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R v Andrews

R v Andrews

Case [2024] NSWDC 358 16 August 2024

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Andrews [2024] NSWDC 358
Hearing dates: 16 August 2024
Date of orders: 16 August 2024
Decision date: 16 August 2024
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender is convicted of the offence.
(2)   I impose a sentence of imprisonment of 3 years 9 months to expire on 31 July 2026.
(3)   I impose a non-parole period of 2 years 6 months to expire on 30 April 2025.
(4)   The earliest date the offender is eligible to be released on parole is 30 April 2025.

Catchwords:
CRIME – sentencing - detain person in company with intent to obtain advantage – prior disputed facts hearing - gratuitous cruelty – mental health – expert opinion

Legislation Cited:
Crime (Sentencing Procedure) Act 1999, ss 21A(2)(f), 21A(2)(j), 21A(2)(k), 21A(5)(AA), 21A(5)(AA), 25F(4), 25F(5), 25(4),
Crimes Act 1900, s 86(2)(a)

Cases Cited:
Alkanaan v R [2017] NSWCCA 56
Baden v R [2020] NSWCCA 23
DC v R [2023] NSWCCA 82
DH v R [2022] NSWCCA 200
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Giles-Adams v R; Preca v R [2023] NSWCCA 122
KM v R [2023] NSWCCA 10
Lang v The Queen [2023] HCA 29
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Moiler v R [2021] NSWCCA 73
Medlock v R (2011) 244 CLR 120
Pender v R [2023] NSWCCA 291
R v Eaton [2023] NSWCCA 125
R v Sharrouf [2023] NSWCCA 13
R v Smith [2009] NSWCCA 286

Category: Sentence
Parties: Rex
Benjamin Andrews
Representation:
Counsel:
Mr J Moffett (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Joe Weller & Associates (Offender)

File Number(s): 2022/00225590
Publication restriction: Non-publication order prohibiting the publication and/or disclosure of any information that may reveal the identity of the victim.

Judgment - EX TEMPORE

The offender pleaded guilty to the following offence: -

Detain person in company with intent to obtain advantage contrary to s 86(2)(a) of the Crimes Act 1900 carrying a maximum penalty of 20 years imprisonment with no standard non parole period.

On 11 April 2023, the offender was committed to the District Court and his trial was set to commence on 6 May 2024. The offender was arraigned, and pleaded guilty, on 20 March 2024.
The sentence proceeded to a contested facts hearing on 17 and 24 May 2024.
The maximum penalty for the offence is an indication of its seriousness and acts as a sentencing guidepost or reference point.
Admitted on behalf of the Crown were the following: -

Indictment

Committal documents

S 166 certificate

Agreed facts with areas in dispute highlighted

NSW custodial record

NSW criminal history

ACT criminal history

Agreed facts for H74790482

Agreed facts for H91038888

Agreed facts for H74790482 finalised on 16 July 2021

Agreed facts for H92594586 finalised on 5 December 2022

Remarks on sentence of co-offender Adam Thompson sentenced by Judge Whitford SC

Agreed facts for co-offender Adam Thompson

NSW and ACT criminal records of…

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 R v Andrews

Details

AGLC: R v Andrews [2024] NSWDC 358
Case: [2024] NSWDC 358
Decision Date: 16 August 2024

CaseChat Overview and Summary

The case of R v Andrews came before the Court where the offender was charged with detaining another person with the intent to obtain an advantage. The offender's guilt was not in dispute; rather, the focus of the hearing was on the sentencing, following a prior disputed facts hearing where issues of gratuitous cruelty and the offender's mental health were explored. Expert opinions were presented regarding the offender's mental state and the extent of the cruelty exhibited.

The court was tasked with determining the appropriate sentence, taking into account the nature of the offence, the offender's mental health, and the degree of cruelty involved. The legal issues included the assessment of the aggravating and mitigating factors, the relevance of the offender's mental health to the sentencing, and the appropriate balance between punishment and rehabilitation. The court had to weigh the seriousness of the offence against the offender's personal circumstances, including their mental health and history.

In delivering the sentence, the court noted the gravity of the offence and the necessity to protect the community. It found that the offender's mental health issues, while relevant, did not mitigate the seriousness of the crime. The court emphasised the gratuitous nature of the cruelty exhibited, which was a significant aggravating factor. After considering all the evidence and arguments presented, the court imposed a sentence of imprisonment for a term of three years and nine months, with a non-parole period of two years and six months. The offender was deemed eligible for parole from 30 April 2025.

Orders

Orders of the court

(1) The offender is convicted of the offence.

(2) I impose a sentence of imprisonment of 3 years 9 months to expire on 31 July 2026.

(3) I impose a non-parole period of 2 years 6 months to expire on 30 April 2025.

(4) The earliest date the offender is eligible to be released on parole is 30 April 2025.

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

Full text does not contain this section.

Citations

AGLC Citation

R v Andrews [2024] NSWDC 358

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 19 of 19 shown

Pender v R
[2023] NSWCCA 291 Para 33

…including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge to make an assessment of objective seriousness, there is no requirement that a sent…
Lang v The Queen
[2023] HCA 29 Para 41

…[67]), this does not involve an “absolute standard" and will depend on the relevant field of expertise and the opinion expressed ( Lang v The Queen [2023] HCA 29 at [433] per Jagot J). The requirement that the expert expose his reasoning process enables the Court to adequately assess the strength of the opinion…
R v Eaton
[2023] NSWCCA 125 Para 33

…As has been recognised in a number of recent decisions of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing ju…
Giles-Adams v R; Preca v R
[2023] NSWCCA 122 Para 51

…guished, given the contested facts hearing requiring evidence from the co-offender and victim: Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122.…
DC v R
[2023] NSWCCA 82 Para 36

…As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:…
R v Sharrouf
[2023] NSWCCA 13 Para 33

…of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge to make an assessment of objective seriousness, t…
KM v The King
[2023] NSWCCA 10 Para 33

…in a number of recent decisions of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge to make an assessm…
DH v R
[2022] NSWCCA 200 Para 33

…As has been recognised in a number of recent decisions of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing ju…
Moiler v R
[2021] NSWCCA 73 Para 46

…ent it has its origins in the offender's youth arising from personal hardship or difficult experiences in his formative years. Button J in Moiler v R [2021] NSWCCA 73 at [61] observed as follows: –…
Baden v R
[2020] NSWCCA 23 Para 51

…stice is limited, although not entirely extinguished, given the contested facts hearing requiring evidence from the co-offender and victim: Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122.…
Luque v R
[2017] NSWCCA 226 Para 114

…e significance in his offending. [75] The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in…
Ryan v Regina
[2017] NSWCCA 209 Para 15

…be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).” (Emphasis added).…
Alkanaan v R
[2017] NSWCCA 56 Para 37

…that in “most cases" mental impairment or disability will substantially lessen the offender’s moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (as his Honour then was) (with whom Payne JA and Schmidt J agreed) observed at [108]: –…
Muldrock v The Queen
[2011] HCA 39 Para 37

…Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and De La Rosa have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposition that such purposes of sen…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 21

…The Crown acknowledged that mental health was entitled to be considered consistent with the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.…
Sivell v R
[2009] NSWCCA 286 Para 18

…Procedure) Act 1999 (‘ CSPA' ). The Crown referred to several authorities in this context including McCullough v R [2009] NSWCCA 94 and R v Smith [2009] NSWCCA 286. The Crown referred to relevant features of the detention including the initial acts to incapacitate the victim followed by spraying liquid into the vict…
McCullough v R
[2009] NSWCCA 94 Para 18

…2)(f) of the Crime (Sentencing Procedure) Act 1999 (‘ CSPA' ). The Crown referred to several authorities in this context including McCullough v R [2009] NSWCCA 94 and R v Smith [2009] NSWCCA 286. The Crown referred to relevant features of the detention including the initial acts to incapacitate the victim followed…
R v Smith
[2005] NSWCCA 286 Para 31

…tous cruelty as that term is used in s 21A(2)(f) of the CSPA . It falls into that category of gratuitous cruelty described by Latham J in R v Smith [2005] NSWCCA 286 at [37]: –…
Pty Ltd v Sprowles
636 F Supp 1419 Para 41

…Whilst there is the requirement of an expert to fully expose his reasoning process ( Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [67]), this does not involve an “absolute standard" and will depend on the relevant field of expertise and the opinion expressed ( Lang v The Queen [2023] HCA 29 at [433] per Jago…

Legislation cited in this decision · 2

Crime (Sentencing Procedure) Act 1999 (NSW)
21A(2)(f), 21A(2)(j), 21A(2)(k), 21A(5)(... 8 mentions (from Para 18)
Crimes Act 1900 (ACT)
86(2)(a) 2 mentions (from Para 1)

Medium Neutral Citation:	R v Andrews [2024] NSWDC 358
Hearing dates:	16 August 2024
Date of orders:	16 August 2024
Decision date:	16 August 2024
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender is convicted of the offence. (2) I impose a sentence of imprisonment of 3 years 9 months to expire on 31 July 2026. (3) I impose a non-parole period of 2 years 6 months to expire on 30 April 2025. (4) The earliest date the offender is eligible to be released on parole is 30 April 2025.
Catchwords:	CRIME – sentencing - detain person in company with intent to obtain advantage – prior disputed facts hearing - gratuitous cruelty – mental health – expert opinion
Legislation Cited:	Crime (Sentencing Procedure) Act 1999, ss 21A(2)(f), 21A(2)(j), 21A(2)(k), 21A(5)(AA), 21A(5)(AA), 25F(4), 25F(5), 25(4), Crimes Act 1900, s 86(2)(a)
Cases Cited:	Alkanaan v R [2017] NSWCCA 56 Baden v R [2020] NSWCCA 23 DC v R [2023] NSWCCA 82 DH v R [2022] NSWCCA 200 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Giles-Adams v R; Preca v R [2023] NSWCCA 122 KM v R [2023] NSWCCA 10 Lang v The Queen [2023] HCA 29 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Moiler v R [2021] NSWCCA 73 Medlock v R (2011) 244 CLR 120 Pender v R [2023] NSWCCA 291 R v Eaton [2023] NSWCCA 125 R v Sharrouf [2023] NSWCCA 13 R v Smith [2009] NSWCCA 286
Category:	Sentence
Parties:	Rex Benjamin Andrews
Representation:	Counsel: Mr J Moffett (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Joe Weller & Associates (Offender)
File Number(s):	2022/00225590
Publication restriction:	Non-publication order prohibiting the publication and/or disclosure of any information that may reveal the identity of the victim.