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District Court 24 June 2022

R v LITTLE

[2022] NSWDC 210

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIME VIOLENT OFFENCES VIOLENT OFFENCES INTIMIDATION BROKE INTO ADJACENT MOTEL ROOM HELD OCCUPANT HOSTAGE SENTENCING

Citation: R v Little [2022] NSWDC 210
Court: District Court of New South Wales
Date: 24 June 2022
Judge: Lerve DCJ

Background

The offender appeared for sentence on two separate indictments arising from violent incidents approximately nine days apart in and around Wagga Wagga in March and April 2020. The first indictment concerned events on 23 March 2020, when a group of first-year Charles Sturt University students were walking naked back to campus as part of an informal hazing ritual known as a "Mott Walk," having been dropped off approximately nine kilometres away after consuming significant quantities of alcohol. The offender came upon the group and, threatening them with what appeared to be a pistol, detained four of them against their will and struck them to the head and body with a piece of wood, causing wounds. A fifth victim was recklessly wounded in a related count.

The second indictment arose from events on 1 April 2020, when the offender broke into a motel unit at Quest Apartments in Wagga Wagga and detained the occupant as a hostage, intending to avoid lawful apprehension and to compel family members to attend the premises.

The first indictment matters were contested at trial, and a jury returned guilty verdicts on 20 September 2021. The offender pleaded guilty to the second indictment on the day of trial, attracting a 5% discount for the utilitarian value of the plea.

  • What findings of fact were available to the sentencing judge following the jury's guilty verdicts on the first indictment, and what standard of proof applied?
  • What were the appropriate individual sentences for each count across both indictments?
  • Whether an aggregate sentence was appropriate, and if so, what non-parole period should apply?
  • Whether special circumstances existed to justify a non-parole period shorter than the standard three-quarters ratio?
  • What discount, if any, applied to the second indictment given the late guilty pleas?

Decision

Lerve DCJ found that the jury's verdicts on the first indictment required fact-finding consistent with those verdicts. Applying the standard set out in The Queen v Olbrich and R v Storey, the judge noted that facts adverse to the offender must be established beyond reasonable doubt, while mitigating circumstances need only be proved on the balance of probabilities. The judge accepted the victims' accounts, consistent with the jury's conclusions.

On the question of sentencing for the first indictment, the judge noted there was no standard non-parole period for the detention offences under s 86(2) of the Crimes Act 1900, which carry a maximum of 20 years. The reckless wounding count under s 35(4) carries a maximum of 7 years and a standard non-parole period of 3 years. The break, enter and commit serious indictable offence and the detention offence on the second indictment each carry a maximum of 14 years, with no standard non-parole period applying.

The judge determined that individual sentences, had they been imposed separately, would have ranged from 2 years 9 months (reckless wounding) to 5 years 3 months (the most serious detention count), with 2 years 6 months for the second indictment counts. An aggregate sentence was found appropriate given the multiplicity of offending across two episodes. Totality principles were applied to ensure the combined sentence remained proportionate to the overall criminality.

Special circumstances were found, resulting in a non-parole period set at approximately 65% of the total sentence rather than the standard 75%. The reasons for that finding are set out in the judgment but are not reproduced in the portions of the decision available for this summary.

Orders Made

  • Drug possession matters attached to s 166 Certificates dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999: conviction recorded, no further penalty imposed.
  • Offender convicted on counts 1, 3, 5, 8 and 9 of the first indictment.
  • Offender convicted on counts 1 and 2 of the second indictment.
  • Aggregate sentence of 9 years 9 months imposed.
  • Non-parole period of 6 years 4 months, commencing 1 November 2020 and expiring 28 February 2027.
  • Balance of term of 3 years 5 months, commencing 1 March 2027 and expiring 31 July 2030.
  • Release to parole recommended at expiration of the non-parole period.

Key Takeaways

  • Following a jury trial, a sentencing judge may only use facts adverse to an offender if established beyond reasonable doubt, while favourable circumstances require proof only on the balance of probabilities, consistent with The Queen v Olbrich and R v Storey.

  • An aggregate sentence is available where an offender is sentenced for a multiplicity of offences, but the sentencing court must still indicate the individual sentences that would otherwise have been imposed across each count.

  • Special circumstances, where established, permit the non-parole period to fall below the standard three-quarters ratio; in this case the non-parole period represented approximately 65% of the total sentence.

  • A guilty plea entered on the day of trial, rather than at an earlier opportunity, attracted only a 5% discount for utilitarian value rather than the larger reductions available for earlier pleas.

  • Detention offences under s 86(2) of the Crimes Act 1900 carry a maximum penalty of 20 years imprisonment and no standard non-parole period, distinguishing them from reckless wounding under s 35(4), which carries both a lower maximum and a prescribed standard non-parole period of 3 years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(4), 86(1), 86(2), 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v The Queen [2013] HCA 37
- Di Simoni v The Queen (1981) 147 CLR 383
- Mbele v R [2021] NSWCCA 182
- Nowak v R [2008] NSWCCA 89
- R v McCullough (2009) 194 A Crim R 429
- R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
- R v Speechley [2012] NSWCCA 130
- R v Storey [1998] 1 VR 359
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Toller v R [2021] NSWCCA 204
- Valentine v R [2020] NSWCCA 116