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District Court 12 October 2018

R v Hill; R v King

[2018] NSWDC 300

Assault & violenceFraud & dishonestyTheft & property
SENTENCING AGGRAVATING FACTORS AGGRAVATING FACTORS MITIGATING FACTORS REMORSE SENTENCING RELEVANT FACTORS ON SENTENCE

Citation: R v Hill; R v King [2018] NSWDC 300
Court: District Court of New South Wales
Date: 12 October 2018
Judge: Hatzistergos DCJ

Background

Two co-offenders pleaded guilty to especially aggravated kidnapping under s 86(3) of the Crimes Act 1900 (NSW). The offence involved detaining a victim overnight without consent, with the intention of obtaining a financial advantage, and occasioning him actual bodily harm in company. Each offender also faced six charges of dishonestly obtaining a financial advantage by deception under s 192E(1)(b), which were placed on a Form 1 to be taken into account on sentence (meaning the court considered them when fixing the sentence without recording separate convictions).

The victim had an existing relationship with the female offender, whom he had been paying for escort services over more than a year. He had also allowed both offenders to stay at his family's property. The male offender had previously been bailed to the victim's address. The offending on the night in question was plainly premeditated: text messages exchanged between the offenders before the victim arrived made clear that a planned assault was imminent.

On the night of 28 to 29 September 2017, the victim attended a hotel room believing he was meeting the female offender for a pre-arranged engagement. The male offender was present and immediately assaulted him. Over the course of several hours, the offenders beat and threatened the victim with a knife, compelled him to transfer money from his bank accounts, took his wallet, debit cards and iPad, forced him to smoke methylamphetamine ("ice") and recorded him doing so, coerced him into signing a false statutory declaration, and kept him confined. The female offender was present and active throughout.

  • What was the appropriate objective seriousness of the offences for each offender?
  • Which statutory aggravating factors applied, including causing the victim to take an intoxicating substance (s 21A(2)(cb)) and offending while on conditional liberty (s 21A(2)(n))?
  • What mitigating factors applied, including remorse, guilty pleas, and personal circumstances such as mental health and substance dependency?
  • How should the principle of parity operate when sentencing co-offenders with different roles and different criminal histories?
  • Was an Intensive Correction Order (ICO) available to either offender?

Decision

Hatzistergos DCJ assessed the objective seriousness of the kidnapping as high. The offending was premeditated, sustained over several hours, involved a weapon, caused actual bodily harm, included the forced administration of a prohibited drug, and left the victim psychologically harmed. The court treated the forced smoking of methylamphetamine as a separate statutory aggravating feature under s 21A(2)(cb). Both offenders were found to have committed the offence while on conditional liberty, which was also treated as an aggravating factor.

The male offender was found to bear the greater criminality. He carried out the physical assault, wielded the knife, and directed the commission of the offence. His criminal history was more extensive, and he had limited remorse. Some mitigation was found in his difficult upbringing and diagnosed ADHD. The female offender was assessed as less culpable by virtue of her lesser role, genuine remorse, guilty plea, background of disadvantage, and substance dependency. The court accepted, however, that she was an active and willing participant, not merely a bystander.

On parity, the court was satisfied that a difference in sentences was warranted by the genuine differences in the offenders' roles and subjective circumstances. An ICO was not available to either offender given the nature and seriousness of the offence. The female offender's total sentence fell below six years, which meant the court was required to refer her to the Drug Court to assess eligibility for a Compulsory Drug Treatment Order.

Orders Made

Matthew James King:
- Convicted of especially aggravated kidnapping
- Sentenced to 4 years and 6 months imprisonment commencing 2 April 2018, expiring 1 October 2022 (non-parole period)
- Additional term of 2 years and 3 months commencing 2 October 2022, expiring 1 January 2025
- Earliest release date: 1 October 2022 (subject to the State Parole Authority)
- Form 1 offences taken into account

Amie Jayne Hill:
- Convicted of especially aggravated kidnapping
- Sentenced to 4 years imprisonment commencing 2 October 2017, expiring 1 October 2021 (non-parole period)
- Additional term of 2 years commencing 2 October 2021, expiring 1 October 2023
- Earliest release date: 1 October 2021
- Form 1 offences taken into account
- Referred to the Drug Court to assess eligibility for a Compulsory Drug Treatment Order
- No action taken on breach of the existing s 9 bond

Key Takeaways

  • Forcing a victim to consume a prohibited substance during the commission of an offence constitutes a distinct statutory aggravating factor under s 21A(2)(cb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), separate from any harm caused by the principal offence.

  • The District Court confirmed that parity between co-offenders does not require identical sentences where genuine differences in culpability, criminal history, and subjective circumstances exist. A less active role, combined with stronger mitigating factors, can justify a materially lower sentence.

  • Premeditation, sustained duration of offending, the use of a weapon, and the psychological impact on a victim all bear significantly on the objective seriousness of an especially aggravated kidnapping.

  • Where a co-offender's total sentence is less than six years, the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the sentencing court to refer that offender to the Drug Court for assessment of eligibility for a Compulsory Drug Treatment Order, even where the offence is serious.

  • Offending while on conditional liberty is treated as a specific statutory aggravating factor, and its weight is undiminished by the offender's personal circumstances at the time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 86(3), 192E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(c), 21A(2)(cb), 21A(2)(j), 21A(2)(n), 21A(3)(e), 21A(3)(i), 21A(3)(k), 44(2)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146
- Georgeopoulos v R [2010] NSWCCA 246
- Hein v R [2008] NSWCCA 61
- Homsi v R [2011] NSWCCA 164
- Jefferies v R [2008] NSWCCA 144
- R v Anforth [2003] NSWCCA 222
- R v Bajouri [2009] NSWCCA 125
- R v Johnson, Hall and Ersman [2009] NSWDC 279
- R v Khan, Rana and Mahay [2010] NSWDC 341
- R v Newell [2004] NSWCCA 183
- R v Thompson; R v Houlton [2000] NSWCCA 309
- Wu; Li v R [2005] NSWCCA 442
- Yousif v R [2010] NSWCCA 206