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Supreme Court 27 September 2022

R v AN; R v LM; R v WD

[2022] NSWSC 1272

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCE VICTIM IMPACT STATEMENT FINDINGS OF FACT OBJECTIVE SERIOUSNESS SUBJECTIVE FACTORS

Citation: R v AN; R v LM; R v WD [2022] NSWSC 1272
Court: Supreme Court of New South Wales
Date: 27 September 2022
Judge: Walton J

Background

Three offenders, each aged 17 at the time of the offence, were involved in the detention and assault of a man at Broulee on 2 February 2020. The victim died following the incident. All three offenders were initially charged with murder and were committed from the Batemans Bay Children's Court.

AN and LM were tried before a judge alone on the murder charge. The central issue at trial was whether the Crown had proved beyond reasonable doubt that the deceased died from a combination of craniofacial trauma and airway obstruction. On 16 June 2022, both were acquitted of murder but convicted on their guilty pleas to the foundational offence of specially aggravated detention under s 86(3) of the Crimes Act 1900 (NSW). Following the acquittal of AN and LM, the Crown withdrew the murder charge against WD, who then pleaded guilty to the same offence on 19 July 2022.

The three offenders came before Walton J for sentencing on their respective guilty pleas. All had been in continuous custody since their arrest on 13 February 2020. The sentencing proceeded on an agreed statement of facts, with minor variations as between WD and the other two offenders.

  • What is the appropriate sentence for each offender convicted of specially aggravated detention under s 86(3) of the Crimes Act 1900 (NSW), an offence carrying a maximum of 25 years' imprisonment?
  • How should the objective seriousness of the offence be assessed, including the nature and severity of the assault and the degree of planning and premeditation?
  • What weight should be given to the offenders' youth, psychological evidence, mental health, absence of prior criminal history, prospects for rehabilitation, and "Bugmy factors" (the mitigating effect of a deprived or disadvantaged background)?
  • How should general deterrence be balanced against the particular circumstances of juvenile offenders?
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the balance of the term of imprisonment?
  • Whether the sentences should be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW)?

Decision

Walton J concluded that the only appropriate penalty for each offender was full-time incarceration. The court assessed the objective seriousness of the offences, having regard to the fact that specially aggravated detention sits at the top of the hierarchy of offences within s 86 of the Crimes Act. The circumstances of aggravation, namely the infliction of actual bodily harm during the detention, and the special aggravation of acting in company, applied equally to all three offenders.

The court took into account the youth of each offender, their psychological profiles, mental health circumstances, lack of prior criminal history, and prospects for rehabilitation. Consistent with Bugmy v The Queen (2013) 249 CLR 571, the court considered the relevance of any disadvantaged background to the assessment of moral culpability. Remorse was also addressed as a mitigating factor. While general deterrence was given weight, the court found no need for specific deterrence.

The sentences were differentiated between the three offenders, reflecting their individual subjective circumstances, including variations in the psychological evidence and the slightly different framing of WD's indictment (which charged detention for the advantage of an opportunity to assault, intimidate, and humiliate the deceased, rather than with the intention of causing actual bodily harm). Special circumstances were found to exist for each offender, justifying a greater proportion of the sentence allocated to the balance of term beyond the non-parole period.

The court directed that the whole of each sentence be served as a juvenile offender under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), given that each offender was 17 years of age at the time of the offence.

Orders Made

  • AN: Sentenced to imprisonment with a non-parole period of 3 years and 10 months (13 February 2020 to 12 December 2023) and a balance of term of 1 year and 10 months (13 December 2023 to 12 October 2025); eligible for parole on 12 December 2023.
  • LM: Sentenced to imprisonment with a non-parole period of 2 years and 11 months (13 February 2020 to 12 January 2023) and a balance of term of 1 year and 5 months (13 January 2023 to 12 June 2024); eligible for parole on 12 January 2023.
  • WD: Sentenced to imprisonment with a non-parole period of 2 years and 7 months (13 February 2020 to 12 September 2022) and a balance of term of 1 year and 3 months (13 September 2022 to 12 December 2023); eligible for parole on 12 September 2022.
  • All sentences directed to be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW).
  • In relation to WD (whose total sentence exceeded 3 years), the statutory parole order provision under s 158 of the Crimes (Administration of Sentences) Act 1989 did not apply; the court recommended the Parole Authority consider making a parole order in WD's case as soon as practicably possible.

Key Takeaways

  • Specially aggravated detention under s 86(3) of the Crimes Act 1900 (NSW) carries a maximum of 25 years and sits at the apex of the s 86 hierarchy; the sentencing court must use that maximum as a yardstick, comparing the case before it against the most serious conceivable example of the offence, as affirmed in Markarian v The Queen (2005) 228 CLR 357.

  • Where offenders were 17 years of age at the time of the offence, no standard non-parole period applies under s 54D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and sentencing must proceed as a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987 (NSW).

  • A deprived or disadvantaged background, assessed through the lens of Bugmy v The Queen, remains a relevant mitigating consideration even where the offence is serious, operating on the assessment of the offender's moral culpability rather than as a reduction of the gravity of the conduct itself.

  • Sentences can be differentiated between co-offenders charged with materially the same offence where their individual subjective circumstances, including psychological evidence, mental health, and the precise framing of the relevant charge, warrant different outcomes. The principle of parity between co-offenders remains relevant but does not mandate identical sentences.

  • Under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), the Supreme Court may direct that the entirety of a custodial sentence imposed on an offender who was a juvenile at the time of the offence be served as a juvenile offender, regardless of the offender's age at the time of sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 26, 27, 30, 44, 54, 54B, 54D(2), 62
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 17, 19, 26, 27, 30, 132, 133
- Crimes (Administration of Sentences) Act 1999 (NSW), Div 2 Pt 6; s 158
- Evidence Act 1995 (NSW), ss 4, 65, 137, 191
- Criminal Procedure Act 1986 (NSW), s 132(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
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