R v McGourty

[2002] NSWCCA 335

CITATION:	R v McGourty [2002] NSWCCA 335
FILE NUMBER(S):	CCA 60354/02
HEARING DATE(S):	13/8/02
JUDGMENT DATE:	13 August 2002
PARTIES :	Regina Sallie Ann McGourty
JUDGMENT OF:	Giles JA at 54, 56; Wood CJ at CL at 1; Levine J at 55

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/41/0111
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL :	Ms E Wilkins (Crown) Mr P Berman SC
SOLICITORS:	S E O'Connor (Crown) D J Humphreys
CATCHWORDS:	CRIMINAL LAW -Crown appeal against sentence - Manifestly inadequate sentence - Kidnapping - Objective criminality - Need for general deterrence - matters of aggravation - Form 1 matters- principle of totality - Subjective circumstances must be kept in perspective - sentence so disproportionate to objective criminality that error assumed. - CRIMINAL LAW -Kidnapping - planning of offence - untested statement - offence may have been spontaneous. - CRIMINAL LAW -sentencing - instinctive synthesis approach - two tiered approach - objective criminality - suspended sentence - not permissible to adjust a sentence downwards to allow it to be non-custodial.
LEGISLATION CITED:	Children (Criminal Procedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Inclosed Lands Protection Act 1901 Summary Offences Act (NSW) 1988 Summary Offences Act 1988
CASES CITED:	AB v The Queen (1999) 108 CLR 101 Dinsdale v The Queen [2000] 175 ALR 315 Everett v The Queen (1994) 181 CLR 295 Pearce v The Queen (1998) 108 CLR 610 Regina v Bavadra [2000] 115 A Crim R152 Regina v Blackman and Walters [2001] NSWCCA 21 Regina v Bloomfield (1998) 44 NSWLR 734 Regina v Dodd (1991) 57 A Crim R 349 Regina v Elhalabi [2001] NSWCCA 516 Regina v JCE [2000] NSWCCA 498 Regina v Kalache [2000] NSWCCA 2 Regina v Lemene [2001] NSWCCA 5 Regina v Morgan [1993] 70 A Crim R 368 Regina v Quatami [2001] NSWCCA 353 Regina v Rushby (1977) 1 NSWLR 594 Regina v Thomson (2000) 49 NSWLR 396 Regina v Thwaites NSWCCA 6 October 1993 Regina v Zamagias [2002] NSWCCA 17
DECISION:	Crown appeal allowed. Sentence below varied. New sentence of 3 years imprisonment, to date from 5 June 2002 and expiring 4 June 2005. Non-parole period of 2 years, to date from 5 June 2002 and expiring 4 June 2004.

60354/02

GILES JA
WOOD CJ AT CL
LEVINE J

Tuesday 13 August 2002

Regina v Sallie Ann McGourty

The victim, a security guard, was robbed at gunpoint by a male offender. He was assaulted and forced into a vehicle by two male offenders the second of whom had a knife. Attempts were made to force him to disclose his PIN number and credit card details. The respondent drove the victim and the two male offenders into bushland and waited in the vehicle while the two male offenders took the victim into the bush where he was threatened and assaulted and later tied to a tree and abandoned. The police arrested the respondent in the motor vehicle. She was unco-operative with the police concerning the whereabouts of the victim or whether the co-offenders were armed. The respondent pleaded guilty to one count of kidnapping, and received a two year suspended sentence. In sentencing, his Honour was asked to take into account an additional four matters on a Form 1. The crown appeals against sentence.

The sentence was manifestly inadequate :
In view of the matters of aggravation and the matters on the Form 1, proper respect was not shown to the principle of totality, and His Honour allowed himself to be inappropriately swayed by the subjective circumstances. Subjective circumstances must be kept in perspective.

R v. Thwaites NSWCCA 6 October 1993, applied . R v. Morgan [1993] 70 A Crim R 368; R v. Lemene [2001] NSWCCA5; R v. Bavadra [2000] 115 A Crim R 152; R v. Dodd (1991) 57 A Crim R 349; R v. Rushby (1977) 1 NSWLR 594 cited.

The sentence was disproportionate to the objective criminality involved in a bad offence of kidnapping, which is one of the most serious crimes in the criminal calendar.

R v. Elhalabi [2001] NSWCCA 516 cited.

Whether error in using two stage sentencing approach and suspending sentence :
Both the instinctive synthesis approach and the two tiered approach, when properly employed, can produce a sentence which balances all of the relevant sentencing interests and principles. However, his Honour erred from the outset by selecting a starting point which failed to reflect the objective seriousness of the crime, by failing to make proper provision for the Form 1 offences, and by provision of cumulative credits for the subjective circumstances. In using the two tiered approach, it is critical that the final sentence is reviewed to ensure that as a whole, it is appropriate to the case at hand. His Honour neglected to do this.

R v. Thompson (2000) 49 NSWLR 396, Pearce v. R (1998) 108 CLR 610 cited

The case was not one for which a suspended sentence could properly have been imposed. It is not permissible to adjust a sentence downwards so as to allow it to be served in a non-custodial environment.

R v. Zamagias [2002] NSWCCA 17 applied, Dinsdale v. R [2000] 175 ALR 315; R v. JCE [2000] NSWCCA 498 cited. R v. Blackman and Walters [2001] NSWCCA 21 distinguished.

Orders:
(1) Appeal allowed.
(2) Respondent sentenced to imprisonment for three years. Special circumstances exist relating to the subjective circumstances of the respondent at the time of the offences, including her medical conditions and her prospects of rehabilitation. A non-parole period of two years is set.

60354/02

GILES JA
WOOD CJ at CL
LEVINE J

Tuesday 13 August 2002

Regina v Sallie Ann McGourty

Judgment

1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to S 5D of the Criminal Appeal Act 1912 against a sentence imposed by his Honour, Judge Goldring, at Wollongong District Court on 5 June 2002 following the respondent's plea of guilty to one count of kidnapping. That offence was committed contrary to the now repealed S 90A of the Crimes Act 1900 which, in the circumstances of this case, carried a maximum penalty of 20 years imprisonment.

2 In sentencing the respondent his Honour was asked to take into account additionally four matters on a Form 1. The sentence imposed was one of two years imprisonment backdated for one week and expiring on 28 May 2004, the remainder of which was suspended pursuant to S 12 of the Crimes (Sentencing Procedure) Act 1999 on condition that the respondent enter into a good behaviour bond for the term of the sentence.

Facts:

3 At about 6.45am on Monday, 5 March 2001 the victim, a 51 year old security guard from Sydney, completed his shift as the night guard at a building site in the suburb of Warrawong. He went to an ATM machine located in the Westfield Warrawong precinct where he withdrew a sum of money and then walked back to the construction site. En route he was attacked by a male offender who pointed a pistol at him and demanded money. He handed over the $200 in cash which he had taken from the ATM machine and was then escorted to an on-site toilet block where he was assaulted by that offender.

4 While there, further demands were made, which he refused. An on-site worker heard the commotion and went to investigate. He was similarly ordered into the toilet block at gunpoint.

5 A short time later another male offender, who was armed with a knife, arrived at the toilet block. After further demands, which were resisted, the two offenders ordered the on-site worker to the ground and then took the victim with them at gunpoint to a waiting vehicle which was driven by the respondent.

6 The victim was forced into the rear of the vehicle. He spoke to the respondent saying, "Please release me, release me". The respondent's reply was, "Shut up, shut up". He was then pushed down in a space behind the front seat and a blanket was placed over his head. He tried to get up because he could not breathe properly, but he was pushed down again. He was struck to the head on a number of occasions while being driven around for a lengthy period, during which further demands were made for his PIN number and credit cards. He was threatened with torture and death if he did not comply with these requests.

7 The respondent eventually drove the vehicle into dense bushland at Mount Kembla and waited in the vehicle while the two offenders took the victim into the bush. There he pleaded for his life. One of the male offenders broke his right wrist while tying his hands together. They then tied him to a tree with a rope, blindfolded him, taped his mouth, and abandoned him in the bush. Not surprisingly, he believed that he was likely to die.

8 The police were alerted by a neighbour and drove to the scene. Upon their arrival they observed the two male offenders walking from the bush. On seeing the police they turned and ran back into the bush. The respondent, however, was arrested in the motor vehicle. She did not provide any assistance to the police either as to the victim's whereabouts, or as to his condition, or as to whether the offenders were armed. She was conveyed to the Port Kembla Police Station.

9 The victim was eventually located by the Police Dog Squad. He was taken to Wollongong Hospital where he was admitted to surgery with respect to the fracture of his wrist. The detail of his injuries were set out in a certificate from the treating doctor and they were described as being of a serious nature.

10 Some $800 was taken from the victim by way of transactions using his ATM card between 6.18am and 7.19am that day. This sum was later found in the respondent's bag.

11 All four of the Form 1 offences were committed on 19 February 2001. They comprised offences of break and enter a building and commit a serious indictable offence contrary to S 112(1) of the Crimes Act 1900 - maximum penalty, fourteen years imprisonment; the possession of housebreaking implements, contrary to S 114(1)(b) of the Crimes Act - maximum penalty, seven years imprisonment; having custody of a knife in a public place, contrary to S 11(C)(1) of the Summary Offences Act 1988 - maximum penalty for a first offence, a fine of $550; and enter prescribed premises without lawful excuse, contrary to S 4(1) of the Inclosed Lands Protection Act 1901 - maximum penalty, a fine of $1,100.

12 The circumstances which gave rise to these offences are as follows: At 2.35am on 19 February 2001 a security alarm was activated at the premises of the BHP in Unanderra. Security guards alerted by the alarm noticed a blue Commodore sedan parked close to bushes in a car park. They observed the respondent hiding in the bushes directly in front of the vehicle, about 100 metres inside the boundary of the premises. Upon being challenged, the respondent emerged from the bushes. Her co-offender managed to escape by climbing over a fence.

13 Two large screw drivers, a small shifting spanner, three mobile phones, two black shirts, a number of plastic bags, a Stanley knife, a SWISS army knife, two pairs of scissors, a roll of electrical tape and three webbed straps were located in a bag next to the respondent. Also located next to her was an IBM laptop computer which had been stolen from the BHP premises. A check of those premises revealed that a front door had been jemmied open. At the scene, the respondent refused to supply police with her details or with any details of the co-offender. The search of her bag revealed that it contained a knife.

Subjective Features of the Respondent:

14 The respondent was born in England and came to Australia with her family when she was four years of age. She was 41 years old at the time of the offences and had no previous convictions. She was unemployed and had previously been involved in an unstable marriage with a man who was allegedly part of a bikie gang and who had used alcohol and drugs excessively.

15 In 1996 she had developed hepatitis C. She was also said to have been suffering from asthma. Her husband's infidelity and their failure in a joint business venture led to her being diagnosed by her treating doctor as suffering from a depressive illness.

16 For 20 years or more, however, she had been a manager of a pharmacy in Armidale.

17 Shortly before these offences she had met the co-offender, Mark Jenkin, with whom she had apparently become infatuated and with whom she had moved to Wollongong. She became disillusioned with this relationship when she discovered that he was relapsing into drug abuse. Nevertheless she remained with him, on her account, because she did not have any money and because she was too ashamed to return to Armidale.

18 Since being charged she has apparently formed a new, supportive and committed relationship and his Honour concluded in those circumstances, having regard to her previous good character, that she had extremely good prospects of not re-offending.

The Appeal:

19 The Director of Public Prosecutions submits that his Honour erred in a number of respects and as a result arrived at a sentence which was manifestly lenient for a serious offence of kidnapping which carried a maximum sentence of 20 years, particularly having regard to the Form 1 offences. In answer to this proposition, Mr Berman SC drew our attention to the Judicial Commission's statistics which showed that, of the offenders who had been sentenced to full time custody for an offence of kidnapping, 22% had received a sentence of two years or less. At the other end of the scale, however, 27% of such offenders had received sentences of six years or more. So understood, and bearing in mind the wide range of objective and subjective circumstances seen in the cases included in the statistical sample, as well as the oft repeated caution that such tables are to be used with some care and are, in fact, less helpful than a review of decided cases (Regina v Bloomfield (1998) 44 NSWLR 734), this submission carries very little weight.

20 The sentencing exercise which his Honour was obliged to carry out needed to be considered in the light of the fact that the respondent had lent herself to a joint criminal enterprise whose objective criminality was very substantial, indeed towards the top of the range for an offence of the kind involved. In the course of it, the victim was seriously mistreated and subjected to an ordeal that could only have been terrifying, particularly having regard to the fact that it was prolonged.

21 The offence - leaving aside entirely the Form 1 matters for a moment - was aggravated by a number of factors including the circumstances that a pistol and knife were used; that the victim was threatened with death and torture; that he was repeatedly assaulted and sustained serious injury and eventually was abandoned in the bush and tied to a tree. He could very easily have lost his life.

22 Moreover, he was working in an occupation which left him particularly vulnerable to attack. As such, the present offence falls within that category of case which calls for a significant element of general deterrence: Regina v Thwaites NSWCCA 6 October 1993.

23 Kidnapping, it is additionally to be noted, has been said to be one of the most serious offences in the criminal calendar and is itself one where the need for general deterrence must prevail over subjective circumstances: See Regina v Elhalabi [2001] NSWCCA 516. His Honour distinguished that case upon the basis that the present respondent had not been involved in the planning of the offence. It was however a case which did not involve violence and where the maximum penalty available was fourteen years imprisonment.

24 So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to a psychologist. Recently this Court has criticised the practice of placing material of this kind before sentencing judges, in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of a record: Regina v Quatami [2001] NSWCCA 353, at paras 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ).

25 I whole heartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested.

26 Whether or not there was any degree of pre-planning to abduct the victim from his place of work if he failed to supply his credit cards and PIN numbers, seems to me, in any event, to be beside the point.

27 It is obvious that the respondent lent herself as a driver to an intended robbery. Although those who were involved in the planning of that offence may not have set out with any specific intention of abducting their victim, it is clear that when resistance was offered, each of the offenders, including the respondent, decided that this is what should occur. Thereafter the respondent rejected the victim's requests for help and she willingly drove him and the two assailants to a remote location and knowingly left him there.

28 If as the respondent suggested the kidnapping was in fact a spontaneous event on the part of all offenders, then there was no proper basis for distinguishing between them on the ground that the other offenders, but not the respondent, involved themselves in a premeditated plan to abduct the victim.

29 While it may be accepted that the respondent's objective criminality was not as great as those who actually threatened and assaulted the victim, it remained significantly high. In summary, she was part of a serious joint enterprise. She did not withdraw from it, and she added her own contribution in telling the victim to be quiet when he pleaded for his life.

30 She has demonstrated no remorse or contrition for the offence. Moreover, her initial response to Constable Wiggins was totally uncooperative and clearly designed to mislead police, even though later she did disclose that the victim had been left in the bush.

31 In view of the several matters of aggravation identified, and taking into account the matters on the Form 1 which should have been reflected in the sentence by way of some additional punishment, if proper respect was to be shown to the principle of totality in accordance with the decisions of this Court in Regina v Morgan [1993] 70 A Crim R 368; Regina v Lemene [2001] NSWCCA 5; and Regina v Bavadra [2000] 115 A Crim R152. I am driven to the clear conclusion that error, in principle, has been shown.

32 I can only conclude that his Honour allowed himself to form an unduly favourable assessment of the respondent's criminality and also to be inappropriately swayed by her subjective circumstances involving, as they did, the plea of guilty; her previous good character; the somewhat chaotic earlier lifestyle into which she had fallen; and the prospect of rehabilitation in the presence of a more supportive relationship.

33 In relation to her earlier lifestyle, I do observe that she was a mature woman who was able to determine her own destiny. I do not see that she can claim anything by way of mitigation, in choosing to associate herself with a member of a bikie group and thereby to descend into activities involving criminality. To assume that she was a vulnerable and defenseless person unable to think for herself does her a disservice and involves something of an overstatement.

34 Clearly it was a necessary and appropriate for his Honour to take the subjective matters into account, but they had to be kept in perspective. They should not have become the reason for imposing a sentence which, in my view, was weakly merciful and which did not properly reflect the objectives of punishment, retribution and deterrence, both general and personal.

35 The result, so it seems to me, was to produce a sentence - whether suspended or not - that was not reasonably proportionate to the crime. Rather, it was of the kind which offends the principles enunciated in decisions such as Regina v Dodd (1991) 57 A Crim R 349 and the earlier decision in Regina v Rushby (1977) 1 NSWLR 594.

36 I do accept that before the court can intervene in a Crown appeal it must be satisfied of the existence of either patent or latent error of law. More is required than the conclusion that, if the court was itself sentencing at first instance, it would have taken a different approach. It is for that reason, that Crown appeals need to be approached with special care. See Everett v The Queen (1994) 181 CLR 295 and Regina v Kalache [2000] NSWCCA 2.

37 I am, however, satisfied that error has here been disclosed in that the sentence was so disproportionate to the objective criminality, after taking into account the subjective circumstances, that error of law must be assumed.

38 It was submitted by the Director of Public Prosecutions, independently of the foregoing, that his Honour erred in adopting a two-stage sentencing process, instead of an intuitive approach, and in deciding that the sentence was one that could properly be suspended.

39 As to the former, it appears that his Honour began with a calculation that the kidnapping offence was such that the co-offenders should have received sentences in the range of seven to ten years, which he then reduced to three years in the case of the respondent by reason of an implicit assessment, that their criminality was more than twice as serious as hers. That sentence he then reduced to two and a half years for her previous good character, and then to two years by allowing a 20 percent discount, on the reduced sentence, for the plea of guilty.

40 In my view, this approach disclosed error, from the outset in so far as it involved the selection of a starting point, which failed significantly to reflect the objective seriousness of the respondent's involvement in the crime.

41 It was then followed, in my view, by a failure to make proper provision for the Form 1 offences to which, at best, lip service seems to have been given, and finally by the provision of cumulative credits for the subjective circumstances.

42 Support for the instinctive synthesis approach of sentencing is not confined to the dissenting judgment of McHugh J in AB v The Queen (1999) 108 CLR 101, nor is it necessarily inconsistent with an approach that first assesses the objective gravity of the offence, and then considers the subjective features which operate in mitigation.

43 The proper approach to these matters was helpfully analysed by the Spigelman CJ in Regina v Thomson (2000) 49 NSWLR 396 to 403. What has to be achieved, by which ever method of sentencing is adopted, is a sentence which, in the end, pays proper regard to and ensures a proper balance of, all of the relevant sentencing interests and principles. Both the instinctive synthesis approach and the two-tiered approach, when properly employed, can produce that result.

44 However with a two-tiered approach, care has to be taken that the arithmetic exercise applied, particularly where a discount is made cumulative upon another discount, does not end up distorting the process. Sentencing never has been, and cannot be, reduced to a simple arithmetic process; Pearce v The Queen (1998) 108 CLR 610.

45 If the two-tiered approach is used, with the obvious advantage which it has, of focusing upon a starting point sentence which would reflect the objective seriousness of the offence, and adjusting it for the subjective circumstances, it is critical that the final sentence then be reviewed to ensure that as a whole, it is appropriate to the case in hand. In this case it appears to me that his Honour neglected that final step.

46 Additionally I am persuaded that the case was not one for which a suspended sentence could properly have been imposed. First, that option is only available where a sentence of not more than two years was appropriate: S 12(1) of the Crimes (Sentencing Procedure) Act 1999. The present is not such a case, in my view, for the reasons mentioned. It was accordingly not to the point, notwithstanding the respondent's submissions that, for reasons not involving any fault on her part, community service, periodic detention and home detention were considered to be unavailable options at the time of sentencing. To have gone down a peg for that reason would have constituted sentencing error. The clear duty of his Honour was to impose an appropriate sentence to reflect the objective and subjective circumstances and not to adjust the sentence downwards so as to permit it to be served outside a custodial environment. In this regard I would adopt the observations of Howie J in Regina v Zamagias [2002] NSWCCA 17 at para 32:

“ Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate. ”

47 The case of Regina v Blackman and Walters [2001] NSWCCA 21, which was relied upon by the respondent as support for the adoption of a non-custodial option, provides no assistance. That was very much a case dependent on subjective circumstances unique to the two offenders. Each was an immature young man who had been involved as a junior partner in a very serious enterprise, who had demonstrated a remarkable level of rehabilitation, who had admitted his offence immediately, who had assisted the authorities and had demonstrated geneuine remorse. By reason of their assistance, one would have been required to serve any sentence on protection, and the other offender was subject to the special provisions of the Children (Criminal Procedings) Act 1987.

48 The purpose for which sentences can properly be suspended, and the sentencing exercise which should be followed were noted in Dinsdale v The Queen [2000] 175 ALR 315, Regina v JCE [2000] NSWCCA 498 and recently, and most helpfully, in Regina v Zamagias.

49 The personal considerations applicable to the respondent, when considered in the light of the very serious objective features of her crime, would not, in my view, in accordance with those decisions, have justified an order for suspension, even if a sentence for two years had been appropriate.

50 For these reasons I am persuaded that manifest leniency has been demonstrated to the point where error of law has been established. In view of the extent of that leniency, the case is not one which permits an exercise of the discretion attaching to Crown appeals.

51 Making due allowance for the principle of double jeopardy, I would propose that the appeal be allowed, that the sentence below be varied and that the respondent be sentenced, taking into account the matters on the Form 1, to imprisonment for three years to date from 5 June 2002 and to expire on 4 June 2005. I consider it appropriate to backdate to the date upon which sentence was imposed by his Honour, in order to make allowance for the eight days presentence custody, and also for the fact that the respondent has been serving a suspended sentence for approximately 9 weeks, subject to a bond.

52 I would find special circumstances to exist relating to the personal problems which had confronted the respondent at the time of the offences, to her medical condition, and to the assessment that she has favourable prospects of rehabilitation which would be advanced by an extended opportunity for supervision on parole.

53 I would accordingly fix a non-parole period of two years also to date from 5 June 2002 and to expire on 4 June 2004. Upon expiry of that non-parole period, I would direct the release of the respondent on parole on the standard conditions, in accordance with S 50 of the Crimes (Sentencing Procedure) Act.

54 GILES JA: I agree.

55 LEVINE J: I agree.

56 GILES JA: Those will be the orders of the Court.

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