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District Court 8 July 2022

R v Walker

[2022] NSWDC 692

Assault & violencePublic order & justice offences
CRIME RELEVANT FACTORS ON SENTENCE SENTENCE AFTER TRIAL SERIOUS OFFENDING TRAUMA AS A CHILD LENGTHY RECORD

Citation: R v Walker [2022] NSWDC 692
Court: District Court of New South Wales
Date: 8 July 2022
Judge: Haesler SC DCJ

Background

In May 2020, two complainants were held against their will at a flat in Cringila, in the Wollongong area, after a drug deal went wrong. A co-offender had purchased what he believed was methylamphetamine from a Sydney supplier, only to discover on the return journey that the package contained bath salts rather than the drug. He held the complainants responsible for the loss and demanded repayment.

The offender, Walker, joined the enterprise at this point. He is described in the judgment as a large, heavily built man. He entered one complainant's van at a service station, directed the complainants to the flat, and then participated in assaulting them with weapons, including nunchucks, to reinforce the demand for repayment. Police subsequently identified Walker through fingerprint and DNA evidence recovered from the nunchucks.

Walker was tried alongside three co-accused. After a ten-day jury trial in January 2022, he was convicted on two counts: detaining the first complainant with intent to obtain an advantage in circumstances of aggravation and special aggravation (the special aggravation being actual bodily harm), and detaining the second complainant with intent to obtain an advantage in circumstances of aggravation. The jury acquitted Walker, along with the other co-accused, of the specially aggravated count relating to the second complainant.

  • What facts should the sentencing court find, consistently with the jury's verdicts, including giving Walker the full benefit of his acquittal on the alternative count?
  • What weight should be given to Walker's personal circumstances, including childhood trauma, a lengthy criminal record, drug use, and the commission of the offences while on parole?
  • Whether a reduction in sentence was warranted for information Walker provided that led to the recovery of illicit firearms.
  • Whether a finding of special circumstances (allowing for a longer parole period relative to the non-parole period) was appropriate.
  • How parity with co-accused sentences should inform the outcome.

Decision

Fact finding. Haesler SC DCJ accepted the complainants' accounts, noting that minor differences in their evidence were explicable given the trauma they suffered and the fact that, over time, each came to blame the other for their predicament. The judge confirmed that aggravating facts had to be established beyond reasonable doubt, mitigating facts on the balance of probabilities, and that Walker was entitled to the full benefit of his acquittal on the specially aggravated count relating to the second complainant.

Objective seriousness. The court treated the offending as serious. Walker played an active and physical role: he entered the second complainant's vehicle, directed both men to the flat, and personally used nunchucks to assault them. The offences were committed soon after Walker's release to parole, which was treated as an aggravating factor.

Subjective matters. The court acknowledged Walker's significant personal disadvantages, including childhood trauma, a history of drug dependency (particularly methamphetamine), and a lengthy prior record involving time in custody. The judgment noted Walker had strong family support, had been the victim of an assault while in custody during these proceedings, and that his background engaged the principles from Bugmy concerning the ongoing relevance of childhood disadvantage. A three-month reduction was applied to reflect information Walker provided that assisted police in recovering illicit firearms.

Parity and special circumstances. The court was mindful of the sentences imposed on co-accused Clare and Ilievski, each of whom received aggregate terms of three years and six months. Walker's greater involvement, more serious role, and lengthier criminal history distinguished him. A finding of special circumstances was made to allow for a longer period on parole, with the court observing that the practical effect would depend on the State Parole Authority's decisions.

Orders Made

  • Count 1 (detain in company with intent to obtain advantage, occasioning actual bodily harm): 4 years 3 months.
  • Alternative Count 2 (detain person in company with intent to obtain advantage): 3 years 4 months.
  • Aggregate term: 5 years 9 months (starting point was 6 years, reduced by 3 months for firearms information, with the benefit preserved through the accumulation calculation).
  • Non-parole period: 3 years 6 months, commencing 12 October 2020.
  • Eligibility for parole: 11 April 2024.
  • Balance of term: 2 years 3 months, commencing 12 April 2024 and expiring 11 July 2026.

Key Takeaways

  • The District Court confirmed that a sentencing judge must give a convicted offender the full benefit of any acquittal on a related count, and that facts inconsistent with an acquittal cannot be relied upon in sentencing.
  • Where a co-offender's role was more physically active and his prior record more extensive than other co-accused, a higher sentence than those imposed on co-accused was consistent with the parity principle, even where all received the same aggregate starting comparator.
  • Childhood trauma and its ongoing effects on an offender's culpability, as recognised in Bugmy, remain relevant even where the offender has a lengthy record and has re-offended repeatedly, though those factors do not override the seriousness of the conduct.
  • Providing information to police that leads to the recovery of illicit firearms can attract a discrete reduction in sentence, applied here as a three-month discount.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999, allowing a longer parole tail, does not guarantee a longer time in the community, as release remains subject to the State Parole Authority's assessment and conditions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(2)(a), s 86(3)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Afu v R [2017] NSWCCA 246
- Bugmy v The Queen (1990) 169 CLR 525; [2013] HCA 37
- C'th v Beattie [2017] NSWCCA 301
- Devaney v R [2012] NSWCCA 285
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lloyd v R [2022] NSWCCA 18
- Luque v R [2017] NSWCCA 226
- Magaming v The Queen (2013) 252 CLR 381
- Nasrallah v R [2021] NSWCCA 207
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Pym v R [2014] NSWCCA 182
- R v Clare; R v Ilievski [2022] NSWDC 383
- R v Eager [2022] NSWDC 162
- R v Gavel [2014] NSWCCA 56
- R v MJB [2014] NSWCCA 195
- R v Moradian [2011] NSWDC 130
- R v Morley [2021] NSWDC 681; [2022] NSWDC 670
- R v O'Connor [2014] NSWCCA 53
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14