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District Court 6 September 2024

R v PRIGG; R v BOYTON

[2024] NSWDC 400

Assault & violenceTheft & property
SENTENCE SPECIALLY AGGRAVATED TAKE AND DETAIN JOINT CRIMINAL ENTERPRISE DIFFERENT FACTS FOR EACH OFFENDER ONEROUS BAIL CONDITIONS

Citation: R v Prigg; R v Boyton [2024] NSWDC 400
Court: District Court of New South Wales
Date: 6 September 2024
Judge: Lerve DCJ

Background

Late on 4 October 2020 in Wagga Wagga, a victim was confronted outside his home by four people arriving in a car. The encounter arose from a dispute over a poorly constructed trailer the victim had built and sold to one of the offenders. The victim was told he was "coming with us," placed into the vehicle, punched repeatedly to the face during the journey, and had his phone taken from him. The group drove to a co-offender's residence in another suburb, where the victim managed to escape and hide for approximately four hours before contacting emergency services.

The two offenders sentenced in this proceeding, Prigg and Boyton, each pleaded guilty to specially aggravated take and detain under s 86(3) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment. Boyton also pleaded guilty to a separate charge of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, carrying a maximum of five years. A third participant, Field, had already been sentenced separately.

The central complication at sentence was that, although both offenders faced the same charge arising from the same incident, their respective agreed facts described materially different roles. The court was required to sentence each offender individually based on their own agreed facts, while also considering parity with the other offender and with Field.

  • What sentence was appropriate for each offender given the different agreed facts describing their respective roles in a joint criminal enterprise?
  • How should the court resolve the discrepancy between the two sets of agreed facts, particularly regarding whether Boyton used force to place the victim in the vehicle?
  • What weight should be given to video footage tendered by the Crown, where the Crown made no submissions on how it should be used?
  • Were special circumstances established to justify a non-parole period below the statutory default ratio?
  • How should parity between the two offenders, and with the previously sentenced co-offender Field, be maintained?

Decision

Lerve DCJ resolved the factual discrepancy between the two sets of agreed facts by sentencing each offender according to their own separate agreed facts. The facts against Prigg described Boyton as forcing the victim into the car. The facts against Boyton, however, were considerably more neutral, stating only that the victim got into the car at Prigg's direction without any apparent use of force by Boyton. Because these were separate fact documents tendered against each respective offender, the court applied each set only to the offender against whom it was tendered, ignoring more detailed or adverse facts about one offender that appeared only in the other's agreed facts.

On the video recording tendered by the Crown, the court declined to draw on its contents in sentencing. The Crown tendered the footage but made no submissions on its use. Counsel for both offenders submitted that the court should sentence on the agreed facts. Applying authority including R v Palu, Khanwaiz v R, and Taitoko v R, the court sentenced on the agreed facts alone.

Prigg was found to be the most culpable of the three participants. On the basis of the agreed facts as presented, he was the instigator of the offending and the person who inflicted the physical violence causing actual bodily harm. Boyton's role was assessed as less serious than Prigg's but greater than Field's, a finding consistent with the Crown's submissions. Both offenders received a finding of special circumstances, reducing the non-parole period to 60% of the total sentence, to allow for greater supervised parole given their individual circumstances.

The court also acknowledged that onerous bail conditions served by each offender prior to sentencing were taken into account in fixing the commencement dates of the respective sentences, with Boyton's sentence backdated to September 2023 and Prigg's to August 2023.

Orders Made

Prigg:
- Convicted of specially aggravated take and detain (s 86(3), Crimes Act 1900)
- Non-parole period of 2 years 3 months, commencing 16 August 2023, expiring 15 November 2025
- Balance of term of 18 months, commencing 16 November 2025, expiring 15 May 2027
- Release to parole recommended at expiration of non-parole period
- Special circumstances found; non-parole period set at 60% of total sentence
- Report of Dr Pusey to be forwarded to the Department of Corrective Services

Boyton:
- Convicted of specially aggravated take and detain (s 86(3), Crimes Act 1900) and intimidation (s 13(1), Crimes (Domestic and Personal Violence) Act 2007)
- Aggregate sentence of 2 years 6 months
- Non-parole period of 18 months, commencing 16 September 2023, expiring 15 March 2025
- Balance of term of 12 months, commencing 16 March 2025, expiring 15 March 2026
- Eligible for release to parole at expiration of non-parole period; release strongly recommended to be conditioned on supervision and compliance with all reasonable directions of the Department of Community Corrections relating to substance abuse treatment and counselling
- Special circumstances found; non-parole period set at 60% of total sentence
- Report of Ms Kris North to be forwarded to the Department of Corrective Services

Key Takeaways

  • Where separate agreed fact documents are tendered against co-offenders in a joint criminal enterprise, the court applies each set of facts only to the offender against whom it is tendered, even if those facts paint a materially different picture of events.

  • Video evidence tendered without any Crown submission on its use, and over no objection from the defence, does not automatically become a basis for sentencing findings. The District Court here declined to use the footage and sentenced on the agreed facts, consistent with established authority.

  • A disparity in culpability between co-offenders charged with the same offence can, and in this case did, result in meaningfully different sentences, even where parity principles must also be satisfied.

  • Onerous pre-sentence bail conditions are a recognised mitigating factor in NSW sentencing, and the court gave effect to them by backdating the commencement of each sentence.

  • Special circumstances findings under the Crimes (Sentencing Procedure) Act 1999 reduced the non-parole period for both offenders to 60% of the total sentence, below the statutory default of 75%, to allow for extended supervised parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(3) (specially aggravated take and detain)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- DG (No. 1) v R [2023] NSWCCA 320
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Khanat v R [2024] NSWCCA 41
- Khanwaiz v R [2012] NSWCCA 168
- R v Butler [2024] NSWCCA 133
- R v Palu (2002) 134 A Crim R 174
- R v Reeves [2024] NSWCCA 154
- R v Speechley (2012) 221 A Crim R 175
- R v Webb (2004) 149 A Crim R 167
- Stanley v DPP [2023] HCA 3
- Taitoko v R [2020] NSWCCA 43
- Tonga, Samuel [2023] NSWCCA 120
- Zheng v R [2023] NSWCCA 64