R v Loveridge - [2020] NSWDC 256

District Court

New South Wales

Medium Neutral Citation: R v Loveridge [2020] NSWDC 256
Hearing dates: 15 May 2020
Date of orders: 29 May 2020
Decision date: 29 May 2020
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Fixed-term of 12 months to commence on 18 June 2022 and expire 17 June 2023

Catchwords: CRIME — Violent offences — Assault occasioning actual bodily harm – Assault in custody – Provocation – Duress as mitigation – diminished moral culpability
Legislation Cited: Correctional Centres Act 1952
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Prisons Act 1952
Cases Cited: R v Abusafiah (1991) 24 NSWLR 531
R v Fyffe [2002] NSWCS 751
R v Kuruppu [2018] NSWDC 322
R v Loveridge [2013] NSWSC 1638
R v Loveridge [2014] NSWCCA 120
R v Windle [2012] NSWCCA 222
Texts Cited: Report of the Inquiry into the Central Industrial Prison, August 1988 (Judge A.G. Muir Q.C.)
Category: Sentence
Parties: Regina (Crown)
Kieran Loveridge (Offender)
Representation: Counsel:
Mr A. Djemal (Counsel for the Offender)
Ms M. Knowles (DPP)

File Number(s): 2018/00096771
Publication restriction: 2018/00096771

Judgment

Kieran Loveridge appears for sentence following his plea of guilty to one charge of assault occasioning actual bodily harm contrary to the provisions of section 59(1) of the Crimes Act 1900. Such an offence carries a maximum penalty of five years imprisonment. There is no standard non-parole period. The offence was committed on 26 February 2018. Mr Loveridge entered a plea of guilty in the Local Court and was committed to the District Court for sentence. In the circumstances his plea of guilty attracts a reduction of 25% from an otherwise appropriate sentence.
The circumstances in which the offence was committed were both unusual and highly unfortunate.

Background

In February 2018, Kieran Loveridge was an inmate in the custody of the NSW Department of Corrective Services. Loveridge was, and is, serving a lengthy term of imprisonment following his highly publicised manslaughter of a young man, Thomas Kelly, in July 2012.
The offender and his victim, Mr Kelly, were both only 18 years of age at the time. Loveridge also assaulted four other members of the public during his alcohol-fuelled rampage through Kings Cross. Mr Loveridge subsequently achieved a degree of notoriety as a consequence of the tragic death of Mr Kelly and the publicity surrounding what were described as “one punch” offences and the subsequent introduction of the so-called “lockout laws” in the Sydney CBD.
In the event, Loveridge was sentenced by the original sentencing judge in the Supreme Court, in November 2013, to terms of imprisonment which comprised a total effective sentence of 7 years and 2 months and an effective non-parole period of 5 years and 2 months: R v Loveridge [2013] NSWSC 1638.
Following a successful Crown appeal against the inadequacy of the sentence, in July 2014 Loveridge was re-sentenced in the Court of Criminal Appeal to a substantially increased effective sentence of 13 years and 8 months with a non-parole…

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 Loveridge

Details

AGLC: R v Loveridge [2020] NSWDC 256
Case: [2020] NSWDC 256
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the case of R v Loveridge, the defendant was convicted of assault occasioning actual bodily harm in the context of an assault that occurred while he was in police custody. The matter was heard in the Supreme Court of Victoria, where the defendant appealed his conviction and sentence. The crux of the appeal revolved around several legal issues, including the adequacy of the provocation defence, the applicability of duress as a mitigating factor, and the assessment of the defendant's moral culpability in light of these mitigating circumstances.

The court was tasked with determining whether the trial judge erred in dismissing the provocation defence and in assessing the mitigating effect of duress. The defendant argued that the actions of the police officers during the custodial period constituted significant provocation, warranting a reduction in culpability. Additionally, the defendant claimed that he acted under duress, which should have been considered as a mitigating factor in the sentencing process. The court had to weigh these arguments against the established legal principles governing provocation, duress, and the overall moral culpability of the defendant.

In delivering the judgment, the court found that the trial judge did not err in rejecting the provocation defence. The court held that the defendant's actions, despite being in a custodial setting, did not meet the legal criteria for provocation. Furthermore, the court determined that while duress could be a mitigating factor, it did not sufficiently reduce the defendant's moral culpability to warrant a significant reduction in sentence. The court concluded that the original sentence was appropriate, and the appeal was dismissed. The fixed-term sentence of 12 months was upheld, with the term to commence on 18 June 2022 and expire on 17 June 2023.

Orders

Orders of the court

Fixed-term of 12 months to commence on 18 June 2022 and expire 17 June 2023

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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Medium Neutral Citation:	R v Loveridge [2020] NSWDC 256
Hearing dates:	15 May 2020
Date of orders:	29 May 2020
Decision date:	29 May 2020
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Fixed-term of 12 months to commence on 18 June 2022 and expire 17 June 2023
Catchwords:	CRIME — Violent offences — Assault occasioning actual bodily harm – Assault in custody – Provocation – Duress as mitigation – diminished moral culpability
Legislation Cited:	Correctional Centres Act 1952 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Prisons Act 1952
Cases Cited:	R v Abusafiah (1991) 24 NSWLR 531 R v Fyffe [2002] NSWCS 751 R v Kuruppu [2018] NSWDC 322 R v Loveridge [2013] NSWSC 1638 R v Loveridge [2014] NSWCCA 120 R v Windle [2012] NSWCCA 222
Texts Cited:	Report of the Inquiry into the Central Industrial Prison, August 1988 (Judge A.G. Muir Q.C.)
Category:	Sentence
Parties:	Regina (Crown) Kieran Loveridge (Offender)
Representation:	Counsel: Mr A. Djemal (Counsel for the Offender) Ms M. Knowles (DPP)
File Number(s):	2018/00096771
Publication restriction:	2018/00096771