R v Patrick Pengelly

Assessment

1. 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.
2. 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.
3. 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.
4. The Crown, relying on the decision of Melvaine v R [2019] NSWCCA 274, submits that I would find pursuant to s 21A(2)(f) of the Crimes (Sentencing Procedure) Act the factor of statutory aggravation of the offending involving an act of gratuitous cruelty. To ground this submission the Crown relies upon the use of the blowtorch, the cutting of the hair, the direction that the victim drink from the bowl on the floor and that the victim was told he was going to be a "sex slave". The Crown went on to submit that these aspects of the events of 8 and 9 November 2018 could have had no other purpose than causing further degradation of the victim and to cause him further suffering.
5. The decision on which the Crown relies related to a charge of aggravated robbery involving a 76 year old victim. At [26] of the decision Cavanagh J refers to the decision of McCullough v R where Howie J in giving the judgment of the Court (McClellan CJ at CL; Simpson J (as her Honour then was) agreeing) at [29]-[30]: "With respect, I have difficulty with her Honour's reasoning for finding that the offence involved gratuitous cruelty. In dealing with an aggravating factor under s 21A(2) it is not a case of just defining the words and seeing whether that definition applies to the facts of the case. I would have thought it was quite unnecessary to go to a dictionary to understand what was intended by Parliament in enacting this particular aggravating factor. If her Honour were correct as to the meaning of the term as used in s 21A, the aggravating factor would be present in any offence that is committed without justification and causes the victim great pain. It would be difficult to find that such a factor would not be present in almost every case of malicious wounding as the word "malice" provides that the wounding is without justification. Nor is the factor made out because the victim "did not deserve such treatment" at the hands of the offender, whatever be their relationship. [30] Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain."
6. Ms Winn for the offender submitted that the use of the blowtorch and the other matters relied upon by the Crown did not amount to "gratuitous cruelty" but rather was part of the ongoing intimidating behaviour that was being used to detain the victim and the court should not find the statutory factor of aggravation made out.
7. My reading of the judgment of Cavanagh J in Melvaine v R at [29]-[31] inclusive is that the Court of Criminal Appeal was of the opinion that the learned sentencing judge did not make the finding as asserted that he did, but that he would have been justified in the facts of that case in making such a finding.
8. The matters relied upon by the Crown all go to the determination of the objective seriousness of the matter. Taking into account the decisions of McCullough and Melvaine after giving the matter a great deal of consideration I am not prepared to find the offending involved gratuitous cruelty pursuant to s 21A(2)(f) of the Crimes (Sentencing Procedure) Act.
9. That being said it must be observed that the conduct to which the victim was subjected over the six odd hours that he was detained was very degrading and would have been terrifying. These are all matters that go to the seriousness of the matter. Further, even if I had found the offending involved gratuitous cruelty, that finding could not have had any practical impact on the sentence to be imposed because of the issue of double counting as those matters have already been taken into account in the assessment of the seriousness of the matter.
10. Taking into account the length of the detention, the nature of the detention through the intimidating and violent conduct, the use of the blowtorch and the degrading conduct and noting the injuries sustained by the victim, I am of the opinion that the matter is marginally or slightly below the notional mid-range of seriousness. I did not understand either of the advocates to dissent from an indication I gave to this effect at the sentence hearing.
11. Leota has not yet been dealt with so there is no issue of parity. If it becomes a consideration, on the material before me on this matter I would assess Leota's criminality as being marginally greater than that of this offender.
12. The charge on the form 1 and the charge attaching to the s 166 Certificate are unremarkable examples of those types of offences.

Criminal History

1. The offender was born on 19 August 1993 making him now 26 years of age and for his age has an unenviable criminal history. He has matters recorded against him in the Children's Court for serious Break Enter and Steal type offences and I also note an offence of Armed Robbery. He was dealt with on indictment in the District Court for Assault with Intent to Rob and Steal from the Person in 2015. He has a number of convictions in the Local Court including for Damage to Property, Common Assault, Fail to Appear, Driving matters including Drive While Disqualified, and Custody of a Knife in a Public Place.
2. The offender has a record that does not entitle him to any particular leniency. As much is conceded on behalf of the offender in Ms Winn's written submissions. However, the record could not be used against the offender as an aggravating factor.
3. However, the offender was on parole in respect of a charge of Drive While Disqualified at the time of the offending, which is a factor of statutory aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

Subjective Case for the offender

1. Oral evidence was given on behalf of the offender by his father Wayne Fellows and a Psychiatric Report from Dr Sam Calvin was tendered. Dr Calvin's report is exhibit 1 on sentence.
2. Mr Fellows was obviously upset by the experience. He gave evidence that he met the offender's mother when he was about 19 or 20. There were nine children in the household. In a quite candid and blunt fashion he went on to say that he and his partner together with members of their extended families would routinely drink excessively from Thursday night to Saturday night when the offender was a child. The offender in his formative years would have witnessed many acts of drunkenness.
3. Further Mr Fellows gave an equally blunt account of domestic violence. He said without hesitation that he had been to gaol a number of times for assaulting his partner and the offender as a child growing up witnessed some of these acts of domestic violence. He gave an account of one of their other children trying to stop a fight between him and his partner.
4. The domestic violence also included violence by his partner towards him including the throwing of knives and bottles. It is 16 years since he has been to custody.
5. Given Mr Fellow's evidence, of whom the Crown said in her submissions was well known to the court system, I have no hesitation in finding that the principles enunciated by the High Court of Australia in Bugmy v The Queen are enlivened reducing the moral culpability of the offender.
6. The evidence of Mr Fellows is in sharp contrast to what appears at paragraph 17 of Dr Calvin's report which recounts that the offender told him that he grew up with six brothers and three sisters and that he had a good upbringing. Drawing on my experience in dealing with indigenous offenders, particularly in western and far-Western New South Wales I note a reluctance to be critical of an upbringing even if involving regular exposure to alcoholism, drug abuse and violence is not uncommon. The behaviour and issues that enlivens the "Bugmy factors" has become accepted as normal.
7. The offender attended school and was "an average student". He completed Year 10 and initially was an apprentice in metal and woodwork but then worked at the local abattoir for 8 or 9 years. He has a partner and has been with her for four years.
8. Going to other aspects of Dr Calvin's report he notes at paragraph 1 that there was no clear evidence of a depressive syndrome or anxiety disorder. The offender recollected occasional paranoia and psychotic symptoms, but these were related to substance intoxication. The offender reported a significant history of alcohol and crystal methamphetamine addiction.
9. The offender began using alcohol at 14 or 15, drinking rum at home with friends. That developed into a habit of binge drinking from Friday afternoon to Monday morning. He began using methyl amphetamine at the age of 18 and by 19 was a daily user of the substance. He attempted to "quit drugs" in 2006 but was unsuccessful. He was forced to resign from employment due to substance misuse.
10. The offender has been diagnosed with left testicular cancer and is subject to regular checks.
11. At paragraph 24 Dr Calvin notes that the offender was open to the idea of drug and alcohol counselling and rehabilitation. It is also noted that the offender had taken responsibility for his offending and was keen to make amends.
12. The statement about taking responsibility for his actions and being keen to make amends is untested. There is insufficient evidence for me to make a finding on balance that the offender is remorseful. On this issue I note that Ms Winn submits in the written submissions that I could find on balance that the offender is remorseful because of the plea and his acknowledgement that the fear this event must have caused the victims. I have considered these submissions but maintain my initial stance that as the statements are untested I am not prepared to find on balance that the offender is remorseful.
13. Likewise, given the criminal history, ongoing substance abuse issues and the fact that this offending was committed while subject to parole I could not be satisfied on balance that the offender has good prospects of rehabilitation or that he was unlikely to re-offend. However, while on the material before me I cannot make that finding on balance that there are not good prospects of rehabilitation, the situation is not hopeless. I observe that rehabilitation is rarely successful on the first attempt. The offender is still a relatively young man.
14. Dr Calvin at paragraph 27 of his report opines that the offender meets the DSM-5 criteria for alcohol and stimulant use disorder. The report continues that the offender described a prolonged period of substance misuse with features of dependence. A little later Dr Calvin opines that the drug addiction played a role in the offending.
15. Further, Dr Calvin recommends that the offender have an extended period at a rehabilitation unit focusing on craving management and relapse prevention. Ms Winn who appeared for the offender also tendered on sentence extracts from the Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants. I will deal with those extracts a little later in these remarks.
16. However, the history of substance abuse and the contents of Dr Calvin's report together with the age of the offender is such that a reasonably generous finding of special circumstances is justified in any event. If the offender is going to be successful at rehabilitation he will need a relatively lengthy period of intensive and extensive supervision to ensure that he receives the appropriate treatment and counselling for his substance abuse issues.
17. Dr Calvin also opines that the offender would benefit from individual psychotherapy that could help with the anxiety. He also recommends cognitive behaviour therapy along with an ongoing focus on abstinence from alcohol and drug use.
18. The extracts from the Special Commission of Inquiry goes into the limited resources in correctional centres for dealing with inmates with alcohol and substance abuse issues. Further, that within the custodial environment the access by these workers to the inmates is limited because of the "structured day" - see paragraphs 20.70-20.81. Further at 20.231 is a summary of evidence that the current resources are inadequate to support both drug and alcohol and mental health management. At paragraph 20.278-297 the significant waiting time for acceptance into a rehabilitation programme in custody is set out. I have read and considered the material provided from the Special Inquiry. The material was of real interest and fortifies my opinion that there should be a finding of special circumstances. These aspects of the report of the Special Commission of Inquiry are amplified in Ms Winn's supplementary written submissions.
19. Ms Winn with commendable thoroughness in the preparation of the matter has provided a table of cases dealing with offences contrary to s 86(3) of the Crimes Act. However in her written submissions she pragmatically concedes that the comparative cases are of little assistance. I observe that the criticism by his Honour Judge Neilson of the drafting of the Court Attendance Notice in R v Youseff [2012] NSWDC 252 also has some application in the matter presently under consideration.
20. R v Bamblett & Green [2019] NSWDC 29 is a judgment of mine and the criminality in that matter was more serious that the matter presently under consideration. The same observation can be properly made in the sentence imposed by his Honour Judge Buscombe in R v Brown & Leuthwaite [2020] NSWDC 1.
21. Other aspects of the written submissions include that the offender was 24 at the time of the offending and is now 26. He has been in custody since 9 November 2018. It was my understanding at the sentence hearing that both parties accepted that that was the appropriate date of commencement of the sentence. Material within the Crown tender bundle indicates that parole in respect of the drive while disqualified charge to which the offender was subject at the time of the offending was not revoked. There is therefore no issue of partial accumulation with a balance of parole.
22. The written submissions also go to the objective seriousness of the aggravated kidnapping charge. A number of points are validly made, however as I observed at the sentence hearing Ms Winn did not come to a conclusion as to where the matter sat on the scale of seriousness. I have already dealt with the issue of the seriousness of the matter at some length.
23. Ms Winn sets out within her written submissions that it is conceded that that the factor of statutory aggravation that the offender used a weapon - s 21A(2)(c) of the Crimes (Sentencing Procedure) Act is made out. Technically this is correct noting the use of the blowtorch and the decision of Nowak v R [2008] NSWCCA 89 per Buddin J at [15]-[17]. However, again the issue of the use of the blowtorch has been taken into account in making a determination of the objective seriousness of the matter and to give further weight to the issue of the use of a weapon would be double counting.
24. In relation to factors of statutory aggravation that are so often submitted by the Crown, particularly given some of the issues with them demonstrated by the matter presently under consideration, it is worth noting the admonition of Howie J in R v Elyard [2006] NSWCCA 43 at [39]: "It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section's demands".

General Remarks

1. The oral submissions by the parties were relatively brief. At an early stage of the sentence hearing I indicated preliminary views as to the objective seriousness of the aggravated kidnapping charge, the use I was proposing to make of the criminal history and that on balance on the material I was unable to find remorse, good prospects of rehabilitation and unlikely to re-offend.
2. Ms Winn submitted that I would not find gratuitous cruelty but that has already been dealt with at length. It was submitted that more than what is present in this matter would be required to make such a finding. This was also the subject of submissions in reply. I also indicated following the evidence of the offender's father that I take no persuading that the factors enunciated in Bugmy v The Queen are enlivened.
3. There is the issue of the matter of drive while disqualified attaching to the s 166 Certificate. The offender was on parole for a similar offence and he has been before the Local Court a number of times for that type of offence. It is appropriate that a sentence be imposed in that matter but the level of accumulation would only be slight. I did not understand either counsel to dissent from this initial view when I expressed it at the sentence hearing.
4. A number of the submissions by the Crown have already been dealt with, particularly on the issue of whether I make the finding that the statutory factor of aggravation of gratuitous cruelty was made out. I understood the Crown's position to be that the matter was marginally below the mid-range of seriousness. The Bugmy factors were conceded. There was no issue that there be a finding of special circumstances.
5. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. 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.
6. 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 penalty, 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 Ms Winn to submit otherwise.
7. I am of the opinion that the appropriate starting point for the total sentence, taking into account the Form 1 matter for the charge of Specially Aggravated Kidnapping, is in the vicinity of 7 years 6 months. From that is deducted the 25% for the utilitarian value of the plea, leaving a total sentence after some rounding down of 5 years 6 months. For reasons already enunciated I am of the opinion that there should be a finding of special circumstances.

Orders

1. In respect of the charge: That (you) (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 indictable offence, (namely) larceny the said Patrick Pengelly having occasioned actual bodily harm while being detained while the said Patrick Pengelly was in the company of Joshua Leota, contrary to s 86(3) of the Crimes Act, 1900. You are convicted. You are also convicted of the charge of Driving While Disqualified that attaches to the Certificate Pursuant to s 166 of the Criminal Procedure Act, 1986.
2. In respect of the charge of Drive While Disqualified you are sentenced to a fixed term of 6 months (indicating a starting point of 8 months) to commence from 9 November 2018 and which expired on 8 May 2019. I impose a disqualification of 12 months.
3. In respect of the charge of Specially Aggravated Kidnapping contrary to s 86(3) of the Crimes Act, taking into account the matter on the Form 1 document you are sentenced to a non-parole period of 3 years 8 months (44 months) to date from 9 December 2018 and which will expire on 8 August 2022. Thereafter there will be a period on parole of 1 year 10 months (22 months) to date from 9 August 2022 and which will expire on 8 June 2024.
4. You will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. Although it is entirely a matter for the parole authorities I recommend in the strongest of terms that any release to parole contain a condition that you comply with all reasonable directions as to ongoing treatment and counselling for alcohol and substance abuse issues.
6. The total effective sentence is 5 years and 7 months with 3 years 9 months in actual custody before being eligible for parole. The non-parole period for the Specially Aggravated Kidnapping charge is two-thirds of the total sentence. The actual time in custody when the sentence for the Drive While Disqualified is taken into account is approximately 67% of the total effective sentence.

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: 21 April 2020