Richards v The King

Case [2023] NSWCCA 264


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Richards v R [2023] NSWCCA 264
Hearing dates: 21 September 2023
Date of orders: 3 November 2023
Decision date: 03 November 2023
Before: Ward P at [1]
Davies J at [5]
N Adams J at [78]
Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

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

Legislation Cited:

Crime (Sentencing Procedure) Act 1999 (NSW) s 21A

Crimes Act 1900 (NSW) s 319

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14

Cases Cited:

Camilleri v R [2023] NSWCCA 106

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Edmonds v R [2022] NSWCCA 103

House v The King (1936) 55 CLR 499

Imbornone v R [2017] NSWCCA 144

Jomaa v R [2022] NSWCCA 112

Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509

Lloyd v R [2022] NSWCCA 18

Luque v R [2017] NSWCCA 226

Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260

Moiler v R [2021] NSWCCA 73

Pfitzner v R [2010] NSWCCA 314

R v Anderson (1987) 32 A Crim R 146

R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174

R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369

R…

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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.

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