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District Court 1 April 2016

R v NICHOLS, William Ronald

[2016] NSWDC 389

Assault & violence
CRIMINAL DETAIN FOR ADVANTAGE SENTENCING DISCOUNT FOR COOPERATION WITH POLICE ROLE OF CO DEGREE OF PLANNING

Citation: R v Nichols, William Ronald [2016] NSWDC 389
Court: District Court of New South Wales
Date: 1 April 2016
Judge: Judge S Norrish QC

Background

The prisoner, a man aged 26 at the time of the offence, pleaded guilty to a charge of detaining a person for advantage, contrary to s 86(3) of the Crimes Act 1900 (NSW). The offence occurred on 26 April 2014 at Young, New South Wales. Acting in company with a co-accused, the prisoner detained a 17-year-old victim without consent, with the intention of recovering money and prohibited drugs, and actual bodily harm was occasioned to the victim during the detention.

The prisoner had no prior criminal history. Almost from the moment the victim reported the offence, the prisoner cooperated extensively with police: he surrendered himself on advice, made full admissions in a lengthy interview on the day of the offence, participated in a video recorded walk-through, and was interviewed again shortly afterwards. He later indicated a continuing willingness to give evidence at the trial of his co-accused.

The matter was heard across two separate sittings. The sentencing exercise was described by the judge as particularly difficult, requiring a close analysis of the prisoner's moral culpability in light of contextual factors that altered the initial impression created by a first reading of the facts.

  • What combined discount was appropriate for the prisoner's early plea of guilty and his cooperation with prosecuting authorities?
  • How should the prisoner's moral culpability be assessed, given that the co-accused, not the prisoner, directly inflicted harm on the victim?
  • What weight should be given to the element of provocation by the victim and the prisoner's motive in pursuing the advantage?
  • What degree of planning was involved, and how did that bear on objective seriousness?
  • To what extent should general deterrence be applied where the prisoner had no prior offending history?
  • Whether a term of full-time imprisonment was required, or whether an Intensive Correction Order (ICO) was an available and appropriate alternative.

Decision

The court assessed the starting point sentence at three years and six months imprisonment, taking into account the objective seriousness of the offence and relevant mitigating factors before applying any discounts. The offence carried a maximum penalty of 25 years as a "specially aggravated" form under s 86(3), given the two aggravating circumstances of being committed in company and causing actual bodily harm.

A combined discount of 45 per cent was applied: 20 per cent for the utilitarian benefit of the plea of guilty (entered before a trial date was fixed, following committal), and 25 per cent for the prisoner's substantial cooperation with authorities. That cooperation was described as consistent, early, and extensive, encompassing multiple interviews, full admissions, a walk-through, and an undertaking to give evidence at the co-accused's trial.

The court accepted that while the facts were initially confronting, closer analysis of the contextual circumstances, including the prisoner's lesser role in directly inflicting harm, elements of provocation by the victim, and the nature of the motive, affected the assessment of moral culpability. The prisoner's lack of prior offending, positive steps toward rehabilitation, and the prospect of protective custody requirements were also considered.

After applying the 45 per cent discount to the starting point, the resulting sentence was 23 months imprisonment. The court noted this fell within the threshold allowing consideration of an ICO, and referred the prisoner for assessment. The judge made clear, however, that if the prisoner failed to cooperate at the co-accused's trial, the cooperation discount would be lost, the sentence would increase substantially beyond two years, and full-time custody would follow.

Orders Made

  • The prisoner was convicted of the offence under s 86(3) of the Crimes Act 1900 (NSW).
  • A sentence of imprisonment of 23 months was imposed.
  • The prisoner was referred for assessment as to suitability for an Intensive Correction Order as the means of serving the sentence.
  • Bail was continued on condition that the prisoner attend Community Corrections Service at Port Macquarie within seven days and comply with all reasonable directions of that service.
  • The matter was adjourned to 27 May 2016 (not before 2pm) for finalisation.

Key Takeaways

  • A combined discount of 45 per cent was available where a prisoner entered an early plea of guilty and cooperated extensively with authorities through multiple admissions, a recorded walk-through, and an undertaking to give evidence against a co-accused.
  • Where a co-accused, rather than the prisoner, directly inflicted physical harm on the victim, that distinction is a relevant factor in assessing the prisoner's moral culpability, even where the prisoner is convicted of the aggravated form of the offence.
  • Provocation by the victim and the nature of the motive pursued can bear on the assessment of moral culpability, though the court was careful to analyse these factors within established sentencing authority rather than as general mitigation.
  • The District Court confirmed that the absence of prior offending, genuine steps toward rehabilitation, and the prospect of protective custody conditions in prison are all factors relevant to the determination of an appropriate sentence.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a cooperation discount remains contingent on the prisoner fulfilling the undertaking to cooperate; failure to give evidence at the co-accused's trial would cause the discount to lapse, with the resulting sentence likely exceeding two years and requiring full-time custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(1), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- Barlow v R [2008] NSWCCA 96
- Blackman and Walters [2001] NSWCCA 121
- Lattouf v R [1999] NSWSC 1382
- R v Collett and Robson, Court of Criminal Appeal, unreported, 7 June 1979
- R v Henry (1999) 46 NSWLR 346
- R v Newell [2004] NSWCCA 183
- R v Rayment [2010] NSWCCA 85
- R v Speechley [2012] NSWCCA 130
- R v Swan [2006] NSWCCA 47
- R v Thomson; R v Houlton (2000) 49 NSWLR 309
- R v Zamagias [2002] NSWCCA 16
- Regina v Sukkar [2006] NSWCCA 92
- SL v R [2015] NSWCCA 30
- Veen v R (No 2) (1988) 165 CLR 465
- Williams v R [2006] NSWCCA 33
- Yardley v Betts (1979) 22 SASR 108
- Z v R [2014] NSWCCA 323