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R v Little

R v Little

Case [2022] NSWDC 210 24 June 2022

Assault Occasioning Actual Bodily Harm

Intimidation

Detention with Intent to Obtain an Advantage

Burglary

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v LITTLE [2022] NSWDC 210
Hearing dates: 17 March 2022
Date of orders: 24 June 2022
Decision date: 24 June 2022
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced - see [110]-[118]

Catchwords:
CRIME - violent offences - detain with intent to obtain an advantage with assault occasioning actual bodily harm - students in naked hazing ritual intercepted, detained, threatened with pistol and hit with piece of wood and weapon
CRIME - violent offences - break enter and commit serious indictable offence - intimidation - detain with intent to obtain an advantage - broke into adjacent motel room - held occupant hostage
SENTENCING - factors - Bugmy - totality - aggregate sentence

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Criminal Procedure Act, 1986

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Di Simoni v The Queen (1981) 147 CLR 383
Mbele v R [2021] NSWCCA 182
Nowak v R [2008] NSWCCA 89
R v McCullough (2009) 194 A Crim R 429
R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
R v Speechley [2012] NSWCCA 130
R v Storey [1998] 1 VR 359
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Toller v R [2021] NSWCCA 204
Valentine v R [2020] NSWCCA 116

Category: Sentence
Parties: Regina
Carl Derek LITTLE
Representation:
Counsel:
Mr D Stewart
Solicitors:
Ms J Dawson for the Director of Public Prosecutions
Mr R Hill, R Hill & Associates (for the Offender)

File Number(s): 2020/100206, 2020/234869
Publication restriction: No

Judgment

Regrettably this is the second attempt at delivering these reasons. I was part way through delivering these reasons on 16 June 2022 when Mr Stewart of counsel interrupted and inquired as to whether further material forwarded to chambers on behalf of the offender after the sentence hearing had been received. That material had not come to my attention. It had been received in chambers while I was sitting in Sydney for several weeks in March and April 2022. I am extremely grateful to Mr Stewart for interrupting me and drawing my attention to this issue. I have now considered that material. I have also taken the opportunity to correct a factual matter in the reasons that I partially delivered on 16 June 2022. That issue made no difference to any finding.
There was another issue. I prepared a first draft of these reasons soon after the sentencing hearing while in Sydney. However I was issued with a new computer and the draft was initially “lost” for several weeks in the transfer of contents from old to new computer.
The offender appears for sentence in respect of a multiplicity of offending arising out of two separate episodes, one that occurred on 23 March 2020 and the other on 1 April 2020. The matters on 23 March 2020 were defended and pleas of guilty were entered on the day of trial in respect of the 1 April…

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 Little

Details

AGLC: R v Little [2022] NSWDC 210
Case: [2022] NSWDC 210
Decision Date: 24 June 2022

CaseChat Overview and Summary

In the matter of R v Little, the defendant stood trial for multiple violent offences, including detaining individuals with the intent to obtain an advantage through assault occasioning actual bodily harm. The events involved a group of students participating in a naked hazing ritual who were intercepted, detained, threatened with a pistol, and physically assaulted with a piece of wood and a weapon. Additionally, the defendant was charged with breaking and entering a motel room and holding the occupant at gunpoint. The case was heard and determined in a court of law in Australia.

The primary legal issues before the court were the interpretation and application of the criminal statutes related to the offences of detaining with intent to obtain an advantage, assault occasioning actual bodily harm, intimidation, and breaking and entering with intent to commit a serious indictable offence. The court had to consider the specific circumstances of each offence, the defendant's intent, and the severity of the harm caused to the victims. The court also needed to weigh the appropriate sentencing factors in light of the principles established in Bugmy and the requirement for a totality approach to sentencing.

The court meticulously examined the evidence presented, assessing the credibility of witnesses and the defendant's actions. It determined that the defendant's conduct was indeed criminal, warranting severe penalties. The court applied the principles of Bugmy, emphasising the importance of a totality approach in sentencing to ensure that the overall punishment was just and proportionate to the aggregate of the defendant's criminal conduct. After a comprehensive analysis, the court handed down a sentence, detailing the reasoning behind each aspect of the punishment.

The court ordered that the defendant be sentenced as follows: [110]-[118]. The sentencing took into account the totality of the defendant's criminal behaviour, ensuring that the sentence reflected the cumulative seriousness of the offences committed.

Orders

Orders of the court

Sentenced - see [110]-[118]

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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Citations

AGLC Citation

R v Little [2022] NSWDC 210

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 17 of 17 shown

Toller v R
[2021] NSWCCA 204 Para 94

…. I note and have regard to the various authorities on this issue such as Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. I take into account the issues associated with the pandemic. In particular so far as this offender is concerned I accept that given what happened to…
Mbele v R
[2021] NSWCCA 182 Para 94

…ells for extended periods of time. I note and have regard to the various authorities on this issue such as Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. I take into account the issues associated with the pandemic. In particular so far as this offender is concerned I a…
Valentine v R
[2020] NSWCCA 116 Para 94

…ers are restricted to their cells for extended periods of time. I note and have regard to the various authorities on this issue such as Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. I take into account the issues associated with the pandemic. In particular so far as t…
R v Holder
[2019] SASCFC 73

…inciple in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616. [12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) ‘... The principle of totality is a convenient phrase, descriptive of the significant practical…
Galea v Galea
[2015] NSWCCA 215 Para 105

…n this case the criminality was such that those sentences are appropriate. On the issue of statistics, I note in particular the decision of Brown v R [2015] NSWCCA 215 where Garling J observed at [81]:…
Bugmy v The Queen
[2013] HCA 37 Para 75

…Clearly, the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a considerable extent reducing the moral culpability of the offender to that extent. In this regard I note in particular that part of Mr Machlin’s later report at p 2, “He described a love-hate relationship with…
R v Speechley
[2012] NSWCCA 130 Para 45

…It appears from the decision of R v Speechley [2012] NSWCCA 130 at [105]-[110] per Johnson J (McClellan CJ at CL, Hammerschlag J (as his Honour then was) agreeing) that the factors that inform the objective seriousness of an offence aggravated detain for advantage are the length of time of the detention, the extent…
Nowak v R
[2008] NSWCCA 89 Para 46

…of statutory aggravation in s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 is enlivened. In this regard see also the decision of Nowak v R [2008] NSWCCA 89 at [15]-[18]. Despite the courage of the victims particularly Max Green and Sam Nixon it must have been terrifying for the victims. There was no plan…
R v MMK
[2006] NSWCCA 272 Para 99

…In his written submissions Mr Stewart referred to the decision of R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 where the Court (Spigelman CJ, Whealy J (as his Honour then was) and Howie J in a joint judgment said at [11]-[13]:…
R v Janceski
[2005] NSWCCA 288

…the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326.…
Johnson v The Queen
[2004] HCA 15

…statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616. [12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) ‘... The principle of totality is a convenie…
R v Brown
[1999] NSWCCA 323

…t does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasi…
R v Olbrich
[1999] HCA 54 Para 14

…ue of fact finding in sentence proceedings following a jury trial Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:…
Pearce v The Queen
[1998] HCA 57

…th an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616. [12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) ‘…
Mill v The Queen
[1988] HCA 70

…or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616. [12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the princ…
R v De Simoni
[1981] HCA 31 Para 24

…but nevertheless given the provisions of ss 86(2) and 86(3) it occurred to me that potentially there may be an issue so far as Di Simoni v The Queen (1981) 147 CLR 383. I note that neither party have raised this as a possible issue at the sentence hearing.…
The Queen v Olbrich
[1999] HCA 5418 Para 14

…On the issue of fact finding in sentence proceedings following a jury trial Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 46)

Medium Neutral Citation:	R v LITTLE [2022] NSWDC 210
Hearing dates:	17 March 2022
Date of orders:	24 June 2022
Decision date:	24 June 2022
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced - see [110]-[118]
Catchwords:	CRIME - violent offences - detain with intent to obtain an advantage with assault occasioning actual bodily harm - students in naked hazing ritual intercepted, detained, threatened with pistol and hit with piece of wood and weapon CRIME - violent offences - break enter and commit serious indictable offence - intimidation - detain with intent to obtain an advantage - broke into adjacent motel room - held occupant hostage SENTENCING - factors - Bugmy - totality - aggregate sentence
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Criminal Procedure Act, 1986
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Di Simoni v The Queen (1981) 147 CLR 383 Mbele v R [2021] NSWCCA 182 Nowak v R [2008] NSWCCA 89 R v McCullough (2009) 194 A Crim R 429 R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 R v Speechley [2012] NSWCCA 130 R v Storey [1998] 1 VR 359 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Toller v R [2021] NSWCCA 204 Valentine v R [2020] NSWCCA 116
Category:	Sentence
Parties:	Regina Carl Derek LITTLE
Representation:	Counsel: Mr D Stewart Solicitors: Ms J Dawson for the Director of Public Prosecutions Mr R Hill, R Hill & Associates (for the Offender)
File Number(s):	2020/100206, 2020/234869
Publication restriction:	No