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

1. 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.

2. 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.

3. 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.

4. 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

5. 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 the offence. That evidence was essentially directed to the question of whether the offender, Ms Brown, in effect acted to some degree out of fear of Mr Leuthwaite but not to such a degree that would amount to the defence of duress. I will discuss the evidence concerning that issue once I have reviewed the agreed facts.

6. I note I am sentencing the offenders without the benefit of a transcript of the evidence that they gave. I note also that there was tendered as exhibit 3 on sentence the disk containing two videos of parts of the incident giving rise to the offence which were recorded by the offender, Mr Leuthwaite, and are referred to in the agreed facts.

7. I turn then to the agreed facts. The victim, Ms Kendrigan, was 19 years of age in September 2018. She was born with a partial left arm and had no arm below her elbow. LF had a personal relationship with the victim in 2018. The relationship came to an end about three weeks prior to 22 September 2018 and the victim commenced a relationship with Mark Minahan.

8. Ms Brown and LF were friends. They met through a mutual acquaintance around July 2018. The victim was introduced to Ms Brown through LF at around the same time. After they became acquainted, the victim had visited Ms Brown at her house in Whalan, on a number of occasions. She had stayed overnight at Ms Brown’s house a few times and stayed overnight there on Thursday 20 September 2018.

9. Mr Leuthwaite had been in a relationship with Ms Brown and they had a child together. The child was three years of age in September 2018. The victim had met him prior to 21 September 2018.

10. EB was a close friend of Ms Brown. They had been friends for six to eight months prior to 21 September 2018. EB was not familiar to the victim. The victim had had some contact with her before 21 September 2018 and the victim believed her name was E.

11. On the night of Thursday 20 September 2018 the victim stayed overnight at Ms Brown’s residence. Early on the afternoon of 21 September 2018 the victim travelled to Mark Minahan’s residence at Ambarvale. She spent the night and Saturday 22 September 2018 at the address with him. During the morning of Saturday 22 September 2018 EB visited Ms Brown at her premises. At 3.30pm they travelled to Wallacia in Ms Brown’s vehicle, a silver Commodore, and collected LF from his residence.

12. The group then drove to collect Mr Leuthwaite from Culburra where he lived, and planned to return to Whalan, they arrived at Culburra at about 6.30pm. While the group was travelling to Culburra LF and EB communicated via social media with the victim. The group believed that the victim had referred to EB as a dog in social media.

13. After Mr Leuthwaite was collected at Culburra the group in the vehicle formed a plan to drive to the victim where EB would punch her, and they would drive away, leaving the victim behind. The victim and the group arranged to meet on the street at Rosemeadow so that the victim could be driven to Ms Brown’s residence. Mr Leuthwaite encouraged the victim to meet them, he assured the victim that EB was not in the car.

14. Ms Brown drove to MacBeth Drive, Rosemeadow, arriving at about 9pm. The victim was waiting by the side of the road. EB and Mr Leuthwaite exited the vehicle. EB approached the victim, Mr Leuthwaite returned to the front passenger seat of the vehicle and used his phone to record video of EB and the victim.

15. EB asked the victim why she called them “dogs”, yelled at her and told her to get into the car. The victim said she did not want to get into the car. EB demanded that the victim get into the car as they had travelled to collect her. After this exchange was repeated a number of times the victim walked towards the car with EB following. The victim entered the vehicle through the rear door; EB entered the vehicle after the victim. LF was sitting on the other side of the victim in the rear seat on the driver’s side. Mr Leuthwaite continued to record conversation in the vehicle.

16. Ms Brown drove the vehicle away towards Whalan via Picton, the victim was asked why she called them “low-life dogs”. The victim carried an iPhone 8 mobile phone and a handbag containing some clothing, a purse, a phone charger cord and some other items. The victim attempted to telephone her father. EB said, “Luke, get her phone”. Mr Leuthwaite said, “Get her phone”. EB took the victim’s phone from her and said, “You’re never going to get it back”. EB handed the phone to Mr Leuthwaite. The victim was screaming and crying, asking for her phone to be returned. Mr Leuthwaite stopped recording at this point.

17. The group demanded that the victim disclose the security code to her phone, they said that the victim would be punched in the face if she did not do so. EB used the code to access the phone and deleted Facebook and text messages from it. EB told the victim to sit on LF’s lap on the driver’s side rear seat. EB folded down the centre of the back rest of the rear seat, opening access to the boot of the vehicle. The victim was told to get into the boot and she was moved from LF’s lap into the boot. Once the victim was in the boot the backrest was closed, separating the victim from the passenger compartment of the vehicle. The victim remained in the boot during the journey to Whalan.

18. Before returning to her residence Ms Brown drove to the Commonwealth Bank at Emerton, arriving at about 10.30pm. Ms Brown used the automatic teller machine and withdrew $40 from her own account. From Emerton Ms Brown drove the group to an address at Blackett where Mr Leuthwaite purchased cannabis.

19. Ms Brown then drove to her residence, arriving at about 11pm. Ms Kendrigan was crying in the boot at this time. Ms Brown released the lock on the vehicle’s boot lid and left the vehicle. The boot of the vehicle was opened and the victim observed LF and Mr Leuthwaite standing nearby. The victim sat up and put one leg out of the boot. Mr Leuthwaite held the victim by her shirt and pulled her out of the boot. Ms Brown walked to the residence. The victim walked with Mr Leuthwaite to the residence. LF and EB followed. The group entered the lounge room and Ms Brown went into the toilet.

20. The victim was directed to sit on a blue‑coloured chair. Mr Leuthwaite and EB used the phone charger cord from the victim’s handbag to tie her right arm to the armrest of the chair. They attempted to tie her partial left arm in a similar fashion but were not successful. Ms Brown spent time cleaning the kitchen which adjoined the lounge room. Ms Brown’s brother, a 14 year old boy, BD, was present at the residence. He observed the victim being tied to the chair. Ms Brown and Mr Leuthwaite’s son was also in the residence, he was an infant and was asleep fortunately in a bedroom. Mr Leuthwaite told the brother to go into a bedroom. BD went into his bedroom for a short time, then returned to the lounge room.

21. Ms Brown said, “My son’s asleep so you’d better shut up”. The victim was dragged, still tied in the chair, into another room. While she was in that room her feet were tied with a dressing gown cord. After about five minutes she was dragged back into the lounge room. Mr Leuthwaite used his phone to record video of the victim when she was in the other room tied in the chair.

22. When the victim was returned to the lounge room EB covered the victim’s face with a T-shirt. The shirt fell from the victim’s face after a short while. Some of the group asked the victim why she called them “low-life dogs”. Mr Leuthwaite used scissors to cut up his cannabis. He used the scissors to cut the victim’s pony tail off. EB also had scissors and cut the victim’s hair. Mr Leuthwaite took the victim’s pony tail and put it on Ms Brown’s shoulder . Ms Brown was in the adjoining kitchen at that time. EB obtained a razor from the bathroom and shaved the victim’s eyebrows off. The victim called Mr Leuthwaite “a junkie”. He kicked the victim in the side of her face. He was wearing sandals or slides on his feet. EB punched the victim once in the left side of her face causing the victim to hit the right side of her face on the arm rest at the lounge. EB used a knife from the kitchen about 15 centimetres long to stab the victim in her left leg near her knee causing a 2 centimetre wound.

23. EB told the victim not to scream or they would keep stabbing her legs. EB said, “How does it feel getting stabbed?”. Ms Brown had a shower. While Ms Brown was in the shower EB caused the victim to put her hand flat on the lounge chair. EB used a knife to threaten to stab the victim’s fingers. She repeatedly thrust the knife in the spaces between the victim’s fingers.

24. About 20 minutes later when Ms Brown finished her shower Mr Leuthwaite said that each person in the group had a part in the incident and they were all going to get into trouble. Mr Leuthwaite told LF to kick the victim in the face. The victim was kicked in the back of the head and face. Ms Brown told EB to cover the victim’s face. A sock containing cleaning liquid was put in the victim’s mouth and EB covered the victim’s face with a T-shirt. Ms Brown used the knife previously held by EB and stabbed the victim in her right leg on the top of her thigh causing a 1 centimetre superficial wound. The victim’s thigh wounds started bleeding. EB put a towel over the injury and poured blue liquid on the victim’s legs. The victim started screaming. Ms Brown hit the victim twice in the back with a wooden bat about 40 centimetres long. LF punched the victim in the side of her face.

25. Ms Brown and Mr Leuthwaite left the residence. Ms Brown drove Mr Leuthwaite to a brothel near Blacktown where Mr Leuthwaite attempted to sell the victim’s phone. He was not successful. They were gone for about 40 minutes. While Ms Brown and Mr Leuthwaite were absent LF and EB yelled at the victim and called her names. She was told, “We’re going to cut your other arm off”. Ms Brown and Mr Leuthwaite returned. The victim was still restrained in the chair in the lounge room with EB and LF present.

26. EB extinguished a cigarette on the back of the victim’s right wrist causing a small burn. Mr Leuthwaite said, “Do we let her go?”. Ms Brown said, “Do you want to let her go after everything they’ve done, she’s going to go to the cops, we’re all going to get in trouble”. Ms Brown held the wooden bat and threatened to hit the victim. One of the group said, “I think we need to kill her otherwise she will go to the cops and we have kids. I don’t want her to open her mouth.” Ms Brown said to the victim, “If you say anything to anyone that we did this we will hunt you down and kill you”.

27. EB held the victim by the throat with her hands until the victim gagged, then released her. Mr Leuthwaite then held his arm around the victim’s throat in a choker hold until the victim lost consciousness for a short period. LF repeatedly kicked the victim to the back of her head.

28. After discussion among the group they decided to move the victim from the residence. Ms Brown and another offender cut up a blanket and Mr Leuthwaite used it to securely tie the victim’s legs. EB put a sock in the victim’s mouth. Mr Leuthwaite and LF carried the victim to Ms Brown’s car and put her in the boot. While she was in the boot the victim managed to remove the sock from her mouth.

29. The group entered the car and Ms Brown drove to Bidwill, arriving at about 4am. They met a friend of EB’s and attempted to sell the victim’s phone to him. This person took the phone and left without making payment.

30. Ms Brown drove to Windsor. At about 5.30am one of the group directed her to stop on the Windsor Bridge over the Hawkesbury River about 45 metres from the eastern bank. Ms Brown operated the boot release. EB, LF and Mr Leuthwaite exited the vehicle; Ms Brown remained in it. Ms Brown said “hurry up and get her out before a car comes”.

31. Mr Leuthwaite and LF approached the victim in the boot. They told the victim to get out, she said “please, no”. The victim was told “if you don’t get out we will smash your face again”. Mr Leuthwaite and LF lifted the victim from the boot. The victim was told “don’t tell anyone we did it or we’ll come back and kill you, hope you don’t survive, you slut”.

32. Mr Leuthwaite held the victim by the feet and LF held her by her arms. They threw the victim over the side of the bridge. She fell feet first about 7.5 metres into the water of the river. The victim floated to a bridge pylon which she held to keep her head above water while she recovered from the fall. After resting she dog-paddled and floated on her back to the shore and at about 6am went to a house by the river. A local resident called police.

33. The victim was taken to Nepean Hospital and attended to in the emergency department. The following injuries were observed: Swelling to the left side of her head, bruising to both cheeks and under her left eye, superficial burn to her right wrist, 1 centimetre superficial wound above her right knee, a 2 centimetre wound to the lateral aspect of her left leg at the knee.

34. The victim was discharged from hospital on the afternoon of 23 September 2018. On 24 September the victim attended Dr Knox who stitched the wounds on her legs.

35. LC, a 15 year old who considered herself Mr Leuthwaite’s girlfriend in September 2018 and had known him for about 12 months, at 10.27pm on 22 September 2018 received a number of messages from him. He told her that he had someone in the boot and that he “got this person kidnapped, a girl,” because “she wanted to mouth up to people and I got an iPhone 8”. Mr Leuthwaite sent her a video of the victim tied in the chair in Ms Brown’s residence. At 10.57pm Mr Leuthwaite sent a picture to LC of the victim in the boot of Ms Brown’s vehicle. He also sent her the video he recorded showing EB approaching the victim in the street at Rosemeadow and arguing with her, Mr Leuthwaite telling EB to get the victim’s phone and the victim screaming as they drove in Ms Brown’s vehicle.

36. Rachel O’Connor is an acquaintance of Mr Leuthwaite. Mr Leuthwaite Sent her a message at 11pm on 22 September 2018 offering to sell her an S8 iPhone.

37. On 23 September 2018 at around 11.55am a person called the Windsor Police Station and spoke to Leading Senior Constable Shaun Walker. That person was EB. She told the senior constable “I just have to tell you something and I’m dobbing myself in as well. We kidnapped a girl last night, it was his idea,. I admit I did hit her but it was his idea”.

38. Walker asked the caller “who’s he” and the caller said “Matthew Leuthwaite”. The Detective Senior Constable said “What’s your name?”, the caller said “EB I’m not scared I’m happy to come in”. The Senior Constable said “Where are you at?. We can have a police come and see you”. And the caller, who was EB, said “I’m not at an address I’m in Willmot in a car”. The officer said “What’s your number?”. The caller said “I don’t have one, I’m on a friend’s phone”. “What’s their name?” And the call terminated. It is accepted that the caller, as I understand it, was EB.

39. On 24 September 2018 Ms Brown provided a statement to police in which she denied having contact with the victim on the relevant dates. On 25 September 2018 Ms Brown attended Windsor Police Station, participated in an interview, and made extensive admissions. She disclosed that she wounded the victim’s right leg and that she struck the victim twice with a wooden implement. Those details apparently had not been included in the victim’s statement to police. On 26 September 2018 EB attended Windsor Police Station and was arrested.

40. On 26 September 2018 Mr Leuthwaite attended Windsor Police Station. He participated in an interview. He said that Ms Brown had driven from Culburra to Whalan on 22 September 2018. He said he was not aware the victim was in the boot of the vehicle. He said he only became aware of her presence when the group arrived at Whalan and he denied taking part in detaining or assaulting her. LF was arrested on 27 September 2018.

41. I turn then to consider the evidence that was given at the sentencing hearing as to the issue of non-exculpatory duress, and on the issue that Ms Brown acted to some degree out of fear of the offender, Mr Leuthwaite.

42. The offender, Ms Brown, gave evidence about the nature of her relationship with Mr Leuthwaite and essentially described it as a violent and controlling one. Ms Brown described in 2017 having the police take out an apprehended domestic violence order on her behalf against Mr Leuthwaite because he had slapped her to the face on one occasion. She confirmed certain incidents of violence and control about which she had told Ms Martens, a psychologist who had interviewed her for the purposes of preparing a report for use in the sentence proceedings.

43. In terms of her involvement in the incident and giving rise to the charge the offender, Ms Brown, gave evidence that she really did not become physically involved in the incident until after she had entered the shower at her residence when she says the offender, Mr Leuthwaite, grabbed her by the throat and choked her and told her that she would be hurt if she did not become involved. Her evidence-in-chief was that she felt that she could not escape from the situation she found herself in that night.

5. In cross-examination on behalf of the offender, Mr Leuthwaite, Ms Brown maintained that the offender had been violent towards her on a number of occasions in the past and had on one occasion even bitten their son on his arm and left a bruise. Ms Brown agreed that a number of breaches of the apprehended domestic violence order occurred after she had in fact invited Mr Leuthwaite into her home. She maintained in cross-examination that Mr Leuthwaite on the night of the incident had grabbed her around the throat. Ms Brown agreed in cross-examination, on behalf of Mr Leuthwaite, that she had opportunities to leave the incident given that it lasted for eight or nine hours, and that she had used a knife during the incident.

6. In re-examination Ms Brown said that she did not leave the house that night as her son was there. Ms Brown also agreed that her voice could be heard laughing in part of the videos of the incident that are before me. Ms Brown also agreed in cross-examination by the Crown Prosecutor that Mr Leuthwaite had given her no specific instructions about what she should do during the incident and to that extent she acted in accordance with her own wishes. She also agreed with the Crown that she had driven the co-offenders to her home that evening along with the victim in the boot. Ms Brown also agreed that she had made the threat to kill the victim if she reported the incident to the police as recorded in para 52 of the agreed facts.

7. Ms Brown, in her evidence, maintained that during the incident the offender Mr Leuthwaite had choked her and told her that she would be hurt if she did not co-operate.

8. The offender, Mr Leuthwaite gave evidence and denied that he had directed any violence towards Ms Brown that night and said that he had only directed violence towards the victim. He denied that he had at any point that night grabbed Ms Brown by the throat, and asserted that Ms Brown had made her own decision to involve herself in the incident that night, and said that he had not put any pressure on her to involve herself in the events that evening.

9. Under cross-examination on behalf of Ms Brown, Mr Leuthwaite accepted that he had on one prior occasion been violent towards Ms Brown when he had smacked her in the mouth at a time when the initial apprehended domestic violence order had been taken out against him. He also agreed that in the past he had threatened to smash up Ms Brown’s home and property but had at no time done so, and accepted that there had been times when he had threatened Ms Brown.

10. He agreed that during the incident he filmed two different parts of it. He said he did so for no specific reason. He agreed he had sent the videos from his phone to a friend and in cross-examination by the Crown ultimately appeared to accept that he had done so effectively to boast about his appalling behaviour.

11. He maintained throughout the cross-examination that he did not at any stage during the incident physically assault Ms Brown. He said however that he had been on what he described as a “four-day bender”, having been using ice and not having slept for four days. He also gave evidence that he had injected ice that night while in the bathroom of Ms Brown’s premises.

12. He agreed during his cross-examination that ice makes him become more aggressive and violent. During the course of the Crown’s cross‑examination he said that he considered himself to be a violent man and accepted that he has anger management problems. He also stated that the whole reason for the incident was at some stage the victim had allegedly called at least one of the offenders “dogs”.

13. Having listened and watched the videos of parts of the incident, and having regard to the agreed facts and evidence I have heard, I am not persuaded on the balance of probabilities that the offender, Ms Brown, engaged in the offence primarily because of being fearful of the offender, Mr Leuthwaite. Her conduct during the incident as shown in the videos is such that I do not consider she primarily engaged in the offence because she was fearful.

14. Her conduct was over a long period of time and she involved herself in the initial stages of the incident. She clearly had ample opportunity to remove herself from the group on a number of occasions. In that regard I note she was at various points the driver of the motor vehicle. She was involved at times in giving directions or ideas to the group, see by way of example paras 51 and 60 of the agreed facts.

15. It may be that her experience of Mr Leuthwaite in the past was something that she had regard to, however it is clear that she acted for a significant period of time, engaged in a number of acts of violence towards the victim independently , and had a significant role in the attack upon the victim.

16. An issue as to whether Mr Leuthwaite was, in terms of his role, the leader of the offending group, was raised during the sentence hearing. To sentence Mr Leuthwaite on the basis that he was the leader of the group I would have to be satisfied of that fact beyond reasonable doubt.

17. There is no doubt Mr Leuthwaite was the oldest person involved, and filmed the incident no doubt in order to boast about it. He gave directions to some of the other offenders, see by way of example the agreed facts at para 41. He is someone with a violent background. However, while I suspect he may well have been the leader, when I have regard to the whole of the evidence, in particular the agreed facts which record very few instructions from him to the other offenders, I am not satisfied beyond reasonable doubt that he was in fact the leader of the group or the instigator of the offence.

18. I record that I note Mr Leuthwaite readily made concessions in the witness box against his own interest and to some degree that persuaded me that I should give some weight to the evidence of his denials concerning whether he had assaulted Ms Brown on the night of the incident and his denial as to being the leader of the group of offenders.

Assessment of the objective seriousness of the offence

58. I turn then to my assessment of the objective seriousness of the offence. Clearly the offence is a very serious one. The period of detention was long, approximately eight hours, and continued overnight. The advantage was particularised in the charge as to intimidate the victim. It appears the motivation for the offence was one of revenge for allegedly calling some of the offenders involved “dogs”.

59. The victim was detained in a motor vehicle for part of the time and at times in the boot of that vehicle, which was no doubt terrifying. The victim was also tied to a chair for a period of the detention. While tied to a chair she was dragged into another room in Ms Brown’s residence where her feet were tied together.

60. At one point her face was covered by one of the juveniles at Ms Brown’s direction. Her hair was cut by Mr Leuthwaite while she was tied to the chair. The victim’s eyebrows were shaved off by one of the juvenile offenders. The victim was kicked and punched to the face and head a number of times while detained. Mr Leuthwaite at one point kicked the victim to the side of her face and told one of the juveniles to kick her face as well. The victim was also stabbed a number of times by both one of the juveniles and by Ms Brown. The victim was hit to the back with a wooden bat by Ms Brown.

61. The victim was threatened with further violence and one of the juveniles extinguished a cigarette on her right wrist. Threats to her life were made if she went to the police. The victim was choked to the point of briefly losing consciousness by Mr Leuthwaite. At one point a sock was placed in her mouth soaked in cleaning liquid. Mr Leuthwaite and the male juvenile offender threw the victim over a bridge which had a 7.5 metre drop to water. Fortunately the victim survived. That action in throwing the victim off a bridge in such a condition and after such an ordeal involved, in my opinion, a grave risk of death to the victim.

62. The victim’s injuries are set out in the agreed facts which I read. I have had regard to them in my assessment of the objective seriousness of the offence. They are significant but do not involve fractures to the victim’s limbs and cannot be said to be at the upper end of seriousness of actual bodily harm.

63. Despite the elements of this offence, I consider that the facts support a finding that gratuitous cruelty was involved in the commission of this offence. The victim was clearly subjected to very considerable humiliation during her lengthy ordeal. Her hair was involuntarily cut. He eyebrows were shaved off and a cigarette was extinguished on her skin. She was tied up and a sock soaked in cleaning liquid put into her mouth. The victim was a vulnerable victim. She only had a partial left arm having been born with no arm below her elbow and in my opinion should be seen as being a person who suffered from a disability. The victim’s ordeal during her detention was clearly an horrific one and will have a lasting impact upon her.

64. There was clearly some planning involved in the offence given the somewhat coordinated way the victim was dealt with by the offenders, but not such that it amounts to an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.

65. The offenders were clearly engaged in a joint criminal enterprise when committing the offence. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whomsoever they are committed, a particular participant’s level of culpability is to be assessed by reference to the conduct of that particular participant. I have had regard to that principle when sentencing these two offenders and have highlighted a number of the specific actions of each of them.

66. My opinion as to the objective seriousness of the offence prior to considering the evidence concerning the mental health of the two offenders at the time of the offence, is that the level of objective seriousness of each offender’s offence was well above a notional mid-range offence of this type.

67. I will return to my assessment of the objective seriousness of the offence once I have reviewed the evidence concerning the offenders’ respective mental health as at the time of the offence. In this State if an offender’s mental health was causally connected to the commission of a crime, that is a matter to have regard to in the assessment of the objective seriousness of that crime - see Lawson v R [2018] NSWCCA 215.

68. In terms of the objective aggravating factors submitted by the Crown under s 21A of the Crimes (Sentencing Procedure) Act, I found established beyond reasonable doubt that there had been gratuitous cruelty involved in the commission of the offence; the victim was vulnerable and that there was a grave risk of death to the victim during the commission of the offence. I have had regard to those factors in my assessment of the objective seriousness of it.

69. The other objective aggravating factors under s 21A submitted by the Crown I do not find established to the requisite degree.

The Offenders’ Subjective Cases

70. I turn then to the offenders’ subjective cases. I will review Ms Brown’s subjective case first.

Ms Brown’s Subjective Case

71. Ms Brown’s is currently 20 years of age and was 19 at the time of the offence. She is therefore a young adult offender and the principles associated with sentencing a young adult offender have application here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender - see Bullock v R [2016] NSWCCA 131.

72. Ms Brown has no prior criminal record. That entitles her to some leniency in this sentence.

73. Ms Brown has been in custody since 25 September 2018 and her sentence will be backdated to that date to take account of her presentence custody. I note also the evidence is that Ms Brown has not incurred any disciplinary infringements while in custody.

74. In relation to Ms Brown, there is before me a psychological report dated 2 February 2020 under the hand of Katie Martens, a forensic psychologist. In relation to the content of that report I noted earlier that Ms Brown gave evidence on sentence. In that evidence Ms Brown said that what she had told the psychologist was the truth. The Crown did not seek to challenge Ms Brown on her background and other matters she described to the psychologist and which are contained in that report.

75. I propose in these circumstances to, in the main, accept the factual matters disclosed by Ms Brown to the psychologist. In terms of her family background, the offender Ms Brown was primarily raised by her biological mother and stepfather. She had also developed a close relationship in her early years with her maternal grandmother.

76. She reported to the psychologist that her biological father had intermittent contact with her, and that he had been in and out of gaol, and that she had avoided contact as her father had abused drugs. She is the eldest of five children born to her mother.

77. Ms Brown told the psychologist that her mother and stepfather often abused alcohol and she reported that she had regularly witnessed domestic violence which had sometimes resulted in police intervention. As she was the oldest child she advised that she had felt a sense of responsibility to protect two younger siblings, despite having felt fear herself.

78. Ms Brown in her interview with the psychologist did not recall having experienced any significant financial poverty throughout her childhood and denied any childhood experience of sexual abuse.

79. Ms Brown described to the psychologist a significant event that occurred on her 7th birthday. She recalled that her father and stepfather had a physical altercation that had involved the use of a knife. She described her grandmother being wounded as a result and the memory of that incident continued to be a source of distress.

80. Ms Brown gave birth to a son - whose father is Mr Leuthwaite – at age 15, and reported that when she chose to move out of home at age 16 her parents had initially refused to allow her to take her son with her. She claimed that her parents had later fabricated a serious health condition to manipulate her into returning home.

81. At the time of the current offence Ms Brown had been residing in private rental accommodation with her son. She recalled that she had asked to return to live with her mother due to fear of Mr Leuthwaite. Ms Brown’s mother is now caring for her son and they visit her regularly in gaol.

82. Ms Brown described to the psychologist her relationship with Mr Leuthwaite as being characterised by physical violence, threats and control, which often resulted in her taking out apprehended violence orders against him. She recounted to the psychologist being choked and having witnessed Mr Leuthwaite smashing belongings in her home. She also described Mr Leuthwaite as threatening to harm their son if she refused to cooperate with his requests for money.

83. Ms Brown described to the psychologist that she was not in a relationship with Mr Leuthwaite at the time of the offence but he would regularly stay at her home.

84. In terms of Ms Brown’s education and employment, she recalled to the psychologist that she had been bullied in primary school and had felt isolated and lonely. She completed Year 10 at an alternate school for children who have displayed behavioural problems. She did not proceed with formal schooling due to becoming a mother.

85. The psychologist records that there is some suggestion Ms Brown has an intellectual disability although that is not confirmed on the material that is before me.

86. The psychologist’s report records that Ms Brown entered the workforce at age 14 in a customer service role, and left that role at age 18 and had worked periodically at carnivals. In terms of her drug use, Ms Brown reported to the psychologist a history of occasional drug and alcohol use, having first consumed alcohol at the age of 16.

87. In terms of Ms Brown’s psychological condition, the psychologist considered that she demonstrated a tendency to downplay her symptoms and provided limited detail. The psychologist recorded that Ms Brown described a history of poor distress tolerance skills, and stated that she had previously engaged in deliberate self-injury as a method to manage her mood.

88. The psychologist considered that Ms Brown indicated a tendency to appease others rather than risk the experience of violence, particularly in intimate relationships.

89. The psychologist considered that consistent with Ms Brown’s account her responses indicated symptoms indicative of mild depressed mood and anxiety. The psychologist also considered the expression of anger, irritability and resentment are difficulties for Ms Brown. The psychologist considered that,

“From my assessment of Ms Brown it appears likely that she has been experiencing a complex presentation of post‑traumatic stress disorder, characterised by intrusive memories of past violence, a sense of helplessness, periods of low mood, emotional reactivity, anxiety symptoms and a tendency to avoid conflict by remaining passive in relationships”.

90. In terms of her attitude to the offence, Ms Brown told the psychologist she had engaged in the offence at the insistence of Mr Leuthwaite whom she was fearful of. I held earlier that I was not satisfied on the balance of probabilities that was so.

91. Ms Brown expressed regret and sadness for the victim to the psychologist, as she did in the witness box. Noting Ms Brown’s earlier plea of guilty, I found the expression of sorrow by Ms Brown to be genuine. I note however the psychologist considered that Ms Brown lacked insight into the significant harm and degradation that the victim was subjected to. The psychologist considered this lack of insight may be due to Ms Brown’s lower intellectual functioning and avoidance of considering emotional experiences in general.

92. Overall I consider that there was genuine evidence of remorse from Ms Brown, although I do not think she fully appreciates the seriousness of the degrading ordeal she put the victim through. The psychologist recorded that due to significant media attention Ms Brown believes she would receive threats from other detainees and was subjected to on one occasion to an act of violence within a correctional centre.

93. In terms of the future and the risk of reoffending and prospects for rehabilitation, Ms Brown is a young adult offender with no prior criminal convictions and some family support, it would seem on the material before me. I consider that she has shown some remorse for the terrible crime that she involved herself in. I consider in these circumstances she has reasonable to good prospects for rehabilitation.

94. Ms Brown entered her plea of guilty in the Local Court and I will allow her a 25% discount of her sentence for the utilitarian value of her plea of guilty. I have also had some limited regard to the fact that although initially when spoken with by police she denied involvement in the incident, the following day she voluntarily attended the Windsor Police Station, made extensive admissions, including admitting to actions towards the victim that had not been included in the victim’s statement.

95. The evidence as to the offender Ms Brown’s background is such that I am satisfied that she has had an early life of some considerable social disadvantage and dysfunction, marked by being exposed at a young age to domestic violence and alcohol abuse.

96. The relevance of social disadvantage to sentencing was considered by the High Court in the seminal case of Bugmy v The Queen (2013) 249 CLR 571. Those principles include the proposition that an offender who has been raised in a community surrounded by alcohol or drug abuse and violence may have their sentence mitigated because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. A background where a person has been brought up surrounded by violence, alcohol and drug abuse, may compromise the person’s capacity to mature and to learn from experience.

90. I consider that those principles have application to the sentencing of Ms Brown, such that there is a limited reduction in her moral culpability for the offence. There is no evidence that her mental health in some way was causally connected to the commission of the offence. I have had some regard to her current mental health in fixing her sentence.

91. When Ms Brown is released into the community she will need considerable assistance and support in order to live a law abiding life. I note she is currently still a very young offender and I have found she has good prospects of rehabilitation. Her prospects of rehabilitation will be enhanced if she has a longer period on parole. I propose therefore that when I fix the non‑parole period I will make the finding of special circumstances.

Mr Leuthwaite’s Subjective Case

99. I will now review the subjective case of the offender Mr Leuthwaite.

100. The offender Mr Leuthwaite is currently 23 years of age. He was 22 at the time of the offence. He, too, is a young adult offender and the principles associated with sentencing a young adult offender that I referred to earlier also have application to him.

101. The offender Mr Leuthwaite has a criminal record.

102. On his juvenile record he has offences of, amongst others, common assault, assault occasioning actual bodily harm, breaching an apprehended domestic violence order and robbery in company, although it appears to me he did not receive a sentence that involved juvenile detention.

103. As an adult the offender has a number of convictions for breaching apprehended domestic violence orders, a conviction for assault occasioning actual bodily harm, common assault and possession of a prohibited weapon and has served sentences of full-time custody in the past.

104. While I do not consider that his criminal history amounts to an aggravating factor under s 21A of the Crimes (Sentencing Procedure Act), it clearly disentitles him to leniency here.

105. He has been in custody since 27 September 2018 and I will have regard to his pre-sentence custody when determining the appropriate day upon which to commence the sentence.

106. On 9 June 2018 the offender Mr Leuthwaite was sentenced to a six month supervised good behaviour bond for an offence of breaching an apprehended domestic violence order. On 10 August 2018 that good behaviour bond was called up in the Local Court as the offender had committed a further breach of an apprehended domestic violence order and an offence of stalk or intimidate while on that good behaviour bond.

107. In relation to the offences that breached the good behaviour bond, the offender in the Local Court received a nine month and a 12 month supervised suspended sentence respectively.

108. The current offence breaches that good behaviour bond and the suspended sentences. I have called that bond and the suspended sentences up and I will deal with those breaches during this sentence.

109. The fact he was on a s 9 good behaviour bond and two suspended sentences at the time of the offence is an aggravating factor. The offences which relate to the s 9 bond and the two suspended sentences all concern Ms Brown who was the victim of those offences. The breach of the apprehended domestic violence order to which the s 9 good behaviour bond relates was at the low end of the spectrum and involved being present at Ms Brown’s premises. The offences for which the suspended sentences were imposed involved the offender in heated phone and Facebook message exchanges in which the offender Mr Leuthwaite threatened to smash up Ms Brown’s home and to bash her.

110. When spoken to by the police about those offences, the offender Mr Leuthwaite told them that he had sent the text messages because Ms Brown was not returning home and was with her boyfriend. Those offences involved a loss of control and threats of violence towards Ms Brown.

111. I have been provided with a report by the psychologist, Ms Vanessa Edwige, dated 1 February 2020 in relation to Mr Leuthwaite. When he gave evidence on sentence, Mr Leuthwaite confirmed the truthfulness of what he had told the psychologist and the contents of that report were not challenged by the Crown.

112. In terms of the background Mr Leuthwaite gave to the psychologist contained in that report, I propose to accept it for the purposes of sentence.

113. There is also before me the following concerning Mr Leuthwaite: A letter of apology from him; a list of the programs he has engaged in while in custody; an inmate profile document from the Department of Corrective Services; case notes from the Department of Corrective Services relating to the offender, in particular dealing with psychological issues; other documents from the Department of Corrective Services concerning the type of custody that the offender has been held in to date.

114. In terms of his family background, regrettably the offender Mr Leuthwaite has had a traumatic and unfortunate upbringing and it is necessary to describe it in some detail.

115. He was born at Windsor Hospital. He is a Muruwari indigenous man through his father’s line. The offender resided with his parents and a male sibling until the age of two. At that point the offender was removed from his parents’ care along with his brother by the Department of Community Services.    Both of the offender’s parents were addicted to heroin. Reportedly, there was significant violence in the home perpetrated by the offender’s father against his mother.

116. The offender was placed in the care of his paternal grandparents along with his brother and a male cousin approximately 12 years older than the offender. Reportedly, the male cousin sexually assaulted both siblings when the offender was between the ages of four and nine. It was reported that the cousin made the offender perform oral sex on him on a daily basis. Neither sibling reported the abuse at the time. However, the offender revealed the abuse to the Department of Corrective Services psychological personnel not long after his admission into custody, according to documents that have been tendered in his case.

117. The offender attended Oxley Park Primary School from kindergarten to Year 6. He had significant behavioural issues and a number of suspensions are reported for aggression towards students, not following directions and not being compliant.

118. During primary school it is reported that the offender was regularly beaten by his grandfather. The offender reported positive feelings towards his grandparents but described rarely being shown affection by his grandmother during childhood and not at all by his grandfather. The offender reported that his grandfather was an aggressive person, was a daily drinker of alcohol and smoker of marijuana.

119. When the offender was 13 years of age his two maternal uncles were shot in front of him by men who had demanded drugs and money. A fight ensued and the two uncles as I say were shot. One was shot fatally. The offender witnessed that incident and began to use drugs shortly afterwards.

120. The offender resided with his grandparents until the age of 16 and left as his then partner became pregnant with his first child. For a short period of time the partner lived with the offender at his grandparents. Shortly thereafter the partner and the offender lived with the partner’s father in Taree. The child was removed by DOCS and placed in the care of a relative after the two experienced some relationship difficulties.

121. At the age of 17 the offender moved to live with his maternal grandmother, grandfather and uncle in Doonside. According to the report, all of those family members used the drug Ice intravenously. The offender reported at this time he also commenced to use Ice. He had a second child around this time. The offender lived at the Doonside address until 19 years of age. He was living with a paternal auntie until his arrest. During this period he fathered a third child.

122. In terms of his substance abuse, he began smoking marijuana at the age of 13 years. He stated to the psychologist this was typical of his family members and not considered a big deal. As I mentioned previously, the offender commenced using Ice at the age of 16 or 17. He stated to the author of the psychological report that using Ice “blocked everything out”.

123. The evidence suggests that the offender turned to prohibited drugs at a young age due to the trauma associated with his upbringing. The offender told the psychologist he suffers significant paranoia, visual hallucinations and increased aggression when using the drug. He gave evidence that he had been using Ice before and during the commission of the offence.

124. According to the psychologist’s report the offender participated in the EQUIPS addiction program for one month while on parole and is now participating in the remand addiction program. There is documentation before me indicating that the offender has, when in custody, applied himself to the few rehabilitation programs that have been made available to him.

125. The offender has been exposed to a significant degree of trauma and deprivation during his childhood and has only recently commenced treatment with a psychologist. The psychologist noted the offender has significant emotional issues as a result of his childhood that continue to have an impact on his life.

126. Making reference to the offender’s upbringing Ms Edwidge, the psychologist, diagnosed the offender as meeting the diagnostic criteria for unspecified trauma and stress related disorders, substance use and conduct disorder and met those three diagnosis at the time of the offending. Ms Edwidge expressed the view that the offender’s psychological state was linked to his offending behaviour and noted that his use of ice before, during and after the offending would have exacerbated his mental condition and his poor decision making.

127. In relation to the offender’s time in custody Ms Edwige expressed the view that the offender is institutionalised. Ms Edwige said:

“The offender’s ability to live independently has been significantly jeopardised as a result of being institutionalised. He is now accustomed to gaol, he finds it hard to stay out of gaol as he lacks support and has to manage his life and its demands on his own.”

128. In terms of his attitude to the offence, Ms Edwige reported the offender expressing remorse for his offending behaviour. According to Ms Edwige the offender recognised the ongoing trauma the victim will now experience as a result of his offending behaviour.

129. The offender gave evidence in the witness box as to his remorse towards the victim. I found his evidence acceptable and consider that there is some evidence of genuine remorse.

130. In terms of the future and risk of reoffending, the offender Mr Leuthwaite remains a young man who has a criminal record relating to offences of violence. He has little by way of support in the community. I do note, however, that he has engaged in courses concerned with rehabilitation when he has been in custody. In these circumstances I consider that he has guarded to reasonable prospects of rehabilitation. I am not able to make a finding on the material before me that he is unlikely to reoffend. I am prepared to accept that is his intention however.

131. The evidence before me satisfies me that the offender Mr Leuthwaite has had a life of very considerable social disadvantage, dysfunction and trauma from a young age. He was exposed to extreme violence and drug abuse from a very young age. It appears that he commenced prohibited drug use as a consequence of the extreme violence he witnessed as a relatively young child. Committing an offence under the influence of a prohibited drug is generally not a mitigating factor. Where the drug use commenced due to traumatic events in an offender’s early life and the offender remains young and has had few opportunities to engage in drug rehabilitation, some mitigation of a sentence is permissible. I set out earlier the principles concerning the relevance of such factors to sentencing when discussing Ms Brown’s subjective case, I have applied those principles when considering the appropriate sentence to impose on Mr Leuthwaite.

132. Given the evidence before me as to the offender Mr Leuthwaite’s mental health as at the time of the offence, and the psychologist’s opinion that his mental health was in some way linked to the commission of the offence, it is appropriate that I have regard to the principles concerning the relevance of a person’s mental health to sentencing. Those principles are essentially as follows:

133. Where the state of a person’s mental health contributes to the commission of the offence in a material way the offender’s moral culpability may be reduced, consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction of the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weight more heavily on the person. It may reduce or eliminate the significance of specific deterrence (see DPP v De La Rosa (2010) 79 NSWLR 1).

134. Here, the evidence does satisfy me that the offender’s mental health was to some degree causally connected to the commission of the offence as his judgment was, to a degree, affected by his mental health condition, although it is difficult to separate the extent to which his mental health conditions were causally related to his offending, as distinct from his drug use. I propose to allow some mitigation of his sentence as a result of that finding.

135. I do not think that his mental health is such that he is an inappropriate person through whom to express the sentencing principles of general deterrence. I also consider that there remains a need to have a significant component of personal deterrence in the sentence I impose. As I have found there was some connection between Mr Leuthwaite’s mental health condition and the commission of the offence, there is some reduction in my assessment of the objective seriousness of the offence which I referred to earlier in these remarks.

136. The offender Mr Leuthwaite gave evidence that when he first went into custody he opted to be kept in non-association or segregation within the gaol system due to the adverse media coverage of the case. He remained in that category of custody for about five months. He described that custody as involving no contact with other inmates and that he was not allowed out of his cell except into a small exercise yard attached to it. He is now held in protective custody where there is limited association with other inmates. He has requested this classification for his own safety. There are documents from Corrective Services in 2018 and 2019 which support this account of the offender. I have had limited regard to the nature of his custodial environment to date when imposing sentence.

137. The offender Mr Leuthwaite also entered a plea of guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of his plea of guilty.

138. All of the material before me establishes that when the offender Mr Leuthwaite is released from custody he will need very considerable assistance in re-entering the community in order to deal with his mental health and drug issues, and to have any real prospect of remaining offence‑free. I note also that it appears he is showing signs of institutionalisation. In these circumstances I make a finding of special circumstances and will reflect that when I fix his non‑parole period.

Sentence to be imposed   

139. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim and the community, and rehabilitation of the offender.

140. The crime committed by the two offenders was a most serious one. It was unprovoked and involved prolonged detention and infliction of injury and gratuitous cruelty to a young woman who had a significant physical disability.

141. General deterrence, that is the need to impose a sentence that will deter not just these offenders, but others in our community from such appalling conduct, requires that a significant sentence be imposed on both offenders.

142. Specific deterrence always has a role to play when sentencing for such a serious crime.

143. The maximum penalty has been taken into account as a legislative guidepost.

144. In relation to Mr Leuthwaite, I consider that an appropriate starting point for the sentence prior to any discount for the plea of guilty is one of ten years imprisonment.

145. In relation to Ms Brown, I consider that an appropriate starting point for the sentence, having regard to the differences in their subjective cases, and the particular acts of violence they directed towards the victim, is eight and a half years imprisonment.

Orders

146. Mr Leuthwaite, please stand up.

147. I will firstly deal with the breach of the s 9 good behaviour bond and the suspended sentences I have referred to earlier. In relation to the breach of the section 9 good behaviour bond for breaching an apprehended violence order, I propose to take no action on the breach of the bond.

148. I revoke the two suspended sentences that this current offence breached. In relation to the breach of the apprehended domestic violence order offence to which the nine months’ suspended sentence related, I impose a sentence consisting of a non-period of five months, with a balance of term of four months, being a total sentence of nine months’ imprisonment.

149. In relation to the stalk or intimidate offence to which the 12 month suspended sentence relates, I impose a sentence consisting of a non-parole period of seven months and a balance of term of five months, being a total sentence of 12 months.

150. I propose to make both those sentences fully concurrent. They are to date from 26 September 2018.

151. I consider that having regard to the principles of totality there should be some slight accumulation of the sentence that I am to impose on the primary offence with those sentences.

152. In relation to the offence under s 86(3) of the Crimes Act that you have pleaded guilty to, you are convicted. I propose to commence the sentence for that offence from 26 November 2018. In relation to that offence I impose a sentence consisting of a non-parole period of five years and a balance of term of two and a half years. That is a total sentence of seven and a half years imprisonment, with a non-parole period of five years.

153. The sentence expires on 25 May 2026. The non-parole period expires on 25 November 2023. The earliest date you may be released to parole is that date, 25 November 2023. Whether you are in fact released on that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in custody in deciding whether to release you then or on another date. Have a seat.

154. Ms Brown, please stand up.

155. Ms Brown you are convicted of the offence to which you have pleaded guilty. You are sentenced to a term of imprisonment consisting of a non-parole period of four years and three months, and a balance of term of two years and one month. That is a total sentence of six years and four months. It commences on 25 September 2018 and expires on 24 January 2025. The non‑parole period expires on 24 December 2022, which is the earliest date you may be released to parole.

156. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt, as I said to Mr Leuthwaite, consider how you behave in custody. Have a seat.

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Decision last updated: 17 February 2020