Citation: R v Pughe [2019] NSWDC 897
Court: District Court of New South Wales
Date: 7 November 2019
Judge: Bright DCJ
Background
The offender, a 31-year-old man, was sentenced for 10 offences of demanding money with menaces, together with five additional offences taken into account on a Form 1 (a procedure allowing related charges to be considered at sentencing without separate convictions being recorded). The offences targeted a single victim: a 46-year-old accountant who owned a tax practice on the Central Coast.
The offending arose from a scheme that began when the offender's then-partner initiated contact with the victim under a pretence, obtained intimate photographs from him, and then used those photographs as the basis for escalating demands for money. The offender joined the scheme, making direct threats to the victim that included a veiled rape accusation, personal confrontations at the victim's workplace, and a visible knife on the centre console of a car during a meeting arranged to pressure the victim into further payments.
The total amounts demanded across all counts ranged from a few thousand dollars to over $240,000 in a single count, with significant sums paid by the victim under duress. The offender pleaded guilty at arraignment in July 2019 after several weeks of plea negotiations.
Legal Issues
- What sentences were appropriate for 10 counts of demand with menaces (and five Form 1 matters), having regard to the objective seriousness of the offending and the offender's subjective circumstances?
- What discount should be applied to reflect the guilty plea, and how should the timing and circumstances of that plea affect the discount?
- How should the principle of parity apply, given that the co-offender had already been sentenced to a total term of 10 years with a non-parole period of 6.5 years, having received a 40 per cent discount for both her plea and assistance to authorities?
- Were special circumstances established so as to justify varying the standard statutory ratio between the non-parole period and the balance of sentence?
Decision
Bright DCJ imposed a 20 per cent discount for the guilty plea, reflecting that the pleas were entered at arraignment following several weeks of negotiations rather than at the earliest opportunity. The court distinguished this from the co-offender's combined 40 per cent discount, which included a component for assistance to authorities that the offender here did not provide.
On parity, the court acknowledged the co-offender's lower sentence but found that the offender's greater culpability, his direct threats involving a weapon, and his role in personally confronting and intimidating the victim justified a materially higher sentence. The co-offender's significant assistance discount also explained much of the difference in outcomes.
Indicative sentences were set for each count before being rolled into a single aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999. Count 1, the most serious charge (demand with menaces by accusation of a serious indictable offence, carrying a maximum of 14 years), attracted a starting term of 7 years, reduced to 5 years and 7 months after discount. Count 7, involving a demand relating to approximately $243,000, attracted a starting term of 4 years, reduced to 3 years and 2 months. The remaining counts each attracted starting terms of 3 years, reduced to 2 years and 4 months.
Special circumstances were found, warranting a departure from the standard one-third ratio between the non-parole period and the balance of sentence. The court accepted that the offender's long-standing drug addiction and associated mental health issues meant he would require a longer period of supervised parole upon release.
Orders Made
- The offender was convicted on each offence.
- An aggregate sentence of 13 years and 4 months was imposed, commencing 28 December 2018 and expiring 27 April 2032.
- A non-parole period of 8 years was set, commencing 28 December 2018 and expiring 27 December 2026.
- The earliest eligible parole date is 27 December 2026.
- Special circumstances were found and the statutory ratio was varied pursuant to section 44(2B) of the Crimes (Sentencing Procedure) Act 1999.
Key Takeaways
- A guilty plea entered at arraignment, following prior negotiations, attracted a 20 per cent discount rather than the higher discounts available for very early pleas, reflecting the established principle that the timing and circumstances of the plea affect the discount's extent.
- Parity between co-offenders does not demand identical sentences where culpability differs: the District Court found that the offender's direct personal threats, use of an implied weapon, and absence of any assistance to authorities distinguished him from his co-offender.
- Where one co-offender receives a discount partly for assistance to authorities and the other does not, that difference can legitimately account for a substantial gap in sentencing outcomes.
- Special circumstances justifying a variation of the statutory non-parole ratio can be established where an offender's entrenched drug addiction and mental health needs support a longer supervised parole period.
- Offences under section 249K of the Crimes Act 1900, particularly those involving accusations of serious crimes and direct personal intimidation, attract significant terms of imprisonment, with general deterrence identified as an important sentencing consideration.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 249K(1)(a), 249K(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2B), 53A
Cases
- R v Turner [2019] NSWDC 618
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Attorney General's Reference No 40 of 2002 (John Alexander Collard) [2003] 1 Cr App R (S) 98
- Bugmy v The Queen [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
- R v Barroso [1998] VSC 249
- R v Hadjou (1989) 11 Cr App R (S) 29
- R v Son Vo [1998] VSC 319