Citation: R v Kershaw [2019] NSWDC 912
Court: District Court of New South Wales
Date: 15 November 2019
Judge: Judge W Hunt
Background
The offender was sentenced for taking and detaining a person in company, with intent to take advantage and occasioning actual bodily harm, contrary to s 86(3) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years imprisonment, with no standard non-parole period. The victim was a 43-year-old woman with a moderate intellectual disability, who had previously been in a relationship with one of the co-offenders.
The offending arose from a pre-planned scheme. Several co-offenders, including a former partner of the victim, arranged to kidnap the victim for financial advantage. One co-offender created a fake Facebook account in the victim's name, posting fabricated allegations to provoke the offender into rage. That manipulation succeeded: the offender directed co-offenders to collect the victim and bring her to his home, where she was detained, threatened, physically assaulted, tied up, threatened with death, and placed in the boot of a car before being driven to another location.
The procedural history was complex. Following committal, the offender entered a guilty plea, but that plea was initially rejected after a disputed facts hearing in which he gave evidence traversing the terms of his plea. Two successive juries were empanelled and discharged, the second after late disclosure of material by police. The offender ultimately pleaded guilty on 30 August 2019, and the court accepted that plea.
Legal Issues
- What was the appropriate sentence, having regard to the objective seriousness of the offending, including the victim's vulnerability?
- What utilitarian discount applied to the guilty plea, given the complicated procedural history and the late disclosure of material by police?
- How did parity principles apply, given that all co-offenders had already been sentenced on the (incorrect) basis that this offender played a more dominant role?
- Were special circumstances established justifying a departure from the standard non-parole period ratio?
Decision
The court found the offending was serious. The detention occurred over a sustained period, involved multiple offenders acting in concert, and targeted a victim with a moderate intellectual disability, which aggravated the objective gravity of the conduct. The physical assaults were assessed as toward the lower end of the range for actual bodily harm, and being "in company" and the occasioning of bodily harm were elements of the offence rather than additional aggravating features.
On the parity question, the court noted a significant complication: each co-offender had been sentenced on the basis that the offender played a more dominant, principal role. The facts ultimately agreed to did not support that characterisation. The court undertook the parity exercise with that discrepancy in mind.
On the utilitarian discount, the court rejected the Crown's contention for 10% and instead applied 15%. This reflected the circumstances of the late police disclosure, which had given some support to the account the offender had advanced at the disputed facts hearing, and the court's view that the discount applicable at the time of the original disputed facts hearing should be preserved.
The court found special circumstances, principally because of the offender's need for extended supervision in the community to address both drug addiction and participation in a violent offenders program. The court also noted that the offender had served almost the entirety of his non-parole period in maximum security, which further informed the sentencing outcome. The court addressed the offender directly at the conclusion of its remarks, acknowledging a history of childhood trauma and drug dependence and expressing encouragement that those underlying issues be addressed after release.
Orders Made
- Offender convicted of taking and detaining in company occasioning actual bodily harm contrary to s 86(3) of the Crimes Act 1900
- Sentenced to imprisonment for 3 years and 6 months, commencing 22 August 2017 and expiring 21 February 2021
- Non-parole period of 2 years and 4 months, expiring 21 December 2019 (earliest date for parole consideration)
- Special circumstances found
- Recommendation to the State Parole Authority that conditions of parole include attendance at a Violent Offenders program and intensive drug rehabilitation
Key Takeaways
- The District Court confirmed that where an offence is defined by elements such as "in company" and "occasioning actual bodily harm," those features do not operate as additional aggravating factors at sentencing beyond their role as elements of the offence, consistent with R v Newell (2004).
- A victim's intellectual disability is a recognised aggravating circumstance that increases the objective seriousness of an offence involving deliberate targeting or exploitation of that person.
- Parity requires a sentencing court to grapple with the fact that co-offenders may have been sentenced on a factual basis that later proves inaccurate; the court here applied parity principles with that asymmetry explicitly acknowledged.
- Where late police disclosure of material lends credibility to an account previously advanced by a defendant, that circumstance can bear on the extent of the utilitarian discount available for a guilty plea.
- Special circumstances justifying a lower non-parole period ratio can be established where an offender's rehabilitation needs, including drug treatment and completion of a violence program, are better addressed through extended community supervision than in custody.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 86(3) (take and detain in company, occasioning actual bodily harm)
Cases
- Bugmy v R [2013] HCA 37
- R v Newell (2004) NSWCCA 183