Citation: R v Hussein [2018] NSWDC 519
Court: District Court of New South Wales
Date: 11 December 2018
Judge: Neilson DCJ
Background
The offender pleaded guilty to aggravated kidnapping, committed on 17 December 2015 at Newington. He participated in a joint criminal enterprise with three named co-offenders and two unknown males, detaining a victim without consent with the intention of obtaining a financial advantage. A related charge of taking and driving the victim's motor vehicle without consent was placed on a Form 1 to be taken into account at sentence.
Before sentencing on the kidnapping, the Crown raised a separate matter: the offender had previously been placed on eleven good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999, imposed in September 2014 for a series of break, enter and steal offences against his flatmates. Those bonds had been breached, but the call-up application was made on the morning of the sentencing hearing, more than four years after the bonds were imposed and more than two years after they had expired.
The offender had a subsequent criminal history including drug offences for which he had already received a sentence of 28 months imprisonment commencing March 2017. He had been held in custody awaiting sentence on the current matter rather than being released to parole at the end of his non-parole period.
Legal Issues
- Whether the court should take action on the call-up for breach of the expired s 9 bonds, given the very substantial delay in bringing the application
- What weight to give the offender's role in the joint criminal enterprise, his personal circumstances, and his rehabilitation prospects when fixing the head sentence for aggravated kidnapping
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio
- What discount was appropriate for a late plea of guilty
Decision
Bond call-up: no action taken. Neilson DCJ declined to take any action on the breach of the s 9 bonds. The Court of Criminal Appeal had previously stated in R v Doyle that breaches of non-custodial orders must be dealt with swiftly. Here, the bonds had been imposed over four years earlier, had long since expired, and the call-up application was raised for the first time on the morning of the sentencing hearing. His Honour invoked the principle, traced back to Magna Carta and reflected in the Imperial Acts Application Act 1969, that justice must be administered promptly. Revoking bonds in these circumstances would, in his Honour's view, serve no legitimate sentencing purpose.
Aggravated kidnapping: role and culpability. His Honour accepted that the offender participated in a crime planned and executed for the benefit of others, likely out of a misplaced sense of loyalty. That contextual finding moderated the offender's individual culpability within the joint enterprise, though it did not reduce the objective seriousness of the offence itself.
Head sentence and discount. Starting at two years and six months imprisonment, his Honour applied a 10% discount for the late plea of guilty, producing a head sentence of two years and three months. The plea was entered on 21 August 2018, well into the proceedings, which limited the available discount.
Special circumstances and non-parole period. His Honour found special circumstances, citing the offender's age, the time already spent in custody, the need to avoid a custodial term so lengthy it would crush the offender's spirit and undermine rehabilitation, and the requirement for structured parole supervision including assistance with accommodation and employment upon release. A non-parole period of one year and three months was set, representing a shorter proportion of the head sentence than the statutory default. The sentence was backdated to commence on 1 September 2018.
Orders Made
- No action taken on the call-up for breach of the eleven s 9 bonds
- Convicted of aggravated kidnapping (detention without consent with intent to obtain financial advantage, 17 December 2015, Newington)
- Sentenced to imprisonment with a non-parole period of one year and three months, commencing 1 September 2018 and expiring 30 November 2019
- Balance of sentence of one year, commencing 30 November 2019 and expiring 30 November 2020
- Total head sentence: two years and three months
- Special circumstances found
- Form 1 offence (taking and driving motor vehicle without consent) taken into account
Key Takeaways
- Where a bond call-up application is brought years after the bonds have expired and with no explanation for the delay, the District Court may exercise its discretion under s 98(2) of the Crimes (Sentencing Procedure) Act 1999 to take no action, particularly where the requirement of promptness in the administration of justice would be offended.
- The principle that justice must be administered swiftly has deep historical roots, recognised by the court through reference to Magna Carta and the Imperial Acts Application Act 1969, and applies to the enforcement of non-custodial orders as much as to any other sentencing proceeding.
- Participation in a joint criminal enterprise at the instigation of others, and for their benefit rather than the offender's own, is a relevant consideration in assessing individual moral culpability at sentence.
- Special circumstances justifying a reduced non-parole period can arise where a young offender has already served substantial time in custody and where an extended parole period is needed to support rehabilitation, stable accommodation, and employment upon release.
- A late plea of guilty attracts only a limited discount; in this case the plea, entered during proceedings rather than at the earliest opportunity, produced a reduction of 10% from the starting point.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9 and 98(2)
- Imperial Acts Application Act 1969 (NSW)
- Magna Carta, 25 Edward I ch 29
Cases
- R v Doyle (1996) 84 A Crim R 287 (NSWCCA)
- R v Jones (unreported, NSWCCA, 30 June 1994)