R v Leota - [2020] NSWDC 244

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v LEOTA [2020] NSWDC 244
Hearing dates: 15 May 2020
Date of orders: 29 May 2020
Decision date: 29 May 2020
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Aggregate sentence – see paragraphs [64]-[68]

Catchwords:
CRIME – sentencing - specially aggravated kidnapping – co-accused - parity – Bugmy factors – effect of COVID-19 on custody – form 1
CRIME – sentencing – possess unauthorised firearm – imitation pistol
Legislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Firearms Act, 1996
Cases Cited: The Attorney General’s Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146.
R v Patrick Pengelly [2020] NSWDC 112
Khanwaiz v R [2012] NSWCCA 168
Taitoko v R [2020] NSWCCA 43
Laspina v R [2016] NSWCCA 181
R v Smith and Campbell [2019] NSWCCA 1
Bugmy v The Queen [2013] HCA 37
Green v The Queen, Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v The Queen (1984) 12 A Crim r 408
Postiglione v The Queen (1997) 94 A Crim R 397
R v Despotovski [2020] NSWDC 110
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Sentence
Parties: Regina
Joshua LEOTA
Representation:
Counsel:
Mr S Howell (for the offender)
Solicitors:
Ms V Morgan (Trial Advocate for the DPP)

File Number(s): 2018/354217, 2019/112776
Publication restriction: None

SENTENCE

The offender pleaded guilty before the Local Court on 30 October 2019 and was committed for sentence in respect of one charge of Specially Aggravated Take and Detain for Advantage, contrary to s 86(3) of the Crimes Act, 1900 namely:

“That (he) (on or about 8 November 2018) at Tolland in the State of New South Wales did without consent detain Dale Tapper with the intention of committing a serious indicatable offence, (namely) larceny the said Joshua Leota occasioned actual bodily harm while being detained while the said Joshua Leota was in the company of Patrick Pengelly”.

For ease of expression I will refer to that charge within these reasons as the kidnapping charge.
It is regrettable that a little more care is not taken with the averments in Court Attendance Notices, noting that they are essentially part of the initiating process in the District Court on a committal for sentence.
The offender continued the plea of guilty at the sentence hearing at the Wagga Wagga District Court on 15 May 2020 and accordingly he is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
In addition the offender appears for sentence in respect of a charge contrary to s 7(1) of the Firearms Act, 1996 namely:

“That (he) on 5 October 2018 at Mount Austin in the State of New South Wales, did possess a pistol, namely an imitation self-loading Beretta Model 92FS pistol bearing serial number C7862Z, not being authorised to do so by a licence or permit.”

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 Leota

Details

AGLC: R v Leota [2020] NSWDC 244
Case: [2020] NSWDC 244
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the case of R v Leota, the defendant was convicted on various criminal charges, including specially aggravated kidnapping and possession of an unauthorised firearm. The case was heard in the relevant court, where the primary focus was on determining the appropriate sentence for the defendant's crimes. The defendant, who was one of two co-accused, had been found guilty of particularly severe criminal activities, which necessitated a careful consideration of the relevant legal principles and factors.

The court was tasked with resolving several key legal issues. Foremost among these was the need to establish an appropriate aggregate sentence that would account for the particularly egregious nature of the crimes, particularly the specially aggravated kidnapping. The court also had to consider the principles of parity, ensuring that the sentences of co-accused individuals were comparable, and the Bugmy factors, which pertain to the circumstances surrounding the offence and the offender. Additionally, the court needed to assess the impact of COVID-19 on the defendant's potential custodial sentence and take into account the defendant's prior criminal history and other mitigating factors.

After thoroughly examining the evidence and arguments presented, the court determined that the defendant's actions warranted a severe penalty. The court meticulously balanced the aggravating and mitigating factors, leading to the conclusion that the defendant's crimes were of such a serious nature that a significant custodial term was necessary. The court also considered the impact of COVID-19 on the potential length of the sentence, ensuring that public health concerns were appropriately integrated into the sentencing process. Ultimately, the court imposed an aggregate sentence that reflected the gravity of the offences and the need for deterrence and retribution.

The court issued detailed orders regarding the aggregate sentence, which are outlined in paragraphs [64] to [68] of the judgment.

Orders

Orders of the court

Aggregate sentence – see paragraphs [64]-[68]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v LEOTA [2020] NSWDC 244
Hearing dates:	15 May 2020
Date of orders:	29 May 2020
Decision date:	29 May 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Aggregate sentence – see paragraphs [64]-[68]
Catchwords:	CRIME – sentencing - specially aggravated kidnapping – co-accused - parity – Bugmy factors – effect of COVID-19 on custody – form 1 CRIME – sentencing – possess unauthorised firearm – imitation pistol
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Firearms Act, 1996
Cases Cited:	The Attorney General’s Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146. R v Patrick Pengelly [2020] NSWDC 112 Khanwaiz v R [2012] NSWCCA 168 Taitoko v R [2020] NSWCCA 43 Laspina v R [2016] NSWCCA 181 R v Smith and Campbell [2019] NSWCCA 1 Bugmy v The Queen [2013] HCA 37 Green v The Queen, Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Lowe v The Queen (1984) 12 A Crim r 408 Postiglione v The Queen (1997) 94 A Crim R 397 R v Despotovski [2020] NSWDC 110 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category:	Sentence
Parties:	Regina Joshua LEOTA
Representation:	Counsel: Mr S Howell (for the offender) Solicitors: Ms V Morgan (Trial Advocate for the DPP)
File Number(s):	2018/354217, 2019/112776
Publication restriction:	None