Aubourg v The Queen

[2013] NSWCCA 154

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Aubourg v R [2013] NSWCCA 154

Hearing dates:

25 June 2013

Decision date:

25 June 2013

Before:

Basten JA at [1];
R A Hulme J at [29];
Garling J at [30]

Decision:

1. Grant leave to appeal

2. Dismiss the appeal

Catchwords:

CRIMINAL LAW - appeal - sentencing - whether error of fact by sentencing judge materially affected sentence imposed - applicant charged with kidnapping offence in company of co-offenders - sentencing judge wrongly attributed threat to use knife to applicant - whether error material

CRIMINAL LAW - appeal - sentencing - whether appellate court should reduce sentence where sentencing judge made material error of fact - error did not relate to most serious aspect of offending - sentence not manifestly excessive for objective offending - applicant's culpability not significantly reduced by subjective circumstances - reduction would create disparity with less culpable co-offender - whether less severe sentence warranted in law - Criminal Appeal Act 1912 (NSW), s 6(3)

Legislation Cited:

Crimes Act 1900 (NSW), s 86(2)(a)

Cases Cited:

R v Speechley [2012] NSWCCA 130

Category:

Principal judgment

Parties:

Jessica Lynette Aubourg (Applicant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
T Gartelmann (Applicant)
T Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2011/150018

Publication restriction:

None

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-09-12 00:00:00

Before:

Sides DCJ

File Number(s):

2011/00150018

Judgment

1. BASTEN JA: The applicant, Jessica Lynette Aubourg, sought leave to appeal against a sentence imposed on her by Judge Sides QC in the District Court on 12 September 2012. The matter proceeded in the District Court on a guilty plea, with an agreed statement of facts. The applicant also gave oral evidence. In this Court it was common ground that the sentencing judge made a factual error in giving reasons for the sentence imposed. The two issues before this Court were (a) whether the error materially affected the sentence imposed and (b), if so, whether a less severe sentence was warranted in law.

1. At the conclusion of the hearing, the Court granted leave to appeal, but dismissed the appeal. Reasons were reserved.

1. In order to understand the nature and significance of the error, it is necessary to provide some factual background to the circumstances of the offending and also the procedural background to the matter in the District Court.

Background

1. The offending took place on the evening of 2 May 2011. In August 2010 the applicant had made a complaint to Police that she had been raped by a young man, Mosa (Julius) Mbele. Although the applicant claimed that she had been dissuaded from pursuing her complaint by Police, the sentencing judge found that she had decided not to press the charge. The decision was one she later regretted, as Mr Mbele continued to harass her by phone calls and text messages. She formed an intention to take steps to "scare him a bit", so he would leave her alone. She discussed the idea with her close friend, Tara Speechley and her boyfriend, Jason Alford. The applicant arranged to meet Mr Mbele on the evening of 2 May 2011. She drove to the assigned meeting place accompanied by Ms Speechley. Mr Alford was also in the vehicle, but hidden in the boot: to the applicant's knowledge, he was armed with a sawn off rifle and ammunition.

1. Mr Mbele sat in the back seat. The car was a two-door Hyundai and Mr Mbele was not able to get out unless one of the women got out first and her seat was pushed forward. The statement of agreed facts continued:

"The offender drove the vehicle to Belmore Road, Riverwood.

The victim became uneasy, and asked the offender to pull the car over so that he could smoke a cigarette. The victim heard SPEECHLEY ask the offender: 'Is this the guy that raped you?' The offender said: 'Yes'. The victim asked: 'What are you talking about? Stop playing games'. The offender said: 'Don't worry about it'. The offender, SPEECHLEY and the victim got back into the car.

The offender drove the vehicle to Kentucky Road, Riverwood, and parked the vehicle near the intersection of Michigan Road, next to Salt Pan Reserve. The offender opened the boot, and then exited the vehicle. The victim was unable to exit the vehicle, as the offender did not move her seat forward.

The victim heard the boot open. He then heard ALFORD say: 'Hey fuckhead, don't move, don't even look at me.' The victim saw ALFORD standing behind the car holding a firearm. The firearm was pointed at the victim's head, through the open boot. The victim said: 'Please don't hurt me, please don't hurt me.'

SPEECHLEY got out of the vehicle, and moved her seat forward, to allow the victim to exit the vehicle. The victim attempted to get out of the vehicle. The offender reached into the car and attached a metal handcuff to the left wrist of the victim. The offender pulled on the cuff, and the victim exited the vehicle. The victim grabbed the offender's wrist.

ALFORD said to the victim: 'You think this is not a real gun?' ALFORD hit the barrel of the firearm against the top of the victim's head. The firearm discharged. The victim saw ALFORD re-load the firearm. ALFORD said 'Should we cut his fingers off now?' SPEECHLEY started to walk away. ALFORD said: 'Tara, get the knife out of the boot.' SPEECHLEY went to the boot and found a knife, which she handed to ALFORD.

The victim then struggled against the offender. He ran along Kentucky Road, away from the offenders. ALFORD discharged the firearm into the air to frighten the victim.

...

The offender, ALFORD and SPEECHLEY got back into the vehicle and drove around the area, attempting to locate the victim. The trio then made their way to ALFORD's premises."

1. The applicant was later arrested and charged with a single offence of taking Mr Mbele "with the intention of obtaining an advantage, to wit, to assault, handcuff and threaten Julius Mbele ... while the said accused was in the company of Jason Alford and Tara Speechley", contrary to s 86(2)(a) of the Crimes Act 1900 (NSW). Ms Speechley was charged in similar terms. Mr Alford was also charged under s 86 and with three additional offences under the Firearms Act 1996 (NSW).

1. The applicant and Mr Alford both came to be sentenced by Sides DCJ on 12 September 2012. For some reason which is not clear from the record in this Court, Ms Speechley had already been sentenced by Judge Bennett SC to a term of 23 months; the sentence was suspended. An appeal against that sentence by the Director of Public Prosecutions came before this Court in June 2012. The Court allowed the appeal and re-sentenced Ms Speechley to a non-parole period of 12 months commencing on the date on which her sentence had originally been imposed, with a balance of term of 11 months: R v Speechley [2012] NSWCCA 130. In effect the period of imprisonment was not varied, but a non-parole period was fixed, which was required to be served and was not suspended. That outcome was before Sides DCJ when sentencing the Applicant and Mr Alford. He took that sentence into account with respect to the offences under s 86 of the Crimes Act, in order to ensure that the sentences imposed on the applicant and Mr Alford were not disproportionate to that imposed on Ms Speechley.

Factual error

1. Against this abbreviated background, it is convenient to identify the factual error which appears from the reasons of the sentencing judge. It arose from the fact that the statements of agreed facts in relation to the applicant and Mr Alford differed. (They also appear to have differed in some respects from that before the Court sentencing Ms Speechley.) The fact that three people involved in a common enterprise are sentenced on differing factual bases may give rise to apparently anomalous results. That occurs because people charged with offences who propose to plead guilty commonly seek to negotiate agreement with the prosecution as to the factual basis upon which they will be sentenced. Unsurprisingly, each will seek to minimise his or her particular role in the criminal conduct.

1. Superficially, to sentence co-offenders on different factual assumptions may appear arbitrary or artificial and, accordingly, a result which a prosecutor should seek to avoid. Frequently, however, that is not a fair representation of the circumstances. For example, absent admissions by the individuals, the prosecution may have no means of proving beyond reasonable doubt what role each played in the preparation for the crime. To similar effect, evidence admissible against one offender may not be admissible against the others. The result, which is that the Court may need to sentence on differential facts, is a practical inevitability in many cases.

1. The particular difference which gave rise to error in the present case arose from the passage set out above from the statement of agreed facts in relation to the applicant in which it was Mr Alford who asked the threatening question, "Should we cut his fingers off now?" There was no reference to this event in the facts agreed with respect to Mr Alford himself. The trial judge was conscious of the differences in the agreed facts: reasons, p 3. However, in dealing generally with the background events, the sentencing judge stated (at p 6):

"According to the facts in connection with the Offender Aubourg, the Offender said: 'Should we cut his fingers off now?' At this point the co-offender started to walk away and the offender Alford said: 'Tara, get the knife out of the boot.' She, that is the co-offender, went to the boot, obtained a knife and handed it to the offender Alford. This conversation about the knife and the handing of it to the offender Alford is not contained in the facts concerning Alford ... and in his case the Court has ignored that aspect of the matter."

1. After setting out the general background, the sentencing judge dealt separately with the case against Mr Alford and then turned to the applicant. After dealing with variations in her statements to police, her role in instigating the offence and the significance of the gun, the sentencing judge stated (at p 20), in terms which were similar to those set out in the previous paragraph:

"That may well be the case concerning the gun for the offender Aubourg, but in her case, the evidence about and the terms in which the offender Aubourg spoke about cutting the fingers and directing the co-offender [to] get the scissors indicate that the purpose that she was intent upon was a little different and included a physical assault upon the victim and was therefore not limited to threatening or intimidating him."

1. It is clear that, in this respect, the sentencing judge erred. Not only was it Mr Alford and not the applicant who referred to "cutting his fingers", but it was Mr Alford, not she, who directed Ms Speechley to get the knife (not scissors).

Materiality of error

1. Counsel for the Director submitted that the error was not material. She did so on the basis that the substance of the case against the applicant had been summarised earlier in the judgment (p 18) in the following terms:

"Based upon her admissions in the second ERISP interview to the police, the Court is satisfied beyond a reasonable doubt that she instigated the offence and that her initial plan included the use of the gun. That is consistent in the Court's view with the level of her fear of the victim that emerged during cross-examination by Miss Hickleton.

The Court is also satisfied beyond a reasonable doubt that, along with her, the other two discussed and planned the offence.

The evidence before the Court indicates that she played an active role in the execution of the offence in that:

· she enticed the victim into the car;

· provided and drove the car;

· provided and used the handcuffs;

· let the offender Alford out of the boot;

· handcuffed the victim; and

· pulled him from the car and held onto him until he struggled free.

Her role was crucial in the execution of the offence. Without her initiating it and providing the car it seems to the Court the offence would never have been committed.

By the same token, because of her level of fear, it is unlikely that she would have gone ahead with the plan without the gun that was supplied by the offender Alford. Clearly, she was motivated by revenge. The victim's harassment of her in the days preceding the offence fuelled that desire."

1. Counsel for the Director then referred to a later passage, shortly after the error was made, in which the sentencing judge noted that the "active role" of the applicant was greater than that of Mr Alford, although her moral culpability was reduced for subjective reasons. The repetition of the phrase "active role", it was submitted, was a reference back to the earlier passage in which there had been no reference to the threat of physical injury by cutting the fingers.

1. This approach cannot be accepted in full. On the one hand, the error about the knife was not the most important factor in assessing the objective seriousness of the offending. Although a knife can be a lethal weapon, the threat posed by the loaded gun was significantly more serious than that which followed from the threat to use a knife for cutting fingers. On the other hand, it is clear that the sentencing judge did rely upon the erroneous statement that it was the applicant who had suggested a physical assault by cutting the fingers of the victim. It may well be that the applicant's role in instigating the offence, including the plan to use the gun, raised her level of culpability above that of Mr Alford, but given the fact that Mr Alford was the person responsible for making threats with the loaded gun, it seems likely that the threat to use physical violence, incorrectly attributed to the applicant, was also a significant feature in that assessment. The error cannot be rejected as immaterial.

Whether Court should intervene

1. Despite the factual error, there remains a large question as to whether the Court should intervene to reduce the applicant's sentence. Determination of this issue requires consideration of three broad issues, namely:

(a) the objective seriousness of the offending;

(b) mitigating factors personal to the applicant, and

(c) issues of parity with co-offenders.

(a) objective seriousness

1. The correct approach to sentencing for an offence of taking or detaining for advantage was discussed by Johnson J in Speechley, in relation to the circumstances of this particular offending. To the extent that the facts on which Ms Speechley was sentenced differed from those relevant to the applicant, the variations were not significant to the overall assessment of the objective gravity of the offending. Nor should there be any doubt that the assessment of the Court in Speechley that this was "an offence of significant objective gravity, well above the lower end of the scale" is equally applicable to the present applicant: Speechley at [117].

1. Although the physical detention of the victim did not commence until the applicant placed a handcuff around his left wrist, and was thus of short duration, that matter was of limited assistance to the applicant, as the victim was not released by her but rather broke free from her and fled out of fear: cf Speechley at [106].

1. Further, the fact that the victim was not physically injured is of limited assistance to the applicant. That the gun discharged by accident rather than intent demonstrated the real risk of causing serious injury when threatening a person with a loaded gun. After the accidental discharge, not only did Mr Alford re-load the gun, but he fired it again, though not at the victim. Further, once the victim broke away, the three offenders re-entered the car and spent some time driving around trying to relocate him.

1. In Speechley, Johnson J noted that this offence constituted a form of "vigilante action", noting "the need to condemn actions of this type and to reflect general deterrence on sentence": at [110].

1. Although s 86 undoubtedly covers a wide range of conduct, it is necessary to bear in mind that the maximum penalty for an aggravated offence under s 86(2) is 20 years imprisonment. It will be necessary to return to the outcome in Speechley in considering issues of parity, but it is relevant for present purposes to note that a sentence of two years six months imprisonment, before discounting and disregarding the suspension, was held to be within the appropriate range. On a prosecution appeal, that means that it was not erroneously lenient. Given the more serious involvement of the applicant (as compared with that of Speechley) it is not possible to say that a sentence of four years before discounting was manifestly excessive, having regard solely to the objective seriousness of the offending.

(b) subjective circumstances

1. The circumstances of the applicant were carefully addressed by the sentencing judge and need not be repeated in detail. Relevant mitigating circumstances were:

(a) a dysfunctional upbringing because of her parents' substance abuse and domestic violence (judgment, p 21);

(b) her efforts to obtain qualifications and responsible employment (p 22);

(c) her physical health issues (p 22), and

(d) her significant mental health issues arising from the sexual assault in August 2010 which lead her to "self-medicate with cannabis" (p 23) and, more importantly, a reduced ability, due to post-traumatic stress disorder, to control her anger (p 21).

1. On the other side of the coin, the sentencing judge was not satisfied that her expression of regret constituted "genuine remorse": p 23. Further, the applicant made inconsistent statements to the police and, more troublingly, gave evidence on the sentencing hearing which the Court found "lacked credibility" (pp 15-16). The trial judge noted (at p 18):

"The thrust of the Crown's position is that in regard to this aspect of the case she lied to minimise her involvement. Having considered all the evidence, including her explanations, the Court is satisfied beyond a reasonable doubt that that is what she did during her evidence." (See also at p 25.)

1. In these circumstances, the most powerful subjective consideration was the applicant's diagnosed psychiatric condition of post-traumatic stress disorder, caused by the rape which was accepted to have occurred and to have been the act of the victim of the present offending.

(c) parity

1. Questions of parity loom large in a case involving three co-offenders, to the extent that each was charged with an offence under s 86. Sides DCJ treated the applicant and Mr Alford as on a par in respect of that offence: judgment, p 21. However, he described the offence as "within the low range but it is certainly not at the bottom of the low range because of the gun and because the detention came to an end when the victim escaped by his own devices". No doubt there is a level of imprecision in characterising offences as within a low, middle or high range. Nevertheless, that characterisation would seem to be inconsistent with the description in Speechley that the offence was "well above the lower end of the scale", in respect of objective gravity.

1. In the event, the sentencing judge appears to have calculated each sentence from a starting point of four years. The reduction to 33 months in the case of the applicant derived from a combined discount of 25% (for an early plea) and 5% (for assistance to police). In sentencing Ms Speechley, Bennett DCJ commenced with a term of two years and six months which, after a discount of 25% (for the utility of an early plea), gave a sentence of 23 months. Despite the higher starting point, the terms of mandatory custody imposed on Ms Speechley and the applicant vary by only three months, because the applicant received a greater discount (30% as against 25% for Ms Speechley) and because of a degree of leniency accorded with respect to her non-parole period, which constituted less than half her total sentence. As each is entitled to automatic release on parole at the end of the period of mandatory custody, in considering parity significant weight should be given to the respective non-parole periods.

1. On the other hand, to reduce the applicant's sentence by any significant amount (such as 15%) would be to leave the applicant with an almost identical non-parole period to that imposed on Ms Speechley. That would tend to minimise the very real disparity in their culpability. Thus, unlike the applicant, Ms Speechley had no real interest in punishing or intimidating the victim; she did not instigate the offending; she did not obtain the car used in the offence; she did not know that Mr Alford had a gun until it was used in the course of the offending, and she did not assault the victim with handcuffs.

Conclusion

1. First, although the factual error made by the sentencing judge was material, it did not relate to the most serious aspects of the offending. Secondly, once the error is disregarded, the sentence is not shown to be manifestly excessive for the objective offending. Nor was the applicant's culpability significantly reduced by her subjective circumstances. Thirdly, to reduce the applicant's sentence by any amount which is not mere tinkering would be to produce an inappropriate disparity with the sentence imposed by this Court on Ms Speechley. For these reasons, I joined the grant of leave to appeal, but dismissed the appeal.

1. RA HULME J: My agreement with the orders made on 25 June 2013 was for the reasons given by Basten JA.

1. GARLING J: For the reasons expressed by Basten JA, with which I agree, I joined in the making of the orders of the Court on Tuesday 25 June 2013.

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Decision last updated: 12 July 2013