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District Court 23 November 2022

R v Lawrence; R v Murray

[2022] NSWDC 727

Assault & violenceFraud & dishonestyPublic order & justice offences
CRIME DETAIN FOR ADVANTAGE SENTENCING RELEVANT FACTORS ON SENTENCE DETAIN FOR ADVANTAGE TWO OFFENDERS GUILTY PLEA S IN COMPANY

Citation: R v Lawrence; R v Murray [2022] NSWDC 727
Court: District Court of New South Wales
Date: 23 November 2022
Judge(s): Haesler SC DCJ

Background

Two co-offenders, Lawrence and Murray, appeared in the Wollongong District Court for sentencing after pleading guilty to detaining a person without consent with intent to obtain a financial advantage, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 20 years imprisonment. Both men had entered their pleas in the Local Court and maintained them at sentencing.

The victim, a man in his mid-thirties, had travelled to Wollongong in December 2021 to purchase a watch through Facebook Marketplace and was waiting in his hire car after being defrauded by another party when the two offenders approached him. Through implied threats of violence, including one offender motioning as if concealing a weapon, the pair forced their way into the vehicle and directed the victim to drive. During the detention, they threatened to stab him, demanded his phone passcode and banking credentials, withdrew $890 from his account at an ATM, took two laptops, a mobile phone, credit cards, and $600 in cash, and photographed his identification while threatening reprisals if he contacted police. The victim was ultimately left alone in the dark in the town of Appin.

Both men were also sentenced with reference to related matters listed on a Form 1 (a procedure under the Crimes (Sentencing Procedure) Act 1999 allowing additional offences to be taken into account without separate conviction). These included driving and being carried in a conveyance taken without consent, and, for Murray, knowingly dealing with the proceeds of crime.

  • What was the appropriate sentence for each offender, accounting for the objective seriousness of a detention-for-advantage offence committed in company with threats of violence?
  • How should the Form 1 matters affect the overall sentence without double-counting conduct already reflected in the principal offence assessment?
  • What weight should be given to each offender's background of disadvantage, prior criminal history, and guilty pleas?
  • Were special circumstances established, justifying a variation in the standard ratio between non-parole period and head sentence?
  • How should parity between the two co-offenders be maintained, given some differences in their individual circumstances and records?
  • How should the fact that both offenders were on parole at the time of the offending affect the commencement date of their sentences?

Decision

His Honour assessed the offending as seriously aggravated. Relevant factors included the extended period of detention, the use of threats of stabbing, the deliberate targeting of a vulnerable and isolated victim, the coordinated extraction of money and property, and the enduring psychological impact described in the victim's impact material. The Court noted that while no physical injury was inflicted, the victim's fear throughout was real and sustained.

Both offenders had lengthy criminal histories and had been on parole at the time of the offence. Each had spent much of their adult life cycling through custody. His Honour accepted that their backgrounds of deprivation and disadvantage, considered under the principles in Bugmy v The Queen (2013) 249 CLR 571, were relevant to moral culpability, though those factors did not diminish the seriousness of the conduct or the need to protect the community.

A 25% reduction was applied to each sentence to reflect the utilitarian value of the guilty pleas. Special circumstances were found for both offenders, resulting in a longer balance of term (the period after release on parole) than would ordinarily apply. His Honour explained this on the basis that extended supervision in the community would be necessary to attempt to break the entrenched cycle of offending and reimprisonment.

The Form 1 matters produced only a modest increase in sentence. His Honour was careful to avoid double-counting conduct already embedded in the assessment of objective seriousness. Because both men had breached parole, their sentences were backdated but commenced slightly after arrest to reflect that breach, rather than from the date of first custody.

Orders Made

Murray:
- Head sentence: 4 years and 6 months imprisonment
- Non-parole period: 2 years and 8 months, commencing 22 May 2022
- Eligible for parole: 20 January 2025
- Balance of term: 1 year and 10 months, expiring 20 November 2026

Lawrence:
- Head sentence: 4 years and 3 months imprisonment
- Non-parole period: 2 years and 8 months, commencing 4 February 2022
- Eligible for parole: 3 October 2024
- Balance of term: 1 year and 7 months, expiring 3 May 2026

Both sentences took into account the Form 1 matters and incorporated a 25% reduction for the utilitarian value of the guilty pleas. Special circumstances were found for each offender.

Key Takeaways

  • The District Court confirmed that assessing objective seriousness for a detention-for-advantage offence requires examination of the duration of the detention, the nature and reality of threats made, whether weapons were present or implied, the advantage sought, and the psychological impact on the victim.

  • A 25% discount for the utilitarian value of guilty pleas entered in the Local Court and maintained at sentencing applied under s 25D of the Crimes (Sentencing Procedure) Act 1999.

  • Where Form 1 matters overlap factually with the principal offence, the sentencing court must avoid double-counting: the additional increase to sentence from those matters should be modest and carefully calibrated.

  • Under Bugmy v The Queen, backgrounds of deprivation and disadvantage remain relevant to moral culpability even where an offender has an extensive prior record, though they do not reduce the objective gravity of serious offending.

  • Special circumstances were found justified for both offenders given entrenched patterns of reoffending, with His Honour emphasising the importance of extended post-release supervision in attempting to break the cycle of custody and reoffending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 37

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hoskins v R [2021] NSWCCA 169
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Paterson v R [2021] NSWCCA 273
- R v Millwood [2012] NSWCCA 2
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14