R v LEOTA

District Court of NSW|2020-05-15

SENTENCE

The offender pleaded guilty before the Local Court on 30 October 2019 and was committed for sentence in respect of one charge of Specially Aggravated Take and Detain for Advantage, contrary to s 86(3) of the Crimes Act, 1900 namely: "That (he) (on or about 8 November 2018) at Tolland in the State of New South Wales did without consent detain Dale Tapper with the intention of committing a serious indicatable offence, (namely) larceny the said Joshua Leota occasioned actual bodily harm while being detained while the said Joshua Leota was in the company of Patrick Pengelly".
For ease of expression I will refer to that charge within these reasons as the kidnapping charge.
It is regrettable that a little more care is not taken with the averments in Court Attendance Notices, noting that they are essentially part of the initiating process in the District Court on a committal for sentence.
The offender continued the plea of guilty at the sentence hearing at the Wagga Wagga District Court on 15 May 2020 and accordingly he is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
In addition the offender appears for sentence in respect of a charge contrary to s 7(1) of the Firearms Act, 1996 namely: "That (he) on 5 October 2018 at Mount Austin in the State of New South Wales, did possess a pistol, namely an imitation self-loading Beretta Model 92FS pistol bearing serial number C7862Z, not being authorised to do so by a licence or permit."
In respect of that matter, to which I will refer within these reasons as the firearms matter, the offender was committed for trial and pleaded guilty on the first day of the trial. As the matter was an EAGP matter it is uncontroversial that the offender is entitled to only 5% discount for the utilitarian value of the plea of guilty in that matter.

Facts - Specially Aggravated Kidnapping Charge

The facts are before the court by way of agreed facts. Both parties assured me at the sentence hearing that the facts are identical to those that were before me in the matter of Pengelly. I understand from the written submissions of Mr Howell, counsel for the offender in this matter, (MFI 1 on sentence) that no particular issue is taken with the facts or the findings as to seriousness in that matter. Accordingly, I will recite the facts from my reasons in R v Pengelly: "[6] At about 5.30pm on 8 November 2018 the victim Dale Tapper drove his mother's vehicle to Kooringal Mall where he parked and purchased cigarettes. On returning to the vehicle he sat in the vehicle with the driver's door open having a cigarette. He then got out of the car to extinguish the cigarette. As he did so he was approached by [Pengelly], who he had known for a number of years. The victim returned to the driver's seat. [7] [Pengelly] also entered the vehicle sitting in the front passenger's seat. The victim noticed a 1990s model Landcruiser vehicle nearby. He then saw an islander who he recognised as Leota (the co-offender) approach, who then got into the back of the vehicle. Pengelly accused the victim of owing someone called "Scotty" some money. [Pengelly] reached across and took the victim's wallet from a compartment in the door, removed $20 from the wallet, put that in his pocket and took the victim's cigarettes. [8] Leota began asking the victim if he knew a person called Kelleher, explaining that Kelleher had recently won money on a poker machine and that he and [Pengelly] wanted to obtain money from him. Leota also asked whether he knew a man "Wok". Leota then directed the victim to drive to Kennedy and directed the victim not to draw attention to himself. [Pengelly] drove away from Kooringal Mall and said that he did not know where Kennedy was. The offenders said they would direct him. [9] The offenders then directed the victim to a block of units at Nordlingen Drive in Tolland. The victim while driving noticed that the white Landcruiser he had seen earlier was following. The victim was directed to park in a driveway at the block of units. He noticed the Landcruiser park nearby. A male person who the victim did not know exited the Landcruiser and went to Unit 6. [10] The offenders ([Pengelly] and Leota) demanded that the victim keep his windows wound up, his seat belt on and the doors locked while inside the vehicle. Leota said that he was $17,000 in debt and made a number of suggestions as to how the victim might repay that money. The victim said that his mother had a safe containing money at home and that he could obtain that money for them. The offenders discussed whether they should allow him to do that. The three were in the vehicle for about ten minutes. [11] [Pengelly] then backhanded the victim to the jaw. Leota grabbed the seatbelt and held him in place for a few seconds. The victim felt that his breathing was being restricted. Both offenders hit the victim and taunted him with things such as that he was now in the "bone yard in gaol". [12] Leota exited the vehicle, opened the driver's door and took the victim by the hand saying, "you're going to put your arm around me, and we are going to look like mates". The victim felt something sharp at his ribs but was too afraid to look down. Leota said words to the effect of, "don't try to run away or I'll put it into your guts". Leota laughed and led the way to unit 6 with [Pengelly] following. [13] The victim and the offenders walked up a flight of stairs to unit 6 of 4 Nordlingen Drive. [Pengelly] and Leota led the victim up the stairs and through an open door into the unit. The victim was sat inside on a couch directly in front of the door for some minutes. The victim recognised a third male in the unit as the driver of the Landcruiser. Two young women were present. [14] [Pengelly] and Leota then demanded the victim get inside the laundry. Upon entering the laundry [Pengelly] kneed the victim to the head twice and Leota struck him to the head a number of times with a closed fist. They accused the victim of being a woman basher and suggested that he "got Kara locked up". Leota using a pair of scissors cut the victim's hair. The offenders then left the laundry leaving the victim there. [15] Around ten minutes later [Pengelly] produced a small blow torch, which was held towards the victim. [Pengelly] used the blow torch to cause small burns to the victim's right hand and to the victim's back. These burns are described later in the facts as being superficial. Leota returned to the laundry and [Pengelly] turned off the blowtorch. Leota threatened the victim with the scissors he had earlier used to cut his hair. The offenders then left the victim in the laundry with the door open. Given what had occurred to this point in time it is not surprising that the facts recite that the victim feared for his safety. [16] At about this time the driver of the Landcruiser returned to the unit with pizzas which were consumed by those present while the victim remained in the laundry. While the victim was in the laundry he was subject to regular checks by [Pengelly] or Leota with the checks becoming more infrequent over time. [17] [Pengelly] left the unit with the driver of the Landcruiser and a fourth male. The victim heard discussion of them going to buy some shard, which I presume is a reference to methyl amphetamine or "ice". The victim remained in the unit with the two young women and Leota. [18] Leota returned to the laundry and began talking to the victim. Leota was not making much sense and the victim described him as being "spun out". Leota made the victim to enter the main bedroom with the female who was the occupier of the premises. Leota said words to the effect of, "she wants to fuck you and you're going to be her slave". Leota closed the door. The female said to the victim, "When are they going to let you go, I'm bored". The victim said he did not know. [19] Meanwhile, [Pengelly] returned to the unit with another young woman who said hello to the victim. [Pengelly] told her not to be nice to the victim. Pengelly and this woman left the unit about twenty minutes later and were gone for about an hour. Leota told the victim to come into a room with him and the other of the two women. The victim did not say anything but observed that Leota and the woman were "talking in riddles". After a while Leota told the victim to return to the laundry, which he did. [20] After about an hour or so [Pengelly] and the third young woman again returned to the unit as did the driver of the Landcruiser. Pengelly returned to the laundry with the blowtorch and called the victim "a piece of shit". Pengelly and the other occupants (other than the victim) smoked ice. [21] Leota continued to perform checks on the victim to ensure that he was not trying to escape. At various times the victim was moved from the laundry to the bedrooms and back again. The victim considered escape but feared for his safety. [22] While the victim was in the laundry a bowl was placed on the laundry floor and the victim was ordered to get on all fours and drink from the bowl. [23] Pengelly, Leota and the driver of the Landcruiser then took the victim to the lounge area of the unit and had him draw a diagram of his mother's house and they wanted to know where the safe containing the money was located. The victim said that his mother and young daughter were home to which [Pengelly] said he did not care. [24] [Pengelly] and Leota then struck the victim to the head a number of times. Leota squeezed the victim around the neck from behind and the victim could feel that his breathing was restricted. Pengelly again struck the victim to the head. The victim pleaded with the men to end his ordeal saying, "Please, please Pat, I've had enough, I'm fucked". [Pengelly], Leota and the Landcruiser driver then discussed who would remain with the victim while they went to the victim's mother's home. Pengelly made the victim re-enter the laundry where he sat as Pengelly watched him from the lounge room. [25] At about midnight the victim decided to attempt to escape. He asked if he could use the toilet and he was allowed with the admonition "not to do anything silly". The victim checked the toilet window but was unable to escape. He crept back to the bedroom but the window was locked. He then barged through the window causing it to shatter before jumping through and running down the outside stairs. In doing this the victim sustained cuts to his hands and feet. [26] The victim ran south along Joyes Place looking for assistance. He had no luck knocking on doors and he then saw [Pengelly] driving his mother's car. The victim went to a nearby unit where the occupants contacted 000 for him. He was taken by ambulance to the local hospital. Blood at the scene of the broken window at unit 6 of 4 Nordlingen Drive was analysed and matched the DNA profile of the victim. [27] Attempts were made to raise the occupants of unit 6 of 4 Nordlingen Drive but they were unsuccessful. [28] The injuries sustained by the victim in the course of the offending were bruising and swelling to his jaw, a 3 cm cut to his left hand that required suturing, and three burns to the right side of his back, the biggest being about 10 cm. The burns were superficial, did not blister and were treated conservatively by being covered with jelonet. He was required to return to the hospital the following day for review and the burns to be dressed."
Going to the Form 1 matter I repeat what I said at [30] of my reasons in Pengelly: "Going to the matter on the Form 1, later in the morning of 9 November [Pengelly], Leota, the Landcruiser driver, Daniel Bell and one of the young women who had been present in the unit were in the Landcrusier in Kooringal. Daniel Bell had been the fourth male present at the unit the night before. Bell agreed to drive them to where they wanted to go. Pengelly directed him to pull over near a school. Pengelly got into the driver's seat and drove Bell's vehicle away without Daniel Bell's consent. Bell waved down a passing motorist and reported the theft of his car to the police. The vehicle was later recovered in another suburb of Wagga Wagga and was seized by police for examination."
This offender was in the passenger's seat of the vehicle at the time that Pengelly drove it away, giving rise to the charge of Be Carried in Stolen Conveyance on the Form 1. The charge of Resist Police on the Form 1 relates to when this offender was arrested. When handcuffed he dropped his weight to the ground making it difficult for police to control him. He continued to resist police efforts to place him in the back of the police vehicle.

Assessment - Specially Aggravated Kidnapping charge

On the issue of the seriousness of the Specially Aggravated Kidnapping charge I repeat what I said at [32]-[34] of my reasons in Pengelly, namely: "[32] In determining the objective seriousness of the matter I have regard to the decision of R v Speechly [2012] NSWCCA 130 per Johnson J (McClellan CJ at CL and Hammerschlag J agreeing) at [105]-[110]. In the present matter the detention was for approximately six and one half hours. A typographical error on the agreed facts was discovered the day before the sentence hearing, meaning that the length of the detention was as I just stated and not 18 hours. This has an impact on the assessment of the matter. [33] The serious indictable offence of larceny is at the cusp of being a serious indictable offence. Being in company and the infliction of actual bodily harm are essential elements of an offence contrary to s 86(3) of the Crimes Act. The Crown submitted that I would find that the statutory factor of aggravation of the offence being committed in company is made out. Clearly it cannot be so as it is an element of the offence. [34] The fear or terror instilled in the victim is significant. This is particularly so when the use of the blowtorch is considered. The victim was repeatedly assaulted around the region of the head. The victim's concern for his own wellbeing is amply demonstrated by him crashing through a window to escape. A number of degrading acts were occasioned to the victim such as being ordered to drink from a bowl on the floor while on all fours and being told he was a slave. There was a very considerable amount of intimidation directed to the victim while he was detained in the unit."
This offender is more morally culpable than Pengelly but only slightly or marginally so.
Overall the matter is slightly or marginally below the mid-range of seriousness. This was the finding I made when dealing with Pengelly and neither counsel sought to take issue with that finding in the sentence hearing in this matter.

Facts - Firearms

The facts in the firearm matter are before the court by way of a short set of agreed facts, which read: "1. On 5 October 2018 police attached to the Wagga Criminal Investigations Unit executed a search warrant at 41 Northcott Parade Mount Austin. During the execution of the search warrant an imitation self-loading pistol and detachable box magazine were located inside a safe in the kitchen of the premises." 2. The pistol was subsequently found to be an imitation Beretta 92FS self-loading pistol. The item is not capable of propelling a projectile by means of an explosive but is designed to substantially imitate the appearance of such an item. 3. Kara White, the occupant of the premises was interviewed by Police and told them that she had been given the pistol by the offender some weeks prior. At the time he gave Ms White the pistol, Leota told her that he was going to leave the pistol at her home and that someone would pick it up at an unspecified time in the future. 4. DNA profile matching Leota was subsequently recovered on the magazine loading port and grip of the pistol and he was charged with possession of the item."

Assessment - Firearm matter

The weapon was an imitation and not able to fire a projectile but, as the facts recite, was designed to substantially imitate the appearance of such an item. At paragraph 11 of his written submissions (MFI 1 on sentence) Mr Howell for the offender puts that the matter is well below mid-range because it was incapable of actually propelling a projectile, that the offender's possession was constructive as opposed to actual and, "…while he remained in possession at the relevant time to ground liability, he was on the facts, not intending to again in the future take actual possession of the item". That may be so but it was designed to appear as a real weapon.
The Crown made a number of submissions as the seriousness of the firearm matter it seems relying on the facts relating to the co-offender White. Those facts form part of the Crown Tender Bundle, Exhibit A on sentence. The court bound by the agreed facts, as are the parties. See for e.g. Khanwaiz v R [2012] NSWCCA 168 at [96] per Beech-Jones J and more recently, Taitoko v R [2020] NSWCCA 43 at [38] per Leeming JA (Hoeben CJ at CL agreeing with brief additional comments, Lonergan J agreeing).
The gravamen of the firearm charge is one of possession. The matter in my view falls well below the mid-range of seriousness. Be that as it may, noting the nature of the weapon there are still issues of general deterrence. It is difficult if not well-nigh impossible to perceive of a legitimate use for the type of item which is the subject of the firearms charge. In this regard I note what was said by Rothman J in his brief additional comments in Laspina v R [2016] NSWCCA 181 at [6] namely: "Nevertheless, for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally."
Further, I note the additional comments of Rothman J in R v Smith and Campbell [2019] NSWCCA 1 at [9], namely: "The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society."
I immediately observe that in the two decisions to which I have just referred the Court was dealing with different and far more serious offending involving weapons. However, it seems to me that the comments on the issue of general deterrence are still apposite to the matter presently under consideration.

Criminal History

The offender was born on 9 October 1988 and accordingly is 31 years of age and will be 32 this year. He has a record that does not assist him. In 2007 he was dealt with for Resist Police, Offensive Language and Custody of a Knife. In 2009 he was again convicted of Resist Police and dealt with by way of good behaviour bond. In 2013 he was convicted of an aggravated robbery and sentenced to total of 2 years 8 months imprisonment. He committed the offence of Steal Motor vehicle while on parole.
While the record of this offender is not as extensive as that of the co-offender Pengelly, the record of this offender does not entitle him to any particular leniency. The co-offender Pengelly was subject to parole for Drive While Disqualified at the time of the commission for the offence. This was one factor that Mr Howell submitted justified this offender receiving a slightly lesser sentence that Pengelly. I will deal with the issue of parity later within these reasons.

Subjective case for the offender

The offender gave evidence and a psychological report was tendered in the case for the offender. I will go initially to the offender's evidence.
He said initially that he told the psychologist the truth and that she had "summed up" his problems. His grandfather passed away in 2012. The offender was particularly close to his grandfather and saw him as a father figure. The psychological report sets out that the offender's father was violent towards the offender and his mother. The offender said in evidence that his grandfather would stop his father "from giving me hidings".
The evidence continued that the offender's grandfather died shortly before the offender committed the aggravated robbery. As a result of the way he was feeling after the passing of his grandfather he began to drink alcohol very heavily and he for the first time began using ice or methyl amphetamine. The ice numbed his emotions as a result of his grandfather passing. He was affected by alcohol and drugs at the time of the commission of the robbery. He recounted crying recently when speaking of his grandfather and went on to say that if he had been on drugs he would not have cried when talking about his grandfather.
The offender went on to say that when released to parole for the robbery he did not have a job and when he was released he began to feel nervous and anxious. He and his partner soon ran out of money. I understood the offender to say that he relapsed into the use of drugs and stole the vehicle while he was on parole. When he was released to parole in respect of the larceny of a motor vehicle he had work scaffolding which helped him stay away from drugs.
His partner of some years left and came to Wagga Wagga with the children, of which there are five, to make a fresh start in life. He was devastated when she left. He came to Wagga Wagga himself in order that he could see his children. He asked his partner Patricia whether he could stay with her but she told him no unless he was "clean" from drugs. He was not "clean" so he stayed with a number of people including the co-offender Pengelly and the person Kara White.
He was taken into custody on 18 November 2018 in respect of the Kidnapping charge and two days later was assaulted - or to use the parlance of the offender - "jumped on" by other inmates. He has been the subject of a number of assaults in gaol. An incident report from Junee Correctional Centre was tendered and became exhibit "3". I note from the Custodial History at tab 8 of exhibit A that the offender has had a number of disciplinary infractions while in custody including for fighting, assault and possession of weapon.
The offender's evidence continued that he was moved to Bathurst but the trouble followed him. He has not reported all of the assaults committed on him because "it is not good to be known as a snitch". He lives on edge and is anxious every day. Mr Howell put in oral submissions that that evidence was led as part of the overall subjective mix.
The offender said that he wanted to be sober and I understood him to say that he would like to access counselling and programmes in gaol. I accept that as a remand prisoner he has limited access to both.
Mr Howell asked the offender about his participation in the kidnapping offence. He said that he regretted it, that he was sorry that his life and issues has affected the victim, he now sees how it would have affected the victim, it has impacted on him because he cannot see his children and that he wishes he could take it back. He said that he wants to see his partner and his children and he wants to make it up to them. This evidence would ordinarily have no difficulty underpinning a finding that he offender is remorseful. However this evidence has to be examined in the context and light of what was said in cross-examination.
At paragraph 22 of the psychological report the author notes, "At the time of the offence, Mr Leota was under the influence of illicit substances. He advised that he was more intoxicated than usual. He said, 'I can't recall much, but I know I was off my head'. He advised the victim had robbed $17,000 of [his] in the past, which Mr Leota felt damaged his and his children's financial security".
Not surprisingly, the Crown Prosecutor pursued this in cross-examination. It soon became apparent that the offender acquired the money from dealing in drugs, which the offender rather quaintly described initially as "exchanging money for drugs". It became quite plain to me that this issue of the "debt" was closely connected to the offending in the kidnapping charge. Attempts to have the offender further explain the issue of the debt of $17,000 and how the money was taken from him were not altogether successful. The offender said that the victim stole the money from Kara White, that the money was for his children and it was his way of trying to give or provide something for his children. He said he was not blaming the victim but he was angry at the time.
I return to the issue of remorse. Mr Howell submitted that it was open to me to find on balance that the offender was remorseful. I admit to some degree of vacillation on this issue. I am prepared to find on balance that the offender is remorseful but given the totality of the evidence of the offender I am not prepared to give it much weight. I was left with the impression that the offender still harbours some degree of anger towards the victim.
I return to the psychological report authored by Ms Anica Spatz of Duffy Robilliard Psychologists. At paragraph 11 Ms Spatz sets out that the offender experienced repeated flashbacks of his father's abusive behaviour and that the exposure to violence in childhood likely led to an early development of paranoid ideation about others. Given the issues of domestic violence to which the offender was victim and witnessed I have no difficulty accepting that the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the moral culpability of the offender to some extent.
The report goes on to detail that the offender who is of Pacific Islander ethnicity experienced racism in Australian Schools.
Further, the report goes on to repeat what the offender said in evidence about the affect his grandfather's death had on him. Curiously the report says that he started using drugs more heavily whereas in evidence he said that he only started using "ice" after his grandfather passed away. At paragraph 15 the report sets out that he was first introduced to drugs when he was 15.
The author of the report records that the social adjustment and anger management in custody has been poor and that the offender has been involved in physical altercations with other inmates.
It is noted at paragraph 22 of the report that the offender said that the offence was a group effort and he felt betrayed by other members of the group and stated that they lied on their fact sheets. There was no issue taken at the sentence hearing with the agreed facts or for that matter with the facts relied upon in the sentence proceedings in respect of Pengelly.
The author of the report administered a number of tests. In respect of the Millon Clinical Multiaxial Inventory Ms Spatz opines that the offender likely extensively exaggerated his symptoms. She opines at paragraph 27 of the report that the offender likely has a mental condition related to a depressive disorder and an anxiety disorder with somatic symptoms but without panic attacks. At paragraph 36 the author says that the offender meets the diagnostic criteria for several mental health disorders as classified by DSM-5 and the primary diagnosis likely is "Other Specified Personality Disorder, mixed personality features". The offender also has the diagnosis of a severe stimulant use disorder.
The report goes on to recommend (p 11) that the impact of the offender's mental health condition, substance abuse disorder, problems in interpersonal relationships and his risk of re-offending need to be addressed while he is in custody. The report goes on to say (p 12) that it will be essential for Community Corrections to carefully prepare the offender for release with psychological interventions including employment opportunity. It is noted that the offender may benefit in particular from evidence based psychological therapy targeting personality disorders and substance abuse issues.
Given the criminal history of this offender, his evidence in cross-examination as to why he became involved in this offending, the past breaches of parole and the number of disciplinary infractions, I could not be satisfied on balance that the offender is unlikely to re-offend. For essentially those same reasons I could not be satisfied on balance that there are good prospects of rehabilitation. Clearly, given that the offender exaggerated his symptoms to the psychologist and given her very clear recommendations much will need to be done upon the offender's release.
However those issues go in my view to a justification for a finding of special circumstances. The offender will need a period of intensive and extensive supervision to ensure his appropriate reintegration into the community. He will also need the interventions as recommended by Ms Spatz as to issues relating to his mental health, anger management and substance abuse issues. As indicated in the course of the sentence hearing the issue of partial accumulation of sentence in respect of the firearms offence is also a factor that grounds a finding of special circumstances.
I also note the contents of a letter the offender's partner has written - exhibit 2 on sentence. The offender has been in a long term relationship with Patricia Niko since 2009. The offender still enjoys her support and indicates that she has not been able to visit the offender recently since the COVID-19 restrictions have been in place.

Parity

I indicated quite bluntly at the beginning of the sentence hearing that it was my view that this is a matter where essentially the same sentence would be imposed on this offender for the kidnapping as was imposed on Pengelly. Mr Howell maintained that there were a number of factors tending towards this offender receiving a lesser sentence than Pengelly.
Those factors were that Pengelly has a worse record and that Pengelly was subject to parole at the time of the offending whereas this offender was not. The point about parole is well made but the reality is that neither this offender nor Pengelly have a record that entitles them to any particular leniency. The fact remains that Pengelly's record is worse. Mr Howell also submitted that I would be entitled to find on balance that the offender is remorseful. I have already dealt with that issue earlier in these reasons. In particular it was submitted that the offender has acknowledged the harm caused by his offending.
Mr Howell maintained that it would not be necessary for me to review the authorities. I accept that counsel was doing his best to save me from further work in chambers in preparing these reasons.
The Crown submitted that this was a matter where "true parity" applied. This submission was expanded on by noting that this offender was slightly more morally culpable. There is also the additional matter of the Resist Police on the Form 1 but this is not of any particular consequence.
French CJ, Crennan J and Kiefel J (as her Honour then was) in Green v The Queen, Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] said: "Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order." It has been called "the starting point of all other liberties." It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: 'Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (emphasis in original) Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances."
Dawson J (Gibbs CJ coming to the same decision but with separate reasons, Wilson J agreeing) in Lowe v The Queen (1984) 12 A Crim r 408 at 419 said: "There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.
Dawson & Gaudron JJ in Postiglione v The Queen (1997) 94 A Crim R 397 said at pp. 400-401: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
Returning to the matter presently under consideration there are matters in favour of this offender in that the co-offender was on parole and has a worse record. Both offenders have records that do not entitle them to any particular leniency. This offender has the additional matter on the Form 1 although as I have already said, in practical terms it is of little consequence. This offender was more morally culpable but only slightly so. Ultimately when all matters are considered any difference between the sentences would be measured in weeks rather than months. I have given this matter careful consideration, which was the principal reason for reserving in this matter rather than delivering an ex-tempore judgment. Ultimately I have determined that this offender should receive the same sentence as Pengelly. I am not of the opinion that this has reasonable grounds for giving this offender a justifiable sense of grievance.

COVID-19 restrictions

I accept that the restrictions imposed in correctional centres during the measures to combat the COVID-19 pandemic has the practical effect of making custody more onerous. In this regard with unfeigned respect I adopt the reasons of my collegue his Honour Judge Haesler SC in his remarks on sentence in R v Despotovski [2020] NSWDC 110 at [35]-[39]: "The present crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Prisoners cannot practice physical distancing, particularly sweepers whose job it is to clean within the gaols. Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities; who have complete control over their lives. [36] Social visits have been suspended for an indefinite period, although access to telephone calls has increased: CSNSW memo response to COVID-19, 25 March 2020. Absence of visits from family and friends is an additional hardship. [37] These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on current knowledge of COVID-19and the response to the crisis as advised by Corrective Services NSW [38] If and in reality, it is when COVID-19 enters gaols early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act 1999. The offender falls into a category that might be considered for early parole. [39] I cannot predict what will happen to this offender but the lack of visits reducing any capacity to remain in contact with pro-social friends and family, and that heightened anxiety and concerns, are relevant factors that must be synthesised along with all other matters. The extent, to which those may be taken into account is a matter to be resolved on the particular facts of this individual case: Brown v R [2020] VSC 60 at [48]. Here his depression and anxiety will be exacerbated. Although I note his health concerns (they are not supported by other evidence) nothing in particular puts Despotovski at greater risk than every other prisoner."
I take the restrictions into account in the same manner as Haesler SC DCJ. The issues relating to COVID-19 are part of the instinctive synthesis approach to determining the appropriate sentence in the matter.

General Remarks

Most of the matters raised by Mr Howell in his written submissions have been dealt with. The issue of the offender's long term relationship was noted when dealing with the letter from Ms Niko. I have made findings that the "Bugmy factors" are enlivened in this matter. The issue of the death of the offender's grandfather has been dealt with at length. The issue of the COVID-19 restrictions in gaols has been dealt with.
In respect of the firearm offence Mr Howell submits that the offender will not be entitled to the same leniency as Ms White received. She was sentenced in the Local Court and received a sentence of 8 months to be served by way of Intensive Correction Order. No submission was made to the effect that the offender lost the benefit of having that matter dealt with in the Local Court. In the event that does become an issue noting the authorities but particularly Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 I am firmly of the opinion, noting the nature of the weapon and the offender's history, that it was entirely appropriate for the matter to be dealt with on indictment.
I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely: 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.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided, the standard non-parole period in respect of the firearms offence, the nature of offending and the criminal history I am firmly of the opinion that there must be a sentence of imprisonment. Likewise noting those same issues the sentence must be a sentence of full time imprisonment. I did not understand Mr Howell to submit otherwise than a sentence of full time custody be imposed.
Both parties agree that the appropriate commencement date for the sentence is 18 November 2018. Given the different offences and the fact that they were committed at different times, if separate sentences were imposed there would need to be some partial accumulation of the sentences to give proper regard to the different offending.
At the sentence hearing I indicated that I was intending to deal with the matter by way of an aggregate sentence. Neither counsel took issue with that. These reasons have been reduced to writing and will be made available to both parties upon the pronouncement of sentence. It will be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed.
The sentences that would have been imposed had separate sentences been imposed are: 1. In respect of the charge of Specially Aggravated Kidnapping taking into account the matters on the Form 1 a total sentence of 5 years and 6 months with a starting point of 7 years 6 months with some minor mathematical rounding down in favour of the offender; and 2. In respect of the charge contrary to s 7(1) of the Firearms Act, 1996 a non-parole period of 22 months with a balance of term of 12 months resulting in a total sentence of 2 years 10 months indicating a starting point in the vicinity of 3 years with some rounding down in favour of the offender.

Orders

In respect of the offences to which the offender has pleaded guilty he is convicted.
The offender is sentenced to an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years and 4 months with a balance of term of 2 years and 2 months.
The non-parole period will date from 18 November 2018 and will expire on 17 March 2023. The balance of term on parole will date from 18 March 2023 and will expire on 17 May 2025.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
The non-parole period is two thirds of the total sentence and indicates a finding of special circumstances the reasons for which have been enunciated within these reasons.
I recommend that the recommendations of the author of the psychological report, exhibit 1 on sentence be annexed to the warrant that is forwarded to the Department of Corrective Services.
The firearm is to be forfeited to the Crown for destruction.

Amendments 29 May 2020 - Indicative sentence for firearms charge corrected. 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: 29 May 2020

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Judgment (12 paragraphs)

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Cases Cited (13)