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[2018] ACTSC 286
Supreme Court of the ACT
2018-10-17
Loukas-Karlsson J
Original judgment source is linked above.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - unlawful confinement - demands accompanied by threats - plea of guilty - parity
Crimes Act 1900 (ACT) ss 24, 32, 34
Crimes (Sentencing) Act 2005 (ACT) ss 19, 33, 35
Alvares v R; Farache v R [2011] NSWCCA 33
Butler v The Queen [2013] ACTCA 38
Canizares v The Queen [2013] ACTCA 19
Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Fusimalohi v The Queen [2012] ACTCA 49
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hawkins v The Queen (1993) 67 A Crim R 64
Hili v the Queen [2010] HCA 45; 242 CLR 520
Imbornone v R [2017] NSWCCA 144
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Miller v The Queen [2018] ACTCA 21
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
Mun v R [2015] NSWCCA 234
Naqvi v The Queen [2016] ACTSC 345
Ndlovu v The Queen [2018] ACTCA 33
Olbrich v The Queen [1999] HCA 54; 199 CLR 270
Pavicevic v The Queen [2010] ACTCA 25
R v Abouchabake (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 20 August 2012)
R v Avery [2018] ACTSC 64
R v Barlow [2017] ACTSC 90
R v Bourne; R v Manns [2018] ACTSC 35
R v Britt [2015] ACTSC 402
R v Catanzariti [2014] ACTSC 333
R v Cockburn (No 3) [2016] ACTSC 18
R v Dalton; R v Fleet [2014] ACTSC 204
R v Degioannis (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 16 July 2012)
R v East [2015] ACTSC 54
R v Eimerl [2015] ACTSC 72
R v Froome [2018] ACTSC 152
R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012)
R v Hill [2016] ACTSC 310
R v Gordon [2018] ACTSC 94
R v JW [2010] NSWCCA 49
R v Klickovic [2018] ACTSC 141
R v LeClair; R v Yeboah [2016] ACTSC 126
R v Mailau [2018] ACTSC 187
R v Meyboom [2012] ACTCA 48
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Mumberson [2011] NSWCCA 54
R v Musolino [2018] ACTSC 3
R v Ndlovu [2017] ACTSC 244
R v Ngata; R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 4 October 2011)
R v NF [2018] ACTSC 165
R v NF (No 1) [2016] ACTSC 216
R v Pearce [2016] ACTSC 393
R v Pham [2015] HCA 39; 256 CLR 550
R v Smith [2015] ACTCA 317
R v Thompson [2015] ACTSC 69
R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103
R v Troselj (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 September 2011)
R v Tuala [2015] NSWCCA 8; 248 A Crim R 502
R v Walker; R v Walker [2016] ACTSC 232
R v Webb [2004] NSWCCA 330; 149 A Crim R 167
R v Williams [2016] ACTSC 389
Singh v The Queen [2015] ACTCA 65
Thompson v The Queen [2018] ACTCA 2
Xiao v R [2018] NSWCCA 4
Zdravkovic v The Queen [2016] ACTCA 53
1. On 9 May 2018, Cameron Sharp (the offender) pleaded guilty to one count of unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT) (Crimes Act) (CC2017/4977), and one count of making demands accompanied by a threat, in contravention of s 32(2)(a) of the Crimes Act (XO2017/31239).
2. The maximum penalty for unlawful confinement is 10 years of imprisonment. The maximum penalty for making demands accompanied by a threats is 10 years of imprisonment.
3. The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender bundle which comprises Exhibit 1.
4. On 8 April 2017, Mr Peisley and Mr Fisher attended a house party at a residence in Florey, ACT.
5. At approximately 1:00am on 9 April 2018, Ms K arrived in her car and remained parked at the front of the residence. Ms K was in possession of illicit drugs. Shortly after arriving, Ms K received a phone call informing her that a coke can containing MDMA tablets and a stash of money which she owned went missing.
6. By this time Mr Fisher was intoxicated. At some point he acquired the coke can containing MDMA and money, although it is unclear how. He passed the can to a friend of his, Mr Cursely. Another attendee at the party, Mr J Sharp, opened the can and found a clear plastic satchel containing yellow MDMA tablets with distinct yellow Pikachu characters ('pingers'). The 'pingers' were then freely passed around at the party.
7. Ms K sought the assistance of some of her friends, Mr Avery ('the co-offender Avery'), the offender and Mr Froome ('the co-offender Froome'), in recovering the drugs and money. They speculated that Mr Peisley, the victim of these offences, had opened a coke can and distributed the 'pingers'.
8. Subsequently, the offender told the co-offender Froome to attend an address in Palmerston and meet him there. When the co-offender Froome arrived at the address, the offender told the co-offender Froome to contact Mr Peisley, because it was "Froome's responsibility" to recover the drugs and money. The offender, along with other unidentified individuals, made threats to the co-offender Froome that if he did not recover the drugs and money, his family would be in danger.
9. Later, the co-offender Froome sent a group message on the Facebook messenger application which stated "who the fuck took shit out of Rettes car?!? Half of that shit was mine cunts. I need cash today. Fucking piss weak".
10. At 4:40am, the co-offender Froome called Mr Peisley. At approximately 4:41am, the co-offender Froome sent a SMS message to Mr Peisley's phone stating "answer me cunt".
11. At approximately 1:30pm Mr Peisley was informed by a friend, Mr Bosnjack, to contact the co-offender Avery. Mr Peisley complied. The co-offender Avery accused Mr Peisley of stealing from him and his 'boys'. He was agitated and yelled at Mr Peisley, threatening to either come to him or 'send people around' to Mr Peisley's house. Mr Peisley was aware that the co-offender Avery knew where he lived. At approximately 8:00pm Mr Peisley received a call from his ex-girlfriend, Ms Shaw. She merged the telephone call with the co-offender Froome who accused Mr Piesely of stealing from him. The co-offender Froome asked Mr Peisley where he was and told him to stay put as he would pick him up.
12. At around 8:15pm, Mr Musolino ('the co-offender Musolino'), along with TN ('the co-offender TN'), Mr Lamb and Mr J Sharp arrived at Mr Peisley's residence. Mr Peisley was instructed to sit in the back middle seat between Mr Lamb and Mr J Sharp.
13. He was driven to the co-offender Avery's house.
14. As the car approached the co-offender Avery's residence, the offender exited the premises and approached Mr Peisley. The offender punched Mr Peisley to the back of his head and told him "Get the fuck inside". The co-offender Musolino, Mr Lamb, Mr Sharp, the co-offender TN and Mr Darson walked into the residence with Mr Peisley. When Mr Peisley had entered the residence, the offender hit Mr Peisley to the back of the head again.
15. Mr Peisley was lead into the residence and into a dining room. The co-offender Avery told him to sit down on a white coloured leather dining chair. The offender also yelled at Mr Peisley to sit down, and slapped him across the head. As soon as he sat down, the co-offender Musolino held him by the left shoulder and the co-offender Avery instructed the co-offender TN to strap him to the chair with black coloured duct tape. Mr Peisley was instructed to put his hands by his side whilst the co-offender TN wrapped the duct tape around his body and taped him to the chair.
16. Mr Peisley was completely outnumbered and overpowered and did not struggle.
17. Once strapped to the chair, the co-offender Avery asked "where is the gear". Mr Peisley replied that he didn't know. The co-offender Avery stated that "I don't want to hear I don't know".
18. The co-offender Avery began to interrogate Mr Peisley. Each time Mr Peisley replied with the answer "I don't know", either the co-offender Avery, the co-offender Froome or the offender would strike his temple and eye socket on both sides of his face.
19. The offender punched Mr Peisley all around his face and the back of his head. The offender cocked his body backwards and took time between strikes with each strike becoming more powerful. He repeatedly said "where's my shit? I know you cunts have got it, I'm sick of hearing I don't know" and "you are going to pay for the shit".
20. Mr Peisley repeatedly said he did not know where the drugs were, but he would attempt to settle the matter by obtaining money for them.
21. The co-offender Avery, the offender and the co-offender Froome repeatedly stated "no we want the gear too". They continued to assault Mr Peisley for a 1- minute period. Each would take turns in assaulting Mr Peisley whilst others in the background giggled and said things like "are we going to have to take him out to the Brindies". At that stage Mr Peisley began to fear for his life.
22. The co-offender Froome took Mr Piesely's phone off him and went into another room and called Mr Piesely's ex-girlfriend, Ms Shaw. He said that "Andy has gotten himself into a lot of trouble; and stole or knows of 80 'pingers' being stolen and thousands of dollars". The co-offender Froome brought the phone back into the dining room and demanded that Ms Shaw relay the conversation to Mr Peisley.
23. The co-offender Froome then left the room with the phone. The co-offender Avery and the offender continued to assault Mr Peisley. The co-offender Froome came back into the room and yelled "you are a fucking liar, don't fucking lie to my face". He then started punching Mr Peisley in the face with a fully closed fist. Mr Peisley felt his vision go black and blurry and thought his brain was shutting down.
24. The offender picked up a baseball bat and said "I want my fucking shit". He started to swing the baseball bat, but the co-offender Froome stepped in and stopped him. Instead, the offender picked up the baseball bat and placed it at the front of his neck behind his voice box. He pulled the baseball bat rearward against Mr Peisley's neck with such force that it caused Mr Peisley and the chair to be lifted off the ground. The offender did this for a few seconds, then let Mr Peisley go. Mr Peisley could not breathe during this period.
25. The co-offender Avery then picked up a pair of scissors and held the scissors by the closed blades with a few centimetres of the blade protruding from his hand. He approached Mr Peisley and said "I've had enough of this bullshit, I'm sick of you lying to me, I'm sick of hearing I don't know". He then pushed the end of the blade into the front of Mr Peisley's front neck, piercing the skin. The chair tilted backward and hit the wall behind Mr Peisley.
26. Mr Peisley continued to say that he didn't know anything about the incident and that either Mr Fisher or Mr Cursley could have more information. The co-offender Avery then struck him to the temple, causing him to black out. He was unconscious for an unknown period of time. The co-offender TN then cut the tape that was holding Mr Peisley to the chair.
27. The co-offender Froome took Mr Peisley outside and gave him two vodka based alcoholic beverages. The co-offender Froome apologised for what was happening and said they had to get to the bottom of it as there was a deadline. He took Mr Peisley inside and told him to clean himself up in the bathroom. He provided Mr Peisley with a white coloured tea towel which was wrapped in ice.
28. Mr Peisley exited the bathroom and returned to the same chair. An unknown person grabbed him from behind and placed a towel over his head. The towel was wrapped under the lower part of his jaw. Unknown members of the group pushed his head backwards while the towel remained covering his face. Another person poured water over his face as his head was tilted backwards for a period of 20 seconds and then stopped. Since Mr Peisley was not tied to the chair, he attempted to get out of the chair. Unknown members of the group kept holding Mr Peisley down. Mr Peisley struggled for breath. This occurred eight times and lasted minutes. Once the towel was removed, Mr Peisley saw the co-offenders Avery, Musolino, TN, Froome and the offender in the room.
29. The co-offender Avery said "First thing in the morning you are going to rock up here with the papers to your car, you are going to sign it over to me. You owe me three grand on top of that."
30. The co-offender Froome said "you also owe me your Nixon watch...the one with the diamond on it".
31. The offender said "I also had $1400 of my cash in there".
32. The co-offender Avery then told Mr Peisley that he had to pick up Mr Fisher and Mr Cursely and take them back to the co-offender Avery's residence and inflict upon them the same treatment that he had just been subject to (i.e. Mr Peisley would have to unlawfully confine and assault Mr Fisher and Mr Cursley).
33. At approximately 11:25pm, the offender and Ms K returned Mr Piesely to his residence. The offender threatened that if Mr Peisley went to the police he would get people to hurt his mother, father and brother.
34. As a result of this incident Mr Peisley sustained significant bruising and swelling to his face and body.
35. The extent of the impact upon the victim was made clear by the Victim Impact Statement which was read out by the prosecution at the sentence proceedings on 30 July 2018. The reading of the Victim Impact Statement was important as the offender heard what the victim had to say. Courts understand the serious effects of offences such as these. Nevertheless it is important and valuable to hear the words of the victim in relation to the physical and psychological effects of the offences.
36. The absence of a Victim Impact Statement in relation to the sentencing of the other co-offenders does not mean that there has not been a recognition of the harm to the victim.
37. A number of factors are relevant to the assessment of objective seriousness. In R v Williams [2016] ACTSC 389 (Williams) and R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) (Hatzis), some of the factors were outlined.
38. In Williams, Refshauge ACJ stated the following at [53]:
The offence of unlawful confinement is also a serious one. Nield AJ has outlined in R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) some of the factors that are relevant to the assessment of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54, it seems to me that the matters relevant to that assessment include at least:
39. Additionally, it was stated in R v Barlow [2017] ACTSC 90 (Barlow) that where a person is being sentenced separately for an assault that was "inflicted during the confinement", that assault should not be treated as "aggravating the confinement". In this case, where there is not a separate charge of assault, the nature of any assault which occurred during the confinement will be an aggravating feature of the unlawful confinement charge.
40. The prosecution submitted that the victim was confined for approximately three hours. By reference to the possible range of times for which other victims have been confined in the ACT, ranging from minutes to days, the prosecution submitted that this is "somewhere about average", and thus forms a consideration which suggests that the objective seriousness of the offending is approximately mid-range.
41. Counsel for the offender submitted that the three hours for which the victim was confined was a relatively short period of time.
42. In my view, three hours is a significant period of time tending towards mid-range.
43. The prosecution submitted that the offending was clearly pre-meditated and pre-planned, which significantly increases the objective seriousness of the offending.
44. Counsel for the offender submitted that the premeditation involved in the victim's confinement was arranged by the co-offender Avery.
45. In my view, there was planning on the part of the offender to the extent that the offender told the co-offender Froome to attend an address in Palmerston and told the co-offender Froome to contact Mr Peisley as adverted to in the agreed facts above at [8].
46. The prosecution submitted that the ultimate purpose of the confinement, being to protect and further the offender's drug trafficking enterprise, is a significant aggravating feature of the offending which points to the offending falling towards the upper end of the spectrum of objective seriousness. I find the purpose of the confinement to be an aggravating factor.
47. The prosecution submitted that the conditions of the confinement were "horrific", as the victim was tortured for close to three hours and the level of restraint was extreme. The prosecution pointed to the fact that the victim was taped to a chair, systematically beaten for hours, bashed unconscious, choked and then water boarded.
48. The prosecution submitted that the nature of the victim's treatment falls "within the 'worst category'". The prosecution submitted that offending may fall within the 'worst type of case' category even though more extreme examples could be envisaged: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 [24]-[30].
49. The prosecution submitted that this "appalling" treatment of the victim throughout the confinement is a significant aggravating feature and points to the objective seriousness of the offence being at the upper end of the spectrum.
50. I accept the prosecution submission that the treatment of the victim is a significant aggravating factor and I find that the conditions of confinement to be at a high level of objective seriousness.
51. The prosecution submitted that the victim would have been terrified. In addition to having been beaten, the prosecution submitted that during the confinement, an offender made implied threats that the victim would be taken to a remote location and killed. The prosecution submitted that on this basis, the objective seriousness is towards the upper end of the spectrum. I accept the prosecution submission in this regard.
52. The prosecution submitted that the Victim Impact Statement set out the serious physical and psychological injuries inflicted on the victim. The prosecution submits that the nature of the harm caused points to the objective seriousness of the offending falling somewhere between the mid and upper level on the spectrum of objective seriousness for offences of this nature.
53. Counsel for the offender submitted that the Court should only place minimal weight on uncorroborated assertions of harm in the Victim Impact Statement: R v Tuala [2015] NSWCCA 8; 248 A Crim R 502. Counsel for the offender also submitted that "overreliance" on the Victim Impact Statement would offend principles of parity, as the statement was not available at the time of sentencing the co-offenders.
54. As stated above in relation to the Victim Impact Statement, the absence of a Victim Impact Statement in relation to the other co-offenders does not mean that there has not been a recognition of harm to the victim.
55. In this case, I take into account the following:
(a) The period of unlawful confinement was three hours. This was a significant period;
(b) The fact that there was some limited planning on the part of the offender to the extent described above;
(c) The fact the offence was related to a drug trafficking enterprise;
(d) The fact that the conditions of the confinement were gratuitously cruel and at a high level of objective seriousness;
(e) The fact that the victim would have been terrified; and
(f) The injuries were serious regardless of whether a Victim Impact Statement was available or not.
56. I also take into account that the offending was committed in company. The offender is to be sentenced on the basis of the acts committed by him and being knowingly concerned in the conduct of the co-offenders.
57. In Pavicevic v The Queen [2010] ACTCA 25 at [9], it was underlined that "as far as the objective seriousness of the offence is concerned, there are limits to the amount of differentiation that may be allowed amongst co-offenders to a joint criminal enterprise" (citing R v JW [2010] NSWCCA 49).
58. I find that this was an offence above mid-range for this type of offending.
59. Nevertheless, in assessing objective seriousness, references to low range, middle range and high range are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo'ua).
60. The identifying features of this case outlined above demonstrate that this is a particularly serious example of unlawful confinement.
61. It is also a very serious example of the offence of demands accompanied by threat. The threats included an implied threats to kill and the nature and value of things demanded included drugs, a car, cash and threats to others. I take into account the planning as discussed above and weapons used. Also, the commission of the offence in company, the drug trafficking motivation and the likely impact of the threats on the victim are matters taken into account by me in relation to objective seriousness.
62. The prosecution submitted that the offending had a causal connection with his affiliation with an OMCG and that this was an aggravating factor: R v Cekic [2016] SASFC 26 at [30]; R v Bourne; R v Manns [2018] ACTSC 35.
63. Counsel for the offender accepted that the offender had an affiliation with an OMCG at the time of the offences but it was not accepted that there was a causal connection in relation to the commission of the instant offences. The evidence before me that the prosecution relies on from the Pre-Sentence Report (PSR) is the following:
(a) A statement under the heading "Attitude to Offences" that the offender "stated the offences occurred at a time when he was involved with an OMCG and dealing with drug dependency issues"; and
(b) A later summarising sentence under the heading "Opinion" which stated, "He attributed the offences to his affiliation with OMCGs, poor mental health, and drug dependency at the time, which he stated he had been addressing in the community".
64. Aggravating factors on sentence must be proven beyond reasonable doubt: see Olbrich v The Queen [1999] HCA 54; 199 CLR 270; see also Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47. The evidence such as it is, is not sufficient for it to be concluded beyond reasonable doubt that there was a causal connection in relation to the commission of these specific offences on the part of the offender. Nevertheless, it is clear that there is a temporal connection and this was accepted by counsel for the offender.
65. Counsel for the offender further submitted that the appropriate way for the Court to consider the offender's "former association" with the gang is in the context of rehabilitation, and the active steps taken by the offender to leave the gang and distance himself socially from these associations. I will deal with this aspect under subjective matters.
66. A presentence report was prepared for the sentence hearing. The offender was 20 years old at the time of the offences. He is now 21 years old. The offender was born in Canberra and is one of four children of his parents' union. He enjoys a positive relationship with his family of origin. He has a son from a previous relationship, however, due to a domestic violence order has no contact with him. He is in a new relationship of several months standing. The offender completed year 11 but has had issues with ADHD in his education. His last employment was as a labourer in Sydney.
67. He has financial issues including owing a significant amount on a car loan. The author of the report indicated that the offender has stated that he has ceased his association with an OMCG. The offender also indicated that he has been abstinent from drugs since May 2017. Abstinence is confirmed by urinalysis. The offender also indicated that he was engaged with a counsellor from August 2017 until January 2018 to address anger management issues however this was not able to be confirmed at the time of the writing of the report. Under the heading "Attitude to Offences", the offender agreed with the statement of facts and appeared to accept responsibility. He stated that the offences occurred at a time when he was involved with an OMCG and dealing with drug dependency issues. In addition he was not complying with his mental health treatment i.e. ADHD at the time and has recently been able to reflect on the impact of his actions on the victim. In summary the author of the report offered the opinion that the offender agreed with the statement of facts and appeared to accept responsibility for his actions and attributed the offences to his affiliation with the OMCG, poor mental health and drug dependency at the time which he stated he has been addressing while in the community. His compliance under community orders was deemed satisfactory by the author of the report, however it was stated that if released from custody, it is recommended that he engages with an alcohol and drug counsellor, mental health practitioner, and comply with his ADHD treatment. The author of the report offered the opinion that the offender has been assessed as medium risk of general reoffending, though the author of the report opined that if the offender's issues are addressed through counselling and mental health treatment, the risk of reoffending is likely to reduce. It was emphasised in the report that the offender has the benefit of a strong family support and stable accommodation on release.
68. A psychological report was tendered under the hand of Mr Harold Bilboe.
69. The report was not prepared in relation to these offences but in relation to prior offences including domestic violence offences. Counsel for the offender indicated that this report was tendered in relation to rehabilitation generally as the report was prepared in June 2017 and the offences for which I am to sentence were committed in April 2017. The report states that the offender has resigned from the OMCG, has handed in his colours, and no longer has a bike. As noted by Elkaim J with respect to the sentencing of the co-offender Avery and his resignation from an OMCG, it is hoped that the resignation from the OMCG is an accurate statement in relation to this offender: R v Avery [2018] ACTSC 64 at [6] (Avery). The report also states that there are positive prospects for rehabilitation that would require long term support and psychological counselling in relation to anger and alcohol and drug abuse.
70. The offender has expressed remorse to his sister, which is discussed below at [73]. The offender's counsel in written submissions referred to the remorse, that is, expressing responsibility, expressed to the author of the Pre-Sentence Report.
71. The prosecution relying on Imbornone v R [2017] NSWCCA 144, submitted that the offender was not called to give evidence and therefore caution should be exercised in accepting out of court statements. The prosecution referred specifically to the psychological report in making this general point.
72. Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Accordingly I do not ascribe significant weight to out of court statements by the offender. I also note s 34(c) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) in relation to it being an irrelevant consideration on sentence that the offender does not give evidence on oath.
73. The offender's sister wrote a reference to the Court indicating her support and the family support for the offender during the period that the offender was on bail from August 2017 until he was remanded in custody on 9 May 2018. His sister indicated that during this period the offender lived with his parents and that the offender also stayed with her and her family. The offender's sister indicates that during that time she has seen a significant change in her brother's behaviour. His sister further indicated that she had a very strained relationship with her brother when he was under the influence of drugs and affiliated with an OMCG. His sister underlines that she has seen him mature over the past 12 months and that she along with her husband and her daughter visit the offender at the Alexander Maconochie Centre every Sunday. She also refers to the fact that there is employment available to the offender upon his release. His sister indicates that the offender can live at their home upon release from jail and that she will support him in his rehabilitation. She emphasises that the offender has expressed remorse for his actions to her and she further emphasises that her brother looks forward to returning to a normal and productive life in Canberra and that she is committed to support him in that endeavour.
74. Also in evidence before me was a reference under the hand of the offender's former and potential future employer. The reference states that the offender has worked for this employer in the past. The employer would like to employ the offender again as he has been a valuable employee. The employer also states that there would be flexibility in employment so that the offender could attend courses required for the offender to rehabilitate.
75. The references on the part of the offender's employer and his sister demonstrate that there are some significant and worthwhile prospects for rehabilitation. This is particularly important in light of the offender's youth. Where a person has potential for rehabilitation, the Court by supporting those prospects in the sentence imposed also addresses likely future harm to the community: see R v Hill [2016] ACTSC 310.
76. The offender has previous convictions in 2017 for driving whilst his licence was suspended, contravening a protection order, and three charges of common assault.
77. Counsel for the offender submitted that prior to May 2017, the offender was engaged in a focused period of offences, including a charge of common assault on New Year's Eve and domestic violence offences. The criminal record involves offences between 1 January 2017 and 7 April 2017.
78. In relation to bail, counsel for the offender submitted that the offender was subject to onerous bail conditions between August 2017 and May 2018, including a prohibition on entering the Australian Capital Territory, strict curfew conditions, with no access to any electronic devices or telephones. In that time, the offender was not the subject of any breach of his bail conditions. Compliance with onerous bail conditions can be relied upon as a relevant matter on sentence: R v Webb [2004] NSWCCA 330; 149 A Crim R 167; R v NF (No 1) [2016] ACTSC 216 at [79]. No submission to the contrary was made by the prosecution. I therefore take this bail compliance with onerous conditions into account on sentence.
79. The offender pleaded guilty to the charges before the Court on 9 May 2018, after the matter had been listed for trial during the week beginning 4 June 2018.
80. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act (1999) (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo'ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4 in relation to the utilitarian value of pleas of guilty in commonwealth matters.
81. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47] noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW. However, the ACT statutory scheme does differ from that of NSW: see Toumo'ua at [50].
82. The prosecution submitted that it has recently been held that it would be inappropriate for the Crown to suggest the level of an applicable discount: Miller v The Queen [2018] ACTCA 21 at [69]. Without expressing any view on the appropriate discount, the prosecution noted that the plea was entered after a trial date had been set, meaning it does not fall into the category which commonly leads to a discount of 15%.
83. Counsel for the offender did not submit a particular percentage, however submitted that the plea still had significant utilitarian value.
84. Taking into account the above, and the fact that the plea was entered approximately three weeks prior to trial, and therefore has a greater utilitarian value than a plea entered on the first day of trial, I allow for a discount of approximately 12% for the plea of guilty.
85. The offender has spent 161 days in custody from 9 May 2018 solely referable to these offences.
86. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
87. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration, having regard to the offender's youth. I also note Hawkins v The Queen (1993) 67 A Crim R 64 in relation to deterrence, referred to by the prosecution.
88. As stated by Elkaim J in sentencing the co-offender Musolino in R v Musolino [2018] ACTSC 3 (Musolino) at [6]:
It must be brought home to this offender, and all potential offenders, that violence is a completely unacceptable means of achieving a goal.
89. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
90. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Due to the seriousness of the offences there is no alternative to full time imprisonment appropriate in this case.
91. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic).
92. The real question is whether the total sentence is "just and appropriate" to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
93. It is well to recall what was stated in Mill at 63:
The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.
94. I must evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, determine what, if any, downward adjustment is necessary whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relationship between the totality of the criminality and the totality of the sentences: see R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [12].
95. It was noted by Elkaim J in Avery at [19]:
As fairly conceded by the Crown, there is a substantial factual overlap between the confinement offence and the making of demands. For this reason, the sentences for these offences will be largely concurrent but with a short period of accumulation to reflect the differences in the factual circumstances making up each offence.
96. I will approach the sentence in a similar manner in the case of the offender. It was also noted by Elkaim J in R v Froome [2018] ACTSC 152 (Froome) and Musolino that the overall facts involve "a bunch of thugs confining and beating people up for no good reason". This is an apt description of the events in question.
97. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). The following cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
98. In R v LeClair; R v Yeboah [2016] ACTSC 126 at [55]- [60] (LeClair; Yeboah), Justice Burns summarised a number of relevant case relating to the offence of unlawful confinement:
55. In R v Walters [2014] ACTSC 225 the offender was sentenced to three years imprisonment, reduced from four years, by virtue of his plea of guilty. That was for an offence of unlawful confinement. The sentence was effectively suspended. The offender had lured the victim to a friend's house from where the victim was driven to a secluded spot, tied up, gagged and left in a ditch. The victim was able to release himself after about 20 minutes and walked home. The offender entered an early plea of guilty and had a prior criminal history, mainly consisting of traffic offences and an offence of drug possession. The offender had an unstable childhood marred by sexual abuse and the suicide of a friend. He had a long history of substance abuse and was drug affected at the time of the offence. Sentencing was deferred for 12 months, during which period the offender completed a residential drug rehabilitation course and obtained fulltime employment. The sentencing Judge considered the offender had made remarkable progress in rehabilitating himself.
56.In Stott v R [2012] ACTCA 33 the offender was confined for about nine hours over a drug debt allegedly owed to one of the co-offenders. A number of threats were made to the victim but he was not physically interfered with. The offender was a mature woman with a significant criminal history. She had a long history of drug abuse which she had taken limited steps to address. She pleaded guilty to the offence of unlawful confinement. She was sentenced to three years and six months imprisonment. This sentence was not interfered with on appeal.
57. In R v Dalton; R v Fleet [2014] ACTSC 204 the offenders pleaded guilty to a number of offences, including unlawful confinement, about one week before they were due to stand trial. The Crown case was described as very strong but pleas were entered on an indictment that was significantly different from that which was originally filed. A discount of 15 per cent was allowed for the guilty pleas. The criminal history of the offender Fleet was more serious than that of the offender Dalton. The offender Fleet was on parole at the time of the offence. The victim was detained for about 24 hours, during which time he was forcibly drugged. The offender Dalton was sentenced to three years and 10 months imprisonment, while the offender Fleet was sentenced to four years and three months imprisonment.
58. In R v Eimerl [2015] ACTSC 72 the offender, who was 23 years old at the time of sentencing, pleaded guilty to an offence of unlawful confinement. He forcibly confined his mother in her own home and made threats of violence to her. He was on parole at the time for an offence of aggravated robbery and believed his mother was threatening his parole order by communicating with Corrective Services. The offender had a substantial criminal history. He commenced using methamphetamine as an adult and subsequently became addicted. A reduction of 20 per cent was allowed for his plea of guilty. For the offence of unlawful confinement he was sentenced to two years and one month imprisonment, reduced from two years and nine months on account of his plea of guilty.
59. In R v O'Brien [2014] ACTSC 156 the offender entered pleas of not guilty to a number of offences, including one offence of unlawful confinement. He originally entered a plea of not guilty in the Magistrates Court which he maintained in this Court. He was found guilty after a judge-alone trial. The victim was the offender's partner who he seriously assaulted one night. He confined her for approximately 24 hours to stop her going to hospital to receive needed treatment, which threatened to reveal his assault on her. The offender was a mature man with a lengthy criminal history. On the charge of unlawful confinement he was sentenced to five years imprisonment.
60. Finally, in R v Rogers [2014] ACTSC 124 the offender pleaded guilty to one count of unlawful confinement. The victim was in a sexual relationship with the offender. He accosted her in her own home, tied her hands and assaulted her as well as threatening to kill her. It is not clear for how long the victim was confined but it appears to have been overnight. There was evidence that the offender had a mental disorder, either depression or bipolar disorder. His plea of guilty came just before he was tried for the offence and came after a process of negotiation with the prosecution. For the offence of unlawful confinement he was sentenced to 25 months imprisonment, reduced from 30 months for his plea of guilty, a reduction of approximately 17 per cent.
99. The prosecution referred to the following further cases in their written and oral submissions.
100. In Barlow, the offender was found guilty by a jury of an offence of forcible confinement contrary to s 34 of the Crimes Act, in addition to one count of kidnapping and two counts of assault occasioning actual bodily harm. The offender also pleaded guilty to five unrelated offences committed while the offender was on bail for the trial matters. In the matter, the offender forced the victim into his car and drove him to a friend's house, where the victim was taped to a chair and his eyes were covered. The victim was kicked in the head and confined for two hours. The offender was a 38 year old with a criminal record but no prior convictions for offences involving personal violence. The offender was sentenced to a total of 4 years and 4 months of imprisonment, with a non-parole period of 26 months. The sentence for the specific charge of unlawful confinement was 4 years of imprisonment. The prosecution submitted that the matter before me was more objectively serious than Barlow.
101. In R v Ndlovu [2017] ACTSC 244 (Ndlovu), the offender was sentenced in relation to two incidents. The first incident pertained to five offences committed in 2015, including an offence of unlawful confinement, an offence of unauthorised possession of a prohibited firearm, and an offence of trafficking in a trafficable quantity of cannabis. The second incident pertained to two offences committed in 2016, including going equipped with an offensive weapon for aggravated burglary and unauthorised possession of a prohibited firearm. The offender had plead guilty at a late stage to the offences. In relation to the first incident, the offender detained a rival drug dealer at gun point for 20 minutes. The offender was 21 at the time he committed the offences, and 22 at the time he was sentenced. He had previous convictions for drug trafficking matters, and was addicted to illicit drugs. The offender was sentenced to a total sentence of 5 years and 8 months of imprisonment, including a sentence of 4 years imprisonment for the offence of unlawful confinement, reduced to 3 years and 7 months of imprisonment on account of the discount for the plea of guilty. In Ndlovu v The Queen [2018] ACTCA 33, the Court of Appeal found no error in the length of sentence for the charge of unlawful confinement in Ndlovu. However, the Court of Appeal found that firearm possession charge relating to the 2015 incident was manifestly excessive, and re-sentenced the offender. The total sentence of imprisonment was not altered by the Court of Appeal. The prosecution submitted that although the use of a firearm was a significant aggravating feature, the matter of Ndlovu was nonetheless less objectively serious than the matter before me, particularly in relation to the length of the confinement and the lack of physical violence during the confinement.
102. In LeClair; Yeboah, two offenders each pleaded guilty to one offence of unlawful confinement, and one offence of trafficking in a trafficable quantity of cannabis. The two offenders forced the victim into a car at knife point after a drug deal soured. The offenders detained the victim for an unspecified number of hours where multiple threats were made to the victim. The victim escaped briefly, but was recaptured and returned to the car, where he was then driven to a remote location in NSW, where he was assaulted and then abandoned. The sentencing judge disregarded the conduct that took place in NSW, bearing in mind that it occurred in another jurisdiction. The offender Le Clair, who was 29 years old, bore greater culpability for the offending, as he had held the knife to the victim's throat and made the threats. The offender Le Clair had a relatively minor criminal history and compelling subjective circumstances. The offender Le Clair was sentenced to a total of 4 years and 3 months of imprisonment, including a sentence of 3 years and 6 months imprisonment for the offence of unlawful confinement. The offender Yeboah was 37 years old and had a minor criminal history. The offender Yeboah was sentenced to a total of 3 years and 5 months of imprisonment, including a sentence of 2 years and 11 months of imprisonment for the offence of unlawful confinement. The prosecution submitted that the offending in the matter before me was objectively more serious given the victim was subject to a much greater degree of violence.
103. I also note the table of cases provided by the Crown which referred to a number of additional cases on unlawful confinement, including:
(a) R v Klickovic [2018] ACTSC 141, in which the offender received 20 months imprisonment, reduced to 18 months on account of the plea of guilty;
(b) R v Pearce [2016] ACTSC 393, in which the offender received 15 months' imprisonment, reduced to 12 months on account of the plea of guilty;
(c) Williams, in which the offender received 15 months imprisonment, reduced to 12 months on account of the plea of guilty;
(d) R v Thompson [2015] ACTSC 69, in which the offender received 20 months;
(e) R v Smith [2015] ACTCA 317, in which the offender's aggregate sentence for unlawful confinement amongst other offences was two years and three months, wholly suspended, and the sentence for each of two counts of unlawful confinement was two years, reduced to 19 months on account of the plea of guilty, and further reduced to 14 months to recognise further assistance offered by the offender;
(f) R v Britt [2015] ACTSC 402, in which the offender received two years imprisonment;
(g) R v Eimerl [2015] ACTSC 72, in which the offender received two years and one month, reduced from two years and nine months on account of the plea of guilty;
(h) R v Catanzariti [2014] ACTSC 333, in which the offender received three years and two months imprisonment, reduced from four years on account of the plea of guilty;
(i) R v East [2015] ACTSC 54, in which the offender received 17 months imprisonment, reduced from 20 months on account of the plea of guilty;
(j) R v Dalton; R v Fleet [2014] ACTSC 204, where the offender Fleet received four years and three months imprisonment, and the offender Dalton received three years and 10 months imprisonment;
(k) R v Ngata; R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 4 October 2011), in which the offender Massey received a total sentence of four years and four months, with a sentence of three years imprisonment for the charge of unlawful confinement, and the offender Ngata received a total sentence of four years and six months, with two years and nine months for the charge of unlawful confinement.
104. I also note the table of cases provided by the Crown which referred to a number of cases on the offence of demands accompanied by threats, including:
(a) R v Mailau [2018] ACTSC 187, in which the offender received 30 months imprisonment;
(b) R v NF [2018] ACTSC 165, in which the offender received five months imprisonment;
(c) R v Gordon [2018] ACTSC 94, in which the offender received five months imprisonment;
(d) R v Walker; R v Walker [2016] ACTSC 232, in which the first offender received 27 months imprisonment, partially suspended with a good behaviour order for two years and six months, and received 200 hours of community service, and the second offender received 21 months imprisonment, partially suspended with a good behaviour order for two years, and 150 hours of community service;
(e) R v Cockburn (No 3) [2016] ACTSC 18, in which the offender received two years imprisonment, partially suspended with a good behaviour order for two years;
(f) Butler v The Queen [2013] ACTCA 38, in which the sentenced imposed by the Court of Appeal was three years with a non-parole period of 12 months;
(g) Canizares v The Queen [2013] ACTCA 19, in which the offender received three years imprisonment with a non-parole period of two years;
(h) R v Abouchabake (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 20 August 2012), in which the offender received 10 months' imprisonment, wholly suspended with a good behaviour order for 18 months;
(i) R v Degioannis (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 16 July 2012), in which the offender received 12 months imprisonment, wholly suspended with a good behaviour for two years; and
(j) R v Troselj (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 September 2011), in which the offender received 21 months imprisonment.
105. Counsel for the offender additionally referred me to the following cases.
106. In Singh v The Queen [2015] ACTCA 65, the offender was found guilty at trial along with a co-offender of an offence of unlawful confinement, in addition to an offence of abduction, two offences of sexual intercourse without consent, and an offence of an act of indecency without consent. The offender detained the victim in his apartment for a period of up to one hour with four other males, where threats were made and acts of sexual intercourse without consent were committed. On appeal, the offender was sentenced to a total of eight and a half years of imprisonment. The sentence for the specific charge of unlawful confinement was 4 years of imprisonment. The non-parole period was five years.
107. In Naqvi v The Queen [2016] ACTSC 345, the offender pleaded guilty to one count of unlawful confinement, as well as four counts of sexual intercourse without consent and one count of recklessly inflicting actual bodily harm. The offender confined the victim for eight days during which he sexually assaulted her, made threats to seriously harm her, and forced her to carve his initials into her arm. The offender was sentenced to 13 years and 8 months of imprisonment, with a non-parole period of 8 years and 2 months. The sentence for the specific charge of unlawful confinement was 4 years and 8 months of imprisonment.
108. The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:
...just as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301-2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]-[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).
109. The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [32].
110. It is important at this juncture to discuss the sentences of the co-offenders Avery, Froome, Musolino, and TN for the purposes of parity.
111. In Avery, the co-offender Avery was sentenced to 12 months imprisonment for the unlawful confinement offence, and 12 months imprisonment for the demands accompanied by threats charge. The sentences imposed had been subject to a discount for early plea of guilty of about 35%. The offender was also sentenced for a stolen property offence, a trafficking offence and a possession of cannabis offence. The offences involved the same victim as the offences for which the offender Sharp is to be sentenced. The offender was 35 years old at the time of the offences and had a minor criminal history, comprising of some offences in 2013. The offender had previously been associated with an OMCG, and had some drug abuse and mental health issues, which had been previously undiagnosed and untreated. The sentencing judge considered that the co-offender Avery played a greater role in the offending than the co-offender Musolino, but considered that there were no distinguishing subjective factors. The offending had taken place at the co-offender Avery's residence.
112. The prosecution submitted that the drugs which were sought to be recovered belonged to the co-offender Avery as well as the offender in this case, and that as such they were the "driving forces behind the offending". Counsel for the offender submitted that the offender's role in the offending was subordinate to that of the co-offender Avery, and that the co-offender Avery provided the instructions to "strap Mr Peisley to a chair, and commenced Mr Peisley's interrogation". Counsel for the offender further submitted that the co-offender Avery had advanced the interrogation by holding a pair of scissors to Mr Peisley's neck, piercing the skin, and that the co-offender Avery was "in effect, the 'ringleader' of a young group of boys".
113. The prosecution noted that the Crown has appealed the co-offender Avery's sentence on the basis of manifest inadequacy, and that the appeal would be heard in November. As such, the prosecution submitted that "heavily" relying on the co-offender Avery's, or the co-offenders Froome or Musolino's sentences as a guide in this matter would be an error of law. Counsel for the offender submitted that as the Court of Appeal has yet to determine whether Mr Avery's sentence should be re-considered, it is inappropriate for this Court to pre-empt that decision, particularly given the principles outlined in Green.
114. I cannot pre-empt the decision of the Court of Appeal in relation to the co-offender Avery and it is inappropriate for me to do so. The sentences of Froome and Musolino have not been appealed by the Crown. Parity is clearly a relevant consideration in sentencing in this matter. I take into account the sentence of the co-offender Avery as I must take into account all the sentences of all the co-offenders in sentencing the offender.
115. On the agreed facts before me, the co-offender Avery was the leader in the criminal offences. It is not without significance that the co-offender Avery was approximately 14 years older than the offender and that the offences occurred at the co-offender Avery's house. Any further attempt to delineate criminal hierarchy as between the two offenders is ultimately a futile exercise. The co-offender Avery was the leader, and the offender was unquestionably heavily involved in the offences, as was the co-offender Froome.
116. The co-offender TN, who was a juvenile at the time of the offending, was sentenced to three months of imprisonment in proceedings heard before the Magistrate's Court. He had a relatively minimal role in the offending, and he also provided significant assistance to police. He also played a minor role in the incident, and did not engage in any of the violent conduct directed at the victim.
117. In Musolino, Elkaim J sentenced the co-offender Musolino in respect of the following offences, to which he pleaded guilty:
(a) Two offences of aid and abet unlawful confinement, contrary to s 34 of the Crimes Act;
(b) One offence of aid and abet assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act; and
(c) One offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act.
118. One of the aid and abet unlawful confinement offences and the aid and abet assault occasioning actual bodily harm offence related to the same victim as the offender Sharp is to be sentenced in relation to. The other offences relate to a different victim.
119. The co-offender Musolino was 19 years of age at the time of sentencing. Elkaim J considered that although a period of full-time imprisonment should be avoided for young offenders without a prior criminal history, these offences were objectively serious and demanded a term of imprisonment. Elkaim J sentenced the offender as follows:
(a) 9 months imprisonment in respect of the offence of aid and abet unlawful confinement, contrary to s 34 of the Crimes Act;
(b) 15 months imprisonment in respect of the second offence of aid and abet unlawful confinement, contrary to s 34 of the Crimes Act;
(c) 6 months imprisonment in respect of the offence of aid and abet assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act; and
(d) 15 months imprisonment in respect of the offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act.
With partial concurrency between these sentences, the total sentences amounted to one year and nine months imprisonment, with a non-parole period of 15 months.
120. Sentences (a) and (c) relate to the same victim as the offender Sharp is to be sentenced in relation to.
121. In Froome, Elkaim J sentenced the co-offender Mr Froome in respect of the following offences, to which he pleaded guilty:
(a) Two offences of unlawful confinement, contrary to s 34 of the Crimes Act; and
(b) Two offences of demands accompanied by threat, contrary to s 32 of the Crimes Act.
122. One of the unlawful confinement offences and one of demands accompanied by threats offences related to the same victim as the offender Sharp is to be sentenced in relation to. The other offences relate to a different victim.
123. Elkaim J considered that generally, Mr Froome's involvement in the confinement and assault of the first victim was about the same of that of Mr Musolino, however, his involvement in the confinement and assault on the second victim was significantly more serious. Elkaim J found that all of the offences were objectively serious, however the offences against the second victim were significantly more serious. Mr Froome was 20 years old at the time of the sentence. Elkaim J considered that the offender was genuinely remorseful and showed good prospects for rehabilitation due to his positive attitude, although noted that the offender has faced challenges with drug use. Mr Froome also received a discount of about 35% for the useful assistance he provided to authorities. Overall, Elkaim J considered that the "powerful subjective factors" operating in Mr Froome's favour entitled him to a good deal of leniency. Elkaim J sentenced Mr Froome as follows:
(a) 7 months and 10 days in respect of the first count of unlawful confinement;
(b) 7 months and 10 days in respect of the first count of demands accompanied by threat;
(c) 15 months in respect of the second count of unlawful confinement;
(d) 15 months in respect of the second count of demands accompanied by threat.
This amounted to a total head sentence of 1 year and 6 months' imprisonment, with a non-parole period of 12 months.
124. Sentences (a) and (b) related to the same victim as the offender Sharp is to be sentenced in relation to.
125. In considering parity, I take into account generally the matters referred to above, including the following matters:
(a) The co-offenders entered their pleas of guilty at an earlier stage than the offender. The co-offenders were therefore entitled to greater discounts;
(b) Co-offenders TN and Froome were given significant further discounts for the assistance provided to police;
(c) The co-offender Froome exhibited some (limited) degree of remorse during the incident. He took the victim outside, gave him some alcoholic beverages and a cloth to clean his face, and apologised for what was happening. Although, it must be added that he did continue to participate thereafter;
(d) The co-offender TN played a minor role in the incident. He did not engage in any of the violent conduct directed at the victim. The offender did not provide assistance;
(e) The offender is slightly older than the co-offenders TN, Froome and Musolino, but significantly younger than the co-offender Avery. The offender was 20 years old at the time of the offences and the co-offender Avery was 35 years old;
(f) As stated earlier, the co-offender Avery was the leader of the group of young men, including the offender. The offending took place at the co-offender Avery's house. At the time of the offences, the co-offender Froome was aged 18, the co-offender Musolino was aged 18 or 19 (he was aged 19 at sentence), and the co-offender TN was a minor;
(g) The co-offender Froome committed the offences whilst on a suspended sentence;
(h) The co-offender Froome was 18 years of age at the time of the offences and the offender was 20 years of age. While the offender was slightly older as mentioned above, they are both still young men;
(i) The prosecution submitted that the drugs belonged to the offender and the co-offender Avery. This is not clear from the statement of agreed facts and does not appear wholly consistent with the agreed statement of facts, outlined above at [9];
(j) In sentencing the offender, the requirement not to create a "justifiable sense of grievance" with the co-offender Froome: see Green at [105]. The co-offender Froome was sentenced for two offences of unlawful confinement involving two different victims.
126. It must be recognised that the assault on the victim has had a significant impact upon him. Both the short and long-term consequences of being a victim of these offences must be acknowledged. It must also be recognised that no sentence that the Court imposes will rectify the consequences of what has occurred to the victim in the commission of the offence by the offender.
127. Both parties accept that the offender must receive a sentence of imprisonment. The issue is the length of the sentence.
128. In coming to a conclusion by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, the plea of guilty, the youth of the offender, and the resulting emphasis on rehabilitation, along with considerations of parity with other offenders, in particular the co-offender Froome.
129. The appropriate sentence for the offence of unlawful confinement (CC2017/4977) is 16 months of imprisonment, reduced to 14 months of imprisonment on account of the discount for the plea of guilty. The appropriate sentence for the offence of demands accompanied by threats (XO2017/31239) is 16 months of imprisonment, reduced to 14 months of imprisonment on account of discount for the plea of guilty.
130. Further, taking into account the fact that these offences formed part of the one episode, the sentences will include a substantial degree of concurrency. Additionally, I acknowledge the need, where the offences are part of one episode, to avoid the double counting of punishment and take this into account.
(a) In respect of the offence of unlawful confinement (CC2017/4977) the offender is sentenced to 14 months of imprisonment, commencing 9 May 2018 and ending 8 July 2019.
(b) In respect of the offence of demands accompanied by threats (XO2017/31239), the offender is sentenced to 14 months of imprisonment, commencing 9 June 2018 and ending 8 August 2019.
(c) I set a non-parole period of 10 months, commencing 9 May 2018 and ending 8 March 2019.
(d) I make a reparation order pursuant to s 19 of the Crimes (Sentencing) Act 2005 (ACT) in the amount of $1170 in reparations payable to the victim Andrew Peisley, to be paid within 24 months of today's date.
I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.
R
Sharp [2018] ACTSC 286
(2015) 256 CLR 47
(1984) 154 CLR 606
(1988) 166 CLR 59
(1997) 189 CLR 295