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R v Elliott

R v Elliott

Case [2025] NSWDC 102 28 March 2025

Attempt

Aggravating Factors

Sentencing

Joint Criminal Enterprise

Mental Health

Special Circumstances

Non-Parole Period

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Elliott [2025] NSWDC 102
Hearing dates: 5 March 2025
Date of orders: 28 March 2025
Decision date: 28 March 2025
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender is convicted of the offence.
(2)   The offender is sentenced to a term of imprisonment of 4 years 9 months commencing 23 December 2022 to expire on 22 September 2027.
(3)   I impose a non-parole period of 3 years 2 months, to expire on 22 February 2026. The earliest possible date for release is 22 February 2026.
(4)   With respect to the offence of common assault on the s 166 certificate, the charge is withdrawn and dismissed.

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 conditional liberty
SENTENCING — Subjective considerations on sentence — Bugmy factors – Mental health - Special circumstances

Legislation Cited:
Crimes Act1900 (NSW)
Crime (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmy v The Queen (2012) 249 CLR 571
DC v R [2023] NSWCCA 82
DPP (CTH) v De La Rosa (2010) 79 NSWLR 1
Hoskins v R [2021] NSWCCA 169
Imbornone v R [2017] NSWCCA 144
Kennedy v R [2010] NSWCCA 260
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 Qutami (2001) 127 A Crim R 369
R v Schofield [2003] NSWCCA 3
R v Taouk (1992) 65 A Crim R 387
Veen v The Queen (No 2) (1988) 164 CLR 465

Category: Sentence
Parties: Crown, Joshua James Elliott
Representation:
Crown: C Triscari
Defence: J Klarica

File Number(s): 2022/00387897
Publication restriction: Nil

JUDGMENT

Overview

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

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

The offender adhered to his guilty plea on the sentence hearing.
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.
Admitted on behalf of the Crown was the following:

Exhibit C1: Notice of Committal

Exhibit C2: Indictment

Exhibit C3: Section 166 certificate

Exhibit C4: Statement of agreed facts

Exhibit C5: Criminal History

Exhibit C6: Custodial History

Exhibit C7: Victim Impact Statement

Exhibit C8:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Elliott

Details

AGLC: R v Elliott [2025] NSWDC 102
Case: [2025] NSWDC 102
Decision Date: 28 March 2025

CaseChat Overview and Summary

The case of R v Elliott arose from a series of violent incidents that involved the offender attempting to detain a person for an advantage. The dispute centred on whether the offence constituted a specially aggravated crime and the appropriate sentence considering various factors such as the offender's mental health, the circumstances of the offence, and the principle of parity in sentencing with co-offenders. The court was required to determine whether the offence was specially aggravated due to the use of violence and the circumstances in which it was committed. Additionally, the court needed to assess the impact of the offender's mental health and the fact that the offence was committed while on conditional liberty on the appropriate sentence.

The court found that the offence was indeed specially aggravated due to the use of violence and the circumstances, which included the offender's intent to detain for an advantage. In considering the sentence, the court took into account the Bugmy factors, which include the offender's mental health, the principle of parity in sentencing, and the fact that the offence was committed while on conditional liberty. The court emphasised the importance of ensuring parity in sentencing with co-offenders, as well as the need to balance the seriousness of the offence with the offender's personal circumstances. The court also considered the offender's mental health, which was found to be a significant mitigating factor. The court imposed a sentence of 4 years and 9 months, with a non-parole period of 3 years and 2 months.

The final orders of the court included a conviction for the specially aggravated offence and a sentence of imprisonment for 4 years and 9 months, with a non-parole period of 3 years and 2 months. The charge of common assault was withdrawn and dismissed. The court's decision balanced the seriousness of the offence with the offender's personal circumstances, including mental health and the fact that the offence was committed while on conditional liberty. The sentence also ensured parity with co-offenders involved in the same criminal enterprise.

Orders

Orders of the court

(1) The offender is convicted of the offence.

(2) The offender is sentenced to a term of imprisonment of 4 years 9 months commencing 23 December 2022 to expire on 22 September 2027.

(3) I impose a non-parole period of 3 years 2 months, to expire on 22 February 2026. The earliest possible date for release is 22 February 2026.

(4) With respect to the offence of common assault on the s 166 certificate, the charge is withdrawn and dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Elliott [2025] NSWDC 102

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 14 of 14 shown

DC v R
[2023] NSWCCA 82 Para 55

…y with less weight to be 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].…
Hoskins v R
[2021] NSWCCA 169 Para 54

…prived upbringing such as to reduce his moral culpability: Bugmy v The Queen (2012) 249 CLR 571; Kennedy v R [2010] NSWCCA 260 at [53]; Hoskins v R [2021] NSWCCA 169 at [51] – [57]. That said, given the characteristics of the Cluster B personality disorder with anti-social features identified in the psychologist’s r…
R v JW
[2017] NSWSC 1843 Para 38

…rs 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].…
Imbornone v R
[2017] NSWCCA 144 Para 50

…nd on the balance of probabilities that the offending was merely opportunistic and lacked planning: R v Qutami (2001) 127 A Crim R 369; Imbornone v R [2017] NSWCCA 144.…
Leigh Brown v The Queen
[2014] NSWCCA 335 Para 57

…ddiction commenced in his youth and in response to the abuse to which he was exposed in his childhood: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335.…
Bugmy v The Queen
[2013] HCA 37 Para 54

…refore satisfied that "full weight" is to be given to the offender’s deprived upbringing such as to reduce his moral culpability: Bugmy v The Queen (2012) 249 CLR 571; Kennedy v R [2010] NSWCCA 260 at [53]; Hoskins v R [2021] NSWCCA 169 at [51] – [57]. That said, given the characteristics of the Cluster B personality…
Muldrock v The Queen
[2011] HCA 39 Para 55

…offender’s moral culpability with less weight to be 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].…
Kennedy v R
[2010] NSWCCA 260 Para 54

…ht" is to be given to the offender’s deprived upbringing such as to reduce his moral culpability: Bugmy v The Queen (2012) 249 CLR 571; Kennedy v R [2010] NSWCCA 260 at [53]; Hoskins v R [2021] NSWCCA 169 at [51] – [57]. That said, given the characteristics of the Cluster B personality disorder with anti-social feat…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 55

…e such as to further reduce the offender’s moral culpability with less weight to be 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].…
R v Schofield
[2003] NSWCCA 3 Para 35

…e 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].…
R v Henry
[1999] NSWCCA 111 Para 57

…at the offender’s underlying drug addiction commenced in his youth and in response to the abuse to which he was exposed in his childhood: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335.…
Postiglione v the Queen
[1997] HCA 26 Para 60

…ences 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.…
Veen v The Queen (No 2)
[1988] HCA 14

…Medium Neutral Citation: R v Elliott [2025] NSWDC 102 Hearing dates: 5 March 2025 Date of orders: 28 March 2025 Decision date: 28 March 2025 Jurisdiction: Criminal Before: Fitzsimmons SC DCJ Decision: (1) The offender is convicted of the offence. (2) The offender is sentenced to a term of imprisonme…
Lowe v R
[1984] HCA 46 Para 59

…lowing 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.…

Legislation cited in this decision · 2

Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 25)
Crimes Act 1900 (ACT)
1 mention (from Para 37)

Medium Neutral Citation:	R v Elliott [2025] NSWDC 102
Hearing dates:	5 March 2025
Date of orders:	28 March 2025
Decision date:	28 March 2025
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender is convicted of the offence. (2) The offender is sentenced to a term of imprisonment of 4 years 9 months commencing 23 December 2022 to expire on 22 September 2027. (3) I impose a non-parole period of 3 years 2 months, to expire on 22 February 2026. The earliest possible date for release is 22 February 2026. (4) With respect to the offence of common assault on the s 166 certificate, the charge is withdrawn and dismissed.
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 conditional liberty SENTENCING — Subjective considerations on sentence — Bugmy factors – Mental health - Special circumstances
Legislation Cited:	Crimes Act1900 (NSW) Crime (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen (2012) 249 CLR 571 DC v R [2023] NSWCCA 82 DPP (CTH) v De La Rosa (2010) 79 NSWLR 1 Hoskins v R [2021] NSWCCA 169 Imbornone v R [2017] NSWCCA 144 Kennedy v R [2010] NSWCCA 260 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 Qutami (2001) 127 A Crim R 369 R v Schofield [2003] NSWCCA 3 R v Taouk (1992) 65 A Crim R 387 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Crown, Joshua James Elliott
Representation:	Crown: C Triscari Defence: J Klarica
File Number(s):	2022/00387897
Publication restriction:	Nil