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Local Court 6 February 2023

Police v Liddington

[2023] NSWLC 13

Assault & violencePublic order & justice offences
CRIME INTIMIDATION AFFRAY HATE OR RACE CRIME WHITE SUPREMACIST IDEOLOGY TARGETED VICTIM

Citation: Police v Liddington [2023] NSWLC 13
Court: Local Court of NSW
Date: 6 February 2023
Judge: Stewart LCM

Background

The offender, a 39-year-old bricklayer, was the leader of a white supremacist group called Firm 22. Along with two group members, he travelled approximately 50 kilometres from Western Sydney to the home of a well-known social activist who had been prominent in Black Lives Matter rallies and Aboriginal rights causes. The victim's home address was unlisted.

On the evening of 4 December 2021, the three men knocked on the victim's front door, asking for him by name. The victim looked through the peephole, recognised the men as likely right-wing extremists by their appearance and clothing, and began moving away in fear. The men then bashed harder on the door, smashed a window, tore off the front security screen, overturned a table on the veranda and threw items around. The victim retreated to the rear bedroom with his wife and called emergency services.

The offender pleaded guilty to intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and affray under the Crimes Act 1900 (NSW). The central question at sentencing was the appropriate penalty, including whether parity with a more lenient sentence imposed on a co-offender required a Community Correction Order.

Legal Issues

  • Whether the offences were motivated by hatred for or prejudice against a group, constituting an aggravating factor under s 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The objective seriousness of each offence
  • Whether parity with the sentence imposed on co-offender Ferrer required a Community Correction Order
  • Whether a term of imprisonment or an Intensive Corrections Order was appropriate, having regard to community safety and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act
  • Whether special circumstances existed to vary the statutory ratio of non-parole period to total sentence

Decision

Hate crime aggravating factor: The court found beyond reasonable doubt that the offences were motivated by hatred for or prejudice against a group to which the offender believed the victim belonged, satisfying s 21A(2)(h) of the Crimes (Sentencing Procedure) Act (at [47]). The agreed facts, sourced from telephone intercepts, identified the offender as leader of Firm 22 and all three participants as adherents of white extremist ideology (at [51]). The court rejected the offender's assertions to the contrary as inconsistent with those agreed facts (at [52]). The court also found a degree of planning: the group knew the victim's unlisted address, sought him out by name, and targeted him because his views conflicted with their extremist beliefs (at [57]).

Objective seriousness and joint enterprise: The court assessed the intimidation offence as sitting comfortably in the middle range of seriousness (at [62]). The affray offence, given the aggravating factors, fell at least at the middle of the range (at [63]). The court inferred a joint criminal enterprise among all three participants, finding that their culpability was equal and that no individual physical act could be attributed in a way that reduced or enhanced any one participant's culpability (at [54]-[55]).

Parity with co-offender Ferrer: The court declined to treat parity with Ferrer's Community Correction Order as a reason to impose a non-custodial sentence on the offender (at [73], [82]). The distinguishing features were substantial. Ferrer's sentencing magistrate had stated the maximum penalty for affray as seven years when it is in fact ten years, a difference of nearly 43% (at [75]). Neither the prosecutor nor defence counsel corrected that error (at [76]). More significantly, Ferrer's facts contained no reference to his membership of a white supremacist group or his white extremist ideology, so s 21A(2)(h) was never applied in that matter (at [77]-[78]). By contrast, the offender before this court was sentenced as the group's leader for offences properly characterised as race and hate crimes (at [79]-[80]).

Imprisonment and Intensive Corrections Order: The court found both offences crossed the threshold in s 5 of the Crimes (Sentencing Procedure) Act, making only a sentence of imprisonment appropriate (at [84]). Considering the statutory requirement that community safety be the paramount consideration for an Intensive Corrections Order, the court found no confidence that community safety would be met given the offender's extremist views, his leadership role, the targeted nature of the offending, his lack of remorse and his poor rehabilitation prospects (at [90]). The court emphasised this was a proportionate sentence and not preventive detention (at [90]). An aggregate sentence of two years and six months was imposed (at [86]-[97]).

Special circumstances: The court found special circumstances arising from more onerous prison conditions due to COVID-19 restrictions, resulting in a non-parole period of 18 months, or 60% of the total term (at [93], [100]). The offender's bare assertion of a difficult upbringing was held insufficient to warrant a further finding of special circumstances under the Bugmy principles (at [94]).

Orders Made

  • The offender is convicted on both counts of Intimidation and Affray.
  • An aggregate sentence of imprisonment of 2 years and 6 months is imposed, running from 4 February 2023 to 3 August 2025.
  • Non-parole period of 18 months, running from 4 February 2023 to 3 August 2024.
  • Balance of term on parole commences 4 August 2024 and expires 3 August 2025.
  • The court recommends release to parole at the expiration of the non-parole period.

Key Takeaways

  • A finding under s 21A(2)(h) of the Crimes (Sentencing Procedure) Act that an offence was motivated by hatred or prejudice against a group substantially increases the objective seriousness of the offending and requires greater emphasis on deterrence and denunciation in the sentencing exercise (at [47], [79]).

  • Parity with a co-offender's sentence does not arise mechanically: where a prior sentencing exercise applied an incorrect maximum penalty and failed entirely to engage with a hate crime aggravating factor, those are significant distinguishing features capable of displacing a parity argument (at [75]-[82]).

  • Untested exculpatory statements made by an offender to the author of a pre-sentence report attract "considerable caution" and may deserve little or no weight, particularly where they are directly contradicted by agreed facts (at [50]-[52]).

  • Under s 66(1) of the Crimes (Sentencing Procedure) Act, community safety is the paramount consideration when assessing an Intensive Corrections Order. Where an offender holds active extremist beliefs, lacks remorse and has poor rehabilitation prospects, a sentencing court may find that community safety is not adequately served by a non-custodial order (at [89]-[91]).

  • An offender's role as the leader of an extremist group, as opposed to a follower or ordinary member, is a relevant distinction in assessing culpability even within a joint criminal enterprise (at [58], [80]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW )

Cases
- Bresnahan v The Queen [2022] NSWCCA 288
- Bugmy v The Queen [2013] HCA 37
- Greaves v R [2020] NSWCCA 140
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Imbornone v R [2017] NSWCCA 144
- Lowe v The Queen (1984) 154 CLR 606
- McAuliffe v The Queen (1995) 183 CLR 108
- Park v The Queen [2021] HCA 37
- Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294
- R v Borkowski [2009] NSWCCA 102
- Stanley v Director of Public Prosecutions (NSW) [2022] HCA 3
- Thurlow v The Queen [2022] NSWCCA 20
- Valentine v R [2020] NSWCCA 116
- Veen v The Queen (No.2) (1988) 164 CLR 465