Citation: R v Steele [2024] NSWDC 511
Court: District Court of New South Wales
Date: 31 October 2024
Judge: Mahony SC DCJ
Background
The offender was tried by jury on three counts arising from a violent series of events on 12 February 2022 involving associates of outlaw motorcycle clubs. He was convicted on two counts: specially aggravated kidnapping (Count 1) and robbery in company (Count 3). Both offences were connected to an alleged drug debt owed by one victim to a co-offender affiliated with the Banditos OMCG.
In the early hours of 12 February 2022, a group of men, including the offender, travelled to Terrigal as part of a broader group that also included prospective members of the Nomads OMCG. One victim was forcibly taken from the street, driven to Crackneck Lookout, assaulted, and subjected to a knife attack by co-offenders. The offender was found guilty as part of a joint criminal enterprise to detain that victim without consent, with the intention of committing intimidation, during which actual bodily harm was inflicted.
Later that night, the same group drove to North Gosford, where a second victim was lured to a vehicle under false pretences and robbed of cash and a gold watch at knifepoint. The jury found the offender guilty as a participant in that robbery in company, rejecting his defence that he was merely present without knowledge of the criminal purpose.
Legal Issues
- What objective seriousness attached to the offences of specially aggravated kidnapping and robbery in company, given the offender's role in a joint criminal enterprise?
- How should the Bugmy principle (regarding the mitigating weight of disadvantaged background) apply to the offender's sentencing?
- Whether special circumstances existed, justifying a departure from the statutory ratio between the head sentence and the non-parole period.
- How to structure an aggregate sentence where two offences formed part of the same night of criminal conduct but involved two different victims.
- What parity considerations arose from the sentences already imposed on co-offenders?
Decision
The court found that both offences were objectively serious. Count 1 carries a maximum penalty of 25 years and Count 3 carries a maximum of 20 years, with no standard non-parole periods prescribed for either. The court took into account the offender's role in each joint criminal enterprise, the pre-planned nature of the conduct, the involvement of a weapon, and the vulnerability of both victims. The offences were aggravated further by the fact that the offending occurred while the offender was subject to an Intensive Correction Order imposed for a prior drug supply offence.
In mitigation, the court considered a psychological report from Dr D.G. Gilligan, a clinical and forensic psychologist, which addressed the offender's background and personal circumstances. The court applied the Bugmy principle, which recognises that the effects of profound childhood deprivation and disadvantage do not diminish over time and may reduce the weight given to general deterrence in sentencing. The offender had accepted the jury findings and acknowledged his guilt.
The court found special circumstances, having regard to the offender's youth and medical and rehabilitation needs, warranting an extended period on parole. This justified altering the standard statutory ratio, which would ordinarily see the non-parole period set at three-quarters of the head sentence.
Because the two offences occurred during the same course of criminal conduct on the same night, concurrent sentencing was considered. However, because the offences involved two different victims, the court determined that some accumulation was warranted, ultimately imposing an aggregate sentence of 7 years with a non-parole period of 3 years and 6 months.
Orders Made
- The offender was convicted of Counts 1 and 3 on the Indictment.
- An aggregate sentence of 7 years imprisonment was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.
- Non-parole period: 3 years and 6 months, commencing 14 July 2024 and expiring 13 January 2028.
- Balance of term: 3 years and 6 months, commencing 14 January 2028 and expiring 13 July 2031.
- Parole eligibility date: 13 January 2028 (subject to State Parole Authority determination).
Key Takeaways
- Where two serious offences arise from a single episode of criminality but involve different victims, the District Court found that some accumulation of sentences is warranted, even if the offences share common circumstances and occur on the same night.
- The Bugmy principle confirms that childhood deprivation and disadvantage retain ongoing mitigating relevance at sentencing and may reduce the weight given to general deterrence, regardless of the time elapsed since the offender's early life.
- A finding of guilt based on joint criminal enterprise does not require proof that the offender personally inflicted harm; participation in the common purpose is sufficient to ground liability for the agreed offence.
- Special circumstances justifying a reduced non-parole period relative to the head sentence may be established by reference to an offender's youth and medical or rehabilitation needs, both of which support a longer period of supervised reintegration in the community.
- Offending committed while subject to an Intensive Correction Order is treated as an aggravating factor, reflecting the breach of a conditional liberty already extended to the offender.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 86(3), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Cahyadi v R 168 A Crim R 41; [2007] NSWCCA 1
- KT v R (2008) 2008 A Crim R 112; [2008] NSWCCA 51
- R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
- R v Newell [2004] NSWCCA 183