Citation: R v Mitchell Cody Peck [2018] NSWDC 460
Court: District Court of New South Wales
Date: 14 November 2018
Judge: Tupman DCJ
Background
The offender pleaded guilty to two counts of detaining a person for advantage under s 86(2)(a) of the Crimes Act 1900 (NSW), each carrying a maximum of 20 years imprisonment. Both offences arose from a single incident on 14 June 2017 in Queanbeyan, in which the offender and his co-accused, a woman named Cross, detained two girls aged approximately 14 years in a motor vehicle.
Cross was the instigator and driving force. She had a personal motive rooted in a jealous belief that one of the girls had been sexually involved with her partner, a man who had a family connection to that complainant. Cross verbally abused, threatened, and intimidated both girls throughout the episode, produced knives and other weapons, used central locking to prevent the girls from escaping, and threatened to kill them and their family members.
The offender sat in the passenger seat during much of the detention and took no active role in initiating or driving the conduct. His principal participations were accepting the girls' phones so their location could not be traced, and separately interviewing each girl in a park at Cross's behest. The court accepted that he believed his intervention during the park episode was an attempt to act as a circuit breaker and secure the girls' release with less harm, though he acknowledged that returning each girl to the vehicle contributed to their continued detention.
Legal Issues
- What was the objective seriousness of the offender's conduct, given his minor and largely passive role compared with his co-accused?
- What discount was appropriate for pleas of guilty entered on the first day of the listed trial?
- How should pre-trial custody (including time spent under conditions in a rehabilitation unit) be calculated and credited?
- What weight should be given to three pre-existing bonds (under ss 9, 10, and 12) that had not yet been called up, and how should their breach be treated?
- Whether the two concurrent sentences were appropriate given that both charges arose from a single episode of criminality involving separate complainants.
Decision
Her Honour found that the offending was of relatively low objective seriousness as against this particular offender. He had no personal motive of his own; the psychological gratification being sought was Cross's alone. The court accepted his evidence that his park interviews were a genuine, if poorly executed, attempt to defuse the situation, while recognising that returning the girls to the vehicle remained a real contribution to their detention.
Pleas were entered on the first day of trial, and Her Honour treated them as late, allowing a discount of between 10 and 15 per cent. The court also took into account approximately seven months of actual pre-trial custody and a further period of approximately nine to ten months in a rehabilitation unit operating under restrictive conditions, treating the latter at roughly 50 per cent of full-time custody. Combining those two periods, the court assessed the equivalent of approximately 12 months of full-time custody.
The three existing bonds, not yet called up, were treated as an aggravating factor going to objective seriousness rather than as separate matters to be activated. Her Honour recommended that the bonds not be called up precisely because their breach had already been factored into the sentence. The court also noted the offender's significant rehabilitation since his release to bail, and assessed his prospects of further rehabilitation as good.
Finding special circumstances, Her Honour set a non-parole period of 12 months against an overall term of one year and nine months, and backdated the sentence to 15 November 2017. This meant the non-parole period had already been served and the offender was to be released to parole immediately. Both sentences were ordered to run concurrently, reflecting a single overall episode of criminality.
Orders Made
- The offender was convicted on each of the two charges.
- Sentenced to imprisonment for one year and nine months on each charge, to be served concurrently.
- Non-parole period of 12 months commencing 15 November 2017, expiring 14 November 2018.
- Parole period of nine months commencing 15 November 2018, expiring 14 August 2019.
- Directed to be released to parole forthwith, subject to supervision by Community Corrections.
- The court recommended that the existing ss 9, 10, and 12 bonds not be called up, as their breach had already been taken into account in sentencing.
Key Takeaways
- A participant in a joint criminal enterprise can be sentenced at a markedly lower level of objective seriousness than the instigator where the evidence establishes that their role was minor, largely passive, and motivated by an attempt to mitigate harm rather than advance the offending.
- Time spent in a rehabilitation unit under restrictive conditions can be credited as the equivalent of approximately 50 per cent of full-time pre-trial custody, which is then added to any actual time served in custody.
- Where an offender is already subject to bonds that have not been called up, the breach of those bonds is available as an aggravating factor in sentencing; a court that takes the breach into account in this way may appropriately recommend against calling up the bonds to avoid double punishment.
- Late pleas of guilty, entered on the first day of a listed trial, attracted a relatively modest discount of 10 to 15 per cent in this case.
- Two charges involving separate complainants arising from a single continuous episode of criminality were treated as warranting concurrent rather than cumulative sentences, at least as against the less culpable co-offender.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a) (detaining a person for advantage in company; maximum 20 years imprisonment)
- Bonds referred to under ss 9, 10, and 12 (sentencing provisions then in force)
Cases:
No specific cases were cited in the judgment text provided.