R v Leclair [2019] NSWDC 152

District Court New South Wales

Medium Neutral Citation: R v Leclair [2019] NSWDC 152 Hearing dates: 4 April 2019 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Sentenced to a term of imprisonment of two years and three months with a non-parole period of six months. Catchwords: CRIMINAL LAW — sentencing — kidnapping occasioning actual bodily harm SENTENCING — Relevant factors on sentence — Delay — cross-border offence involving continuous course of conduct — previously sentenced in the ACT for offence arising out of that conduct Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Mill v The Queen (1988) 166 CLR 59 Category: Sentence Parties: Director of Public Prosecutions (Crown) Michael Aaron Leclair (Offender) Representation: Counsel: C Dobraszczyk (Crown) N Funnell (Offender) File Number(s): 2018/00009559

SENTENCE 1. HIS HONOUR: The offender pleaded guilty to an indictment containing a single count which alleged that between 28 and 29 December 2013 at Captain's Flat, whilst in the company of David Ashanfuo-yeboa, he detained Tobias Leatham without his consent and at the time of the detaining actual bodily harm was occasioned to Mr Leatham. That is an offence under s 86(3) of the Crimes Act 1900 and has a maximum penalty of 25 years imprisonment and there is no applicable standard non-parole period.

The facts of the offence 1. The facts are as follows, and there is an introduction to the facts which puts the matter in some context which I will return to. 2. The incident giving rise to the charge and a charge in the Australian Capital Territory involved initially a criminal investigation carried out by the ACT police, resulting in this offender and the co-offender being charged with what is described in the facts as forcible confinement and in the ACT Supreme Court was described as unlawful confinement. A plea of guilty was entered by this offender. There was a disputed facts hearing and the victim was called to give evidence in the disputed facts and ultimately this offender was sentenced by Justice Burns of the Supreme Court of the ACT on 25 May 2016 and I will return to those sentence proceedings in due course. 3. In terms of the actual conduct both in relation to the offence in the ACT and the offence to which the offender has pleaded guilty in this Court, the facts contain the following. 4. This offender and the co-offender attended the victim's apartment in Franklin in the ACT on the night of 28 December 2013, pursuant to an agreement with the victim whereby he arranged for them to purchase 7 pounds of cannabis for $26,000 from a drug dealer known or referred to in the facts as "Big G". The victim arranged for "Big G" to meet him around the corner from his apartment. "Big G" took the money from the victim but left without delivering any cannabis. This offender and the co-offender became angry with the victim, believing that he was part of a plan to steal the money. 5. This offender was armed with a knife when he went to the apartment at Franklin and he produced that knife and held it to the throat of the victim. The victim called for help at which time two of his friends came downstairs from the apartment and they were not armed. This offender forced the victim at knifepoint into a Ford Territory, placing him in the rear seat. He sat next to the victim. The co-offender drove the vehicle. The vehicle was then driven to Theodore. 6. Either on the journey or after the vehicle arrived at Theodore, one of the offenders arranged for what is referred to as support, which arrived in a Commodore or Falcon motor vehicle. During the journey from Franklin to Theodore, the offender made multiple threats to the victim, including threats to break his bones and then cut off his fingers. 7. At Theodore the victim escaped from the Ford Territory and was chased by this offender and the co-offender and by occupants of the other vehicle that had arrived. This offender's dog apparently also chased the victim but it did not behave aggressively. 8. The victim was re-captured. It is unsure whether that was by this offender or the co-offender or by both of them or by the occupiers of the motor vehicle who had arrived apparently in support of this offender and the co-offender. One of the persons who recaptured the victim struck him with a baseball bat and he suffered some injuries. He was taken back to the Ford Territory and placed in the rear seat. This offender sat in the back seat with the victim and the co-offender drove the vehicle. 9. The victim was then conveyed in the vehicle from the ACT into New South Wales with the co-offender driving; along Lanyon Drive into Queanbeyan onto Captains Flat to a secluded bushland location, accessed only via a dirt road. There was only natural lighting in that area. The victim was pulled out of the motor vehicle by both this offender and the co-offender. They tied his hands behind his back; he was sat down next to a telegraph pole. This offender said to the co-offender, "What are you going to do to him because I'm going to do a lot worse to you." The co-offender kicked the victim to the face. The victim was then hit by both offenders with a baseball bat numerous times to his body. He remembers being hit on the shoulder and then losing consciousness. 10. When he regained consciousness he was face down in the dirt. He observed the tail lights of the Ford Territory pulling away. His arms were still positioned behind his back however he was no longer bound tightly by the straps. He proceeded to walk in a general North direction along Captains Flat Road. On four to five occasions he lost consciousness and woke up and again was face down in the dirt. He managed to continue walking. He became dehydrated and began to search for water. About an hour later he came across a puddle of water. He filled a can with the puddle's contents and drank it. 11. He continued to walk some distance until he came across a driveway entrance to a property. About 8am he entered the property and walked along the driveway towards the home and ultimately he was able to raise someone there. He fell to the ground and lost consciousness after asking for an ambulance. 12. Ambulance and police were notified. They arrived at the home shortly. He was conveyed to Canberra Hospital where he received medical treatment. 13. The medical evidence was that the victim suffered collapsed lungs, a laceration to the liver as result of blunt trauma, significant blood loss, scabbed lesions on his forehead, bruises on the upper aspect of his nose between his eyes, extensive bruising to the right arm, several linear abrasions on his right wrist, extensive bruising to the left arm, bruises and scabbed abrasions on his abdomen, bruising on his right shoulder, bruises on the right side of his rib cage, multiple scattered scab lesions on his back, bruises and abrasions on his right leg, bruising on his left leg. 14. The facts contain a paragraph which says, "Whilst actual bodily harm was occasioned to the victim in New South Wales, it cannot be determined to what extent the victim was injured in the ACT." 15. On Thursday 2 November 2017 the New South Wales police met with this offender and the co-offender at Alexander Maconochie Correctional Centre in the ACT where they were serving the ACT sentences. The New South Wales offence was explained to this offender and he declined to participate in an interview. He was released to parole in the ACT on 8 October 2018 but he was immediately arrested that day and extradited to New South Wales where he has been bail refused since that time. 16. The victim, Mr Leatham bravely read in court two victim impact statements, one prepared for the ACT sentence proceedings and one for the these proceedings. Clearly the offender's conduct has understandably had a significant effect upon the victim. He is unlikely to forget the terror of that experience I would have thought. 17. There is a particular factor in play in this sentence which gives rise to a complexity in the imposition of it. As the facts make clear, the offence that I am to sentence the offender for forms part of a continuous course of conduct of a somewhat similar kind that commenced in the ACT and traversed the border into New South Wales. This offender was charged, along with the co-offender, by way of an indictment on 1 October 2014 in the Supreme Court of the Australian Capital Territory with an offence of unlawful confinement which concerned the conduct that occurred in the ACT which, as I understand it, is described in the facts that are before me. 18. That indictment also contained a charge that the offender had trafficked in a trafficable quantity of cannabis between 28 December 2013 and 24 January 2014. The unlawful confinement offence in the ACT had a maximum penalty of ten years' imprisonment while the drug offence had a maximum penalty also of ten years imprisonment along with a fine. The offender pleaded guilty to both charges after committal proceedings and in relation to this offender, there was a disputed facts hearing which I referred to earlier. 19. The offender was sentenced by Justice Burns in the ACT Supreme Court on 25 May 2016. In relation to the unlawful confinement offence his Honour imposed a sentence of three years and six months. On the trafficking drugs offence his Honour imposed a sentence to 12 months imprisonment. His Honour imposed a single non-parole period of 29 months; 2 years and 5 months. 20. After an appeal to the ACT Court of Appeal the sentences were confirmed, although their commencement dates were varied. The sentence for the unlawful confinement offence commenced on 9 May 2016, as did the non-parole period. The commencement date of the drug offence was 9 August 2019. I assume that at the time the ACT sentencing legislation permitted a single non-parole period to be set similar to the current Commonwealth sentencing regime. 21. As the agreed facts make clear, the offender was arrested and charged with the offence I am to sentence him for on the day he was released to parole in the ACT on 8 October 2018 and he has been bail refused ever since.