R v Weismantel (No 3) - [2015] NSWDC 227

District Court

New South Wales

Medium Neutral Citation: R v Weismantel (No 3) [2015] NSWDC 227
Hearing dates: 1 October 2015
Date of orders: 01 October 2015
Decision date: 01 October 2015
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Offender convicted
Sentence of imprisonment
Aggregate sentence imposed
Non-parole period of four years and six months commencing on 1 March 2014 and expiring on 31 August 2018
Further period of imprisonment of four years to commence upon the expiration of the non-parole period and expiring on 31 August 2022.
Special circumstances found

Catchwords:
CRIMINAL LAW – Sentence – Take vehicle without consent, in company – At least two co-offenders – 87 year old victim – Planning, though not by offender – No violence, no explicit threat expressed, “kindly” – Vehicle used for two armed robberies in company – Co-offenders destroyed vehicle, offender not involved in destruction

CRIMINAL LAW – Sentence – Three robberies with offensive weapon, in company – Sawn-off shotgun and axe at first and second robbery; sawn-off shotgun, axe and walking stick at third – 3 co-offenders at each – First robbery, cinema, $506.50 – Second robbery, cinema patron, $90, licence, bank cards and personal papers – Third robbery, hotel, $3,873 and 3 packets of cigarettes – Planning, though offender merely “acquaintance or follower” –Sawn-off shotgun outside of category of weapon in guideline judgment Henry – Offender previously sentenced for armed robberies as juvenile and as adult – Parity – Co-offender (Roach) sentenced for these offences with one matter on Form 1 and other offences

CRIMINAL LAW – Sentence – Attempted robbery with offensive weapon, cause grievous bodily harm – Restaurant – Offender drug-affected – Grievous bodily harm not intended, but intentional act all that is required by statute
CRIMINAL LAW – Sentence – Aboriginal Australian – Disturbed childhood – Historical and continuing psychotic symptoms – Abused alcohol from age 12 – Abused drugs from age 14 – History of self-harm – Significant criminal history – Risk to community – Consultant forensic psychiatrist recommended high supervision upon release including admission into community-based drug and alcohol rehabilitation centre – Totality: need to avoid a crushing sentence – Special circumstances found – Discretion as to when to commence sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Muldrock v The Queen [2011] HCA 39
R v Barker [2006] NSWCCA 20
R v Clinch (1994) 72 A Crim R 301
R v Henry (1999) 46 NSWLR 346
R v MAK [2006] NSWCCA 381
R v Thomson (2000) 49 NSWLR 383
R v Weismantel (No 3) [2015] NSWDC 213
R v Weismantel (No 1) [2015] NSWDC 122
Veen v The Queen No 2 [1988] HCA 14
Category: Sentence
Parties: Director of Public Prosecutions (NSW) (Crown)
Blake Weismantel (Offender)
Representation:
Counsel:
Mr S Hughes (Crown)
Mr S Schaudin (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Sydney Criminal Lawyers (Offender)

File Number(s): 2014/11092014/94525
Publication restriction: No

Judgment

HIS HONOUR: Blake Weismantel stands for sentence for five crimes. The first four of…

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 Weismantel (No 3)

Details

AGLC: R v Weismantel (No 3) [2015] NSWDC 227
Case: [2015] NSWDC 227
Decision Date: 01 October 2015

CaseChat Overview and Summary

In the matter of R v Weismantel (No 3), the appellant faced conviction on multiple charges including taking a vehicle without consent, participating in armed robberies in company, and an attempted robbery with an offensive weapon. The Supreme Court of Western Australia was tasked with determining an appropriate sentence for Weismantel, considering the nature and severity of the crimes, his criminal history, and his personal circumstances. The court needed to weigh the aggravating factors, such as the use of offensive weapons and the vulnerable status of one of the victims, against the mitigating aspects, including Weismantel's role as a follower rather than a planner and his personal hardships. The court also had to consider the principle of parity with co-offenders and the requirement for a sentence that adequately reflects the totality of the offences.

The court examined the totality of Weismantel's offending, which involved three armed robberies and an attempted robbery, all committed in company and involving the use of dangerous weapons. Despite the severity of these offences, the court recognised that Weismantel's role was peripheral, and there was no violence or explicit threat expressed during the commission of the crimes. Additionally, the court took into account Weismantel's background, including a troubled childhood, a history of substance abuse, and mental health issues. The court found that these circumstances constituted special circumstances warranting consideration in the sentencing process. The court's reasoning was grounded in the need to balance the requirements of deterrence and retribution with the necessity of considering Weismantel's personal vulnerabilities and the potential for rehabilitation.

Concluding its deliberations, the court imposed an aggregate sentence of imprisonment, recognising the need for a sentence that reflects the seriousness of the crimes while also being mindful of Weismantel's personal circumstances. The sentence comprised a non-parole period of four years and six months, followed by a further period of imprisonment of four years. The court found special circumstances, allowing discretion as to when the sentence would commence. This decision balanced the need for public protection with the potential for Weismantel's rehabilitation and reintegration into society under appropriate supervision.

Orders

Orders of the court

Offender convicted

Sentence of imprisonment

Aggregate sentence imposed

Non-parole period of four years and six months commencing on 1 March 2014 and expiring on 31 August 2018

Further period of imprisonment of four years to commence upon the expiration of the non-parole period and expiring on 31 August 2022.

Special circumstances found

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.

Medium Neutral Citation:	R v Weismantel (No 3) [2015] NSWDC 227
Hearing dates:	1 October 2015
Date of orders:	01 October 2015
Decision date:	01 October 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Offender convicted Sentence of imprisonment Aggregate sentence imposed Non-parole period of four years and six months commencing on 1 March 2014 and expiring on 31 August 2018 Further period of imprisonment of four years to commence upon the expiration of the non-parole period and expiring on 31 August 2022. Special circumstances found
Catchwords:	CRIMINAL LAW – Sentence – Take vehicle without consent, in company – At least two co-offenders – 87 year old victim – Planning, though not by offender – No violence, no explicit threat expressed, “kindly” – Vehicle used for two armed robberies in company – Co-offenders destroyed vehicle, offender not involved in destruction CRIMINAL LAW – Sentence – Three robberies with offensive weapon, in company – Sawn-off shotgun and axe at first and second robbery; sawn-off shotgun, axe and walking stick at third – 3 co-offenders at each – First robbery, cinema, $506.50 – Second robbery, cinema patron, $90, licence, bank cards and personal papers – Third robbery, hotel, $3,873 and 3 packets of cigarettes – Planning, though offender merely “acquaintance or follower” –Sawn-off shotgun outside of category of weapon in guideline judgment Henry – Offender previously sentenced for armed robberies as juvenile and as adult – Parity – Co-offender (Roach) sentenced for these offences with one matter on Form 1 and other offences CRIMINAL LAW – Sentence – Attempted robbery with offensive weapon, cause grievous bodily harm – Restaurant – Offender drug-affected – Grievous bodily harm not intended, but intentional act all that is required by statute CRIMINAL LAW – Sentence – Aboriginal Australian – Disturbed childhood – Historical and continuing psychotic symptoms – Abused alcohol from age 12 – Abused drugs from age 14 – History of self-harm – Significant criminal history – Risk to community – Consultant forensic psychiatrist recommended high supervision upon release including admission into community-based drug and alcohol rehabilitation centre – Totality: need to avoid a crushing sentence – Special circumstances found – Discretion as to when to commence sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Muldrock v The Queen [2011] HCA 39 R v Barker [2006] NSWCCA 20 R v Clinch (1994) 72 A Crim R 301 R v Henry (1999) 46 NSWLR 346 R v MAK [2006] NSWCCA 381 R v Thomson (2000) 49 NSWLR 383 R v Weismantel (No 3) [2015] NSWDC 213 R v Weismantel (No 1) [2015] NSWDC 122 Veen v The Queen No 2 [1988] HCA 14
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Blake Weismantel (Offender)
Representation:	Counsel: Mr S Hughes (Crown) Mr S Schaudin (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Sydney Criminal Lawyers (Offender)
File Number(s):	2014/11092014/94525
Publication restriction:	No