R v Gale

FACTS

2. The facts are agreed and, in essence, are as follows. The victim, Mr Touqeer was aged 22 at the time and was working as a cashier at the City Convenience Store at 136 Castlereagh Street, Sydney. On the evening of the offence, which was Saturday 29 October 2024, it was around shortly before 10pm that the offender entered the convenience store. He picked up two cans of Coca-Cola and held them in his arms and then said to the victim, “Give me a water.” The victim felt suspicious because of the appearance of the offender and told the offender that he could have the water and the Coca‑Cola because he was nervous. The offender then said, “Give me smokes” and although the store did sell cigarettes, the victim said, “We don’t sell smokes” because he essentially wanted the offender to leave.

3. The offender then approached the counter, upon which the victim said that the store was closing. However, the offender walked around the counter and opened a drawer where he found a box cutter with a 5-to-6-centimetre blade. The offender held up the box cutter and pointed it at the victim. He shook the box cutter at the victim and motioned for the victim to approach the cash till. He said, “Open the till, I need money.” The victim then saw the offender who appeared to be desperate and in a nervous state. The victim felt scared. He opened the cash till. The offender then took money from the till but dropped some in that process. The offender then picked up the fallen money still, according to the facts, seeming “nervous”. The victim at this time, or around this time, used his mobile phone to video record the offender while he was behind the counter. The offender then asked the victim for a paper bag and the victim supplied a Coles brand paper bag. The offender then put the cash and the Coca-Cola cans inside the bag and as he did this he dropped the box cutter. The victim immediately picked up the box cutter and put it in his own pocket.

4. The facts note that the interaction, the incident in other words, was captured on CCTV footage inside the store. The offender then left the store, taking a bottle of water on the way out and said to the victim, “Don’t follow me.” However, the victim did follow him out of the store and saw him cross to the other side of Castlereagh Street and catch a bus on Elizabeth Street. The victim then returned to the store and called his manager who he had been texting during parts of the earlier incident. Police arrived at the convenience store and commenced patrolling for a person matching the description of the offender, but failed to locate him at that time. However, a jumper discarded by the offender was seized and was forensically tested, returning a positive finding for DNA matching the offender’s mother, with whom at that stage he was residing, at least at times.

5. On 21 October 2024, that is two days later, a warrant was issued for the offender’s arrest. About 8.23pm that day police attended the known address of the offender which was in Downing Street, Woolloomooloo. There, they observed the offender in a stairwell and called out to him, but he ran to his unit and out onto the balcony. Police called out to him again and he returned to the ground floor where he attempted to enter one of the ground floor units. The facts note that the offender was acting erratically, jumping up and down the stairs while yelling. A bystander opened the front door to the apartment building, allowing police access. Police then entered and took hold of the offender in the stairwell upon which he began screaming and crying saying, “What have I done.” He was placed under arrest, but continued screaming and saying things such as, “They’re saying in my head they’re going to kill me.” The offender was taken to a police station. He was later, however, taken to St Vincent’s Hospital by ambulance as a result of him appearing to be affected by an illicit substance. The facts note that in terms of property taken, the cash taken was found to have been $980. Those are the relevant facts.

OBJECTIVE SERIOUSNESS

6. The objective seriousness of the offence is something which is important that I make an assessment about. Firstly, the maximum penalty marks the offence as potentially a very serious one. Indeed, any form of robbery has been regarded as very serious by the courts for a long time. That is in part because robbery is not just a crime involving the theft of property. As was said in R v Henry & Ors [1999] NSWCCA 111, robbery is an offence also against persons. The fear usually involved in any armed robbery and the usual effects on a victim of such an offence point to the need for serious punishment.

7. There are a number of features of the armed robbery before this Court which inform as to its relative seriousness in an objective sense. Firstly, the victim was at the time working alone in a shop at night, making him somewhat vulnerable. His vulnerability was increased when the offender went behind the counter, effectively leaving the victim trapped there. Secondly, while there was no direct violence, there was a clear threat of it. Thirdly, the offensive weapon was a box cutter which, no doubt, was capable of inflicting a serious, even potentially life threatening, wound. Fourthly, the amount of property taken was not small, being $980 and a few drinks. Fifthly, the offence was committed for financial gain. While this is so, it is an aspect which is inherent of just about all robberies, so in my view this does not increase the objective seriousness in this particular case. Sixthly, and on the other hand, the offence was quite brief in time in terms of its duration. However, that is a feature of many robberies and, as was said in Chung v R [2017] NSWCCA 48, the short duration of the offence does little to lessen its seriousness, given the frightening nature of such an incident which would, no doubt, have left an imprint on the victim and probably on his perception, in this case, of his workplace and its safety. Seventhly, I accept that the offence was unsophisticated, impulsive and involved no planning.

8. In my view, it is an offence that sits below the mid range and towards the lower end of objective seriousness. It is not, however, in the low end.

9. It was argued by the Crown that the offence is aggravated by reason that it involved an implied threat of violence, an implied threat to use the weapon, that the victim was vulnerable and that the offence was committed for financial gain. I have treated these aspects as being relevant to the objective seriousness of the offence, but I do not treat them as aggravating features under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

10. I also note that the offence was committed while the offender was on bail for another matter. Although this is not relevant to objective seriousness, it is an aggravating factor in the overall sentencing exercise, and is also relevant to future risk and prospects of rehabilitation.

11. Turning then to subjective matters relating to the offender himself. He is now aged 36. His criminal history does not assist him in any claim for leniency. His subjective case has been placed before the Court by means of the psychological report of Dr Sidhu, a letter from the offender’s sister and some Justice Health records.

12. The offender is of Australia Aboriginal background and was born in Bourke, New South Wales. He was raised as a member of a large family by his mother and step father. The offender, however, was led to believe that his step father was his biological father. It was not until he was 35 that he was told otherwise. Nonetheless, the offender regards his step father, effectively, as being his real father. The offender’s childhood was characterised by financial hardship and exposure to a community where drug use, violence and other crime was common.

13. The offender denied to the psychologist, Dr Sidhu, that there was any violence in his own home, but I do note that his mother was a heroin user and this made her somewhat unavailable to care appropriately for her children, and the Offender left the family home when he was only eight or nine years of age. The offender and his siblings where thereafter raised by his step father who struggled but, according to the offender, did a good job, and it is not suggested that he was a man who abused drugs or alcohol to any problematic level. Nonetheless, the mother’s absence was understandably confusing for the offender and it left him with unanswered questions.

14. The offender attended school, but he struggled and was eventually asked to leave school in year 9 due to repeated suspensions. He can, however, read and write. Since leaving school he has had a limited work history, largely due to his use of drugs and his periods in custody. The offender’s use of alcohol and drugs commenced at a very young age of 11 when he was using cannabis and then heroin. He apparently developed an addiction to heroin. At around age 18 he started using methylamphetamine and this has been a regular drug of abuse for him, except when he has been in custody. The psychologist noted that the offender had some insight into the link between his mental health issues and not being medication compliant. The offender noted that when he stops his medication he tends to lapse into drug use and that this then causes him to spiral out of control.

15. In regard to the offence before the Court, he said that he had not been adhering to his medication and was using illicit drugs to cope. The psychologist notes that this appears to have increased his paranoia and led to auditory hallucinations. She notes that this was a factor in the offending because the offender reported a belief that the victim and others were following him. However, as the Crown submitted, this is somewhat at odds with the agreed facts in that it was the offender who approached the victim in a shop. I do not accept, therefore, that the offender believed at the time that this victim was, “following him.”

16. However, I do accept that at the time the offender was experiencing mental health issues with psychotic elements, including paranoia and auditory hallucinations and that this, together with his drug use, contributed significantly to the offending. This is consistent, I note, with the agreed facts where the offender referred on arrest to hearing voices in his head. It is also consistent with the Justice Health notes which record that almost a month later the offender was exhibiting strange behaviour and expressing paranoid thoughts.

BUGMY

17. The offender’s background of some deprivation, exposure at a very young age to alcohol, drugs and community violence, the absence of his mother and his experience of being sexually abused when a schoolboy are matters which engage the principles discussed in Bugmy v The Queen (2013) 249 CLR 571 and in the line of cases considering similar principles that both came before Bugmy and after. While I do not suggest that there was any direct causal link between the offender’s background and the offending, such a link is not necessary before a finding of reduced moral culpability can be made. See recent case of YZ v R [2025] NSWCCA 165 at para 64.

18. In my view, the offender’s background is such that it reduces his moral culpability for the offence to a material degree. That is because it cannot be said that a person with his background bears the same moral responsibility for their offending, as a person with a “conventional” or “privileged” upbringing. As has been said in numerous cases, the effects of childhood deprivation and exposure to adverse circumstances do not necessarily diminish with time.

MENTAL HEALTH

19. In my view, the offender’s history of mental health problems which had flared up in the period leading up to this offence are such as to also engage the principles in Commonwealth DPP v De La Rosa [2010] NSWCCA 194. In that case McClellan CJ at CL at that time summarised a number of principles which apply where an offender is suffering from a mental illness. Firstly, that where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. Secondly, it may be that the offender’s mental health may have the consequence that he or she is an inappropriate vehicle for general deterrence, resulting in a reduction of the sentence which would otherwise have been imposed. Thirdly, it may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person, and the length of the prison term or the conditions under which it is to be served may be reduced. Fourthly, it may reduce or eliminate the significance of specific deterrence. Fifthly and conversely, however, it may be that because of a person’s mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.

20. In my assessment, the offender’s mental health in this case did contribute to a material degree to the commission of the offence. I am satisfied, therefore, that it is a matter which further reduces his moral culpability for the offence. It also means I am satisfied that it reduces the extent to which he can be considered an appropriate vehicle for the expression of general deterrence. This is not a case where it has been argued that the custodial experience will be rendered more difficult by reason of the offender’s mental health. However, I do take into account to some degree that this is a matter which renders his experience of the custodial environment somewhat more difficult. Having said that, I do note that the offender apparently, under some medication in custody, does appear to be in a fairly stable state of mind at present as he presented today in his audio visual appearance before the Court.

21. My findings about the offender’s reduced moral culpability mean that the importance of general deterrence and denunciation are reduced in this case. These are matters which point towards a reduction in sentence.

22. However, and was said in De La Rosa and in the Bugmy line of cases, a sentencing court, in finding reduced moral culpability by reason of an offender’s compromised mental health and/or by reason of their compromised ability to remain drug‑free due to a background of deprivation and/or exposure to adversity, must also consider another factor which may pull in the opposite direction. That factor is that in some cases an offender’s inability to control impulses, to make wise decisions, and/or to be prone to mental health issues may mean that they present as a greater danger to the community. Given my conclusions about the offender and his risk of reoffending and prospects of rehabilitation, this is regrettably a case where I think I do need to give community safety significant weight. This is a matter that, as I have said, pulls in the opposite direction; one pointing towards a longer sentence.

REMORSE, RISK AND REHABILITATION

23. Turning to questions of remorse, risk and prospects of rehabilitation. I accept that the offender has expressed genuine remorse in the form of things that he has said to the psychologist. While the offender appears to be currently stable mentally, that is largely the product of his being on medication and being in custody where access to drugs is more difficult. He wants to remain off drugs. The letter from his sister suggests that he does have the capacity to do this at times. However, the reality is that with his difficult background, his exposure to drugs, alcohol and violence at a young age and his history of offending and being in prison, that his prospects of remaining drug and crime free must be looked at with some trepidation. In my view, regrettably, he remains a material risk of reoffending. His prospects of rehabilitation cannot be described positively at the moment.

DETERMINATION

24. Turning to my ultimate determination. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. They are all relevant. However, for reasons I have already set out, it seems to me that the importance of general deterrence is reduced somewhat in this case and for the same reason the importance of denouncing the offender’s conduct is reduced somewhat. Community protection, however, as I have said earlier, is an issue of some importance.

25. I am satisfied that for the purposes of s 5 of the Crimes (Sentencing Procedure) Act 1999, no penalty other than imprisonment is appropriate. It was not suggested otherwise in submissions made to me.

26. In R v Henry & Ors which I have cited earlier, the Court of Criminal Appeal noted a number of features that commonly arise with armed robbery offences. With regard to those common features, I note the following insofar as they relate to this case. The offender is not particularly young and his criminal history is not short. The weapon was a box cutter which I have already discussed. There was no planning. There was no actual violence, but a real threat of it. The victim was vulnerable. It was a relatively small amount of money taken, although not overly small. There was a plea of guilty, but its significance is reduced because this was a very strong Crown case. In the Henry decision the Court suggested a head sentence range of between four years, five months and five years, six months.

27. It was noted, however, in the subsequent case of R v Harris [2011] NSWCCA 105 at paras 93 to 94 that the guideline in Henry involved a discount of 10% because of a relatively late plea of guilty. With the greater discount of 25% which applies in the case now before me, the guideline head sentence range is three years, four months to four years, two months with a suggested non-parole period range of two years, six months to three years, one month. The guideline judgment in Henry is, of course, not prescriptive. But it is an important guide to which I have had regard. However, I balance this along with all the other matters to which I have made reference, especially the subjective matters.

BACKDATING

28. I have had regard to the question of backdating. The offender has been in custody bail refused since his arrest on this offence on 21 October 2024. But not all of this period up to today has been due to the offence before the Court. That is because the offender was sentenced on 26 May 2025 in the Local Court to an eight month head sentence with a five month non-parole period for an offence of possessing an unauthorised firearm. That offence was committed on 31 July 2024; in other words, some months before the current offence, about two and a half months approximately. I am prepared to accept that this earlier offence was committed during the same downward spiral which led to the current robbery offence.

29. Given this, and the relative closeness in time between the two offences, it is relevant that I have regard to what the overall sentence might have been if both matters were dealt with at the same time. They are separate pieces of criminality, and each of them are concerning offences where there would have been the need for some accumulation between the two sentences.

30. In those circumstances, I do not intend to backdate the current sentence fully to the date of arrest. To do so would effectively be to negate the sentence imposed in May 2025. However, I do intend, having regard to totality principles to backdate to some degree.

31. The period of time between the offender’s arrest on 21 October 2024 and the commencement of the Local Court sentence on 26 May 2025 is, on my calculation, 217 days. I intend to give the offender the full benefit of this period. The period of time from 26 May 2025 to today is 150 days. I intend to allow the benefit of half of this additional period. The net result is that I intend to backdate by 292 days, that being the combination of 217 and 75 days. The sentence, therefore, will date from 4 January 2025.

32. I impose a head sentence of three years, four months. I note that I have started with a head sentence of four years six months from which I have deducted 25% for the plea of guilty. The head sentence therefore, as I have said, is three years, four months.

33. I find special circumstances for making some adjustment to the ratio between head sentence and non-parole period. This is based on the risk of institutionalisation in this case, and also for there to be a reasonable period on supervision one he is released to parole.

34. I impose a non-parole period of two years, four months. As I said, they will date from 4 January 2025. The head sentence will expire on 3 May 2028. The non-parole period will expire on 3 May 2027.

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