R v Wran

[2016] NSWSC 1015

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Wran [2016] NSWSC 1015
Hearing dates:	14 July 2016
Date of orders:	26 July 2016
Decision date:	26 July 2016
Before:	Harrison J
Decision:	(1)    For the offence of harbouring, maintaining and assisting Michael Lee, knowing that he did murder Daniel McNulty on 10 August 2014, sentence of imprisonment for a fixed term of 1 year commencing on 13 August 2014 and expiring on 12 August 2015.  (2)    For the offence that on 10 August 2014, being in company with Michael Lee and Lloyd Edward Haines, did rob Brett Fitzgerald of $650, sentence of imprisonment for 4 years commencing on 13 August 2014 expiring on 12 August 2018 with a non-parole period of 2 years expiring on 12 August 2016 and a balance of term of 2 years expiring on 12 August 2018.
Catchwords:	CRIMINAL LAW – sentence – robbery in company –where offender part of a conditional agreement to rob – where not known that co-offenders were carrying weapons – where victim died from stab wounds – accessory after the fact to murder – where offender harboured principal for three days and failed to bring him to the attention of police – mental illnesses and significant drug addiction at the time of the offences – good prospects of rehabilitation – special circumstances – limited scope for general deterrence – genuine remorse – extra curial punishment – newspaper campaign – damaging headlines and articles exposing offender to psychological distress and unwanted attention from inmates and prison staff – harsh custodial conditions – where significant time spent in protective custody and solitary confinement –delay in bringing proceedings
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1 Kenny v R [2010] NSWCCA 6 R v Foster (1995) A Crim R 517 R v Henry (1999) 46 NSWLR 346 R v Howard [2001] NSWCCA 309 R v Johnson [2014] NSWSC 1254 R v Patison [2003] NSWCCA 171; (2003) 143 A Crim R 118 R v Purtill [2012] NSWSC 566 R v Rose [2004] NSWCCA 326 R v Scowen [2007] NSWSC 792 R v Ward [2004] NSWSC 420 R v Wilhelm [2010] NSWSC 378 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 392 Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313
Category:	Sentence
Parties:	Regina (Crown) Harriet Langley Wran (Offender)
Representation:	Counsel: P McGrath SC (Crown) P Boulten SC with K Edwards (Offender)   Solicitors: Solicitor for Public Prosecutions (Crown) Giddy & Crittenden (Offender)
File Number(s):	2014/238659
Publication restriction:	Nil

Judgment

1. HIS HONOUR: On 6 July 2016, Harriet Langley Hickson Wran pleaded guilty to robbery in company and to being an accessory after the fact to murder. Those pleas were accepted by the Crown in full satisfaction of Ms Wran’s criminal involvement in a series of events that included the murder of Daniel McNulty and the wounding of Brett Fitzgerald on 10 August 2014 at Redfern. Ms Wran had originally been charged with Mr McNulty’s murder but that charge was withdrawn by the Director of Public Prosecutions.

2. The charge of being an accessory after the fact to murder carries a maximum penalty of 25 years imprisonment. The offence of robbery in company carries a maximum penalty of 20 years imprisonment. Neither offence attracts a standard non-parole period.

3. Ms Wran is now to be sentenced for the offences to which she has pleaded guilty in accordance with a detailed set of agreed facts. Those facts are as follows.

Agreed facts

4. As at 10 August 2014, Ms Wran and Michael Lee had been going out for approximately two weeks. She was addicted to methylamphetamine. Mr Lee was a user of ice and heroin. Mr Lee had a friend named Lloyd Haines who was also a drug user. Ms Wran and Mr Lee had been staying with various friends in the days before the robbery.

5. On 10 August 2014, Ms Wran asked her friend Andrew Hobbs if she and Mr Lee could stay at his place for a couple of days. Mr Hobbs picked them up from Surry Hills and drove them, with their belongings, to his house at Darlington that afternoon. Ms Wran withdrew $500 from her bank account at Surry Hills on the same day. Later that afternoon Mr Lee arranged to meet Mr Haines at Redfern for the purpose of trying to obtain drugs.

6. Mr Lee and Ms Wran went to Redfern and met Mr Haines. Ms Wran had not previously met Mr Haines. Ms Wran wanted to obtain ice for her personal use. Ms Wran later told police that she and Mr Lee had $70 between them for this purpose. That was only enough money for one “point” of ice.

7. At about 6.30pm on 10 August 2014, Mr Haines took Mr Lee and Ms Wran to some units in the Department of Housing complex at 55 Morehead Street, Redfern looking to buy drugs. They were unsuccessful in locating anyone who would supply them with drugs. They went to another location in the same complex. Mr Lee was carrying a small black satchel. Mr Haines was wearing a grey hooded jumper. The last CCTV sighting of the three was at 7pm.

8. Daniel McNulty and Brett Fitzgerald lived in Unit B30, 55 Walker Street, Redfern. Unit B30 is on the ground floor. Mr McNulty supplied drugs from that unit. This fact was known to people to whom they supplied and, to an extent, the local community. Mr Lee and Ms Wran did not know Mr McNulty or Mr Fitzgerald.

9. Mr Haines knew that Mr McNulty supplied drugs from his unit. He had previously bought ice from him there. Mr Haines told Mr Lee that it was unlikely that they would let him (Mr Haines) into the unit or sell drugs to him. Mr Haines had in fact tried to rob the occupants of the unit some weeks before.

10. After their unsuccessful attempts to purchase drugs elsewhere Mr Lee, Mr Haines and Ms Wran approached Mr McNulty’s unit. Ms Wran knocked on the door. Some short time before reaching the outside of the unit the three of them had formed an agreement to rob its occupants.

11. After knocking on the door of the unit, Ms Wran gave a name. Mr McNulty told her to go to a side window. She did so. She then went back to the front door. Mr McNulty said to Mr Fitzgerald, “Don’t worry, it’s just a girl”. He then unlocked the door of the unit to let Ms Wran enter. She stepped inside. Mr Lee and Mr Haines immediately entered behind her. It was only at that time that Mr McNulty and Mr Fitzgerald became aware that Ms Wran was not alone. Mr Lee was now holding a knife. Mr Haines was wearing a balaclava.

12. Mr Fitzgerald immediately believed it was a robbery and sought to arm or defend himself with a metal shoe rack. A sudden violent struggle then broke out involving all four men. Mr Lee and Mr Haines demanded that Mr Fitzgerald give them money and drugs. Mr Fitzgerald fought back against them.

13. Mr Lee and Mr Haines forced Mr McNulty and Mr Fitzgerald from the lounge room into a bedroom. During the robbery Mr Lee stabbed Mr McNulty causing a wound that penetrated his chest. He also stabbed Mr Fitzgerald a number of times including to the stomach and neck. Mr Haines picked up a hammer which was in the unit and struck Mr Fitzgerald to the head. Mr Haines continued demanding money and drugs from Mr Fitzgerald.

14. While this was happening Ms Wran remained in the lounge room. She did not attack either of the victims. Mr Fitzgerald did not see or hear her do anything to encourage the others during the robbery. Mr Lee and Mr Haines located and removed money and drugs that were kept under the mattress in Mr Fitzgerald’s bedroom. They then ran from the unit and Ms Wran followed.

15. Ms Wran was neither aware of the presence of the knife produced by Mr Lee, nor that Mr Haines had donned a balaclava, until after they had entered the unit.

16. When Ms Wran knocked on the door, the plan was for her to attempt to obtain more drugs from the occupants than she and Mr Lee had money for. The presence of two men including Mr Haines, who was a large man, was intended to threaten or frighten Mr McNulty and Mr Fitzgerald into parting with their drugs without the need for violence. If this was unsuccessful, the plan was to rob them of drugs and money with the use of some physical force if necessary. It was believed that not much force if any would be needed as Mr Haines had told Mr Lee that when he had previously taken drugs from the occupants he had only needed to slap or punch one of them.

17. Because Ms Wran was unaware of the presence of the knife until after Mr Lee had entered the unit behind her, she did not contemplate that a wounding or stabbing, or other substantial injury might occur during the robbery.

18. Ms Wran made two calls to 000 from inside or near the unit. The first was at 19:17:36 and lasted for 13 seconds. The call was put through to an emergency operator and recorded. In the recording the emergency operator can be heard asking which emergency service the caller wanted, before the call was terminated. The second call to 000 was at 19:18:21 for three seconds and was not recorded.

19. After leaving the unit, Mr Lee and Mr Haines divided the money and drugs stolen from the unit. Mr Lee and Ms Wran then separated from him and took a taxi from Elizabeth Street, Redfern at 7.20pm, arriving at Mr Hobbs’ residence at 7.28pm.

20. Mr Fitzgerald checked on Mr McNulty who was not responsive. He attempted unsuccessfully to call an ambulance. An ambulance ultimately arrived at 7.38pm. Mr Fitzgerald was found in the car-park of the unit complex and treated by ambulance officers. He was taken to St Vincent’s Hospital suffering five wounds, including the stab wounds to his abdomen and neck, and lacerations to his head from hammer blows. He underwent surgery. Mr McNulty was located within the unit. He had suffered fatal stab wounds. He also had a stab wound to the front of his left thigh.

21. Ms Wran and Mr Lee stayed at Mr Hobbs’ place that night and the next day. During this time Ms Wran and Mr Lee became aware from media reports that one of the occupants of the unit had died from stab wounds. Ms Wran allowed Mr Lee to stay there during this time believing him to have been involved in the stabbing.

22. On 12 August 2014, Ms Wran and Mr Lee caught a train to Liverpool. At Liverpool Station Ms Wran was stopped and detained for smoking on the platform. She was searched and questioned for several minutes. During most of this time Mr Lee was waiting around the corner. Ms Wran said nothing to the police about him. She was served with infringement notices and released. She thereafter stayed in Mr Lee’s company. That night Ms Wran and Mr Lee stayed together at another house somewhere in south-west Sydney.

23. The basis of Ms Wran’s liability for the harbouring, maintaining and assisting offence is that, having participated in the robbery, she later became aware of the stabbing murder of Mr McNulty. She maintained and harboured Mr Lee, believing him to be involved in the stabbing, first at the house of her friend Mr Hobbs, and thereafter remained in his company in private and in public. She did not draw him to the attention of police at Liverpool Station on 12 August 2014 or thereafter before her arrest the next day.

24. On 13 August 2014, Ms Wran and Mr Lee caught a train to Liverpool Station. Upon arrival at the station they were recognised as suspects in the aggravated robbery and were arrested.

25. Ms Wran provided a statement to police in which she said, among other things, that she went to the unit to purchase drugs, that she was high on drugs at the time and desperate for more and that she had $70 with which to purchase them. Ms Wran said that she was unaware of any plan to rob the occupants of the unit and was shocked at what happened.

26. Ms Wran has remained in custody since 13 August 2014.

Comment

27. For reasons that are both regrettable and unfortunate, these proceedings have attracted significant public attention. It seems clear to me that that is to a considerable extent the result of a misunderstanding, fuelled to a degree by ill-informed reporting in some sections of the media, about Ms Wran’s participation in the relevant events and the basis of her pleas of guilty to the charges for which she is now to be sentenced. There is in addition, as far as I can judge, a concern or perception that the withdrawal of the serious charge of murder and the substitution of the current charges is the result of some kind of special treatment or favouritism. It is critical in this context to observe that the acceptance by prosecuting authorities in New South Wales of pleas of guilty to substituted charges is a fact of life in the criminal justice system. It occurs regularly. It is unexceptional. Unlike some countries that do not operate under the rule of law, prosecutorial discretion in Australian jurisdictions is completely unfettered and is exercised without reference to an alleged offender’s family background, public standing, wealth, status, religion, race or political affiliations.

28. The fact that the events that generate the charges faced by Ms Wran include the death of Mr McNulty and the serious wounding of Mr Fitzgerald cannot realistically be ignored as background facts. Indeed, those events and Ms Wran’s knowledge of the death of Mr McNulty are directly relevant to an assessment of her liability as an accessory after the fact. However, Ms Wran cannot lawfully be punished for Mr McNulty’s death or for the serious injury to Mr Fitzgerald due to the operation of the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 392. Ms Wran cannot be sentenced on the basis of any fact that would expose her to a liability for a more serious offence, such as that she contemplated the possibility of an injury to Mr McNulty amounting to a wound, however slight. Moreover, Ms Wran cannot be sentenced on the basis that a reasonable person in her position would have considered the agreement to rob as dangerous and therefore creating the appreciable risk of serious injury: see Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. It would serve well for all those who are concerned to report upon these proceedings, or who wish to take an informed interest in the outcome, to bear these things constantly and fairly in mind.

Objective gravity

Robbery in company

29. The factual circumstances of this offence are conceptually complex and transcend a simple agreement to inflict force in order to steal property. Ms Wran is to be sentenced for her role in what is a conditional agreement to rob. The agreement was formed spontaneously after she and her companions attended the Redfern unit complex in an unsuccessful endeavour to purchase ice. The agreement is unusual in the sense that Ms Wran hoped to be able to pay at least some money for the drug to the ultimate victims and contemplated the infliction of physical violence only as a last resort.

30. Robbery is committed by taking property with force or threat of force at a time proximate to the taking: R v Foster (1995) A Crim R 517. Ms Wran agreed that the threat of force would be used as part of an attempt to obtain more drugs than she and her companions could afford to pay for with $70 that she possessed at the time. The threat was the presence of Mr Lee and Mr Haines. If the plan had succeeded, $70 would have been exchanged for drugs worth more than that.

31. The agreement contemplated escalation if the occupants of the unit refused and the associated use of some physical force. However, as the agreed facts make clear, there is no evidence that Ms Wran contemplated the use of any significant physical force. Nor did Ms Wran contemplate the possibility of wounding, stabbing or any other substantial injury. The agreed facts make it clear that Ms Wran did not contemplate any injury at all. Those facts note that Mr Haines told Mr Lee that little, if any, force would be used and that Mr Haines had previously robbed the occupants using just a slap or a punch.

32. The facts also reveal that there was initially not even a plan to rob. Ms Wran attended Redfern to buy drugs and spent some time attempting to do so. The agreement to rob was formed a short time before they all arrived at the unit. It was formed quickly, spontaneously and impulsively. Ms Wran did not plan it. Nor was she aware that her co-offenders possessed weapons or that Mr Haines carried a disguise. Ms Wran made no attempt to conceal her own identity.

33. Ms Wran did not know her co-offenders well. There was no reason based upon either history or the nature of the relationship that suggests that Ms Wran had any reason to know or to suspect that these men were likely to inflict the kind of extreme violence that in fact occurred or that they were capable of doing so.

34. Ms Wran took no part and played no role in the events that unfolded once entry to the unit had been gained. It is not suggested that she participated in any violence or that she encouraged it. Once entry to the unit had been gained, the robbery escalated well beyond the scope of the offence to which Ms Wran was a party. Indeed, it escalated unexpectedly and quickly in a manner that she did not anticipate or foresee. In simple terms, the offence that unfolded was not the offence that Ms Wran had agreed to commit. Mr Lee and Mr Haines entered the unit before Ms Wran was able to speak to the occupants or either of them so as to attempt to obtain drugs as planned without any physical violence. The events that followed were therefore the direct result of the decision by Mr Lee and Mr Haines to divert from the common understanding and to charge into the unit armed with a knife and in disguise. That had the effect of giving Mr Fitzgerald the impression that he was about to be attacked and precipitated the violent struggle that then followed.

35. Ms Wran did not take property from the unit. The property taken consisted in $650 and an unspecified amount of drugs. This was not trivial but was not large. It was shared among the co-offenders.

36. She was shocked by what occurred and patently concerned for the welfare of the occupants. She called the emergency telephone number on two occasions and only terminated her calls when ordered by Mr Lee to do so.

37. It was submitted by Mr Boulten SC who, with Ms Edwards of counsel, appeared for Ms Wran that, notwithstanding the tragic outcome of the robbery, the objective gravity of the offending for presently relevant sentencing purposes was at the low end of the spectrum.

38. The Crown did not offer a submission expressed in terms of the objective gravity of the offending but did quite properly make reference to the principles enunciated in the guideline judgment of R v Henry (1999) 46 NSWLR 346. With express reference to the appropriate sentencing range, the Crown submitted in terms as follows:

“In all the circumstances, and when taking into account aggravating and mitigating factors, and the offender’s drug addiction and mental conditions (dealt with below), the Crown submits that the guideline of a head sentence towards the lower end of the four to five year range remains applicable to [Ms Wran’s] role in this offence.”

39. The Crown also made an important and helpful submission with significance far greater than the particular circumstances of this case. It is a submission that ought to resonate in the wider community and bears repetition in full as follows:

“The facts demonstrate that, as with so many joint criminal enterprises to rob, particularly those poorly planned robberies committed by people desperate to obtain drugs or money to fuel a drug habit, a situation can rapidly escalate out of control with terrible consequences. In this instance, while [Ms Wran] is not criminally liable for these consequences, the full facts of what occurred arising out of the robbery offence in which she knowingly participated should serve as a reminder and general deterrence to those minded to embark on what might be wrongly thought to be simple or [so-called] ‘non-violent’ robberies.”

40. In my opinion, this offence lies towards the lower end of objective seriousness for offences of its kind.

Accessory after the fact

41. Accessory after the fact to murder is a serious offence carrying a significant maximum penalty. It is an offence encompassing what has been described as a “wide variation in possible degrees of culpability”: R v Scowen [2007] NSWSC 792 at [19].

42. In summary, Ms Wran’s conduct can be described as harbouring Mr Lee for a period of three days and failing to bring him to the attention of the police. For two of the three nights, Mr Lee stayed with Ms Wran at Mr Hobbs’ house. Ms Wran had herself known Mr Hobbs only for a short period of weeks and had made her own arrangements to stay with him. There is no suggestion that it is any part of the Crown case that the harbouring involved any active attempt to conceal Mr Lee from public view. Indeed, the agreed facts are to the contrary. Nor was Ms Wran involved in any plan or attempt to facilitate Mr Lee’s escape from the jurisdiction or to assist him to evade detection or arrest. Ms Wran did have the opportunity to expose Mr Lee at Liverpool Station on 12 August 2014 but there is no suggestion that she lied to the police on that, or indeed on any, occasion in an attempt to conceal his whereabouts. There is also no suggestion that Ms Wran delayed or thwarted Mr Lee’s ultimate apprehension by the police to any extent once he became a significant suspect.

43. Many of the relevant considerations touching sentencing for this offence have been summarised by Hamill J in R v Johnson [2014] NSWSC 1254. On one view of Ms Wran’s criminal conduct in this case, the offence unfolded while she was significantly affected by drugs or the desire to use them and became or remained Mr Lee’s disinterested companion during three days of somewhat pathetically unremarkable inactivity. Ms Wran’s own unchallenged evidence also makes it plain that one of Mr Lee’s associates had indirectly threatened her, at least implicitly, about giving Mr Lee up to the police. Ms Wran’s evidence also left me with the distinct impression, hardly surprising in the circumstances, that remaining with Mr Lee was not something she would have done if she had had the presence of mind and the emotional wherewithal to do otherwise. As Dr Battisti has pointed out in one of his reports tendered in these proceedings, Ms Wran was highly dependent upon Mr Lee due to a combination of factors, including her addiction, exhaustion, eating disorder and generally chaotic lifestyle. Furthermore, during at least one of the days when Ms Wran remained with Mr Lee, she was bedridden with a urinary tract infection and depended upon Mr Lee for assistance.

44. I was referred by both counsel to a very large range of cases in which offenders have been sentenced for the offence of accessory after the fact to murder. Sentences for this offence range from terms of imprisonment for the most serious examples down to non-custodial or suspended sentences at the lower end of seriousness. R v Purtill [2012] NSWSC 566 is one such case in which a sentence of imprisonment was imposed for an offender who assisted his brother to clean up the crime scene, to remove the deceased’s body from the premises, to conceal it and take it to a bushland location where he buried it, and to dispose of the deceased’s car and use his credit cards so as in each case to put investigating police off the scent. The present case is far removed from anything such as that.

45. Senior counsel for Ms Wran submitted that her criminality was on a par with cases in which sentences of full-time imprisonment have not been imposed. He submitted that Ms Wran’s conduct fell objectively into the lower end of criminal conduct for offences of this type. There is no suggestion that Ms Wran had any involvement in the destruction or concealment of a body. Nor is it suggested that she tampered with the crime scene or other evidence in order to disguise the commission of a crime: see R v Ward [2004] NSWSC 420. In all it would appear that Ms Wran stayed with Mr Lee out of a sense of misplaced loyalty and the other factors identified by Dr Battisti.

46. The Crown conceded that Ms Wran’s offence was towards the lower end of the scale of objective seriousness. Her acts of assistance to Mr Lee were quite few and over a very short period. The Crown submitted, however, that the offence is made more serious as Ms Wran was a participant in the robbery offence as well. The Crown contended that a full-time custodial sentence was warranted for this offence with some degree of accumulation upon the sentence for the robbery offence in order to reflect the additional criminality involved in maintaining Mr Lee after her participation in the robbery.

47. In my opinion, this offence falls at the bottom of the range of objective seriousness for offences of its kind. Properly understood, Ms Wran’s criminal liability has been generated not by what she did, so much as by what she failed to do. Ms Wran failed to report Mr Lee to the police or to notify them of his whereabouts. To the extent that she literally harboured, maintained or assisted him, Ms Wran would appear to have been preferring her own interests over those of the wider community. That is because Mr Lee had become, albeit only for a very short time, the source of her drugs. That preference has, however, to a considerable extent been explained by her weakened condition and vulnerable mental state.

Guilty pleas

48. Ms Wran offered to plead guilty to the robbery in company charge after the date upon which her trial on more serious charges was listed to commence. That occurred in circumstances where her co-offenders entered late pleas of guilty to murder and aggravated robbery, upon which Ms Wran had herself also been originally arraigned. The Crown contended that a discount of around ten percent was warranted for the utilitarian value of that plea.

49. The Crown conceded, however, that Ms Wran was entitled to a discount of twenty five percent for the utilitarian value of her plea to the accessory charge. She had in fact offered to plead guilty to that offence as long ago as August 2015 in full satisfaction of her criminal liability. The Crown originally rejected that offer.

50. It was submitted on behalf of Ms Wran that the plea to the robbery in company charge should be regarded as having been entered at the earliest available opportunity. It was entered on the first occasion that the Crown indicated that a plea to the current charges would be accepted in full satisfaction of the indictment. It was entered promptly after the Crown had indicated for the first time that it was prepared to accept that Ms Wran was not aware that her co-offenders had been armed.

51. Robbery in company was always an available alternative to the charges originally pressed on the indictment. However, the Crown case on robbery in company as an alternative count was not specified or articulated in any version of the Crown Case Statement until that served on 28 June 2016. That statement was the first to allow for the possibility that a jury might conclude that Ms Wran did not know that Mr Lee had a knife. At all times before then, the Crown had pressed for a murder conviction, with manslaughter offered as the only available alternative verdict.

52. The revised Crown Case Statement was the first to relate only to Ms Wran’s involvement in the events of 10 August 2014 to 13 August 2014. It was served after Ms Wran’s co-offenders had entered pleas of guilty to murder and when at least one of them had conferred with the Crown. The possibility that Ms Wran might plead guilty to the robbery charge was communicated to the Crown almost as soon as she received the revised Crown Case Statement.

53. Ms Wran’s pleas to both charges have significantly assisted the course of justice. In my opinion she should be given a discount of twenty percent for her plea of guilty to the robbery in company charge. There is no controversy attending a discount of twenty five percent for the accessory after the fact to murder charge.

Remorse

54. Ms Wran’s pleas are also powerful evidence of genuine remorse. She does not concede that the Crown case on the robbery charge was strong. She contended on the contrary that the case against her was circumstantial and limited. Her plea therefore represented an acceptance of her guilt and insight into the inappropriateness of her actions.

55. More particularly, Ms Wran has shown a willingness to accept personal responsibility for her conduct beyond a strictly legal analysis of her blameworthiness. So much is evident from the evidence she gave in the sentencing proceedings. That evidence is mirrored in the psychiatric and psychological reports tendered on her behalf.

56. It was contended on her behalf that Ms Wran’s genuine remorse is further evident from the fact that she never applied for bail despite an arguably strong case in the face of fairly imposing statutory obstacles. She contended that her acceptance of incarceration on remand for almost two years was a considered decision to accept responsibility for her role in the offences, to prevent the risk of re-offending whilst still addicted to drugs and as an illustration of her personal commitment to become drug free.

57. I accept that Ms Wran has demonstrated genuine remorse. It is not diluted by the fact that she is entitled coincidentally to be regretful for the consequences of her actions. I do not consider that her failure to apply for bail, in the particular circumstances of this case, adds to or assists the conclusions I have reached about this topic.

Subjective features

Drug addiction and mental illness

58. It is not in contest that at the time of the commission of these offences Ms Wran was affected by a number of recognised mental illnesses including bulimia and bi-polar disorder. It is now well established and accepted that where a person’s mental health contributes to the commission of an offence in a material way, that offender’s moral culpability may be reduced. The need to denounce such a crime may therefore be correspondingly reduced. It may also have the consequence that a particular offender is an inappropriate vehicle for general deterrence and that a custodial penalty may weigh more heavily on such a person: DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177].

59. In my opinion, Ms Wran’s psychiatric conditions and associated drug dependence were significant contributors to her offending conduct. Indeed, it is difficult to conceive of her, or any other ordinary member of the community with equivalent characteristics, having become involved at all in the circumstances that give rise to the charges in the absence of both influences.

60. Part of the evidence before me includes two reports from Dr Elizabeth Scott dated respectively 24 May 2016 and 12 July 2016 and two reports from Dr Robert Battisti dated respectively 17 May 2016 and 11 July 2016. These reports examine Ms Wran’s history of mental health difficulties in excruciating detail. It is sadly, but relevantly, apparent that Ms Wran’s mental health travails are not of recent or convenient origin, but are problems that have affected and influenced her progress and development since well before she entered high school. Ms Wran gave public evidence of this before me. It does not, however, become necessary for present purposes to reveal the significantly more intricate personal details of Ms Wran’s clinical and therapeutic history in order to conclude that she has suffered considerably for some time and is likely to require medical intervention for the indefinite future.

61. I accept that there is a relevant causal relationship between Ms Wran’s mental health issues and her offending. I also accept that these conditions will have made her time in custody more onerous than for an otherwise healthy individual. Having said as much, I recognise that drug addiction is a circumstance that is relevant to the sentencing exercise but is not itself a mitigating factor. The existence of a causal relationship between drug addiction and the commission of an offence does not automatically result in a lesser sentence. I am also mindful that s 21A (5AA) of the Crimes (Sentencing Procedure) Act 1999 provides that self-induced intoxication of an offender at the time of the commission of an offence is not to be taken into account as a mitigating factor.

Prospects of rehabilitation and likelihood of re-offending

62. Ms Wran has no history of any previous criminal conduct or convictions in New South Wales of any sort. Her criminal history is limited to one count of goods in custody in Queensland in 2013, which was disposed of without proceeding to a conviction. That history is a matter of considerable significance in my opinion. The absence of criminal convictions in a person facing the current charges is not unique but is very unusual in my experience. It unambiguously falls to Ms Wran’s credit in these proceedings. It also very helpfully operates in effect to transpose consideration of her prospects of rehabilitation and re-offending from a criminological context into a medical or health context.

63. Ms Wran was 26 years old at the time of the offences two years ago. She completed her Higher School Certificate with very strong results and completed a year at Sydney University. She has a Diploma in Journalism. She had previously been employed at Foxtel where she was highly regarded. I have been provided with extensive evidence of good character. Testimonials consistently recite her intelligence, her love of animals, her emotional sensitivity and her kindness. The latter characteristic has manifested itself both inside and outside of the prison environment.

64. I have no concern that Ms Wran will re-offend. Her significant challenge will be to arrest her mental health issues and associated drug addiction. That addiction was of longstanding and well entrenched when she entered into custody in August 2014. She had previously submitted to a large series of what became unsuccessful attempts at rehabilitation. That is instructively to be contrasted with her progress in the custodial environment. She is currently drug free, both in terms of illicit drugs and those formerly prescribed for the treatment of various serious conditions to which I have already referred. Ms Wran is currently free of pharmaceutical treatment for the first time since she was ten years old. She has been a model prisoner, occupying positions of responsibility within the prison system. A case note entry dated 18 May 2016 noted that Ms Wran was required to “relate positively and respectfully to all offenders and inmates, which she achieves with ease and considerable warmth”.

65. Ms Wran’s continued success at rehabilitation will depend in large part upon her ongoing participation and engagement with her treating clinicians. This will be tested upon her release. She will require intensive and protracted supervision for drug rehabilitation and mental health issues. Ms Wran’s eating disorder is notoriously disabling and correspondingly resistant to treatment. She will also need assistance in all aspects of daily life in order to minimize and hopefully eradicate her exposure to individuals involved in drug supply and use and related illegal activities.

66. Ms Wran has the obvious benefit of a strong and committed family and circle of friends. I am confident that these community supporters will be of assistance in facilitating Ms Wran’s rehabilitation. This is also likely having regard to her authentic enthusiasm for a return to a normal life.

Special circumstances

67. Ms Wran has clearly demonstrated a strong case for special circumstances. By her own account, supported by expert medical opinion, Ms Wran faces considerable unremitting challenges in her expressed desire to remain abstinent from illicit drugs and to avoid situations likely to prove enticing. One significant indicator of the probable benefit that supervision on parole is likely to provide in this case can be seen reflected in Ms Wran’s clearly demonstrated positive response to authority and direction to which she has been subject whilst in custody since her arrest. A variation of the statutory ratio of parole to non-parole periods is called for in order to facilitate, and with hope to ensure, a structured and smooth return to life in the community.

Deterrence

68. I was urged by the Crown to take account of the need to recognise general deterrence as an important aspect of the sentencing exercise. I have on more than one occasion expressed some personal concern about the role of general deterrence in formulating what is a proper sentence for offenders, having regard to what I consider to be the very real prospect that potentially similar offenders would be highly unlikely to notice. I also remain to be convinced that such prospective offenders would in any event be likely to give measured consideration to the consequences of their actions, far less a thoughtful review of the comparative criminal sanctions that might attend their apprehension.

69. That is not to say that the Courts have no role to play in educating the community about the consequences of crime. I am however unconvinced that the length of sentences has much, if anything at all, to do with that process. Having regard to the particular circumstances of this case, the more important message, deserving of wide dissemination, is that drugs and drug addiction do not discriminate between or among sections of society. Every family in Australia today is a potential target for direct and vicarious disruption and sadness caused by crimes related to illicit drugs. The combination of mental illness and drug addiction do not in my experience respond well to either punishment or logic.

70. By way of contrast, special deterrence may have a more important function in crafting the proper sentence for vulnerable individuals. That is particularly so in cases where some glimmer of insight appears to be evident. Conditional bonds and suspended sentences have an important role to play in such cases.

71. In my opinion, having regard to the approach taken by the Crown in this case to what should be the proper sentence for the robbery count, and having particular regard to the principles in R v Henry, I consider that matters of deterrence are adequately taken up.

Extra curial punishment

72. Ms Wran has been subjected to a sustained and unpleasant campaign by some of the daily newspapers circulating in Sydney. Articles in The Daily Telegraph and The Sunday Telegraph have carried distasteful and wholly misleading headlines such as “Plea to escape murder trial: Harriet’s secret bid to cut a deal” and “Nev’s daughter seeks get-out-of-jail [sic, gaol] deal in drug murder case. Wran Plea for Mercy”. The latter article recounted what should have been confidential details of negotiations between Ms Wran’s lawyers and the Director of Public Prosecutions. In the events that occurred, the offer of a plea was rejected by the Director shortly after the article was published.

73. That article was followed on 13 March 2016 by another full page banner headline and four page spread titled “How I Ended Up in Hell” that included lengthy extracts from letters sent to Ms Wran by Mr Lee and private letters, published in full online, from Ms Wran to a personal friend. It included details of her daily prison life, her interactions with other inmates and her observations about warders. Its publication exposed Ms Wran to unwelcome attention from inmates and some prison staff. The publicity intensified after Ms Wran’s plea. On 7 July 2016 the front page banner headline proclaimed “DIRTY HARRIET”. The sub-headline “Revealed: Wran’s role in ice junkies’ plot to murder a drug dealer” and accompanying prominent two page article incorrectly implied that Ms Wran had willingly taken part in a planned murder and had “lured” Mr McNulty to his death.

74. The most recent front page and inside four page spread “The Harriet Wran File” dated 10 July 2016 contained the most extensive detail. Headlines on page one referred to “Daddy’s little girl to ice junkie” and “Sex, drug binge after murder”. Inside they included “Murder, Then Loud Sex” and “Killer junkie thought she was hooker on night of murder”. The sexual allegation has not been advanced by the Crown and has been vehemently denied by Ms Wran. The pictures and text include other details of the crime not alleged against Ms Wran or her co-offenders and other untested allegations. The details can only have been sourced from an improperly obtained copy of the police brief of evidence.

72. On each occasion the articles were also published online where they will remain, continuing indefinitely the damage to Ms Wran’s reputation. The articles and allegations within them were picked up and repeated in other news organisations including online versions of The Sydney Morning Herald and The Daily Mail. Ms Wran is not able to anticipate when or if this gratuitous campaign will end.

73. It is submitted on behalf of Ms Wran that this publicity has been humiliating for her and has caused her immense psychological distress in her already vulnerable condition. The articles make allegations about her criminality, sexual conduct and reputation that have no basis in fact but from which she has no ability to defend herself. Ms Wran maintains that these publications appear designed to invite public vilification and opprobrium and that some imply Ms Wran has sought or received special treatment due to her family connections. Ms Wran’s privacy, and that of her family, has also been grossly invaded. Family photos have been re-published. Ms Wran’s private correspondence has been extracted for prurient consumption. Even her distraught telephone calls to her mother have been transcribed and, in an extraordinary step, re-enacted for listeners to consume online. It is submitted on her behalf that the psychological distress caused to Ms Wran and the irreparable and unfair damage to her reputation merits a finding that she has suffered extra curial punishment: see Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [85]-[100]; Kenny v R [2010] NSWCCA 6.

74. The media interest has focused on Ms Wran’s family background and her physical appearance. The intense media attention is disproportionate to her involvement in the relevant events. She submitted that it is therefore appropriate significantly to mitigate her sentence in these circumstances: see R v Wilhelm [2010] NSWSC 378 at [33].

75. Ms Wran also contended that the extra curial punishment goes beyond the traditional case of adverse publicity and warranted even more substantial acknowledgment. The publicity has made Ms Wran a potential target in a dangerous environment. Each publication led to unwanted attention to Ms Wran in gaol and has generated safety concerns for her. On 10 July 2016 she was told that the gate to her wing had been locked for her protection after an article was published. There is a real risk that Ms Wran may be moved back to a much more confined environment as a direct result of the publicity with potential serious mental and physical health implications.

76. The Crown has proffered, quite properly in my view, no submissions in response to these concerns. In my opinion the publication of these egregious articles warrants the imposition of a sentence that takes account of Ms Wran’s continuing exposure to the risk of custodial retribution, the unavoidable spectre of enduring damage to her reputation and an impeded recovery from her ongoing mental health and drug related problems.

The custodial environment

80. Ms Wran spent almost twelve months in the harsh environment of the maximum security unit. She experienced lengthy confinement in solitary conditions for up to twenty three hours a day in lockdown. She has been the target of threats and unpleasant attention from other prisoners. Ms Wran was placed in a harsh custodial environment because of her unwanted and unsolicited public profile. Apart from the uncontrollable accident of her birth, Ms Wran has done nothing to place herself in the public eye. Her placement in maximum security was imposed as a form of protective custody, not for behavioural or disciplinary reasons.

81. Time spent in protective custody is accepted to be the equivalent of a longer loss of liberty under ordinary conditions of imprisonment: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at [105]; R v Howard [2001] NSWCCA 309; R v Rose [2004] NSWCCA 326; R v Patison [2003] NSWCCA 171; (2003) 143 A Crim R 118 at 136-137.

82. These principles apply with particular relevance to cases where the periods in custody have been, or might be expected to be, quite long. In Ms Wran’s case, those periods have been relatively short. I accept that Ms Wran is entitled on sentence to have these matters factored into my approach to her sentence to some extent at least.

Delay

83. Ms Wran has necessarily endured the threat or the prospect of being put upon trial for murder for almost two years. That delay was in no sense caused by any fault on the part of the Crown. Delay of itself is not in any event a mitigating factor. It is also not a factor that has in this case resulted in any unfairness by reason of the fact that an offender is ultimately sentenced to a custodial term significantly less than the period served on remand awaiting trial or sentence.

Conclusions and sentence

84. I generally agree with the Crown submission concerning the proper sentence for the offence of robbery in company. As I have already indicated, I consider that a discount of twenty percent for Ms Wran’s early plea of guilty should apply to that charge. I have also taken into account Ms Wran’s extremely powerful subjective case, her genuine remorse and what I consider to be very good prospects of rehabilitation. I do not consider that Ms Wran presents with any discernible likelihood of re-offending.

85. Standing alone, it is my opinion that the accessorial offence would not attract a custodial penalty. It is as I have indicated at the bottom of the range of such offences. I am however mindful of the Crown submission that the offence is made more serious as Ms Wran was a participant in the robbery offence as well. I have in the end result concluded that a custodial sentence is warranted to mark out the scope of punishment that should apply to this offence. I am not of the view that there should be any degree of accumulation of the sentence for the robbery upon the sentence for the accessorial charge. In the circumstances of this case the imposition of a sentence of imprisonment for harbouring, maintaining and assisting Mr Lee is a sufficient and adequate recognition of the seriousness of the offence and I see no need to extend Ms Wran’s time in custody in order to emphasise that fact having regard to my view concerning the very limited extent of its discrete criminality.

86. Harriet Langley Wran, for the offence of harbouring, maintaining and assisting Michael Lee, knowing that he did murder Daniel McNulty on 10 August 2014, you are convicted. I sentence you to imprisonment for a fixed term of 1 year commencing on 13 August 2014 and expiring on 12 August 2015.

87. Harriet Langley Wran, for the offence that on 10 August 2014, being in company with Michael Lee and Lloyd Edward Haines, you did rob Brett Fitzgerald of $650 you are convicted. I sentence you to imprisonment for 4 years commencing on 13 August 2014 expiring on 12 August 2018 with a non-parole period of 2 years expiring on 12 August 2016 and a balance of term of 2 years expiring on 12 August 2018.

88. The first day upon which you will become eligible for release on parole is 13 August 2016.

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Decision last updated: 26 July 2016