CRIME – appeals – appeal against sentence – solicit person to kidnap, detain and threaten to pervert the course of justice – where applicant and her ex-husband were involved in acrimonious Family Court proceedings – applicant wanted ex-husband detained and threatened until he agreed to apportionment of property – undercover operative acted as go-between between applicant and “enforcer” – whether sentencing judge failed to take account of involvement of undercover operative when assessing objective seriousness of the offending – extent to which such involvement impacted the finding of objective seriousness entirely a matter for sentencing judge – applicant was not encouraged or entrapped by undercover operative – ground not upheld
CRIME – appeals – appeal against sentence – whether applicant was denied procedural fairness given sentencing judge’s qualified finding of remorse – where sentencing judge asked counsel if she intended to call the applicant and counsel did not – applicant does not need to be put on notice that a qualified finding would be made – no denial of procedural fairness – ground not upheld
CRIME – appeals – appeal against sentence – whether sentencing judge failed to consider applicant’s mental health issues and their impact on moral culpability – where psychiatric and psychological reports disclosed an alcohol use disorder, anxiety disorder and depressive illness – sentencing judge referred to mental health issues but did not say whether or how it reduced moral culpability – diagnosed conditions somewhat related to offending – ground upheld – no lesser sentence warranted given serious threats of violence and gravity of offences of this kind – appeal dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Richards v The King [2023] NSWCCA 264
Case
[2023] NSWCCA 264
Decision Date
CaseChat Overview and Summary
In Richards v The King, the applicant appealed against her sentence, arguing multiple grounds of appeal. The applicant had been convicted of soliciting another person to kidnap, detain, and threaten to pervert the course of justice in relation to her ex-husband. The offence arose out of acrimonious Family Court proceedings between the applicant and her ex-husband, where the applicant sought to have her ex-husband detained and threatened until he agreed to a certain apportionment of their property. An undercover operative facilitated communication between the applicant and an individual who was to carry out the threats. The High Court of Australia was called upon to determine the validity of the applicant's grounds of appeal, including the sentencing judge's consideration of the operative's involvement, the procedural fairness of the sentencing process, and the sentencing judge's assessment of the applicant's mental health issues.
The legal issues presented in this case were whether the sentencing judge erred by not taking into account the undercover operative's involvement in assessing the objective seriousness of the offence, whether the applicant was denied procedural fairness due to the sentencing judge's qualified finding of remorse, and whether the sentencing judge failed to consider the applicant's mental health issues and their impact on moral culpability. The court held that the extent to which the operative's involvement impacted the finding of objective seriousness was entirely a matter for the sentencing judge, and the ground of appeal was not upheld. The court also found that the applicant was not denied procedural fairness as she was not required to be put on notice that a qualified finding of remorse would be made, and this ground of appeal was not upheld. However, the court held that the sentencing judge failed to consider the applicant's mental health issues and their impact on moral culpability, and this ground of appeal was upheld.
The High Court found that, while the applicant's mental health issues were somewhat related to the offending, the gravity of the offences and the serious threats of violence meant that no lesser sentence was warranted. Consequently, the appeal was dismissed. The court concluded that the sentencing judge's assessment of the objective seriousness of the offence and the applicant's moral culpability were within the sentencing judge's discretion, and the applicant's grounds of appeal were not upheld. The court emphasised the importance of allowing sentencing judges a broad discretion in assessing the objective seriousness of offences and the moral culpability of offenders, and that the High Court would only intervene where a clear error of principle had occurred.