R v Mitchell Cody Peck

[2018] NSWDC 460

District Court

New South Wales

Medium Neutral Citation:	R v Mitchell Cody Peck [2018] NSWDC 460
Hearing dates:	14 November 2018
Date of orders:	14 November 2018
Decision date:	14 November 2018
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Non-Parole period of 12 months; Parole period of 9 months; Overall term of imprisonment of 1 year and 9 months.
Catchwords:	CRIMINAL LAW – Sentence – Detain for advantage in company – Co-offender seeking bizarre psychological gratification – This offender has no apparent personal motive – Joint criminal enterprise – Two teenage girls aged 14 – Some family connection –This offender played minor role in aggravated kidnapping – Co-offender the instigator – Offender subject to 3 bonds – S 9, S 10, S 12 – Not yet called up – Taken into account as aggravating factor – Recommend no call up because breach already taken into account – Late pleas of guilty – 10% to 15% discount – 12 months pre-trial custody – Significant rehabilitation after release to bail – Good prospects of rehabilitation – Co-Offender sentenced later so no parity issues.
Legislation Cited:	Crimes Act 1900 (NSW), s 86(2)(a)
Category:	Sentence
Parties:	Mitchell Cody Peck The Crown
Representation:	Mr Winch (F/W for Mitchell Cody Peck) Mr Gaynor (DPP)
File Number(s):	2017/178076

JUDGMENT

1. HER HONOUR: I will now deal with the sentence matter of Mitchell Peck. He is before the Court following his pleas of guilty to two charges contrary to s86(2)(a) of the Crimes Act 1900 (NSW) of detaining a person for advantage. These matters were committed for trial from the Local Court and listed for trial in the Queanbeyan circuit commencing on 23 July this year. He is co-accused with Susan Cross. Both of them pleaded guilty on 23 July 2018 to two charges for which I am to sentence them both.

2. For reasons that have nothing to do with the offender Mr Peck, it has not been possible to complete the sentence for Ms Cross today and her sentence matter has been adjourned to Sydney in February 2019.

3. I come to sentence Mr Peck however for the following two offences: Count 1, that on 14 June 2017 at Queanbeyan whilst in company with Ms Cross, he detained the named complainant in that count without her consent and with intent to obtain an advantage, namely psychological gratification.

4. The second charge to which he has pleaded guilty is that on that same day at Queanbeyan, again whilst in company with Ms Cross, he detained the complainant named in that count without her consent and with the intention of obtaining an advantage, namely psychological gratification.

5. Those two offences, contrary to that section, are liable to a maximum penalty in each case of 20 years imprisonment.

6. The relevant facts are set out in an unnecessarily lengthy document entitled “Agreed Facts” which in my view is just a summary of evidence, but I accept, doing the best I can from that document and as quickly as possible, that the two complainants for these offences were teenagers at the time, namely on 14 June last year. The first was just under 15 and the second was 14 going on 15. The co-offender had previously been in a relationship with a man who had been married to a woman who was the mother of one of the complainants.

7. On 14 June 2017 at 11.40am the two complainants left their school with the intention of having a cigarette. They walked to a corner in Queanbeyan and whilst they were walking along the street, Ms Cross drove her vehicle and entered that street. Mr Peck was sitting alongside her in the passenger seat. The co-offender Ms Cross stopped the car near to where the victims were standing and started to verbally abuse the girls. She accused the complainant of the first count of having sexual relations with Ms Cross’s partner, a person who apparently was considered to be the stepfather of this complainant. The young girl denied the accusations, but Ms Cross refused to accept that. She started to pull what are described as “weapons” out of the glove box and took out four or five pocket knives and multi tools. The girls walked away.

8. Ms Cross got out of the car and approached them and continued to abuse them, making accusations of sexual relations between the complainant in the first count and her partner. She threatened her as follows:

“Tell me the truth otherwise you’re going to be dead.”

9. She put her body close to both of the complainants and claimed to recognise the scent of one of them on the bed she shared with her partner. This behaviour is all, on its face, quite bizarre.

10. The offender Mr Peck stayed in the passenger seat whilst this was happening. Ms Cross became increasingly angrier and demanded that the victim stop lying to her. She directed most of her abuse towards the first complainant. They became fearful of their safety because of her escalating anger. After a while they walked across the street away from the car. Ms Cross returned to the driver’s seat and drove in the direction of the victims. She stopped the vehicle as she approached one of them and demanded that she enter the vehicle by an aggressive demand. The complainant in the second count did so, getting into the rear of the vehicle, behind the offender Mr Peck.

11. Ms Cross then drove the car a short distance further up the street where the first complainant was and stopped the car there. She also demanded that that complainant enter the car. She did so and sat in the driver’s seat behind Ms Cross. Ms Cross then used the central locking mechanism to secure all the doors. One of the complainants tried to unlock the doors but Ms Cross said:

“Don’t even think, it’s locked.”

12. She then drove off fast and erratically and the victims feared that they would be involved in an accident. She then pulled over and asked again whether the first complainant was having sexual contact with her partner. They both denied this.

13. She drove the vehicle a short distance to another intersection. She then drove it to the vicinity of Lambert Park in Queanbeyan. She continued to abuse and threaten the victims during this trip. They were scared and were crying. One of the complainants telephoned her grandfather during this journey, but her sister answered. She was forced to give the phone to Ms Cross. Ms Cross then was abusive towards her sister and again made the allegation that both of the complainants this time had been having sexual contact with her partner. The complainant’s sister then rang her back and she answered. Ms Cross gave her instructions to tell her sister that she was at school and that she would call her back later, and she did so and hung up at Ms Cross’s direction.

14. The vehicle then stopped for about ten minutes, during which time Ms Cross continued to threaten the victims and threatened violence to their family members and threatened they would be killed if they attempted to run away. She produced a multi tool and then reached down and took hold of a knife and placed the knife on the dash of the vehicle. It was attached to a string and she also produced a pole. She made a threat to the complainants. They thought that she was going to hit them with the pole and they moved closer together. They were directed by Ms Cross to turn their phones off and to hand them to Mr Peck, which they did. This was so as to avoid their locations being revealed. This would appear to be the first actual involvement of Mr Peck in this offence, because until then he had merely been present in the car and on the evidence not taking any active part in the detention.

15. Ms Cross then drove past the high school. I accept that Mr Peck suggested that she should pull the vehicle over so that he could speak to the victims separately and to try to work out whether or not they were telling her the truth in their denials of sexual contact with her partner. She did so. I accept from the evidence that he has given today that he adopted this course, not because he believed he was engaging in further detention of the victims, but because he was attempting to ameliorate the situation to act as a circuit breaker and to bring about their release without harm. The car was stopped close to a park, Mr Peck got out of it and the doors were unlocked. He opened the rear passenger door and allowed one of the complainants to get out. They walked into a nearby park and there was a conversation. He encouraged her to write down the truth. She wrote down something which is contained in paragraph 17. I do not begin to understand what it means. He took the piece of paper but I accept from his evidence he did not read it. He then took her back to the car. That was a further participation by him in her continued detention and he accepts that. He cannot explain why he did not take some other course at that stage.

16. He then took the other complainant out of the car and repeated the behaviour, that is producing a piece of paper, asking her to write that she had not been involved with Ms Cross’s partner. She wrote something similar down on the piece of paper. He took it but did not read it and took her back to the car, again knowing that she would continue to be detained by Ms Cross. Even though he did that for both of the complainants, I accept that whilst he knew that he was contributing to their continuing detention, he thought that his intervention would cause them to be released more quickly and suffer less harm.

17. While one complainant was alone in the car with Ms Cross she forced her to write on a piece of paper that her mother was in fact sleeping with Ms Cross’s partner. Once they got back into the car the victims were given their phones back. Ms Cross continued to abuse and threaten them harm. She drove her vehicle back towards the school in an erratic manner and the victims feared that she was deliberately trying to crash it. They got back to the school but she did not allow them out of the car for another five minutes. Eventually she allowed them to get out of the car and made a last threat saying that they had two days to get out of town. It must be remembered that these girls were at that stage about one month short of 15 and about 14 and a half. She also said that she would kill the victims if they told the police what had occurred.

18. Not surprisingly they were very frightened. They ran screaming from the vehicle and went to the administration building where they lay down screaming on the floor outside the principal’s office.

19. Police were called a short time later. The girls provided a description of both offenders which was broadcast and at about 2.20pm police saw the vehicle in Queanbeyan still being driven by Ms Cross with Mr Peck on the passenger’s side. The police approached the car, identified themselves, reached into the cabin and turned off the ignition and took out the keys. Ms Cross was arrested. She refused to comply. She was taken from the vehicle. She struggled when being arrested and was placed on her stomach on the nature strip and secured. She had a mobile phone with her at the time.

20. The offender Mr Peck was removed from the passenger’s seat without incident or struggle. They were told the reason for their arrest and were cautioned. The keys which police removed had a folding knife attached to them in some form. They were seized. Mr Peck was searched. He handed police the two pieces of paper which had been written by the two victims and police also located a small quantity of methylamphetamine in his possession at the time of his arrest.

21. Ms Cross participated in a record of interview, but what she said is not relevant for the purpose of sentencing Mr Peck. Mr Peck on his arrest participated in an electronically recorded interview in which he adopted as a true record, the handheld digitally recorded interview conducted at his initial arrest. He told police that he was with Cross on and off throughout the day and was the passenger. He corroborated the details of the event as provided by the victims and which are the subject matter of the facts which I have just outlined.

22. Police searched the vehicle thoroughly shortly afterwards and found a number of items including a multi tool in the centre console, or several multi tools, a knife, some garden shears and other items as set out in paragraph 35 of the facts.

23. These would appear to be the relevant facts. When analysed and taken together with the evidence Mr Peck has given today I accept that his role in these aggravated kidnapping offences was very minor. He had no motive whatsoever for committing this offence except that he was in company with Ms Cross. I accept that when he was with her that day it was in connection with drug use. He was driving around in connection with drug use. Whilst the offence itself probably was planned to an extent by Ms Cross, he had no knowledge of that let alone any of the background matters surrounding her views about her partner’s connection with what appears to be at least three other people, these complainants and the mother of one of them. He did not know that she was going to commit the offence. Whether or not she stumbled on these girls fortuitously the facts do not disclose, but he had no idea that it was going to happen, nor what would ensue thereafter. His initial involvement could only be characterised as doing nothing to prevent the detention which cannot amount to his involvement in their detention. He did however participate in it as I have said by taking and holding their mobile phones at the request of Ms Cross, knowing that that was in order to continue their detention. He took each of them to the park to get them to write things down as part of the ongoing detention, but in circumstances where to an extent he was attempting to ameliorate their condition, but perhaps significantly he returned them to the car knowing that he was returning them to the detention. His aim however I accept succeeded to an extent because they were released not long afterwards. There is no evidence that he himself made any threats or participated in the aggression inside the car. He largely was just there and participated physically in the fairly minimal way that I have indicated.

24. As such whilst these are serious offences, because of the offence that they are, namely aggravated kidnapping, and the 20 year maximum penalty that attaches, not only is a s5 threshold reached, but in almost all cases it would be the case that full time custody is required. In fact he has served a period of full time custody. He was bail refused from 14 June 2017 till his release to bail on 31 January 2018, therefore more than seven months in full time custody, bail refused.

25. In terms of assessing the objective seriousness, I accept that the victims were very frightened. There is a victim impact statement from the first complainant which I have read and taken into account. I accept that she has ongoing fear and psychological sequelae as a result of this offence and the documented reaction when they were returned to school is further actual evidence of the impact on them. There is no evidence of injuries to the extent that would amount to an aggravating factor, however his commission of this offence is aggravated by the fact that at the time he was subject to three bonds for driving offences all of which were imposed at the Local Court at Queanbeyan on 31 March 2017. They are for very different offences, but nonetheless he was on liberty conditional on remaining of good behaviour which he clearly breached in a spectacular way on this day.

26. One of those was a s10 bond for 23 months for an offence of never licensed person driving, which apparently occurred on 12 August 2016. Another was a s9 bond for a person never licensed driving on a road, that bond for 12 months which was an offence that apparently occurred on 16 December 2016. The last was a s12 suspended sentence bond for a period of seven months for another offence of never licensed person driving a vehicle on a road which was apparently committed on 8 January 2017. As I have said, they are for very different offences, but he was dealt with relatively benignly in March 2017 in the Local Court overall and was subject to bonds to be of good behaviour for up to almost two years, all of which he breached when committing this offence three months later. That increases the seriousness of his offending.

27. That is the only aggravating feature it seems to me however and objectively his offending is very much towards the bottom of the range for offences capable of being charged under this section. The circumstance of aggravation being in company is statutorily one at the bottom of the range for circumstances of aggravation. Normally the presence of another person, particularly a relatively a young male who was of relatively large stature, would increase the degree of terror. However as I have said there is no evidence that he engaged in any aggression or angry behaviour or the like and his mere presence alone does not appear to have contributed to the seriousness of the offending. Nonetheless it is a serious matter.

28. I do not at this stage purport to deal with the motivation of Ms Cross, which is bizarre at best. He has other entries on his criminal record, but had never been in custody before being bail refused for these matters. His criminal record commenced in the Children’s Court. The other offences are of relatively minor nature, many of them involving the use of a motor vehicle without a licence or whilst not entitled to do so and there is nothing on his record to indicate a propensity to violence or anything even approaching the seriousness of the offence before me.

29. This plea of guilty was entered at the last possible opportunity when the matter was listed for trial. Nonetheless it has a utilitarian value. Neither of the victims was required to give evidence at trial. The trial had been listed for five days and that has not been necessary. What is more in his case in particular, the utilitarian value of the plea of guilty means that there is a certainty of conviction for him and it may well be in the circumstances, particularly the facts that are not before me, his guilt beyond reasonable doubt was far from a certainty. Nonetheless he has admitted his guilt, albeit late, and he does deserve a discount for the plea of guilty of somewhere between 10% and 15% in my view.

30. He has given evidence and there are a number of reports before the Court. He has used his time both in custody and since release well. In particular I accept from the sentencing assessment report that he was at the time a significant user of the drug methamphetamine known as ice, and that he was in his own words “on a seven day ice bender” at the time he committed this offence.

31. As I said, he was in custody bail refused between 14 June 2017 and was released on Supreme Court bail on 31 January 2018 to attend rehabilitation. I accept that he stopped using drugs whilst in custody and has remained drug free. He went straight from prison custody to services administered by Canberra Recovery Services initially in a residential program which commenced on 1 February 2018 which was a long term residential recovery plan. There is a report from that organisation dated 19 July 2018. I accept that by July he had successfully completed three stages of that program and that in the words of that organisation “had shown considerable growth since entering, participating in enthusiastically in groups and community duties.” He also became a mentor for new participants. He completed a ten week course called Preventing Violence, Managing Anger facilitated by the Every Man Organisation and there is a certificate from that organisation tendered.

32. He completed the first part of that placement on 16 September 2018 and since then has been residing in what is called a halfway house or an extended care home in Narrabundah in the ACT. He is reintegrating back to the community with the support of the Canberra Recovery Services whilst living there. Pastor Jackson from that organisation gave evidence and I accept from that evidence that he is doing extremely well, is regarded as a success by the organisation and in his words they are:

“proud of the success that he has achieved.”

33. He is not using drugs and has in fact started to undertake some mentoring and he is perceived as having leadership skills which may well be utilized by the organisation in due course. He continues to be involved in the 12 Step Fellowship and attends NA and AA meetings. He is also required to attend a weekly aftercare group every Tuesday. There are rules requiring abstinence from alcohol. There is a curfew at the halfway house as well and rules requiring the attendance at particular meetings.

34. As I have said, he is regarded as a model client by this organisation. He is to remain there until March and is due to complete this program on 30 March 2019. He will not be forced to leave immediately and the organisation will adjust him into fuller community living in due course. He has expressed a wish to go to Victoria in due course because his brother is there and he wishes to be with him and in his own words “Start afresh.” He is however realistic about the possibility of needing to remain close to the Queanbeyan area for a period of time before being permitted to relocate to Victoria. He has in my view demonstrated excellent rehabilitation and his prospects of ongoing rehabilitation are good. He also has insight into his offending behaviour and has expressed appropriate contrition and remorse for having committed the offence.

35. Community Corrections assess him at medium risk of reoffending using an actuarial scale, but it seems to me that his risk of reoffending, or in other words his prospect of reoffending is low because his prospects of rehabilitation are good based on his demonstrated rehabilitation so far and his commitment to continue in that. He has the support of family to continue with that which further elevates his prospects of rehabilitation.

36. Since the time of arrest he has spent in my view something close to 12 months in custody. The first almost eight months of that is between 14 June 2017 and 31 January 2018 and amounts to more than seven months, close to eight months. Since then up until 16 September this year he was subject to a form of restricted liberty at the residential facility run through Canberra Recovery Services. He remains in a perhaps more liberal, but again somewhat restricted form of living. When in rehabilitation, immediately after release to bail, he had significantly more restrictions including a full curfew and requirements to comply with a number of conditions of that rehabilitation unit. He has thus been in that form of somewhat restricted living since 1 February 2018. That is perhaps 9 or 10 months.

37. In accordance with authority that permits the Court to take into account that form of restricted living to an extent in assessing pre-trial custody, I will adopt the usual format of treating it as the equivalent of about 50% by way of full time custody added to the 7 months or a little more that he in fact spent in full time custody which leads me a view that he has spent about a year in full time custody or the equivalent of full time custody.

38. The appropriate sentence for this matter must be one of imprisonment in my view, but taking into account a degree of discount notwithstanding the lateness of the plea, but also in particular reflecting the relatively low objective seriousness of his offending on this occasion, I have concluded that an overall term of imprisonment of - I know I said two years before, but I am no sure that I agree with that any more I think it perhaps should be lower - of one year and nine months is called for. On a finding of special circumstances I will be setting a non-parole period of 12 months and backdating the sentence to commence a year ago from today so that he is released immediately to parole. This will be the sentence for each of the offences. Whilst the charges are involving two separate complainants, nonetheless in my view they reflect one overall episode of criminality. There is no distinction as between the two of them, at least so far as this offender is concerned and in my view the sentences ought to be served concurrently with each other.

39. For that reason then I make the following formal orders:

40. The offender is convicted for each offence. He is sentenced to a non-parole period of 12 months commencing 15 November 2017 expiring 14 November 2018 with parole thereafter of nine months commencing 15 November 2018 and expiring 14 August 2019, giving rise overall to a term of imprisonment of one year and nine months commencing 15 November 2017 expiring 14 August 2019. I direct he be released to parole forthwith subject to supervision from Community Corrections.

41. I note the s9, s10, s12 bonds have not yet been called up. I recommend that they not be called up. The breach of them has been taken into account in determining the objective seriousness of these offences.

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Decision last updated: 16 August 2019