R v Prigg; R v Boyton

[2024] NSWDC 400

District Court

New South Wales

Medium Neutral Citation:

R v PRIGG; R v BOYTON [2024] NSWDC 400

Hearing dates:

5 September 2024

Date of orders:

6 September 2024

Decision date:

06 September 2024

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced – see paragraphs [97]-[105]

Catchwords:

Sentence – Specially Aggravated Take and Detain – Joint Criminal Enterprise – Different facts for each offender – onerous bail conditions

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes Act, 1900

Crimes (Domestic and Personal Violence) Act, 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

DG (No. 1) v R [2023] NSWCCA 320

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Khanat v R (Cth) [2024] NSWCCA 41.

Khanwaizv R [2012] NSWCCA 168

R v Butler [2024] NSWCCA 133

R vPalu (2002) 134 A Crim R 174

R v Reeves [2024] NSWCCA 154

R v Speechley (2012) 221 A Crim R 175

R v Webb (2004) 149 A Crim R 167

Stanley v DPP [2023] HCA 3

Taitokov R [2020] NSWCCA 43

Tonga, Samuel [2023] NSWCCA 120

Zheng v R [2023] NSWCCA 64

Category:

Sentence

Parties:

Rex
Charles PRIGG
Daniel BOYTON

Representation:

Counsel:
Mr S Baumgarten for the Crown
Mr J Clarke for the offender Prigg
Mr S Sinclair for the offender Boyton

Solicitors:
Office of the Director of Public Prosecutions
Schumer Lawyers for the offender Prigg
Aboriginal Legal Service for the offender Boyton

File Number(s):

2020/286808 (Prigg)
2021/67037 (Boyton)

Publication restriction:

No

JUDGMENT

1. The offender Charles Prigg was committed for trial from the Wagga Wagga Local Court on 21 April 2021. On 4 June 2024 He pleaded guilty to a charge that he:

On 4 October 2020 in Estella in the State of New South Wales, whilst in the company of Daniel Boyton and Emma Field took William McGregor without his consent and with intent to hold him to ransom and at the time of the taking actual bodily harm was occasioned on William McGregor, contrary to s 86(3) of the Crimes Act, 1900.

2. There was a further count on the indictment, however, the Crown accepted the plea of guilty to that count in full satisfaction of the indictment. It is uncontroversial that the offender is entitled to a discount of 5% for the utilitarian value of the plea of guilty.

3. At the sentence hearing the offender Daniel Boyton pleaded guilty to two counts on an indictment, namely that he:

1. On 4 October 2020 in Estella in the State of New South Wales, whilst in the company of Charles Prigg and Emma Field took William McGregor without his consent and with intent to hold him to ransom and at the time of the taking actual bodily harm was occasioned on William McGregor, contrary to s 86(3) of the Crimes Act, 1900.

2. On 4 October 2020 at Mount Austin in the State of New South Wales did intimidate William McGregor with the intention of causing to fear physical harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007.

4. Although the offender Boyton pleaded guilty to an earlier indictment, it is uncontroversial that he appeared at the Wagga Wagga Local Court on 17 April 2024 and pleaded guilty to these charges and was committed for sentence. The indictment was apparently presented to overcome some issue with the committal documents.

5. The maximum penalty for the offence contrary to s 86(3) of the Crimes Act is 25 years imprisonment. There is no standard non-parole period specified in respect of that offence. The maximum penalty for the offence of Intimidation is 5 years imprisonment, again with no standard non-parole period.

Facts

6. The facts in respect of both offenders are before the court by way of a set of agreed facts. However, there is a separate set of facts in respect of each offender and there is a live issue between the parties as to the respective roles and culpability of each of the offenders. Despite there being a set of agreed facts the Crown also tended, without objection from either of the offenders, a thumb drive on which is recorded footage of the events with which this matter is concerned.

7. The victim at the relevant time was residing at an address in Estella, a suburb to the north of the CBD of Wagga Wagga, with his mother. The victim on 30 September 2020 returned to the Wagga Wagga area from the Gold Coast, where he had been working. A Mr Joel Passlow lives near by the victim. He and the victim have known each other since childhood. The victim has known the offender Prigg since they were at high school together.

8. The victim had constructed for the offender Prigg a trailer which he sold to him for money. Prigg found that the trailer was not well built. The father of Jemma Field, the co-offender, owned a white Suzuki Swift. Passlow contacted the victim in the days leading up to 4 October 2020 and told him to contact Prigg regarding the trailer.

9. About 12 midnight on Sunday, 4 October 2020 the victim returned to his home after dropping off a friend at another location in Wagga Wagga and dropping off the person Passlow at his home.

10. A short time later the victim observed a white Suzuki Swift driving down Samson Street past his house. The vehicle conducted some U-turns and stopped momentarily before driving to the victim’s home and parking outside the premises. Jemma Field was driving that Suzuki vehicle. Prigg was in the front passenger seat. Passlow was in the rear behind the driver (Jemma Field) and Boyton was seated in the rear behind Prigg.

11. Prigg said to the victim, “Come around here”. The victim approached the front passenger’s side of the vehicle. Prigg got out of the vehicle and said to the victim, “You’re coming with us”. The facts in respect of Prigg set out that Boyton also exited the vehicle and forced the victim into the back seat of the vehicle and the car drove off. I will deal later with this aspect so far as the facts in respect of Boyton are concerned.

12. The victim said, “What the fuck’s going on”? Prigg turned around and began punching the victim to the face hitting him in his right eye number of times which caused immediate pain and swelling. Prigg said to the victim “Where have you been? You owe me money?”. The victim believed that Prigg was talking about a debt from a few years ago which was for a few hundred dollars. Passlow told Prigg to take him back to his mother’s house and said “I’ll get the money you think we owe”. The recording, exhibit C, indicates that a great deal more than this was said by Prigg in the vehicle.

13. Prigg also requested that the victim hand over his phone, which he did.

14. Jemma Field drove the car to Boyton’s residence at an address in Mount Austin, another suburb of Wagga Wagga. After she parked the car, everyone walked up to the veranda and to the front door of the home. Boyton reached over to unlock the door and the victim managed to escape, jumping off the small landing outside the front door into the front yard. The victim ran off along Philip Avenue into Margaret Avenue and as he was running away, he heard someone call out, “You’re dead now.”

15. The victim hid behind a gate in Margaret Avenue for approximately four hours until he believed it was safe. He then made his way to his ex-girlfriend’s house where he spoke to Morgan Harmer and told her what had occurred. The victim contacted 000 using Ms Harmer’s mobile phone.

16. Police arrived a short time later and spoke to the victim. This was captured on body worn video. Police observed the victim had sustained injuries to his right hand and had major swelling and bruising to his right eye. At about 7:05am police conducted a drive-through, where the victim identified 33 Philip Avenue, Mount Austin as the location to which he was taken and from where he escaped.

17. There is no victim impact statement or medical material relating to the injuries sustained by the victim. Accordingly, the actual bodily harm is as set out in the agreed facts namely (unspecified) injuries to his right hand and “major” swelling and bruising to the right eye. I am obliged to proceed on the basis that the victim completely recovered from his injuries.

18. There is a separate set of facts in respect of the offender Boyton. Although more detail is given as to the lead up and background of the offending, so far as the lead up and background it is essentially the same as for the offender Prigg. The facts in respect of Boyton go to greater detail as to the physical assault by Prigg on the victim. However, those facts are tendered as against Boyton not as against Prigg. I will need to ignore those details so far as the offender Prigg is concerned.

19. However, there is a significant difference as to the events so far as the facts relating to Boyton are concerned. At paragraph 11 of the facts in respect of Boyton the following appears:

“…Prigg told Boyton to let McGregor into the car. Boyton got out of the car and McGregor got in and sat in the rear middle passenger seat. Boyton got back into the car and sat in the left passenger seat. The car drove off.”

The significant difference in the facts being in the case against Prigg the offender Boyton in effect forces the victim into the car. However, the facts as against Boyton are far more neutral, with the victim getting into the car apparently without any force or threat.

20. Despite tendering exhibit C, the Crown made no submissions as to what use I should make of the contents of that recording. I understood Mr Clarke for Prigg and Mr Sinclair for Boyton to submit that the court should sentence based on the agreed facts. I note however that counsel for neither offender objected to the tender of exhibit C. I note the decisions of R v Palu (2002) 134 A Crim R 174 at [21] per Howie J, Khanwaiz v R [2012] NSWCCA 168 at [96] per Beech-Jones J (as his Honour then was) and Taitoko v R [2020] NSWCCA 43 at [38] per Leeming JA. Accordingly, I will sentence in accordance with the agreed facts.

Role of each offender

21. Before making any assessment of the seriousness of this matter it will be necessary to resolve the issues as to the respective roles of the offender. Mr Clarke on behalf of Prigg submits that there is no real difference in the role played between his client and the co-offender Boyton. Mr Sinclair, on behalf of Boyton, however, submits that Boyton’s role is less than Field. The Crown submitted that Boyton’s role was greater than Field but less than Prigg.

22. Field was sentenced on 10 February 2022 to an aggregate sentence of 2 years 8 months to be served by way of Intensive Correction Order. A late plea of guilty (discount of 5%) was entered to a charge contrary to s 86(3) of the Crimes Act. There was a further charge of intentionally destroying evidence contrary to s315(1)(b) of the Crimes Act.

23. My recitation of the facts when sentencing Field indicates that she and the offender Prigg were in an intimate relationship at the time of offending, and they were routinely communicating via text message. She was the driver of the vehicle and part of a joint criminal enterprise. The facts in respect of Field also indicate that it was the offender Prigg who recorded the events on his phone, which is the contents of exhibit C on sentence. I found her role to be significantly less than the male offenders. (See pages 6 and 7 of the remarks on sentence for Field.)

24. Field took no part in the actual violence and on any view of the facts her role was limited to driving the vehicle. The facts in respect of Field have Boyton forcing the victim into the car. However, when sentencing Boyton I will need to proceed on the basis of the agreed facts in respect of him.

25. Despite the comprehensive and earnest submissions on behalf of the offender Prigg, on any view of the facts Prigg’s involvement is greater than either Field or Boyton. It was Prigg who was responsible for the actual application of the violence, and therefore the actual bodily harm. The involvement of the other two is essentially that of a joint criminal enterprise. While the victim was in the vehicle, he was seated in the middle of the back seat of a small car with Boyton to one side of him. Certainly, based on the agreed facts as against Boyton, his involvement is no greater than that of the co-offender Field. Accordingly, one of the many complications in this matter is that the finding as to the seriousness of the matter will be different as between the two co-offenders, despite them being party to a joint criminal enterprise.

Assessment

26. Guidance as to the matters that inform the seriousness of an offence contrary to s 86(3) is obtained from the decision of R v Speechley (2012) 221 A Crim R 175, particularly at [106] per Johnson J. The period of the detention was for the duration of the journey from Estella to Mount Austin, which the facts indicate was 10 minutes. The detention came to an end when the victim was able to escape from the offenders. The detention was in a very confined space, namely a small motor vehicle. The victim would have been absolutely terrified and undoubtedly would have been very worried about what was to happen to him when he got to the address in Mount Austin. The actual bodily harm was limited to an unspecified injury to the victim’s hand and bruising and swelling to the eye. The offenders were part of a group of three.

27. Given the role of the offender Prigg, I am of the opinion that the matter is below mid-range but not significantly so. Given the lesser role of the offender Boyton I am of the opinion that so far as he is concerned the matter is at least moderately below mid-range.

Criminal history

28. The offender Prigg was born on 22 November 1995 and accordingly was almost 25 years of age at the time of the offending and is 28 at the time of sentence. He has a criminal history that does not entitle him to any particular leniency. He was convicted by the Local Court at Wagga Wagga on 2 June 2015 for a multiplicity of drug and firearm offences. He was sentenced to a total of 10 months imprisonment in respect of some matters and released on good behaviour bonds in respect of others. Later in 2015 he was sentenced in respect of domestic violence and firearms offences and sentenced to a total sentence of 14 months imprisonment. In 2019 he was convicted and sentenced to imprisonment for serious driving offences.

29. Further, in 2018 he was convicted at the Wagga Wagga District Court of an offence described on the record as Aggravated Enter Dwelling With Intent in respect of which he was sentenced to 27 months imprisonment. On the same day he was also convicted of assault occasioning actual bodily harm.

30. Boyton has a record as a juvenile, which I ignore given the effect of s 15 of the Children (Criminal Proceedings) Act 1987. However, his adult record is one that does not entitle him to any particular leniency. In 2013 he was convicted and sentenced to imprisonment for Assault Occasioning Actual Bodily Harm. In 2016 he was convicted and sentenced to a short fixed term of imprisonment for Be Carried in Stolen Conveyance. In 2016 he was convicted and sentenced to a total of 12 months imprisonment for a multiplicity of offending including Steal from the Person.

31. Further, in 2019 he was convicted at the District Court at Wagga Wagga for Pervert the Course of Justice and Reckless Inflict Grievous Bodily Harm. He was sentenced to 3 years 6 months imprisonment with a non-parole period of 2 years 4 months.

32. The offender Boyton also has a record in Victoria. At the Melbourne County Court on 16 December 2021, he was convicted of Reckless Conduct Endangering Life and a firearms offence and received a total sentence of 30 months imprisonment.

Subjective Case for the Offender Prigg

33. No oral evidence was called from or on behalf of the offender Prigg. However, the following documents were tendered in the case for the offender:

Exhibit 1:	Report by Dr Paul Pusey of 20 August 2024
Exhibit 2:	Two-page handwritten letter from the offender
Exhibit 3:	Letter from the offender’s mother, Kerrie Brown
Exhibit 4:	Letter from the offender’s father Christopher Prigg
Exhibit 5:	Reference from Councillor Richard Foley, Wagga Wagga City Council

34. I will initially deal with the report by Dr Pusey. Of concern is the statement in paragraph 11 that the facts were “accurate to a certain degree”. I observe that the facts are agreed facts and those are the facts on which the offender is being sentenced. Further, at paragraph 11 the offender recounted to the author of the report that the violence happened because of the bad company he was with. In the next paragraph of the report, it is set out that the offender initially pleaded not guilty because he did not intend anything to happen. I note in this regard that the agreed facts clearly have the offender occasioning the violence to the victim.

35. The offender acknowledged his criminal antecedents to Dr Pusey. The offender told the doctor that the basis of his offending was his drug use. Under the heading Family History at paragraph 21 of the report, Dr Pusey reports the offender saying that his father and his older brother were his male role models and he felt that they should have done more to steer him away from the path he was on. However, in the next paragraph it is set out that the offender told the doctor that he cannot hold it against them to stop him.

36. The offender’s parents are divorced but the offender gave a history of having a good upbringing, however his brother went into custody for an arson offence and it would seem that this had a profound effect on the offender. The offender thought he had ADHD but the author of the report does not appear to have further investigated that claim. The offender complained to Dr Pusey about the onerous bail conditions to which he was subject. I note that counsel for the offender advanced a submission that the offender was entitled to a substantial backdate of sentence because of the onerous bail conditions. I will deal with that issue later in these remarks.

37. It seems that the offender had abused illicit substances over a significant period of time before this offending. It is also clear from the report that the offender was intoxicated with substances at the time of the offending - see paragraph 47 of the report. A little later (paragraph 53) the offender told the author of the report that the offence would not have occurred if he had not been using drugs. However, he also said that his mental health was unmedicated and undiagnosed.

38. He maintained he been abstinent from substances since April 2024. He commenced using MDMA between the ages of 13 to 15 and by 15 he was “hooked” on methamphetamine. He obtained the substances through friends and hanging around with the “wrong people”. The offender has also used heroin and it seems he had a particularly bad reaction to that. He also was abusing alcohol before going into custody.

39. At paragraph 62 of the report the author sets out that the offender disclosed that he (i.e. offender) was diagnosed with bipolar disorder by Dr Olav Neilssen. Again, it would seem that Dr Pusey did not investigate this further.

40. Given the contents of the report, particularly at paragraph 55, the offender is entitled to a finding on balance that he is remorseful. Dr Pusey sets out that the offender acknowledged that he is experiencing feelings of guilt and remorse. The handwritten letter from the offender also goes to the issue of remorse.

41. Dr Pusey opines that based on information provided for the purpose of the assessment, including the offender’s self-report, he meets the diagnostic criteria for substance use disorder in remission and major depressive disorder. The doctor further opines (paragraph 85) that based on the offender’s self-report at the time of the offending he would have met the diagnostic criteria for substance use disorder and major depressive disorder. At paragraph 86 of the report the author draws a causal connection between the offending and the mental health conditions that the offender was suffering.

42. This grounded a submission from counsel for the offender that the principles enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened, reducing the moral culpability of the offender and reducing the impact of specific and general deterrence in the sentencing exercise.

34. Given that Dr Pusey was not required for cross examination and his report was admitted without objection, I have little alternative but to accede to counsel’s submission. However, as I observed at least a couple of times at the sentence hearing the issue is complicated by the fact that the offender was intoxicated by self-intoxication of substances. Therefore, while I accede to counsel’s submission, the issue of the causal connection between the offending and the mental condition does not achieve the weight that it might in other circumstances.

35. Dr Pusey opined that it would be of value for the offender to be supported to engage in evidence-based mental health treatment in order to address the vulnerabilities evidenced by his current offending and the risk they play in relation to further episodes of engagement in maladaptive behavioural decision-making and emotional responding.

36. The contents of Dr Pusey’s report at pages 11 - 12 (paragraphs 94ff) deal with the issue of prospects of reoffending. I note that the offender is presently in custody bail refused in respect of allegations of domestic violence offending. I also note the criminal history. Eventually, at paragraph 104, Dr Pusey opined that the risk of recidivism is in the moderate – high risk category. Given the various factors to which I have referred within this paragraph I am quite unable to find on balance that the offender is unlikely to reoffend.

37. Essentially, for those same reasons I am not prepared to make a finding that the offender has good prospects of rehabilitation. There are some very positive signs. The offender has good family support. However, as I observed at the sentence hearing, much will depend upon how the offender engages with the appropriate authorities and agencies upon his eventual release.

38. At paragraph 105 of his report, Dr Pusey makes a number of recommendations. Clearly, the offender will require extensive and intensive supervision upon his release to ensure that he appropriately engages with the relevant authorities and agencies in respect of both his substance abuse issues and his mental health issues. This warrants a reasonably generous finding of special circumstances, despite the criminal history of the offender.

39. The letters from the offender’s parents address the issues of the onerous bail conditions and the fact that the offender is remorseful. I have already made findings in the offender’s favour that he is remorseful. It is also clear from those letters the offender enjoys good family support.

40. Councillor Foley also speaks of the offender’s remorse. He respectfully suggests that I consider an alternative to incarceration. With respect, given the nature of the offending and what must be the length of the sentence, that is unrealistic. In any event counsel for the offender did not submit disposition other than full-time custody.

41. A good portion of Mr Clarke’s submission at the sentence hearing was directed towards a submission that the offender is entitled to substantial backdating of his sentence because of what are said to be onerous bail conditions. Regrettably, counsel did not make available copies of the bail orders. I placed on record at the beginning of the sentence hearing I did not have the assistance of an Associate as she was ill. My extremely efficient and able Court Officer was able to obtain the relevant documents, which were provided to counsel. With respect to counsel, he should have had copies of the relevant bail orders.

42. Be that as it may, Mr Clarke submitted that the offender was subject to onerous bail conditions for two years and that entitled him on the basis of “one for two” a backdating of 12 months. The Crown submitted that the court would not permit any backdating at all.

43. In the course of the sentence hearing, I drew the attention of the parties (which should not have been necessary) to the recent decision of R v Butler [2024] NSWCCA 133, in particular the judgment of Campbell J (Ward P, Button J agreeing) at [45] ff.

44. In that decision at [45]-[46] Campbell J said:

“[45] I am of the view that the test as formulated by Price J in Quinlin (see [34] above) is as specific as the nature of the sentencing task and the wide discretion applicable to it will permit. To repeat, the question is whether the conditions of bail “are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as ‘quasi-custody’”: see also Frlanov v R [2018] NSWCCA 267 at [24], RA Hulme J (Macfarlan JA and Rothman J agreeing); and R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [18], Grove J (Simpson and Shaw JJ agreeing).

[46] Price J pointed out in Quinlin (at [89]) that two questions arise: first whether the bail conditions in fact amount to quasi-custody; and secondly, whether and to what extent an allowance should be made by backdating the sentence. As I have already indicated, his Honour said these are discretionary decisions reviewable only on a House v The King basis (Quinlin at [89]). As Garling J pointed out in La v R [2021] NSWCCA 136 (at [56]-[58]) (Basten JA and Price J agreeing), all grants of conditional bail pursuant to s 20 Bail Act will involve, or are highly likely to involve, restrictions on the person’s liberty. His Honour observed that a grant of conditional bail involving some restriction on a person’s liberty does not thereby, without more, constitute quasi-custody of a kind which makes it relevant to the imposition of a sentence. I think it useful to set out in full the relevant passage from his Honour’s judgment (at [56]-[59]):

‘All grants of conditional bail pursuant to s 20 of the Bail Act 2013 involve, or are highly likely to involve, some restriction. It may be noted that s 20A(2) of the Bail Act requires that any condition imposed on a grant of bail relates to the bail concerns which have been found to exist; that the condition is reasonably proportionate to the offence and the bail concern raised and that the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed.

It will also be relevant when considering the issue of quasi-custody, to identify with some precision the length of time over which a person has been on bail, and whether the conditions during that period had changed in any way.

The mere fact that a grant of conditional bail involves some restriction on a person’s liberty does not thereby, without more, constitute quasi-custody of a kind which makes it relevant to the imposition of a sentence.

Before a grant of conditional bail, and compliance by an offender with that grant can be relevant to sentence, the offender upon whom the onus falls on the balance of probabilities, must establish that such were the restrictions imposed upon the offender by reason of the conditions of bail, that the Court ought conclude that the effect of the conditional bail approached the effect of being held in custody – that is what gives rise to the description ‘quasi-custody’.’

Other references to authority could be readily multiplied but the foregoing adequately captures the applicable principles.”

54. As the Court of Criminal Appeal observed, all grants of conditional bail involve or are highly likely to involve some restriction. It is also to be noted that the offending is serious and that a sentence of full-time custody is inevitable.

55. Essentially, the bail condition relevant to the submission advanced by Mr Clarke on behalf of the offender Prigg was a residential condition combined with a “home detention” type condition that he not be absent from the premises except in the company of one of his parents. I note that on occasions the bail was varied so as permit the offender to work.

56. There is no evidence from the offender by way of oral evidence or affidavit as to the precise hardships occasioned to him by what are said to be the onerous conditions. Usually when a submission such as that advanced by Mr Clarke is made there is detail as to the precise effects of the bail conditions on the offender. In this matter, Mr Clarke submitted more than once at the sentence hearing that it was worse than remand as remand prisoners were allowed to exercise for an hour per day. With respect, that was an overly emotive submission not founded in fact. There was nothing to stop the offender exercising, at least to some extent, at home. Incidentally, I note that had the offender not been granted bail he would have well and truly served the non-parole period by now.

57. Returning to the decision of R v Butler I note and have regard to the extensive review of the authorities undertaken by Campbell J. For example at [50] he referred to R v Webb (2004) 149 A Crim R 167 in which it was held that a home detention condition except for reporting, attending court and medical appointments was held not to mandate any mitigation of sentence. However, in R v Reeves [2024] NSWCCA 154 the offender who was on parole was granted bail requiring him to reside at a Community Offender Support Programme centre with very strict conditions limiting all aspects of daily life including residence, movements, financial management, a requirement to undertake community work and chores at the centre and restrictions on his freedom to associate was held to be quasi custody.

58. At [53] in R v Butler Campbell J went to on say:

“Extended home detention conditions or participation in a full-time residential rehabilitation program subject to compliance with strict conditions for an extended period of time may be taken to constitute quasi-custody, but not always. In La v R, Garling J said (at [60]):

‘If a person is free to come and go from the premises to which they are bailed, then there will be little or no restriction of any relevant kind. The mere fact that a person had to reside at a particular premises does not of itself, constitute a restriction sufficient to amount to quasi-custody, nor does the fact that a person is required by a condition of bail to undergo medical treatment, to seek psychiatric or psychological help or to participate in such rehabilitation program as may be appropriate for their condition. These are conditions imposed, as the Bail Act requires, to address the underlying offence or the bail concerns raised by the Crown when bail is applied for. They may be relevant considerations for a finding of quasi-custody, but in the absence of anything more would not ordinarily constitute quasi-custody.’”

59. His Honour then said at [55]:

“It should also be pointed out that in the case of serious offences, like this charge, the conditions imposed upon the respondent were of a type very commonly imposed by the Supreme Court. Indeed, it could be said that curfew, frequent reporting and residence conditions are almost “standard conditions of bail” when an offender is charged with a serious offence, the Crown case is strong and full-time custody is a likely outcome on conviction. These observations would have applied to this case when bail was first granted. The period of eighteen months during which the respondent was subject to these conditions of itself did not represent an unreasonable or unduly long period to be on bail; I say nothing of the three years it took for the matter to come on for sentence. Were the conditions of bail imposed on the respondent adjudged as quasi-custody, most people charged with strictly indictable offences would be entitled to make the same claim. Given the purpose of conditional bail is to ameliorate bail concerns in compliance with ss 20 and 20A Bail Act, such a state of affairs cannot be justified.”

60. A decision as to (1) Whether to make allowance by way of backdating because of the onerous bail conditions and (2) if so, what allowance should be made would have been easier with more precise detail as to the effect of those conditions on the offender. However, the court has the report of Dr Pusey taken with the letters from the offender and his mother. In his letter the offender said that he “felt isolated and depressed”.

61. I understood the opposition by the Crown to any allowance by way of backdating was because of the fact that the offender has been able to work at various times. Mr Clarke responded in reply by putting that the period was of two years, noting that the accused has been on bail for about three- and one-half years.

62. Having re-read R v Butler it seems that there is no clear division as to what will and what will not justify consideration by way of backdating of sentence because of bail conditions. In the matter presently under consideration I am prepared to accept that the bail conditions were onerous, particularly given the time to which the offender was subject and allow back dating of 6 months. The offender is also entitled to have 199 (almost 29 weeks) days of actual pre-sentence custody taken into account. I will therefore backdate the sentence by 6 months and 29 weeks. Twenty six weeks is 6 months. Accordingly, I allow a total backdate of sentence of 12 months and 3 weeks, meaning the commencement date will be 16 August 2023. I note that I have rounded the 199 days up to 29 weeks in favour of the offender.

Subjective case for Boyton

63. No oral evidence was called from or on behalf of the offender Boyton, however Exhibit 6 on sentence is the tender bundle on his behalf including a psychological report by Ms Kris North and an affidavit sworn or affirmed by the offender. I note that the offender Boyton was not required for cross-examination. Therefore, the contents of the affidavit are unchallenged.

64. Ms North’s report begins by setting out the “impoverished upbringing characterised by an early exposure to substance use and family violence”. Further details of this are set out at paragraphs 8, 9, 10, 12 and 13. The report also notes (paragraph 14) that he commenced using cannabis at age 11 and was using that substance on a daily basis by 13. He began using other substances such as amphetamines from age 14. Clearly, the offender’s formative years were marred by social disadvantage. This included him being witness to and subject to violence and his parents abusing substances. I note also at paragraph 12 Ms North sets out that the offender recently acknowledged the impact of his exposure to family violence on his own use of aggression during his adolescent years. Later in the report (paragraph 31) she opines that the onset of the offender’s antisocial behaviours was directly related to his exposure to violence and drug use in his childhood. I take no persuading given the contents of the report that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened to a meaningful extent. This reduces the moral culpability of the offender accordingly.

65. Returning to Ms North’s report she reports (paragraph 4) that the offender accepted responsibility for having been present at the time of the incident and identified his drug issues and anti social peer associations as his main criminogenic risk factors in both indexing past offences. At paragraph 5 of the report the author sets out that offender accepted responsibility and expressed regret for his behaviour. While this entitles the offender to a finding on balance that he is remorseful, such a finding would attain more weight had the offender made some expression of remorse in his affidavit.

66. Clearly, the offender has had a significant issue with substances since his early teenage years. According to Ms North’s report (paragraph 15) he has been abstinent since 28 years of age and that he maintained abstinence in custody. He commenced the buprenorphine maintenance treatment in custody and was currently on the methadone maintenance treatment. His 3-year-old son is apparently the offender’s motivation to remain abstinent from substances.

67. The offender reported to Ms North that he had been diagnosed with depression, anxiety and schizophrenia when in juvenile custody. Ms North opines (paragraph 19) that the offender’s symptoms were drug induced and she noted that the symptoms had abated since he had been abstinent.

68. At paragraph 21 of the report Ms North raises the issue of the possible institutionalisation of the offender. That is one of a number of considerations that justifies a finding of special circumstances. Principally, given the recommendations of Ms North relating to ongoing treatment the offender will need an extended period of supervision to ensure that he receives the appropriate treatment and counselling for his substance abuse issues.

69. The offender Boyton is also bail refused awaiting hearings in the Local Court of allegations of domestic violence. I note the criminal history. In all of the circumstances I could not find on balance that the offender is likely to re-offend.

70. Likewise, I am not able to make a finding that Boyton has good prospects of rehabilitation. Mr Sinclair advanced a submission at the sentence hearing that the offender had “decent” prospects of rehabilitation, but the court would also be guarded because of the offender’s antecedents. I agree with that submission by counsel.

71. I have already dealt with the issue of the role the offender Boyton in the joint criminal enterprise.

Other submissions

72. Mr Sinclair put on behalf of the offender Boyton that although the threshold within s 5(1) of the Crimes (Sentencing Procedure) Act 1999 is crossed, the offender should be permitted to serve his sentence by way of Intensive Correction Order. I expressed some concerns about the possible futility of that given that the offender is currently bail refused until December 2024, taken with the likely length of the non-parole period given the offender’s role in the enterprise. Implicit in the submission that the offender be permitted to serve any sentence by way of ICO is that the total sentence in respect of both offences would be 3 years or less.

73. In respect of both offenders I will need to have regard to and give proper effect to ss 3A and 5(1) of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

(a)  to ensure that the offender is adequately punished for the offence,

(b)  to prevent crime by deterring the offender and other persons from committing similar offences,

(c)  to protect the community from the offender,

(d)  to promote the rehabilitation of the offender,

(e)  to make the offender accountable for his or her actions,

(f)  to denounce the conduct of the offender,

(g)  to recognise the harm done to the victim of the crime and the community.

74. Section 5(1) of the Act provides:

A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

75. Appropriately, neither counsel have submitted that the matter does not cross the threshold within s 5(1) of the Sentencing Act.

76. Returning specifically to the offender Boyton, I have found that his role in the joint criminal enterprise was no more than that of Field. I found in respect of Field that her criminal history did not entitle her to any particular leniency. However, Boyton has a more serious criminal history noting he has served reasonably significant terms of imprisonment for matters of violence. The starting point for Boyton in respect of the charge contrary to s 86(3) will be marginally higher than that for Field.

77. In all of the circumstances, but in particular noting Boyton’s role in the joint criminal enterprise, I am of the opinion that the appropriate starting point for the sentence is one of 3 years 3 months (39 months). With the deduction of 25% for the utilitarian value of the plea that produces a total sentence of 2 years 5 months (29 months). The sentence in respect of the Intimidation charge is a fixed term of 6 months indicating a starting point of 8 months. These are the sentences that would have been imposed if separate sentences were imposed. Taking into account the issue of totality, noting that it was all part of the one enterprise, the total aggregate sentence should be 2 years 6 months. Accordingly, that is a sentence that is able to be served by way of Intensive Correction Order.

75. Now, the consideration turns to the manner in which any sentence is to be served. I note that since Stanley v DPP [2023] HCA 3 this is a common submission. The Crown opposed the imposition of an Intensive Correction Order and submitted that only a sentence of full-time imprisonment is appropriate in this matter.

76. Section 66 of the Crimes (Sentencing Procedure) Act relevantly provides:

(1)    Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2)    When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

80. There has been a great deal of litigation concerning this legislation. I note that the Honourable Mark Speakman SC, the then Attorney General, in the Second Reading Speech introducing the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (the 2018 sentence reforms) said:

“These orders (a reference to Intensive Correction Orders) will be available for offenders sentenced up to 2 years imprisonment, except for the following offences: murder, manslaughter, sexual assault, child sexual offences, offences involving the discharge of a firearm, terrorism offences and breaches of serious crime prevention orders and Public Safety orders. In addition, a court must not impose an intensive correction order for a domestic violence offence unless satisfied that it will adequately protect the victim or any likely co-resident of the offender.

New section 66 of the Crimes (Sentencing Procedure) Act will make community safety as the paramount consideration when imposing an intensive correction order on offenders his conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium to long-term behaviour change that reduces offending. Evidence shows that community supervision and programs are far more effective at this. That is why new section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

New section 73 of the Crimes (Sentencing Procedure)Aact sets out the standard conditions of the intensive correction order – namely, not to commit an offence and to submit to supervision. All offenders will be required to submit to supervision. Community corrections uses a risk framework that assigns different levels of intensive mist to each offender supervision. Offenders who are at high risk of reoffending and have complex issues are supervised intensively. Supervision for lower risk offenders is less intensive and may be suspended inappropriate circumstances. The discretion to suspend supervision will be subject to requirements specified in the regulations to ensure that the power is exercised properly and does not go unfettered. New section 73A provides for the additional conditions of the intensive correction order, which will enable courts to tailor the order to hold offenders accountable and to tackle the offending behaviour. Courts will be required to impose at least one of the conditions in new subsection (2) in addition to the standard conditions in section 73, but consider time limit on how long the order is in force.”

81. I do not have the benefit of a Sentence Assessment Report. However, I have already found, and it was essentially conceded by Mr Sinclair at the sentence hearing, that that I could not find that Boyton was unlikely to reoffend.

82. The plurality (Gordon, Edelman, Steward and Gleeson JJ) in Stanley v DPP said at [72]-[77]:

“[72] There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety.

[73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3).

[74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community.

[75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending.

[76]   That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending.

[77]   While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment.” (Citations omitted.)

83. Since the decision in Stanley v DPP there have been a number of decisions of the Court of Criminal Appeal on the subject. Gleeson JA (Hamill J agreeing with brief additional comments, Ireace J agreeing) in Zheng v R [2023] NSWCCA 64 at [281]-[286] said (footnotes omitted):

“Five points emerge from the joint judgment in Stanley.

First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety.

Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety.

Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending.

Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender’s risk of reoffending.

Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive.”

84. In Tonga, Samuel [2023] NSWCCA 120 Basten AJA (Walton & Hamill JJ agreeing, both with additional comments) said at [49]:

“Accepting that the judge did indeed give weight to general deterrence in declining to impose an ICO, the applicant’s submission seeks to draw a bright line between community safety and other purposes of criminal sentencing. Of the seven purposes identified in s 3A of the Sentencing Act, there may be tensions between some, or between some in some circumstances, but often they will militate in favour of the same outcome. While it is true that s 66(2) addresses that element of community safety which concerns the individual offender’s risk of reoffending (in a particular way), as Stanley recognised, that is not to exclude other aspects of sentencing which may affect community safety, nor purposes such as general deterrence which do not focus upon the individual but may tend to protect community safety. It was not an error to take general deterrence into account: s 66(3) permitted that course. The decision as to whether or not to impose an ICO is not to be determined solely by reference to an assessment of the course more likely to address the offender’s risk of reoffending; and when that course cannot be identified, other mandatory considerations will become significant and possibly decisive.”

85. The Court of Criminal Appeal in DG (No. 1) v R [2023] NSWCCA 320 disapproved the practice of deducting any period spent in custody bail refused from a sentence in order to get the length of the sentence within the limits whereby the sentence can be served by way of Intensive Correction Order. That is not an issue that arises in the matter presently under consideration.

86. One further and more recent decision is Khanat v R (Cth) [2024] NSWCCA 41. Cavanagh J (Ireace J agreeing, Wilson J dissenting) said at [83]:

“The question of whether the degree of leniency attached to an ICO may be a relevant factor was taken up N Adams J in Chan. Her Honour stated at [139]-[140]:

‘There can be no doubt that imposing an ICO involves a degree of leniency. In Pullen Harrison J observed the following at [53]:

“Although an ICO ordinarily involves substantial punishment, it also reflects a significant degree of leniency: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at 84 [106]; Whelan v R (2012) 228 A Crim R 1; [2012] NSWCCA 147 at [120].”’”

87. More recently, Basten JA observed the following in Tonga at [20]:

“Were an ICO not seen as a more lenient sentence than the same period served in custody, there would be no application for leave to appeal. Secondly, whether or not one thinks that the proposed supervision plan amounts to ‘intensive correction’, it would have been vastly less intrusive than a fulltime deprivation of liberty.”

88. Cavanagh J went on to say (in Khanat) at [89]-[95]:

“Having said that, it does not seem to me that anything said in Stanley leads to the conclusion that a positive finding that the risk of reoffending is best addressed by serving the sentence in the community mandates the ordering of an ICO. That is, I reject the applicant's primary submission that once the positive finding was made an ICO must necessarily have been ordered.

I say this for the following reasons.

Firstly, in Stanley (at [75]) their Honours stated that the assessment required by s 66(2) is not determinative of whether an ICO may or should be made. As required by s 66(3), when deciding whether to impose an ICO, the sentencing court must also consider the provisions of s 3A and any other relevant common law sentencing principles and may consider any other matters that the Court thinks relevant. The exercise is thus evaluative, albeit community safety must be treated as the paramount consideration.

Secondly, although the Court observed (at [76]) that community safety will usually have a decisive effect unless the relevant evidence is inconclusive, there is no suggestion that an ICO must be ordered consequent on a positive finding on addressing the risk of reoffending. It may usually have a decisive effect but that leaves open the possibility that there will be circumstances in which, even giving paramountcy to community safety and a positive finding on the risk of reoffending, an ICO may not be ordered.

The Court did not identify what those circumstances might be but left open the possibility that, having considered the matters referred to in s 66(3), the sentencing court may decline to impose an ICO, subject to having given paramountcy to community safety in its consideration.

Thirdly, the sentencing exercise is essentially discretionary. The sentencing court comes to a decision as to sentence through a process of instinctive synthesis. I do not take anything said in Stanley to be fundamentally altering that approach.

It follows that I do not accept that a positive or conclusive finding that the risks of reoffending are better addressed in the community mandates an order for an ICO.

It is quite plain from the legislation and the body of authority that has development that in considering whether to permit an offender to serve a sentence by way of Intensive Correction Order other considerations are subordinate to community safety. Indeed, I make so bold as to observe that the purpose of punishment in s. 3A(a) of the Crimes (Sentencing Procedure) Act, 1999) to ensure that the offender is adequately punished for the offence, is subordinate to community safety.”

89. Returning specifically to the offender Boyton, given the offending and his criminal history, in particular the matters of violence, the considerations in subsections (1) and (2) are determined adversely to him. The offending in Victoria in respect of which he was sentenced occurred within weeks on the matter presently under consideration. Going to subsection (3) of s 66, the issues of general and specific deterrence together with the consideration of adequate punishment in my view determines that any sentence should be served by way of full time detention.

90. However, in respect of Boyton, noting that matter in Victoria (Melbourne County Count 6 July 2022, sentence of 30 months), there is an issue of totality. Mr Sinclair put on behalf of the offender Boyton, as a secondary submission, that any sentence of full time custody should commence on 16 September 2023. Although the Crown was not specifically asked for a submission on this there was no submission by the Crown in opposition. In all of the circumstances I have independently determined that that is appropriate commencement date.

General Remarks

91. I have already noted that I need to give proper regard to ss 3A and 5(1) of the Sentencing Act.

92. I am constrained to comment that it occurs to me that there is an element of artificiality about this sentencing exercise, particularly given the difference in the facts as between the two offenders. Be that as it may, I have attempted to give proper effect to the manner in which the matter has been presented to me.

93. It was necessary to indicate the length of the sentence in respect of Boyton before I dealt with the manner in which it was to be served. In respect of the offender Prigg I am of the opinion that the appropriate starting point is one of 4 years imprisonment from which is deducted 5% for the plea, which produces a total sentence of 3 years 9 months with some minor mathematical rounding down in favour of the offender.

94. I have already indicated that there should be a finding of special circumstances in respect of both offenders. Essentially, in respect of both of them, that finding is justified by the need for an extended period of supervision to ensure that they do something meaningful about their substance abuse issues. In the interests of parity I will make the ratio between the non-parole period and balance of term the same in respect of each offender.

95. Mr Sinclair also made a submission that the offender Boyton be given consideration by way of back dating for what are claimed to be onerous bail conditions. Boyton was on bail for a period of 5 months. Given the bail concerns and noting Boyton’s criminal history I am not of the opinion that those conditions were onerous to the point where some type of back dating is warranted. In any event, I note that I have acceded to Mr Sinclair’s submission as to the commencement date of the sentence.

96. There is a live issue of parity to be addressed in this sentencing exercise. However, there are some differences between the offenders. Despite Mr Clarke’s earnest submissions, on the basis which the matter has been presented to me Prigg is the most culpable noting that he was (again, on the basis the matter is presented) the instigator and the one who inflicted the violence and the actual bodily harm. The role of the other two offenders is less.

Orders

In respect of the offender Prigg:

97. In respect of the offence to which he has pleaded guilty he is convicted.

98. The offender Prigg is sentenced to a non-parole period of 2 years 3 months which will commence on 16 August 2023 and which will expire on 15 November 2025. The balance of term on parole of 18 months will commence on 16 November 2025 and expire on 15 May 2027.

99. The offender Prigg will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

100. The sentence imposed indicates a finding of special circumstances, the reasons for which have been enunciated earlier in these reasons. The non-parole period is 60%

In respect of the offender Boyton

101. In respect of the matters to which he has pleaded guilty he is convicted.

102. The offender Boyton is sentenced to an aggregate sentence of 2 years 6 months with a non-parole period of 18 months, which will commence on 16 September 2023 and which will expire on 15 March 2025. The balance of term of 12 months will commence on 16 March 2025 and expire on 15 March 2026.

103. The offender will be eligible to be released to parole at the expiration of the non-parole period. I strongly recommend that any release to parole be conditioned that he be supervised and that he obey all reasonable directions of the Department of Community Corrections relating to ongoing treatment and counselling for substance abuse issues.

101. The sentence imposed on Boyton indicates a finding of special circumstances, the reasons for which have been enunciated earlier in these reasons. The ration between the non-parole period and balance of term ins 60%.

102. I direct that the report of Dr Pusey in respect of the offender Prigg and the report of Ms Kris North in respect of Boyton be forwarded to the Department of Corrective Services with the relevant warrants.

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Decision last updated: 09 September 2024