R v Cowan

[2025] NSWDC 100

District Court

New South Wales

Medium Neutral Citation:

R v Cowan [2025] NSWDC 100

Hearing dates:

5 March 2025

Date of orders:

28 March 2025

Decision date:

28 March 2025

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

[97]

Catchwords:

CRIME — Violent offences — Attempt – Detain for advantage — Circumstances of aggravation — Specially aggravated offence

SENTENCING — Relevant factors on sentence — Co-offenders — Joint sentence proceedings – Joint criminal enterprise – Parity

SENTENCING — Probation and parole — Offence committed whilst on parole

SENTENCING — Subjective considerations on sentence — Mental health - Special circumstances

Legislation Cited:

Crime (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

DC v R [2023] NSWCCA 82

DPP (CTH) v De La Rosa (2010) 79 NSWLR 1

Leigh Brown v R [2014] NSWCCA 335

Lowe v The Queen (1984) 154 CLR 606

Muldrock v R (2000) 244 CLR 120

Postiglione v The Queen (1997) 189 CLR 295

R v Henry [1999] NSWCCA 111

R v JW (2010) 77 NSWLR 7

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Schofield [2003] NSWCCA

R v Taouk (1992) 65 A Crim R 387

Veen v The Queen (No 2) [1988) 164 CLR 465

Category:

Sentence

Parties:

Crown, Joshua Cowan

Representation:

Crown: C Triscari

Defence: B O’Reilly

File Number(s):

2022/00383837

Publication restriction:

Nil

JUDGMENT

Overview

1. On 21 November 2024, at the time of trial, the offender pleaded guilty to the following offence: –

Attempt to commit offence: take/detain in company with intent to commit serious indictable offence occasion actual bodily harm.

2. The offender adhered to his guilty plea on the sentence hearing.

3. The offender is to be sentenced with his two co-offenders who are also to be sentenced with respect to the identical offence. The maximum penalty for the offence is 25 years imprisonment with no standard non-parole period. The maximum penalty operates as a sentencing guidepost or reference point and reflects the seriousness of the offence for which the offender is to be sentenced.

4. Admitted on behalf of the Crown was the following:

1. Exhibit C1: Notice of Committal

2. Exhibit C2: Indictment

3. Exhibit C3: S166 Certificate

4. Exhibit C4: Statement of Agreed Facts

5. Exhibit C5: Addendum to Agreed Facts

6. Exhibit C6: Breach of Parole Report dated 23 December 2022

7. Exhibit C7: Revocation of Parole Order dated 18 January 2023

8. Exhibit C8: Determination by State Parole Authority in Respect of Review of Revocation Order dated 16 February 2023

9. Exhibit C9: Criminal History

10. Exhibit C10: Custodial History

11. Exhibit C11: Redacted Victim Impact Statement

12. Exhibit C12: USB containing three videos of offence

5. Admitted on behalf of the offender was the following: –

1. Exhibit O1: Joshua Cowan Juvenile Custodial History

2. Exhibit O2: Psychological Report under the hand of Dr Clara Fritchley dated 7 February 2025

3. Exhibit O3: Letter from Shine Lawyers dated 4 March 2025

4. Exhibit O4: Affidavit of Coral Booth dated 17 February 2025

5. Exhibit O5: Affidavit of Cheryl Cowan dated 17 February 2025

6. Exhibit O6: Letter from South Coast AMS

7. Exhibit O7: Justice Health Materials

Agreed facts

6. The agreed facts are common to each of the offenders to be sentenced being the offender (Cowan), Joshua Elliott (Elliott) and Timothy Elder (Elder), supplemented by CCTV recordings from a neighbouring property.

7. The complainant, Simon Horsely, had an outstanding drug-related debt with John Elliott, who is the brother of Elliott.

8. On 29 October 2022 the complainant attended an address in Nowra to obtain drugs, where Elder was present with a female. After the complainant had sat down, intending to make an electronic payment via his mobile phone, three additional men entered the house, being the offenders Elliott and Cowan, as well as an unidentified male. The four-men (three co-offenders and unknown male) then assaulted the complainant before Elliott said, “Grab him and put his hand up on the bench I'm going to cut his fingers off". In the meantime, the complainant was subjected to numerous punches although he was unable to specifically attribute them to any particular offender given he was attempting to protect his head from the ongoing assault. In response to Elliott's statement Cowan and Elder dragged the complainant to the kitchen and held his hand out on the kitchen bench. Elliott could be heard turning the angle grinder on and off although it was never actually used on the complainant.

9. The complainant managed to escape from the house, making it to the rear exit, although one of the offenders was holding the complainant by his hair. He was then pushed by the offenders Elder and Cowan over the handrailing falling approximately 1.5 m to the pavement below where he was punched and kicked by all three offenders.

10. The complainant again managed to get away, jumping a fence and running to a nearby house. However, his pleas for help from the occupants were ignored and the three offenders continued to assault the complainant in the front yard of the premises, captured by neighbouring CCTV cameras. The CCTV depicts Elliott approaching the complainant on a veranda at the entry to this house before pushing him over the railing. Elliott uses his right hand to variously grab the complainant by the throat, punch him to the head, before pushing him over the railing to a concrete path below, assisted by Elder. Cowan is waiting at the path below, angle grinder in hand.

11. Elliott then grabbed the complainant by the hair, dragged him across the yard, kicked him to the head, stood on his throat/head area, stomped on his head and sat on his chest whilst he repeatedly punched him to the head. At one point the complainant managed to stand before Elliott swung him to the ground whilst he held onto his hair only. In the meantime, the angle grinder had been handed to Elder with Cowan at one stage entering the fray between Elliott and the complainant.

12. One of the offenders thereafter yelled “go and get the car" following which the complainant was dragged feet first towards the road by Elder whilst Elliott continued to hold his hair. Once at the gutter one of the offenders demanded that the offender put his mouth over the gutter. It is apparent Cowan left to retrieve the vehicle which arrived a short time later. One of the offenders said, “put him in the boot, take him out bush". Elliott further manhandled the complainant at the car, at times assisted by Elder.

13. The complainant ultimately managed to escape.

14. Police were called and attended where the complainant was located although the offenders had fled. Seven photographs, admitted on the sentence hearing, were taken of the complainant's injuries including a bald spot where his hair had been pulled out.

15. The claimant subsequently attended Shoalhaven Hospital where he was treated for a moderately swollen right forearm and wrist without any further obvious injury.

Victim impact statement

16. A victim impact statement of Simon Horsely dated 3 December 2024 documents the significant impact arising from the incident. Unsurprisingly, Mr Horsely observes that he has physically and psychologically deteriorated significantly since the assault. He suffers from symptoms of post-traumatic stress disorder including loss of confidence, nightmares and avoidance of any circumstances which remind him of the assault. He has twice attempted suicide and experiences significant trust issues. He was denied the opportunity of victim’s compensation.

Criminal history

17. The offender has a significant criminal history commencing at the age of 14 with offences of attempted break and enter, entering closed lands and violent disorder. There is further offending as a juvenile including property related offences and offences of violence. The offending continued as an adult including driving and drug related offences as well as offences relating to property theft.

18. More recently, the offender has committed offences of assault and contravene restriction in apprehended violence order as well as entering a building or land with intent to commit an indictable offence. There were further offences of possess prohibited weapon without permit and custody of a knife in a public place. It was the last of these offences for which the offender had been released on parole in July 2022, being a matter of only three months prior to the commission of the subject offence.

19. The offender's parole was revoked effective from the date of his arrest for the subject offence in circumstances where the breach of parole report noted that the new offences were an escalation in his violent offending behaviour. The report also noted the offender's unwillingness to address illicit drug use, and his response to supervision by community corrections was less than ideal.

20. Since the offender's return to custody the records reveal that the offender has been charged with various infractions including failing to comply with corrective centre routine and possess prohibited goods.

Subjective material

Cheryl Cowan – mother

21. Ms Cowan confirmed that the offender was the youngest of four children with two older brothers and an older sister. The offender resided with his mother until the age of 21. Whilst two of the offender’s siblings were doing well, the offender and his oldest brother both had issues with drugs and alcohol throughout their adulthood. However, Ms Cowan stated that her children had “a good childhood". Whilst their father drank alcohol, he generally kept it out of the house as much as possible.

22. She was unsure as to why the offender and his older brother ended up so “differently" to his other siblings. Ms Cowan observed that the offender was exhibiting behavioural issues from his mid-high school years, and she suspected that he was using drugs at a relatively young age. He was socialising with the wrong crowd and, following his premature cessation of formal schooling, was becomingly increasingly absent from the home. However, there appeared to be some change following the birth of his two sons in his early 20s. This coincided with securing some employment, although within several years he was again on a downward spiral and returned to the use of heavy drugs coinciding with the relationship breakdown.

23. Some years later the offender’s father died in circumstances where a decision was made to stop resuscitation by his older brother. The offender was not present and only heard of these facts after the event which significantly impacted the offender's relationship with his older brother. This is further explored in the psychologist’s report.

24. Since the offender’s more recent return to custody he had been in regular contact with his mother although since his transfer to another correctional facility this has occurred less often. Ms Cowan has observed a noticeable change in the offender since his return to custody and he has expressed the desire to remain abstinent from illicit substances and to reconnect with his family, including his children. She felt that the offender now has a different attitude which is more positive.

Coral Booth

25. Ms Booth is employed as a field officer in the criminal law practice of the Aboriginal Legal Service. She attests to initial contact with the offender in September 2023 and, in accordance with the offender’s instructions, sent referrals for the offender’s eligibility for various residential rehabilitation services. The offender was deemed not suitable for most of the rehabilitation centres save for Freeman House in Armidale pending bed availability.

26. Ms Booth observed that the offender had remained dedicated to obtaining assistance from a residential rehabilitation support service and was frequently contacting the ALS for updates in this respect. The offender demonstrated a “consistent, clear and unwavering desire" to obtain residential rehabilitation support upon his release.

Dr Nikita Hostland – referral

27. The referral from the South Coast Medical Service documented previous diagnoses of bipolar, psychosis and depression in the context of multi-substance abuse. It noted that since his release on parole, he had continued to use and was otherwise reporting emotional lability and disrupted sleep.

Dr Clara Fritchley – psychologist

28. The offender provided a family developmental history generally consistent with the affidavit of his mother. He described his early life as “okay” with good relationships with his older brother and sister, although there were relational difficulties with his oldest brother throughout his childhood. He described a good relationship with his mother who was always there for them.

29. The relationship with his father was more distant as he was often absent or emotionally disengaged. Whilst he was exposed to some arguing between his parents, he denied at anytime being exposed to ongoing family violence save on the “few occasions" there may been physical fighting between his parents. However, he specifically denied being exposed to physical, emotional or sexual violence during his early childhood. He had a large extended family network and had a strong connection to his community and culture.

30. The offender described the circumstances of his father's passing which had occurred approximately 15 years prior to the assessment (2010 and aged about 27). His father had suffered a heart attack and died following instructions to stop resuscitation from his oldest brother. However, the offender did not arrive at the hospital until after his father’s death and he described intense anger towards his brother given these circumstances. He claimed that this anger consumed him, and he began to threaten and behave in an aggressive way towards him. Since being remanded in custody his relationship with his family members had improved.

31. He was unaware of any history of mental health difficulties although his oldest brother had struggled with drug dependency.

32. The offender described having some difficulties engaging in academic work in his early high school years, although he excelled in sports. He left school at the age of 14 when incarcerated following the commission of criminal offences. This was in the context of beginning to “hang around with the wrong people" and getting caught up in antisocial activities.

33. He found initial incarceration in juvenile justice particularly difficult and stated that he was sexually assaulted during this time. He first began using alcohol and cannabis at the age of 14, having been introduced to these substances by his friends. His drug use escalated to the point of smoking cannabis and using ecstasy and methamphetamine regularly. Whilst there was a pause in his drug use at the time of the birth of his children and stable employment during his early 20s, he returned to drug use following the death of his grandmother and father. He claimed to resort to drug use as a way to cope, to “black it all out" and “not feel." His drug use further deteriorated with daily use of crystal methamphetamine. He also used ecstasy and MDMA. During this period of increased drug use he spent many years homeless and living on the streets.

34. He accepted that his offending in his early teenage years was as result of being “caught up with the wrong people".

35. The offender claimed that prior to the offending he had been smoking crystal methamphetamine heavily and drinking alcohol, having been awake for a period of close to 7 days. He was heavily intoxicated. The offender stated that he had been at the home of a friend when advised of the whereabouts of the complainant who had reportedly been in conflict with one of the offender’s "peers”. He thereafter went with these “peers" to the place where the victim was present. Due to his heavy intoxication he claimed that his memory was “very hazy" and indeed his memory was different to what was outlined in the fact sheet and the CCTV footage.

36. The psychologist noted that the offender expressed shame and remorse for his role in the offending, saying “I wish I didn't do it". He had reflected on his behaviour and “all the bad consequences" that had resulted and was feeling “bad" about what had occurred.

37. The offender claimed that he been exposed to multiple traumatic events, including the deaths of people close to him, witnessing people close to overdose or physical violence, although he was reluctant to provide details. He claimed to be constantly hypervigilant, being chronically on edge and on guard, ready to react, which he attributed to living on the streets and his periods of incarceration. He also described significant levels of anxiety, developing into panic attacks, which he experienced during his most recent period of incarceration.

38. The offender also described ongoing chronic symptoms of low mood as well as intense feelings of worthlessness and not being loved or cared for. He claimed to feel rejected and abandoned by his family throughout his life and experienced intense distress and grief around the deaths of those close to him. He previously experienced suicidal ideations. The psychologist was satisfied that some of these symptoms were because of a drug induced psychosis. The offender described significant difficulties with emotional regulation although he felt more stable in the custodial environment. He had been prescribed various medication for his mental health symptoms since the age of 17 including Zyprexa, olanzapine and sertraline.

39. The offender expressed intense anxiety and fear about his release from prison. Whilst he wanted to continue to the build on changes made in custody, he was unsure as to how he would cope in the community without the structures of the custodial framework. The psychologist noted the opinion of Dr Gerald Chew (January 2023) following an assessment of the offender's fitness to stand trial. Dr Chew had identified a Cluster B personality in the context of alleged developmental adversity and childhood sexual abuse as well as substance abuse.

40. On psychometric testing the offender was found to be in the extremely severe range for all three negative emotional states of depression, anxiety and stress. The offender's cognitive capacity was generally scored in the low average range of verbal functioning. In formulating a final opinion, the psychologist observed that the offender had a long history of mental health difficulties, drug dependencies and “social and economic disadvantage". He underwent a traumatic experience being sexually abused whilst incarcerated in his teenage years and was subsequently impacted by family deaths, particularly that of his father.

41. The offender suffered severe mental health difficulties, relevantly post traumatic stress disorder, generalised anxiety disorder with panic and major depressive disorder. The previous diagnosis of Cluster B personality trait was noted and the offender had severe impairments in his capacity to regulate emotion, resulting in his resort to the use of illicit substances.

42. It was noted that the offender had been using crystal methamphetamine and alcohol in the days prior to the incident. She considered that the offender’s mental health was poor, suffering from amphetamine use disorder alongside his otherwise underlying mental disorders. Further, at the time the offending, he was likely suffering some symptoms of post-traumatic stress disorder, generalised anxiety disorder with panic attacks and major depressive disorder which underpinned the severe difficulties regulating his emotional states. It was considered his offending was “strongly linked to social disadvantage [and] housing instability".

Crown submissions

43. The Crown contended, by reference to relevant authorities, that the circumstances of the attempt constituted a matter “of particular seriousness" warranting a significant term of imprisonment. The relevant features included a prolonged assault at the hands of the three offenders, the threatened use of an angle grinder and the fact that all three offenders were actively engaged in the events constituting the attempt.

43. It was contended that the relevant elements of the underlying offence would have been complete but for the complainant being finally successful in fleeing from his assailants. It was contended, given the respective contributions of each of the offenders, that they would be treated equally when considering the objective seriousness of the offending. Given terms of section 25D(2)(c) of the Crime (Sentencing Procedure) Act 1999 (CSPA), a discount of 5% would be applied by reason of the guilty plea in relation to the sentence that would otherwise be imposed.

44. It was observed that the offender Elliott (as with Cowan) had histories of violent misconduct which had the potential of placing greater weight on specific deterrence. The offender Elliott (as was Cowan) was on conditional liberty although Cowan’s was more serious, being on parole at the time. Further, Elliott and Cowan had a history of institutional misconduct during incarceration. It was noted that the offender Elliott had been in custody since December 2022 and accordingly his sentence was entitled to be backdated.

45. In oral submissions, the Crown contended that in assessing the objective gravity of the offending it was accepted that the period during which the attempt offence was committed was relatively short, being a period of approximately seven minutes. However, the Crown contended given that the offence was one of attempt the focus for the purpose of the objective seriousness should be on a relatively significant period involving a prolonged assault which involved some characteristics of detention. The offence was near complete but for the complainant's resistance in being placed in the car. This was in the context of the stated intention being to take the complainant out bush. It was contended that this was a serious example of the attempt offence.

Offender’s submissions

47. In assessing the objective seriousness of the offence, the court would have regard to the period and circumstances of the detention as well as the person being detained and its purpose. It was noted, however, that this was a case of an attempt to take which occurred over approximately seven minutes.

48. It was conceded that the threat of violence and the presence of a weapon were aggravating factors. Consideration would be given to the particular conduct of each of the participants in the joint criminal enterprise. It was contended that the period over which the offending occurred was relatively brief. Whilst the weapon was present it was not used. The actual bodily harm was at the lower end. The purpose of the detention was to obtain money from the complainant who attended the premises to purchase drugs.

49. A detailed analysis was presented as to the offender’s role with the ultimate submission that his culpability was low compared to the co-offender Elliott. Aggravating factors that the offence was committed whilst on conditional liberty, involved threats as to the use of a weapon and actual violence were conceded.

50. The offender’s statements to the psychologist of remorse would be viewed in the context of his intellectual capacity. However, those statements, coupled with the offender’s plea, would be accepted as demonstrative of genuine remorse.

51. It was submitted that the background of the offender recounted in the psychologist’s report would be characterised as deprived such to engage the principles in Bugmy v The Queen (2013) 249 CLR 571. Whilst it was conceded that the offender’s family life was generally “prosocial", his exposure to abuse at the age of 14 during incarceration, and his subsequent drug use, established a level of deprivation.

52. The offender’s drug addiction was a relevant subjective circumstance, particularly where this occurred at a young age. This was particularly in the context of homelessness, mental health and other associated trauma because of his sexual abuse and subsequent death of his father. Reference was made to the principles relating to mental health, with the ultimate submission, supported by the opinion of the psychologist, was that it was a contributing factor to the commission of the offence.

53. The court would find special circumstances have been established by reference to the potential for institutionalisation. The offender would benefit from a longer period than usual under supervision to stabilise him in the community whilst under the guidance and supervision of parole.

54. In oral submissions Counsel withdrew the concession that the use of the weapon and use of violence were aggravating factors. It was contended that there was little to distinguish the respective roles of the offender and Cowan, whilst emphasising Elliott's role was more significant. It was conceded that Elder’s criminal history was less significant than that of his co-offenders in the context of the parity principle.

Consideration

55. In assessing the objective seriousness of an attempt offence, it is appropriate to consider “that the offence was not completed; chance of its success; seriousness of the attempt; whether the attempt was sophisticated or naïve; the competence of the attempt and all other surrounding circumstances”: R v Schofield [2003] NSWCCA 3 at [139] citing R v Taouk (1992) 65 A Crim R 387 at [390].

56. The offence of kidnapping was close to have been completed; it required no more than securing the victim in the boot of the vehicle, which was clearly their intention, given the earlier statement of one of the offenders to “go and get the car" and the later statement to the effect that the victim was to be put in the boot to be taken “out bush". The detention had reasonable prospects of success given there were three co-offenders and the vehicle was readily available. For these reasons the attempt was particularly serious.

57. Whilst not necessarily sophisticated, it did involve considerable physical effort by each of the offenders. It must be acknowledged that the indictable offence averred, being intimidation, carries a maximum penalty of five years imprisonment, representing the lowest maximum penalty capable of satisfying the definition of a serious indictable offence: s 4 of the Crimes Act 1900.

58. The specially aggravating circumstance, occasioning of actual bodily harm immediately before and at the time of the commission of the offence, is particularly serious. The victim was set upon by four men (including the three offenders). Numerous punches were thrown coupled with threats of the use of an angle grinder which was present during the assault. The assault continued in the neighbouring property despite the complainant successfully escaping from the house.

59. The further assault inflicted upon the victim is depicted in the CCTV evidence. The gratuitous violence demonstrated during this period is particularly disturbing, involving the complainant being repeatedly assaulted on a veranda before falling on his back to the ground below. He is then further pursued through the yard of the adjoining property where the vicious assault continues, including the victim being again falling off a veranda, being dragged by his hair along the ground under his full body weight, having his head stomped, repeatedly punched before being dragged by his feet to the vehicle. Through this entire period the angle grinder remained ever present in the possession of one or other of the offenders.

60. The fear, terror and utter desperation of the complainant is amply demonstrated when, whilst being dragged towards the street, in the knowledge it was the offenders’ intentions to place him in the boot and taken “out bush", he unsuccessfully attempts to grab hold of the boundary gate/fence of the adjoining property.

61. The victim's injuries are depicted in the seven photographs taken shortly after the incident which involved abrasions to the face, hand, knee and leg. They also depict the clump of hair ripped from the victim's scalp.

62. In all the circumstances, I am satisfied that the offending reflects a particularly serious example of the contemplated offence of attempt to take/detain in company with intent to commit series indictable offence specially aggravated by the occasioning of actual bodily harm before and at the time of the attempt.

63. Although each of the offenders are criminally culpable for the offence, it is appropriate in certain circumstances to consider the respective roles of the offenders in the offending, whilst always mindful of the limits in undertaking such an analysis given the very nature of a joint criminal enterprise: R v JW (2010) 77 NSWLR 7 at [166]; [213].

64. All three offenders were equally involved in the initial assault within the house. Whilst it was Elliott who directed the two co-offenders to secure the victim’s hand on the bench to cut off the victim's fingers with the angle grinder, the co-offenders were the ones responsible for physically restraining the victim and holding his hand on the kitchen bench whilst Elliott was turning the angle grinder on and off. I am satisfied that each of the offenders equally contributed to this aspect of the offending.

65. However, in the continuation of the offending in the neighbouring property, Elliott further assaults the victim on the balcony before throwing him over. Elliott is the primary participant in the further assault including dragging the offender by the hair, sitting on the offender and repeatedly punching him to the face, kicking him, standing on his neck/head, further swinging him to the ground by his hair before dragging him along the ground with his hair. Cowan further assaults the victim whilst Elder tended to stand by. However, it must be acknowledged that Cowan initially has possession of the angle grinder and at one point stands over the victim whilst holding it. Elder later holds the angle grinder although not in any threatening manner. Elder is the one to drag the victim by his feet towards the road, assisted by Elliott following the arrival of the vehicle Elliott continues to attempt to restrain the victim. Elder and Elliott are thereafter involved in the further attempt to force the victim into the vehicle when it returns.

66. The offender’s involvement in the offending committed in the neighbouring property, depicted on the CCTV, was less than Elliott given that offender’s significant engagement in assaulting the complainant. The offender was involved in a minor way in the assault prior to falling over the balcony. He was intermittently involved in the continuing assault before retrieving the vehicle. I am satisfied that once the offending moved to the adjoining property Cowan and Elder, whilst having different roles at various times, had similar levels of involvement. Whilst Cowan was responsible for retrieving the vehicle, Elder was primarily responsible for dragging the complainant towards the vehicle and was involved, with Elliott, in the attempts to have the victim forced into the vehicle.

67. I am satisfied that the offence was not part of an organised criminal activity.

68. The offender has a very extensive criminal history commencing at the age of 14.

69. The principle of proportionality requires that a sentence should not exceed what is proportionate to the gravity of the crime having regard to the objective circumstances.  Prior convictions are pertinent only in relation to where, within the boundaries set by the objective circumstances, a sentence should lie. This proposition can be seen to be reflected in references in the High Court decision of Veen v The Queen (No 2) [1988) 164 CLR 465 in such concepts as “attitude of disobedience to the law” and to the increased weight to be given to retribution, deterrence (relevantly personal deterrence) and “the protection of society”.

70. The offender’s record self-evidently disentitles him to leniency. Whilst not a discrete aggravating factor, I find that the offender’s prior criminal record demonstrates an attitude of disobedience to the law, increasing the weight to be given to retribution, personal deterrence (which means imposing a sentence that will deter the offender from further offending) and protection of society. However, I firmly borne in mind the principles I have now outlined including in particular the proportionality principle.

71. A statutory aggravating factor is that the offender was on conditional liberty at the time of the offending, having been released on parole four months prior to the offence for which he is to be sentenced. The offender’s expressions of remorse, contained in the psychologist’s report, are somewhat qualified with a statement that he wished he had not committed the offence. This is open to several interpretations including general regret, given the personal consequences for the offender. This in the context of the offender also referring to “all the bad consequences" and feeling “bad about what occurred”. Counsel for the offender contended that these statements must be considered in the context of the offender’s emotional dysregulation and limited intellectual capacity. Whilst I accept these conditions may impact on the offender's capacity to articulate his feelings, I do not understand this to be of such significance that the offender is incapable of acknowledging the seriousness of his actions and the significant harm occasioned to the victim.

72. The offender is entitled to a discount of 5% on the sentence that would otherwise be imposed: s 25D(2)(c) of the Crime (Sentencing Procedure) Act 1999. I accept the guilty plea reflects some willingness to facilitate the course of justice in that it has resulted in a useful saving in time and expense in conducting a trial and has avoided the victim having to give evidence.

73. An aggravating feature is that the offender was on conditional liberty at the time, having been released on parole several months prior to the commission of the offence.

74. I have had regard to the victim impact statement, noting that unsurprisingly, it has had a significant impact on the victim, particularly on his psychological well-being.

75. The offender contends that given the history contained in psychologist’s report the court would be satisfied that the offender suffered from a deprived upbringing so as to engage the principles set out in Bugmy v The Queen (2013) 240 CLR 571. The High Court in Bugmy referred to experiences of “growing up in environment surrounded by alcohol abuse and violence” [43], “profound childhood deprivation” [44] and a “childhood exposure to extreme violence and alcohol abuse” [44].

76. The references in the psychologist’s report to “social and economic disadvantage", and further, hardship and disadvantage, could only relate to the period from the age of 14 when it appears the offender commenced using drugs and engaged in antisocial activity. Similarly, references to social disadvantage and housing instability could only relate to the period in his later teenage years. Whilst acknowledging the impact of the circumstances of his father’s passing, this occurred when the offender was in his twenties by which time he had already engaged in significant criminal activity.

77. The psychologist’s opinion that difficulties in emotional regulation were strongly linked to “early childhood trauma and poor attachment relationships" is not reflective of the offender’s early childhood experience. Whilst there is reference to his father being distant and absent, it is the evidence of the offender’s mother, supported by the offender’s own history to the psychologist, that the offender experienced a “good childhood" who felt cared and supported for by his mother.

78. There is no evidence that the offender was raised in a home environment of the type discussed in Bugmy. I do not accept the offender’s submission that the Bugmy principles are engaged.

79. However, this is not to detract from the fact that the offender suffered from a Cluster B personality, as well as emotional dysregulation. In addition, I accept that the offender suffered sexual abuse whilst incarcerated as a juvenile which had the consequence of the offender suffering post-traumatic traumatic stress disorder. I am satisfied that these conditions, together with the offender interacting with antisocial groups, led to the offender’s increasing use of prohibited substance and his inevitable decline into criminal activity. I accept that this had the consequence of the offender experiencing the housing instability and subsequent social disadvantage identified in the psychologist’s report. I further accept that his father’s passing lead to a further decline in the offender’s drug use and engagement in criminal activity.

80. I am satisfied that these underlying disorders, identified in the psychologist’s report, were operating at the time of the offending such that the offender’s moral culpability is reduced with the consequence of reduced weight being afforded to punishment and deterrence: DPP (CTH) v De La Rosa (2010) 79 NSWLR 1; Muldrock v R (2000) 244 CLR 120; DC v R [2023] NSWCCA 82 [74-76].

81. However, this is not to say that general and specific deterrence and denunciation do not continue to have some role to play in determining an appropriate sentence. Violence such as that perpetrated on the victim in broad daylight in a residential area, to be witnessed by members of the public, would be seriously confronting and needs to be denounced in the strongest terms.

82. I accept that whilst the offender being under the influence of illicit substances at the time of the offending is not a mitigating factor (s 21A(5AA) of the CSPA), the offender’s early and continuing drug addiction does have its genesis in his underlying disorders as well as his financial and social deprivation commencing in his teenage years: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335.

83. Whilst the offender’s criminal history, the circumstances of his offending and subsequent infractions whilst incarcerated do not bode well for his prospects of rehabilitation, the evidence of the offender’s mother and of Coral Booth supports the offender’s realisation and determination to take positive steps towards his own rehabilitation. Further, the evidence of Coral Booth is consistent with the offender being more determined to engage in residential rehabilitation. I accept that the offender’s prospects of rehabilitation are not altogether hopeless and there is some optimism given his attitude since this offending and his incarceration.

84. Whilst it is accepted that co-offenders sentenced for a joint criminal enterprise are equally culpable for the offence for which they are to be sentenced, consideration of objective and subjective factors may result in different sentences being imposed. This includes, in some circumstances, consideration in the roles or culpability of the co-offenders: JW [166]; [213]. Additionally different sentences may be imposed on co-offenders in a joint criminal enterprise following consideration of subjective matters such as age, background, previous criminal history and general character of the offender: Lowe v The Queen (1984) 154 CLR 606 at [609] per Gibbs CJ.

85. The principle of parity is premised upon the concept of equal justice, requiring that “like should be treated alike" whilst accepting that if there are differences as between co-offenders “due allowance should be made for them": Lowe v The Queen (1984) 154 CLR 606 at [617] to [618]; Postiglione v The Queen (1997) 189 CLR 295 at [301].

86. I have found that whilst each of the offenders are criminally culpable for the offence for which they are to be sentenced, I am satisfied that Elliott's role was more significant once it moved to the adjoining property, whereas Cowan and Elder had differing, but similar levels of involvement.

87. The three offenders entered pleas of guilty at the same time and I have accepted that the pleas were reflective of a willingness to facilitate the course of justice. The offences were committed by Elliott and Cowan whilst the subject of conditional liberty, whereas this was not the position with Elder. Cowan's conditional liberty was more significant, being on parole whereas Elliott was the subject of a community-based order. Whilst Cowan and Elliott have previous convictions for offences of violence, Cowan's history is more significant/extensive. Elliott's criminal history is significantly less and there are no previous offences of violence. Bugmy factors are present in the subjective cases of Elliott and Elder although absent in Cowan. Each of the offender’s moral culpability is reduced having found their mental health contributing to the commission of the offence, reducing the weight to be afforded to punishment and deterrence. I have found that Elder’s prospects of rehabilitation are more positive, whereas less so with Elliott and Cowan. Whilst the three offenders have each expressed remorse for the offending, Cowan's statements of remorse are more qualified. The finding of special circumstances has been made with respect to each of the offenders.

55. I am satisfied that the s. 5 threshold has been crossed and that no sentence other than imprisonment is appropriate.

56. I make a finding of special circumstances such that there ought to be an adjustment of the statutory ratio than on parole. Such a finding is justified given the risk of institutionalisation, the opportunity for the offender to address the mental health issues identified in the report of Dr Fritchley which it is hoped would further support the offender’s rehabilitation. Further, it will enable the offender to engage in residential rehabilitation at the earliest opportunity.

57. The offender was arrested for the offence for which he is to be sentenced on 20 December 2022 and has remained in custody since that date. However, at the date of his arrest the offender's parole was revoked for the previous offences and served the balance of his sentence until 11 March 2023, being a period of approximately two months three weeks. The offender was then sentenced on 31 May 2024 in the Local Court for offences of a custody of a knife and possessing a prohibited weapon for a fixed term of 12 months backdated to 18 January 2023 concluding on 17 January 2024.

58. In determining the sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ. (R v Brown [2023] at [90])

59. The Crown noted in submissions that the latest date upon which the sentence should start is 18 January 2024 although it would be open to the court to make this sentence partly concurrent partly consecutive with the local Court sentence applying the principle of totality. On behalf of the offender, it was submitted that the Court would backdate the sentence reflecting the period from revocation of parole until the balance of the sentence on 11 March 2023 as wholly concurrent with the present offence. Further, it was contended that as the offences for which the offender was sentenced to 12 months imprisonment arose from his arrest for the offence for which he is to be sentenced, the Court would consider some degree of concurrency between that sentence and the sentence imposed for the present offence. In determining the overall effective term of imprisonment, I have had regard to the relevant principles of totality.

60. I have taken into account that the offender's parole was revoked entirely as a consequence of the offence for which the offender is to be sentenced. I have also taken into consideration the fact that the subsequent fixed term sentence of 12 months was for entirely separate and distinct offences from the matter for which the offender is to be sentenced, although they did arise from his arrest for this offence. I have also taken into account when the offences were committed, and the sentence that was imposed.

61. It is appropriate for this sentence to be backdated to account for the time spent in custody for these offences alone being 18 January 2024 until 28 March 2025 being a total of 436 days. The offender’s sentence in the Local Court for unrelated offences reflected a degree of concurrency with the balance of his parole period for the earlier offences (the sentence was backdated to commence 18 January 2023 with the balance of the parole period not expiring until 11 March 2023). I propose to further backdate the sentence to reflect some concurrency with the time served for the balance of parole for the previous offences and the subsequent 12-month fixed term. In the circumstances, I propose to backdate the sentence for a further period of 150 days commencing 21 August 2023.

62. In determining the non-parole period, I have taken into account the offender's total time in custody commencing 20 December 2022, applying relevant principles as to totality.

63. In my view an appropriate sentence is 5 years imprisonment from which is to be deducted 5% for utilitarian value of guilty plea resulting in a sentence of 4 years 9 months.

Orders

97. I make the following orders:

1. The offender is convicted of the offence.

2. The offender is sentenced to a term of imprisonment of 4 years 9 months, commencing 21 August 2023 and expiring on 20 May 2028.

3. I impose a non-parole period of 3 years, expiring 20 August 2026. The earliest date the offender is eligible for release is 20 August 2026.

4. With respect to the offences on the 166 certificate:

1. With respect to the offence of common assault, the charge is withdrawn and dismissed.

2. With respect to the offence of drive whilst disqualified on the s 166 certificate the offender is convicted and no further penalty is imposed other than the offender is disqualified from holding or obtaining a driver’s license for period of 12 months commencing today 28 March 2025.

Decision last updated: 31 March 2025