R v Bentley; R v Cockburn; R v Buddle; R v Dawes; R v Pfitzner

[2022] NSWDC 755

District Court

New South Wales

Medium Neutral Citation:

R v Bentley; R v Cockburn; R v Buddle; R v Dawes; R v Pfitzner [2022] NSWDC 755

Hearing dates:

22 April 2022

Date of orders:

22 April 2022

Decision date:

22 April 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Proceedings 2021/69147 – Bentley

(1) Sentenced to a Community Correction Order for a period of 1 year

Proceedings 2020/369508 – Cockburn

(2) Aggregate imprisonment sentence of 2 years with a non-parole period of 1 year

Proceedings 2020/283467 – Buddle

(3) Imprisonment sentence of 1 year and 1 month to be served by way of Intensive Correction Order

Proceedings 2021/24787 – Dawes

(4) Imprisonment sentence of 1 year and 10 months imprisonment to be served by way of Intensive Correction Order

Proceedings 2021/175357 – Pfitzner

(5) Sentenced to a Community Correction Order for a period of 1 year and 6 months

Catchwords:

APPEAL — Appeal from Local Court

CRIME — Aggravated detain with intent to intimidate

CRIME — Attempt detain for advantage

CRIME — Assault

SENTENCING — Aggravating factors — In company

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Community Correction Order — Imprisonment — Intensive Correction Orders

SENTENCING — Relevant factors on sentence — Co-offenders — Parity

SENTENCING — Relevant factors on sentence —Co-offenders — Joint criminal enterprise — Parity— Objective seriousness — Pre-sentence reports

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Background of disadvantage — Young mother — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedures) Act 1999 (NSW)

Cases Cited:

Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; [2014] VSCA 342

Hili v The Queen (2010) 242 CLR 520; [2010] HC 45

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Austin [2021] NSWDC 440

R v Levvell [2021] NSWDC 518

R v Newell [2004] NSWCCA 183

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Sentence

Parties:

Proceedings 2021/69147 – Bentley
Sophie Bentley (the offender)
Director of Public Prosecutions (the Crown)

Proceedings 2020/369508 – Cockburn
Robert Bruce Cockburn (the offender)
Director of Public Prosecutions (the Crown)

Proceedings 2020/283467 – Buddle
Brett James Buddle (the offender)
Director of Public Prosecutions (the Crown)

Proceedings 2021/24787 – Dawes
Rachel Dawes (the offender)
Director of Public Prosecutions (the Crown)

Proceedings 2021/175357 – Pfitzner
Talia Rachelle Pfitzner (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
A Booker (for Bentley & Buddle)
M Powell (for Cockburn)
I Wallach (for Dawes)
Z Khan (for Pfitzner)
C Todd (for the Director of Public Prosecutions)

Solicitors:
McAneny Lawyers (for Bentley)
Justine Hall Pty Ltd (for Cockburn)
Maguire McInerney (for Buddle)
Morrisons Law (for Dawes & Pfitzner)
A Cabrera (for the Director of Public Prosecutions)

File Number(s):

2021/69147; 2020/369508; 2020/283467; 2021/24787; 2021/175357

JUDGMENT – Ex TEMPORE Revised

Introduction

1. Today, I will be sentencing five offenders who all participated to various degrees in a joint criminal enterprise that involved the detention of another young man. He was part of their social group. It was in many ways an anti-social group as they were involved in drug use and other crimes. All of their backgrounds had tragic aspects to them. Their backgrounds did not dispose them to leading law abiding lives in the community.

2. I have sentenced Luke Levvell and Cruz Austin, two of the others involved: R v Levvell [2021] NSWDC 518; R v Austin [2021] NSWDC 440. Robert Cockburn and Rachel Dawes were convicted after trial by jury on 15 February 2022 of a s 86(2)(a) Crimes Act 1900 (NSW) offence. Cockburn was also convicted of two other offences; Attempt to Detain and Assault pursuant to s 86(1) Crimes Act 1900 (NSW) and s 61 Crimes Act 1900 (NSW). A s 86(1) offence has a maximum penalty of 14 years imprisonment. An assault offence has a maximum penalty 2 years imprisonment.

3. The offence for which all of the offenders for sentence have admitted their guilt or have been found guilty by a jury is a s 86(2)(a) Crimes Act offence. It has a maximum penalty of 20 years imprisonment.

4. The maximum penalties, particularly that of 20 years imprisonment, should be a signal to everyone in the community how serious the law regards taking away another person's liberty. The offence involved people with no obvious respect for the law, attempting to take the law into their own hands and that cannot and will not be condoned by the Court.

5. This matter had its genesis, its beginnings, in an incident where the victim of this offence turned against his so-called best friend, Levvell, in a significant way. He stole from him and put at risk the dreams Levvell and his partner, Dawes, hoped to establish themselves independently away from the area and from people associated with crime.

6. Talia Pfitzner and Sophie Bentley entered guilty pleas in the Local Court. That plea has value on a number of levels. They must have reduction of 25% in the otherwise appropriate sentence to reflect the utilitarian value of those guilty pleas.

7. Brett Buddle entered his guilty plea on arraignment after he been committed to this court for trial. It is agreed he should get the benefit of a 10 % reduction for the utilitarian value of that plea.

8. Bentley has an unrelated severity appeal before the Court. While all five are to be sentenced today, each is an individual and each must be considered as individuals, as must their respective roles in this joint criminal enterprise.

9. It is important to note that after the joint criminal enterprise ended, the victim was stabbed by Austin. Some of the offenders for sentence today have expressed their concern for what was done to him, but no offender being sentenced today is being held responsible or being sentenced for that crime; which was Austin's alone.

10. Every sentencing exercise involves a synthesis of competing features. A judge has to attempt to translate the complexity of the human condition for each individual, and the complexity of units of behaviour and reduce it to the mathematics or units of punishment, usually expressed in time: Weininger v The Queen (2003) 212 CLR 629 at [18] to [24]; [2003] HCA 14.

11. That can involve time in custody or time subject to either an Intensive Correction or a Community Correction Order in the community. Ultimately, my job is to identify all the factors that are relevant to the sentence, discuss their significance, and then, make a value judgment as to what the appropriate sentence is, given all the factors relevant to the offending behaviour and the offender: Muldrock v The Queen 244 CLR 120; Markarian v The Queen (2005) 228 CLR 357; Hili v The Queen (2010) 242 CLR 520.

12. It is late in the day. Everyone wants to resolve this matter today. I intend to do so. I can proceed to judgment thanks to the provision (albeit late) of a large quantity of written material and the succinctness of the submissions made. I will try and be as discreet as possible because matters very personal to each of the offenders will be revealed. I have to, however, comply with my obligations as a sentencing judge.

13. There are, in each matter, agreed facts for sentence. Each pick up various aspects of the offence. The defendants in the trial matters, Cockburn and Dawes, have agreed to facts for sentence that are not in dispute. What follows is but a short summary of the material put before me.

Facts for sentence

14. In May 2020, Dawes and her partner, Levvell, were living with the victim. He stole; their car, some of Levvell's cannabis and $4,500. With police help, the car was returned. Later the victim was lured to an address in Barrack Heights. There, he was detained for about an hour and a half. During that detention, a baseball bat was produced by a person who has never been identified and is not before the Court. The victim was, however, allowed to use his phone. Texts were sent indicating he was being held against his will and did not want to be there.

15. Bentley was present in the house at that time. The victim was kept there until Levvell arrived. Levvell then took him to a car occupied by a number of other men, one of whom was Buddle. They drove to West Wollongong. That car was met by Dawes, her father, Cockburn, who lived in a unit nearby, and two others, Pfitzner and Austin. There, the victim was told, or asked, to remove the clothes he was wearing as they had been bought with the stolen money.

16. Buddle, Austin, Levvell, Pfitzner and Dawes then escorted the victim a short distance, having said that they were going to nearby vacant land where there were some tunnels. At the trial, there was evidence that there are storm water tunnels in the vicinity.

17. The intention, as set out in the indictment, and the charges to which guilty pleas were entered, was to intimidate the victim. Obviously, to teach him a lesson for the crimes he had committed against Levvell, and the loss of trust evident in those crimes.

18. Naked, the victim decided to run. Cockburn and Austin chased him. He was chased into the foyer of one of the unit blocks. Levvell followed more slowly as his foot was injured and he was wearing a moon boot. Cockburn caught up with the victim at the top of the stairs and they tumbled down them. Cockburn then left the victim at the bottom of the stairs. It was then that he was stabbed by Austin.

The offenders’ roles

19. Dawes and Cockburn, as was their right, said they were not guilty and elected for trial by jury. They are not to be punished in any way for exercising that right. But they must be sentenced according to the jury’s verdict. Here, helpfully agreed facts acknowledge that circumstance. Dawes' record of interview played at trial was obviously not accepted by the jury. Cockburn's case at trial, and today, is that these events simply did not happen. I cannot proceed on the basis of either the defences raised. The jury, by their verdicts, obviously rejected the case put by Dawes and Cockburn. Cockburn was waiting at West Wollongong, that was not a coincidence.

20. Dawes was part of the group that confronted the complainant as he left the car. She was aware of Levvell's intentions to confront the victim, as she knew he had gone to where he was being held with Bentley at Barrack Heights. She sent an untrue text message to a relative of the victims saying Levvell was with her. She was obviously aware of what was intended so far as bringing him back to West Wollongong, and the proposed intimidation at the tunnels. But she played no active physical role.

21. So far as Dawes, Buddle and Pfitzner are concerned, their role in the detention stopped the moment that the victim ran.

22. So far as Cockburn was concerned, his role in that offence ended before the stabbing, but he had committed the two other offences that bring him before the Court. He was there to somehow support his daughter, and was present during the detention, and then he chose, I accept, spontaneously, without thought, to chase the victim, caught him and wrestled him in the stairs.

23. Bentley's role ended when the victim was taken from the house she was in, early on in the episode, well before the incident in West Wollongong.

24. Bentley's facts were agreed. The victim came to her home to meet up with Levvell and sort out the grievance brought about by his actions. But he was made to stay by the man with the bat. Bentley, by her presence, contributed to that detention and loss of liberty. That loss of liberty was reflected in the text message the victim sent to a family member, "I'm being held hostage for like [Luke] fuck help". It is agreed, however, that Bentley played no physical or verbal role in the detention.

25. Pfitzner's facts for sentence were agreed. In brief summary, is accepted she walked with Austin and Dawes to West Wollongong to where the victim was being driven from where they were staying in Mangerton. She was then present as part of the group when the victim was both naked and being taken to the tunnels for the brief period before he ran.

26. Buddle's facts for sentence were agreed. Buddle, was present in the car, but his role in the detention started from when the car arrived in West Wollongong and continued until the victim ran away.

27. While he was in the car when the victim was picked up from Barrack Heights, it is not agreed that he was not then part of any detention or joint criminal enterprise. But from the point where the car stopped at West Wollongong, the victim was stripped and was being taken towards the tunnels, he had joined and was part of that joint criminal enterprise. There is some evidence he was involved in later communications, but they are not part of the matters for sentence.

28. Austin was charged with wounding with intent to cause grievous bodily harm. He received a lengthy sentence. The detention matter was taken into account on the Form 1.

29. Levvell received an aggregate sentence of 3 years. I noted an indicative sentence for the aggravated detain of 2 years and 9 months and an indicative sentence for his separate assault of the victim of 4 months. But time in custody was taken into account, allowing the sentence to be served by subject to an Intensive Correction Order. He presented a powerful case for personal rehabilitation, justifying what, when one looked at the objective facts, was a relatively lenient sentence. His role was by far the most serious, so far as the detention was concerned.

Assessment of objective circumstances

30. When assessing an offence involving an offence pursuant to s 86, judges are taken to the helpful summary set out by the Court of Criminal Appeal in R v Newell [2004] NSWCCA 183 at [32]. One has to look at:

1. The period of detention;

2. The nature of any advantage sought;

3. The circumstance of the detention;

1. including motive;

2. any real threat of violence;

3. whether there is or is not a weapon;

4. any anguish, discomfort, violence, or harm inflicted;

5. the number of offenders and the force of the numbers being deployed against the victim.

4. So far as various co-offenders are concerned the basis for liability is their participation in the joint criminal enterprise. Often there can be difficulty in drawing a distinction between them, but that distinction can be made if they play different roles. For example; one person inflicts violence and others do not, or some may be more involved in planning or preparation.

5. It was noted in other authorities that there may be less need for personal deterrence where an act of retaliation, such as this, is unlikely to be repeated.

31. In each matter, I have to be careful not to double count matters in aggravation. For example, punishment and humiliation are implicit in most detention offences, and it has been said that it is an error to take quasi vigilantism into account as an additional aggravating factor.

32. Each offender played a part in a detention that took some time. Bentley was present when the bat was produced; but none of the others were aware of any weapon. All sought, as acquaintances of both the victim and Levvell, to play a part in Levvell's settlement of his grievance. While each is liable for their involvement in the joint criminal enterprise, I can distinguish their roles.

33. The event can be put into four stages.

Stage 1

34. Stage one took an hour and a half, at the home in Barrack Heights. The victim suffered no apparent anguish but some anxiety, primarily related to the wrong the victim knew he had done. Bentley's presence added very little at that stage.

Stage 2

35. Stage two involves the journey from Barrack Heights to West Wollongong, but it is not suggested Buddle's role in the joint criminal enterprise was then operative.

Stage 3

36. This is the main focus of these proceedings, with the exception of Bentley. Levvell was the main actor, but each of those present would have contributed by their presence to the anguish, fear and humiliation of a young man who was stripped naked and then led towards somewhere remote, where he was not sure exactly what might happen to him, prompting his escape.

Stage 4

37. Of the current offenders only, Cockburn is liable for what happened after that. That chase and assault added to the fear and anxiety and humiliation of the victim. There was limited physical harm, but it can be assumed that there was some psychological harm but that would have been for a very brief period because it would have been totally subsumed by the violence that Austin then inflicted. And Cockburn was not involved in that. He is not to be punished for what Austin did.

38. Pfitzner was there for a very short period. It is not suggested she was responsible for the victim being naked, though her presence contributed, to some degree, in the intimidation. I accept that she simply tagged along and played no active role but rather lent an extra number.

39. Buddle joined the joint criminal enterprise knowing that something had occurred at Barrack Heights and knowing that Levvell and the victim were discussing their grievance in the back seat of the car. He contributed by his presence to the tension in West Wollongong. And with great respect, he is bigger and part of the male group that added to the intimidation and the humiliation of the victim.

40. Bentley’s was a slight presence that carried no real threat.

41. There are a wide range of take and detain offences. Here care must be taken to distinguish this offence from many other s86(2)(a) offences that come before the court, given that, so far as most offenders were concerned, the period of detention was either relatively benign (Bentley), or for a very short period of time, in the street of West Wollongong.

No victim impact statement

42. There is no victim impact statement, but its absence does not mitigate does not give rise to an inference that the offence had little or no impact on a victim: s 30E(5) Crimes (Sentencing Procedure) Act 1999 (NSW).

Parity

43. Each sentence must be determined having regard to the circumstances of each of the co-offenders and any differences in their respective degrees of culpability. Like can be compared with like. Where there are differences in levels of culpability, or different personal criminal histories, that can justify a real difference in the sentence, or the type of sentence imposed. This principle is known as parity, it is a classic example of the need, so far as possible, to ensure equal justice. In like cases, that principle can also encompass the structure of a sentence or how the sentence is to be served.

44. While these matters are treated seriously and the maximum penalty is important, parity principles demand that, given the sentence imposed on Levvell and the similar histories of the younger offenders, where possible, Intensive Correction Orders be considered.

Dawes

45. Dawes has until today, no criminal history. Her personal history is set out in the Sentence Assessment Report and in the report of Ms North, psychologist. She did not give evidence.

46. She was born in 2001. She resides locally with Levvell in rental accommodation. They have a young child. She has positive relationships with her partner, her mother and siblings. It would appear, from the evidence at trial that I am prepared to accept, there was quite a bit of distress and trauma in her life at the time of the commission of this offence.

47. Despite submissions to the contrary, I do not find that she is remorseful for her offending behaviour. She says she expresses regret but given her denials, I can only read that as; not remorse for her role in any of the activity, but regret that the victim was seriously injured by Austin.

48. I have a helpful report from the Binji and Boori centre relating to her antenatal care of her child. There are no concerns about her ability to meet her daughter's needs. She is determined that her daughter should have advantages that she did not have as a child.

45. In her report, Ms North, sets out Dawes's childhood history. It was characterised by exposure to trauma and summarised as being “socially impoverished”. She was removed from her mother's care by the Department of Community Services. Her father has had his own problems, to which I will shortly allude. She had damaging relationships, although she and Levvell, appear to be maturing together.

46. She took up the use of illicit drugs and alcohol at a very early age. She has disclosed traumatic sexual events when she was very young, and the impact of that trauma has led to self-harming behaviour. She has been diagnosed as having a Borderline Personality Disorder. She will require considerable intervention and help to deal with her own demons.

47. Ms North proposes a detailed plan by which she should receive psychological treatment. The Sentence Assessment Report (SAR) picks up on this. It concludes that a supervision plan can be put in place.

48. The SAR notes she is at low risk of reoffending, but it recommends an order that she engage with a general practitioner in a Mental Health Care Plan and engage with a psychologist to address her mental health. Her childcare commitments make her unable to engage in community service.

49. It is submitted on her behalf by Mr Wallach, who appeared at the trial and at sentence, that when proper regard is had to her role in this episode that, the s 5 Crimes (Sentencing Procedures) Act 1999 threshold has not been crossed, and that all the purposes of sentencing could be met by a Community Correction Order. There is a Crown submission to the contrary.

50. Mr Wallach draws appropriate attention to the strong subjective case for, despite her background, this is the only matter that has ever brought her before a Court. Further, she has demonstrated considerable progress to rehabilitation and turning her life around since her arrest for this matter. Mr Wallach notes, as Ms North does, that there is no causal relationship between her psychiatric condition and her role, although it may have had some impact on her decision-making capacity.

51. Mr Todd, Crown Prosecutor, who appeared at trial and on sentence, submitted that a proper appreciation of the facts made her more than an observer of these events, but someone actively involved in the agreement, the joint criminal enterprise, and in the events of the actual detention in West Wollongong. He noted the detention was terminated, not by any action of the offenders, but by the victim running away.

52. The Crown accept that a history of childhood deprivation does mean that the moral culpability of this offender would be significantly less than a person who did not have that background. The Crown accepts that a sentencing Court should always take into account the consequences of gaoling the mother of a young child.

53. Care must be taken in matters where custodial sentences are in contemplation, particularly for parents of young children, as they pose complex issues that do not have simple solutions. Women are still overwhelmingly the sole primary carers for children, removal of women from their children can result in fracturing of the family unit. Each each of the matters for sentence today is evidence of how a fractured family can impact negatively on a child. Matters I can, and should, take into account.

Cockburn

58. Cockburn did not give evidence. He is Dawes' father. He is now 43 years old. He has had regular contact with the courts, but these are the most serious matters that he has had to be sentenced for. His Sentence Assessment Report indicates, as does the other material, that he really does not understand why he is here. He has trouble comprehending his role, despite the wealth of evidence to the contrary.

59. He has been subject to Community Corrections supervision in the past, and he did not respond in any satisfactory manner. He has received warnings and he has not adhered to those warnings. I remarked at the beginning of the day that he had appeared before me in breach matters, and I too had given him warnings, and he appeared to have ignored them.

60. He had his reasons and his excuses, he always does, but the bottom line is that promises made to courts have to be obeyed and promises to parole officers have to be obeyed. If they are not, the people who are meant to provide services and assistance to him lose trust. That loss of trust in his capacity to engage with Community Corrections is evident in the material before me in the SAR.

61. Cockburn will need to engage in a Mental Health Care Plan. He will need to engage in the Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) courses, both in the community and while in custody. He will need to cooperate with Community Corrections and the orders of the courts, or he will spend even more time in gaol.

62. Dr Siddu, who prepared a report on his behalf, notes his family history. He had a disadvantaged upbringing. He grew up in what he describes as a close-knit community, but he was exposed to domestic violence. He has never really been able to find work in the community. He has never been able to settle, and the COVID pandemic has made that so much harder.

63. He has suffered from skin cancer. He has a number of problems, and, predominantly, he has dealt with those problems by the abuse of the drug cannabis. This in turn may have impacted on his capacity to understand the rights and wrongs of what he was doing.

64. He has attempted the Watershed drug rehabilitation program but could not complete it. It would appear in more recent years he has also taken up the use and abuse of methylamphetamine in an attempt to self-manage his many stressors. He acknowledged to Dr Siddu that the effects of ice on his brain scares him.

65. I cannot accept his protestation of innocence to Dr Siddu, of course. Cockburn said he would like to return to the work force. He is open to receiving professional support to manage his cannabis use, but sadly, past behaviour is a good indication of future behaviour.

66. Dr Siddu concludes that Cockburn needs to find work, he needs structure in his life. He will need assistance with housing. He requires focused intervention. If given a custodial sentence, he would benefit from referral to the Real Understanding of Self-Help (RUSH) program. He may also be assisted, in my experience, by the High Intensity Programs Unit (HIPU). I will have a copy of Dr Siddu's report accompany the warrant.

67. Mr Powell, his counsel at trial and today, accepted that given his regular breaches of Apprehended Domestic Violence Orders, court orders and Conditional Release Orders, there is little option but a custodial sentence today, but asked that I structure the sentence in a way to extend him as much leniency as possible, noting that he appears to have gone on with this initial abduction in a spontaneous fashion.

68. He also drew my attention to the fact that if he goes to gaol, which he must, that he would do so in the middle of the COVID pandemic, and go through the quarantine regime, be isolated, be subject to a regime where, while programs and visits might be introduced in the near future, there are still considerable restrictions on access to programs and visits for anyone in custody.

69. There are, from evidence I have heard in many cases, continual lockdowns which continue to this day and restrict further the liberty of anyone serving a custodial sentence that requires consideration when considering the length of the sentence and any finding of special circumstances.

70. Mr Crown's submissions were in writing. I have sought to do justice to them in these brief remarks, but the bottom line, so far as the Crown concerned, is that the purposes of sentencing require a full-time custodial sentence and that is the only appropriate option; a submission with which I agree.

Buddle

71. Buddle is no longer a young man, but he is not old either, he was born in 1991. He has only one conviction on his criminal record. I cannot ignore it as it involved domestic violence in a previous relationship, which is referred to in the reports. He has however proved that he can live crime free.

72. He is a Yuin man on his mother's side. He is one of seven. He was abandoned by his mother and raised by his grandmother. His grandmother reports that he was born suffering drug withdrawal symptoms. His father has been in and out of gaol, and during his childhood, Buddle witnessed many negative behaviours. He spent a period of time with his mother, but she had significant problems with alcohol and was not capable of providing proper assistance, exposing him to verbal abuse, unfair discipline, and alcohol.

73. For a period when he was not with his grandmother, he in his own words, “went rogue”. He attempted school without much success and has little work experience to date. He says at the time he was living a “crazy life” in Mangerton. This is consistent with his history of childhood deprivation, early uptake of drugs and alcohol.

74. He has seen the Aboriginal Medical Service. He has seen a psychologist.

75. He has a daughter. He has access to her on a regular basis. He has a home, and he wants to get more settled. He wants to put this behaviour behind him.

76. He provided an affidavit. He was not required for cross examination. In that affidavit, he shows considerable insight into his own background and circumstances. He has promised himself, his grandmother, and others that he will put this offending behind him.

77. I have the benefit a report from Mr Jones's, a psychologist. He indicates that given his history, Buddle has a Generalised Anxiety Disorder, a Cannabis Use Disorder and a Substance Use Disorder. He recommends counselling, and psychotherapy to adjust his impulsiveness and help him conform with social norms. In other words, Buddle still has to learn how to lead a normal life in the community. His background did not equip him for that.

78. The Sentence Assessment Report and the material from the Aboriginal Medical Service indicate that he is doing everything he can to put his life back on track. So much so, that he is assessed as only a medium risk of reoffending. Community Corrections believe that supervision alone would be sufficient. He is able to perform community service. He should put something back to the community by working for the community. That may help him learn how to discipline himself so he can get a full-time job.

79. The written and oral submissions by his counsel Mr Booker and Ms Cabrera for the Director of Public Prosecutions (DPP) are almost as one, apart from disposition.

80. Mr Booker says that taking into account Buddle’s extraordinary progress towards rehabilitation, his limited role in the offence and his background, that a sentence can be served subject to a Community Correction Order. That disposition would meet all the purposes of sentencing, including the interests of both the community and the offender.

81. Ms Cabrera says no, given his role, despite his background, the threshold has been crossed and there must be a custodial sentence, conceding that issues of community safety would not arise and that overall, a sentence served by intensive correction in the community would best meet the purposes of sentencing.

Pfitzner

82. Pfitzner appeared a number of times before the Children's Court. There is a conviction in the Local Court, where she received a fine.

83. She provided an affidavit setting out her personal history. She was not required for cross examination. She was born in 2000. She has a young child and another on the way. She is presently doing her HSC via correspondence.

84. She was, at the relevant time, in a relationship with Austin. There is material extracted in the report of Ms Carney at Tab 2 from ACE aftercare, part of the Uniting Church, which indicates that there are records going back prior to the commission of this offence, that refer to her being a victim of domestic violence and other violence, including from the offender, Austin.

85. She was practical and open in her affidavit. She indicates that there has been little stability in her life. Her mother would come and go. She is currently in gaol charged with murdering one of Pfitzner's siblings.

86. Pfitzner has been in the care of Family Services. She has been homeless. She has been living in refuges. She tried to get as much schooling as she could, but the practicalities of growing up and living in a refuge and getting to her school of choice proved too much.

87. She is now determined to get as much education as she can. She tells me that drug use became normalised from when she was far too young to make rational choices. And she says that most of her associates were young people with anti-social attitudes.

88. She fell in with Austin and also, with the victim of this matter. Austin, as anyone reading my remarks in his matter would appreciate, had his own problems. He was not well equipped to treat anyone with respect, let alone his partner. I have no trouble accepting her assertions that her will was often overborne by him.

89. What is set out in her affidavit, Ms Carney's report, and the helpful report prepared by Ms North provides more than sufficient evidence of a socially impoverished background with exposure to abuse and trauma. That background can help explain the onset of anti-social attitudes as reflected in the commission of this offence.

90. Ms North says that she was candid. I accept that, and that is evident from the affidavit and the material provided by Ms Carney. Pfitzner requires psychological intervention. She would benefit from continuing with ACE aftercare.

91. Pfitzner’s Sentence Assessment Report is positive. It notes she has insight into the impact of her offending. She has expressed appropriate remorse. She is willing to undertake interventions. A supervision plan can be put in place. Community service work is available to her, but one would suspect childcare would make that very difficult. She could be placed on conditions that include referral to a psychologist and interventions to ensure that she continues with the very good work that she has done to date.

92. Again, the difference between submissions made by Mr Khan, solicitor, on her behalf and those of Ms Cabrera, for the DPP, are different only in the nature of the disposition, whether it be a Community Correction Order or whether the s 5 threshold has been crossed.

93. Ms Cabrera put appropriate emphasis on the seriousness of the offending, the maximum penalty, and the need for general deterrence. Mr Khan submits an individualised sentence could best be met by not crossing the threshold and a Community Correction Order, referring me to Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; [2014] VSCA 342 and the second reading speech of the Attorney General when the changes to the sentencing regime were introduced a couple of years ago.

Bentley

94. Bentley comes before the Court with a very poor record for one so young. Her first adult offences, committed after this offence are the subject of a severity appeal. She has offences for violence and dishonesty. She was on Intensive Correction Order (ICO) at the time of the commission of this offence. She breached that ICO. She has spent some time bail revoked due to other offending.

95. She is born in 2001. Understandably she has behavioural problems, given her history. She was sexual assaulted when a child. Her schooling was disrupted. She has been to juvenile detention and refuges.

96. She was in the care of Family Community Services when a teenager. This is not surprising given her mother had long-term problems with drugs and died of a drug overdose when both were quite young. Her father has been in and out of gaol for most, if not all, of her life.

97. Her peers have had, in general, anti-social attitudes. She took up the use of drugs and alcohol when far too young and it would appear as a maladaptive coping mechanism. She appears to show some insight but, at the same time, tends to fall back into her old ways, after making some short initial progress. She too took up drug use before she was too old to even understand the consequences.

98. Her Sentence Assessment Report indicates she has been receiving assistance from the Illawarra Drug and Alcohol Service (IDAS) and the Aboriginal Medical Service. She has engaged with them both, and it would appear that she has committed to engage with them in both substance abuse and mental health interventions. But she needs to have some stability in her life. I am told that she has an uncle who can provide some accommodation for her if she is released today. She is assessed as being a high risk of reoffending and will require supervision.

99. Her history of anti-social behaviour and negative peers is reflected by that background. She has some modest understanding of empathy, but really, she has to start being concerned about herself.

100. She has experienced depression and anxiety, which again, is a product of her upbringing. While she is willing to undertake community service, she really does need to focus on getting herself sorted out. She is at a high risk of reoffending unless she does so.

101. There is a supervision plan including referrals to, the Watershed Day program, a counsellor or a psychologist. She will need help to engage in strategies, that is she will need to learn to how to lead a normal community life in the community.

102. Mr Booker, who also appears for her, submits that when one takes that background and the highly determinantal, and here, profound impact of what occurred to her as a child, it is not just relevant in mitigation, it really does, given her youth, require that her development be assisted and not marred.

103. She still has a lot of growing up to do. She is very immature, and it is hoped that as she matured, as is demonstrated by some of the others here, that her impulse control will be developed, her maturity will develop. Her deprived upbringing, her underlying psychiatric conditions mean, that she cannot be punished for what others made of her. She needs help and not gaol. She needs structured support.

104. This is not a matter, having considered the submissions and given her role, where the s 5 threshold has been crossed. A Community Correction Order can meet all the purposes of sentencing.

Appeal matters

105. I will deal briefly with the appeal. The appeal relates to a number of offences dealt with in the Local Court. There were custodial sentences, all of which were relatively brief. She had reached a stage in her life where she was effectively out of control and offending against the community. The brakes needed to be put on. I am sure the magistrate was not at all confident that any other option than custody was available. But the Magistrate did not have all the material I now have.

106. I now have other options. It is accepted by both Ms Cabrera and Mr Booker, that an Intensive Correction Order for the balance of the sentence, would best meet the purposes of sentencing and the paramount consideration of community safety. I agree with that submission. Clearly, given her Children’s Court record, and where she was at the time and the number of offences, custodial sentences were required but they can be moderated by an Intensive Correction Order.

Intensive correction orders

107. The principled approach requires that the term of the sentence be determined first. In each case, that allows for this option. A court has to consider issues of community safety and then synthesise all relevant matters. There is no suggestion here that community safety could not be met by an ICO, with the exception of Cockburn, sadly.

108. In fact, it is accepted that Intensive Correction Orders, can encourage the rehabilitation of offenders by providing them with more structure in their lives and support. Here, it is the best way of dealing with the young offenders presently before me, as each, with assistance, may be able to avoid offending again.

Synthesis

109. Synthesising all these matters. When people take the law into their own hands, it never ends well. One of the historical functions of our law has been to discourage anyone who is the victim of crime and their friends from resorting to self-help. As this case makes abundantly clear, the consequences of the escalation and violence between members of the community can often have tragic results. While no one here is being sentenced for this matter, the victim nearly died as a consequence of what all the offenders were doing that night.

110. You are not to blame for that, but he could have been more seriously hurt. If the victim had gone to the tunnels who knows what would have happened. He was not to know what would have happened, or what physical harm or psychological damage he would have suffered.

111. You have all, at various times, lived outside the law. The Nobel Laureate, Bob Dylan, once said to live outside the law, you have to be honest. And you were not honest. You were committing offences which require you to be punished.

112. The courts have an obligation to take into account the case put for each of you and give weight to all the matters in mitigation that were put before me. The courts also have an obligation to vindicate the dignity of the victim of your crime in respect to the harm you each did to him. Courts also have to express the community’s disapproval of the offending and exact appropriate retribution.

113. A proper sentence marks the court’s view not only of the seriousness of the crime, taking guidance from the maximum penalty, but also lets others know that if they do the same thing, they will suffer retribution and punishment.

114. The protection of our community is contributed to by the successful rehabilitation of offenders and this aspect of sentencing should not be lost sight of. Common humanity dictates that people, such as yourselves, because of their backgrounds, who have fewer emotional resources to guide their behavioural decisions, do not bear the same moral responsibility of those who had all the advantages that many in our community enjoy.

115. Buddle expressed it best. At various times, you have all lived in hell and you all, to some degree, even you Mr Cockburn, have demonstrated a capacity to make progress, some more than others.

116. The Court orders that I intend to make should not impede that progress. With the exception of Cockburn and Bentley, you have all kept to your bail.

117. Ms Pfitzner, you tagged along. You had no active role, but you lent an extra number. You are making progress, and the significance in your case is the impact of domestic violence and that of Austin on your life, these factors must be taken into account. That the power he exercised involved control and dominance. Judges take into account the impact of domestic violence on victims. They do so where someone who has committed offences is also the subject of domestic violence.

118. Ms Dawes, you suffered a grievance along with Levvell. You have not accepted responsibility for your actions. You were part of the agreement from the start. It was evolving but you were part of it. You played your role in the agreement at the end, but your role in the actual offence was relatively minor. But you enabled it by your actions. You get no benefit for a plea of guilty. A custodial sentence is warranted. However, your background, your progress, the fact that you are a mother, and need to be there for your daughter, the need for you and everyone in the community to avoid repetition of generational problems, mean that that sentence can be served in the community.

119. Mr Cockburn, there are three offences for sentence. You have shown no insight. But you are not to be punished for going to trial. You have joined the enterprise. I am not sure that you did know exactly what was going on, but you were part of the group that were to lead the victim to the tunnels. You then, for reasons that are inexplicable, went on with it spontaneously. I do not think you thought. He ran, you ran, and you tackled him. There must be some accumulation between the two incidents. But the attempt and the assault were part of the same incident and can be dealt with by concurrent sentences.

120. You are much older than the others and you should have been setting an example, not joining them in the commission of an offence. General deterrence is important, so too is specific deterrence. You must understand that compliance with the authorities is in your interest. That includes drug rehabilitation and engagement in programs.

121. You will have time to reflect. I will moderate the sentence by a significant finding of special circumstances, allowing your early release to the community. But the minimum time you spend in custody is the absolute minimum the purposes of sentencing demand.

122. Ms Bentley, you were in the wrong place at the wrong time, but you did not leave. You played a role. You have spent time in custody for this matter concurrent with the other matters that have brought you before the Court. You know what gaol is like. You know what will happen if you breach the terms of my order or if you commit further offences.

123. I do not believe it will be easy for you. You have got a lot of growing up to do and you have got a lot of problems that need to be taken one step at a time. There may be steps backwards.

124. The only advice I can give you, and I am an old man who has been doing this job a long time, is that you keep in touch with your Community Corrections officer. Hopefully, you can trust them enough to call them if you are tempted to commit other offences or if things are going bad. If you run away from your responsibilities, as you have done in the past, while it may be understandable, the courts will have little choice, if you commit further offences, but to return you to gaol. I do not underestimate how hard that will be.

125. Mr Buddle, your sentence will be reduced by 10% for your late plea. It would have been much less had you pleaded guilty and accepted responsibility earlier. I have given serious consideration to what was put on your behalf. But you were present in the car, you knew something was going down, you joined in, and your presence lent help to the detention of the victim, and you had an intention to intimate him.

126. In my view, notwithstanding all the material that was put on your behalf, there must be a custodial sentence. It can be, and will be, reduced because of your background and it can be served in the community. There will be a condition that you complete 50 hours of community service work. That is only short, but it will at least get you in touch with the workforce. And you must submit to supervision by Community Corrections. If you breach that order, you will be dealt with by the State Parole Authority.

127. The same applies to you, Ms Dawes. There will be a longer Intensive Correction Order, 1 year and 10 months. It is a condition that you do not commit any offence. A condition that you submit to supervision. You will have to engage in the rehabilitation program set out in the Sentence Assessment Report, to engage with the general practitioner and receive and comply with a Mental Health Plan. That means Medicare will pay for you to see a psychologist. But you have to complete that program. If you do not, or if you commit further offences, if you breach your order, you could be sent to gaol.

Orders

128. I will now move to the formal sentences.

Bentley

129. Ms Bentley, there will be a Community Correction Order for 1 year from today’s date. The standard conditions apply and the conditions in the Sentence Assessment Report. You must engage in the supervision plan as directed.

130. Moving now to your appeal is concerned, for the reasons I outlined in the judgment, I set aside the orders of the Court below.

131. I will order that the aggregate sentence be served by way of intensive correction in the community. Because you have spent almost 5 months in custody, that Intensive Correction Order, can only be for 3 months. In each matter, I indicate the sentence of 1 month. That period is truncated because I have to take account time served. The 3 months will at least enable you to comply with the additional condition, other than being of good behaviour, to participate in any program, treatment or intervention specified by a Community Corrections officer. They can decide which one, but at least that gets you started.

132. The effect of my order, Ms Bentley, is that you will be released this afternoon. You will have to report to Wollongong Community Corrections within 7 days, that is first thing Tuesday morning, by way of telephone to enable those orders to take effect.

Buddle

133. Mr Buddle, had it not been for your plea of guilty, a sentence of 1 year and 3 months would have been imposed. There will be a sentence of 1 year and 1 month. That sentence is to be served subject to intensive correction in the community. You are to report. There is a condition you do not commit any offence. You must submit to supervision. There will be a community service work condition requiring 50 hours of community service. There is a second condition that you continue to engage with the Aboriginal Medical Service. If you breach those conditions, you could end up in gaol.

Pfitzner

134. Ms Pfitzner, in your matter, there will be a Community Correction Order for a period of 1 year and 6 months. It is a condition of that order that you be of good behaviour, obviously, and you report to Community Corrections within 7 days, that you obey the directions for that service, and that you engage in a supervision plan as directed. That can include a referral to a psychologist and other programs and continuation with the ACE aftercare program. If you breach, by committing a further offence, you could be brought before a court and sentenced for this offence and whatever you come before the court for.

Dawes

135. Ms Dawes, there will be a sentence of imprisonment in this matter of 1 year and 10 months imprisonment. It will commence today. That sentence will be served subject to intensive correction in the community.

136. You must commit no offences. You must submit to supervision by Community Corrections and report within 7 days to the Wollongong office by telephone. You will have to engage in the rehabilitation treatment condition recommended and I will repeat it now; to engage with your general practitioner, to receive a Mental Health Care Plan and to engage with a psychologist to address your mental health. I think that would be one and the same. If you breach that condition or any other condition, you could spend the balance of your term in custody.

Cockburn

137. Mr Cockburn, there will be an aggregate sentence in this matter. I have to indicate sentences for each of the offences. So far as the first matter, taken today, there will be a sentence of 1 year and 6 months. So far as the Attempt to Take and Detain, there will be a sentence of 1 year. So far as the Assault is concerned, a sentence of 6 months. There will be an aggregate sentence for this matter of 2 years’ imprisonment. It will be taken into account you spent 28 days in custody when you breached various matters. So, the sentence will commence on 25 March 2022.

138. There will be a non-parole period of 1 year reflecting a finding of special circumstances. You will be eligible for parole on 24 March 2023. The balance of the sentence of 1 year will expire on 24 March 2024. You will be released to parole on 24 March 2023. Your sentence will expire on 24 March 2024. If you breach your parole, you could be sent back to serve the balance of your sentence.

139. Cockburn must be taken into custody. The others will have to sign the Orders before you go, or in Bentley’s case, are released. Its late but we’ll prepare them as soon as we can. Your solicitors will explain them to you.

140. I do not want to see you again. So far as counsel are concerned, I’m more than happy to have you back in my Court. I thank you all for your assistance. The Court will adjourn.

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Decision last updated: 14 September 2023