R v Elder [2025] NSWDC 101 | Case summary | Zoe

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R v Elder [2025] NSWDC 101 | Case summary | Zoe

The agreed facts are common to each of the offenders to be sentenced being the offender (Elder), Joshua Elliott (Elliott) and Joshua Cowan (Cowan), supplemented by CCTV recordings from a neighbouring property.
The complainant, Simon Horsely, had an outstanding drug-related debt with John Elliott, who is the brother of Elliott.
On 29 October 2022 the complainant attended an address in Nowra to obtain drugs, where Elder was present with a female. After the complainant had sat down, intending to make an electronic payment via his mobile phone, three additional men entered the house, being the offenders Elliott and Cowan, as well as an unidentified male. The four-men (three co-offenders and unknown male) then assaulted the complainant before Elliott said, “Grab him and put his hand up on the bench I’m going to cut his fingers off”. In the meantime, the complainant was subjected to numerous punches although he was unable to specifically attribute them to any particular offender given he was attempting to protect his head from the ongoing assault. In response to Elliott’s statement Cowan and Elder dragged the complainant to the kitchen and held his hand out on the kitchen bench. Elliott could be heard turning the angle grinder on and off although it was never actually used on the complainant.
The complainant managed to escape from the house, making it to the rear exit, although one of the offenders was holding the complainant by his hair. He was then pushed by the offenders Elder and Cowan over the handrailing falling approximately 1.5 m to the pavement below where he was punched and kicked by all three offenders.
The complainant again managed to get away, jumping a fence and running to a nearby house. However, his pleas for help from the occupants were ignored and the three offenders continued to assault the complainant in the front yard of the premises, captured by a neighbouring CCTV cameras. The CCTV depicts Elliott approaching the complainant on a veranda at the entry to this house before pushing him over the railing. Elliott uses his right hand to variously grab the complainant by the throat, punch him to the head, before pushing him over the railing to a concrete path below, assisted by Elder. Cowan is waiting at the path below, angle grinder in hand.
Elliott then grabbed the complainant by the hair, dragged him across the yard, kicked him to the head, stood on his throat/head area, stomped on his head and sat on his chest whilst he repeatedly punched him to the head. At one point the complainant managed to stand before Elliott swung him to the ground whilst he held onto his hair only. In the meantime, the angle grinder had been handed to Elder with Cowan at one stage entering the fray between Elliott and the complainant.
One of the offenders thereafter yelled “go and get the car” following which the complainant was dragged feet first towards the road by Elder whilst Elliott continued to hold his hair. Once at the gutter one of the offenders demanded that the offender put his mouth over the gutter. It is apparent Cowan left to retrieve the vehicle which arrived a short time later. One of the offenders said, “put him in the boot, take him out bush”. Elliott further manhandled the complainant at the car, at times assisted by Elder.
The complainant ultimately managed to escape.
Police were called and attended where the complainant was located although the offenders had fled. Seven photographs, admitted on the sentence hearing, were taken of the complainant’s injuries including a bald spot where his hair had been pulled out.
The claimant subsequently attended Shoalhaven Hospital where he was treated for a moderately swollen right forearm and wrist without any further obvious injury.

The offender was assessed by Dr Dornan on 6 December 2024, having been provided with the statement of agreed facts and the offender’s criminal history. The offender’s presentation was largely unremarkable although there was a pervasive pessimistic mood.
The offender was the only child to his natural parents whose relationship ended in his infancy. He had several maternal siblings which were older. He never met his father who apparently was not interested in being a parent. Hearsay information provided to him was to the effect that his father spent periods incarcerated and there was problematic alcohol and drug abuse.
The offender observed that it was challenging growing up without a positive role model in his life. His mother was a quiet person who it appeared was impacted by depression and alcoholism. While she was physically present, she was psychologically absent although “did the best she could.” There were some financial difficulties although “he mostly did not go without.” His mother had some problematic relationships with physical abuse although these relationships were not long-term.
He acknowledged suffering some depression although this appeared to lift when such troublesome relationships ended. He has maintained a close relationship with his mother as an adult although communication is primarily by phone with his mother living interstate.
In his early teenage years the offender’s behaviour declined, avoiding the family home, associating with an antisocial peer group and commenced using a variety of illicit drugs as part of his attempt to “fit in.” Consequently, at the age of 15, he was kicked out of home. In the meantime, it is apparent that the appellant was a victim of sexual assault in the school environment which resulted in further deterioration in his behaviour (he demonstrated clear symptoms of post-traumatic stress disorder). This coincided with the offender leaving school in Year 8.
He ultimately moved to Sydney where he was exposed to further antisocial drug users whilst residing with his sister. Despite these difficulties, the offender was engaged full-time in spray-painting work in Sydney although his ongoing drug use led to his loss of employment. He ultimately moved to Queensland with his pregnant partner and was again able to maintain regular employment. However, a return to New South Wales led to an increasing use of illicit substances leading to the separation from his partner with whom, by that stage, he had two children.
The offender reported significant difficulties in custody whilst on remand with the inability to engage in positive activities such as employment and custodial programs.
The offender candidly acknowledged his involvement in the offending, with his violent behaviour being a surprise and shock to him. I accept this statement in the context of the lack of violence in the offender’s criminal history. He accepted full responsibility for his actions and expressed genuine regret and remorse for which he was consistently victim-focused.
Following a psychological assessment, the psychologist diagnosed the offender as suffering persistent depressive disorder with mixed features, post-traumatic stress disorder as well as problematic personality traits consistent with a personality disorder. As the psychologist observed, the offender’s limited criminal history was at odds with his offending, and he did not present as inherently antisocial either by way of attitudes or lifestyle. The psychologist concluded that the offender’s persistent drug use was an attempt to self-medicate arising from his mental health. This unaddressed trauma history, untreated mental health and drug use contributed to his inability to sustain employment. His previous offending was linked to this drug use, reflecting poor decision-making and compromised consequential reasoning.
Dr Dornan concluded that the offender’s early childhood experiences of abandonment and neglect had impaired his capacity for emotional regulation and impulse control “shaping the foundation for impaired decision-making in adulthood.” He clearly lacked parental guidance or stability. The offender’s exposure to domestic violence had further reinforced maladaptive coping mechanisms, further increasing the likelihood of hypervigilance, emotional reactivity, and difficulty distinguishing safe from unsafe situations. His PTSD was also like to have led to impulsivity and poor risk assessment. The offender’s chronic substance use as a maladaptive coping mechanism would have further exacerbated his impairments. Dr Dornan observed: –

The Crown contended, by reference to relevant authorities, that the circumstances of the attempt constituted a matter “of particular seriousness” warranting a significant term of imprisonment. The relevant features included a prolonged assault at the hands of the three offenders, the threatened use of an angle grinder and the fact that all three offenders were actively engaged in the events constituting the attempt.
It was contended that the relevant elements of the underlying offence would have been complete but for the complainant being finally successful in fleeing from his assailants. It was contended, given the respective contributions of each of the offenders, that they would be treated equally when considering the objective seriousness of the offending. Given terms of section 25D(2)(c) of the Crime (Sentencing Procedure) Act 1999 (CSPA), a discount of 5% would be applied by reason of the guilty plea in relation to the sentence that would otherwise be imposed.
It was observed that the offender Elliott (as with Cowan) had histories of violent misconduct which had the potential of placing greater weight on specific deterrence. The offender Elliott (as was Cowan) was on conditional liberty although Cowan’s was more serious, being on parole at the time. Further, Elliott and Cowan had a history of institutional misconduct during incarceration. It was noted that the offender Elliott had been in custody since December 2022 and accordingly his sentence was entitled to be backdated.
In oral submissions, the Crown contended that in assessing the objective gravity of the offending it was accepted that the period during which the attempt offence was committed was relatively short, being a period of approximately seven minutes. However, the Crown contended given that the offence was one of attempt the focus for the purpose of the objective seriousness should be on a relatively significant period involving a prolonged assault which involved some characteristics of detention. The offence was near complete but for the complainant’s resistance in being placed in the car. This was in the context of the stated intention being to take the complainant out bush. It was contended that this was a serious example of the attempt offence.

In assessing the objective seriousness, it was contended that the period of attempted detention was relatively short. The offender’s involvement appeared to be circumstantial, limited and absent any financial or other benefit from his participation in the offending. It was conceded that the offending involved threats of violence and in those circumstances the level of fear on the part of complainant would have been significant. The actual bodily harm involved a swollen right forearm and wrist and was a less serious example of the aggravating circumstances. There was no evidence of any planning involving the offender.
It was contended that whilst there were no aggravating factors, there were several mitigating factors including the unlikelihood of reoffending, his expressions of remorse and insight, and the plea of guilty.
The offender’s criminal antecedents were limited and there were no previous convictions for violence. Time spent on remand for the offence was the offender’s first time in custody.
The submissions identified the relevant features of the report of Dr Dornan in support of a submission that the offender’s moral culpability was reduced in accordance with the principles espoused in Bugmy v the Queen (2013) 240 CLR 571. Reference was also made to the psychiatric disorders diagnosed by Dr Dornan. It was contended that the offender’s drug use from a young age was a relevant subjective circumstance: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. This was particularly relevant in circumstances where there was no previous history of violence. It was submitted that the offender had good prospects of rehabilitation given his limited criminal history, expressions of remorse and insight, and successful detoxification whilst in custody. It was conceded that the s 5 threshold had been crossed and that the sentence of full-time imprisonment was appropriate.
A finding of special circumstances would be made given the need for assistance to address mental health, good prospects of rehabilitation from services provided in the community and the fact that it was the offender’s first custodial experience.
In oral submissions counsel reinforced the relevant elements in the assessment of objective seriousness and the respective roles of the offenders. Emphasis was particularly placed upon the significant role of Elliott in the offending. To the extent that the offender was in possession of the angle grinder it was relatively insignificant. It was never brandished or raised by the offender whilst in his possession. It was contended that given Elder happened to be living at the residence, his involvement would be found to be impulsive.
Emphasis was placed upon the offender’s expressions of genuine remorse and acknowledgement of the harm to the victim. The risk of reoffending was low and there were good prospects for rehabilitation. There would be a significant finding of special circumstances.

In assessing the objective seriousness of an attempt offence, it is appropriate to consider “that the offence was not completed; chance of its success; seriousness of the attempt; whether the attempt was sophisticated or naïve; the competence of the attempt and all other surrounding circumstances”: R v Schofield [2003] NSWCCA 3 at [139] citing R v Taouk (1992) 65 A Crim R 387 at [390].
The offence of kidnapping was close to have been completed; it required no more than securing the victim in the boot of the vehicle, which was clearly the offenders’ intention, given the earlier statement of one of the offenders to “go and get the car” and the later statement to the effect that the victim was to be put in the boot to be taken “out bush”. The detention had reasonable prospects of success given there were three co-offenders and the vehicle was readily available. For these reasons the attempt was particularly serious.
Whilst not necessarily sophisticated, it did involve considerable physical effort by each of the offenders. It must be acknowledged that the indictable offence averred, being intimidation, carries a maximum penalty of five years imprisonment, representing the lowest maximum penalty capable of satisfying the definition of a serious indictable offence: s 4 of the Crimes Act 1900.
The specially aggravating circumstance, occasioning of actual bodily harm immediately before and at the time of the commission of the offence, is particularly serious. The victim was set upon by four men (including the three offenders). Numerous punches were thrown coupled with threats of the use of an angle grinder which was present during the assault. The assault continued in the neighbouring property despite the complainant successfully escaping from the house.
The further assault inflicted upon the victim is depicted in the CCTV evidence. The gratuitous violence demonstrated during this period is particularly disturbing, involving the complainant being repeatedly assaulted on a veranda before falling on his back to the ground below. He is then further pursued through the yard of the adjoining property where the vicious assault continues, including the victim being again falling off a veranda, being dragged by his hair along the ground under his full body weight, having his head stomped, repeatedly punched before being dragged by his feet to the vehicle. Through this entire period the angle grinder remained ever present in the possession of one or other of the offenders.
The fear, terror and utter desperation of the complainant is amply demonstrated when, whilst being dragged towards the street, in the knowledge it was the offenders’ intentions to place him in the boot and taken “out bush”, he unsuccessfully attempted to grab hold of the boundary gate/fence of the adjoining property.
The victim’s injuries are depicted in the seven photographs taken shortly after the incident which involved abrasions to the face, hand, knee and leg. They also depict the clump of hair ripped from the victim’s scalp.
In all the circumstances, I am satisfied that the offending reflects a particularly serious example of the contemplated offence of attempt to take/detain in company with intent to commit serious indictable offence specially aggravated by the occasioning of actual bodily harm before and at the time of the attempt.
Although each of the offenders are criminally culpable for the offence, it is appropriate in certain circumstances to consider the respective roles of the offenders in the offending, whilst always mindful of the limits in undertaking such an analysis given the very nature of a joint criminal enterprise: R v JW (2010) 77 NSWLR 7 at [166]; [213].
All three offenders were equally involved in the initial assault within the house. Whilst it was Elliott who directed the two co-offenders to secure the victim’s hand on the bench to cut off the victim’s fingers with the angle grinder, the co-offenders were the ones responsible for physically restraining the victim and holding his hand on the kitchen bench whilst Elliott was turning the angle grinder on and off. I am satisfied that each of the offenders equally contributed to this aspect of the offending.
However, in the continuation of the offending in the neighbouring property, Elliott further assaults the victim on the balcony before throwing him over. Elliott is the primary participant in the further assault including dragging the offender by the hair, sitting on the offender and repeatedly punching him to the face, kicking him, standing on his neck/head, further swinging him to the ground by his hair before dragging him along the ground with his hair. Cowan further assaults the victim whilst Elder tended to stand by. However, it must be acknowledged that Cowan initially has possession of the angle grinder and at one point stands over the victim whilst holding it. Elder later holds the angle grinder although not in any threatening manner. Elder is the one to drag the victim by his feet towards the road, assisted by Elliott following the arrival of the vehicle Elliott continues to attempt to restrain the victim. Elder and Elliott are thereafter involved in the further attempt to force the victim into the vehicle when it returns.
The offender’s involvement in the offending committed in the neighbouring property, depicted on the CCTV, was less than Elliott given that offender’s significant engagement in assaulting the complainant. The offender was involved in the initial assault on the neighbouring property resulting in the complainant falling. He was also responsible for dragging the complainant to the street and was actively engaged in the attempts to have the complainant put in the vehicle. I am satisfied that once the offending moved to the adjoining property Cowan and Elder, whilst having different roles at various times, had similar levels of involvement. Whilst Cowan was responsible for retrieving the vehicle, Elder was primarily responsible for dragging the complainant towards the vehicle and was involved, with Elliott, in the attempts to have the victim forced into the vehicle.
The offender has a very limited criminal history and significantly, no previous offences of violence. Whilst his record disentitles him to leniency, it is not an aggravating factor.
The offender is entitled to a discount of 5% on the sentence that would otherwise be imposed: s 25D(2)(c) of the CSPA. I further accept that the guilty plea reflects some willingness to facilitate the course of justice in that it has resulted in a useful saving in time and expense in conducting a trial and has avoided the victim having to give evidence. I have had regard to the victim impact statement, noting that unsurprisingly, it has had a significant impact, particularly on his psychological well-being.
I am satisfied that the offence was not part of an organised criminal activity. I am further satisfied that the offender’s involvement in the offending came about by happenstance given he was residing at the property at the time and was present when the complainant arrived.
I accept the history provided to the psychologist that the offender had early childhood experiences of abandonment and neglect given his physically absent father and psychologically absent mother. This was further aggravated by the offender’s exposure to domestic violence arising from his mother’s choice of partners. I accept that the offender was also exposed in his childhood to a mother who experienced depression and used alcoholism as a maladaptive coping strategy.
I am therefore satisfied that “full weight” is to be given to the offender’s deprived upbringing such as to reduce his moral culpability: Bugmy v The Queen (2012) 249 CLR 571; Kennedy v R [2010] NSWCCA 260 at [53]; Hoskins v R [2021] NSWCCA 169 at [51] – [57]. Whilst the psychologist identified the offender’s increased likelihood of engaging in high-risk behaviours, given his underlying psychological disorders, the discrete absence of any previous offences of violence would mean the qualification regarding community protection discussed in Bugmy at [44] is of little relevance.
I accept Dr Dornan’s diagnosis that the offender has suffered from depression and post-traumatic stress disorder since his teenage years. This has led to chronic substance use which, in combination with his underlying disorders, led to a significant impairment in judgement and consequential reasoning. This has led to the increased likelihood of the offender engaging in high-risk behaviours without recognising the potential repercussions. I accept that these subjective circumstances were operating at the time of commission of the offence such as to reduce the offender’s moral culpability with less weight to be afforded to punishment and deterrence: DPP (CTH) v De La Rosa (2010) 79 NSWLR 1; Muldrock v R (2000) 244 CLR 120; DC v R [2023] NSWCCA 82 [74-76].
However, this is not to say that the sentence imposed does not still demand some element of personal and general deterrence. Violence such as that perpetrated on the victim in broad daylight in a residential area, to be witnessed by members of the public, would be seriously confronting and needs to be denounced in the strongest terms.
Whilst the offender being drug affected at the time of commission of the offence is not a mitigating factor (s 21A(5AA) of the CSPA) I accept, consistent with the history provided to the psychologist, that the offender’s underlying drug addiction commenced in his youth and in response to his adverse experiences as a child including the abuse to which he was exposed in his early teenage years: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335.
I accept that the offender is genuinely remorseful given his statements to that effect contained in the psychologist’s report and his unsworn statement, coupled with the offender’s acknowledgement of the significant harm to the victim.
I accept the offender has very good prospects of rehabilitation. His criminal history is relatively limited, and he has clearly acknowledged his wrongdoing. I accept the history provided to the psychologist that his drug abstinence whilst in custody has been positive and that he has expressed a willingness to engage in employment and programs whilst in custody. Further, I accept the offender’s further motivation to actively engage in his rehabilitation upon release so as to be a better father to his children is genuine and well-meaning. This is further reflected in the letter from the chaplain of the correctional facility.
Whilst it is accepted that co-offenders sentenced for a joint criminal enterprise are equally culpable for the offence for which they are to be sentenced, consideration of objective and subjective factors may result in different sentences being imposed. This includes, in some circumstances, consideration in the roles or culpability of the co-offenders: JW [166]; [213]. Additionally different sentences may be imposed on co-offenders in a joint criminal enterprise following consideration of subjective matters such as age, background, previous criminal history and general character of the offender: Lowe v The Queen (1984) 154 CLR 606 at [609] per Gibbs CJ.
The principle of parity is premised upon the concept of equal justice, requiring that “like should be treated alike” whilst accepting that if there are differences as between co-offenders “due allowance should be made for them”: Lowe v The Queen (1984) 154 CLR 606 at [617] to [618]; Postiglione v The Queen (1997) 189 CLR 295 at [301].
I have found that whilst each of the offenders are criminally culpable for the offence for which they are to be sentenced, I am satisfied that Elliott’s role was more significant once it moved to the adjoining property, whereas Cowan and Elder had differing, but similar levels of involvement.
The three offenders entered pleas of guilty at the same time and I have accepted that the pleas were reflective of a willingness to facilitate the course of justice. The offences were committed by Elliott and Cowan whilst the subject of conditional limited liberty, whereas this was not the position with Elder. Cowan’s conditional liberty was more significant, being on parole, whereas Elliott was the subject of a community-based order. Whilst Cowan and Elliott have previous convictions for offences of violence, Cowan’s history is more significant/extensive. Elder’s criminal history is significantly less and there are no previous offences of violence. Bugmy factors are present in the subjective cases of Elliott and Elder although absent in Cowan. Each of the offender’s moral culpability is reduced having found their mental health contributed to the commission of the offence, reducing the weight to be afforded to punishment and deterrence. I have found that Elder’s prospects of rehabilitation are more positive, whereas less so with Elliott and Cowan. Whilst the three offenders have each expressed remorse for the offending, Cowan’s statements of remorse are more qualified. The finding of special circumstances has been made with respect to each of the offenders.
I am satisfied that the s. 5 threshold has been crossed and that no sentence other than imprisonment is appropriate.
I make a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period. Such a finding is justified given the offender should be given every opportunity to address the mental health issues identified in the report of Dr Dornan. I also take into account that this is the offender’s first time in custody. The additional time on parole also reflects my finding as to the offender’s good prospects of rehabilitation and the offender should be afforded every opportunity to address the issues whilst on parole.
The offender has been in custody solely referable to the offences for which he is to be sentenced for the periods 22 December 2022 to 30 March 2023, 26 July 2023 to 26 July 2023, and 20 September 2023 to 28 March 2025 being a total of 655 days, solely referable to the offence for which he is to be sentenced. The offender’s sentence is to be backdated for this time served to 12 June 2023.
In my view an appropriate sentence is 3 years imprisonment for which a deduction of 5% is deducted to reflect the utilitarian value of the guilty plea, resulting in a head sentence of 2 years 10 months and 5 days.