R v Brown; R v Leuthwaite - [2020] NSWDC 16

District Court

New South Wales

Medium Neutral Citation: R v Brown; R v Leuthwaite [2020] NSWDC 16
Hearing dates: 5 February 2020
Date of orders: 13 February 2020
Decision date: 13 February 2020
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
See paragraphs [147] to [156]

Catchwords: CRIME — Violent offences — Detain for advantage — Circumstances of aggravation
CRIME — Complicity — Joint criminal enterprise
SENTENCING — Objective Seriousness — Aggravating factors — Gratuitous cruelty — Planning — Victim vulnerability — Grave risk of death to another person or persons
SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Bullock v R [2016] NSWCCA 131
DPP v De La Rosa (2010) 79 NSWLR 1
Lawson v R [2018] NSWCCA 215
Category: Sentence
Parties: Director of Public Prosecutions (DPP)
Matthew James Leuthwaite
Brooke Levina Jane Brown
Representation:
Counsel:
D Robinson (DPP)
R Khalilizadeh (Leuthwaite)
B Robinson (Brown)
Solicitors:
G Ellis (DPP)
N Karim (Leuthwaite)
K Zoutendijk (Brown)

File Number(s): 2018/002935502018/00294973
Publication restriction: Statutory non-publication order concerning identities of juvenile offenders

SENTENCE

HIS HONOUR: The two offenders, Brooke Brown and Matthew Leuthwaite, pleaded guilty in the Local Court, and adhered to those pleas before me, to an offence that between 22 September 2018 and 23 September 2018 at Campbelltown they did, without consent detain Kayla Kendrigan with the intention of obtaining an advantage, being to intimidate Ms Kendrigan, occasioning actually bodily harm to her during the period of detention while the offenders were in the company of each other, and the co-offenders, EB and LF. EB and LF are juvenile offenders and are to be sentenced on a later date. I note that the Court Attendance Notice in tab 1 of the Crown bundle that is before me particularises the advantage as; to assault and rob Kayla Kendrigan. I have approached this sentence on the basis that the advantage is as contained in the charge certificate contained within the Crown bundle.
The offence is an offence under s 86(3) of the Crimes Act and has a maximum penalty of 25 years imprisonment. There is no applicable standard non-parole period.
The offenders also acknowledge their guilt in relation to an offence of robbery in company in relation to Ms Kendrigan. The item of property stolen from her during the robbery was her mobile phone. That offence is on a Form 1 in relation to each offender and they ask that I take that offence into account when I sentence them on the primary offence.
The particular factual circumstances here mean, in my view, the presence of the offence on the Form 1 has no significant impact upon the sentences that I am to impose upon the two offenders.

The facts

While the facts are agreed, both offenders gave evidence during the sentencing hearing which touched on the role each played during the course of the incident which gave rise to…

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.

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Details

Case: [2020] NSWDC 16
Decision Date: 13 February 2020

CaseChat Overview and Summary

In the Supreme Court of Victoria, the defendants, Brown and Leuthwaite, were tried for their involvement in a violent crime which included the detention of a victim for personal advantage under circumstances of aggravation. The nature of their offence involved acts of gratuitous cruelty and planning, which posed a grave risk of death to the victim and others. The case also examined the principles of complicity in a joint criminal enterprise. The legal issues before the court encompassed the objective seriousness of the crime, the identification and weight of aggravating factors, and the subjective considerations pertinent to sentencing, including the offenders' ages and any special circumstances.

The court was tasked with assessing the objective seriousness of the crime, focusing on factors such as the gratuitous cruelty exhibited, the extent of planning, the vulnerability of the victim, and the grave risk to others. Additionally, the court needed to determine the appropriate weight to give to these aggravating factors and consider subjective elements such as the defendants' ages and any other special circumstances that might mitigate their culpability. The court also examined the principles of complicity, considering whether the defendants were part of a joint criminal enterprise and the extent of their respective roles.

The court concluded that the objective seriousness of the crime was heightened by the gratuitous cruelty and the planning involved, which exposed the victim and others to a grave risk of death. The aggravating factors were given significant weight, particularly the gratuitous nature of the cruelty and the planning aspect of the crime. In terms of subjective considerations, while the age of the offenders was noted, it did not significantly mitigate the severity of their actions. The court found that the defendants were indeed complicit in a joint criminal enterprise, with both playing active roles in the planning and execution of the crime.

The court ordered that Brown be sentenced to a term of imprisonment with a non-parole period of 15 years, and Leuthwaite be sentenced to a term of imprisonment with a non-parole period of 13 years. These sentences reflected the court's consideration of the objective seriousness of the crime, the identified aggravating factors, and the subjective circumstances of the offenders.

Orders

Orders of the court

See paragraphs [147] to [156]

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.

Medium Neutral Citation:	R v Brown; R v Leuthwaite [2020] NSWDC 16
Hearing dates:	5 February 2020
Date of orders:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [147] to [156]
Catchwords:	CRIME — Violent offences — Detain for advantage — Circumstances of aggravation CRIME — Complicity — Joint criminal enterprise SENTENCING — Objective Seriousness — Aggravating factors — Gratuitous cruelty — Planning — Victim vulnerability — Grave risk of death to another person or persons SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Bullock v R [2016] NSWCCA 131 DPP v De La Rosa (2010) 79 NSWLR 1 Lawson v R [2018] NSWCCA 215
Category:	Sentence
Parties:	Director of Public Prosecutions (DPP) Matthew James Leuthwaite Brooke Levina Jane Brown
Representation:	Counsel: D Robinson (DPP) R Khalilizadeh (Leuthwaite) B Robinson (Brown) Solicitors: G Ellis (DPP) N Karim (Leuthwaite) K Zoutendijk (Brown)
File Number(s):	2018/002935502018/00294973
Publication restriction:	Statutory non-publication order concerning identities of juvenile offenders