R v Gaudry, R v MacDonald

[2010] NSWCCA 70

New South Wales
Court of Criminal Appeal

CITATION:	R v Gaudry, R v MacDonald [2010] NSWCCA 70
HEARING DATE(S):	16 February 2010
JUDGMENT DATE:	23 April 2010
JUDGMENT OF:	James J at 1; Howie J at 79; Davies J at 80
DECISION:	On the appeal against the sentence imposed on the respondent MacDonald:- 1. Appeal allowed. 2. Sentence imposed by Judge Toner on 16 October 2009 quashed. 3. In lieu thereof, sentence the respondent to a non-parole period of one year nine months commencing on 16 October 2009 and expiring on 15 July 2011 and a balance of the term of seven months. 4. Direct that (unless in custody for other reasons) the respondent be released on parole on 15 July 2011. On the appeal against the sentence imposed on the respondent Gaudry:- 1. Appeal allowed. 2. Sentence imposed by Judge Toner on 16 October 2009 quashed. 3. In lieu thereof, sentence the respondent to a non-parole period of one year six months commencing on 16 October 2009 and expiring on 15 April 2011 and a balance of the term of six months. 4. Direct that (unless in custody for other reasons) the respondent be released on parole on 15 April 2011.
CATCHWORDS:	CRIMINAL LAW — Sentencing — Crown appeals against sentence — threatening to cause injury to witness in judicial proceedings — s 326(2) Crimes Act — offences committed in circumstances where offenders were likely to be apprehended — whether mitigating factor that offences were “stupid”
LEGISLATION CITED:	Crimes (Appeal and Review) Act Crimes (Sentencing Procedure) Act Crimes Act Criminal Appeal Act
CASES CITED:	House v The King (1936) 55 CLR 499 Mulato v R [2006] NSWCCA 282 R v Jaques [2002] NSWCCA 444 R v JW [2010] NSWCCA 49 R v Zamagias [2002] NSWCCA 17 R v Carroll [2010] NSWCCA 55
PARTIES:	Regina v GAUDRY, Brooke Leah Regina v MACDONALD, Jason Matthew
FILE NUMBER(S):	CCA 2008/10400; 2008/10309
COUNSEL:	J Dwyer - Crown B Rigg - for Gaudry D Dalton SC - for MacDonald
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) Aboriginal Legal Service - for Gaudry Legal Aid Commission - for MacDonald
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11/0639; 2008/11/0643
LOWER COURT JUDICIAL OFFICER:	Toner DCJ
LOWER COURT DATE OF DECISION:	16 October 2009

2008/10309
2008/10400

JAMES J
HOWIE J
DAVIES J

23 APRIL 2010

R v MACDONALD, Jason Mathew

R v GAUDRY, Brooke Leah

Judgment

1 JAMES J: These are appeals by the Crown against sentences imposed in the District Court on 16 October 2009 by his Honour Judge Toner on the two respondents Brooke Leah Gaudry and Jason Mathew MacDonald for an offence of threatening to cause injury to a man named Ben Volodin because they believed that Ben Volodin would be called or might have been called as a witness in judicial proceedings.

2 The sentence imposed on the respondent Gaudry was a sentence of imprisonment for 12 months commencing on 16 October 2009, which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. The sentence imposed on the respondent MacDonald was a sentence of imprisonment for 14 months also commencing on 16 October 2009 and also suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act.

3 The offence of which the respondents were convicted was an offence under s 326(2) of the Crimes Act for which the maximum penalty is imprisonment for 10 years. There is no standard non-parole period for the offence.

4 The two respondents had stood trial before his Honour Judge Toner and a jury on a charge of having committed the offence under s 326(2) and had been found guilty by the jury. At the trial evidence was given in the Crown case by Mr Volodin and by two police officers Detective Saad and Detective Dobell. Each of the respondents gave evidence at the trial in his or her defence case.

5 In his remarks made on the sentencing of the two respondents Judge Toner summarised the facts leading up to the commission of the offence as follows:-

“On 12 November 2007 each of the offenders was at the Downing Centre where Mr MacDonald faced a charge of possessing an implement capable of being used to enter a conveyance. The victim of this offence was one Ben Volodin, who was there to answer a summons served on him requiring him to give evidence against Mr MacDonald in those proceedings. Each of the offenders and Mr Volodin were in the foyer outside the court. Also present was a large number of people including a significant number of uniformed police. As it turned out there were also plain-clothes police officers present.”

6 In his remarks his Honour summarised what had been the Crown case at the trial. His Honour said:-

“There was some variation in the versions given in the Crown's case from Mr Volodin and Detective Sergeant Dobell as to the form of words used by Mr MacDonald and Ms Gaudry. It was the Crown's case that it did not matter particularly what form of words was used. The essence of the Crown's case was that whatever words were used were directed towards Mr Volodin and to threaten him, and to threaten him because he was a witness in judicial proceedings, namely proceedings being taken against Mr MacDonald. Each version of the threats included a threat of reprisals against Mr Volodin by people known to the offenders who had a reputation for violence.

I accept that that was the jury's finding in this case, because it is, in essence, impossible to precisely distinguish what was said by either Mr MacDonald or Ms Gaudry according to the various Crown witnesses and preferring one version to another.”

7 In his remarks Judge Toner described what had been the defence cases at the trial. His Honour said:-

“Each of them denied addressing Mr Volodin and each of them denied the form of words that was asserted by him and others that they used. In essence, their case was that it was a conversation between the two of them rather than directed towards Mr Volodin, and in any event, according to them, what was said could not have intimidated Mr Volodin. Ms Gaudry did however say that there was some direct communication between herself and Mr Volodin, but whatever she did was in response to something said, or at least mouthed, by Mr Volodin towards her.”

8 His Honour observed in his remarks that the jury must have rejected the defence case of each of the respondents.

Further aspects of the remarks on sentence

9 The sentencing judge made some remarks which applied to both the respondents. His Honour noted that all offences which threaten the integrity of judicial proceedings are serious and that there is a need for sentences for such offences to give effect to general deterrence.

10 His Honour described each respondent’s offence as one of the “most stupid” crimes he had ever encountered. His Honour formed this view, because of the circumstances in which each respondent had spoken to Mr Volodin, that is in the foyer of a court room where many people were present who would hear what was said, including police officers in uniform and other persons some of whom were likely to be police officers in plain clothes. In these circumstances each of the respondents was almost certain to be arrested and successfully prosecuted.

11 The sentencing judge referred to the decision of the Court of Criminal Appeal in R v Jaques [2002] NSWCCA 444. In Jaques the Court of Criminal Appeal pointed out that, where the conduct relied on is the making of a threat, the commission of an offence under s 326(2) is complete on the making of the threat and there need not be any intention on the part of the offender to carry out the threat. It will be necessary to give further consideration to the decision in Jaques later in this judgment.

12 The sentencing judge made a finding that the offence of each of the respondents was towards the bottom of the range for offences of this sort. His Honour’s grounds for his conclusion were, what his Honour had found to be the “stupidity” of the offences, that the offences were unpremeditated and unplanned and that there was no clear indication of any intention on the part of either respondent to carry out any threat.

13 The sentencing judge did recognise that the words spoken by the respondents were intended to frighten Mr Volodin and had had that effect, so much so that Mr Volodin was not prepared to give evidence on 12 November 2007 at a hearing of the charge against the respondent MacDonald. However, Mr Volodin was subsequently prepared to come to court, to give evidence.

14 As between the two respondents, the sentencing judge found that Ms Gaudry had played the lesser role and that it was MacDonald who had made the first threat. He was also the person against whom Mr Volodin was to give evidence and the potential beneficiary of the intimidation of Mr Volodin. However, the difference between the roles of the two offenders was not great.

15 In his remarks on sentence the sentencing judge then turned to the subjective circumstances of Ms Gaudry.

16 Ms Gaudry was 37 years old at the time of being sentenced. She had an extensive criminal history but no previous offence similar to the present offence. His Honour commented that the present offence was “a one-off from her usual criminal activities”. She was subject to a good behaviour bond at the time of committing the offence. She had previously had the benefit of having a sentence of imprisonment suspended and she had also been given the benefit of a range of non-custodial sentences and of extended parole periods.

17 Ms Gaudry had five children, three of whom had been removed from her and two of whom were being cared for by her mother. She had had a long term drug addiction and was on a methadone program. At the time the pre-sentence report was prepared she was homeless. At the time of being sentenced she was in Department of Housing accommodation at Waterloo but that accommodation was “tenuous”.

18 In sentencing Ms Gaudry Judge Toner considered that he had to balance the need for general deterrence and to a lesser extent personal deterrence against “sentencing for an offence close to the bottom of the range for such an offence, a person whose life is a shambles scarred by drug addiction and familial dysfunction”.

19 The sentencing judge then turned to the subjective circumstances of the respondent MacDonald.

20 MacDonald was 38 years old at the time of being sentenced. He also had an extensive criminal history, although his Honour commented that there had recently been some improvement. Like Ms Gaudry, he was a drug addict. The sentencing judge said:-

“Like his co-offender his life has been a shambles, marked again by abuse, violence, neglect, drug addiction, alcoholism, crime and punishment. He was a ward of the State and spent some time in Boys Homes until he was eighteen.”

21 MacDonald had had very limited education and the sentencing judge suspected that he was “more or less illiterate”.

22 His work history had been sporadic but in June 2008 he had gained employment as a car detailer and had held that employment until he was taken into custody for other offences shortly before being sentenced. His Honour commented “I suppose there is some hope yet”.

23 In sentencing MacDonald his Honour considered that he had to perform the same balancing task as he had to perform in Gaudry’s case, “with very similar competing considerations”. His Honour imposed a slightly longer sentence because he regarded MacDonald’s criminality as marginally more serious.

The Crown appeals

24 The Crown relied on a number of grounds of appeal. It is convenient to consider these grounds in a different order from that in which they appear in the Crown’s written submissions.

Ground 2 — The sentencing judge erred in respect of the suspended sentence for Ms Gaudry by imposing a bond that exceeded the length of the sentence .

25 This ground of appeal was based on the fact that the formal order signed by the sentencing judge stated that the term of the good behaviour bond to be entered into by Ms Gaudry, in consequence of the suspension of her sentence was 14 months, whereas the term of the sentence imposed on her was 12 months.

26 Such an order would be a contravention of s 12 of the Crimes (Sentencing Procedure) Act, which confers power on a sentencing court to suspend the execution of the whole of a sentence of imprisonment and direct that the offender be released from custody, on condition that the offender enter into a good behaviour bond for a term not exceeding the term of the sentence.

27 However, it is clear from the sentencing judge’s remarks on sentence that his Honour intended that the term of the bond should be 12 months, that is a term equal to the term of the sentence. After pronouncing the sentence he was imposing on Ms Gaudry, his Honour said to her that, if she breached the bond, she would go to gaol full-time, even “if you breach this bond on the very last day of it, namely on the 364th day of it”.

28 On the hearing of the appeal it was accepted that there was a typographical error in the formal order, that the error could be corrected by the District Court and that there was no need for this Court to take any action.

Ground 3 — The sentencing judge erred by misstating the maximum penalty for the offence .

29 As noted earlier in this judgment, the maximum penalty for an offence under s 326(2) of the Crimes Act is imprisonment for ten years. However, in his remarks on sentence the sentencing judge incorrectly stated that the maximum penalty for the offence was imprisonment for 12 years.

30 It was accepted by the Crown in its written submissions that the error was of a kind which would usually work in favour of a respondent to a Crown appeal. However, it was submitted that in the present case the error by the sentencing judge in misstating the maximum penalty assisted in demonstrating that the sentencing judge had erred in assessing the objective seriousness of the offences.

31 This ground of appeal is clearly established. However, in my opinion, the misstatement of the maximum penalty was of little importance, in a case where the difference between the stated maximum penalty and the true maximum penalty was fairly small, the stated maximum penalty was greater than the true maximum penalty, and the difference between the sentences imposed and both the stated maximum penalty and the true maximum penalty was so large.

Ground 3 — The sentencing judge erred by failing to take a two-step approach before suspending the sentences: R v Zamagias

32 In R v Zamagias [2002] NSWCCA 17 it was held by Howie J at pars [24] to [30], with the concurrence of the other members of the Court, that a sentencing court must determine a preliminary question whether there is any alternative to the imposition of a term of imprisonment on the offender and, if that question is answered in the negative, the Court must engage in a two-step process, firstly determining what the term of the sentence should be, without having regard to how the sentence is to be served, and secondly determining whether there is any alternative to full-time imprisonment for serving the term of the sentence, for example whether execution of the sentence should be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act.

33 On the present appeal it was submitted by the Crown that the sentencing judge, having determined that a sentence of imprisonment should be imposed, had not taken the two separate steps of firstly determining the length of the sentence and then determining whether a sentence of that length could be served otherwise than by full-time custody, by way of a suspended sentence.

34 The Crown accepted that in Zamagias Howie J said at [30], omitting citation of authority:-

“But it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed…In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner…”

35 However, the Crown pointed out that Howie J immediately added:-

“However, the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead this Court to examine carefully the findings made by the sentencing judge to determine whether the sentence is erroneous…”

36 In the present case, the sentencing judge did not in his remarks on sentence, in the case of either respondent, expressly indicate that he was taking the two-step approach described in Zamagias. His Honour, after stating what he found to be the facts of each offence and the subjective features of the offenders and after making a finding that the offences were towards the bottom of the range for offences of this type, merely said that he would impose a prison sentence, without then nominating its length, and would suspend the sentence.

37 In my opinion, the sentencing judge did fail to take the two-step approach required by Zamagias and I would uphold this ground of appeal.

Ground 4 — The sentencing judge erred in assessing the objective seriousness of the offences as being “towards the bottom of the range”

38 As noted earlier in this judgment, the sentencing judge made a finding that the offence of each of the respondents was towards the bottom of the range for offences of this sort. His Honour found that there was some difference, but not much difference, between the objective criminality of the two respondents.

Crown submissions

39 On this appeal the Crown, while accepting the width of the discretion of a sentencing judge in assessing the objective seriousness of an offence, submitted that it had not been open to Judge Toner to find that each respondent’s offence was towards the bottom of the range of objective seriousness and that the sentencing judge should have found that the objective seriousness of each offence was in the middle of the range.

40 The Crown submitted that the sentencing judge had found that each of the respondents had, in the foyer of a courthouse, made a threat against a person waiting to give evidence in a court case that, because he was going to be a witness, there would be reprisals against him by persons who had a reputation for violence and that the threat had succeeded in intimidating the person threatened so that he was not prepared to give evidence that day, although he was subsequently prepared to give evidence.

41 As to the sentencing judge’s characterisation of the offences as being “stupid”, it was submitted by the Crown that it is not a mitigating factor in sentencing that the offence was “stupid” and that his Honour’s characterisation of the respondents’ offences as being stupid had tainted his whole approach to the sentencing of the respondents and had misled his Honour into finding that the offences were only minor.

42 A submission made in the Crown’s written submissions that each offence had been committed in company, that is in the company of the other offender, was not pressed at the hearing of the appeal. It was accepted that the trial had not been conducted on the basis that the respondents had acted in concert and the sentencing judge had not made any finding to that effect.

Respondents’ submissions

43 Counsel for the respondents relied on the sentencing judge’s remarks and made a number of submissions, including that the conduct by the respondents had been the making of threats to cause injury and not the actual causing of injury, which would have been a more serious type of conduct falling within s 326(2); that the threats had not been threats to kill, as had occurred in R v Jaques; that the making of the threats had been unpremeditated and unplanned; that the threats had been made openly and not clandestinely; that the sentencing judge had made a finding that there was no clear indication of any intention on the part of either respondent to carry out the threat; that the threats have been made in a location where a number of persons were present who could lend support to the person threatened; that there had not been any actual interference with the course of justice, because the criminal proceedings against MacDonald had to be adjourned for other reasons, apart from Mr Volodin’s unwillingness to give evidence; and that the Crown in the proceedings on sentence had conceded that the offences did not fall in the middle of the range.

Decision

44 The present offence was not an offence of a kind to which a standard non-parole period applies. Hence, the sentencing judge was not required by Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act to assess where in the range of objective seriousness for offences under s 326(2) the present offences lay. Nevertheless, the sentencing judge was still required under general principles of sentencing to assess the degree of objective seriousness of the offences.

45 As submitted by counsel for the respondents and acknowledged by counsel for the Crown, the assessment by a sentencing judge of the level or degree of objective seriousness of an offence, whether it is done for the purpose of complying with Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act or whether it is done for the purpose of complying with general principles of sentencing, is an exercise of a function in the nature of a discretion or akin to a discretion and the Court of Criminal Appeal can disturb the primary judge’s assessment only in accordance with the principles stated in House v The King (1936) 55 CLR 499. See for example Mulato v R [2006] NSWCCA 282 especially at [37] per Spigelman CJ and at [46]-[47] per Simpson J.

46 At the hearing it was not disputed by the Crown, and I would accept, that the conduct in which each respondent engaged was the making of a threat to cause injury and not the actual causing of injury; the threat was of reprisals against the victim by persons known for violence but did not amount to a threat to kill; the threat was not made clandestinely; the offence was unpremeditated and unplanned; there was no clear indication of any intention on the part of the respondent to carry out the threat; and the threat was made in the presence of a number of persons who might have been able to support or protect the victim from any immediate carrying out of the threat. However, the Crown did dispute a number of the submissions made on behalf of the respondents, together with parts of the sentencing judge’s remarks on sentence.

47 I have already referred to the sentencing judge’s characterisation of the offences in his remarks on sentence as being “stupid” and his Honour’s reasons for giving the offences that characterisation. It is clear that his Honour’s characterisation of the offences as being “stupid” played an important part in the determination of the sentences which his Honour imposed.

48 Insofar as characterising an offence as “stupid” is intended to convey that the offence was unpremeditated, unplanned and impulsive, then the characterisation refers to matters which can properly be taken into account as mitigating factors in sentencing. However, the mere fact that an offence was committed in circumstances in which the offender was likely to be detected and successfully prosecuted is not, of itself, a mitigating factor. Many crimes are committed in such circumstances. It does appear to me that his Honour’s characterisation of the offences as being “stupid” and the emphasis he gave to this characterisation led him to under-estimate their degree of objective seriousness.

49 It was submitted by counsel for Ms Gaudry that it was not clear that the making of the threats had actually interfered with the course of justice. Counsel referred to part of the transcript of the trial of the respondents in which evidence was given by a police officer that another prosecution witness had failed to come to court on 12 November 2007 and the adjournment of the hearing of the charge against MacDonald had enabled police to contact that other witness and to procure his attendance at court on a subsequent occasion.

50 The sentencing judge did not refer to this evidence by the police officer in his remarks on sentence. In his remarks on sentence the sentencing judge described Mr Volodin as “the victim” of the offence charged against MacDonald and found that Mr Volodin, as a result of the threats, was not prepared to give evidence on 12 November 2007. I consider that it is implicit in his Honour’s remarks on sentence that his Honour was satisfied that it was the making of the threats and the resulting intimidation of Mr Volodin which had caused the hearing of the charge against MacDonald not to proceed on 12 November 2007. Accordingly, the making of the threats did actually interfere with the course of justice, even if only temporarily.

51 The sentencing judge in his remarks on sentence and counsel for the respondents in their submissions referred to and relied on the decision of this Court in Jaques.

52 In Jaques the offender, who had been committed for trial by a magistrate on a criminal charge, attended a court office in a country town to complete a form. While in the court office, the offender said, apparently to a court officer, with respect to his being committed for trial, “if I go to gaol for this then when I get out I’m going to kill him (the magistrate)”. The offender was charged with an offence under s 326(1)(b) of the Crimes Act of threatening to cause injury to the magistrate for something lawfully done by the magistrate as a judicial officer.

53 The Court of Criminal Appeal allowed an appeal by the offender against a sentence of two years imprisonment with a non-parole period of one year and sentenced the offender to imprisonment for a term of 12 months to be served by way of periodic detention.

54 The leading judgment in the Court of Criminal Appeal was given by Dowd J, with whom the other members of the Court agreed. In par 12 of his judgment Dowd J said:-

“His Honour is correct that there is a need for deterrence for this sort of offence. However, in the circumstances of an offence which was not made in the face of the court, which was done in an office where there were other people present, and although it appears it was uttered in anger, it was not such as to clearly indicate an intention to commit the offence that was threatened.”

55 What Dowd J said in par 12 of his judgment in Jaques was quoted by the sentencing judge in the present case and the sentencing judge added “to my mind those remarks apply in each of these cases”.

56 It was submitted on behalf of the respondents that the offence in Jaques was worse than the offences in the present case, because in Jaques the offender had made a threat to kill and not merely a threat of reprisals.

57 This Court has, of course, on many occasions cautioned against determining an appeal against sentence by some kind of comparison of the case under appeal with a single other case. However, to the extent to which such a comparison is legitimate, I would not agree that Jaques was worse than, or closely comparable to, the present case. Although the threat made in Jaques was a threat to kill, and in that respect more serious than the present case, it was not a threat that violence would be inflicted by a group of persons known for violence, it was expressed to be conditional, it was not a threat made to the person threatened, the threat would not appear to have induced fear in any one and the threat did not cause any actual interference with the course of justice. In my opinion, the sentencing judge placed excessive reliance on the decision of this Court in Jaques.

58 It was submitted on behalf of the respondents that the Crown in the proceedings for the sentencing of the respondents had conceded that the offences were not so serious as to fall in the middle of the range. I do not consider that this submission should be accepted.

59 The transcript of the proceedings on sentence shows that the Crown’s representative handed up written submissions on sentence. It is apparent that in these written submissions the Crown submitted that the offences were in the middle of the range of objective seriousness for offences of their kind. Immediately after receiving the Crown’s written submissions, the sentencing judge said “I don’t agree that this is an offence at the middle of the range of offences of its type”. The sentencing judge added that his impression of the offences was that they had to be some of the most stupid offences he had ever seen committed. His Honour said that the offences were “spur of the moment” and committed in circumstances where it was inevitable that the offenders were going to get caught and be successfully prosecuted. The Crown’s representative then said:-

“I heard you speak against those submissions (by the Crown); indeed I wouldn’t speak against those observations of your Honour. The only thing I would say is that given all of those, regrettably, the remarks did have the effect to put the witness in fear, so much so that he couldn’t give his evidence.”

60 I would accept that the Crown’s representative said that she would not contest the “observations” the sentencing judge had made about the offences being “spur of the moment” and “stupid”, in the sense indicated by his Honour. I would not, however, interpret what she said as being a withdrawal of the submission that the offences were in the middle of the range of objective seriousness. Almost immediately afterwards the sentencing judge said to the Crown:-

“I don’t accept the proposition that they fall in the middle of the range of offences of their type, I think that they probably fall at the bottom of the range.”

61 I consider that this ground of appeal should be upheld. In the case of each offence, even after allowing for the fact that the offence involved the making of a threat and not the actual causing of injury, that the threat was not a threat to kill, that the threat was not made clandestinely, that there was no clear indication of any intention to carry out the threat and that the threat was made in a location where a number of persons were present who might be able to lend support to the person threatened, and applying the principles which this Court must apply in deciding whether to disturb an assessment by a sentencing judge of the level or degree of objective seriousness of an offence, I consider that it was not open to the sentencing judge to find that each offence fell “toward the bottom of the range”. Each respondent made a threat against a person who was in the foyer of a courthouse waiting to give evidence in a hearing at that courthouse that, because he was going to be a witness, there would be reprisals against him by persons who had a reputation for violence and the making of the threat actually interfered with the course of justice by so intimidating the person threatened that he did not give evidence on that day.

Ground 5 — Each of the sentences was manifestly inadequate

62 It was submitted on behalf of the Crown that each sentence was manifestly inadequate, having regard to the objective seriousness of the offence and the unfavourable subjective circumstances of the offender. Ms Gaudry’s offence was aggravated by her having been on a bond at the time of committing the offence. The sentences imposed by the sentencing judge had failed to give effect to the sentencing purpose of general deterrence in sentencing for public justice offences.

63 It was submitted on behalf of the respondents that there was no universal requirement that a public justice offence should receive a full-time custodial sentence, that the sentencing judge had shown in his sentencing remarks that he was mindful of the need for general deterrence and that a sentence of imprisonment is a significant punishment, even if execution of the sentence is suspended (see Zamagias at [31]). Counsel for MacDonald pointed to what were submitted to be recent signs of improvement in MacDonald’s criminal history and employment history.

64 In my opinion, the sentence imposed on each respondent was manifestly inadequate and this ground of appeal should be upheld. In upholding the fourth ground of appeal I have held that the sentencing judge erred in assessing the objective seriousness of the offences as being towards the bottom of the range for offences of this sort. I accept that the objective seriousness of each offence was below the middle of the range but it was higher than towards the bottom of the range.

65 In the case of each offender, there was almost a complete lack of favourable subjective circumstances. Each offender had stood trial and accordingly did not have the benefit of a plea of guilty, neither had exhibited any remorse and, notwithstanding the faint suggestion of some recent improvement in MacDonald’s criminal and employment history, neither offender had been found by the sentencing judge to have any real prospects of rehabilitation.

Further consideration of the appeals

66 At the conclusion of the hearing of these appeals the Court reserved its decisions.

67 As at the conclusion of the hearing a five-judge Court of Criminal Appeal was reserved on the Crown appeals in R v JW [2010] NSWCCA 49 and R v Carroll [2010] NSWCCA 55, which were concerned with the interpretation of s 68A of the Crimes (Appeal and Review) Act inserted in the Act in 2009. At the conclusion of the hearing of the present appeals the parties were informed that the Court would defer determining the present appeals, until after the judgments in JW and Carroll had been handed down.

68 The judgments in JW were handed down on 22 March 2010 and the judgments in Carroll were handed down on 1 April 2010. The parties to the present appeals were then afforded the opportunity of lodging any further written submissions they wished to make, in the light of the judgments in JW and Carroll. Further written submissions were lodged on behalf of the respondent Gaudry, to which the Crown replied. No further written submissions were lodged on behalf of the respondent MacDonald.

69 Section 68A of the Crimes (Appeal and Review) Act is in the following terms:-

“(1) An appeal court must not:
(a) dismiss a prosecution appeal against sentence, or
(b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again.
(2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal.”

70 In par 141 of his judgment in JW Spigelman CJ summarised his findings on the interpretation of s 68A as follows:-

“141 The following propositions emerge from the above analysis:

(i) The words “double jeopardy” in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.

(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.

(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.

(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.

(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise.”

71 All members of the Court agreed with this analysis by the Chief Justice (see Allsop P at [205] and McClellan CJ at CL, Howie and Johnson JJ at [206]).

72 In Carroll the Court adopted the interpretation of s 68A which had been made in JW (at pars [15] and [16]).

73 Although s 68A of the Crimes (Appeal and Review) Act prevents the Court of Criminal Appeal from exercising a discretion not to intervene on the basis of “double jeopardy”, the Court of Criminal Appeal still has the discretion conferred by s 5D of the Criminal Appeal Act to decline to intervene on other grounds.

74 In her written submissions counsel for Ms Gaudry submitted that there were various grounds, not based on double jeopardy, on which the Court of Criminal Appeal should decline to intervene with respect to the sentence imposed on Ms Gaudry. Many of these grounds depended on Ms Gaudry being at liberty and demonstrating some progress towards rehabilitation, while subject to the suspended sentence. However, on 1 March 2010 Ms Gaudry was arrested on other charges and she has since been in custody, bail refused, on those other charges.

75 Other grounds sought to be relied on by counsel for Ms Gaudry were that the determination of Ms Gaudry’s appeal had been delayed because of the enactment of s 68A and the need for the section to be authoritatively interpreted and that in the meantime Ms Gaudry had served approximately half of the suspended sentence.

76 I do not consider that any grounds have been shown why this Court should, in the exercise of its continuing discretion, decline to intervene and, in my opinion, the Court should allow each Crown appeal and proceed to re-sentence each respondent.

77 I have already referred to the objective facts of the offences and the subjective features of the respondents. I am satisfied that no sentence other than imprisonment would be appropriate. I would, like the sentencing judge, impose a somewhat longer sentence on MacDonald than on Ms Gaudry. I consider that a head sentence of two years and four months should be imposed on MacDonald and a head sentence of two years on Ms Gaudry. The sentences should be served by way of full-time imprisonment and should not be suspended. I would backdate the commencement of the sentences to 16 October 2009, the date on which Judge Toner ordered that the sentences he was imposing should commence. I do not consider that for either respondent there are any special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act.

78 In my opinion, the Court should make the following orders:-

On the appeal against the sentence imposed on the respondent MacDonald:-

1. Appeal allowed.

2. Sentence imposed by Judge Toner on 16 October 2009 quashed.

3. In lieu thereof, sentence the respondent to a non-parole period of one year nine months commencing on 16 October 2009 and expiring on 15 July 2011 and a balance of the term of seven months.

4. Direct that (unless in custody for other reasons) the respondent be released on parole on 15 July 2011.

On the appeal against the sentence imposed on the respondent Gaudry:-

1. Appeal allowed.

2. Sentence imposed by Judge Toner on 16 October 2009 quashed.

3. In lieu thereof, sentence the respondent to a non-parole period of one year six months commencing on 16 October 2009 and expiring on 15 April 2011 and a balance of the term of six months.

4. Direct that (unless in custody for other reasons) the respondent be released on parole on 15 April 2011.

79 HOWIE J: I agree with James J.

80 DAVIES J: I agree with James J.

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