R v Patrick Pengelly

[2020] NSWDC 112

District Court

New South Wales

Medium Neutral Citation:	R v Patrick Pengelly [2020] NSWDC 112
Hearing dates:	31 March 2020
Date of orders:	21 April 2020
Decision date:	21 April 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to imprisonment – see [78]-[81]
Catchwords:	CRIME – sentencing Specially Aggravated Kidnapping – whether gratuitous cruelty made out – Bugmy factors – need for rehabilitation
Legislation Cited:	Crimes Act, 1900 Criminal Procedure Act, 1986
Cases Cited:	The Attorney General’s Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR R v Speechly [2012] NSWCCA 130 Melvaine v R [2019] NSWCCA 274 McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94 Bugmy v The Queen [2013] HCA 37 R v Youseff [2012] NSWDC 252 R v Bamblett & Green [2019] NSWDC 29 R v Brown & Leuthwaite [2020] NSWDC 1 Nowak v R [2008] NSWCCA 89 R v Elyard [2006] NSWCCA 43
Category:	Sentence
Parties:	The Director of Public Prosecution (for the Crown) Patrick PENGELLY
Representation:	Solicitors: Ms Morgan (for the Crown) Ms Winn (for the Offender)
File Number(s):	2018/345422
Publication restriction:	No

Remarks on sentence

1. The offender appeared at the Wagga Wagga Local Court on 30 October 2019 and pleaded guilty to the following charge:

That (he) (on or about) 8 November 2018 at Tolland in the State of New South Wales did without consent detain Dale Tapper with the intention of committing a serious indictable offence, (namely) larceny the said Patrick Pengelly having occasioned actual bodily harm while being detained while the said Patrick Pengelly was in the company of Joshua Leota, contrary to s 86(3) of the Crimes Act, 1900.

2. The plea of guilty was adhered to at the sentence hearing of the Wagga Wagga District Court on 31 March 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.

3. The maximum penalty prescribed for the offence contrary to s 86(3) of the Crimes Act is twenty five years imprisonment. Parliament has not specified a standard non-parole period in respect of the offence.

4. The offender also pleaded guilty to a charge of Drive While Disqualified which is attached to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. A separate sentence will need to be imposed on that matter, noting that I am exercising the jurisdiction of the Local Court in that matter.

5. The offender also asks that when passing sentence in respect of the Specially Aggravated Kidnapping charge that I take into account on a Form 1 document a charge of Take and Drive Conveyance contrary to s 154A of the CrimesAct. In dealing with that matter I will need to have regard to and apply the principles enunciated by the Court of Criminal Appeal in The Attorney General’s Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146.

Facts

6. The facts are before the court by way of Agreed Facts signed by the legal representatives of the parties. Both parties confirmed that the facts were agreed facts at the initial stage of the sentence hearing.

7. At about 5.30pm on 8 November 2018 the victim Dale Tapper drove his mother’s vehicle to Kooringal Mall where he parked and purchased cigarettes. On returning to the vehicle he sat in the vehicle with the driver’s door open having a cigarette. He then got out of the car to extinguish the cigarette. As he did so he was approached by the offender, who he had known for a number of years. The victim returned to the driver’s seat.

8. The offender also entered the vehicle sitting in the front passenger’s seat. The victim noticed a 1990s model Landcruiser vehicle nearby. He then saw an islander who he recognised as Leota (the co-offender) approach, who then got into the back of the vehicle. Pengelly accused the victim of owing someone called “Scotty” some money. The offender reached across and took the victim’s wallet from a compartment in the door, removed $20 from the wallet, put that in his pocket and took the victim’s cigarettes.

9. Leota began asking the victim if he knew a person called Kelleher, explaining that Kelleher had recently won money on a poker machine and that he and the offender wanted to obtain money from him. Leota also asked whether he knew a man “Wok”. Leota then directed the victim to drive to Kennedy and directed the victim not to draw attention to himself. The offender drove away from Kooringal Mall and said that he did not know where Kennedy was. The offenders said they would direct him.

10. The offenders then directed the victim to a block of units at Nordlingen Drive in Tolland. The victim while driving noticed that the white Landcruiser he had seen earlier was following. The victim was directed to park in a driveway at the block of units. He noticed the Landcruiser park nearby. A male person who the victim did not know exited the Landcruiser and went to Unit 6.

11. The offenders (this offender and Leota) demanded that the victim keep his windows wound up, his seat belt on and the doors locked while inside the vehicle. Leota said that he was $17,000 in debt and made a number of suggestions as to how the victim might repay that money. The victim said that his mother had a safe containing money at home and that he could obtain that money for them. The offenders discussed whether they should allow him to do that. The three were in the vehicle for about ten minutes.

12. This offender then backhanded the victim to the jaw. Leota grabbed the seatbelt and held him in place for a few seconds. The victim felt that his breathing was being restricted. Both offenders hit the victim and taunted him with things such as that he was now in the “bone yard in gaol”.

13. Leota exited the vehicle, opened the driver’s door and took the victim by the hand saying, “you’re going to put your arm around me, and we are going to look like mates”. The victim felt something sharp at his ribs but was too afraid to look down. Leota said words to the effect of, “don’t try to run away or I’ll put it into your guts”. Leota laughed and led the way to unit 6 with this offender following.

14. The victim and the offenders walked up a flight of stairs to unit 6 of 4 Nordlingen Drive. The offender and Leota led the victim up the stairs and through an open door into the unit. The victim was sat inside on a couch directly in front of the door for some minutes. The victim recognised a third male in the unit as the driver of the Landcruiser. Two young women were present.

15. The offender and Leota then demanded the victim get inside the laundry. Upon entering the laundry this offender kneed the victim to the head twice and Leota struck him to the head a number of times with a closed fist. They accused the victim of being a woman basher and suggested that he “got Kara locked up”. Leota using a pair of scissors cut the victim’s hair. The offenders then left the laundry leaving the victim there.

16. Around ten minutes later this offender produced a small blow torch, which was held towards the victim. This offender used the blow torch to cause small burns to the victim’s right hand and to the victim’s back. These burns are described later in the facts as being superficial. Leota returned to the laundry and this offender turned off the blowtorch. Leota threatened the victim with the scissors he had earlier used to cut his hair. The offenders then left the victim in the laundry with the door open. Given what had occurred to this point in time it is not surprising that the facts recite that the victim feared for his safety.

17. At about this time the driver of the Landcruiser returned to the unit with pizzas which were consumed by those present while the victim remained in the laundry. While the victim was in the laundry he was subject to regular checks by this offender or Leota with the checks becoming more infrequent over time.

18. This offender left the unit with the driver of the Landcruiser and a fourth male. The victim heard discussion of them going to buy some shard, which I presume is a reference to methyl amphetamine or “ice”. The victim remained in the unit with the two young women and Leota.

19. Leota returned to the laundry and began talking to the victim. Leota was not making much sense and the victim described him as being “spun out”. Leota made the victim to enter the main bedroom with the female who was the occupier of the premises. Leota said words to the effect of, “she wants to fuck you and you’re going to be her slave”. Leota closed the door. The female said to the victim, “When are they going to let you go, I’m bored”. The victim said he did not know.

20. Meanwhile, this offender returned to the unit with another young woman who said hello to the victim. This offender told her not to be nice to the victim. Pengelly and this woman left the unit about twenty minutes later and were gone for about an hour. Leota told the victim to come into a room with him the other of the two women. The victim did not say anything but observed that Leota and the woman were “talking in riddles”. After a while Leota told the victim to return to the laundry, which he did.

21. After about an hour or so this offender and the third young woman again returned to the unit as did the driver of the Landcruiser. Pengelly returned to the laundry with the blowtorch and called the victim “a piece of shit”. Pengelly and the other occupants (other than the victim) smoked ice.

22. Leota continued to perform checks on the victim to ensure that he was not trying to escape. At various times the victim was moved from the laundry to the bedrooms and back again. The victim considered escape but feared for his safety.

23. While the victim was in the laundry a bowl was placed on the laundry floor and the victim was ordered to get on all fours and drink from the bowl.

24. Pengelly, Leota and the driver of the Landcruiser then took the victim to the lounge area of the unit and had him draw a diagram of his mother’s house and they wanted to know where the safe containing the money was located. The victim said that his mother and young daughter were home to which this offender said he did not care.

25. This offender and Leota then struck the victim to the head a number of times. Leota squeezed the victim around the neck from behind and the victim could feel that his breathing was restricted. Pengelly again struck the victim to the head. The victim pleaded with the men to end his ordeal saying, “Please, please Pat, I’ve had enough, I’m fucked”. This offender, Leota and the Landcruiser driver then discussed who would remain with the victim while they went to the victim’s mother’s home. Pengelly made the victim re-enter the laundry where he sat as Pengelly watched him from the lounge room.

26. At about midnight the victim decided to attempt to escape. He asked if he could use the toilet and he was allowed with the admonition “not to do anything silly”. The victim checked the toilet window but was unable to escape. He crept back to the bedroom but the window was locked. He then barged through the window causing it to shatter before jumping through and running down the outside stairs. In doing this the victim sustained cuts to his hands and feet.

27. The victim ran south along Joyes Place looking for assistance. He had no luck knocking on doors and he then saw this offender driving his mother’s car. The victim went to a nearby unit where the occupants contacted 000 for him. He was taken by ambulance to the local hospital. Blood at the scene of the broken window at unit 6 of 4 Nordlingen Drive was analysed and matched the DNA profile of the victim.

28. Attempts were made to raise the occupants of unit 6 of 4 Nordlingen Drive but they were unsuccessful.

29. The injuries sustained by the victim in the course of the offending were bruising and swelling to his jaw, a 3 cm cut to his left hand that required suturing, and three burns to the right side of his back, the biggest being about 10 cm. The burns were superficial, did not blister and were treated conservatively by being covered with jelonet. He was required to return to the hospital the following day for review and the burns to be dressed.

30. Going to the matter on the Form 1, later in the morning of 9 November this offender, Leota, the Landcruiser driver, Daniel Bell and one of the young women who had been present in the unit were in the Landcrusier in Kooringal. Daniel Bell had been the fourth male present at the unit the night before. Bell agreed to drive them to where they wanted to go. Pengelly directed him to pull over near a school. Pengelly got into the driver’s seat and drove Bell’s vehicle away without Daniel Bell’s consent. Bell waved down a passing motorist and reported the theft of his car to the police. The vehicle was later recovered in another suburb of Wagga Wagga and was seized by police for examination. Pengelly was disqualified from driving giving rise to the matter attaching to the s 166 Certificate.

31. The offender was arrested on 9 November 2018. It is agreed between the parties that that is the date from which the sentence should commence.

Assessment

32. In determining the objective seriousness of the matter I have regard to the decision of R v Speechly [2012] NSWCCA 130 per Johnson J (McClellan CJ at CL and Hammerschlag J agreeing) at [105]-[110]. In the present matter the detention was for approximately six and one half hours. A typographical error on the agreed facts was discovered the day before the sentence hearing, meaning that the length of the detention was as I just stated and not 18 hours. This has an impact on the assessment of the matter.

33. The serious indictable offence of larceny is at the cusp of being a serious indictable offence. Being in company and the infliction of actual bodily harm are essential elements of an offence contrary to s 86(3) of the Crimes Act. The Crown submitted that I would find that the statutory factor of aggravation of the offence being committed in company is made out. Clearly it cannot be so as it is an element of the offence.

34. The fear or terror instilled in the victim is significant. This is particularly so when the use of the blowtorch is considered. The victim was repeatedly assaulted around the region of the head. The victim’s concern for his own wellbeing is amply demonstrated by him crashing through a window to escape. A number of degrading acts were occasioned to the victim such as being ordered to drink from a bowl on the floor while on all fours and being told he was a slave. There was a very considerable amount of intimidation directed to the victim while he was detained in the unit.

35. The Crown, relying on the decision of Melvaine v R [2019] NSWCCA 274, submits that I would find pursuant to s 21A(2)(f) of the Crimes (Sentencing Procedure) Act the factor of statutory aggravation of the offending involving an act of gratuitous cruelty. To ground this submission the Crown relies upon the use of the blowtorch, the cutting of the hair, the direction that the victim drink from the bowl on the floor and that the victim was told he was going to be a “sex slave”. The Crown went on to submit that these aspects of the events of 8 and 9 November 2018 could have had no other purpose than causing further degradation of the victim and to cause him further suffering.

36. The decision on which the Crown relies related to a charge of aggravated robbery involving a 76 year old victim. At [26] of the decision Cavanagh J refers to the decision of McCullough v R where Howie J in giving the judgment of the Court (McClellan CJ at CL; Simpson J (as her Honour then was) agreeing) at [29]-[30]:

“With respect, I have difficulty with her Honour's reasoning for finding that the offence involved gratuitous cruelty. In dealing with an aggravating factor under s 21A(2) it is not a case of just defining the words and seeing whether that definition applies to the facts of the case. I would have thought it was quite unnecessary to go to a dictionary to understand what was intended by Parliament in enacting this particular aggravating factor. If her Honour were correct as to the meaning of the term as used in s 21A, the aggravating factor would be present in any offence that is committed without justification and causes the victim great pain. It would be difficult to find that such a factor would not be present in almost every case of malicious wounding as the word "malice" provides that the wounding is without justification. Nor is the factor made out because the victim "did not deserve such treatment" at the hands of the offender, whatever be their relationship.

[30] Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain.”

37. Ms Winn for the offender submitted that the use of the blowtorch and the other matters relied upon by the Crown did not amount to “gratuitous cruelty” but rather was part of the ongoing intimidating behaviour that was being used to detain the victim and the court should not find the statutory factor of aggravation made out.

38. My reading of the judgment of Cavanagh J in Melvaine v R at [29]-[31] inclusive is that the Court of Criminal Appeal was of the opinion that the learned sentencing judge did not make the finding as asserted that he did, but that he would have been justified in the facts of that case in making such a finding.

39. The matters relied upon by the Crown all go to the determination of the objective seriousness of the matter. Taking into account the decisions of McCullough and Melvaine after giving the matter a great deal of consideration I am not prepared to find the offending involved gratuitous cruelty pursuant to s 21A(2)(f) of the Crimes (Sentencing Procedure) Act.

40. That being said it must be observed that the conduct to which the victim was subjected over the six odd hours that he was detained was very degrading and would have been terrifying. These are all matters that go to the seriousness of the matter. Further, even if I had found the offending involved gratuitous cruelty, that finding could not have had any practical impact on the sentence to be imposed because of the issue of double counting as those matters have already been taken into account in the assessment of the seriousness of the matter.

41. Taking into account the length of the detention, the nature of the detention through the intimidating and violent conduct, the use of the blowtorch and the degrading conduct and noting the injuries sustained by the victim, I am of the opinion that the matter is marginally or slightly below the notional mid-range of seriousness. I did not understand either of the advocates to dissent from an indication I gave to this effect at the sentence hearing.

42. Leota has not yet been dealt with so there is no issue of parity. If it becomes a consideration, on the material before me on this matter I would assess Leota’s criminality as being marginally greater than that of this offender.

43. The charge on the form 1 and the charge attaching to the s 166 Certificate are unremarkable examples of those types of offences.

Criminal History

44. The offender was born on 19 August 1993 making him now 26 years of age and for his age has an unenviable criminal history. He has matters recorded against him in the Children’s Court for serious Break Enter and Steal type offences and I also note an offence of Armed Robbery. He was dealt with on indictment in the District Court for Assault with Intent to Rob and Steal from the Person in 2015. He has a number of convictions in the Local Court including for Damage to Property, Common Assault, Fail to Appear, Driving matters including Drive While Disqualified, and Custody of a Knife in a Public Place.

44. The offender has a record that does not entitle him to any particular leniency. As much is conceded on behalf of the offender in Ms Winn’s written submissions. However, the record could not be used against the offender as an aggravating factor.

45. However, the offender was on parole in respect of a charge of Drive While Disqualified at the time of the offending, which is a factor of statutory aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

Subjective Case for the offender

47. Oral evidence was given on behalf of the offender by his father Wayne Fellows and a Psychiatric Report from Dr Sam Calvin was tendered. Dr Calvin’s report is exhibit 1 on sentence.

48. Mr Fellows was obviously upset by the experience. He gave evidence that he met the offender’s mother when he was about 19 or 20. There were nine children in the household. In a quite candid and blunt fashion he went on to say that he and his partner together with members of their extended families would routinely drink excessively from Thursday night to Saturday night when the offender was a child. The offender in his formative years would have witnessed many acts of drunkenness.

49. Further Mr Fellows gave an equally blunt account of domestic violence. He said without hesitation that he had been to gaol a number of times for assaulting his partner and the offender as a child growing up witnessed some of these acts of domestic violence. He gave an account of one of their other children trying to stop a fight between him and his partner.

50. The domestic violence also included violence by his partner towards him including the throwing of knives and bottles. It is 16 years since he has been to custody.

51. Given Mr Fellow’s evidence, of whom the Crown said in her submissions was well known to the court system, I have no hesitation in finding that the principles enunciated by the High Court of Australia in Bugmy v The Queen are enlivened reducing the moral culpability of the offender.

52. The evidence of Mr Fellows is in sharp contrast to what appears at paragraph 17 of Dr Calvin’s report which recounts that the offender told him that he grew up with six brothers and three sisters and that he had a good upbringing. Drawing on my experience in dealing with indigenous offenders, particularly in western and far-Western New South Wales I note a reluctance to be critical of an upbringing even if involving regular exposure to alcoholism, drug abuse and violence is not uncommon. The behaviour and issues that enlivens the “Bugmy factors” has become accepted as normal.

53. The offender attended school and was “an average student”. He completed Year 10 and initially was an apprentice in metal and woodwork but then worked at the local abattoir for 8 or 9 years. He has a partner and has been with her for four years.

54. Going to other aspects of Dr Calvin’s report he notes at paragraph 1 that there was no clear evidence of a depressive syndrome or anxiety disorder. The offender recollected occasional paranoia and psychotic symptoms, but these were related to substance intoxication. The offender reported a significant history of alcohol and crystal methamphetamine addiction.

55. The offender began using alcohol at 14 or 15, drinking rum at home with friends. That developed into a habit of binge drinking from Friday afternoon to Monday morning. He began using methyl amphetamine at the age of 18 and by 19 was a daily user of the substance. He attempted to “quit drugs” in 2006 but was unsuccessful. He was forced to resign from employment due to substance misuse.

56. The offender has been diagnosed with left testicular cancer and is subject to regular checks.

57. At paragraph 24 Dr Calvin notes that the offender was open to the idea of drug and alcohol counselling and rehabilitation. It is also noted that the offender had taken responsibility for his offending and was keen to make amends.

58. The statement about taking responsibility for his actions and being keen to make amends is untested. There is insufficient evidence for me to make a finding on balance that the offender is remorseful. On this issue I note that Ms Winn submits in the written submissions that I could find on balance that the offender is remorseful because of the plea and his acknowledgement that the fear this event must have caused the victims. I have considered these submissions but maintain my initial stance that as the statements are untested I am not prepared to find on balance that the offender is remorseful.

59. Likewise, given the criminal history, ongoing substance abuse issues and the fact that this offending was committed while subject to parole I could not be satisfied on balance that the offender has good prospects of rehabilitation or that he was unlikely to re-offend. However, while on the material before me I cannot make that finding on balance that there are not good prospects of rehabilitation, the situation is not hopeless. I observe that rehabilitation is rarely successful on the first attempt. The offender is still a relatively young man.

60. Dr Calvin at paragraph 27 of his report opines that the offender meets the DSM-5 criteria for alcohol and stimulant use disorder. The report continues that the offender described a prolonged period of substance misuse with features of dependence. A little later Dr Calvin opines that the drug addiction played a role in the offending.

61. Further, Dr Calvin recommends that the offender have an extended period at a rehabilitation unit focusing on craving management and relapse prevention. Ms Winn who appeared for the offender also tendered on sentence extracts from the Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants. I will deal with those extracts a little later in these remarks.

62. However, the history of substance abuse and the contents of Dr Calvin’s report together with the age of the offender is such that a reasonably generous finding of special circumstances is justified in any event. If the offender is going to be successful at rehabilitation he will need a relatively lengthy period of intensive and extensive supervision to ensure that he receives the appropriate treatment and counselling for his substance abuse issues.

63. Dr Calvin also opines that the offender would benefit from individual psychotherapy that could help with the anxiety. He also recommends cognitive behaviour therapy along with an ongoing focus on abstinence from alcohol and drug use.

64. The extracts from the Special Commission of Inquiry goes into the limited resources in correctional centres for dealing with inmates with alcohol and substance abuse issues. Further, that within the custodial environment the access by these workers to the inmates is limited because of the “structured day” – see paragraphs 20.70-20.81. Further at 20.231 is a summary of evidence that the current resources are inadequate to support both drug and alcohol and mental health management. At paragraph 20.278-297 the significant waiting time for acceptance into a rehabilitation programme in custody is set out. I have read and considered the material provided from the Special Inquiry. The material was of real interest and fortifies my opinion that there should be a finding of special circumstances. These aspects of the report of the Special Commission of Inquiry are amplified in Ms Winn’s supplementary written submissions.

65. Ms Winn with commendable thoroughness in the preparation of the matter has provided a table of cases dealing with offences contrary to s 86(3) of the Crimes Act. However in her written submissions she pragmatically concedes that the comparative cases are of little assistance. I observe that the criticism by his Honour Judge Neilson of the drafting of the Court Attendance Notice in R v Youseff [2012] NSWDC 252 also has some application in the matter presently under consideration.

66. R v Bamblett & Green [2019] NSWDC 29 is a judgment of mine and the criminality in that matter was more serious that the matter presently under consideration. The same observation can be properly made in the sentence imposed by his Honour Judge Buscombe in R v Brown & Leuthwaite [2020] NSWDC 1.

67. Other aspects of the written submissions include that the offender was 24 at the time of the offending and is now 26. He has been in custody since 9 November 2018. It was my understanding at the sentence hearing that both parties accepted that that was the appropriate date of commencement of the sentence. Material within the Crown tender bundle indicates that parole in respect of the drive while disqualified charge to which the offender was subject at the time of the offending was not revoked. There is therefore no issue of partial accumulation with a balance of parole.

68. The written submissions also go to the objective seriousness of the aggravated kidnapping charge. A number of points are validly made, however as I observed at the sentence hearing Ms Winn did not come to a conclusion as to where the matter sat on the scale of seriousness. I have already dealt with the issue of the seriousness of the matter at some length.

69. Ms Winn sets out within her written submissions that it is conceded that that the factor of statutory aggravation that the offender used a weapon – s 21A(2)(c) of the Crimes (Sentencing Procedure) Act is made out. Technically this is correct noting the use of the blowtorch and the decision of Nowak v R [2008] NSWCCA 89 per Buddin J at [15]-[17]. However, again the issue of the use of the blowtorch has been taken into account in making a determination of the objective seriousness of the matter and to give further weight to the issue of the use of a weapon would be double counting.

70. In relation to factors of statutory aggravation that are so often submitted by the Crown, particularly given some of the issues with them demonstrated by the matter presently under consideration, it is worth noting the admonition of Howie J in R v Elyard [2006] NSWCCA 43 at [39]:

“It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section’s demands”.

General Remarks

71. The oral submissions by the parties were relatively brief. At an early stage of the sentence hearing I indicated preliminary views as to the objective seriousness of the aggravated kidnapping charge, the use I was proposing to make of the criminal history and that on balance on the material I was unable to find remorse, good prospects of rehabilitation and unlikely to re-offend.

72. Ms Winn submitted that I would not find gratuitous cruelty but that has already been dealt with at length. It was submitted that more than what is present in this matter would be required to make such a finding. This was also the subject of submissions in reply. I also indicated following the evidence of the offender’s father that I take no persuading that the factors enunciated in Bugmy v The Queen are enlivened.

73. There is the issue of the matter of drive while disqualified attaching to the s 166 Certificate. The offender was on parole for a similar offence and he has been before the Local Court a number of times for that type of offence. It is appropriate that a sentence be imposed in that matter but the level of accumulation would only be slight. I did not understand either counsel to dissent from this initial view when I expressed it at the sentence hearing.

74. A number of the submissions by the Crown have already been dealt with, particularly on the issue of whether I make the finding that the statutory factor of aggravation of gratuitous cruelty was made out. I understood the Crown’s position to be that the matter was marginally below the mid-range of seriousness. The Bugmy factors were conceded. There was no issue that there be a finding of special circumstances.

75. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

76. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the nature of offending and the criminal history I am firmly of the opinion that there must be a sentence of imprisonment. Likewise, noting those same issues, the sentence must be a sentence of full time imprisonment. I did not understand Ms Winn to submit otherwise.

77. I am of the opinion that the appropriate starting point for the total sentence, taking into account the Form 1 matter for the charge of Specially Aggravated Kidnapping, is in the vicinity of 7 years 6 months. From that is deducted the 25% for the utilitarian value of the plea, leaving a total sentence after some rounding down of 5 years 6 months. For reasons already enunciated I am of the opinion that there should be a finding of special circumstances.

Orders

78. In respect of the charge:

That (you) (on or about) 8 November 2018 at Tolland in the State of New South Wales did without consent detain Dale Tapper with the intention of committing a serious indictable offence, (namely) larceny the said Patrick Pengelly having occasioned actual bodily harm while being detained while the said Patrick Pengelly was in the company of Joshua Leota, contrary to s 86(3) of the Crimes Act, 1900.

You are convicted. You are also convicted of the charge of Driving While Disqualified that attaches to the Certificate Pursuant to s 166 of the Criminal Procedure Act, 1986.

79. In respect of the charge of Drive While Disqualified you are sentenced to a fixed term of 6 months (indicating a starting point of 8 months) to commence from 9 November 2018 and which expired on 8 May 2019. I impose a disqualification of 12 months.

80. In respect of the charge of Specially Aggravated Kidnapping contrary to s 86(3) of the Crimes Act, taking into account the matter on the Form 1 document you are sentenced to a non-parole period of 3 years 8 months (44 months) to date from 9 December 2018 and which will expire on 8 August 2022. Thereafter there will be a period on parole of 1 year 10 months (22 months) to date from 9 August 2022 and which will expire on 8 June 2024.

81. You will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

82. Although it is entirely a matter for the parole authorities I recommend in the strongest of terms that any release to parole contain a condition that you comply with all reasonable directions as to ongoing treatment and counselling for alcohol and substance abuse issues.

83. The total effective sentence is 5 years and 7 months with 3 years 9 months in actual custody before being eligible for parole. The non-parole period for the Specially Aggravated Kidnapping charge is two-thirds of the total sentence. The actual time in custody when the sentence for the Drive While Disqualified is taken into account is approximately 67% of the total effective sentence.

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Decision last updated: 21 April 2020