By Paul Gregoire and Ugur Nedim
At around 12.30 am on 8 October 2019, Bradley Green turned up at Kayla Lister’s home. The then 24-year-old Green was accompanied by a friend who wasn’t quite 18. Lister too, was with a male younger than 18, as well as a third male, who was about to become the victim of a violent crime.
As the scene turned into a hostage situation, Lister retired to her room. Green and one of the 17-year-olds began kicking and punching the victim, demanding that he hand over $150 to Lister, and the rest of his weekly pay to them. The other minor involved was filming the bashing as it took place.
As the assault continued, Green accused the victim of having stolen his wallet and identification a few weeks prior, of which the young man being attacked denied.
At the end of the initial assault on the victim, which the NSW Court of Criminal Appeal (NSWCCA) described as “humiliating mistreatment”, the three assailants left the room. However, unbeknownst to the other two, one of the minors returned with a knife and cut the victim’s left cheek with it.
The victim escaped at around 3.30 pm, after the assailants had left the premises and only Lister remained. She made no attempt to stop the man from leaving, and she’d played no direct role in the violence.
Over the hours following the slicing of the victim’s cheek and the perpetrators leaving, the young men continued to humiliate their victim, including Green, who made him get on all fours and drink from a bowl, like a dog. Although Green said he was so drug affected, he couldn’t recall this.
Trying to prove your guilt
Green pleaded guilty to one count of detaining a person with intent to obtain financial advantage and causing actual bodily harm in the course of the detention, contrary to section 86(3) of the Crimes Act 1900 (NSW).
A person convicted of this crime is liable to up to 25 years inside.
On 25 May 2021, Wollongong District Court Judge Andrew Haesler sentenced Green to 6 years and 7 months in prison, with parole being set at 3 years and 4 months. And this overall sentencing outcome reflected a 5 percent discount for the utilitarian value of entering his guilty plea.
The problem with this outcome for Green was he’d instructed one of his Legal Aid lawyers, a Ms Parkes, that he’d decided to plead guilty to the charge on 24 September, which was almost a month before the trial, and issuing a plea then would have resulted in a 10 percent sentence reduction.
But due to a series of mishaps, Green’s other representative Mr Paine didn’t email the District Court registry until 17 November about his client’s intention to plead guilty to the charge, which was one day after the 10 percent reduction deadline, meaning the discount dropped to 5 percent.
The Judge’s Associate emailed all parties about the decision to plead guilty on 18 November, the statement of facts was agreed to by both parties on the following day, and then on the 20 November, Green pleaded guilty to specially aggravated kidnapping.
However, there had been a pre-trial mention at the District Court on 6 October, which was when Parkes was on leave and Paine had just arrived back after time off, leaving Green unrepresented at the court proceedings that might have been an ideal opportunity to enter his plea of guilt.
Appealing the delay
Green went on to appeal his sentence to the NSWCCA on 5 September this year, based on the sole ground that “the proceedings miscarried because his lawyers failed to act in a timely manner on his instructions to enter a plea of guilty”, resulting in a 5 percent, rather than 10 percent, discount.
The applicant had both his lawyers provide affidavits and they were cross-examined at the hearing, with Green’s argument being that if they’d notified the court to his guilty plea just one day prior, he’d have received a lesser sentence and therefore, there had been a miscarriage of justice.
The Crown challenged the appeal stating that no such miscarriage had taken place, and the late entry of the guilty plea was rather due to the applicant continuing to have disputed some of the agreed facts between the parties and was therefore holding off on entering a plea due to this.
The prosecution also put it to the court that the legislation is very clear on the limits, with no discretion to work around them and therefore, the 14-day pre-trial deadline was missed regardless of the reasons why.
Section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that if an accused pleads guilty 14 days prior to the trial date, they’re permitted a 10 percent reduction on final sentence, while a guilty plea issued after that deadline leaves one eligible for a 5 percent sentencing discount.
Deliberations on a bungled plea
NSWCCA Justice Peter Hamill concluded that the failure to enter the guilty plea 14 days before trial commencement “constituted a material irregularity in the process” and was not because the defence was holding out due to facts still being negotiated.
Indeed, on the day Green initially said he wanted to plead guilty, his lawyer, Parkes, had contacted the Office of the Director of Public Prosecutions (ODPP) and notified it that her client had clearly made his decision to plead guilty regardless of the outcome of the facts in dispute.
“It is impossible to approach the case on the basis of giving effect to the ‘judge’s clear intention when imposing the sentence’,” Justice Hamill said.
“This is because the irregularity involved the sentencing judge not knowing the applicant had provided instructions to plead guilty, and that the ODPP was on notice of that fact, many weeks before the court was told of the development.”
Due to this reasoning, the appeal was upheld. But the court couldn’t simply subtract an extra 5 percent from the original sentence, because the legislation leaves no leverage to work around lawyers who make mistakes regarding the dates. So, the 5 percent discount had to stand.
Another key reason why the appeals court had to resentence was that if the judge had known that the accused had pleaded guilty weeks before, rather than at the last moment, he may have approached the individual before him to be sentenced in a more amiable manner.
Resentencing
On 25 October, Justice Hamill quashed the earlier District Court sentence and resentenced Green to 5 years and 8 months, with non-parole set at 3 years, due to a finding of special circumstances.
Section 44 of the Crimes (Sentencing Procedure) Act outlines that a parole period can be no longer than 25 percent of an overall head sentence, unless special circumstances are found and then the period an inmate is eligible for parole can be extended.
Green’s non-parole period was close to 50 percent of the head sentence, as Justice Hamill found special circumstances based on his underprivileged background and his attempts at drug rehabilitation.
NSWCCA Justices Robert Macfarlan and Ian Harrison agreed with their colleague’s orders.
