AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 20 March 2020

R v Phelan

[2020] NSWDC 219

Assault & violenceFraud & dishonestyPublic order & justice offences

Citation: R v Phelan [2020] NSWDC 219
Court: District Court of New South Wales
Date: 20 March 2020
Judge: M L Williams SC DCJ

Background

The offender, aged 21 at sentencing, pleaded guilty to three offences arising from a sustained campaign of extortion and intimidation against a young man referred to as Lucas over the course of several months in 2018. The offending began when a co-offender, Jarryd Dixon, introduced the offender to Lucas at a hotel, claiming Lucas owed a debt connected to an old relationship dispute involving Dixon's sister. The offender then demanded $5,000 from Lucas under threat of violence.

The offending escalated across three separate incidents spanning January to April 2018. In the first, the offender confronted Lucas outside a hotel and threatened to kill him and his family if the money was not paid. In the second, he detained Lucas in a disabled toilet at a fast food restaurant and extracted $500 via a cardless ATM transaction. In the third and most serious incident, the offender and a co-offender forced Lucas off a public bus, took him to a park, summoned others in a van, and had him physically assaulted by an unnamed male who punched and kicked him while he was on the ground.

The offender had been in custody since his arrest on 3 May 2018. He had a prior juvenile record and had spent approximately 18 months in juvenile custody before these offences. His counsel acknowledged that imprisonment was the only appropriate sentencing outcome.

  • What aggregate sentence was appropriate for three serious offences of extortion and aggravated detention, considered together with one Form 1 matter?
  • What discount applied for a late guilty plea entered at the time the matter was listed for trial?
  • How should parity with co-offenders be addressed, given that each was dealt with on materially different charges and circumstances?
  • What weight should be given to the offender's youth, mental health history, drug use, and expressed remorse?
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the total term of imprisonment.

Decision

The District Court assessed the objective seriousness of the offending as sitting around the mid-range for each offence. The court noted the absence of standard non-parole periods for these offences. The third offence, aggravated take or detain with actual bodily harm under s 86(3) of the Crimes Act 1900, carried the highest maximum penalty of 25 years and was treated as the principal offence for sentencing purposes.

The court addressed parity with four co-offenders who had been dealt with separately, including Piesco (community corrections order in the Local Court), Macey (intensive corrections order of two years and five months imposed by the same judge), and Dixon (three years imprisonment with a non-parole period of just over one year, imposed by another District Court judge). The court was satisfied that parity concerns did not constrain a higher sentence for the offender, given his greater role, the breadth of his involvement across all three incidents, and the distinct charges and circumstances applicable to each co-offender.

On subjective matters, the court accepted the offender's expressions of remorse, noting a lengthy handwritten letter of apology addressed to Lucas. The court applied the principle from BP v The Queen [2010] NSWCCA 159 that emotional maturity and impulse control may not be fully developed until the early to mid-twenties, treating the offender's youth and immaturity as mitigating factors. The prior record, however, supported a more severe sentence for retribution, deterrence, and protection of society, following R v Shankley [2003] NSWCCA 253. General and specific deterrence were described as significant considerations in setting both the sentence and the non-parole period.

The court found special circumstances, meaning the non-parole period was set at a proportion of the total term lower than the statutory default. The rationale was that the offender would benefit from an extended period of supervision upon release and was serving his first period of adult custody in difficult circumstances. A 5% discount was applied to reflect the guilty plea, which was entered late at the time of the listed trial date.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentences:
  • Sequence 001 (demanding property with menaces, taking into account Form 1 matter at sequence 003): 30 months
  • Sequence 002 (take and detain in company with intent to obtain advantage): 22 months
  • Sequence 004 (aggravated take or detain in company, occasioning actual bodily harm): 34 months
  • Aggregate sentence of 4 years imprisonment, commencing 3 May 2018.
  • Non-parole period of 2 years 3 months, expiring 2 August 2020.
  • Special circumstances found.

Key Takeaways

  • A late guilty plea entered at the time a matter is listed for trial attracted only a 5% discount, well below the discounts available for earlier pleas, reflecting the limited utilitarian value of such a plea.
  • Parity with co-offenders does not automatically constrain a higher sentence where the charges, roles, and subjective circumstances differ materially between offenders.
  • Under the principle affirmed in BP v The Queen, a sentencing court may treat the incomplete development of emotional maturity and impulse control in young adult offenders as a mitigating factor, even where the offending is serious.
  • A prior record of convictions, including juvenile convictions, remains a relevant aggravating consideration that can support a more severe sentence for purposes of retribution, deterrence, and community protection, as confirmed in R v Shankley.
  • Special circumstances justifying an extended parole period were established here on the basis that the offender was serving his first period of adult custody and would benefit from prolonged post-release supervision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 86(3), 99(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- BP v The Queen [2010] NSWCCA 159
- Imbornone v R [2017] NSWCCA 144
- R v Qutami (2001) 127 A Crim R 369
- R v Shankley [2003] NSWCCA 253