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District Court 12 March 2021

R v Lister

[2021] NSWDC 132

Assault & violencePublic order & justice offences
CRIME RECOURSE TO CASE CONFERENCE CERTIFICATE RELATIVELY MINOR ROLE VICTIM ABLE TO LEAVE NO ATTEMPT TO PREVENT HIM LEAVING ASSAULTED IN CUSTODY

Citation: R v Lister [2021] NSWDC 132
Court: District Court of NSW
Date: 12 March 2021
Judge: Haesler SC DCJ

Background

In the early hours of 8 October 2019, three co-offenders violently assaulted a young man at a residential premises in circumstances involving detention. The offender, Kayla Lister, had allowed the victim to stay in her spare room after he became homeless, on the understanding he would contribute to household expenses. When he failed to pay what he owed, three others (including two juveniles) confronted and assaulted him, demanding money and telling him he could not leave.

Lister was not present during the assault but was in the house. In the early hours of the morning, the co-offenders directed her to watch the victim and ensure he did not leave. She agreed, staying with him from around 6am. She told the victim he could not leave and that she was "watching him." The victim walked out of his own accord at approximately 3:30pm and sought help at a friend's home.

Lister was charged with an offence under s 86(3) of the Crimes Act 1900. She later pleaded guilty to the lesser offence under s 86(2)(a) (taking or detaining a person in company with intent to obtain a financial advantage), which carries a maximum penalty of 20 years imprisonment. The prosecution accepted this plea in full satisfaction of the charges.

  • What discount should apply to the sentence for the utilitarian value of the late guilty plea, in light of the Early Appropriate Guilty Pleas (EAGP) scheme under the Criminal Procedure Act 1986 and the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to mitigating factors including the offender's relatively minor role, personal background, youth, lack of prior convictions, and progress toward rehabilitation?
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody.

Decision

Plea discount: The central dispute was whether a 25% or 5% discount applied for the guilty plea. Lister's counsel argued that because the plea was entered as soon as the fresh indictment was filed, s 25D(3)(a) of the Crimes (Sentencing Procedure) Act 1999 entitled the offender to a 25% reduction. The court rejected that submission. His Honour found that the facts underpinning the new count were substantially the same as those before the Local Court from the outset; only their legal interpretation had changed. Section 25D(4)(a) operated to exclude the 25% discount in those circumstances, and a 5% reduction was allowed. The court noted that the EAGP scheme exists to encourage early offers to plead, and no such offer was made until days before the trial date.

Mitigating factors: The court found that Lister played a relatively minor role in the joint criminal enterprise, joining it only after the violence had already been inflicted. The victim was able to leave and did ultimately leave of his own accord; Lister made no physical attempt to prevent him. His Honour placed considerable weight on her deprived background, long history of exposure to abuse and family violence, youth and immaturity, and the absence of any prior convictions. The court accepted that her acquiescence to the demands of the male co-offenders was consistent with learned behaviour rooted in that background, drawing on the principles in Bugmy v The Queen. Positive change since her release on bail, including engagement with counselling and psychological support, was also taken into account.

Mode of serving the sentence: The court concluded that full-time detention was more likely to impede than address the risk of reoffending. Having regard to Lister's demonstrated capacity to comply with conditional liberty over an extended period and the absence of any community safety concern, the court found an ICO was appropriate. The late guilty plea, while attracting only a 5% utilitarian discount, was also recognised as a positive step in accepting responsibility, with relevance to rehabilitation.

Orders Made

  • Convicted of the offence under s 86(2)(a) of the Crimes Act 1900.
  • Sentenced to imprisonment for 1 year and 10 months, commencing 12 March 2021, to be served by way of an Intensive Correction Order in the community under the Crimes (Administration of Sentence) Act 1999.
  • Required to report to Community Corrections Office, Wollongong, within 7 days.
  • Standard conditions of the ICO to apply.
  • Additional conditions: 100 hours of community service work; accept guidance and supervision of Community Corrections NSW; follow the supervision plan including referral to an Aboriginal Client Service Officer for cultural support; continue engagement with IDAS counselling; continue psychological counselling.

Key Takeaways

  • Under s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999, the 25% early plea discount does not apply where the facts establishing the new count are substantially the same as those in the original brief of evidence, even if the legal characterisation of those facts has changed.
  • A late guilty plea can still carry value beyond its utilitarian discount, particularly as evidence of an offender's acceptance of responsibility and a step toward rehabilitation.
  • The District Court treated the offender's acquiescence to co-offenders' demands as consistent with learned behavioural responses to prolonged exposure to abuse and family violence, consistent with the principles established in Bugmy v The Queen (2013) 249 CLR 571.
  • Where a victim is able to leave and ultimately does leave of their own accord, and where the offender made no physical attempt to prevent departure, those circumstances bear on the assessment of the offender's role and moral culpability.
  • An ICO was preferred over full-time custody where the evidence showed the offender had complied with conditional liberty, was engaged in rehabilitation, and full-time detention was assessed as likely to increase rather than reduce the risk of reoffending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 86(3)
- Crimes (Administration of Sentence) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 25D(3)(a), 25D(4)(a)
- Criminal Procedure Act 1986 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Flentjar [2008] NSWSC 771
- R v Guinness [2021] NSWDC 57
- R v JDX; JDX v R [2017] NSWCCA 9
- R v Kerr [2008] NSWCCA 201
- R v Newell [2004] NSWCCA 183
- R v O'Connor [2014] NSWCCA 53; (2014) 239 A Crim R 487
- R v Owen (a pseudonym) [2020] NSWDC 791
- R v Qutami [2001] NSWCCA 353
- R v Speechley (2012) A Crim R 175
- Silvano v R [2008] NSWCCA 118