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District Court 28 March 2025

R v Elder

[2025] NSWDC 101

Assault & violence
CRIME — VIOLENT OFFENCES — ATTEMPT OFFENDERS — JOINT SENTENCE PROCEEDINGS JOINT CRIMINAL ENTERPRISE BUGMY FACTORS MENTAL HEALTH

Citation: R v Elder [2025] NSWDC 101
Court: District Court of New South Wales
Date: 28 March 2025
Judge: Fitzsimmons SC DCJ

Background

The offender, Timothy Elder, pleaded guilty on the day of trial to a charge of attempting to take or detain a person in company, with intent to commit a serious indictable offence and occasioning actual bodily harm. The offence carries a maximum penalty of 25 years' imprisonment with no standard non-parole period. He was sentenced jointly with two co-offenders, Joshua Elliott and Joshua Cowan, who faced the identical charge.

The offending occurred on 29 October 2022 in Nowra. The complainant attended a residential address to obtain drugs and was set upon by the three co-offenders and an unidentified male. The assault was prolonged and serious: it involved punching, kicking, dragging the complainant by his hair, holding his hand on a kitchen bench while an angle grinder was turned on and off (though never used on him), pushing him from heights, standing on his throat, and at its culmination, an attempt to force him into the boot of a car to be taken "out bush." The complainant managed to escape on each occasion and was treated at hospital for injuries including a swollen right forearm and wrist. Part of the attack was captured on neighbouring CCTV.

The victim's impact statement described severe ongoing consequences, including symptoms of post-traumatic stress disorder, two suicide attempts, loss of confidence, nightmares, and the development of significant trust issues.

  • What was the appropriate head sentence and non-parole period for Elder, having regard to the objective seriousness of the offence and his subjective circumstances?
  • Were "Bugmy factors" (the relevance of a deprived and disadvantaged background to moral culpability) established for Elder and, if so, how should they affect the sentence?
  • Was a finding of special circumstances justified, warranting an adjustment of the statutory non-parole period ratio?
  • How should parity principles operate across the three co-offenders, given differences in their individual circumstances and roles?

Decision

Fitzsimmons SC DCJ treated the maximum penalty of 25 years as a sentencing guidepost reflecting the gravity of the offence. Her Honour found that the mental health of both Elder and Elliott had contributed to the commission of the offence, reducing the weight to be given to punishment and general deterrence for those two offenders. No such Bugmy factors were identified in relation to Cowan.

Elder's background included an absent father with a history of incarceration and substance abuse, a mother affected by depression and alcoholism who was "psychologically absent," early homelessness at 15, sexual assault in a school environment that produced PTSD symptoms, and a prolonged history of illicit drug use. Dr Thomas Dornan's psychological assessment was accepted and informed the court's findings on both moral culpability and rehabilitation prospects. Elder's prospects of rehabilitation were assessed as more positive than those of his co-offenders.

The court found special circumstances existed for each of the three co-offenders, justifying a departure from the statutory ratio between the non-parole period and the balance of sentence. In Elder's case, the finding was supported by the identified need to address mental health issues identified by Dr Dornan, the fact that this was his first time in custody, and the assessment of good rehabilitation prospects. The utilitarian value of Elder's guilty plea (entered on the day of trial) was assessed at a 5% reduction.

Applying parity principles from cases including Lowe v The Queen and Postiglione v The Queen, the court sentenced the three co-offenders jointly, calibrating individual outcomes by reference to differences in remorse, rehabilitation prospects, and subjective background, while maintaining consistency across the group given their participation in a joint criminal enterprise.

Orders Made

  • Elder is convicted of attempting to take or detain a person in company with intent to commit a serious indictable offence and occasion actual bodily harm.
  • Elder is sentenced to imprisonment for 2 years, 10 months and 5 days, commencing 12 June 2023 and expiring 16 April 2026.
  • A non-parole period of 1 year and 10 months is imposed, expiring 11 April 2025; the earliest release date was 11 April 2025.
  • The charge of common assault on the s 166 certificate is withdrawn and dismissed.

Key Takeaways

  • Bugmy factors, reflecting an offender's severely deprived or traumatic background, can reduce moral culpability and the weight to be given to punishment and deterrence at sentencing, even for serious violent offences; those factors were established for Elder and Elliott but not for Cowan.
  • A finding of special circumstances, justifying adjustment of the statutory non-parole period ratio, was warranted where the offender faced his first custodial term, had identified mental health needs, and held good rehabilitation prospects.
  • Under parity principles, co-offenders sentenced for identical offences in joint proceedings may nonetheless receive sentences that diverge in their specific terms, where genuine differences in subjective circumstances, remorse, or rehabilitation prospects exist.
  • A guilty plea entered on the day of trial attracted only a 5% utilitarian discount, reflecting the limited practical benefit to the justice system of such a late plea.
  • The District Court confirmed that the maximum penalty for an offence functions as a sentencing "guidepost" or reference point, anchoring the court's assessment of where the particular conduct sits on the spectrum of seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crime (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v The Queen (2013) 240 CLR 571
- DC v R [2023] NSWCCA 82
- DPP (CTH) v De La Rosa (2010) 79 NSWLR 1
- Hoskins v R [2021] NSWCCA 169
- Kennedy v R [2010] NSWCCA 260
- Leigh Brown v R [2014] NSWCCA 335
- Lowe v The Queen (1984) 154 CLR 606
- Muldrock v R (2011) 244 CLR 120
- Postiglione v The Queen (1997) 189 CLR 295
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v JW (2010) 77 NSWLR 7
- R v Schofield [2003] NSWCCA 3
- R v Taouk (1992) 65 A Crim R 387