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District Court 13 November 2025

R v SHANKS

[2025] NSWDC 431

Assault & violence
CRIME — VIOLENT OFFENCES HARDSHIP IN CHILDHOOD HOMELESS AND ALCOHOLIC OFFENDER PARITY

Citation: R v Shanks [2025] NSWDC 431
Court: District Court of New South Wales
Date: 13 November 2025
Judge: Lerve DCJ

Background

The offender was convicted after a jury trial on 15 May 2025 of one count of kidnapping in company with intent to commit a serious indictable offence, contrary to s 86(3) of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment, and no standard non-parole period applies.

The offending occurred on or about 28 October 2023 in Baylis Street, Wagga Wagga. At the time, both the offender and the victim were homeless persons who knew each other. The court found beyond reasonable doubt that a dispute over money in the days leading up to the offence provided the background to it. The victim was taken without his consent, in the company of another person, with the intention of intimidating him, and actual bodily harm was occasioned to him at the time of or immediately after the taking.

The victim gave evidence at trial by audio-visual link from a correctional centre. The court described him as an unimpressive and markedly reluctant witness who claimed on numerous occasions to have no memory of events. Surveillance footage from Baylis Street formed a significant part of the Crown's case.

  • What facts had been established to the required standard for sentencing purposes, given that the parties could not agree on the factual basis for sentence following the jury verdict?
  • What weight should be given to the offender's subjective circumstances, including a deprived childhood, homelessness, alcohol dependency, and a diagnosis of depressive disorder at the time of offending?
  • Whether a discount applied for facilitation of the course of justice under s 22A of the Crimes (Sentencing Procedure) Act 1999.
  • Whether special circumstances existed warranting a non-parole period shorter than the statutory default ratio.
  • What sentence achieved appropriate parity with any co-offender, having regard to relevant authority.

Decision

Because the parties could not agree on the facts for sentencing, Lerve DCJ was required to determine facts independently. His Honour applied the principles from The Queen v Olbrich (1999) and Filippou v The Queen (2015): facts adverse to the offender must be proved beyond reasonable doubt, facts favourable to the offender on the balance of probabilities, and the court is not obliged to accept a favourable version simply because the prosecution has not disproved it beyond reasonable doubt.

The court took into account a range of subjective factors in favour of the offender. These included a difficult and deprived childhood, homelessness at the time of offending, alcohol dependency, and a depressive disorder. Following the High Court's approach in Bugmy v The Queen (2013), the court recognised that the effects of profound disadvantage in childhood do not diminish with time and remain relevant to moral culpability.

A reduction in sentence was applied for facilitation of the course of justice under s 22A of the Crimes (Sentencing Procedure) Act 1999. The court found special circumstances existed, justifying a departure from the standard one-third ratio between the non-parole period and the balance of term, resulting in a longer supervision period upon release. The court noted that the appropriate sentence absent the facilitation discount would have been 4 years and 9 months.

The court imposed a total sentence of 4 years and 6 months, comprising a 3-year non-parole period and a balance of term of 1 year and 6 months. His Honour also recommended the offender's release to parole at the expiry of the non-parole period and directed that a psychiatric report be forwarded to Corrective Services.

Orders Made

  • The offender was convicted of kidnapping in company with intent to commit a serious indictable offence (intimidation), with actual bodily harm occasioned, contrary to s 86(3) of the Crimes Act 1900.
  • Sentenced to a non-parole period of 3 years, commencing 20 November 2023 and expiring 19 November 2026.
  • Balance of term of 1 year and 6 months, commencing 20 November 2026 and expiring 19 May 2028.
  • Total sentence: 4 years and 6 months (reflecting a facilitation of justice discount; but for that discount, the sentence would have been 4 years and 9 months).
  • The court recommended the offender's release to parole at the expiry of the non-parole period.
  • A copy of Dr Pusey's report (exhibit 1 on sentence) directed to be forwarded to the Department of Corrective Services.

Key Takeaways

  • A jury conviction carries no sentencing discount for a plea of guilty; the absence of a discount does not, however, mean the offender is penalised for having contested the charge.
  • Where parties cannot agree on the factual basis for sentence after a jury trial, the sentencing court must apply the Olbrich and Filippou framework: adverse facts proved beyond reasonable doubt, favourable facts on the balance of probabilities, and unresolved competing possibilities left to one side rather than resolved in the offender's favour by default.
  • Profound childhood deprivation, homelessness, and a diagnosed mental disorder at the time of offending were treated as relevant to the offender's moral culpability, consistent with Bugmy v The Queen.
  • Under s 22A of the Crimes (Sentencing Procedure) Act 1999, facilitation of the course of justice can reduce an otherwise appropriate sentence; here it produced a three-month reduction from 4 years 9 months to 4 years 6 months.
  • Statistics and tables of comparable cases may be tendered in sentencing proceedings, but the District Court reaffirmed, consistent with Hili & Jones v The Queen and Brown v R, that each matter must be determined on its own facts and that statistics carry limited weight.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22A
- Sentencing Act (NSW)

Cases
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Cheung v The Queen (2001) 209 CLR 1
- Bugmy v The Queen [2013] HCA 37
- Hili & Jones v The Queen [2010] HCA 45
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Brown v R [2014] NSWCCA 215
- Greaves v R [2020] NSWCCA 140
- Moiler v R [2021] NSWCCA 73
- Towers v R [2025] NSWCCA 142
- R v Millwood [2012] NSWCCA 2
- R v Speechley [2012] NSWCCA 130
- R v Storey [1998] 1 VR 359