R v Lister

Case [2021] NSWDC 132


District Court


New South Wales

Medium Neutral Citation: R v Lister [2021] NSWDC 132
Hearing dates: 12 March 2021
Decision date: 12 March 2021
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Sentence 1 year 10 months imprisonment to be served by way of intensive correction in the community. For orders see [59] - [60]

Catchwords:

CRIME – Take/detain person in company with intent to obtain advantage

SENTENCING — Relevant factors on sentence — plea discount dispute – recourse to case conference certificate - relatively minor role – victim able to leave- no attempt to prevent him leaving - assaulted in custody –positive change on release to bail- long history of abuse –victim of violence- acquiescence to the demands of male co-offenders can be learned behaviour-no prior convictions - deprived background- youth and immaturity- solid process toward rehabilitation

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentence) Act 1999

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

R v Flentjar [2008] NSWSC 771

R v Guinness [2021] NSWDC 57

R v JDX; JDX v R [2017] NSWCCA 9

R v Kerr [2008] NSWCCA 201

R v Newell [2004] NSWCCA 183

R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487

R v Owen (a pseudonym) [2020] NSWDC 791

R v Qutami [2001] NSWCCA 353

R v Speechley (2012) A Crim R 175

Silvano v R [2008] NSWCCA 118

Texts Cited:

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

Category:Sentence
Parties: Kayla Maree Lister (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Mr R Steward (for the offender)

Solicitors:
Maguire McInerney Lawyers (for the offender)
Ms A Kerr (for Director of Public Prosecutions)
File Number(s): 2019/00314192

sentence – ex tempore revised

Introduction - Facts for sentence

  1. In the early hours of the morning of 8 October 2019, the victim in this matter, a young man, was subject to both physical and psychological violence over an extended period. Kayla Lister, the present offender, was not responsible for that violence but she did play a role in detaining him after he had been assaulted.

  2. Lister had a few days earlier let him to stay in her spare room as he was otherwise homeless. She did not know him well. She expected that he would make some contribution to the household expenses but he didn’t do so. In days prior to the 8 October food was running low for both residents and the home’s dog.

  3. The victim had promised that he would pay some money for rent and household expenses as soon as he could - by 8 October at the latest. He promised $70 or $80 to assist with food. He did not meet that obligation. October 7 was a public holiday and he did not have any means of obtaining money from a bank or Centrelink. He then said he would go to the Centrelink or a bank first thing in…

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AGLC
R v Lister [2021] NSWDC 132
Case
[2021] NSWDC 132
Decision Date

CaseChat Overview and Summary

In the case of R v Lister, the respondent, a minor, was charged with taking and detaining a person in company with intent to obtain an advantage, an offence under the Australian Criminal Code. The respondent, along with an adult co-offender, detained a man in his home and subjected him to physical abuse. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included the appropriate sentence for the respondent, taking into account the plea discount dispute, the relatively minor role played by the respondent, and the victim's ability to leave the situation without any attempt to prevent him from doing so. Additionally, the court had to consider the respondent's history of abuse, his acquiescence to the demands of his co-offenders, his deprived background, his youth and immaturity, and his solid process towards rehabilitation. The court also examined the impact of the respondent being assaulted in custody and his positive change upon release to bail.

In determining the appropriate sentence, the court considered the principles of sentencing outlined in the relevant case law and statutes. The court found that the respondent played a relatively minor role in the offence and that the victim was able to leave without any attempt to prevent him from doing so. The court also took into account the respondent's history of abuse, his acquiescence to the demands of his co-offenders, his deprived background, his youth and immaturity, and his solid process towards rehabilitation. The court recognised that the respondent had been assaulted in custody and had shown a positive change upon release to bail. The court ultimately decided that a sentence of one year and ten months imprisonment, to be served by way of intensive correction in the community, was appropriate.

The court made several orders in relation to the sentence, including the imposition of a supervision order, a good behaviour bond, and an order for the respondent to participate in a rehabilitation program. The court also ordered that the respondent pay a fine and a victim surcharge. The orders were detailed in paragraphs [59] and [60] of the judgment.

Orders

Orders of the court

Sentence 1 year 10 months imprisonment to be served by way of intensive correction in the community. For orders see [59] - [60]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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