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District Court 21 February 2014

R v Cordell; R v Petersen

[2014] NSWDC 74

Sexual offencesAssault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW PARTICULAR OFFENCES SENTENCE RELEVANT FACTORS PETERSEN GREATER CRIMINALITY THAN CO

Citation: R v Cordell; R v Petersen [2014] NSWDC 74
Court: District Court of New South Wales
Date: 21 February 2014
Judge(s): Cogswell SC DCJ

Background

Late at night in September 2011, three men entered the backyard of a family home in Colyton, Sydney. Two of those men, Dean Petersen and Ricky Cordell, committed serious offences against the occupants of the home, including assaults, a detention at knifepoint, and an indecency-related offence.

Petersen faced four charges arising from the incident: two counts of assault occasioning actual bodily harm in company (against the male occupant and his partner), detention with intent to steal property in company (against a 17-year-old), and use of an offensive weapon with intent to commit an act of indecency (also against the 17-year-old). He pleaded guilty to all four charges and asked the court to take a fifth, related offence into account on sentence under a Form 1.

Cordell faced four charges but was acquitted of two at trial, leaving him to be sentenced for assault occasioning actual bodily harm in company against the adult female occupant, and detention with intent to steal property in company against the 17-year-old. The court's task was to sentence both men in a way that reflected their individual degrees of criminality, personal circumstances, and the purposes of sentencing.

  • What sentence was appropriate for Petersen, having regard to the seriousness of his offending, his guilty plea, his Aboriginality, his youth, and his rehabilitation efforts?
  • What discount should Petersen receive for his guilty plea, given the plea followed charge negotiations that reduced the number of counts?
  • What sentence was appropriate for Cordell, who was convicted after trial, played a lesser role than Petersen, had a difficult background including substance abuse, and had made exceptional progress in the Odyssey House rehabilitation program?
  • How should the court apply the principle from Bugmy v The Queen regarding the relevance of an offender's deprived background (particularly Aboriginality and disadvantage) to sentencing?
  • Whether a non-custodial or quasi-custodial order was appropriate for Cordell given his advanced rehabilitation stage.

Decision

Petersen's sentence. The court found Petersen's criminality to be the greater of the two offenders. He was the principal aggressor: he punched the male occupant repeatedly, dragged the female occupant by the hair and struck her with a metal object, held a knife to the 17-year-old's throat while detaining and moving her through the house, and committed the indecency-related offending. He was also on conditional liberty at the time and had a prior conviction for serious personal violence. These factors significantly aggravated his offending.

The court accepted that Petersen's guilty plea had been entered following charge negotiations, resulting in fewer counts than originally laid. Drawing on Cameron v The Queen and Atholwood v The Queen, the court acknowledged the plea had some utilitarian value but was not entitled to the full discount associated with an early, unambiguous plea. A 12% discount was applied. The court also took into account Petersen's Aboriginality and disadvantaged background (applying Bugmy v The Queen), his youth, his genuine remorse, his family support, and the rehabilitative courses he had undertaken in custody. The aggregate sentence imposed was 9 years' imprisonment, with an earliest parole eligibility date of 20 July 2017 and a full term expiring 20 January 2022.

Cordell's sentence. The court found Cordell's criminality to be significantly lower than Petersen's. In the assault against the female occupant, Cordell did no more than stand approximately 1.5 to 2 metres away without touching her. In the detention offence, Petersen commenced the offending before Cordell became involved. Cordell received no discount for a guilty plea as he had contested the charges at trial.

The court gave considerable weight to Cordell's demonstrated commitment to rehabilitation. By the time of sentencing, he had reached an advanced stage of the Odyssey House residential drug rehabilitation program, representing what the court described as an extraordinary commitment. The court also took into account his adverse childhood, learning difficulties, and long history of substance abuse. Emphasising rehabilitation as the dominant sentencing purpose in Cordell's case, the court imposed a 2-year bond under section 12 of the Crimes (Sentencing Procedure) Act 1999, treating the Odyssey House program as a form of quasi-custody.

Orders Made

• 9 year gaol term for Mr Petersen, backdated to January (with 9 months credit for time served on balance of parole and concurrent sentence)
• Eligible for parole on 20 July 2017
• Sentence expires on 20 January 2022

Key Takeaways

  • The District Court applied Bugmy v The Queen to both offenders, recognising that an Aboriginal offender's background of deprivation and disadvantage is a relevant mitigating factor at sentencing, though it does not diminish the objective seriousness of the offending.
  • A guilty plea entered following charge negotiations attracts a reduced discount compared to an early, unambiguous plea; the court settled on 12% as a midpoint between the competing submissions of 10% and 15%.
  • Where co-offenders are sentenced for the same offence, the court calibrated penalties to reflect each individual's actual role: Petersen was the dominant, more violent participant, while Cordell was more peripheral in both relevant offences.
  • Advanced and genuine participation in a residential rehabilitation program can support a non-custodial outcome even for serious indictable offences, provided the court is satisfied rehabilitation is the appropriate dominant sentencing purpose.
  • Under section 32 of the Crimes (Sentencing Procedure) Act 1999, a court sentencing for a principal offence may take a related offence into account by means of a signed Form 1, without imposing a separate penalty for that additional matter.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(2), 86(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 12, 21A, 32
- Children (Criminal Proceedings) Act 1987 (NSW), s 14

Cases
- Bugmy v The Queen [2013] HCA 37; 87 ALRJ 1022; 302 ALR 192
- Cameron v The Queen [2002] HCA 6; 209 CLR 339; 76 ALRJ 382
- Atholwood v The Queen [1999] WASCA 256; 109 A Crim R 465
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145