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District Court 29 May 2020

R v LEOTA

[2020] NSWDC 244

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIME SENTENCING SPECIALLY AGGRAVATED KIDNAPPING ACCUSED PARITY BUGMY FACTORS

Citation: R v Leota [2020] NSWDC 244
Court: District Court of New South Wales
Date: 29 May 2020
Judge: Lerve DCJ

Background

The offender pleaded guilty to two principal charges: specially aggravated kidnapping (taking and detaining a person for advantage while occasioning actual bodily harm, committed in company) under s 86(3) of the Crimes Act 1900; and possession of an unauthorised firearm, namely an imitation Beretta pistol, under s 7(1) of the Firearms Act 1996. Two further matters (resist police and being carried in a stolen conveyance) were listed on a Form 1 document to be taken into account when sentencing on the kidnapping charge.

The kidnapping offence arose from a prolonged and violent incident on 8 November 2018 in Wagga Wagga. The offender and a co-accused, Patrick Pengelly, forced a known acquaintance into his own vehicle, directed him to a unit in Tolland, and subjected him to sustained physical violence over several hours. The conduct included punching, the use of a blowtorch to cause burns, cutting the victim's hair with scissors, and threats with a sharp object.

The offender was the co-accused of Pengelly, who had been sentenced by the same judge on 21 April 2020 (see R v Patrick Pengelly [2020] NSWDC 112). Parity between the two sentences was a significant sentencing consideration.

  • What aggregate sentence was appropriate, having regard to the objective seriousness of the kidnapping offence and the firearms offence?
  • How should the court apply parity principles given the co-accused Pengelly had already been sentenced?
  • What weight should be given to the offender's background, including Bugmy factors (the relevance of a deprived and traumatic upbringing to moral culpability)?
  • What sentencing discount applied to each guilty plea, given they were entered at different stages?
  • Did the conditions of custody during the COVID-19 pandemic constitute special circumstances warranting adjustment to the non-parole period?
  • How should Form 1 matters be dealt with in accordance with the Attorney General's Guideline Judgment on Form 1 matters?

Decision

His Honour applied a 25% utilitarian discount to the plea of guilty on the kidnapping charge, entered in the Local Court, and only a 5% discount on the firearms charge, to which the offender pleaded guilty on the first day of trial under the Early Appropriate Guilty Plea (EAGP) scheme. The firearms charge carried a standard non-parole period of four years, and his Honour confirmed the one-step instinctive synthesis approach applied, using the maximum penalty and the standard non-parole period as principal guideposts.

On parity, his Honour considered the sentences imposed on Pengelly and was satisfied that any difference in sentence was explicable by the differing circumstances of the two offenders, including background, criminal history, and the timing and utility of their respective pleas.

His Honour accepted Bugmy factors as relevant to the offender's moral culpability, acknowledging the established principle that a background of deprivation and trauma does not excuse conduct but may reduce the degree of moral culpability attributed to an offender. The psychological report tendered at sentence was considered, and his Honour recommended its annexure to the warrant sent to the Department of Corrective Services.

The effect of custody during the COVID-19 pandemic was treated as a relevant factor in assessing the conditions of imprisonment. His Honour found special circumstances existed, resulting in a non-parole period set at two thirds of the total sentence rather than the statutory default of three quarters, to allow for an extended period on parole to assist with rehabilitation and reintegration.

Orders Made

  • The offender was convicted of all offences to which he pleaded guilty.
  • An aggregate sentence of 6 years and 6 months was imposed, with a non-parole period of 4 years and 4 months and a balance of term of 2 years and 2 months.
  • The non-parole period commences 18 November 2018 and expires 17 March 2023; the balance of term runs from 18 March 2023 to 17 May 2025.
  • The offender is eligible for release to parole at the expiration of the non-parole period; release was recommended.
  • The psychological report (Exhibit 1 on sentence) is to be annexed to the warrant forwarded to the Department of Corrective Services.
  • The imitation firearm is forfeited to the Crown for destruction.

Key Takeaways

  • The District Court confirmed that where co-offenders are sentenced separately, the parity principle requires the sentencing judge to examine whether any difference in outcome is explicable by reference to objective differences in the offenders' circumstances, roles, and plea histories.
  • Bugmy factors drawn from the High Court's decision in Bugmy v The Queen [2013] HCA 37 remain relevant at sentencing regardless of the seriousness of the offence; they go to moral culpability rather than providing any excuse for the conduct.
  • Under the EAGP scheme, a guilty plea entered on the first day of trial attracts only a 5% discount for utilitarian value, compared with the 25% discount available for an early plea before the Local Court.
  • Conditions of custody during the COVID-19 pandemic were treated as a relevant consideration in this sentence, contributing to a finding of special circumstances and a reduction of the non-parole period to two thirds of the total term.
  • Form 1 matters must be dealt with in accordance with the Attorney General's Guideline Judgment (2002) 56 NSWLR 146, which governs the manner in which such matters are taken into account when sentencing for the principal offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3) (specially aggravated kidnapping)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37
- Firearms Act 1996 (NSW), s 7(1)

Cases
- The Attorney General's Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- R v Patrick Pengelly [2020] NSWDC 112
- Bugmy v The Queen [2013] HCA 37
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 12 A Crim R 408
- Postiglione v The Queen (1997) 94 A Crim R 397
- Khanwaiz v R [2012] NSWCCA 168
- Taitoko v R [2020] NSWCCA 43
- Laspina v R [2016] NSWCCA 181
- R v Smith and Campbell [2019] NSWCCA 1
- R v Despotovski [2020] NSWDC 110
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44