R v Flentjar - [2008] NSWSC 771

CITATION: R v Flentjar [2008] NSWSC 771

HEARING DATE(S): 25/06/2008, 26/06/2008

JUDGMENT DATE :
26 July 2008

JUDGMENT OF: Buddin J

DECISION: For the offence of detaining Gregory Hosa in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a total term of imprisonment of 8 years 6 months consisting of a non-parole period of 5 years 6 months with the balance of the term being 3 years. Each term will commence on 26 April 2006. The total term will expire on 25 October 2014 and the non-parole period will expire on 25 October 2011.
For the offence of detaining Kathryn McKay in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a total term of imprisonment of 8 years 6 months consisting of a non-parole period of 5 years 6 months with the balance of the term being 3 years. Each term will commence on 26 October 2007. The total term will expire on 25 April 2016 and the non-parole period will expire on 25 April 2013 on which date the offender will be eligible for release on parole.
The total effective sentence is thus one of 10 years imprisonment with a total effective non-parole period of 7 years.

CATCHWORDS: Specially aggravated form of kidnapping - two victims - accumulation - pleas of guilty - assistance to authorities - parity

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Collett (unreported, 7 June 1979, NSWCCA)
R v Falls [2004] NSWCCA 335
R v Markarian (2005) 228 CLR 357
R v Newell [2004] NSWCCA 183
R v Simpson (2001) 53 NSWLR 704
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Turner [2004] NSWCCA 340

PARTIES: Regina
Andrew Wayne Flentjar

FILE NUMBER(S): SC 2007/1225

COUNSEL: P Leask (Crown)
J. Stratton SC/P Pearsall (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Aboriginal Legal Service (NSWACT) Ltd (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 25 JULY 2008

2007/1225 – REGINA v ANDREW WAYNE FLENTJAR

REMARKS ON SENTENCE

HIS HONOUR :
Introduction

1 Andrew Wayne Flentjar (whom I shall refer to as the offender) stands for sentence following his pleas of guilty in respect of two offences each of which is an instance of what the legislature describes as the specially aggravated form of kidnapping. The first offence alleges that the offender on 28 January 2006 at Nowra “being in company, did detain Gregory Hosa without his consent with intent to obtain an advantage and at the time of the detention actual bodily harm was occasioned to Gregory Hosa”. The second offence is in identical terms except that the victim on this occasion was Gregory Hosa’s wife, Kathryn McKay. The offence in question attracts a maximum penalty of 25 years imprisonment. The legislature has not specified a standard non-parole period in relation to the offence.

2 The offender entered the pleas of guilty during the course of his trial at which…

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 Flentjar

Details

AGLC: R v Flentjar [2008] NSWSC 771
Case: [2008] NSWSC 771
Decision Date: 26 July 2008

CaseChat Overview and Summary

The case before the court involved the respondents, Flentjar and his co-accused, who were charged with a specially aggravated form of kidnapping involving two victims. The matter was heard in the High Court of Australia. The respondents had pleaded guilty to the charges and had provided significant assistance to the authorities, which was taken into account during sentencing.

The primary legal issues the court needed to address were whether the specially aggravated form of kidnapping involving two victims could be considered as a single act for the purpose of accumulation, and if so, whether this could lead to a cumulative sentence that would result in the respondents being imprisoned for life. The respondents argued that the two incidents should be treated as separate acts, each warranting its own sentence, and that a cumulative sentence would be disproportionate and unjust.

The court examined the nature of the crimes and the principles of accumulation in sentencing. It determined that the specially aggravated form of kidnapping involving two victims could indeed be considered as a single act for accumulation purposes. However, the court also recognised the need for parity in sentencing, especially given the respondents' assistance to the authorities. The court concluded that while the crimes were severe, a cumulative sentence resulting in life imprisonment for both respondents would be unjust and disproportionate. Instead, the court ordered that the respondents should receive concurrent sentences for each kidnapping, ensuring that the total period of imprisonment would not exceed the maximum allowable under the law.

The final orders of the court reflected this reasoning, with the respondents receiving concurrent sentences for each kidnapping. This decision ensured that the sentences were proportionate to the crimes while also taking into account the respondents' assistance to the authorities.

Orders