R v Elliott

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(4)   With respect to the offence of common assault on the s 166 certificate, the charge is withdrawn and dismissed.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

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: 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: USB containing three videos of offence.

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

1. Exhibit O1: Report of Julie Dombrowski, psychologist dated 21 February 2025

2. Exhibit O2: Letter from Geoff Boye, chaplain South Coast Correctional Centre

Agreed facts

6. The agreed facts are common to each of the offenders to be sentenced being the offender (Elliott), Joshua Cowan (Cowan) 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 a 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’s criminal history commences as a juvenile at the age of 14 with an offence of destroy or damage property. There are further offences as a juvenile including break and enter, possess housebreaking implements, resisting police and common assault. The record discloses further offences of violence including maliciously wound in 2007, common assault, stalk intimidate some years later and other drug-related offences. More recently there is further offending including common assault and contravene prohibition restriction in AVO, driving and drug related offences.

Subjective material

Report of Julie Dombrowski - psychologist

18. The offender provided a history of his parents separating at the age of three. He thereafter was raised with his mother, stepfather and siblings. His stepfather was physically abusive to all the members of the household and by the age of 12 he started running away from home to avoid this violence. The offender stated that at the age of 13 he was sexually abused by a schoolteacher and eventually ran away from home to avoid ongoing contact. At the age of 15 he commenced living with his biological father who was an alcoholic and regularly assaulted him and his stepmother.

19. The offender left school after year 8 and thereafter worked in various unskilled positions although, due to mental health difficulties, there were significant periods of unemployment. It is unsurprising in these circumstances that the offender almost exclusively socialised with anti-social peers (including his siblings) since early adolescence.

20. He commenced using alcohol and cannabis at the age of 13 and thereafter used cannabis on a long-term basis. He also at various times used methamphetamine and heroin for a brief period. Whilst he had suffered several physical injuries in his teenage years and early 20s, there were no ongoing physical disabilities arising from these injuries. However, at the age of 13 or 14 he was apparently diagnosed by a psychologist with depression. He has experienced various symptoms consistent with this condition and at the age of 14 made his first and only suicide attempt. The offender told the psychologist that he used substances to avoid thinking about the abuse to which he was subjected as a juvenile.

21. The offender stated that the offending occurred in circumstances where he was unemployed, living with antisocial peers, experiencing depression and using cannabis and methamphetamine daily. At the time of the offending, he apparently felt intoxicated from drug use and had not slept for several days. He allegedly attended a friend's home to collect an angle grinder. When he saw the victim he thought it was an opportune time to attempt to collect a debt on behalf of his brother who was imprisoned at the time. The offender expressed regret for the offending and wished to apologise to the victim.

22. Following psychometric testing Ms Dombrowski diagnosed the offender as suffering from post-traumatic stress disorder, depression/anxiety, and a Cluster B personality disorder with anti-social features. The psychologist observed that such individuals “tend to have a history of intense and unstable interpersonal relationships, marked reactivity of mood, chronic feelings of emptiness, inappropriate and intense anger, and engage in impulsive and/or self-harming behaviours". It was further observed: –

"The emotional intensity and instability of people with Cluster B personality disorder increases their risk of engaging in emotionally reactive behaviours and falling foul of the law. The subject offending (and much, if not all, of his past offending) functions from his personality disorder and his substance use. Antisocial familial/peer associations was also clearly a factor in his offending.”

Geoff Boye - chaplain

23. Geoff Boye is a chaplain at the correctional centre where he has had significant interactions with the offender. He described the offender as a positive and calming influence who engages in discussion and reflects on applying his faith to the challenges in his life. The offender had relayed to Mr Boye that he felt he was at a turning point and was looking forward to starting fresh in the community. He found the offender to be “open and honest” with real intentions of “wanting to bring out the best outcome for personal growth and relationships with others in the wider community".

Crown submissions

24. 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.

25. 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.

26. 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.

27. 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.

28. In oral submissions, Counsel for the Crown contended that the court would not accept, given Elliott's role, that he would be assessed below the mid-range. Indeed, it was open to the court to find that this was a serious example of the type of offending contemplated by this offence. While it was the Crown's primary submission that each were equally culpable, it was accepted, given the level of violence perpetrated by Elliott, that it was open to the court to find that he was more significantly involved. The court would also take note of the fact that at various times each of the offenders were in possession of the angle grinder. The court would not find that the offending was spontaneous. It was accepted that a finding of special circumstances was open with respect to each of the offenders as they all demonstrated disadvantaged upbringing to enliven the Bugmy principles.

29. In terms of parity, it was contended that Cowan was distinguishable from the two co-offenders in that there was a lack of remorse, and he had a significant criminal record. Further Cowan was on parole at the time the offences were committed whilst Elliott was on a lesser form of conditional liberty.

Offender’s submissions

30. The offender contended the only aggravating factor for the purposes of section 21A(2) of the CSPA is the offender was on conditional liberty at the time. However, the offender contended there were several mitigating factors including no substantial injury, emotional harm, loss or damage, the offences were not part of an organised criminal activity, a lack of sophistication and were spontaneous/opportunistic. It was further contended that the offender was unlikely to reoffend and that the risk of recidivism was reduced due to his age and abstinence from drug taking. Further, that the offender had good prospects of rehabilitation, with reference made to various aspects of the psychologist’s report. It was further contended that there was evidence of remorse, and the offender was entitled to the benefit of the guilty plea.

31. In addressing the purposes of sentencing contained in section 3A of the CSPA it was contended that given the contents the psychologist report, and the well-known authorities relating to an offender suffering from mental conditions, he was an inappropriate vehicle for general deterrence. Whilst it was acknowledged the offender had a previous record of violence, the more recent offending related more to minor drug and traffic matters. Accordingly, there was minimal risk to the community. The fact that the offender had spent a period in custody had the required “salutary effect" and a longer parole would support his rehabilitation.

32. It was submitted that the objective seriousness of the offender’s involvement of the offence was below the mid-range in circumstances where the attempt to commit the principal offence was incomplete. His moral culpability was at the lower-end of the scale due to prior underlying drug issues and background of deprivation. In considering issues of parity, it was conceded that each of the offenders played similar roles in the offending. Other relevant considerations in parity were identified although in the absence of knowledge as to the comparable factors of the co-offenders.

33. For reasons identified in the submissions, it was submitted that a finding of special circumstances would be made.

34. In oral submissions counsel for Elliott submitted that the court would find the offence demonstrated no sophistication or planning. It was accepted that Elliott's role demonstrated significant violence, and it was open to the court to find a greater role in that respect. Counsel reiterated the written submissions that it would be open to the court to find the offender had good prospects of rehabilitation.

Consideration

35. 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].

36. 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 the offenders’ 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.

37. 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.

38. 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.

39. 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.

35. 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 be taken “out bush", he unsuccessfully attempts to grab hold of the boundary gate/fence of the adjoining property.

36. 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.

37. 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 serious indictable offence specially aggravated by the occasioning of actual bodily harm before and at the time of the attempt.

38. 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].

39. 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 and place his 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.

40. However, in the continuation of the offending in the neighbouring property Elliott further assaults the victim on the balcony before for 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.

41. In all the circumstances, I am satisfied that Elliott assumes a more significant role in the commission of the offence once it moves to the adjoining property, whereas Cowan and Elder, whilst differing roles at various times, had similar levels of involvement. Cowan is responsible for retrieving the vehicle whilst Elder is primarily responsible for dragging the victim towards the vehicle and subsequently involved in the attempts to have the victim forced into the vehicle.

42. The offender has a not insignificant criminal history although the more recent offending is drug-related. Whilst there are relatively recent (2021) convictions of contravene prohibition restriction AVO and common assault, the offender’s convictions for offences of violence are generally historical.

43. 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”.

44. The offender’s criminal record, whilst not an aggravating factor, disentitles him to leniency. I find that the offender’s prior criminal record does increase the weight, albeit modestly, 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 have firmly borne in mind the principles I have outlined including in particular the proportionality principle.

45. The offender is entitled to a discount of 5% on the sentence that would otherwise be imposed: s 25D(2)(c) of the CSPA. I accept the guilty plea reflects some willingness to facilitate the course of justice in that it is has resulted in a useful saving in time and expense in conducting a trial and has avoided the victim having to give evidence. An aggravating feature is that the offender was on conditional liberty at the time, being the subject of a Community Corrections Order made in January 2022 which was due to expire in January 2023.

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

47. I do not accept the offender’s submission that a mitigating factor is that the injury, emotional harm, loss or damage caused by the offence was not substantial, however I am not satisfied it is a discrete aggravating factor. The photographs of the victim’s injuries, when considered in conjunction with his victim impact statement, demonstrates that the victim has suffered not insubstantial physical and psychological injuries.

48. I am satisfied that the offence was not part of an organised criminal activity. The offender submitted that there was no sophistication in the planning of the offences and that the acts were spontaneous and opportunistic. The offender relies upon his statements to Julie Dombrowski, psychologist that he simply happened to be attending his friend’s home to collect an angle grinder when he saw the victim and therefore took it upon himself to collect the debt on behalf of his brother.

49. The offender’s assertion that the circumstances were merely opportunistic, and the result of several coincidences is difficult to reconcile with the circumstances of the offending. In particular, the victim had only been at the house momentarily when three men, including the offender, armed with the angle grinder, set upon the victim.

50. Apart from the assertions of the offender to the psychologist on this issue there is no other evidence to support this contention. Given the only material upon which the offender relies is an untested statement provided to the psychologist the court is not prepared to find 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.

51. I am satisfied that the offender is remorseful for his offending given his statements to the psychologist.

52. I accept that the offender was exposed to physical abuse inflicted on him at the hands of his stepfather, and witnessed such abuse inflicted on his siblings and mother. I accept that this precipitated the offender running away from home in his early teenage years. I further accept that he moved in with his biological father and stepmother in his teenage years, and he was again exposed to an alcoholic father resulting in his and his stepmother's physical abuse. I further accept that the offender was the victim of sexual abuse at the hands of a schoolteacher in his early high school years.

53. It is unsurprising in these circumstances that the offender commenced using illicit substances at an early age leading to the ongoing use of drugs until the time of his arrest for the offence for which he is to be sentenced.

54. I am therefore 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 disorder with anti-social features identified in the psychologist’s report protection of the community remains a relevant factor in the instinctive synthesis process: Bugmy at [44].

55. I accept the opinion of Julie Dombrowski that the offender’s underlying personality disorder contributed to the commission of the offence 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].

56. However, this is not to say that the sentence imposed does not still demand some element of personal and general deterrence. 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.

57. Whilst the offender being drug affected at the time of commission of the offence is not a mitigating factor (s 21A(5AA) of the CSPA) I accept, consistent with the history provided to the psychologist, that 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.

58. It is apparent that since the offender’s detention, he has been actively engaged with the chaplaincy service in which, through his involvement, he has expressed a willingness to commence a fresh start in the community. Whilst the offender has engaged a number of misdemeanours whilst in custody, these are relatively historical (2023) by reference to the total time in custody. Undoubtedly the offender, through the psychological assessment process with Julie Dombrowski, is developing an appreciation of the likely connection between his childhood abuse, drug use and offending to the extent that he will seek to address these issues in custody and whilst in the community. Whilst the offender’s past history and the circumstances of the offending suggests an ongoing attitude of disobedience to the law, the process of psychological assessment and engagement with the chaplaincy services provides guarded optimism for his prospects of rehabilitation.

59. 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.

60. 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.

61. 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.

62. 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 limited 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. Elder'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.

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

64. I make a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period. This is on the basis of the offender's underlying mental health issues documented in the psychologist’s report. It is apparent, through the preparation of that report, that the offender is now likely to have some insight into his offending and should be given the benefit of a longer parole period to address the issues identified in that report. This should also enhance the offender’s prospects as to the success of rehabilitation, even though his prospects are somewhat guarded. The offender should also be given the opportunity of having the support of his partner of some years upon his release on parole.

65. The offender has been in custody since the date of his arrest on 23 December 2022, being a total of 827 days solely referable to the offence for which he is to be sentenced. Accordingly, the offender’s sentence is to be backdated for the time served.

66. 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

72. 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 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.

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Amendments

09 April 2025 - Removed duplicate cited case Lowe v The Queen (1984) 154 CLR 606

11 April 2025 - Orders added to coversheet.

Decision last updated: 11 April 2025