R v Levvell

[2021] NSWDC 518

District Court

New South Wales

Medium Neutral Citation:

R v Levvell [2021] NSWDC 518

Hearing dates:

20 August 2021, 23 September 2021

Decision date:

23 September 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Three year aggregate sentence to be served by way of an intensive correctional order. For orders see [94]

Catchwords:

CRIME - Detain for advantage in company - assault

SENTENCE - Relevant factors on sentence - early guilty plea - multiple offenders - role of offender – genuine grievance against victim - period of detention – serious threats - victim escaped – victim caught - victim assaulted - first offender – deprived background - moral culpability – significant efforts toward rehabilitation - strong subjective case - is full time custodial sentence the only option - impact of COVID -19 - need for retribution - general deterrence - victim vindication

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017(NSW)

Criminal Procedure Act 1986

Cases Cited:

Abel v R [2020] NSWCCA 82

Barbaro v The Queen (2014) 253 CLR 58

Barlow v R [2008] NSWCCA 96

Blackman and Walters [2001] NSWCCA 121

BP v R [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571: [2013] HCA 37

Chenhallv R [2021] VSCA 175

Clarke-Jeffries v R [2019] NSWCCA 56

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cross v R [2019] NSWCCA 280

Davis v R [2006] NSWCCA 392

EF v R [2015] NSWCCA 36

Engert v R (1995) 84 A Crim R 67

Hili v The Queen (2010) 242 CLR 520

Hoskins v R [2016] NSWCCA 157

Hoskins v R [2021] NSWCCA 169

Howard v R [2019] NSWCCA 109

Kennedy v The Queen [2010] NSWCCA 260

KT v R [2008] NSWCCA 51

Markarian v The Queen (2005) 228 CLR 357

Mbele v R [2021] NSWCCA 182

Mourtada v R [2021] NSWCCA 211

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38

Nasrallah v R [2021] NSWCCA 207

Pullen v R [2018] NSWCCA 264

R v Anforth [2003] NSWCCA 222

R v Austin [2021] NSWDC 440

R v AWF (2000) 2 VR 1; [2000] VSCA 172

R v Colvin (No 2) [2021] NSWDC 494

R v Dodd [1991] 57 A Crim R 349

R v Edwards (1996) 90 A Crim R 510

R v Geddes (1936) 36 SR (NSW) 554

R v Herring (1956) 73 WN (NSW) 203

R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996

R v Millwood [2012] NSWCCA 2

R v Mitchell [2007] NSWCCA 296

R v Newell [2004] NSWCCA 183

R v Pullen [2018] NSWCCA 264

R v Rayment [2010] NSWCCA 85

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Swan [2006] NSWCCA 47

R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

R v Windle [2012] NSWCCA 222

R v Zamagias [2002] NSWCA 17

Rayment v R [2010] NSWCCA 85

Robertson v R [2017] NSWCCA 205

Ryanv The Queen (2001) 206 CLR 267; [2001] HCA 21

Speechley v R [2012] NSWCCA 130

The Queen v Pham (2015] 256 CLR 550; [2015] HCA 39

Wany v R [2020] NSWCA 318

Worboyesv R [2021] VSCA 169

Yardley and Betts (1979) 22 SASR 108

Texts Cited:

Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council Victoria, 2010

Significance of Culture to Wellbeing, Healing and Rehabilitation; V Edwidge and P Gray, Bugmy Bar Book Project, 2021

Category:

Sentence

Parties:

Luke Levvell, Luke (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr W Tuckey (for the offender)

Solicitors:
Ms L Fennell, Legal Aid NSW (for the offender)
Ms A Cabrera (for Director of Public Prosecutions)

File Number(s):

2020/00150258

Publication restriction:

Suppression order: I make a temporary suppression order for publication of the names of alleged co-offenders until the determination of their matters.

sentence

Introduction

1. Everyone in the community should know that if you take the law into your own hands and try to resolve a grievance by detaining and attempting to intimidate another you will be committing a very serious crime; so serious that if you commit the crime with others, the maximum penalty is 20 years imprisonment.

2. Everyone in the community should know that one historical function of the criminal law is to discourage people and their friends from resorting to self-help. These actions often lead to the escalation of violence and serious harm to individuals and the community.

3. Equally, everyone in our community should know that gaols are nasty violent places that rarely lead to the rehabilitation of offenders. Incarceration has not proved an effective deterrent of anti-social behaviour: Hoskins v R [2021] NSWCCA 169, Basten JA at [4]. To the contrary, when young people are gaoled the evidence is that harsher prison conditions do not necessarily discourage future offending. Rather, paradoxically, the experience of imprisonment may exert a crime-producing effect; by providing a criminal learning environment, and by labelling and stigmatising offenders as criminals. Being in custody has a negative effect on a young person’s long-term job stability, and may contribute to reoffending. Consequently gaol is an ineffective way of addressing the underlying causes of crime: Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council Victoria, 2010.

4. Luke Levvell is facing a lengthy gaol sentence because on 4 May 2020 he played a significant role in the detention of his former best mate. His motivation was to extract retribution for a theft that had set back his plans to change his life for the better. His former friend nearly died as a result of the incident. And although Levvell is not to be punished for inflicting that injury he must be punished for his actions and their immediate consequences.

Agreed Facts

5. Levvell was born 1998. Despite the efforts of his foster parents his life was troubled: see below [58]. He and his victim were good, if not best, friends. They were one of a loose network of young people who lived in or near Mangerton, Wollongong. Many were drug users. Many were involved in other crime. In early May 2020, the victim took $4,500 cash, an ounce of cannabis and a car from Levvell. Levvell had been working and saving as much as he could. He wanted to find new and stable accommodation away from Mangerton with his girlfriend ‘RD’. The theft was a huge setback to those plans and dreams. He wanted his property back.

6. On 3 May 2020 Levvell was contacted by police and told they had found the car being driven by the victim in Mt Warrigal, southern Wollongong. He and Austin, another from the group, recovered the car but Levvell withdrew his complaint about its theft.

7. Later that afternoon, Levvell began to look for the victim again. He wanted the rest of his property back. He sent threatening text messages to the victim’s brother.

8. On the afternoon of 4 May 2020, an associate of Levvell’s, ‘CG’, made contact with the victim via ‘messenger.” They arranged a meeting so the victim could return what remained of Levvell’s property and work out an agreement to pay back the outstanding money. He was directed to a house in Barrack Heights, southern Wollongong.

9. The victim went to the address at about 7pm. ‘CG’ was there with ‘SB’, ‘TP’ and ‘Junior’. One of them told the victim to “…sit the fuck down. You’re not leaving.” ‘Junior’ had a baseball bat with him. The victim felt threatened. He was made to delete his earlier messenger communication with ‘CG’.

10. Between 7:14pm and 8:05pm he sent a series of text messages to his mother telling her, “I need help” and at “I’m being held hostage for like (Luke) fuck help”. His parents went to Barrack Heights in the hope of locating him. Unable to find him they contacted 000.

11. At 8.26pm, the victim’s brother had a Facebook conversation with Levvell’s girlfriend ‘RD’. He asked her if they had anything to do with the victim being ‘kidnapped’. She denied this and told him that she and Levvell were at home (in Johansson Crescent, Mangerton).

12. Levvell told me he did not have this conversation; this is likely as he arrived at the house in Barrack Heights sometime after 8pm.

13. The revised agreed facts note that between 8:16 and 8;19 RD sent texts to Level telling him to call the victim’s brother and tell him “not to make a noise…your (sic) not involved and LMK (let me know) when your (sic) done…let him know.”

14. When he arrived at Barrack Heights Levvell was with ‘BB,’ an ‘unknown’ male and a relation of ‘BB’s, who was driving. ‘CG’ and the others handed the victim over to him. Levvell directed the victim to get into the car and they travelled to Phillips Avenue, Mangerton (about 21 kilometres and 20-25 minute drive away). The victim sat in the back of the car in between Levvell and the ‘unknown’ male. ‘BB’ sat in the front passenger seat.

15. At around 8:33pm CCTV footage shows Austin, ‘TP’ and ‘RD’ walking in Fisher St near Phillips Ave Mangerton. When the car arrived at Philips Ave Mangerton, Austin, ‘TP’, ‘RD’ and ‘RC’ were already there.

16. The agreed facts say “Levvell forced the victim to strip naked.” Levvell told me in evidence that while he was in the car he told the victim to strip and take off the clothes bought with the stolen money. The pants, he said, came off during a struggle outside the car. This factual dispute was of no importance.

17. The victim was told he would be taken to some nearby waste land and “tunnels.” Levvell, ‘RD’, ‘RC’, Austin, ‘BB’ and ‘BB’s relation’ all walked the victim down the street.

18. The victim was able to get away from them and ran towards and into a unit block. ‘RC’ and Austin gave chase.

19. The victim saw that Austin was holding a knife. He began banging on doors. ‘RC’ ran into the building and became involved in a wrestle with the victim. The two moved down the stairs and the victim fell to the ground.

20. Austin then came down the stairs and said, “Make me run, you fuckin’ little dog.” He tried to stab the victim. He missed with the first blow but the second saw the knife go into the victim’s chest.

21. At this point Levvell come down the stairs, said something, and kicked the victim to the head. He told me that although he saw blood he did not know at that point the victim had been stabbed by Austin.

22. The victim crawled up the stairs calling for help.

23. At around 8.45pm a resident opened his apartment door and saw the victim lying on the floor covered in blood and clutching at his chest. He called 000.

24. The victim was able to tell the resident his name and where he was from. When asked who had injured him, he replied, “Cruz Angel Austin”. Another neighbour placed pressure on the wound. Others neighbours heard the commotion and saw various people leaving the scene. The first police officer, on the scene, took over first aid. He asked the victim, “Who did this to you?” He replied, “Cruz Austin.”

25. Ambulance officers soon took over treatment. The victim was by then in a critical condition. He had sustained a full depth penetrative wound to the chest, which had punctured his right lung and several arteries within the lung. He was taken to the Wollongong Hospital in peri-arrest, hypotensive and tachycardic, with a barely palpable pulse. CPR was commenced and a massive transfusion protocol activated; with emergency, ICU and retrieval team physicians all assisting. At that time he was not expected to survive.

26. Emergency surgery at the Wollongong Hospital was able to revive and stabilise him for transfer to a tertiary trauma centre at St George Hospital by helicopter where he underwent further surgery.

27. On 14 May 2020, Austin was arrested by police. I sentenced him on 25 August 2021 for a wounding with intent offence. The detain for advantage offence was taken into account on a Criminal Procedure Act 1986 Form 1: R v Austin [2021] NSWDC 440.

28. During the police investigation, telephone intercept warrants were executed. During a phone call between Levvell, ‘RD’ and ‘BB’ on 15 May 2020 at 19:52pm the three discuss what their ‘story’ will be. Levvell says, ‘…it had nothing to do with us. It had nothing to do with me or you… he done that on his own decision, on his own fucking account the dumb fuck… I talked to [the victim] on the way out, in the car blah blah blah… sort it out, fucking pretty much and I was just gonna have a talk to him.. with [‘R’]… smack him around, and then when I rocked up that cock sucker ...was there.. I was like wow, that’s that’s not on, so that’s why I said lets hop in the car... and go.” The two continue to discuss how they are now ‘in the clear’ and Buddle says, “…Brother I’ve still, what you and [RD] said to say and everything else, I’ve still go it in me head and I’ve still got a plan anyway if they do come and rock up…. But fuck, motherfucker got done so… we’re we’re in the clear.”

29. Levvell was arrested on 20 May 2020. After 37 days in gaol he was released by the Supreme Court on strict bail conditions.

Assessment of Objective Seriousness

30. When determining the sentence appropriate to a particular crime a judge must have regard to the gravity of the offence viewed objectively. There must be some reasonable proportionality between a sentence and the circumstances of the crime. The relative importance of the objective facts and subjective features of each individual case will vary but care must be taken as there is sometimes a risk that persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the crime: R v Rayment [2010] NSWCCA 85 at [110; R v Dodd [1991] 57 A Crim R 349 at 354.

31. The reason offences such as this are taken so seriously is because of the interference with a person’s liberty: Davis v R [2006] NSWCCA 392 at [56]. In assessing seriousness sentencing courts look to the; the period of the detention; the circumstances of the detention; who was being detained, and the purpose of the detention: R v Newell [2004] NSWCCA 183. Regard must be had to the manner a victim is treated and the extent of any fear or terror or harm caused them as a result of the offences for sentence. And here I remind myself I am not sentencing for the stabbing and subsequent wounding.

32. Here the victim was both taken and detained. The actions were initiated by Levvell as it was he who wanted to talk to the victim and “smack him around” in order to have the money and property taken restored to him. He was held in Barrack Heights awaiting Levvell’s arrival. He was forced into a car with a number of others. He was in the car about ½ an hour. There he was forced to remove his clothing. He was then taken, naked to where even more people were gathered. And still naked taken by this group to an isolated place, where at the very least he must have expected to be further assaulted. He was not released only an escape ended the detention.

33. The victim was not injured by Levvell but the absence of injury associated with the offender’s actions does not reduce the objective gravity of an offence under 86(2)(a). If Levvell had caused any actual bodily harm to the victim a more serious charge would apply: s 86(2) or 86(3).

34. Levvell is to be sentenced for the offence of aggravated detain for advantage. The advantage gained was the intimidation of the victim. The intimidation intended here included the harassment or molestation of the victim and actions that would cause him to have a reasonable apprehension of injury: ss 7 & 13 Crimes (Domestic and Personal Violence) Act 2007. That intimidation was meant to secure restitution of the money and property stolen from him.

35. The aggravated offence was charged because of the force of numbers deployed against the victim: Speechley v R [2012] NSWCCA 130 at [60]. The law recognises that the combined impact of many offenders adds to the harm a victim may suffer. The presence and behaviour of the others added to the menace of the occasion and is relevant to the seriousness of the detention. Here their presence contributed to the pressure on, and overbearing of, the victim increasing the objective seriousness, and moral culpability of the offender: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168.

36. Levvell held a grievance against the victim. It was genuine and provocative. His dreams had been thwarted by someone he thought was a friend. Although police were involved initially he chose to sort matter out himself. It is necessary for courts to condemn such “vigilante action” even where, as Ms Fennel submits, the victim himself may have felt some remorse for the harm he had caused Levvell. And the victim had gone voluntarily to Barrack Heights to sort something out. However, things were not sorted out amicably, far from it. He was held at and taken from Barrack Heights. The taking indicates premeditation, and where a crime is premeditated the sentence must take account of the principle of general deterrence: Speechley.

37. Levvell sought and received the help of others. They kept the victim at the house at Barrack Heights. He was then further detained on the drive to Mangerton. His clothes were removed. At Mangerton he was confronted by more people and taken naked toward the “tunnels.” His escape ended the detention.

38. At that point it is not hard to imagine the fear and humiliation that would have been felt by the victim. He was not to know what was intended but he must have feared serious harm would be done to him. He was not being treated this way just so Levvell and he could “have a talk.”

39. He was then assaulted by “RC” and stabbed by Austin. Although Levvell has not been charged with, and cannot be punished for what RC and Austin did, he did show his contempt for the victim by kicking him to the head while he was vulnerable and unable to defend himself.

Relevant factors on sentence

Motive

40. The motive for an offence can be relevant to the proper sentence as it explains why the offence was committed without condoning or excusing it. Motive, where an act of retaliation for a prior harm is unlikely to be repeated can indicate a lack of need for personal deterrence:  Barlow v R [2008] NSWCCA 96 at [67] & [68]; Rayment v R [2010] NSWCCA 85 at [108]; R v Mitchell [2007] NSWCCA 296 at [31] & [32]; R v Swan [2006] NSWCCA 47. However, the more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect: R v Mitchell.

41. Whatever be the crime committed by the victim, a civilised society cannot condone conduct such as that which occurred here. The rule of law requires that alleged thieves, such as the victim here, be tried by the appropriate authorities and, if convicted, punished in accordance with accepted principle. In our society crime is dealt with by the courts: Barlow v R [2008] NSWCCA 96 at [2]. It is important to note that here police help had been rejected.

Maximum penalty

42. An offence of aggravated detain for advantage has a maximum penalty of 20 years imprisonment s 86(2)9a) Crimes Act 1900. Careful attention to the maximum penalty fixed by Parliament is always required. It is a sentencing measure to be balanced with all other relevant factors. It also invites a comparison between the instant case and other cases. That said, it is not appropriate just to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31]

The guilty plea and COVID-19

43. Levvell said he was guilty when the matter was in the Local Court. Accordingly the Court must allow a discount on sentence of 25% to reflect the utilitarian value of that plea: s.25D(2)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) (C(SP) Act). The Victorian Court of Appeal has noted recently that:

“[A] plea of guilty entered during the currency of the pandemic is worthy of greater weight in mitigation and amelioration of sentence than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects”: Worboyes v R [2021] VSCA 169; Chenhall v R [2021] VSCA 175: Authorities I cited with approval in Perrin v R [2021] NSWDC 408.

44. Ms Cabrera, Solicitor for the Director of Public Prosecutions (DPP), has reminded me that unlike Victoria, in the C(SP) Act Part 1A provides a regime and specific discounts for the utilitarian value of guilty pleas in indictable matters and Parliament has not (to date) amended those provisions in response to the pandemic. She was right in correcting me.

44. I must apply the statute, but an early guilty plea has value other than its purely utilitarian value. And, when I come to synthesis an appropriate sentence I cannot ignore the impact of the pandemic. If Levvell were to be gaoled today it would be in the full knowledge COVID-19 has entered our gaols, despite the best efforts of Corrective Services, and knowing he will be subject to severe restrictions including periods of quarantine.

45. I hear evidence, sometimes daily, about how example of how prisoners are negatively impacted by COVID-19 restrictions in custody. I have already sentenced a prisoner who caught COVID-19 in Parklea Gaol: R v Colvin (No 2) [2021] NSWDC 494. Another example is Mbele v R [2021] NSWCCA 182, where it was noted that employment and access to psychologists and psychiatrists has ceased due to COVID-19. And, as there is no longer any work for prisoners they now have to spend much more time in the yard where violence is rife and “the danger is constant.”

46. I have the advantage of an up to date report from Dr Ellis who noted that the pandemic will have a number of detrimental impacts on prisoner’s physical and mental health. Those impacts apply not only to those who catch the virus but also to those who do not, but are subject to the extreme measures necessary to prevent its spread. They arise from; increased isolation due to lockdown, the vulnerability of prisoner, the absence of programmes work and recreational and work and the risk these restrictions will continue for a very long time.

47. Levvell has a baby due and contact with his partner, child and his foster family will be restricted to video and telephone links indefinitely. While Levvell falls into a category that might be considered for early parole, to date no prisoner has been granted pandemic parole by the Commissioner of Corrective Services: s276 Crimes (Administration of Sentences) Act 1999. The impact lack of visits, programmes, and that heightened anxiety and concern, must be synthesised along with all other relevant factors.

Criminal Record

49. Level had what the Sentence Assessment Report described as “a minor criminal history.” He was on bail for an offence of violence for which he subsequently received a 9 months sentence to be served by intensive correction in the community. He successfully completed that sentence in February 2021. That he was on bail and thus broke an implicit promise to be of good behaviour aggravates the sentence that must be imposed. His record means he cannot get the befit of the leniency often given first offenders and that care must be taken as to consider whether personal deterrence remains a relevant factor notwithstanding his recent efforts toward rehabilitation.

Other cases

50. I have had regard to the other cases, which are well known or to which I have been referred. The guidance offered by appellate Courts and other decisions is always welcome. The consistent application of principle must always be considered.

51. As a general rule non-custodial sentences it has been held that will generally not be appropriate for a s86 Crime Act offences, particularly for the aggravated form of the offence:  R v Anforth [2003] NSWCCA 222 at [48]; Speechley at [116]. Further, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime: R v Geddes (1936) 36 SR (NSW) 554 at 556.

52. Since those decisions Parliament has introduced Intensive Corrections Orders (ICOs): Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). And appellate courts have been at pains to say that the consistent application of principle is not a prescriptive rule: Robertson v R [2017] NSWCCA 205; EF v R [2015] NSWCCA 36.

53. An ICO can only be considered after a court has determined that an aggregate sentence of less than 3 years can be imposed. The ICO option recognises that responsibility and accountability are as much able to be reflected by the successful completion of a period of supervision within the community, possibly with the addition of one of the more draconian conditions, as by the service of a short term of imprisonment. The amendments reflected a policy that that puts community safety first. That policy allows for a nuanced (“smart”) approach to rehabilitation than by the blunt tool of punishment and prevention by incarceration in all cases:” Wany v R [2020] NSWCA 318.

54. Intensive Correction Orders (ICOs) are, of course, a form of imprisonment and have been treated as having a significant punitive effect. But an ICO has an element of leniency in it that may fail to reflect the objective gravity of the offence and deprive the punishment of much of its effectiveness, particularly in its retributive/general deterrence or victim vindication aspects: R v Herring (1956) 73 WN (NSW) 203 at 205; Ryanv The Queen (2001) 206 CLR 267; [2001] HCA 21; R v Windle [2012] NSWCCA 222; Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38. It is always necessary to consider the nature of the offence in question in each case and the relevant circumstances concerning the objective seriousness of the offence in determining whether such an order is appropriate: R v Zamagias [2002] NSWCA 17.

55. While a Court’s sentencing discretion cannot be judicially constrained I must nevertheless give full and proper consideration to the guidance offered by past sentencing decisions: Robertson. However, each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74]:

“…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham (2015] 256 CLR 550; [2015] HCA 39, Bell and Gaegler JJ at [47].

Subjective matters

56. Mr Levvell gave evidence on 20 August 2021. I also have the advantage of a Sentence Assessment Report (SAR), and a psychosocial report of Mr Bembrick from Legal Aid NSW. After the adjournment a further report from Dr Ellis a forensic psychiatrist about the impact of COVID-19 on prisoners was tendered.

57. The reports did not contest factual issues or seek to put a gloss on them. The history given and the conclusions and opinions offered were not in serious dispute.

58. Levvell was born in 1998. He is, and identifies as, an Aboriginal Australian. His mother is Kamilaroi. He and his twin were removed from their mother’s care when he was 11 months old. He was placed in ‘kinship care’ with his mother’s uncle. He grew up with his foster parent’s in Wollongong’s northern suburbs. He attended local schools but needed remedial help with English. Despite learning difficulties he thrived at sports. As a teenager he was diagnosed with Attention Deficit Disorder (ADHD) but did not take the medication prescribed. He left school at Year 10 and went to Western Australia to meet his mother. While that visit enriched his understanding of his background it was also very “unsettling.”

59. On his return to Wollongong he lived in refuges and later Department of Housing accommodation in Mangerton. The Department of Community Services (DOCS) were peripherally involved with him but his foster mother told Mr Bembrick he “went into a downward spiral.” His peers were disaffected and troubled and drug users.

60. After his release to bail he has had support from ACE after care and engaged well with them. He has a job coach and is doing a course online. He now has Department of Housing accommodation well away from Mangerton. A stable relationship and stable accommodation has enabled him to reassess his past lifestyle, friends and drug use. He has attended for counselling at the Illawarra Drug and Alcohol Service (IDAS). He is taking an anti-depressant which has assisted with anxiety and sleep disturbance. He had kept to very strict bail conditions for 15 months without breach. While not strictly quasi custody this does require some reduction in the otherwise appropriate sentence.

61. His foster mother reports he now is “more adult in his manner and is thinking more about others not just himself.” Mr Bembrick concludes that if Levvell keeps to the pattern now established as he has for the past year he can continue to avoid relapse into crime.

62. When Levvell gave evidence he said he was deeply sorry for what he had down to a man who was his “best mate.” He appeared genuine. He said he did what he did because he was emotional, stressed and frustrated at the setback caused by the theft. He was trying to get out of the area he was living in and away from negative influences, particularly people like Mr Austin. He said that night he was not thinking properly and events just got away from him. He said when he kicked his victim he did not know he had been seriously injured.

63. When Levvell gave evidence he at first he played down his role but this appeared to be more a question of nerves than deliberate dissembling. After a short adjournment to calm himself and talk to his counsel Mr Tuckey and his solicitor Ms Fennel he accepted he was angry and unhappy with his former friend and wanted and intended he be detained and the others understood they were to hold the victim and were aware of his intention to “rough him up’ if his victim if he didn’t comply with his demand so.

64. He told me he still had the support of his foster parents and had spoken with his natural mother. He has completed an anger management course and has been able to “stay clean” from drugs. He was looking forward to the birth of his daughter in October and wanted to secure an apprenticeship. He was seeing the Aboriginal Medical Service but since COVID had not had a chance to see a psychiatrist. He was amenable to interventions.

65. The SAR notes Levvell’s insight into his offending and its impact on the victim. He told them of his difficulties dealing with conflict and frustration and the impact of his anti–social peers on his attitudes and opinions. Gaol had been an “eye opener.” He said since being granted bail he had worked to get money for a bond and moved into a flat in a quiet area well away from Mangerton. Keeping a job had been impossible as a condition of his bail meant a daily trip to Wollongong to report to the Police station there. The report noted he had removed himself from negative influences but apart from his partner he had limited social supports. Correction’s note that a comprehensive supervision plan could be put in place and that community service work is available.

Relevant Principles

Youth

66. Allowance can be made for an offender’s youth, and not just their biological age. Levvell was young and immature and his education had been disrupted. Even though he was legally an adult the law recognises even where serious crimes are committed by young people they are much more amenable to rehabilitation than adults set in their ways. Young people can reform and learn to conform to society’s norms. It is also accepted that cognitive, emotional and/or psychological immaturity of a young person can contribute to their offending:

“…It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s:” Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109.

67. Accordingly, here considerations of general deterrence and principles of retribution will be of less significance than they would be were I sentencing a mature adult for the same offence: KT v R [2008] NSWCCA 51.

Moral Culpability

68. An offender's background can be taken into account in mitigation of sentence. This is particularly so where there is material before the court that their background impacted on their moral culpability for the crime. Moral culpability is a relevant factor on sentencing. In most case a causal connection between the crime and factors that reduce moral culpability is not required. That principle stems from the recognition that in sentencing decisions; immaturity, social disadvantage, a childhood deprivation (such as exposure to violence and alcohol abuse), trauma (including as a victim of crime) and mental or intellectual incapacity (often in combination) frequently precedes the commission of crime: Kennedy v The Queen [2010] NSWCCA 260 at [53]; R v Millwood [2012] NSWCCA 2 at [69]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54] & [58]; Bugmy v The Queen (2013) 249 CLR 571: [2013] HCA 37at [40] and [45]; R v AWF (2000) 2 VR 1; [2000] VSCA 172; Nasrallah v R [2021] NSWCCA 207 at [12]; KT v R; Clarke-Jeffries v R.

69. Reduced moral culpability means in turn that the retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate. The community does not expect such persons to be punished with the same severity as those of ordinary capacity: Muldrock at [54] & [58]; Engert v R (1995) 84 A Crim R 67 at 69 per Austin J. Such matters must be given "full weight:" Bugmy at [41] and [43]. Some, such as childhood deprivation, do not diminish over time. In most case a causal connection between the crime and factors that reduce moral culpability is not required.

70. The offender’s background helps explain his recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. When Levvell committed these crimes his moral culpability was not the same as a mature adult or a person with an “ordinary background”. To the contrary that background as evidence by DOCS intervention as a baby and teenager and his youth and immaturity and his background contributed to a lack of insight into his offending and its potential consequences. Such lack of insight is a common feature of the circumstances which lessen moral culpability: Hoskins at [4].

Imprisoning a parent

71. If Levvell is returned to gaol he will miss the birth of his child and not be there to support his partner and care for the bay in its first years. There is nothing so exceptional in this simple fact that of itself requires a non-custodial option: R v Edwards (1996) 90 A Crim R 510 at 515: Hoskins v R [2016] NSWCCA 157 at [63]. That said, any impact of a custodial sentence must be synthesised along with all other factors.

72. When a parent is gaoled, there is often a significant disruption in the family and an increased risk to any children. Disruption to a family at a critical time can cause lasting trauma and impact on a child’s future emotional and cognitive processes. Positive experiences as a child can enrich lives. Adverse childhood experiences can have lifelong negative impacts: Significance of Culture to Wellbeing, Healing and Rehabilitation; V Edwidge and P Gray, Bugmy Bar Book Project, 2021 at [50]. Levvell was negatively impacted by his removal from his mother as a baby; any prolonged separation from his soon to be born child risks continuing that cycle.

Submissions

73. On 20 August 2021 Ms Cabrera provided written and succinct oral submissions. Her fundamental point was that even after making due allowance for the strong subjective case advanced I could not ignore the fact that this offender’s grievance and subsequent actions led to a serious aggravated detain for advantage offence. Her submissions noted the various authorities, to which I have already referred. She concluded that given his role a significant full-time custodial sentence was required. Nothing else she said could properly reflect the objective gravity of this serious crime against the victim.

74. On 20 August 2021 I heard from Mr Tuckey for Levvell. He said these events had escalated far beyond what was intended. This was due, he submitted, to Levvell’s frustration and anger but also, and significantly, the influences and independent actions of Austin. He noted that there was a genuine grievance that the offender need to sort out and his anger at the breakdown of the trust he’d had in his former friend.

75. Mr Tuckey noted the many positive aspects of the offender’s life since he was released to strict bail by the Supreme Court. His life had now stabilised. He had successfully completed a short ICO. He had a home, plans for a job and a child was on the way. He had shown insight and contrition and demonstrated growing maturity particularly as he had distanced himself from anti-social peers. While accepting that a custodial sentence was inevitable Mr Tuckey stressed the importance of what Mr Levvell had already learned from his short time in custody and his successful efforts to distance himself from drugs, crime and anti-social associates. A return over the last 15 months to gaol might put all those efforts at risk. He said the COVID-19 crisis made it even more imperative that full time gaol be avoided if at all possible.

76. On 24 August 2021 I adjourned the reserved sentence until today so that further written submissions could be provided. In those submissions Ms Fennell submits that a close analysis of the objective seriousness of the detention offence reveals it was relatively brief and involved no physical restraint. The purpose alleged was intimidation not assault or some more serious crime. She says this was a juvenile and a misguided attempt to sort out a genuine problem between former friends. She submits specific deterrence is not a significant factor and that by comparison with other cases where the motivation for the detention was domestic violence related or involved “nefarious business activities” this case fell into a very individual category of offence that required individual punishment. When the strong subjective case was factored in she submitted that not only could an aggregate sentence of less than 3 years be imposed but that it would be in the community interest that it be served subject to intensive correction in the community. She drew my attention to what fell from the Court of Criminal Appeal in Pullen v R [2018] NSWCCA 264 at [89] and Hoskins [2021] at [4]. In essence she submits this is a case where the risk of re-offending is low and the prospects of rehabilitation are high such that that the community interest would be best be served if Levvell is not returned to gaol.

77. Those principles reflect what the Acting Chief Justice noted in R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996:

“ ..if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest…It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of a comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person.”

78. In response Ms Cabrera, while she accepts that a cogent argument has been made for an ICO, submits that the leniency inherent in having a sentence served in the community would be inconsistent with an adequate penalty, as an ICO could not reflect the objective seriousness of the crime and would not fulfil the purposes of punishment: R v Zamagias.

79. While she acknowledges that there appears to be positive prospects for rehabilitation they must remain guarded. She submits that community safety would be best be served by full time custody. In this regard she submits Ms Fennell may have down played the offender’s role and how serious this offence was. She stressed the need to have proper regard to the impact this detention had on the victim. He was being detained and then taken by a number of people and until he escaped was being taken, naked, somewhere remote so that revenge could be extracted on him. This was not a simple discussion between ex mates - it was vigilantism, as police help had been rejected.

Synthesis

80. Having considered all those matters and allowing for the time early guilty plea an aggregate sentence of 3 years will be imposed. I must also allow for the 37 days spend in gaol before Supreme Court bail was granted.

81. While a gaol sentence can be moderated by a finding of special circumstances the minimum period in custody must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. But here were I to impose a gaol sentence that period would necessarily be relatively short.

82. The community should not underestimate the lived experience of gaol. Levvell has has learnt a hard lesson and is unlikely to do anything that could cause him to return. He has kept to very strict bail conditions without breach. If imprisoned again he will return to an intrinsically violent environment that he is ill-equipped to handle. He will be subject to the COVID preventative measure that restricts all aspects of a prisoner’s life making gaol time even harder and potentially, as Dr Ellis explains, with damaging consequences. He will not be made a better man by more time in gaol. Given the present pandemic restrictions contact with family and pro-social friends will be limited. He will not be available to assist at his child’s birth. He will not be a part of her life until released to parole. While the pandemic restrictions continue he will not be able to hold her.

83. From his victims perspective a gaol sentence is richly deserved. Levvell, in company with a number of others, took away his victim’s liberty and subjected him to a series of indignities. The victim was not to know what was going to be done to him. And while Levvell cannot be punished for the life threatening injury inflicted by Austin; his own intentions toward the victim were only thwarted by his victim’s temporary escape.

84. Sentencing courts have an obligation to not only express the community's disapproval of the offending but to attempt by the severity of the sentence imposed to vindicate the dignity of the victim and recognise the harm done to him and the community: Munda v Western Australia at [52] to [58].

85. The need for general deterrence and appropriate retribution in circumstances where an offender takes matters into their own hands is well established. General deterrence remains an important part of the sentencing process. The crimes Levvell did commit must be condemned. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them: R v Herring (1956) 73 WN (NSW) 203 at 205.

86. In most cases where an offender was the principle actor in the drama the imposition of an Intensive Correction Order would not be an appropriate form of punishment. In particular, I have to consider whether, as the Director submits, a sentence to be served subject to an ICO may not sufficiently address the seriousness of this crime or the issues of general deterrence and victim vindication.

87. But judges are given considerable discretion in formulating a sentence that takes into account the individual circumstances of offenders. Judges must also take into account the seriousness of crimes committed and their consequences.

88. Given my findings as to the appropriate length of the aggregate sentence, and the need to take into account time served a sentence with less than 3 years to be served can be imposed. That option is available even though one of the indicted sentences exceeds 2 years in the aggregate sentence: of the same length or under 3 years is imposed: R v Pullen [2018] NSWCCA 264 at [83]; Cross v R [2019] NSWCCA 280; Abel v R [2020] NSWCCA 82.

89. I am not required to favour an ICO over full-time custody, but it I am required to have specific regard to community safety and protection and to bear in mind that short sentences were are not necessarily effective as a means of deterring further offending: Mourtada v R [2021] NSWCCA 211 at [25]. As should be obvious from my decision I am also of the view that community safety would best be served by the sentence being served subject to an ICO because here, on balance, an ICO “is more likely to address the offender’s risk of reoffending” rather than full-time custody: s 66(2).

90. While gaol sentences may be of little utility in reducing the general incidence of crimes and while mitigating factors must be given appropriate weight, they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offences committed. I remind myself that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. Here community protection will not be advanced by a retributive sentence that returns Levvell to gaol. Community safety will not be imperilled if he serves his sentence subject to the strictures of an ICO

91. If a custodial sentence were imposed I could afford Levvell leniency both in the length and structure of the sentence, with a considerable finding of special circumstances. As a consequence given the time served and the 15 months of strict bail the custodial portion of the sentence would be relatively short. Were he to return to custody his progress toward rehabilitation would be impeded. He had broken ties with criminal associates and drug use. Gaol will mean those association may be rekindled.

92. The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of those, such as Levvell, who have not developed settled criminal habits: Yardley and Betts (1979) 22 SASR 108: Blackman and Walters [2001] NSWCCA 121.

93. Levvell would be entering gaol at the height of the pandemic when COVID has entered our gaols. He would not be able to engage in programmes or work or keep in personal contact with pro-social supports. It has been difficult enough accessing a psychiatrist in the community. That may not happen in gaol. Serving a sentence subject to an ICO is lenient but only in the sense that that unlike gaol all your freedoms are not curtailed. Serving a sentence subject to an ICO however is subject to obligations and constraints that do not apply in gaol or while on parole. Breaches can result in time in custody. Community work must be performed. Obligations must be meet. He will be monitored. He must complete all programmes and intervention modules required of him. He will be subject to such conditions for the term of his sentence.

Orders

94. I have taken into account the utilitarian value of the pleas of guilty and reduced each indicated sentence by 25%: s 25D Crimes (Sentencing Procedure) Act1999. Because an ICO must start from today I have reduced the 3 years to take into account time served but the 37 days has been rounded up to get to a sentence of 2 years 11 months

95. You are convicted.

96. For the take and detain I indicate a sentence of 2 years 9 months.

97. For the Common assault I indicate a sentence of 4 months.

98. You are sentenced to an aggregate term of imprisonment to be served by way of intensive correction in the community in accord with the Crimes (Administration of Sentence) Act 1999 for a period of 2 years 11 months.

99. The standard conditions of the order apply.

100. The following additional conditions apply: s 73A(2):

1. Community service work condition requiring the performance of community service work for 250 hours.

2. Engage in intervention modules as directed

3. Complete EQIPS or similar programmes as directed

4. Allow monitoring and give authorisations for 3rd party checks with family and medical practitioners.

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Decision last updated: 28 September 2021