Police v Liddington

Local Court of NSW|2023-01-24|Before: Nettle JA, Cavanagh J, Hoeben CJ, Hamill J

The Charges and the Pleas

The offender Desmond Liddington pleaded guilty to offences of Intimidation contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), and Affray contrary to s 93C(1) Crimes Act 1900 (NSW) (the 'Crimes Act').
Guilty pleas were entered on 20 September 2022 on the seventh Court mention of the matters, which were first before the Court on 27 April 2022.
In accordance with the principles enunciated in R v Borkowski [2009] NSWCCA 102 at [32] I allow a discount of 20% for the utilitarian value of the delayed plea.

Maximum Penalties

The maximum penalty for Intimidation is 5 years imprisonment. The maximum penalty for Affray is 10 years imprisonment.
In Park v The Queen [2021] HCA 37 at [19], the Court said: "[19] Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account "[i]n determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit.17 17 R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172 A Crim R 111 at 117 [20] per Nettle JA, Chernov and Vincent JJA agreeing."

Agreed Facts

A set of facts was tendered by consent and without objection upon pleas of guilty being entered. I shall treat those facts as agreed facts for the purpose of sentencing.
The offender Desmond Liddington, co-offender Maxwell Ferrer, co-accused Clement Gilbert and an uncharged person Colin Brooks are current members of the white supremacist group Firm 22, of which Liddington is the leader.
On 4 December 2021, police conducted surveillance of the offender Desmond Liddington, Clement Gilbert and others in the Colyton area. Liddington and Gilbert got into a white Toyota Corolla driven by Brooks, and owned by his sister.
Around 7:30pm, the white Corolla drove past a particular residence on a main road near the victim's house to a roundabout where it turned around and drove back in the direction from which it had come. The vehicle was then parked on that road not far from the residence. Liddington, Gilbert and Ferrer approached the front door of the house. Some of the movement of the car and its occupants was captured on CCTV footage.
The premises is the home of Padraic 'Paddy' Gibson. Gibson is a well-known social activist who has been prominent in the Sydney 'Black Lives Matter' rallies and other protests relating to Aboriginal causes and other social issues. His address is described as being 'unlisted'.
One of the men began to knock on the front door. Gibson looked through the peephole and said: "Hello?" One of the males said: "Is this Paddy? We want to have a word with Paddy." Gibson said: "No, Paddy is not here." One of the males said: "Are you Paddy?"
Gibson noticed the size and muscular build of the men, their similar dress and their shaved heads. He observed that one man was wearing a T-shirt with the Eureka stockade cross on the front. Through his familiarity with the political far right, he formed the belief that the men were right-wing extremists such as those associated with the neo-Nazi skinhead movement and began to move away from the door in fear.
At least one of the three males bashed on the door harder than the initial knock on the door. Gibson feared the men were attempting to force entry and that he and his wife would be assaulted. Loud banging noises continued to come from the front door and Gibson heard glass breaking. He rushed to the back of the house, locked the rear security door, and moved to the rear bedroom with his wife and called '000'.
Liddington, Ferrer, and Gilbert walked away from the premises back along [redacted] road towards their car. Gibson returned the front of the house and saw the front security screen was torn from the front window and damaged and that the window was smashed. A table on the balcony beneath the broken window had been overturned and a number of other items appear to have been thrown around the veranda.
The incident drew the attention of a number of people in the neighbourhood due to the noise and ferocity of the attack. A person walking past the address at that time heard the sound of glass breaking and stopped and saw the three men at the door, noting their appearance. That witness heard further banging noises and began to move away.
Police attended the location and established a crime scene. Fingerprints on the front door and surface of the glass table were located. The fingerprint from the glass table matched that of the co-offender Ferrer.
At 7am on 29 March 2022, police attended Ferrer's home address at Greenwell Point and arrested him. A search warrant was executed. Police seized a Dexter brand vest with a distinctive design seen in the CCTV footage, and a long black sleeve top with white writing down the sleeve.
About 7am on 27 April 2022, a search warrant was executed on premises in the suburb of Elderslie. Liddington was not at home at that time. Police seized a pair of blue shorts with three white stripes down the side and a pair of black Nike brand shoes, as seen in the CCTV footage. After speaking with police by phone, the offender presented himself at Narellan police station where he was arrested and cautioned.
Simultaneous with that search warrant, a search warrant was executed at Gilbert's address in Ryde. He was arrested. A dark blue T-shirt with a Southern Cross design on the front, a pair of black jeans, pair of black shoes with white soles and a pair of brown frame sunglasses, as worn by Gilbert in the CCTV footage, were recovered, and seized by police.

Western Australian Criminal Record

The offender's criminal history began in Western Australia. I shall ignore matters where it is indicated there are spent convictions.
The initial entries from 2005 to 2008 included multiple counts of disorderly conduct, and drive under the influence. In 2009 he was placed on an Intensive Supervision Order for threaten to destroy, damage, endanger or harm property; given suspended imprisonment of 7 months for criminal damage; and imprisoned for 3 months for wilfully and unlawfully destroy or damage property. He was breached for the suspended imprisonment order and an intensive supervision order and imprisoned.
In 2010 he was imprisoned for criminal damage, and aggravated armed robbery.
In 2011 he was fined for 2 counts of disorderly behaviour in public and damaging property, and subsequently given a suspended prison sentence for destroy property.
In 2013, he was convicted for multiple counts of wilfully and unlawfully destroy or damage property, and 2 counts of possess prohibited drug.
In 2017 there were 2 counts of breach family violence restraining order.
In 2021 there was a further count of criminal damage or destruction of property, and a fine for breach of bail undertaking.

NSW Criminal Record

In 2018 the offender was convicted of Mid-range PCA. In 2020 he was convicted of Intimidation (personal) and offensive manner.
The offender's criminal record affords him little leniency, though is not an aggravating factor as contemplated by s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 (NSW) (the 'Crimes (Sentencing Procedure) Act').

Conditional Liberty

The offender was granted bail in early April 2022 on 2 counts of intimidation (domestic violence related) and was therefore on bail at the time of the commission of the offences for which he is to be sentenced.
The commission of further offences whilst on conditional liberty is a statutory aggravating factor pursuant to s 21A(2)(j) Crimes (Sentencing Procedure) Act.

Sentencing Assessment Report

The offender attributed his aggressive offending behaviour to his learnt behaviour, attributing it to his 'rough' and domestic violence upbringing.
In relation to the present charges, he minimised his action by denying intentions of causing the victim fear and apportioned blame on the co-accused for causing the property damage. He is said to have attributed his offending to his feeling of obligation to help a 'mate' and did not think of the consequences.
Under the heading 'Social Influences', the offender acknowledged 'prior' right-wing views and association with like-minded people at the time, whilst living in Western Australia. He told the author of the SAR that despite his current differing views, he continues to maintain some contact with these associates.
The offender denied the incident to be politically or racially motivated.
He acknowledged prior anger issues and that his demeanour can be seen as intimidating. He denied aggressive intentions towards the victim and apportioned blame on his co-accused of the incident.
He verbalised the potential fear the incident caused the victim.
The report notes breach action taken during prior engagement with interstate Community Corrections.
The offender has been assessed as suitable for community service work.

Plea in Mitigation

Mr Liddington is 39 years old and in a relationship. He has a blended family of six children, and is a bricklayer by occupation. He has employment to go to depending on the outcome of these proceedings.
It was acknowledged that the facts might be considered confrontational. The offender fully appreciates his actions are outside of the realms of civility, and accepts that people are entitled to have their own views.
It was submitted that no one was injured or hurt though the incident was confrontational.
The offender has been in custody since 22 November 2022 in relation to unrelated matters. The effect of him being held in custody has resulted in reduced financial income for his partner and family.
The co-offender Ferrer was placed on a Community Correction Order for 12 months on both the intimidation and affray charges with the requirement that he complete 100 hours of community service work.
It was submitted that a Community Correction Order would be an appropriate penalty.

General Remarks

Section 21A(2)(h) Crimes (Sentencing Procedure) Act sets out that an aggravating factor for an offence exists in circumstances where the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability). I find beyond reasonable doubt that this is such a case.
The offender takes little responsibility for his actions. Although he has pleaded guilty, I am unable to find that he is remorseful.
He made a number of exculpatory remarks to the author of the Sentencing Assessment Report where he attempted to minimise his actions; apportioned blame to co-accused; justified his offending by a claimed feeling of obligation to help a mate without thinking of the consequences; suggested that he no longer has right wing views or associates with like-minded people although he maintains some contact; and denied the offending to be politically or racially motivated.
In Imbornone v R [2017] NSWCCA 144 at [57], Wilson J with Hoeben CJ at CL and R A Hulme J agreeing, referred to the well-known principle that untested out of court statements made to third parties, including authors of "pre-sentence reports" should be treated with "considerable caution" and "considerable circumspection" that "may be deserving of little or no weight". Those remarks are apposite.
The agreed facts directly contradict some of the offender's assertions. Those facts refer to the offender as the leader of the white supremacist group Firm 22, and co-offender Ferrer and co-accused Gilbert as members who all hold extreme right-wing political views and adhere to white extremist ideology. The source or basis of those facts is from telephone intercepts (see fact sheet footnotes).
I reject the offender's assertions that are contrary to the agreed facts tendered on sentence.
The offender's acknowledgement of the potential fear the incident caused the victim is readily accepted as being truthful. It is consistent with the combined actions of the offenders, and the descriptor of the 'noise and ferocity of the attack'.
I infer from the facts and the guilty pleas that the offenders were acting in a joint criminal enterprise. There can be no doubt on the facts presented to this Court that Liddington, Ferrer, and Gilbert had an understanding, arrangement, and agreement that they would commit a crime or crimes against Padraic Gibson involving intimidation and affray based upon their white extremist right-wing beliefs and their ideological hatred or disapproval of the political and or cultural views of Gibson. They are all equally guilty of the crimes: see McAuliffe v The Queen (1995) 183 CLR 108 at 114.
Further, I am unable to attribute any particular physical action by any of the three participants that reduces or enhances their culpability. The victim, Gibson sees all three men when he looks through the peephole. A witness saw the three men at the door: see Lowe v The Queen (1984) 154 CLR 606 at 609.
Contrary to the offender's assertion, I am satisfied beyond reasonable doubt that the offences were motivated by hatred for, or prejudiced against a group of people to which he believed Mr Gibson belonged.
I find that there was a degree of planning. The offenders were collectively aware of Gibson's address and sought him out by name. They travelled from Western Sydney a distance of approximately 50 km to confront Gibson. They can be no doubt that Gibson was targeted by Liddington and others due to their right-wing extremist beliefs which obviously do not accord with those held by Gibson.
The offender's role as leader of Firm 22 is distinguishable from those of 'followers' or mere 'group members'.
It is acknowledged by the offender's guilty plea that he used or threatened unlawful violence towards Gibson, and his conduct would have caused a person of reasonable firmness present at the scene to fear for his or her personal safety. I note the legislation also provides that if two or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purpose of whether affray is committed: see s 93C(2) Crimes Act.
The affray occurred after the initial knocking on the door and words are spoken enquiring whether or not the occupant was Paddy Gibson, whilst the three men were outside the front door. The conduct immediately prior to the affray constitutes the intimidation offence.
There can be no doubt that Gibson was intimidated by what he saw and heard, after which he began to move away from the front door in fear. The subsequent conduct of the offenders resulted in Gibson rushing to the back of the house and locking the rear security door, moving to the rear bedroom with his wife and calling emergency services.

Objective Seriousness

I find that the objective seriousness of the intimidation matter sits comfortably in the middle range. The victim, in the privacy of his own residence was confronted by three men, ie. in company, of muscular build similarly dressed, and had reason to believe that the men were right wing extremists. Upon knocking on the front door, the occupant was asked whether he was Paddy. Despite telling them that Paddy was not there, the questioning persisted, "Are you Paddy?"
Given the presence of the aggravating factors, the objective seriousness of the affray matter falls at least at the middle of the range. I note the men collectively bashed on the front door, smashed a window, tore the front security screen from the window, overturned a glass table on the veranda and apparently threw items around the veranda. I have referred to the fact of neighbours being alerted by the noise and ferocity of what was occurring. A witness walking past began moving away upon making observations of what the men were doing.
The conduct offends against democratic values of equality and diversity which underpins the rationale for enacting s 21A(2)(h) of the Crimes (Sentencing Procedure) Act. The offender says through his solicitor that he accepts people are entitled to have their own views. However, the offender's conduct belies that submission and I do not accept that he holds such a view.

Prospects of Rehabilitation and Risk of Reoffending

The offender has demonstrated no insight in relation to the close connection between his personal beliefs, leadership of a white extremist group and the associated offending. I have already found that he is not remorseful.
None of this bodes well for his prospects of rehabilitation which I find to be poor. Similarly, I am not confident at all that this offender is unlikely to reoffend whilst he maintains extremist beliefs.

Section 3A Crimes (Sentencing Procedure) Act 1999 (NSW)

Section 3A sets out the purposes of sentencing namely: 3A Purposes of sentencing 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
The offender's extremist beliefs require a strong measure of specific deterrence, and general deterrence to dissuade like-minded people from similar offending. His conduct is to be denounced, and the community is to be protected through the imposition of adequate punishment.

Parity Considerations

I am aware of the principles regarding parity as set out in Green v The Queen; Quinn v The Queen [2011] HCA 49, and in particular at [32] and [33].
The co-offender Maxwell Ferrer pleaded guilty to charges of Affray and Intimidation. In July 2022 he was sentenced to concurrent Community Correction Orders for 12 months with supervision by Community Corrections, and on the Affray count given 100 hours of community service work. He was also sentenced for other unrelated offences.
I informed the parties that I could not determine the issue of parity by merely being informed of a sentence imposed upon a co-offender. Subsequently, the facts tendered upon sentence and criminal record of Ferrer were obtained.
Ferrer had a single conviction for mid-range drink driving from 2017. After a cursory perusal of Ferrer's facts, I was initially concerned that the sentence imposed on him may have not given effect to the purposes of sentencing, and was potentially unduly lenient or potentially manifestly inadequate.
I requested a transcript of the remarks on sentence. Upon receipt of those remarks, and a closer reading of the Ferrer facts, it was readily apparent that parity considerations do not support the submission on behalf of the offender Liddington that Community Correction Orders would be appropriate or adequate penalty.
There are significant distinguishing features that set apart the appropriate sentence of each offender.
In the sentencing remarks for Ferrer, the learned Magistrate stated the maximum penalty for the Affray offence as being 7 years, when it is in fact 10 years. The actual maximum penalty is nearly 43% above that referred to by the Magistrate. I note the remarks on sentence were ex-tempore, and well understand the extraordinary volume of work across the Local Court of NSW.
It seems that neither the prosecutor nor defence lawyer were aware of the correct penalty for the affray offence. If they were, they failed in their duty to inform the Magistrate of the correct maximum penalty so as to avoid error. Had they done so, the Magistrate's assessment of appropriate penalties may have increased due to the obligation to take into account the correct maximum penalty when determining the appropriate sentence: see Park (supra).
There was no reference in the remarks to the offence being one of a race-related or hate crime. Upon a careful reading of Ferrer's facts, I note that there is no reference at all to Ferrer being a member of the white supremacist group Firm 22, nor any reference to his extreme right-wing political views and adherence to white-extremist ideology.
The absence of reference in Ferrer's matter to the offence being associated with right-wing white extremist activity significantly reduces the objective seriousness and criminality because section 21A(2)(h) was not taken into account in the sentencing exercise.
Conversely, the criminality in the case of Liddington is substantially more than for Ferrer as he is to be sentenced for offences that are race/hate crimes, which in turn require greater emphasis to the application of deterrence and denunciation when considering the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act.
The offender Liddington has a much more extensive criminal record than Ferrer, including armed robbery and other offences for which he has served terms of imprisonment. The targeted offending involved planning, and his role was that of the leader of a white supremacist group.
Additionally, I must assess the appropriate penalty against the correct maximum penalties: see Park (supra) at [19]. For the purpose of parity of sentence, the following table sets out the differences between sentencing considerations of Liddington and Ferrer:

Parity Comparison Table LIDDINGTON FERRER Being sentenced for a race/hate crime - s 21A(2)(h) Crimes (Sentencing Procedure) Act Not sentenced for race/hate crime Leader of white supremacist group Firm 22 and holding extreme right-wing political views. Role of leader rather than that of co-offenders Ferrer's membership of Firm 22 and extreme right-wing political views was not a fact for the purpose of sentencing Extensive criminal record including armed robbery. Has served periods of imprisonment Single conviction for mid-range drink driving Targeted offending arising from extremist beliefs Targeted offending but basis of offending not known Sentence assessed against correct maximum penalties Incorrect consideration of maximum penalty for more serious offence (affray) Significant emphasis to be placed on purposes of sentencing per s 3A Crimes (Sentencing Procedure) Act especially specific deterrence given extremist beliefs and matters on criminal record; general deterrence re race/hate crimes, protection of community No consideration of specific deterrence given nil priors of violence, and less emphasis on general deterrence due to Court being unaware of offender being white supremacist.

I am satisfied in all the circumstances that parity does not apply.

Section 5 Crimes (Sentencing Procedure) Act

Section 5 of the Crimes (Sentencing Procedure) Act provides that a court should not impose a sentence of imprisonment unless having considered all possible alternatives that no other sentence is appropriate.
I am satisfied that each of the offences are so seriousness that they cross the threshold of s 5 of the Act such that only a sentence of imprisonment is appropriate.

Aggregate Sentence

I will deal with the offender by way of an aggregate sentence pursuant to s53A Crimes (Sentencing Procedure) Act. H87519612 Offence Indicative Sentence Seq.1 Intimidation (personal) 12 months Seq.2 Affray 24 months (Starting point 30 months)

Consideration of Intensive Correction Order

I have not been asked to consider an Intensive Corrections Order. Having considered relevant factors including the purposes of sentencing pursuant to s 3A Crimes (Sentencing Procedure) Act, I find that the offending conduct is so serious that only a period of full-time imprisonment is appropriate: see Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 at [186] - [187]; and Thurlow v The Queen [2022] NSWCCA 20 at [32] - [35].
However, I note the successful appeal in Stanley v Director of Public Prosecutions (NSW) [2022] HCA 3 for which the High Court's judgment is yet to be published. In accordance with the reasons given in Bresnahan v The Queen [2022] NSWCCA 288 by Beech-Jones CJ at CL at [2] and Walton J at [40], I will consider the appropriateness or otherwise of an Intensive Corrections Order.
Pursuant to s 66(1) of the Crimes (Sentencing Procedure) Act, community safety must be the paramount consideration when deciding whether to make an Intensive Correction Order.
Given the offender's extremist views, leadership of a white supremacist group, the targeted offending by race/hate crime, his lack of remorse, poor prospects of rehabilitation and my finding that it cannot be said he is unlikely to re-offend, I have no confidence at all that community safety would be met by this offender being placed on an Intensive Correction Order. He remains a potential risk to the community whilst he holds extremist views. In coming to this conclusion I make clear that I have applied Veen v The Queen (No.2) (1988) 164 CLR 465. However, this is not a sentence of preventative detention, rather a proportionate sentence applying relevant sentencing principle.
Pursuant to s 66(2) of the Act, I am comfortably satisfied that a sentence of full-time custody is more likely to deal with his risk of re-offending.
Those findings coupled with my findings as to the purposes of sentencing in s 3A of the Act inevitably lead to the conclusion that a sentence of full-time custody is the only appropriate sentence having considered all possible alternatives.

Special Circumstances

I make a finding of special circumstances in relation to the more onerous conditions in prison due to Covid-19 restrictions, including increased lockdowns: see for example Valentine v R [2020] NSWCCA 116 at [59] - [62].
The offender referred to a "rough and domestic violence upbringing" in the Sentencing Assessment Report. That bare assertion is insufficient to warrant a finding of special circumstances under the Bugmy principles: see Bugmy v The Queen [2013] HCA 37. If such a finding had been made, any reduction on sentence would likely be minimal, if at all, given his extremist views, poor prospects of rehabilitation and potential future risk associated with his beliefs.

Pre-Sentence Custody

The offender was arrested on 27 April 2022 and released to bail the following day (i.e., 2 days). His remand in prison relates to other offences. I allow 2 days pre-sentence custody per s 24 Crimes (Sentencing Procedure) Act.

ORDERS

The offender Desmond Liddington is convicted on both counts of Intimidation and Affray.
The offender is sentenced to an aggregate sentence of imprisonment for 2 years and 6 months from 4 February 2023 to 3 August 2025 with a non-parole period of 18 months.
The non-parole period is to date from 4 February 2023 to 3 August 2024.
The balance of term on parole will commence on 4 August 2024 and will expire on 3 August 2025.
The non-parole period is 60% of the total sentence which indicates a finding of special circumstances, the reasons for which have been set out earlier in these remarks.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

Amendments 27 August 2024 - Amended coversheet fields. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2024

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