Citation: R v Bentley; R v Cockburn; R v Buddle; R v Dawes; R v Pfitzner [2022] NSWDC 755
Court: District Court of New South Wales
Date: 22 April 2022
Judge: Haesler SC DCJ
Background
Five offenders were sentenced together for their roles in a joint criminal enterprise involving the unlawful detention of a young man in the Wollongong area in May 2020. The victim had stolen a car, cannabis, and $4,500 from one of the group, Levvell, and his partner Dawes. The group lured the victim to an address at Barrack Heights, held him for approximately ninety minutes, then transported him to West Wollongong with the stated intention of taking him to nearby tunnels to intimidate him.
The victim, stripped of his clothing, chose to run. Cockburn chased and caught him on a stairwell. Shortly afterwards, a co-offender not being sentenced in these proceedings stabbed the victim. The court was explicit that none of the five offenders being sentenced bore any criminal responsibility for the stabbing.
Two offenders, Cockburn and Dawes, were convicted after a jury trial on 15 February 2022. The remaining three, Bentley, Pfitzner, and Buddle, entered guilty pleas at various stages. The court had previously sentenced two other participants, Levvell and Austin, in separate proceedings.
Legal Issues
- What sentence was appropriate for each offender, given their individual roles within the joint criminal enterprise?
- How should parity be maintained across five co-offenders with meaningfully different levels of participation?
- What weight should be given to guilty pleas entered at different stages (Local Court versus arraignment)?
- Were there subjective factors, including backgrounds of disadvantage, young motherhood, mental health, or Indigenous heritage, that affected the appropriate sentence for individual offenders?
- What was the correct approach to the severity appeal brought by Bentley in relation to her Local Court sentence?
Decision
Haesler SC DCJ applied the instinctive synthesis approach to sentencing, drawing on the High Court authorities in Muldrock, Markarian, and Hili. That approach requires the court to identify all relevant factors, assess their significance, and reach a single value judgment reflecting the totality of the offending and the individual offender's circumstances. The maximum penalty of 20 years for the principal offence under s 86(2)(a) of the Crimes Act was noted as a marker of the seriousness with which the law regards the deprivation of personal liberty.
Each offender's role was assessed individually. Bentley's involvement was the most limited: she was present at the first location and her role ended when the victim was removed from the house, well before the events in West Wollongong. Pfitzner and Dawes participated in the confrontation at West Wollongong but played no active physical role, and their involvement in the detention ceased once the victim ran. Buddle was in the car that transported the victim and was similarly not involved in any physical action after the victim fled. Cockburn, by contrast, was convicted of the principal detention offence and two additional charges: an attempt to take and detain, and an assault arising from chasing and grappling with the victim on the stairs.
Guilty pleas entered in the Local Court attracted a 25% utilitarian discount. Buddle's plea on arraignment attracted a 10% reduction. Cockburn and Dawes, having exercised their right to a jury trial, received no discount, and the court was clear that they could not be penalised for doing so. Various subjective matters were taken into account across the five offenders, including mental health difficulties, histories of disadvantage, and, in Buddle's case, his Aboriginal background and engagement with the Aboriginal Medical Service.
On Bentley's severity appeal, the District Court set aside the Local Court's orders and substituted an Intensive Correction Order. Because Bentley had spent close to five months in custody, the ICO could only operate for a remaining period of three months.
Orders Made
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Bentley: Community Correction Order of 1 year (for the non-appeal matter); severity appeal allowed, Local Court orders set aside, aggregate sentence to be served by way of Intensive Correction Order for 3 months (reduced to account for approximately 5 months already served); released on the day of sentence; required to report to Wollongong Community Corrections within 7 days.
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Buddle: Sentence of 1 year and 1 month (reduced from 1 year 3 months by 10% plea discount), served by way of Intensive Correction Order; 50 hours community service; conditions include no further offences, supervision, and continued engagement with the Aboriginal Medical Service.
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Pfitzner: Community Correction Order for 1 year and 6 months; conditions include good behaviour, reporting to Community Corrections within 7 days, compliance with supervision plan, referral to psychologist, and continuation with ACE aftercare program.
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Dawes: Sentence of 1 year and 10 months imprisonment, served by way of Intensive Correction Order; conditions include no further offences, supervision, and a mental health treatment condition requiring engagement with a GP, Mental Health Care Plan, and psychologist.
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Cockburn: Aggregate sentence of 2 years' imprisonment (comprising 1 year 6 months for the s 86(2)(a) offence, 1 year for Attempt to Take and Detain, and 6 months for Assault); sentence commenced 25 March 2022 with 28 days pre-sentence custody taken into account; non-parole period of 1 year (special circumstances found); eligible for parole 24 March 2023; sentence expires 24 March 2024; taken into custody.
Key Takeaways
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A joint criminal enterprise does not produce uniform sentences: the District Court emphasised that each offender must be assessed individually, with their specific role, level of participation, and personal circumstances all bearing on the outcome.
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Parity across co-offenders requires the court to identify meaningful distinctions in culpability; here, the range of outcomes ran from a Community Correction Order for the least involved offender to full-time imprisonment (with parole) for the most culpable.
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Utilitarian plea discounts are calibrated to timing: a Local Court guilty plea attracted 25%, while a plea entered only at arraignment in the District Court attracted 10%.
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Offenders who exercise their right to a jury trial cannot be punished for doing so, but they equally receive no sentencing discount that would otherwise be available for a guilty plea.
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Subjective factors, including mental health, backgrounds of disadvantage, and Indigenous heritage, formed part of the instinctive synthesis in each case, and in several instances supported non-custodial or community-based orders despite the objective seriousness of the offending.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61, 86(1), 86(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; [2014] VSCA 342
- R v Newell [2004] NSWCCA 183
- R v Austin [2021] NSWDC 440
- R v Levvell [2021] NSWDC 518