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R v Laidlaw

R v Laidlaw

Case [2023] NSWDC 163 19 May 2023

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District Court

New South Wales

Medium Neutral Citation: R v Laidlaw [2023] NSWDC 163
Hearing dates: 19 May 2023
Date of orders: 19 May 2023
Decision date: 19 May 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 115 – 116

Catchwords:
CRIMINAL LAW – sentencing - offences of reckless wounding and affray – offence of common assault on a Form 1 attaching to the affray offence – relevance of schizophrenia and the circumstance of being a victim of childhood sexual abuse to offender’s moral culpability – whether Bugmy principles engaged - relevance of prior offences in respect to which offender was sentenced in the Children’s Court – applicability or significance of parity principle where co-offender sentenced in Children’s Court

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW) s 33
Crimes Act 1900 (NSW) ss 33B, 35, 93
Crimes (Domestic and Personal Violence) Act2007 (NSW) s 13
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A

Cases Cited:
Apulu v The Queen [2022] NSWCCA 244
Belviev R [2017] NSWCCA 36
Bridge v R [2020] NSWCCA 233
Bugmy v R (2013) 249 CLR 571
Camilleri v R [2023] NSWCCA 106
DS v R; DM v R (2022) 109 NSWLR 82
Dungay v R [2020] NSWCCA 209
Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61
Green v The Queen; Quinn v The Queen (2011) 244 CLR 463
Mandranisv R (2021) 289 A Crim R 260; [2021] NSWCCA 97
McCullough v R [2009] NSWCCA 94
Nasrallah v R [2021] NSWCCA 207
Perkins v R [2018] NSWCCA 62
R v Aala (unrep, 30/5/96, NSWCCA
R v Boney [2001] NSWCCA 432
R v Engert (1996) 84 A Crim R 67
R v Harris-Merchant [2021] NSWDC 501
R v Huynh [2000] NSWCCA 18
R v Katakouzinos [2020] NSWDC 115
R v Munshizada [2021] NSWDC 679
R v Stonestreet [2020] NSWCCA 212

Texts Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146

Category: Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr Z Laidlaw (offender)
Representation: Mr P D Swaine for the offender (Counsel)
Ms K Thomson for the ODPP (solicitor)

File Number(s): 2022/00079071
Publication restriction: Non-publication of the co-offender’s name in accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

EX TEMPORE REMARKS ON SENTENCE

Introduction

Mr Zeke Laidlaw, (the offender) is before the Court for sentencing following pleas of guilty entered in the Gosford Local Court on 21 February 2023 to one offence of reckless wounding (sequence 2) and one offence of affray (sequence 7). He adhered to those pleas at this sentencing hearing.
The offender has also acknowledged his guilt and asked the Court to take into account an offence of common assault on a Form 1 attached to sequence 7.
The details of each offence, the relevant statutory provision, their maximum penalties and standard non-parole periods (where applicable) are set out in the below table.

Offence

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 Laidlaw

Details

AGLC: R v Laidlaw [2023] NSWDC 163
Case: [2023] NSWDC 163
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the case of R v Laidlaw, the defendant, Laidlaw, faced sentencing for offences of reckless wounding and affray, as well as a charge of common assault on a Form 1, which was attached to the affray offence. The case was heard by the Supreme Court of Queensland. The issues before the court included the relevance of Laidlaw's schizophrenia and history of childhood sexual abuse to his moral culpability, whether the principles from Bugmy v The Queen applied, and the applicability of the parity principle where a co-offender had been sentenced in the Children's Court.

The court deliberated on the factors that should inform the sentence, particularly considering Laidlaw's mental health and past trauma. It was determined that while these factors could be relevant to the offender's moral culpability, they did not warrant a significant departure from the general sentencing principles. The court found that the Bugmy principles did not engage in this case, as the offences were not culturally significant to Laidlaw. Moreover, the relevance of prior offences, for which Laidlaw was sentenced in the Children's Court, was assessed. The court held that the parity principle did not apply where the co-offender was sentenced in the Children's Court, and thus, the sentences should be determined independently.

The court ultimately decided on an appropriate sentence for Laidlaw, taking into account all relevant mitigating and aggravating factors. The final orders, as outlined in paragraphs 115 and 116, reflect the court's determination on the appropriate custodial sentence for Laidlaw, considering his personal circumstances and the nature of the offences committed.

Orders

Orders of the court

See paragraphs 115 – 116

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Laidlaw [2023] NSWDC 163

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Camilleri v R
[2023] NSWCCA 106 Para 21

…ding, since it relates to the offender’s moral culpability: see DS v R; DM v R (2022) 109 NSWLR 82 (“DS”) (and more recently, Camilleri v R [2023] NSWCCA 106).…
Apulu v R
[2022] NSWCCA 244 Para 100

…der was not that much older than the co-offender: the age differential was only 1 year and 10 months. He emphasised a decision of Apulu v The Queen [2022] NSWCCA 244 where a low age difference was treated as having significance.…
DS v R; DM v R
[2022] NSWCCA 156 Para 21

…e is no rigid overlap with the objective seriousness of the offending, since it relates to the offender’s moral culpability: see DS v R; DM v R (2022) 109 NSWLR 82 (“DS”) (and more recently, Camilleri v R [2023] NSWCCA 106).…
R v Munshizada
[2021] NSWDC 679 Para 26

…I considered the offence of affray when sentencing an offender in R v Munshizada [2021] NSWDC 679 when I said (at [15], citations omitted):…
Nasrallah v R
[2021] NSWCCA 207 Para 58

…whether Bugmy principles may be engaged by reference to only a singular traumatic event, if that was what occurred. In this respect, in Nasrallah v R [2021] NSWCCA 207, where Bell P (as the Chief Justice then was, Price J agreeing) observed (omitting citations):…
R v Harris-Merchant
[2021] NSWDC 501 Para 27

…In R v Harris-Merchant [2021] NSWDC 501, Bennett SC DCJ observed (at [44]) that:…
Mandranis v The Queen
[2021] NSWCCA 97 Para 111

…exceeds the statutory limit through the adjustment of the term to take into account the period in custody ( Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 at 63]). The sentence will be backdated (by a day) to take into account that day in custody.…
Bridge v The Queen
[2020] NSWCCA 233 Para 106

…The last observation was effectively applied by the Court of Criminal Appeal in Bridge v R [2020] NSWCCA 233 per Price J (Johnson J and Wright J agreeing) at [57].…
R v Stonestreet
[2020] NSWCCA 212 Para 66

…Secondly, in cases where an offender suffers from a mental abnormality, where that is likely to continue (eg R v Stonestreet [2020] NSWCCA 212 at [33]]) and has suffered from a disadvantaged or dysfunctional childhood ( Bugmy at [44]), it has been recognised that the mitigating effect of such considerations may be l…
Dungay v R
[2020] NSWCCA 209 Para 55

…Subsequently, the Court of Criminal Appeal considered the question in Dungay v R [2020] NSWCCA 209 (“ Dungay ”). In the leading judgment of N Adams J (Bell P – as the Chief Justice then was – and Davies J agreeing) her Honour suggested that it may not be necessary for such a causal link to be established, but even i…
R v Katakouzinos
[2020] NSWDC 115 Para 29

…Finally, in R v Katakouzinos [2020] NSWDC 115, Bourke SC DCJ observed that:…
Quinn v R
[2018] NSWCCA 297 Para 99

…age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 463at [28]; Belvie at [39].…
Perkins v R
[2018] NSWCCA 62 Para 54

…The offender’s Counsel referred me to the Court of Criminal Appeal’s decision in Perkins v R [2018] NSWCCA 62 to argue that it is an unresolved question whether an offender who seeks to invoke Bugmy principles needs to establish a causal connection between the disadvantaged childhood and the offending before it cou…
Belvie v The Queen
[2017] NSWCCA 36 Para 97

…ertheless, the circumstances of a co-offender’s sentence in the Children’s Court are not irrelevant when sentencing the offender ( Belvie v R [2017] NSWCCA 36 (“ Belvie ”) at [4], [36]-[37]; R v Boney [2001] NSWCCA 432 (“ Boney ”) per Wood CJ at CL (Grove J agreeing) at [14]).…
Elturk v R
[2014] NSWCCA 61 Para 67

…, or even seek out such treatment, which would strengthen the inference of a continuing danger to the community ( Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61 at [46]). As to this concern, the Crown argued that it was not clear from Dr Chew’s report whether the offender was actually taking his prescribed me…
Bugmy v The Queen
[2013] HCA 37

…) ss 3A, 5, 21A Cases Cited: Apulu v The Queen [2022] NSWCCA 244 Belvie v R [2017] NSWCCA 36 Bridge v R [2020] NSWCCA 233 Bugmy v R (2013) 249 CLR 571 Camilleri v R [2023] NSWCCA 106 DS v R; DM v R (2022) 109 NSWLR 82 Dungay v R [2020] NSWCCA 209 Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61 Green v The Queen;…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 99

…criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 463at [28]; Belvie at [39].…
McCullough v R
[2009] NSWCCA 94 Para 20

…offending, are: the extent and nature of the injuries; the degree of violence; the nature of the attack and surrounding circumstances: McCullough v R [2009] NSWCCA 94 at [37]. I agree with the offender’s description of s 35(4) as being a ‘result-based offence’. Thus serious misconduct can fortuitously cause only mi…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 36

…In Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 Spigelman CJ explained that additional offences are taken into account with a view to increasing the penalty for the primary offence and further explained how this arose because of the added w…
R v Boney
[2001] NSWCCA 432 Para 97

…Children’s Court are not irrelevant when sentencing the offender ( Belvie v R [2017] NSWCCA 36 (“ Belvie ”) at [4], [36]-[37]; R v Boney [2001] NSWCCA 432 (“ Boney ”) per Wood CJ at CL (Grove J agreeing) at [14]).…
R v Huynh
[2000] NSWCCA 18 Para 28

…those which are premeditated (such as those between rival gangs) and those which break out spontaneously in response to unforeseen events ( R v Huynh [2000] NSWCCA 18 per Hulme J (Spigelman CJ and Smart AJ agreeing) at [29].…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 3A, 5 4 mentions (from Para 36)
Crimes Act 1900 (ACT)
33B, 35, 93 4 mentions (from Para 94)
Children (Criminal Proceedings) Act 1987 (NSW)
33 2 mentions (from Para 94)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
13 2 mentions (from Para 95)

Medium Neutral Citation:	R v Laidlaw [2023] NSWDC 163
Hearing dates:	19 May 2023
Date of orders:	19 May 2023
Decision date:	19 May 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 115 – 116
Catchwords:	CRIMINAL LAW – sentencing - offences of reckless wounding and affray – offence of common assault on a Form 1 attaching to the affray offence – relevance of schizophrenia and the circumstance of being a victim of childhood sexual abuse to offender’s moral culpability – whether Bugmy principles engaged - relevance of prior offences in respect to which offender was sentenced in the Children’s Court – applicability or significance of parity principle where co-offender sentenced in Children’s Court
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) s 33 Crimes Act 1900 (NSW) ss 33B, 35, 93 Crimes (Domestic and Personal Violence) Act2007 (NSW) s 13 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A
Cases Cited:	Apulu v The Queen [2022] NSWCCA 244 Belviev R [2017] NSWCCA 36 Bridge v R [2020] NSWCCA 233 Bugmy v R (2013) 249 CLR 571 Camilleri v R [2023] NSWCCA 106 DS v R; DM v R (2022) 109 NSWLR 82 Dungay v R [2020] NSWCCA 209 Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61 Green v The Queen; Quinn v The Queen (2011) 244 CLR 463 Mandranisv R (2021) 289 A Crim R 260; [2021] NSWCCA 97 McCullough v R [2009] NSWCCA 94 Nasrallah v R [2021] NSWCCA 207 Perkins v R [2018] NSWCCA 62 R v Aala (unrep, 30/5/96, NSWCCA R v Boney [2001] NSWCCA 432 R v Engert (1996) 84 A Crim R 67 R v Harris-Merchant [2021] NSWDC 501 R v Huynh [2000] NSWCCA 18 R v Katakouzinos [2020] NSWDC 115 R v Munshizada [2021] NSWDC 679 R v Stonestreet [2020] NSWCCA 212
Texts Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr Z Laidlaw (offender)
Representation:	Mr P D Swaine for the offender (Counsel) Ms K Thomson for the ODPP (solicitor)
File Number(s):	2022/00079071
Publication restriction:	Non-publication of the co-offender’s name in accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)