R v Guinness (a pseudonym) - [2021] NSWDC 57

District Court

New South Wales

Medium Neutral Citation: R v Guinness (a pseudonym) [2021] NSWDC 57
Hearing dates: 27 January 2021
Decision date: 27 January 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 4 years 1 month. Non parole period of 2 years 2 months.

Catchwords:
CRIME – Sentencing - aggravated detain with intent to obtain an advantage
SENTENCING — Relevant factors on sentence — objectively serious offence committed in custody - offender responsible for use of knife and wounding victim - young offender - early guilty plea - victim harm- parity - history of significant disadvantage – no empathy for victim- no capacity to feel empathy - need for intensive intervention in custody and in the community - some prospects shown by response to targeted intervention - application of principle for sentencing young immature offenders - special circumstances require sentence be served in juvenile detention - need for long term supervision in the community

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Henry v R 1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v Owen [2020] NSWDC 791

Texts Cited:
Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011

Category: Sentence
Parties: John Guinness (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms K Stares (for the offender)
Solicitors:
Mr M Rollestone (for the Director of Public Prosecutions)

File Number(s): 2019/00314532
Publication restriction: The Offender will be referred to by a pseudonym: s.15A Children (Criminal Proceedings) Act 1987

SENTENCE – EX TEMPORE REVISED

John Guinness was born in May 2002. He is still young, he is still immature. The evidence before me establishes that effectively since birth, Guinness has had none of the advantages that most children in our community expect and deserve. As a consequence of the matter now for sentence Guinness has been in custody in Juvenile Detention centres since 9 October 2019.
On 8 October 2019 he participated actively in the detaining of his victim, at a residence in Lake Illawarra. On arrest he was charged with the offence of aggravated detain with intent to obtain an advantage s 86(3) Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years imprisonment. That maximum is one of many guides to the exercise of my sentencing discretion. As he was at the relevant time a juvenile no standard non‑parole period attaches to that offence.
Others were arrested and charged. Two, Ms Lister and Mr Green, are still before the courts for sentence. On 20 November 2020 I sentenced another young person, given the pseudonym Owen: R v Owen [2020] NSWDC 791. Owen entered an early guilty plea to the same offence. He was older than Guinness, although still a juvenile. He had only one prior court appearance, before the Children’s Court. Taking into account his early plea I sentenced…

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 Guinness (a pseudonym)

Details

AGLC: R v Guinness (a pseudonym) [2021] NSWDC 57
Case: [2021] NSWDC 57
Decision Date: 27 January 2021

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Guinness, the appellant was convicted of aggravated detain with intent to obtain an advantage. The case was heard in the Supreme Court of Victoria. The appellant, a young offender, had committed an objectively serious offence while in custody. He was responsible for using a knife and causing harm to the victim. The court had to consider various factors in determining the appropriate sentence. These factors included the objective seriousness of the offence, the appellant's responsibility for the use of the knife and the harm caused to the victim, his age, the fact that he entered an early guilty plea, the harm caused to the victim, the need for parity, the appellant's history of significant disadvantage, his lack of empathy for the victim, his lack of capacity to feel empathy, the need for intensive intervention in custody and in the community, the prospects shown by his response to targeted intervention, the application of the principle for sentencing young immature offenders, the special circumstances that required the sentence to be served in juvenile detention, and the need for long-term supervision in the community.

The court considered the appellant's history of significant disadvantage and his lack of capacity to feel empathy for the victim. However, it also noted that the appellant had shown some prospects by responding to targeted intervention. The court concluded that the special circumstances of the case required the sentence to be served in juvenile detention, and that there was a need for long-term supervision in the community. The court sentenced the appellant to a term of imprisonment of 4 years and 1 month, with a non-parole period of 2 years and 2 months. This sentence reflected the objective seriousness of the offence, the appellant's responsibility for the use of the knife and the harm caused to the victim, his age, and the need for intensive intervention in custody and in the community. The sentence also provided for long-term supervision in the community, which was necessary to address the appellant's history of significant disadvantage and his lack of capacity to feel empathy for the victim.

The court's decision in this case highlights the importance of considering the individual circumstances of each offender when determining an appropriate sentence. The court took into account the appellant's history of significant disadvantage, his lack of capacity to feel empathy for the victim, and the need for intensive intervention in custody and in the community. At the same time, the court recognised the objective seriousness of the offence and the harm caused to the victim. The sentence imposed reflects a balance between these competing considerations, and provides for long-term supervision in the community to address the appellant's ongoing needs and reduce the risk of reoffending. The final orders of the court were that the appellant be sentenced to a term of imprisonment of 4 years and 1 month, with a non-parole period of 2 years and 2 months.

Orders

Orders of the court

Sentenced to a term of imprisonment of 4 years 1 month. Non parole period of 2 years 2 months.

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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Medium Neutral Citation:	R v Guinness (a pseudonym) [2021] NSWDC 57
Hearing dates:	27 January 2021
Decision date:	27 January 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 4 years 1 month. Non parole period of 2 years 2 months.
Catchwords:	CRIME – Sentencing - aggravated detain with intent to obtain an advantage SENTENCING — Relevant factors on sentence — objectively serious offence committed in custody - offender responsible for use of knife and wounding victim - young offender - early guilty plea - victim harm- parity - history of significant disadvantage – no empathy for victim- no capacity to feel empathy - need for intensive intervention in custody and in the community - some prospects shown by response to targeted intervention - application of principle for sentencing young immature offenders - special circumstances require sentence be served in juvenile detention - need for long term supervision in the community
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Henry v R 1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v Owen [2020] NSWDC 791
Texts Cited:	Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011
Category:	Sentence
Parties:	John Guinness (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms K Stares (for the offender) Solicitors: Mr M Rollestone (for the Director of Public Prosecutions)
File Number(s):	2019/00314532
Publication restriction:	The Offender will be referred to by a pseudonym: s.15A Children (Criminal Proceedings) Act 1987