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District Court 21 May 2021

R v Newbold

[2021] NSWDC 608

Sexual offencesAssault & violence

Citation: R v Newbold [2021] NSWDC 608
Court: District Court of New South Wales
Date: 21 May 2021
Judge: M L Williams SC DCJ

Background

The offender, a 34-year-old man, pleaded guilty to attempting to take or detain a person with intent to commit a serious indictable offence, in company, contrary to s 86(2)(a) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period. The offending occurred on 1 May 2020 in the early hours of the morning in Ultimo.

The complainant was a 19-year-old international student walking home alone when the offender and an alleged co-offender approached her on foot. The offender grabbed her from behind, placed a hand over her mouth, and told her not to make a sound and to come with him. The struggle lasted less than a minute before a nearby delivery driver intervened and the offender fled. The complainant's phone was later found concealed under a bush nearby. CCTV footage and DNA evidence placed the offender at the scene.

The sentencing was complicated by the offender's parole history. He had previously served a sentence for aggravated sexual assault in company, was released on parole in May 2017, and had his parole revoked in March 2019 after failing to report. The warrant for his arrest was not executed until he was arrested for the present offences in May 2020, leaving approximately six months of unexpired parole to be served.

  • What was the appropriate commencement date for the sentence, given the unexpired parole period running concurrently with the offender's time in custody?
  • Where did the offending sit on the objective seriousness spectrum for an offence under s 86(2)(a)?
  • What weight should be given to the offender's deprived background under the principles in Bugmy v The Queen (2013) 249 CLR 571?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
  • What discount applied for the early guilty plea, and how should remorse and rehabilitation prospects factor into the sentence?

Decision

The court found that a full-time custodial sentence was required, a concession made by counsel for the offender. The sentencing judge identified the objective seriousness of the offence as slightly below the mid-range. While the offending involved a vulnerable victim in a relatively deserted location in the early hours of the morning, the court was not satisfied beyond reasonable doubt that the victim was "vulnerable" in the technical sense used in the authorities. The court adopted observations from Boney v R [2008] NSWCCA 165, noting that the provision covers more serious forms of detention such as ransom scenarios, and placed the present conduct accordingly.

On the commencement date, the court exercised its discretion to backdate the sentence to 27 August 2020, representing the midpoint between the offender's arrest date (29 May 2020) and the notional end of his revoked parole period (27 November 2020). The Crown had submitted against backdating to reflect the balance of parole, but the court considered the midpoint approach appropriate in the circumstances.

The offender's subjective case was supported by a forensic psychiatry report documenting a significantly deprived upbringing, including childhood exposure to domestic violence, parental substance abuse, sexual abuse in group care, and time as a ward of the state. The Crown conceded that Bugmy moderation was available, and the court accepted this reduced moral culpability to some degree. General deterrence nonetheless remained a significant sentencing consideration, despite the offender's mental health history. The court accepted the guilty plea and expressions of remorse as genuine, assessed rehabilitation prospects as moderate, and found special circumstances warranting an extended parole period given the need for community supervision and to reduce the risk of institutionalisation.

A 25% discount was applied for the early guilty plea, consistent with the principles applied to that stage of proceedings.

Orders Made

  • The offender was convicted of the offence under s 86(2)(a) of the Crimes Act 1900.
  • A sentence of three years and nine months imprisonment was imposed, commencing 27 August 2020 (reflecting a 25% discount for the early guilty plea).
  • A non-parole period of 30 months was imposed, expiring 26 February 2023.
  • Special circumstances were found.
  • Sequences 2 and 3 were withdrawn and dismissed.

Key Takeaways

  • The District Court applied the Bugmy principle to moderate the offender's moral culpability where the Crown conceded a significantly deprived background, while affirming that general deterrence remains a weighty consideration even where mental health and disadvantage are established.
  • Objective seriousness for an offence under s 86(2)(a) of the Crimes Act 1900 is assessed against the full range of conduct the provision encompasses, including prolonged detentions and ransom scenarios, not merely the circumstances of the case at hand.
  • Where an offender is arrested for a fresh offence while subject to an unexecuted parole revocation warrant, the court retains a discretion to select the sentence commencement date between the date of arrest and the notional end of the revoked parole term.
  • Special circumstances were found to exist where a forensic psychiatrist identified a significant need for extended post-release supervision and flagged the risk of institutionalisation following a period of full-time custody.
  • A previous conviction for a serious offence of a similar nature did not elevate the matter to a Veen (No 2) situation but did disentitle the offender to leniency in sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases
- Boney v R [2008] NSWCCA 165
- Bugmy v The Queen (2013) 249 CLR 571
- Imbornone v R [2017] NSWCCA 144
- R v Newell [2004] NSWCCA 183
- R v Speechley [2012] NSWCCA 130
- R v Thomas [2007] NSWCCA 269
- Veen v The Queen (No 2) (1988) 164 CLR 465