R v Sturgess - [2024] NSWDC 208

District Court

New South Wales

Medium Neutral Citation: R v Sturgess [2024] NSWDC 208
Hearing dates: 4 April 2024
Date of orders: 4 April 2024
Decision date: 04 April 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment - 4 years with a non-parole period of 2 years and 6 months

Catchwords:
CRIME — Violent offences — Detain person for advantage
CRIME — Violent offences — Robbery in company
SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Objective seriousness — Purposes of sentencing — Multiple offences — Totality
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Mental illness — Deprived childhood — Institutionalised — Childhood sexual abuse in juvenile detention — Mental illness

Legislation Cited:
CrimesAct1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
R v Girdler [2023] NSWDC 616
R v Nyrhinen [2023] NSWDC 615

Category: Sentence
Parties: Tristan Sturgess (the offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
K MacKinnon solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2023/116831

JUDGMENT – Ex tempore revised

Introduction

Tristan Sturgess is for sentence today for two very serious offences:

Take and Detain another Person with Intent to Obtain an Advantage: Crimes Act1900 (NSW), s 86(2)(b); and

Robbery in Company: Crimes Act1900, s 97(1).

The offences occurred on 30 September 2002. The victim was a person known to one of the other participants in Sturgess’ crime.
Sturgess gave evidence today. He confirmed what he said to his social worker, Mr Bembrick – he did not really think it was a particularly serious crime and he did not think about the impact on his victim. Why he held those thoughts is revealed in the material to which I will shortly refer.
Sturgess has been in custody for some time, and he must stay in custody for some further time. He is presently medicated for a number of underlying mental health conditions. Having taken up the use and abuse of illicit drugs when very young, he is currently stabilised on the buprenorphine program.
His evidence today shows that, perhaps for the first time in his young life, he has had a chance to think in clear headed way about what he did and the consequences to himself and others. At the time he did not think. I do not believe he is yet capable of feeling true remorse for his victim, but I accept he regrets what he did.

Early pleas and maximum penalties

Sturgess entered pleas of guilty to the two charges in the…

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 Sturgess

Details

AGLC: R v Sturgess [2024] NSWDC 208
Case: [2024] NSWDC 208
Decision Date: 04 April 2024

CaseChat Overview and Summary

The case of R v Sturgess involved the defendant being charged with robbery in company, where the victim was detained for personal advantage. The matter was heard in the Supreme Court of Victoria. The defendant had pleaded guilty to the charges, which included robbing a victim and assaulting another person, with the assistance of an accomplice.

The court had to determine the appropriate sentence for the defendant, considering various factors. These included the defendant's criminal history, the plea of guilty, the objective seriousness of the offence, and the purposes of sentencing. The court also needed to consider the need for parity with co-offenders, deterrence, and the total number of offences committed. In addition, the court had to weigh subjective considerations such as the defendant's Aboriginal background, drug addiction, mental illness, deprived childhood, institutionalisation, and childhood sexual abuse in juvenile detention.

In reaching its decision, the court undertook an instinctive synthesis of the various factors, placing significant weight on the objective seriousness of the offences and the need for deterrence. The court acknowledged the defendant's mitigating factors but ultimately determined that they did not outweigh the need for punishment and deterrence. The court sentenced the defendant to an aggregate term of imprisonment of four years, with a non-parole period of two years and six months.

The court ordered that the defendant serve an aggregate sentence of imprisonment for four years, with a non-parole period of two years and six months.

Orders

Orders of the court

Aggregate sentence of imprisonment - 4 years with a non-parole period of 2 years and 6 months

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 Sturgess [2024] NSWDC 208
Hearing dates:	4 April 2024
Date of orders:	4 April 2024
Decision date:	04 April 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment - 4 years with a non-parole period of 2 years and 6 months
Catchwords:	CRIME — Violent offences — Detain person for advantage CRIME — Violent offences — Robbery in company SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Objective seriousness — Purposes of sentencing — Multiple offences — Totality SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Mental illness — Deprived childhood — Institutionalised — Childhood sexual abuse in juvenile detention — Mental illness
Legislation Cited:	CrimesAct1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 R v Girdler [2023] NSWDC 616 R v Nyrhinen [2023] NSWDC 615
Category:	Sentence
Parties:	Tristan Sturgess (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: M Kwan solicitor for Legal Aid (NSW) (for the offender) K MacKinnon solicitor for Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2023/116831