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District Court 16 August 2024

R v Andrews

[2024] NSWDC 358

Assault & violence
CRIME SENTENCING PRIOR DISPUTED FACTS HEARING GRATUITOUS CRUELTY MENTAL HEALTH EXPERT OPINION

Citation: R v Andrews [2024] NSWDC 358
Court: District Court of New South Wales
Date: 16 August 2024
Judge(s): Fitzsimmons SC DCJ

Background

The offender pleaded guilty to detaining a person in company with intent to obtain an advantage, contrary to s 86(2)(a) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence occurred in July 2022, when the offender was aged 33. He had been committed for trial and was arraigned on 20 March 2024, entering his guilty plea at that point.

The facts surrounding the offence were not fully agreed, and the matter proceeded to a contested facts hearing on 17 and 24 May 2024. The hearing was necessary to resolve disputed aspects of how the detention was carried out and the offender's purpose in detaining the victim.

The offender had a significant criminal history, including prior imprisonment for assault occasioning actual bodily harm and stalking offences. At the time of this offence, he was subject to a community corrections order. He had also recently had an ankle monitor disabled, which led to a separate conviction dealt with alongside this sentence.

  • Whether the circumstances of the detention constituted "gratuitous cruelty" under s 21A(2)(f) of the Crime (Sentencing Procedure) Act 1999 (CSPA), warranting treatment as an aggravating factor
  • Whether the offender's plea discount should be reduced or withheld because of the contested facts hearing, under s 25(4) of the CSPA
  • The weight to be given to the psychologist's opinion on mental health impairment, remorse, and subjective mitigating factors
  • Whether parity with the co-offender's sentence was applicable, given their significantly different roles
  • Whether special circumstances existed to justify adjusting the statutory ratio between the non-parole period and the overall sentence

Decision

Objective seriousness and gratuitous cruelty: The court found the offending fell in the upper range of objective seriousness. The conduct during the detention was extreme: the victim was incapacitated, had liquid sprayed into his eyes, and was forced to engage in degrading acts including consuming urine and faecal matter, while the offender made offensive and humiliating comments. The court was satisfied this conduct amounted to gratuitous cruelty within the meaning of s 21A(2)(f) of the CSPA, treated as an aggravating factor.

Plea discount and contested facts hearing: Because the offender disputed facts at the hearing, the court applied only a 5% discount for the guilty plea rather than the larger discount that would otherwise have applied. This reflected the operation of s 25(4) of the CSPA, which limits the discount available where an offender has required a facts hearing.

Parity with co-offender: The court accepted the Crown's submission that parity with the co-offender, Adam Thompson, was inapplicable. The co-offender's role had been characterised by Judge Whitford SC as providing only implicit moral support for the detention, placing it at the very low end of the range. The offender's role was substantially greater, making a comparable sentence inappropriate.

Subjective factors, mental health, and special circumstances: The court accepted the psychologist's diagnosis of persistent depressive disorder, generalised anxiety disorder, and stimulant and opioid use disorder (in remission in custody). Mental health impairment was accepted as relevant to moral culpability, though the court was guarded on remorse given the contested facts hearing. Prospects of rehabilitation were treated as qualified. The court found special circumstances warranting an adjusted non-parole period, given the offender's need for ongoing mental health and substance abuse support in the community upon release, and the risk of institutionalisation.

Orders Made

  • The offender is convicted of the offence of detaining a person in company with intent to obtain an advantage.
  • A sentence of imprisonment of 3 years 9 months is imposed, expiring 31 July 2026.
  • A non-parole period of 2 years 6 months is imposed, expiring 30 April 2025.
  • The earliest date the offender is eligible for release on parole is 30 April 2025.
  • The sentence is backdated to commence 1 November 2022 (after the expiry of a separate three-month fixed term served from 1 August to 31 October 2022 for destroy/damage property).
  • The s 166 certificate offence is withdrawn and dismissed.

Key Takeaways

  • Where an offender requires a contested facts hearing after entering a guilty plea, the court's capacity to award a full plea discount is curtailed under s 25(4) of the CSPA; here the court applied only a 5% reduction.

  • Gratuitous cruelty under s 21A(2)(f) of the CSPA is an established aggravating factor in sentencing for detention offences, and conduct involving deliberate humiliation and degradation of a victim during a detention can satisfy that criterion.

  • Parity in sentencing applies where co-offenders have comparable roles; the District Court confirmed that a substantial difference in culpability between principal and peripheral participants can displace any parity argument entirely.

  • Accepted diagnoses of mental health impairment, including depressive and anxiety disorders linked to substance abuse, can reduce an offender's moral culpability at sentence, even where the overall risk of reoffending remains moderate to high.

  • A finding of special circumstances to adjust the statutory non-parole period ratio can be supported by an offender's need for community-based mental health and substance abuse treatment following release, together with the risk of institutionalisation from an extended custodial term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a)
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(f), 21A(2)(j), 21A(2)(k), 21A(5)(AA), 25(4), 25F(4), 25F(5)

Cases:
- Alkanaan v R [2017] NSWCCA 56
- Baden v R [2020] NSWCCA 23
- DC v R [2023] NSWCCA 82
- DH v R [2022] NSWCCA 200
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- KM v R [2023] NSWCCA 10
- Lang v The Queen [2023] HCA 29
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Moiler v R [2021] NSWCCA 73
- Medlock v R (2011) 244 CLR 120
- Pender v R [2023] NSWCCA 291
- R v Eaton [2023] NSWCCA 125
- R v Sharrouf [2023] NSWCCA 13
- R v Smith [2009] NSWCCA 286
- McCullough v R [2009] NSWCCA 94