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District Court 25 May 2021

R v Green

[2021] NSWDC 362

Assault & violence
CRIME RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA OBJECTIVELY SERIOUS DETENTION ASSAULT ON VICTIM OFFENCE IN COMPANY

Citation: R v Green [2021] NSWDC 362
Court: District Court of New South Wales
Date: 25 May 2021
Judge(s): Haesler SC DCJ

Background

The offender, Bradley Green, was aged 24 at the time of the offence. He was part of a group of transient, homeless young people living together in a rental property in Lake Illawarra, most of whom were heavy users of illicit drugs including methamphetamine. The victim, who was also homeless, had been permitted to stay at the property by the tenant.

The offender, together with two younger co-offenders (referred to by pseudonyms as Owen and Guinness), assaulted and detained the victim over a period of many hours. The assault involved punching, kneeing, and kicking the victim repeatedly to the head. At one point, one of the co-offenders cut the victim's cheek with a knife, leaving a wound requiring nine stitches. Although the offender was not present when the knife was used, he returned to the room shortly after and was aware of what had occurred.

The stated motivations were a belief that the victim owed rent money to the property tenant and a separate claim by the offender that the victim had stolen his wallet. The victim was subjected to continuing humiliation and verbal abuse, told he could not leave, and threatened further via text message after the offenders departed. He eventually escaped and obtained assistance. The offender was arrested in October following a failure to appear in court two days earlier, while on bail for another matter involving violence.

  • What sentence was appropriate for an offence of detaining a person for advantage while in company and occasioning actual bodily harm, contrary to s 86(3) of the Crimes Act 1900, which carries a maximum of 25 years imprisonment?
  • What weight should be given to the offender's late guilty plea, entered shortly before trial?
  • How should the offender's background of severe disadvantage, chronic drug use, and limited maturity affect the sentence?
  • Was a finding of special circumstances warranted to extend the parole period beyond the statutory ratio?
  • How should the sentence achieve parity with those imposed on the two younger co-offenders?

Decision

Haesler SC DCJ characterised the offence as objectively serious. The detention lasted many hours, was accompanied by repeated violence, and involved continuing humiliation of a vulnerable victim. Although the offender was not the person who used the knife, he was present for most of the incident and participated actively in the assault and the demands made on the victim. His failure to provide meaningful assistance to the injured victim, and the further threats made after departing, compounded the gravity of his conduct.

The judge accepted that the offender's chronological age of 24 did not reflect his true level of maturity. His education had been disrupted and he had suffered multiple traumas as a young person, taking up serious drug use before he was capable of making rational choices. Following the principle in Bugmy v The Queen, those early disadvantages retained their mitigating significance. The judge found that the offender's capacity for consequential thinking had been severely impaired, consistent with the same finding made for the younger co-offenders.

A substantial finding of special circumstances was made to recognise the offender's demonstrated progress through the Odyssey House rehabilitation program, the significant risk that custody would interrupt that progress, and the need for an extended period of supervised parole to support his reintegration into the community. The primary risk of reoffending identified in the psychological report was a return to illicit drug use, and the judge assessed prospects of rehabilitation as sound if sobriety could be maintained.

The judge adopted a starting point of seven years imprisonment, consistent with the approach taken for the two co-offenders. A discount of five percent was applied for the late guilty plea, reducing the sentence to six years and seven months. A substantial parole period was structured to give effect to the special circumstances finding, with the judge expressly noting that an earlier plea would have attracted a greater reduction.

Orders Made

  • Total sentence of six years and seven months imprisonment.
  • Non-parole period of three years and four months.
  • Sentence backdated to commence on 25 April 2020 (eleven months before the sentencing date).
  • Earliest eligibility for release to parole: 24 October 2023.
  • Parole period of three years and three months, with the total sentence expiring 24 October 2027.

Key Takeaways

  • The District Court confirmed that an offender's chronological age is not determinative of maturity for sentencing purposes, particularly where a background of trauma, interrupted education, and early onset drug dependency has impaired the development of consequential thinking.
  • A finding of special circumstances was warranted where the offender had made demonstrable progress in a residential rehabilitation program, custody risked interrupting that progress, and an extended parole period was needed to supervise reintegration.
  • Where multiple co-offenders are sentenced separately, parity remains an active consideration. The court adopted the same starting point of seven years across all three offenders and structured sentences with consistency in mind.
  • A late guilty plea, entered shortly before trial, attracted only a five percent discount. The judgment explicitly noted that an earlier plea would have produced a greater reduction.
  • Remorse expressed as a consequence of engagement with a structured rehabilitation program can be treated as genuine by the sentencing court, and is capable of bearing on both the assessment of future risk and the weight given to the offender's subjective case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D

Cases:
- Afu v R [2017] NSWCCA 246
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Boney [2001] NSWCCA 432
- R v Guinness (a pseudonym) [2021] NSWDC 57
- R v Herring (1956) 73 WN (NSW) 203
- R v Lister [2021] NSWDC 132
- R v Owen (a pseudonym) [2020] NSWDC 791
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Windle [2012] NSWCCA 222
- R v Wong [2003] NSWCCA 247
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21