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District Court 28 March 2025

R v Elliott

[2025] NSWDC 102

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

Citation: R v Elliott [2025] NSWDC 102
Court: District Court of New South Wales
Date: 28 March 2025
Judge(s): Fitzsimmons SC DCJ

Background

The offender was one of three men sentenced together for an attempt to take and detain a person in company with intent to commit a serious indictable offence, causing actual bodily harm. The offence carries a maximum penalty of 25 years imprisonment and has no standard non-parole period. The maximum penalty was treated as a sentencing guidepost reflecting the gravity of the conduct.

The incident occurred on 29 October 2022 in Nowra. The complainant attended a residential address to obtain drugs when the offender and two co-offenders (Cowan and Elder), along with an unidentified male, entered the premises and launched a sustained and brutal attack. The offender directed his co-offenders to hold the complainant's hand over a kitchen bench while he activated an angle grinder, stating an intention to cut off the complainant's fingers, though the grinder was never used on the victim. The complainant was punched, kicked, dragged by his hair, stood on, and had his throat stomped. When the complainant temporarily escaped to a neighbouring property, the assault continued. The three offenders attempted to force the complainant into the boot of a car to take him "out bush," but he ultimately managed to flee. The agreed facts established that the attack was motivated by a drug debt owed to the offender's brother.

The complainant sustained physical injuries including a swollen forearm and wrist, as well as a bald patch from hair pulled out during the attack. His victim impact statement described severe ongoing psychological harm, including post-traumatic stress disorder, two suicide attempts, and loss of confidence and trust.

  • What was the appropriate head sentence and non-parole period for the offender, having regard to the objective seriousness of the offence and the maximum penalty?
  • How should the sentences for the three co-offenders be calibrated to reflect parity principles, given differences in their roles, criminal histories, and subjective circumstances?
  • What weight should be given to the offender's mental health history, including his disadvantaged background, under the principles in Bugmy v The Queen?
  • Whether special circumstances existed justifying a departure from the statutory ratio of the non-parole period to the total sentence.
  • What utilitarian discount applied to the offender's late guilty plea, entered at the time of trial?

Decision

The court assessed the offence as falling in the mid to upper range of objective seriousness. The attack was premeditated, prolonged, carried out in company, involved a weapon (the angle grinder), and included a serious attempt to transport the victim to a remote location. The victim's ongoing psychological harm, including post-traumatic stress and two suicide attempts, was given significant weight through the victim impact statement.

On parity, the court sentenced the three offenders in joint proceedings, recognising that their individual circumstances differed in meaningful ways. The court found Elliott and Cowan had less positive rehabilitation prospects than Elder. Cowan's expressions of remorse were described as more qualified. Each offender's mental health was found to have contributed to the offending, which reduced (without eliminating) the weight to be given to the purposes of punishment and deterrence.

The offender's background attracted consideration under Bugmy principles, which recognise that severe childhood deprivation and disadvantage can diminish moral culpability even for serious adult offending. The psychologist's report documented a history of physical and sexual abuse, exposure to family violence, early-onset substance use, and diagnoses of PTSD, depression, anxiety, and a Cluster B personality disorder with antisocial features. The court accepted this history as relevant to, though not excusing, the offending.

Special circumstances were found to exist, justifying a longer parole period relative to the non-parole period. The court reasoned that a longer period on parole would allow the offender to engage with rehabilitation, benefit from insight gained through the psychological assessment process, and access the support of his long-term partner upon release. A 5% utilitarian discount was applied for the late guilty plea, entered at the commencement of trial.

Orders Made

  • The offender is convicted of the offence of attempt to take or detain in company with intent to commit a serious indictable offence, causing actual bodily harm.
  • The offender is sentenced to imprisonment for 4 years 9 months, commencing 23 December 2022 and expiring 22 September 2027.
  • A non-parole period of 3 years 2 months is imposed, expiring 22 February 2026; the earliest release date is 22 February 2026.
  • The common assault charge on the s 166 certificate is withdrawn and dismissed.

Key Takeaways

  • The District Court confirmed that the maximum penalty of 25 years for a specially aggravated attempt to take or detain operates as a sentencing guidepost, even in the absence of a standard non-parole period.
  • Bugmy principles remained applicable and relevant in a case involving serious violence: documented childhood trauma, abuse, and deprivation can reduce moral culpability and moderate the weight given to punishment and general deterrence, without displacing those purposes altogether.
  • Where multiple co-offenders are sentenced in joint proceedings, the parity principle requires close attention to individual differences in roles, criminal history, remorse, and rehabilitation prospects, even where all offenders are convicted of the identical charge.
  • A finding of special circumstances under the Crime (Sentencing Procedure) Act 1999 (NSW) can be supported by the need to allow an offender with diagnosed mental health conditions an extended period on parole to engage with rehabilitation, particularly where that period is supported by a stable personal relationship.
  • A guilty plea entered at the commencement of trial attracted only a 5% utilitarian discount, reflecting the very limited practical benefit to the court and complainant of such a late plea.

Legislation and Cases Referenced

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

Cases
- Bugmy v The Queen (2012) 249 CLR 571
- DC v R [2023] NSWCCA 82
- DPP (CTH) v De La Rosa (2010) 79 NSWLR 1
- Hoskins v R [2021] NSWCCA 169
- Imbornone v R [2017] NSWCCA 144
- Kennedy v R [2010] NSWCCA 260
- Leigh Brown v R [2014] NSWCCA 335
- Lowe v The Queen (1984) 154 CLR 606
- Muldrock v R (2000) 244 CLR 120
- Postiglione v The Queen (1997) 189 CLR 295
- R v Henry [1999] NSWCCA 111
- R v JW (2010) 77 NSWLR 7
- R v Qutami (2001) 127 A Crim R 369
- R v Schofield [2003] NSWCCA 3
- R v Taouk (1992) 65 A Crim R 387
- Veen v The Queen (No 2) (1988) 164 CLR 465