - and, therefore, that cause of distress and mental anxiety will likely continue.

147. You have no formal educational or trade qualifications.

148. You had intermittent employment between 2005 and 2017; but, since then, you have been mostly unemployed.

149. However, whilst you have been in custody on remand, you have been both a leading hand and a unit sweeper, as well as an inmate delegate. Also encouraging is that you have an offer of work in the demolition industry once you are released from custody.

150. The use of illicit of drugs which started when you were 12 has continued for most of your life. Those drugs have gone on from cannabis to include cocaine, ecstasy and, from 2016, ice. You were using half a gram of ice every day or so up until your arrest. You attempted rehabilitation on a number of occasions in connection with your addiction to that drug, but, unfortunately, without success.

151. In addition to illicit drugs, you also had a significant gambling problem up until the time of your arrest.

152. Apart from the acquisition and use of illicit drugs, your criminal history before the offences for which you are to be sentenced today was limited to driving offences – and a limited history at that, although it did involve a term of imprisonment in the form of an intensive correction order on one occasion. Your response to supervision in connection with those offences was not good – but that was some years ago. Your current offending, therefore, marks a significant escalation in the nature of your criminal offending.

153. The psychologist observed in her report that you met certain diagnostic criteria for: post-traumatic stress disorder; major depressive disorder; and stimulant use disorder. However, there is no formal diagnosis of such (possible) disorders; and there is no evidence which satisfies me on the balance of probabilities of any causal connection between those (possible) disorders and the offending for which you are to be sentenced today.

154. The sentencing assessment report noted that you were assessed at a medium to high risk of reoffending.

155. Some aspects of the sentencing assessment report and the psychologist’s report gave rise to concern as to whether you were, in fact, remorseful for your offending. However, as a result of your oral evidence, I am satisfied, on the balance of probabilities, that you are genuinely remorseful and have meaningful insight into your criminal conduct.

156. On balance, I regard your prospects for rehabilitation as being guarded. In your case, I have concluded that they would be enhanced by a longer period on parole. Such a longer period on parole would reinforce the supervision plan set out in the sentencing assessment report.

157. As well as rehabilitation, general and specific deterrence are relevant sentencing principles.

158. The full application of general deterrence is somewhat reduced in your case, as with Mr Tanswell, because of Bugmy and De La Rosa considerations. Specific deterrence, however, is fully engaged.

159. As with Mr Tanswell, no sentence for any of the five principal offences other than full-time imprisonment is appropriate.

160. I also intend imposing on you an aggregate sentence in relation to those offences. The start date of that aggregate sentence will be the date of your arrest, 15 June 2023. 

161. It is necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence. In this context, you, like Mr Tanswell, entered early pleas of guilty and, therefore, there will be a 25 per cent discount applied to each of the indicative sentences. Because there are 5 discrete victims, and taking into account totality, there must be some meaningful accumulation.

162. An important sentencing principle for both of you is parity. The Crown has produced a document entitled “Parity Table” (MFI-6).

163. Although your roles in the offending were (to a limited extent) different, they attract, in my opinion, the same moral and criminal culpability.

164. Further, in relation to parity, there are two points of meaningful difference between the two of you. The first of those points of difference is in relation to your criminal histories. In this regard, Mr Tanswell’s criminal history is meaningfully more significant and serious than Mr Leilua’s. The second point of difference is that Mr Tanswell was on parole at the time of the offending.

165. I shall now state the various indicative sentences in relation to the five incidents.

166. In relation to incident 1, and taking into account the matter on the Form 1:

1. for Mr Tanswell, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 5 years; after the discount, the indicative sentence is imprisonment for 3 years 9 months; and

2. for Mr Leilua, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years 6 months; after the discount, the indicative sentence is imprisonment for 3 years 4 months.

167. In relation to incident 2, and taking into account the matter or matters on the Form 1:

1. for Mr Tanswell, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 5 years 6 months; after the discount, the indicative sentence is imprisonment for 4 years 1 month; and

2. for Mr Leilua, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 5 years; after the discount, the indicative sentence is imprisonment for 3 years 9 months.

168. In relation to incident 3:

1. for Mr Tanswell, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 5 years 6 months; after the discount, the indicative sentence is imprisonment for 4 years 1 month; and

2. for Mr Leilua, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 5 years; after the discount, the indicative sentence is imprisonment for 3 years 9 months.

169. In relation to incident 4, and taking into account the matter on the Form 1:

1. for Mr Tanswell, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 5 years; after the discount, the indicative sentence is imprisonment for 3 years 9 months; and

2. for Mr Leilua, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years 6 months; after the discount, the indicative sentence is imprisonment for 3 years 4 months.

170. In relation to incident 5:

1. for Mr Tanswell, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 5 years; after the discount, the indicative sentence is imprisonment for 3 years 9 months; and

2. for Mr Leilua, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years 6 months; after the discount, the indicative sentence is imprisonment for 3 years 4 months.

171. Andrew James Tanswell, for the five principal offences of robbery in company, you are sentenced to an aggregate term of imprisonment of 6 years 8 months.

172. In your case I decline to make a finding of special circumstances for the following reasons. First, the Court of Criminal Appeal has said that this Court too frequently makes that finding (see R v GWM [2012] NSWCCA 240. Secondly, this is not your first time in custody. Thirdly, the statutory ratio will be sufficient for rehabilitation purposes.

173. I fix a non-parole period of 5 years to date from 30 September 2023 and which will expire on 29 September 2028.

174. I fix a balance of 1 year 8 months to date from 30 September 2028 and which will expire on 29 May 2030.

175. George Phoenix Leilua, for the five principal offences of robbery in company, you are sentenced to an aggregate term of imprisonment of 6 years 2 months.

176. In your case, I make a finding of special circumstances. This finding is made: first, to enhance your prospects of rehabilitation; and secondly, because this is your first time in custody.

177. Accordingly, I fix a non-parole period of 4 years to date from 15 June 2023 and which will expire on 14 June 2027.

178. I fix a balance of 2 years 2 months to date from 15 June 2027 and which will expire on 14 August 2029.

179. In relation to the section 166 certificate offence for you Mr Leilua, I order that a conviction be entered but, pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose no other penalty.

180. Insofar as the reports of Mr Albassit and Ms Hawil are concerned, I direct that those reports are not to go with the warrants.

181. Furthermore, I strongly recommend to Community Corrections that Mr Albassit and Ms Hawil not be selected as the external psychologist for the purposes of the supervision plans referred to in the two sentencing assessment reports.

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Decision last updated: 19 May 2025