Medium Neutral Citation: Police v Liddington [2023] NSWLC 13
Hearing dates: 24 January 2023
Date of orders: 6 February 2023
Decision date: 06 February 2023
Jurisdiction: Criminal
Before: Stewart LCM
Decision:
Imprisonment 2 years NPP 18 months

Catchwords:
CRIME — Intimidation — affray — hate or race crime — white supremacist ideology — targeted victim —degree of planning — strong need for specific and general deterrence — whether parity applies —untested remarks to third party — protection of community — denunciation

Legislation Cited:
Crimes Act1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:
Bresnahan v The Queen [2022] NSWCCA 288
Bugmy v The Queen [2013] HCA 37
Greaves v R [2020] NSWCCA 140
Green v The Queen; Quinn v The Queen [2011] HCA 49
Imbornone v R [2017] NSWCCA 144
Lowe v The Queen (1984) 154 CLR 606
McAuliffe v The Queen (1995) 183 CLR 108
Park v The Queen [2021] HCA 37
Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294
R v Borkowski [2009] NSWCCA 102
Stanley v Director of Public Prosecutions (NSW) [2022] HCA 3
Thurlow v The Queen [2022] NSWCCA 20
Valentine v R [2020] NSWCCA 116
Veen v The Queen (No.2) (1988) 164 CLR 465

Category: Sentence
Parties: NSW Police Force (Prosecution)
Desmond Liddington (Defendant)
Representation: Solicitors:
Sergeant G Lolis (Police Prosecutor)
G Stewart (Defendant)

File Number(s): 2022/00119858
Publication restriction: Nil

JUDGMENT

REMARKS ON SENTENCE

The Charges and the Pleas

The offender Desmond Liddington pleaded guilty to offences of Intimidation contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), and Affray contrary to s 93C(1) Crimes Act 1900 (NSW) (the ‘Crimes Act’).
Guilty pleas were entered on 20 September 2022 on the seventh Court mention of the matters, which were first before the Court on 27 April 2022.
In accordance with the principles enunciated in R v Borkowski [2009] NSWCCA 102 at [32] I allow a discount of 20% for the utilitarian value of the delayed plea.

Maximum Penalties

The maximum penalty for Intimidation is 5 years imprisonment. The maximum penalty for Affray is 10 years imprisonment.
In Park v The Queen [2021] HCA 37 at [19], the Court said:

“[19] Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account "[i]n determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit.¹⁷
¹⁷ R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Liddington

Details

AGLC: Police v Liddington [2023] NSWLC 13
Case: [2023] NSWLC 13
Decision Date: 06 February 2023

CaseChat Overview and Summary

In the case of Police v Liddington, the respondent, a known member of a white supremacist group, was convicted of engaging in an affray with a targeted victim. The case was heard in the Supreme Court of New South Wales. The respondent’s actions were not only violent but also motivated by a hate crime ideology, which included making threats against the victim on the basis of race. The respondent’s involvement in the affray was premeditated and demonstrated a degree of planning, highlighting the need for both specific and general deterrence in such cases.

The court was required to address several legal issues, including whether the principles of parity apply in sentencing for hate crimes and whether remarks made to a third party, even if untested, could be considered in determining the appropriate penalty. The respondent’s extensive criminal history and the strong need to protect the community and denounce such behaviour were also factors considered by the court.

The court acknowledged the severity of the respondent’s actions and the necessity of general deterrence in cases involving hate crimes. It concluded that the principles of parity did not apply due to the unique nature of hate crimes and the significant impact on the targeted victim. The court sentenced the respondent to two years imprisonment with a non-parole period of 18 months, reflecting the need to balance the principles of denunciation, deterrence, and the protection of the community.

Orders

Orders of the court

Imprisonment 2 years NPP 18 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Police v Liddington [2023] NSWLC 13

Most Recent Citation

Police v Burrows [2020] NZHC 930

Cases citing this decision · 1 of 1 shown

Police v Burrows
[2020] NZHC 930

…Wellington AP181/92, 4 March 1993. It is generally undesirable to appeal on a question of law before all the relevant facts are ascertained: Police v Liddington (1987) 2 CRNZ 690 (HC), at 691; Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (CA) at 202. See also Tipping J’s view in Police v O’Neill [1991] 3 NZL…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

Bresnahan v R
[2022] NSWCCA 288 Para 88

…utions (NSW) [2022] HCA 3 for which the High Court’s judgment is yet to be published. In accordance with the reasons given in Bresnahan v The Queen [2022] NSWCCA 288 by Beech-Jones CJ at CL at [2] and Walton J at [40], I will consider the appropriateness or otherwise of an Intensive Corrections Order.…
Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (In liq)
[2022] HCA 3 Para 88

…However, I note the successful appeal in Stanley v Director of Public Prosecutions (NSW) [2022] HCA 3 for which the High Court’s judgment is yet to be published. In accordance with the reasons given in Bresnahan v The Queen [2022] NSWCCA 288 by Beech-Jones CJ at CL at [2] and Walton J at [40], I will consider t…
Thurlow v R
[2022] NSWCCA 20 Para 87

…me imprisonment is appropriate: see Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 at [186] – [187]; and Thurlow v The Queen [2022] NSWCCA 20 at [32] – [35].…
Quinn v Commonwealth Director of Public Prosecutions
[2021] NSWCA 294 Para 87

…offending conduct is so serious that only a period of full-time imprisonment is appropriate: see Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 at [186] – [187]; and Thurlow v The Queen [2022] NSWCCA 20 at [32] – [35].…
Park v The Queen
[2021] HCA 37 Para 5

…In Park v The Queen [2021] HCA 37 at [19], the Court said:…
Greaves v R
[2020] NSWCCA 140 Para 6

…In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J with Hoeben CJ at CL and Hamill J agreeing, said:…
Valentine v R
[2020] NSWCCA 116 Para 93

…ances in relation to the more onerous conditions in prison due to Covid-19 restrictions, including increased lockdowns: see for example Valentine v R [2020] NSWCCA 116 at [59] – [62].…
Imbornone v R
[2017] NSWCCA 144 Para 50

…In Imbornone v R [2017] NSWCCA 144 at [57], Wilson J with Hoeben CJ at CL and R A Hulme J agreeing, referred to the well-known principle that untested out of court statements made to third parties, including authors of “pre-sentence reports” should be treated with “considerable caution” and “considerable circumspect…
Bugmy v The Queen
[2013] HCA 37 Para 94

…sment Report. That bare assertion is insufficient to warrant a finding of special circumstances under the Bugmy principles: see Bugmy v The Queen [2013] HCA 37. If such a finding had been made, any reduction on sentence would likely be minimal, if at all, given his extremist views, poor prospects of rehabilitati…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 69

…I am aware of the principles regarding parity as set out in Green v The Queen; Quinn v The Queen [2011] HCA 49, and in particular at [32] and [33].…
R v Robert Borkowski
[2009] NSWCCA 102 Para 3

…In accordance with the principles enunciated in R v Borkowski [2009] NSWCCA 102 at [32] I allow a discount of 20% for the utilitarian value of the delayed plea.…
Markarian v The Queen
[2005] HCA 25

…including where the maximum penalty exceeds a relevant jurisdictional limit. 17 17 R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172 A Crim R 111 at 117 [20] per Nettle JA, Chernov and Vincent JJA agreeing.”…
R v Doan
[2003] NSWSC 345

…ken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit. 17 17 R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172 A Crim R 111 at 117 [20] per Nettle JA, Chernov and Vince…
McAuliffe v The Queen
[1995] HCA 37 Para 54

…ological hatred or disapproval of the political and or cultural views of Gibson. They are all equally guilty of the crimes: see McAuliffe v The Queen (1995) 183 CLR 108 at 114.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 90

…ential risk to the community whilst he holds extremist views. In coming to this conclusion I make clear that I have applied Veen v The Queen (No.2) (1988) 164 CLR 465. However, this is not a sentence of preventative detention, rather a proportionate sentence applying relevant sentencing principle.…
Lowe v R
[1984] HCA 46 Para 55

…culpability. The victim, Gibson sees all three men when he looks through the peephole. A witness saw the three men at the door: see Lowe v The Queen (1984) 154 CLR 606 at 609.…

Legislation cited in this decision · 3

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 30)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	Police v Liddington [2023] NSWLC 13
Hearing dates:	24 January 2023
Date of orders:	6 February 2023
Decision date:	06 February 2023
Jurisdiction:	Criminal
Before:	Stewart LCM
Decision:	Imprisonment 2 years NPP 18 months
Catchwords:	CRIME — Intimidation — affray — hate or race crime — white supremacist ideology — targeted victim —degree of planning — strong need for specific and general deterrence — whether parity applies —untested remarks to third party — protection of community — denunciation
Legislation Cited:	Crimes Act1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act1999 (NSW)
Cases Cited:	Bresnahan v The Queen [2022] NSWCCA 288 Bugmy v The Queen [2013] HCA 37 Greaves v R [2020] NSWCCA 140 Green v The Queen; Quinn v The Queen [2011] HCA 49 Imbornone v R [2017] NSWCCA 144 Lowe v The Queen (1984) 154 CLR 606 McAuliffe v The Queen (1995) 183 CLR 108 Park v The Queen [2021] HCA 37 Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 R v Borkowski [2009] NSWCCA 102 Stanley v Director of Public Prosecutions (NSW) [2022] HCA 3 Thurlow v The Queen [2022] NSWCCA 20 Valentine v R [2020] NSWCCA 116 Veen v The Queen (No.2) (1988) 164 CLR 465
Category:	Sentence
Parties:	NSW Police Force (Prosecution) Desmond Liddington (Defendant)
Representation:	Solicitors: Sergeant G Lolis (Police Prosecutor) G Stewart (Defendant)
File Number(s):	2022/00119858
Publication restriction:	Nil