Citation: R v Farrell [2019] NSWDC 835
Court: District Court of New South Wales
Date: 10 October 2019
Judge(s): King SC DCJ
Background
The offender, Lance Farrell, appeared for sentencing on two counts of causing detriment to a potential witness, contrary to s 326(2) of the Crimes Act 1900. The charges arose from a sustained campaign to publicly identify two individuals who had agreed to give evidence in the prosecution of his younger brother, Cory Farrell, over a 2014 shooting.
While the offender was himself in custody on unrelated matters, he directed associates outside prison to obtain copies of confidential informant letters and a witness statement from Cory Farrell's solicitor. Those associates then published the documents to a public Instagram account called "Sydneyinformant", along with captions the offender composed and updated via recorded prison telephone calls. The posts named both witnesses, identified them as police informants, and used the hashtag "supergrass" to flag one victim's placement in a custodial witness protection program.
One victim, referred to as TJ, had a prior relationship with the offender and was the subject of an existing Apprehended Violence Order. The other victim, LB, was an inmate at the time. A Form 1 offence of contravening the AVO was also taken into account in sentencing for the TJ count.
Legal Issues
- What sentence was appropriate for two counts of causing detriment to a potential witness under s 326(2) of the Crimes Act 1900, each carrying a maximum of ten years' imprisonment?
- How should the objective seriousness of each offence be assessed, particularly given that one victim was in custody and enrolled in a witness protection program at the time of the offending?
- What discount applied for the guilty plea, and when should the sentence commence given the offender's existing time in custody?
- Were special circumstances established to justify departing from the standard 75% non-parole period ratio?
Decision
The District Court found both offences to be serious. The offending was premeditated, deliberate, and sustained over a period from 25 August to 12 November 2018. It involved recruiting others to carry out the offender's instructions and continued even after the brother's prosecution had resolved by way of guilty plea, meaning the conduct could not be characterised as an attempt to deter witnesses from giving evidence. Rather, the court found the offender's clear purpose was to expose the victims within criminal circles and to warn other associates away from them.
The court assessed the offence involving LB as more serious than the one involving TJ. LB was in custody at the time and his placement in the custodial witness protection program was disclosed publicly, creating a heightened and immediate risk of harm. Although no adverse physical consequence to either victim was proved, the court noted the risk of serious retribution was very high for as long as the account remained active. The court also observed that the offending occurred while the offender was himself in custody on parole revocation and charged with offences of a similar nature.
A 10% discount for the utility of the guilty plea was applied to each offence, as the plea was entered after committal and more than 14 days before trial. The indicative sentence for the TJ count (including the Form 1 AVO breach) was two years and four months. The indicative sentence for the LB count was two years and six months, reflecting the higher objective seriousness.
The court found special circumstances on the basis of totality. The offender had been in custody since 5 July 2017, and accounting for that period, the court reduced the non-parole proportion from the standard 75% to approximately 50% of the total sentence to achieve an appropriate overall balance. The sentence was dated from the expiry of the offender's parole period.
Orders Made
- Aggregate sentence of three years' imprisonment imposed.
- Non-parole period of one year and six months, commencing 2 September 2019 and expiring 1 March 2021.
- Balance of term of one year and six months, with total sentence expiring 1 September 2022.
- Separate charge (Sequence 3, a further AVO contravention) withdrawn and dismissed.
Key Takeaways
- Causing detriment to a potential witness under s 326(2) of the Crimes Act 1900 carries a maximum of ten years' imprisonment and does not attract a standard non-parole period, leaving the sentencing court with broad discretion.
- The District Court treated the offending as more serious where a victim was in custody and enrolled in a witness protection program, given the substantially elevated risk of violent retribution in a custodial environment.
- A guilty plea entered after committal but more than 14 days before trial attracted a 10% discount for utility, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
- Conducting criminal conduct from within prison, through the direction of associates, does not reduce the offender's culpability; the court expressly noted the offending occurred while the offender was in custody and on parole revocation for similar conduct.
- Special circumstances were established by reference to totality where the offender had spent a significant period in pre-sentence custody, permitting a reduction in the non-parole proportion below the standard 75% ratio.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 326(2) (cause detriment to a potential witness)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) (contravening a prohibition/restriction in a domestic violence order)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 procedure)
Cases
- Bugmy v The Queen [2013] HCA 37
- Callaghan v The Queen (2006) 160 A Crim R 145
- Hutchen v The Queen [2015] NSWCCA 101
- R v Fernando (1992) 76 A Crim R 58