R v Patrick Pengelly [2020] NSWDC 112

District Court New South Wales

Medium Neutral Citation: R v Patrick Pengelly [2020] NSWDC 112 Hearing dates: 31 March 2020 Date of orders: 21 April 2020 Decision date: 21 April 2020 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced to imprisonment – see [78]-[81] Catchwords: CRIME – sentencing Specially Aggravated Kidnapping – whether gratuitous cruelty made out – Bugmy factors – need for rehabilitation Legislation Cited: Crimes Act, 1900 Criminal Procedure Act, 1986 Cases Cited: The Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR R v Speechly [2012] NSWCCA 130 Melvaine v R [2019] NSWCCA 274 McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94 Bugmy v The Queen [2013] HCA 37 R v Youseff [2012] NSWDC 252 R v Bamblett & Green [2019] NSWDC 29 R v Brown & Leuthwaite [2020] NSWDC 1 Nowak v R [2008] NSWCCA 89 R v Elyard [2006] NSWCCA 43 Category: Sentence Parties: The Director of Public Prosecution (for the Crown) Patrick PENGELLY Representation: Solicitors: Ms Morgan (for the Crown) Ms Winn (for the Offender) File Number(s): 2018/345422 Publication restriction: No

Remarks on sentence 1. The offender appeared at the Wagga Wagga Local Court on 30 October 2019 and pleaded guilty to the following charge: That (he) (on or about) 8 November 2018 at Tolland in the State of New South Wales did without consent detain Dale Tapper with the intention of committing a serious 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. 1. The plea of guilty was adhered to at the sentence hearing of the Wagga Wagga District Court on 31 March 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. 2. The maximum penalty prescribed for the offence contrary to s 86(3) of the Crimes Act is twenty five years imprisonment. Parliament has not specified a standard non-parole period in respect of the offence. 3. The offender also pleaded guilty to a charge of Drive While Disqualified which is attached to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. A separate sentence will need to be imposed on that matter, noting that I am exercising the jurisdiction of the Local Court in that matter. 4. The offender also asks that when passing sentence in respect of the Specially Aggravated Kidnapping charge that I take into account on a Form 1 document a charge of Take and Drive Conveyance contrary to s 154A of the Crimes Act. In dealing with that matter I will need to have regard to and apply the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146.