Citation: R v Barrett; R v Duncan [2020] NSWDC 558
Court: District Court of New South Wales
Date: 18 September 2020
Judge: Grant DCJ
Background
Two co-offenders, Noel Barrett and Matthew Duncan, pleaded guilty to one charge each of especially aggravated detention for advantage under s 86(3) of the Crimes Act 1900. The offending arose from a combination of relationship history, drug grievances, and vigilante motives. Both men had previously had relationships with women who had subsequently been involved with the victim, and both shared children with those women.
In the early hours of 19 January 2020, Barrett and Duncan entered the victim's unit at a boarding house in Albury while he slept. Barrett was armed with a tomahawk and Duncan with a .22 calibre firearm. They forced the victim into a car and drove toward Mungabareena Reserve. During the trip, Duncan punched the victim in the face. The victim wrestled the firearm from Duncan, kicked open the door, received a blow to the arm from the tomahawk, and ultimately escaped by running through bushland and jumping into the Murray River.
Barrett also had two Form 1 matters taken into account: driving an unregistered vehicle and reckless driving, arising from a police pursuit the following afternoon. Duncan faced a separate concurrent sentence relating to additional offending.
Legal Issues
- What was the appropriate objective seriousness of the principal offence, and how did it compare to the midrange for offences under s 86(3)?
- Whether the Bugmy principles applied to either offender, given evidence of deprived or disadvantaged upbringings, and to what extent those principles reduced moral culpability.
- Whether special circumstances existed for either offender to justify a variation from the standard non-parole period ratio.
- How the Form 1 matters should be treated in the overall sentencing exercise.
- What sentences were appropriate for each co-offender, given their equal roles and respective personal circumstances?
Decision
Grant DCJ assessed the objective seriousness of the offending as slightly below midrange. Factors weighing toward seriousness included the use of two weapons (one a firearm, albeit not proven to be loaded), the detention occurring in the victim's home, the vigilante purpose of the offending, the victim's fear, and the accused's prior knowledge of the victim. Factors that moderated the assessment included the short duration of approximately 20 minutes, the minor nature of the physical injuries, and the absence of evidence of long-term harm. His Honour accepted that both offenders played equal roles and attracted similar culpability.
Both offenders were entitled to a 25% plea discount under the EAGP scheme. Barrett was on parole at the time of the offence, and Duncan was subject to a Victorian community corrections order, both of which constituted statutory aggravating factors. His Honour emphasised that vigilante offending requires courts to reflect strong general deterrence in sentencing, noting that resort to criminal conduct in response to perceived wrongdoing is to be severely discouraged.
In relation to Barrett, psychological evidence supported the operation of the Bugmy principles, with his deprived and traumatic upbringing accepted as reducing his moral culpability. Special circumstances were found based on his significant drug addiction. Similarly, for Duncan, the Crown accepted the Bugmy principles applied, and his Honour gave full weight to his deprived background. Special circumstances were also found for Duncan on account of his drug addiction, warranting an extended supervision period.
The Form 1 driving matters for Barrett were subsumed into the principal sentence. The drive-whilst-disqualified matter attracted a s 10A conviction with no further penalty. Duncan received a concurrent four-month sentence for his additional offending.
Orders Made
Barrett:
- Head sentence of 3 years and 6 months imprisonment, commencing 12 June 2020, expiring 11 December 2023
- Non-parole period of 2 years; eligible for parole 11 June 2022
- Form 1 driving offences subsumed in principal sentence
- Drive whilst disqualified: convicted under s 10A, no further penalty
Duncan:
- Head sentence of 3 years and 6 months imprisonment, commencing 20 January 2020, expiring 19 July 2023
- Non-parole period of 2 years; eligible for parole 19 January 2022
- Concurrent sentence of 4 months imprisonment for the additional offence
Key Takeaways
- The District Court assessed especially aggravated detention involving weapons, vigilante motive, and minor victim injuries as falling slightly below the midrange of objective seriousness for s 86(3) offences, where the duration was short and physical harm was at the lower end.
- Where co-offenders are each armed and play equal roles in an offence, equal culpability is an appropriate starting point for sentencing purposes.
- Under the Bugmy principles, evidence of a genuinely deprived and disadvantaged upbringing reduces an offender's moral culpability and must be given full weight in sentencing, even where the offender has a substantial prior criminal history.
- Special circumstances can be established by reference to an offender's serious drug addiction, where an extended period of supervised parole is warranted to support rehabilitation and reintegration.
- Vigilante offending under s 86 of the Crimes Act warrants a significant emphasis on general deterrence, reflecting the courts' consistent condemnation of individuals taking the law into their own hands in response to perceived wrongdoing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(3) (especially aggravated detention for advantage)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 32
- Road Traffic Act (NSW), ss 68(1), 117(2)
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- R v Newell [2004] NSWCCA 103
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518