AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 18 April 2019

R v Leclair

[2019] NSWDC 152

Assault & violencePublic order & justice offences

Citation: R v Leclair [2019] NSWDC 152
Court: District Court of New South Wales
Date: 18 April 2019
Judge(s): Buscombe DCJ

Background

The offender pleaded guilty to a single count of kidnapping occasioning actual bodily harm under s 86(3) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment with no standard non-parole period. The offence arose from events on the night of 28 to 29 December 2013, in which the offender and a co-offender detained the victim, who had arranged a cannabis purchase that went wrong when the dealer absconded with the money.

The offender, believing the victim was complicit in stealing the money, forced him at knifepoint into a vehicle in the ACT and transported him through Theodore and then across the border into New South Wales. At a remote bushland location near Captain's Flat, both offenders tied the victim's hands, beat him with a baseball bat, and left him unconscious in the dirt. The victim suffered serious injuries including collapsed lungs, a lacerated liver, and extensive bruising.

The offending straddled two jurisdictions. The ACT component had already been prosecuted separately: the offender was sentenced in the ACT Supreme Court on 25 May 2016, receiving 3 years and 6 months for unlawful confinement (with a 29-month non-parole period), confirmed on appeal. The NSW proceedings addressed the continuation of that same course of conduct once the vehicle crossed the border.

  • How should an NSW court sentence an offender for conduct forming part of a continuous cross-border course of conduct, where the offender has already been sentenced in another jurisdiction for the related ACT portion of that conduct?
  • What weight should be given to principles of delay (as discussed in Mill v The Queen) given the gap between the offending in 2013 and the NSW sentence in 2019?
  • What notional sentence would have been appropriate had all of the conduct occurred in NSW, and how should the sentence imposed reflect the credit already given by the ACT sentence?

Decision

Buscombe DCJ identified the central sentencing complexity as the need to avoid punishing the offender twice for substantially the same conduct. The offending in the ACT and in NSW formed, in his Honour's view, effectively one continuous course of detaining conduct. The ACT sentence had already addressed a significant portion of that conduct, and the NSW court was required to take that into account when fixing the appropriate term.

Applying the principles in Mill v The Queen, which address how courts should approach sentencing where an offender has already been sentenced elsewhere for related offending, his Honour formed a view of what the overall sentence would have been had all of the conduct occurred in NSW. He assessed that notional overall sentence at five years with a non-parole period of three years and three months.

Having established that notional benchmark, his Honour then crafted an NSW sentence that, when considered alongside the ACT sentence already served, would produce a just overall outcome. The result was a substantially reduced non-parole period relative to the total term, reflecting both the credit due for the prior ACT sentence and the principles of delay arising from the time between offending and NSW sentencing.

His Honour also took into account subjective matters relevant to the offender, consistent with the principles in Bugmy v The Queen regarding the relevance of background and disadvantage to sentencing. The victim's impact statements were acknowledged, with the court noting the significant and lasting effect of the offending on the victim.

Orders Made

  • The offender was convicted of kidnapping occasioning actual bodily harm.
  • Sentenced to a total term of imprisonment of 2 years and 3 months, commencing 9 February 2019 and expiring 8 May 2021.
  • Non-parole period of 6 months, expiring 8 August 2019.
  • The offender was to be released to parole on 8 August 2019 pursuant to a statutory parole order, subject to the determination of the State Parole Authority.

Key Takeaways

  • Where a single continuous course of criminal conduct crosses state or territory borders and results in separate charges in each jurisdiction, the second sentencing court must take the prior sentence into account to avoid double punishment for what is substantially the same offending.
  • Applying Mill v The Queen, the District Court assessed a notional overall sentence for all of the conduct as if it had occurred entirely in NSW, then calibrated the NSW sentence to achieve a just total outcome when considered alongside the sentence already served in the ACT.
  • A markedly low ratio of non-parole period to total term can be a legitimate sentencing mechanism where it gives effect to the court's notional overall sentence and reflects credit for prior related punishment in another jurisdiction.
  • Delay between offending and sentencing is a recognised mitigating factor under Mill, and its significance is amplified where the delay was not of the offender's making.
  • Under s 86(3) of the Crimes Act 1900 (NSW), kidnapping occasioning actual bodily harm carries a maximum of 25 years imprisonment with no applicable standard non-parole period, giving the sentencing court considerable discretion in structuring the sentence.

Legislation and Cases Referenced

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

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Mill v The Queen (1988) 166 CLR 59