R v Elliott

Case [2025] NSWDC 102


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(4)   With respect to the offence of common assault on the s 166 certificate, the charge is withdrawn and dismissed.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

  1. 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.

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

  2. 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.

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

  1. Exhibit C1: Notice of Committal

  2. Exhibit C2: Indictment

  3. Exhibit C3: Section 166 certificate

  4. Exhibit C4: Statement of agreed facts

  5. Exhibit C5: Criminal History

  6. Exhibit C6: Custodial History

  7. Exhibit C7: Victim Impact Statement

  8. Exhibit C8:…

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Details
AGLC
R v Elliott [2025] NSWDC 102
Case
[2025] NSWDC 102
Decision Date

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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