Solicitor:
Mr M Kwan, Legal Aid NSW (for the offender)
File Number(s): 2021/00270190
[2]
Introduction
The sentencing proceedings for Lee Eager were initially joined with and are now separated from proceedings in relation to Cheyne Morley, Benjamin Walker, Tara Clare and Ilo Ilievski.
[3]
Facts for sentence
On 11 May 2020 Cheyne Morley, Tara Clare and Complainant 1 went to Sydney to do a drug deal. They were ripped off. Morley and Clare and Complainant 1 returned to a home in Cringila where Morley and Clare resided. There they met Benjamin Walker.
Morley and Walker along with Complainant 1 then met up with Complainant 2 who had been asked by complainant 1 to meet them at a garage up the road. Complainant 2 was induced to come back to the premises at Cringila.
In the premises both complainants were assaulted by Walker and Morley in the presence of Clare, and demands were made of them to make recompense for the money lost during the rip off. For reasons that are at best obscure, those who were demanding recompense blamed the two complainants for their loss.
After the assaults both complainants were ordered into a crawlspace under the house where the hot water heater was and detained there. Complainant 1's knee had been injured during the assault and he was in considerable pain. He refused to cooperate with the demands for money. Complainant 2 did what he could to organise some payment. As a "reward" for his cooperation at times he was allowed out of the crawl space. He sought to ingratiate himself with those holding him by producing from his car a quantity of methylamphetamine which some or all of them smoked.
It is not in serious dispute that the present offender, Lee Eager, was at the time living in the local area but effectively homeless. He was in the grip of a very strong drug addiction to both Xanax and methylamphetamine. It is not at all clear how he came to be at the premises, but he did turn up while the two men were being held in the crawlspace under the house. He then joined the joint criminal enterprise.
In his evidence he says he has no memory of the event. Given his evidence today and other material I have read about him, that is not an unbelievable statement. But he accepted responsibility for his crimes and entered a guilty plea. He accepted the Complainants had identified him by name and that his fingerprints were found in incriminating positions in the Cringila house.
There are agreed facts before the Court. The mention of Mr Eager in those facts is very brief. The agreed facts here differ, in some respects, from the way the case was presented at the trial of the others.
The agreed facts mention Eager at paragraphs 8, 10 and 11. Paragraph 8:
"At one stage [Complainant 2] was outside the premises, he was as a reward allowed to have a cigarette. He saw Eager arrive at the property. He heard Eager speaking to Ilievski."
At paragraph 10 and 11 mention is made of demands being made of the two complainants so that they could, with the help of their family, meet the payment of the money demanded of them. It then states:
"For the next eight hours at regular intervals Walker, Morley, Ilievski and Clare would come to the door and try to convince the victims to get more money from anyone they could. Lee Eager would also come to the door and speak with the victims."
The facts also say "Eager told Complainant 2 he was Macedonian". Someone got it wrong. Mr Eager is not Macedonian, he speaks no Macedonian or any other foreign language. He told me he is learning Mandarin, and his family background is Italian.
Paragraph 11, continues:
"Lee Eager would also come to the door and speak with the victims. The victims were told they were not leaving until they paid the money."
[4]
Objective seriousness
Although one of the complainants was significantly injured, it is not suggested that Eager had any knowledge of this, and there is no evidence he saw Complainant 1. He only saw only Complainant 2. It is not entirely clear how long Eager was at the premises. The agreed facts note he was a principal in the second degree to the detention. The efforts made by others to put the complainants in the space under the house or have Complainant 2 return to that space under the house could not be sheeted home to Eager. He however chose, perhaps drug addled as he probably was, to engage in this offence.
Eager's drug use cannot and does not excuse his criminal activity. The best it can do is help me explain what he did and why he did it, because otherwise there is no reason whatsoever for him to do what he did.
Although his role did not involve direct threats, he was present or engaged in demands that were made of those being held. By his presence he assisted in the intimidation of those who were being held under the house. To that extent, although his involvement was at a low level, he chose to involve himself in a very serious detention of two others, and for that he has to be punished.
He accepted responsibility at an early stage. He is to have a reduction of 25% of the otherwise appropriate sentences for the utilitarian value of that guilty plea. I also take into account his facilitation of the course of justice because he took every effort to expedite his sentencing proceedings.
So far as specific factual findings are concerned, the Crown in oral submissions accepted the summary provided in the written submissions by Mr Kwan, solicitor for Eager:
"The offender can be classified as playing a supporting role in the offence, well towards the periphery when considering the motivations and aims of the detention of the victims. It was the principal offenders who initiated the detention and demands for money and later injured one of the victims." MF1 2 at [8].
It was submitted that the offender's individual culpability is well towards the lowest end for offences of this type. Mr Kwan referred me to Charlesworth v R [2009] NSWCA 27 at 80.
In any detention offence one must have regard to the maximum penalty which for a s 86(2)(a) Crimes Act 1900 offence is 20 years imprisonment. That maximum is one guide to the exercise of my sentencing discretion. I also have to have regard as is generally expected to the factors that are set out in R v Newell [2004] NSWCCA 183. They include; the period of detention, the nature of the advantage sought, any motivation and impact on the victims.
In Johnson v R [2010] NSWCCA 124, it was noted that it is rare of the Court to draw a distinction between co‑offenders involved in a joint criminal enterprise. Here, it was accepted that significant distinction can be drawn between Eager and the others, and even between those others.
[5]
Subjective case
In reaching my determination about an appropriate sentence I have the benefit of three things. The first, is that I have previously sentenced Eager. The judgment has not yet been taken out, but I have had regard to my earlier sentencing notes, which I read to the parties. Secondly, I have had the benefit or rereading a comprehensive psychological report prepared by Megan Godbee, a forensic psychologist. Thirdly, Eager gave evidence today.
Eager told me about the improvement in his mental state since he last appeared before me. He has been working in the gaol and now has a position as senior cook at Clarence. He has also started a series of EQUIPS programs.
He has solid plans for his release. Although his criminal record is lengthy there have been periods of sobriety and hard work. He believes that he can re‑establish the pro-social working partnership he had back then.
Eager was born in 1983. He has a criminal record since 2002 for drugs, driving, and there is an assault in 2009. But except for the matter I sentenced him for in 2021, his crimes did not involve violence. But that matter was a very violent offence, committed under the influence of illicit drugs.
While he did not grow up in an environment of the type described in both Fernando v R (1992) 76 A Crim R 58 and Bugmy v The Queen [2013] HCA 37; 249 CLR 571, his early life was disrupted. There was constant exposure to antisocial influences, and that would have, compromised his capacity to mature and learn from experience: Bugmy; Ingrey v R [2016] NSWCCA 31. It is quite clear from the material before me that drug use was normalised in his life and that he took up drug use before he was old enough to make a rational choice: R v Henry (1999) 46 NSWLR 346, 106 A Crim R 149.
It appears that his mother, and other family and friends were drug users, and he took up with drug users when still a teenager. He told me that at times he uses "ridiculous amounts" of methylamphetamine and Xanax. It is not surprising that when he was using drugs to excess his mental health deteriorated, and he then engaged in impulsive, self-harming behaviour. There is also a history of his making grandiose statements.
But there is some hope in the drug-free periods and the way he has responded to custody. Both in custody and on release he will need intensive drug rehabilitation and relapse prevention. He will require support and intervention and he will need to complete the EQUIPS programs, in which he is already enrolled.
[6]
Submissions
I am indebted to Mr Kwan for his written submissions which were not challenged in any significant way by Mr Fox who appears for the Crown. It is accepted that he is lowest in the hierarchy of those to be sentenced for this joint criminal enterprise. It is accepted that that there is a need to structure the sentence so that it can fit in with my earlier sentence, preserving some finding of special circumstances, but allowing appropriate punishment for this matter, taking into account principles relating to totality to which Mr Kwan referred me.
[7]
Synthesis
Synthesising all those matters. Eager has utilised his time in custody well. He, he is on the road to recovery, but it will be a long road. He will need assistance adjusting to normal community life, he will need monitoring.
Mr Kwan submitted that there was no need for accumulation between the two sentences. I disagree with that submission because in my view there were two victims and each requires vindication and there should be punishment for both, because two were involved, it would not be met by complete concurrence.
He entered custody on 22 March 2021. His non-parole period for the previous sentence expires on 21 July 2023. I propose to commence this sentence on 22 December 2022, so that is partly concurrent with his existing sentence. I will impose an aggregate sentence. The indicatives are reduced by 25% to take into account the guilty pela as I indicated earlier.
[8]
Orders
The term of the aggregate sentence is two years and three months, the non-parole period of one year commencing 22 March 2023. You will be eligible for parole on this matter on 21 March 2024. There will be a balance of one year and three months to be served in the community expiring on 21 June 2025.
The bottom line is Mr Eager, I have extended your sentence by nine months for your involvement in this matter. That means your release date will be 21 March 2024. For transparency, were it not for the guilty plea - two years three months for each of the matters, some concurrency, some accumulation because of the two victims.
In each matter indicated sentences of one year and ten months, total sentence of two year, three months. He was due for release on 21 July 2023, my starting date would be 22 March 202323, release after one year 21 March 2024. Previously I had allowed one year eight months on parole, this time the parole period will be one year, three months. This sentence has eaten into the parole period. But the nine months was absolute minimum I believe he should serve in relation to this matter. I could not extend the sentence beyond what was necessary to allow more time on parole.
AUDIO VISUAL LINK CONCLUDED AT 3.47PM
[9]
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Decision last updated: 18 May 2022