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

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.

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.
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.
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.
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…

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 Patrick Pengelly

Details

AGLC: R v Patrick Pengelly [2020] NSWDC 112
Case: [2020] NSWDC 112
Decision Date: 21 April 2020

CaseChat Overview and Summary

The case of R v Patrick Pengelly involved the defendant, who was found guilty of the crime of specially aggravated kidnapping. The court was required to determine an appropriate sentence for the defendant, taking into account the severity of the crime and the need for rehabilitation. The legal issues before the court included the determination of whether the conduct of the defendant constituted gratuitous cruelty, the application of the Bugmy factors in sentencing, and the need for the defendant to undergo rehabilitation.

The court considered the gravity of the offence, noting that the kidnapping involved significant elements of violence and fear. The judge examined the Bugmy factors, which include the nature and circumstances of the offence, the degree of culpability, and the defendant's background and prospects for rehabilitation. The court highlighted the gratuitous cruelty exhibited during the offence, which included threats and violence towards the victim. The judge also assessed the defendant's history and prospects for rehabilitation, acknowledging that there were factors that warranted consideration of a rehabilitative approach.

In reaching its decision, the court balanced the need for punishment and deterrence against the possibility of rehabilitation. The judge determined that the defendant's conduct warranted a significant custodial sentence but also recognised the potential for rehabilitation. The court ultimately sentenced the defendant to a term of imprisonment, taking into account the factors discussed. The specific details of the sentence, including the duration and conditions, were outlined in the final orders of the judgment.

Orders

Orders of the court

Sentenced to imprisonment – see [78]-[81]

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 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