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R v Walker

R v Walker

Case [2022] NSWDC 692 8 July 2022

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Walker [2022] NSWDC 692
Hearing dates: 13 April 2022, 8 July 2022
Date of orders: 8 July 2022
Decision date: 08 July 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 5 years 9 months with a non-parole period of 3 years 8 months.

Catchwords:
CRIME –– detain with intent to obtain an advantage in circumstances of aggravation and special aggravation - detain with intent to obtain an advantage in circumstances of aggravation
SENTENCING - Relevant factors on sentence –
– sentence after trial - full benefit of acquittal on alternate count fact finding – serious offending - trauma as a child - lengthy record – offence committed soon after release to parole- drug use- parity- strong family support- victim of an assault in custody - reduction of sentence for information leading to the recovery of illicit firearms

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999.

Cases Cited:
Afu v R [2017] NSWCCA 246
Bugmy v The Queen (1990) 169 CLR 525; [2013] HCA 37
C’th v Beattie [2017] NSWCCA 301
Devaney v R [2012] NSWCCA 285
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lloyd v R [2022] NSWCCA 18
Luque v R [2017] NSWCCA 226
Magaming v The Queen (2013) 252 CLR 381
Nasrallah v R [2021] NSWCCA 207
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Pym v R [2014] NSWCCA 182
R v Clare; R v Ilievski [2022] NSWDC 383
RvEager [2022] NSWDC 162
R v Gavel [2014] NSWCCA 56
R v MJB [2014] NSWCCA 195
RvMoradian [2011] NSWDC 130
RvMorley [2021] NSWDC 681
R v Morley [2022] NSWDC 670
R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
RvWalker [2019] NSWDC 554
Silvano v R [2008] NSWCCA 118
Stanton v R [2021] NSWCCA 123
The Queen vOlbrich (1999) CLR 27; [1999] HCA 54
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14.

Texts Cited:
Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR

Category: Sentence
Parties: R v Benjamin John Walker (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr B Hart (for the offender)
Ms N Keay, Deputy Senior Crown Prosecutor; Mr M Fox Crown Prosecutor
Solicitors:
Justine Hall Pty Ltd (for the offender)

File Number(s): 2020/00142007

SENTENCE – EX TEMPORE REVISED

Introduction

On 12 May 2020, police received information that two men were being detained and assaulted, and that their families had been asked to either provide or help in the transfer of money. A police taskforce was rapidly assembled. Family…

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 Walker

Details

AGLC: R v Walker [2022] NSWDC 692
Case: [2022] NSWDC 692
Decision Date: 08 July 2022

CaseChat Overview and Summary

The case of R v Walker arose before the Supreme Court of Victoria, where the defendant, Walker, faced charges related to detention with intent to obtain an advantage under aggravated circumstances. The court was tasked with determining the appropriate sentence following Walker’s conviction on this charge. The nature of the dispute centred on the appropriate length of the sentence and the factors that should be considered in mitigation and aggravation.

The primary legal issue before the court was to determine the sentence for Walker, taking into account various factors that influenced the severity of the offence and Walker’s personal circumstances. These factors included the nature of the offence, Walker’s criminal history, the circumstances of the offence, and personal mitigating factors such as his history of trauma, drug use, and recent release from parole. The court was required to balance these factors to arrive at a just and appropriate sentence.

In delivering its judgment, the court carefully considered each of these factors. It recognised the seriousness of the offence, which involved detaining someone with intent to obtain an advantage under aggravating circumstances. However, it also took into account Walker’s difficult personal history, including significant childhood trauma and his status as a victim of assault in custody. Despite these mitigating factors, the court acknowledged Walker’s lengthy criminal record and the fact that the offence was committed shortly after his release from parole. Ultimately, the court determined that an aggregate sentence of 5 years and 9 months, with a non-parole period of 3 years and 8 months, was appropriate. This sentence reflected the gravity of the offence while also considering the mitigating factors presented.

Orders

Orders of the court

Aggregate sentence of 5 years 9 months with a non-parole period of 3 years 8 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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Citations

R v Walker [2022] NSWDC 692

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Morley [2022] NSWDC 670
Citation 1 (Para 10)

…s, six months. Clare received the benefit of a substantial finding of special circumstances: see R v Clare; R v Ilievski [2022] NSWDC 383; R v Morley [2022] NSWDC 670.…
R v Clare; R v Ilievski [2022] NSWDC 383
Citation 2 (Para 10)

…aggregate terms of three years, six months. Clare received the benefit of a substantial finding of special circumstances: see R v Clare; R v Ilievski [2022] NSWDC 383; R v Morley [2022] NSWDC 670.…
R v Eager [2022] NSWDC 162
Citation 3 (Para 11)

…. His matters were expedited so they could be dealt with the others. He adhered to his guilty plea on 13 April and was sentenced that day: R v Eager [2022] NSWDC 162. Eager's circumstances were different to the present offender.…
Lloyd v R [2022] NSWCCA 18
Citation 4 (Para 55)

…idered opinions of the medical experts. They have clinical experience in taking histories and testing and assessing their significance: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].…
Nasrallah v R [2021] NSWCCA 207
Citation 5 (Para 76)

…impacts on the child assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67], Nasrallah v R [2021] NSWCCA 207 at [100]-[102].…
Stanton v R [2021] NSWCCA 123
Citation 6 (Para 76)

…en, have profound and highly‑detrimental impacts on the child assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67], Nasrallah v R [2021] NSWCCA 207 at [100]-[102].…
R v Walker [2019] NSWDC 554
Citation 7 (Para 58)

…I note that I sentenced Walker for other matters in 2019: R v Walker [2019] NSWDC 554.…
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Citation 8 (Para 96)

…tences, however, really depend on the perspective of the observer, whether they are victim, community, appeal court or offender: C’th v Beattie [2017] NSWCCA 301, Basten JA at [26]-[45].…
Afu v R [2017] NSWCCA 246
Citation 9 (Para 89)

…ty". It is a classic example of the need, so far as possible, to ensure equal justice: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246.…
Luque v R [2017] NSWCCA 226
Citation 10 (Para 55)

…ce in taking histories and testing and assessing their significance: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].…
R v MJB [2014] NSWCCA 195
Citation 11 (Para 76)

…s Courts have found when sentencing those who offend against children, have profound and highly‑detrimental impacts on the child assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67], Nasrallah v R [2021] NSWCCA 207 at [100]-[102].…
Pym v R [2014] NSWCCA 182
Citation 12 (Para 55)

…nd assessing their significance: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].…
R v O'Connor [2014] NSWCCA 53
Citation 13 (Para 82)

…saults that can be shown to involve extra curial punishment and those that, as here, cannot be so linked: Silvano v R [2008] NSWCCA 118: R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487. However, a Court cannot ignore the lived experience of gaol. Judges must take into account and synthesise all relevant cons…
R v Gavel [2014] NSWCCA 56
Citation 14 (Para 76)

…hose who offend against children, have profound and highly‑detrimental impacts on the child assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67], Nasrallah v R [2021] NSWCCA 207 at [100]-[102].…
Magaming v The Queen [2013] HCA 40
Citation 15 (Para 90)

…a real difference in the time each will serve: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 ; Magaming v The Queen (2013) 252 CLR 381 [2013] HCA 40 at [51].…
Bugmy v The Queen [2013] HCA 37
Citation 16 (Para 77)

…remain relevant and should be given proper effect when I come to synthesise an appropriate and just sentence; Bugmy v The Queen (1990) 169 CLR 525; [2013] HCA 37. They are matters that can help explain why Walker when very young took up the use of illicit drugs and continued to use illicit drugs.…
Devaney v R [2012] NSWCCA 285
Citation 17 (Para 55)

…experts. They have clinical experience in taking histories and testing and assessing their significance: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 18 (Para 89)

…ciple is known as "parity". It is a classic example of the need, so far as possible, to ensure equal justice: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246.…
R v Moradian [2011] NSWDC 130
Citation 19 (Para 84)

…priate sentences as indicated for his help in removing those firearms from the community ‑ a matter I discussed over a decade ago in R v Moradian [2011] NSWDC 130 [34]‑[45]. No‑one has subsequently said that the principles I applied then were incorrect. This is not a matter where there is ‑ that I am aware of ‑ ris…
Silvano v R [2008] NSWCCA 118
Citation 20 (Para 82)

…rt of Criminal Appeal between assaults that can be shown to involve extra curial punishment and those that, as here, cannot be so linked: Silvano v R [2008] NSWCCA 118: R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487. However, a Court cannot ignore the lived experience of gaol. Judges must take into account a…
Weininger v The Queen [2003] HCA 14
Citation 21 (Para 12)

…blished but simply, have to be taken into account: The Queen v Olbrich (1999) CLR 27; [1999] HCA 54; Weininger v The Queen (2003) 212 CLR 629 18 -24; [2003] HCA 14. Whatever standard of proof is applied standard, it is for me to take all relevant matters into account.…
R v Simpson [2001] NSWCCA 534
Citation 22 (Para 93)

…ent that the minimum period he should be imprisoned should also reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
R v Olbrich [1999] HCA 54
Citation 23 (Para 12)

…tablished beyond reasonable doubt. Some points can never be established but simply, have to be taken into account: The Queen v Olbrich (1999) CLR 27; [1999] HCA 54; Weininger v The Queen (2003) 212 CLR 629 18 -24; [2003] HCA 14. Whatever standard of proof is applied standard, it is for me to take all relevant ma…
Regina v Simpson [1999] NSWCCA 367
Citation 24 (Para 93)

…m period he should be imprisoned should also reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Postiglione v the Queen [1997] HCA 26
Citation 25 (Para 90)

…s. Different personal and criminal histories can justify a real difference in the time each will serve: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 ; Magaming v The Queen (2013) 252 CLR 381 [2013] HCA 40 at [51].…
Bugmy v The Queen [1990] HCA 18
Citation 26 (Para 77)

…hen a child, always remain relevant and should be given proper effect when I come to synthesise an appropriate and just sentence; Bugmy v The Queen (1990) 169 CLR 525; [2013] HCA 37. They are matters that can help explain why Walker when very young took up the use of illicit drugs and continued to use illicit drugs.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 27 (Para 60)

…nalty is warranted, with some additional focus on retribution, deterrence, and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477.…
The Queen v Olbrich [1999] HCA 5418
Citation 28 (Para 12)

…ties and matters in aggravation, established beyond reasonable doubt. Some points can never be established but simply, have to be taken into account: The Queen v Olbrich (1999) CLR 27; [1999] HCA 54; Weininger v The Queen (2003) 212 CLR 629 18 -24; [2003] HCA 14. Whatever standard of proof is applied standard, it is for me t…

Legislation Cited

Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 54)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 5)

Medium Neutral Citation:	R v Walker [2022] NSWDC 692
Hearing dates:	13 April 2022, 8 July 2022
Date of orders:	8 July 2022
Decision date:	08 July 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 5 years 9 months with a non-parole period of 3 years 8 months.
Catchwords:	CRIME –– detain with intent to obtain an advantage in circumstances of aggravation and special aggravation - detain with intent to obtain an advantage in circumstances of aggravation SENTENCING - Relevant factors on sentence – – sentence after trial - full benefit of acquittal on alternate count fact finding – serious offending - trauma as a child - lengthy record – offence committed soon after release to parole- drug use- parity- strong family support- victim of an assault in custody - reduction of sentence for information leading to the recovery of illicit firearms
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999.
Cases Cited:	Afu v R [2017] NSWCCA 246 Bugmy v The Queen (1990) 169 CLR 525; [2013] HCA 37 C’th v Beattie [2017] NSWCCA 301 Devaney v R [2012] NSWCCA 285 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Lloyd v R [2022] NSWCCA 18 Luque v R [2017] NSWCCA 226 Magaming v The Queen (2013) 252 CLR 381 Nasrallah v R [2021] NSWCCA 207 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Pym v R [2014] NSWCCA 182 R v Clare; R v Ilievski [2022] NSWDC 383 RvEager [2022] NSWDC 162 R v Gavel [2014] NSWCCA 56 R v MJB [2014] NSWCCA 195 RvMoradian [2011] NSWDC 130 RvMorley [2021] NSWDC 681 R v Morley [2022] NSWDC 670 R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 RvWalker [2019] NSWDC 554 Silvano v R [2008] NSWCCA 118 Stanton v R [2021] NSWCCA 123 The Queen vOlbrich (1999) CLR 27; [1999] HCA 54 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14.
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR
Category:	Sentence
Parties:	R v Benjamin John Walker (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr B Hart (for the offender) Ms N Keay, Deputy Senior Crown Prosecutor; Mr M Fox Crown Prosecutor Solicitors: Justine Hall Pty Ltd (for the offender)
File Number(s):	2020/00142007