R v Leclair

[2019] NSWDC 152

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Leclair [2019] NSWDC 152
Hearing dates:	4 April 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Sentenced to a term of imprisonment of two years and three months with a non-parole period of six months.
Catchwords:	CRIMINAL LAW — sentencing — kidnapping occasioning actual bodily harm SENTENCING — Relevant factors on sentence — Delay — cross-border offence involving continuous course of conduct — previously sentenced in the ACT for offence arising out of that conduct
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Mill v The Queen (1988) 166 CLR 59
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Michael Aaron Leclair (Offender)
Representation:	Counsel: C Dobraszczyk (Crown) N Funnell (Offender)
File Number(s):	2018/00009559

SENTENCE

1. HIS HONOUR: The offender pleaded guilty to an indictment containing a single count which alleged that between 28 and 29 December 2013 at Captain’s Flat, whilst in the company of David Ashanfuo-yeboa, he detained Tobias Leatham without his consent and at the time of the detaining actual bodily harm was occasioned to Mr Leatham. That is an offence under s 86(3) of the Crimes Act 1900 and has a maximum penalty of 25 years imprisonment and there is no applicable standard non-parole period.

The facts of the offence

2. The facts are as follows, and there is an introduction to the facts which puts the matter in some context which I will return to.

3. The incident giving rise to the charge and a charge in the Australian Capital Territory involved initially a criminal investigation carried out by the ACT police, resulting in this offender and the co-offender being charged with what is described in the facts as forcible confinement and in the ACT Supreme Court was described as unlawful confinement. A plea of guilty was entered by this offender. There was a disputed facts hearing and the victim was called to give evidence in the disputed facts and ultimately this offender was sentenced by Justice Burns of the Supreme Court of the ACT on 25 May 2016 and I will return to those sentence proceedings in due course.

4. In terms of the actual conduct both in relation to the offence in the ACT and the offence to which the offender has pleaded guilty in this Court, the facts contain the following.

5. This offender and the co-offender attended the victim’s apartment in Franklin in the ACT on the night of 28 December 2013, pursuant to an agreement with the victim whereby he arranged for them to purchase 7 pounds of cannabis for $26,000 from a drug dealer known or referred to in the facts as “Big G”. The victim arranged for “Big G” to meet him around the corner from his apartment. “Big G” took the money from the victim but left without delivering any cannabis. This offender and the co-offender became angry with the victim, believing that he was part of a plan to steal the money.

6. This offender was armed with a knife when he went to the apartment at Franklin and he produced that knife and held it to the throat of the victim. The victim called for help at which time two of his friends came downstairs from the apartment and they were not armed. This offender forced the victim at knifepoint into a Ford Territory, placing him in the rear seat. He sat next to the victim. The co-offender drove the vehicle. The vehicle was then driven to Theodore.

7. Either on the journey or after the vehicle arrived at Theodore, one of the offenders arranged for what is referred to as support, which arrived in a Commodore or Falcon motor vehicle. During the journey from Franklin to Theodore, the offender made multiple threats to the victim, including threats to break his bones and then cut off his fingers.

8. At Theodore the victim escaped from the Ford Territory and was chased by this offender and the co-offender and by occupants of the other vehicle that had arrived. This offender’s dog apparently also chased the victim but it did not behave aggressively.

9. The victim was re-captured. It is unsure whether that was by this offender or the co-offender or by both of them or by the occupiers of the motor vehicle who had arrived apparently in support of this offender and the co-offender. One of the persons who recaptured the victim struck him with a baseball bat and he suffered some injuries. He was taken back to the Ford Territory and placed in the rear seat. This offender sat in the back seat with the victim and the co-offender drove the vehicle.

10. The victim was then conveyed in the vehicle from the ACT into New South Wales with the co-offender driving; along Lanyon Drive into Queanbeyan onto Captains Flat to a secluded bushland location, accessed only via a dirt road. There was only natural lighting in that area. The victim was pulled out of the motor vehicle by both this offender and the co-offender. They tied his hands behind his back; he was sat down next to a telegraph pole. This offender said to the co-offender, “What are you going to do to him because I’m going to do a lot worse to you.” The co-offender kicked the victim to the face. The victim was then hit by both offenders with a baseball bat numerous times to his body. He remembers being hit on the shoulder and then losing consciousness.

11. When he regained consciousness he was face down in the dirt. He observed the tail lights of the Ford Territory pulling away. His arms were still positioned behind his back however he was no longer bound tightly by the straps. He proceeded to walk in a general North direction along Captains Flat Road. On four to five occasions he lost consciousness and woke up and again was face down in the dirt. He managed to continue walking. He became dehydrated and began to search for water. About an hour later he came across a puddle of water. He filled a can with the puddle’s contents and drank it.

12. He continued to walk some distance until he came across a driveway entrance to a property. About 8am he entered the property and walked along the driveway towards the home and ultimately he was able to raise someone there. He fell to the ground and lost consciousness after asking for an ambulance.

13. Ambulance and police were notified. They arrived at the home shortly. He was conveyed to Canberra Hospital where he received medical treatment.

14. The medical evidence was that the victim suffered collapsed lungs, a laceration to the liver as result of blunt trauma, significant blood loss, scabbed lesions on his forehead, bruises on the upper aspect of his nose between his eyes, extensive bruising to the right arm, several linear abrasions on his right wrist, extensive bruising to the left arm, bruises and scabbed abrasions on his abdomen, bruising on his right shoulder, bruises on the right side of his rib cage, multiple scattered scab lesions on his back, bruises and abrasions on his right leg, bruising on his left leg.

15. The facts contain a paragraph which says, “Whilst actual bodily harm was occasioned to the victim in New South Wales, it cannot be determined to what extent the victim was injured in the ACT.”

16. On Thursday 2 November 2017 the New South Wales police met with this offender and the co-offender at Alexander Maconochie Correctional Centre in the ACT where they were serving the ACT sentences. The New South Wales offence was explained to this offender and he declined to participate in an interview. He was released to parole in the ACT on 8 October 2018 but he was immediately arrested that day and extradited to New South Wales where he has been bail refused since that time.

17. The victim, Mr Leatham bravely read in court two victim impact statements, one prepared for the ACT sentence proceedings and one for the these proceedings. Clearly the offender’s conduct has understandably had a significant effect upon the victim. He is unlikely to forget the terror of that experience I would have thought.

18. There is a particular factor in play in this sentence which gives rise to a complexity in the imposition of it. As the facts make clear, the offence that I am to sentence the offender for forms part of a continuous course of conduct of a somewhat similar kind that commenced in the ACT and traversed the border into New South Wales. This offender was charged, along with the co-offender, by way of an indictment on 1 October 2014 in the Supreme Court of the Australian Capital Territory with an offence of unlawful confinement which concerned the conduct that occurred in the ACT which, as I understand it, is described in the facts that are before me.

19. That indictment also contained a charge that the offender had trafficked in a trafficable quantity of cannabis between 28 December 2013 and 24 January 2014. The unlawful confinement offence in the ACT had a maximum penalty of ten years’ imprisonment while the drug offence had a maximum penalty also of ten years imprisonment along with a fine. The offender pleaded guilty to both charges after committal proceedings and in relation to this offender, there was a disputed facts hearing which I referred to earlier.

20. The offender was sentenced by Justice Burns in the ACT Supreme Court on 25 May 2016. In relation to the unlawful confinement offence his Honour imposed a sentence of three years and six months. On the trafficking drugs offence his Honour imposed a sentence to 12 months imprisonment. His Honour imposed a single non-parole period of 29 months; 2 years and 5 months.

21. After an appeal to the ACT Court of Appeal the sentences were confirmed, although their commencement dates were varied. The sentence for the unlawful confinement offence commenced on 9 May 2016, as did the non-parole period. The commencement date of the drug offence was 9 August 2019. I assume that at the time the ACT sentencing legislation permitted a single non-parole period to be set similar to the current Commonwealth sentencing regime.

22. As the agreed facts make clear, the offender was arrested and charged with the offence I am to sentence him for on the day he was released to parole in the ACT on 8 October 2018 and he has been bail refused ever since.

Sentencing

23. The fact that the offender was dealt with in the ACT for the conduct that occurred in the ACT and was not charged with the New South Wales offence until much later in my opinion gives rise to a need to consider the principles discussed by the High Court in Mill v The Queen (1988) 166 CLR 59, concerning the issue of totality and delay. I will return to those issues once I have reviewed the offender’s subjective case. I propose to make an assessment of the objective seriousness of the offence after I have considered the application of the totality principle.

The Offender’s Subjective Case

24. Turning then to the offender’s subjective case. The offender was born in 1986, so he is currently 32 years of age and was 27 as at the time of the offence. As at the time of the offence he had a criminal record in the Australian Capital Territory. His record commences when he was a juvenile, although he does not appear to have ever been held in juvenile detention. In terms of offences of violence, as an adult he received in 2014 a suspended sentence of eight months for an offence of assault occasioning actual bodily harm.

25. In 2009 he received a suspended sentence of two months’ imprisonment for driving whilst disqualified and in 2008 a similar sentence was imposed for an offence of dangerous driving. He also has on his record the two sentences he received in the ACT Supreme Court in 2016 which I referred to earlier.

26. His record does not entitle him to leniency here but I do not consider it is such as to amount to an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999.

27. The offender gave evidence before me. There was no significant challenge to his evidence and I considered he was an acceptable witness. His mother also gave evidence before me and she corroborated the offender’s evidence in terms of his background and his remorse.

28. The offender gave evidence that he never knew his father when he was young and that when he was a child his mother consumed alcohol to excess and was on occasions violent towards him. He recalled that when he was around four his mother, when striking him, broke a rolling pin by way of an example. He also gave evidence that a grandfather had interfered with him when he was very young. His mother confirmed that a formal complaint had been made to the police although no charges eventuated.

29. The offender gave evidence he left home when he was eight years of age and was in foster care from time to time. His mother gave evidence that he had been on occasions when young, placed into the care of the State. He left school in year 9 and obtained various jobs, ultimately working for some time in the IT industry.

30. He gave evidence that he met his father for the first time when he was about 20 or 21 years of age and up until that time he had not had difficulties with alcohol or prohibited drugs. Tragically, his father died in front of him and the offender said he was greatly affected by that and began drinking excessively. His evidence was that on the day of the offence he had been drinking. When he was first arrested he spent an initial period in custody and he said that when he came out of custody for the first time he stopped drinking and disassociated himself from some negative peers.

31. He had a long term partner and while their relationship has ceased, as I understand it, as a consequence of his incarceration, Ms Campbell remains supportive of the offender and was in court during the sentencing hearing.

32. He expressed remorse for his conduct towards the victim and his family and I am satisfied that the remorse expressed in court was genuine.

33. The offender gave evidence that since being sentenced in the ACT he has engaged in a violence intervention program for a period of nine months and engaged in the SMART drug and alcohol program as well as yoga classes.

34. His evidence was that when he was spoken to by the police in 2017 he sought some legal advice and was told not to worry about the matter. He said that he understood, and had an expectation, he would be released upon the expiry of his ACT non-parole period and would commence to live with his then partner Ms Campbell. He said that he thought he would be successful, when that didn’t happen, in a claim that the charge in New South Wales involved some form of double jeopardy. When his argument in that regard failed, as I understand, it his relationship with Ms Campbell came to an end.

35. There is the 2015 ACT Court Alcohol and Drug Assessment report before me, which is generally consistent with the offender’s evidence as to his prior drug and alcohol use and the evidence he gave about his background.

36. The offender gave evidence that he hoped upon his release that he would be able to develop his own spray-painting business. He said that he could no longer work in the IT industry because of his criminal record. His mother gave evidence that the offender seemed to have obtained some maturity in gaol and of where he can live and work upon his release.

37. There is also before me a certificate of completion for Health Survival Tips Program which the offender completed in November last year, being a custodial alcohol and drug rehabilitation program as I would understand it. I also have before me a letter dated 4 April 2019 from the chaplain at Goulburn Correctional Centre which indicates that the chaplain considers that the offender is committed and motivated to change his life in a positive way.

38. The evidence the offender gave, and that of his mother, establishes that he had an early life of considerable social disadvantage and I have had regard to the principles concerning the relevance of social disadvantage to sentencing as discussed in Bugmy v The Queen (2013) 249 CLR 571.

39. The plea of guilty here was late and I will allow a 10% discount for the utilitarian value of the plea. I note that the plea to the ACT offence was also entered after committal for trial. Despite the lateness of the plea of guilty here, I accept that the offender is genuinely remorseful for the offence. I accept his evidence in that regard. It seems the plea of guilty came late due to a legal argument advanced on the offender’s behalf to another judge about an issue of double jeopardy associated with the charge.

40. I consider he has reasonable prospects for rehabilitation. He impresses as someone who has recognised the serious criminality he involved himself in and is prepared to take steps to ensure he does not engage in such serious criminality again. I note that in the written submissions the Crown submitted that there were no aggravating factors here under s 21A of the Crimes (Sentencing Procedure) Act.

Delay and Totality

41. I said earlier that I would return to the issue of delay and totality before I address the objective seriousness of the offence. Given the circumstances here I consider that the principles discussed by the High Court in Mill v The Queen are applicable. In Mill the High Court considered that the approach of the New South Wales Court of Criminal Appeal in Todd was the appropriate approach where a person was to be sentenced in one state years for an offence of similar type and occurring at a similar time to an offence for which the offender had served a sentence. In particular the High Court approved the following comments by the then New South Wales Chief Justice in Todd:

“Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion and to the fact that sentencing for a stale crime, long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach. The passage of time between offence and sentence when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. At times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.”

42. The High Court in approving Todd also said:

“The long deferment of the trial or punishment of an offender with the consequent uncertainty as to what will happen to him raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a state boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.”

43. Their Honours considered that the proper approach is to ask what would be likely to have been the effective head sentence imposed if the applicant had committed, all three offences in that instance, of armed robbery, in one jurisdiction and had been sentenced at one time. I have approached the sentence here in accordance with the principles espoused in Mill. I note that s 47 of the Crimes (Sentencing Procedure) Act permits me to appropriately backdate the sentence I am to impose.

Objective Seriousness of the Offence

44. Turning then to the objective seriousness of the offence. The offence that I am to sentence the offender for is obviously a serious offence. It appears that the offence was relatively unplanned and committed in the context of a drug deal gone wrong. In terms of the period of detention within New South Wales, it is difficult to have any degree of certainty as to that period. It is likely to have been something like an hour or two rather than minutes. The level of violence applied to the victim was significant and a weapon, being a baseball bat, was used. The victim was left unconscious and was fortunate indeed to find his way to a property where he was able to obtain assistance.

44. He suffered considerable injuries, however I note paragraph 34 of the agreed facts, which I referred to earlier, states that whilst actual bodily harm was occasioned to the victim in New South Wales, it cannot be determined to what extent the victim was injured in New South Wales.

45. I consider that the offence lies just below a notional mid-range level of objective seriousness. I am satisfied on the evidence, as I say, the offender has reasonable prospects for rehabilitation. Prospects of rehabilitation will be enhanced and assisted if he has a longer period on parole than that provided by the statutory ratio. I also note that there will be some accumulation of this sentence upon the sentence he is still effectively serving from the ACT although I note the non-parole period has expired.

46. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Clearly general deterrence is always a significant factor to have regard to when imposing sentence for a serious kidnapping offence like the one here. Such conduct calls for a significant sentence to be imposed.

47. I have approached the sentence I am to impose by considering what the effective overall sentence would have been if the conduct in the ACT had occurred in New South Wales. This case is, it seems to me, a little different from that discussed in Mill. Because if all of the conduct had occurred in New South Wales it is highly likely to have simply been the same offence before me. The ACT offence was particularised as also occurring on 28 December 2013 and all of the conduct in the ACT and in New South Wales was in fact in effect a continuation of the one detaining offence.

48. Applying the principles in Mill, and the subjective matters I have discussed, if all of the conduct had occurred in New South Wales, I am of the opinion that an appropriate sentence would have been one of five years with a non-parole period of three years and three months. I note that when he was sentenced in the Supreme Court the term of the drug sentence was to commence after the expiry of the non-parole period that was set. In those circumstances it is difficult to see that the non-parole period was affected to any degree by the imposition of the sentence for the drug offence.

49. In coming to the sentence that I will impose, I have had regard to the notional overall sentence I consider would have been appropriate if all of the conduct had occurred in New South Wales. I have also considered the principles of delay as explained in Mill, applicable to the situation of this offender. It will be seen in a moment that there is a very substantial reduction in the ratio of the non-parole period to the total term in the sentence that I am about to impose. That is so that I can give effect to my view of the notional sentence that would have been imposed if all of the conduct had occurred in New South Wales.

50. Mr Leclair you are convicted of the offence to which you have pleaded guilty. You are sentenced to a term of imprisonment consisting of a non-parole period of six months and a balance of term of 21 months. That is a total sentence of two years and three months. The sentence commences on 9 February 2019 and expires on 8 May 2021. The non-parole period expires on 8 August 2019. As the sentence is less than three years you should be released to parole pursuant to a statutory parole order on 8 August 2019. Whether you are ultimately released that day remains a matter for the state parole authority who will no doubt take account of your behaviour in gaol.

Orders

52. The offender is convicted and sentenced to a term of imprisonment of 2 years, 3 months to commence on 9 February 2019 and expiring on 8 May 2021 with a non-parole period of 6 months. The offender is to be released to parole on 8 August 2019.

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Amendments

02 May 2019 - paragraph [24] - Date of birth changed.

Decision last updated: 02 May 2019