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District Court 1 April 2016

R v Nichols

[2016] NSWDC 91

Assault & violencePublic order & justice offences
CRIMINAL

Citation: R v Nichols [2016] NSWDC 91
Court: District Court of New South Wales
Date: 1 April 2016
Judge: Judge S Norrish QC

Background

The offender pleaded guilty to one count of detaining a person for advantage in company, contrary to s 86(3) of the Crimes Act 1900. The offence occurred on 26 April 2014 at Young, New South Wales. The offender, aged 26 at the time, acted in company with a co-accused to detain a 17-year-old victim without consent, with the intention of recovering money and prohibited drugs, and occasioned actual bodily harm to the victim in the process.

The offence fell within the "specially aggravated" category under s 86(3), which carries a maximum penalty of 25 years imprisonment. The two aggravating elements were the presence of a co-offender and the infliction of actual bodily harm on the victim.

Sentencing took place across two separate sittings of the Wagga Wagga District Court. The delay between those sittings arose because, after the initial hearing, it became necessary to assess the nature and extent of the offender's cooperation with prosecuting authorities in relation to the forthcoming trial of the co-accused.

  • What was the appropriate starting point for sentence, having regard to the objective seriousness of the offending and the offender's subjective circumstances?
  • What discount was warranted for the utilitarian value of the guilty plea?
  • What additional discount, if any, was warranted for the offender's cooperation with the prosecution, including pre-charge admissions and a commitment to give evidence against the co-accused?
  • Whether the sentence should be served by way of full-time custody or an Intensive Correction Order (ICO)?

Decision

Judge Norrish identified the sentencing exercise as genuinely difficult. On first impression, the facts were confronting: the deliberate detention and harm of a teenage victim for the purpose of recovering money and drugs. However, on closer analysis of the full evidentiary record, including extensive admissions made by the offender almost immediately after the offence, the court assessed the offender's moral culpability in a somewhat different light than his initial reaction had suggested.

The court arrived at a pre-discount starting point of three and a half years (three years six months) imprisonment, reflecting both the objective seriousness of the offence and the offender's relevant subjective circumstances and mitigating factors.

On the question of discounts, the court allowed 20% for the utilitarian value of the guilty plea. Although the plea was entered after committal for trial, it was indicated before a "super callover" and entered at that callover without a trial date having been fixed. A further 25% discount was applied for the offender's cooperation. This cooperation was extensive: the offender had surrendered to police on his mother's advice, participated in a lengthy recorded interview on the day of the offence, completed a video walk-through, and was interviewed again several days later. He also committed to giving evidence at the co-accused's trial. The combined discount of 45% produced a sentence of 23 months imprisonment.

The court declined to impose full-time custody outright, noting the sentence fell within two years. The offender was referred for assessment for an Intensive Correction Order. The court was explicit, however, that if found unsuitable or ineligible for an ICO, a suspended sentence would not follow. The court also warned that if the offender failed to cooperate at the co-accused's trial, the prosecution could appeal and the 25% cooperation discount would be lost, producing a sentence that would necessarily involve full-time custody with a non-parole period.

Orders Made

  • The offender was convicted of the offence under s 86(3) of the Crimes Act 1900.
  • A sentence of imprisonment for a period of no more than two years was imposed.
  • The offender was referred for assessment as to suitability for an Intensive Correction Order.
  • Bail was continued on the condition that the offender attend the 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 (no earlier than 2pm) for further orders following the ICO assessment.

Key Takeaways

  • A combined discount of 45% was applied where an offender entered an early guilty plea (before a trial date was fixed) and provided substantial cooperation to authorities, including immediate admissions, a video walk-through, further interviews, and a commitment to give evidence against a co-accused.

  • The District Court treated pre-charge admissions and voluntary surrender as highly material to the cooperation discount, even though the formal plea was entered after committal for trial.

  • Where a sentence of imprisonment is fixed at no more than two years, the sentencing court may refer the offender for ICO assessment rather than immediately impose full-time custody, but this does not guarantee a non-custodial outcome.

  • Under s 86 of the Crimes Act 1900, the "specially aggravated" form of detaining a person for advantage (in company, with actual bodily harm occasioned) carries a maximum of 25 years imprisonment, reflecting the legislature's graduated scheme of 14 years (basic), 20 years (aggravated), and 25 years (specially aggravated).

  • A cooperation discount that has been built into a sentence may be subsequently lost if the offender fails to fulfil the cooperation obligation, and the prosecution retains the right to appeal the original sentence to the Court of Criminal Appeal in that event.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(1), (2), (3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- R v Blackman and Walters [2001] NSWCCA 121
- R v Collett and Robson (unrep, 1979, NSWCCA)
- R v Lattouf (unrep, 1996, NSWCCA)
- SL v R [2015] NSWCCA 30
- R v Speechley [2012] NSWCCA 130
- R v Sukkar [2006] NSWCCA 92
- R v Swan [2006] NSWCCA 47
- R v Thomson and Houlton [2000] NSWCCA 309
- Veen (No. 2) v R (1988) 165 CLR 465
- Yardley v Betts (1979) 22 SASR 108
- Z v R [2014] NSWCCA 323