Stott v The Queen
[2021] ACTCA 18
•21 May 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | Stott v The Queen | ||||||||||
| Citation: | [2021] ACTCA 18 | ||||||||||
| Hearing Date: | 21 May 2021 | ||||||||||
| Decision Date: | 5 July 2021 | ||||||||||
| Before: | Murrell CJ, Mossop and Loukas-Karlsson JJ | ||||||||||
| Decision: | See [81] | ||||||||||
Catchwords: | APPEAL – CRIMINAL LAW – Sentence appeal – Manifest excess – Whether sentencing judge erred in finding that offence was pre-meditated – Whether strict bail conditions “quasi- custody” – [Redacted] – Resentence | ||||||||||
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Crimes Act 1900 (ACT) ss 32, 34 Criminal Appeal Act 1912 (NSW) Criminal Code 2002 (ACT) s 45A Supreme Court Act 1933 (ACT) s 37N | ||||||||||
| Cases Cited: | [Redacted] AB v The Queen [2014] NSWCCA 339 Aoun v R [2011] NSWCCA 284 Banat v The Queen [2020] NSWCCA 321 Bentley v The Queen [2021] NSWCCA 18 Clarke v The Queen [2015] NSWCCA 232; 254 A Crim R 150 Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19 Fox v Percy [2003] HCA 22; 214 CLR 118 Hordern v The Queen [2019] NSWCCA 138; 278 A Crim R 353 Hoskins v The Queen [2016] NSWCCA 157 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 [Redacted] Ngata v The Queen [2020] ACTCA 18 [Redacted] R v Cartwright (1989) 17 NSWLR 243 R v Delaney [2003] NSWCCA 342; 59 NSWLR 1 R v Evans; R v Stott [2020] ACTSC 220 [Redacted] [Redacted] R v Kyriakou (1987) 29 A Crim R 50 R v O'Donoghue (1988) 34 A Crim R 397 R v Stott [2020] ACTSC 5 R v Stott [2020] ACTSC 284 R v Webb [2004] NSWCCA 330; 149 A Crim R 167 [Redacted] Singh v The Queen [2015] ACTCA 65 | ||||||||||
| [Redacted] | |||||||||||
| Turnbull v Chief Executive of the Office of the Environment and | |||||||||||
| Heritage [2015] NSWCCA 278; 213 LGERA 220 Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 Warren v Coombes (1979) 142 CLR 531 [Redacted] [Redacted] | |||||||||||
| Parties: | Sharon Stott (Appellant) The Queen (Respondent) | ||||||||||
| Representation: | Counsel | ||||||||||
| M Jones (Appellant) | |||||||||||
| R Christensen (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Kamy Saeedi Lawyers (Appellant) | |||||||||||
| ACT Director of Public Prosecutions (Respondent) | |||||||||||
| File Number: | AC 35 of 2020 | ||||||||||
| Decision under appeal: |
| ||||||||||
| THE COURT: | |||||||||||
| The appeal | |||||||||||
| The appellant and the co-offender (Mr Evans) were charged with offences relating to a joint criminal enterprise whereby, on 18 January 2019, they unlawfully confined the complainant. They were tried before Burns J (the sentencing judge). | |||||||||||
| The appellant was convicted of the offences of unlawful confinement (contrary to s 34 of the Crimes Act 1900 (ACT) (Crimes Act) by virtue of s 45A of the Criminal Code 2002 (ACT) (Criminal Code)) and making a demand accompanied by a threat (contrary to s 32(2) of the Crimes Act by virtue of s 45A of the Criminal Code) (Counts 1 and 3 in the indictment). She was acquitted on charges of intentionally inflicting actual bodily harm (Count 2) and attempting to detain a person for advantage (Count 4). | |||||||||||
| Mr Evans was convicted on Counts 1, 2, and 3. | |||||||||||
| The decision in the judge alone trial is R v Evans; R v Stott [2020] ACTSC 220 (Evans and Stott). | |||||||||||
| On 15 October 2020, the appellant was sentenced: R v Stott [2020] ACTSC 284. The sentencing judge imposed the following sentences: |
(a) Count 1: Unlawful confinement—two years and eight months’ imprisonment [redacted], from 15 April 2020 to 14 December 2022.
(b)
Count 3: Make a demand accompanied by a threat—three years and two months’ imprisonment [redacted], from 15 June 2020 to 14 August 2023.
| The total sentence was three years and four months’ imprisonment. His Honour fixed |
| a nonparole period of two years and two months’ imprisonment, from 15 April 2020 to |
| 14 June 2022 (65 per cent of the total sentence). |
| The maximum penalty for each offence was 10 years’ imprisonment. |
| The appellant appealed against the sentences on the following grounds. |
(a) The sentencing judge erred in finding that the offending involved a pre-existing plan. (b) The sentences were manifestly excessive. In particular, the sentencing judge:
(i) failed to take into account the 207 days when the appellant was subject to strict bail conditions; (ii) imposed sentences that did not reflect the objective seriousness of the offences; [redacted] (iii) [Redacted]
Facts
| At [2] of the remarks on sentence, the sentencing judge summarised the facts as follows. |
In brief, I am satisfied that as part of a joint criminal enterprise you and your co-offender unlawfully confined the victim at an address in suburban Canberra for approximately one hour on 18 January 2019. During this unlawful confinement, you made demands of the victim that he pay you the sum of $20,000. You represented to the victim that this was a debt which he had owed you for 10 years. I am satisfied that there was no debt and you invented the supposed debt as a pretext to extort money from the victim. Your co-offender was armed with a baseball bat and made multiple threats to cause serious physical injury to the victim during the period that he was unlawfully confined and during which you were demanding that he pay you the $20,000. As I said in my judgment on 14 August 2020, I am satisfied that you and your co-offender were acting in concert as part of an agreement to stand over the victim, by which I mean that there was an agreement that you would make demands that the victim pay you money while your co-offender would make threats to the victim with a view to encouraging him to meet the demands you made. This plan unravelled when your co- offender commenced attacking the victim with a baseball bat, resulting in the victim moving into the kitchen of the premises and obtaining a knife. I accept that you attempted to stop your co-offender assaulting the victim with the baseball bat. I was not satisfied that it was part of your agreed plan to cause injury to the victim. I was satisfied that the joint criminal enterprise was confined to making threats to the victim and confining the victim with a view to extorting money from him.
| A more substantial statement of the facts of which his Honour was satisfied beyond reasonable doubt appears at [162] of Evans and Stott. Inter alia, his Honour found: |
…
d) [Evans] who arrived with Ms Stott did not sit down, but picked up a baseball bat that was leaning against the side of the lounge …
e) [Evans] was unknown to [the occupant] and [the complainant] and had not previously visited [the occupant’s] house;
… g) [The complainant] did not owe Ms Stott any money; … l)
at some point shortly before 5:00 pm Ms Stott threatened to restrain [the complainant] with cable ties and take him back to her house in the white Commodore, at the same time making it clear to him by a veiled threat about her dogs that he would not be free to leave her premises;
… y) police located cable ties on the front seat of the white Commodore; z) police located a red pillowcase containing cable ties in the boot of the white Commodore; … dd) DNA highly consistent with Ms Stott’s DNA was located on the cable ties found on the
front seat of the white Commodore.
| Although referred to neither in Evans and Stott nor the reasons for sentence, on the appeal, counsel referred to evidence that was given at the trial by Detective Evans that, |
| on 16 January 2019, police had searched the appellant’s car and observed cable ties |
| in the vehicle. |
History of these and related proceedings
| The decision in Evans and Stott was given on 14 August 2020 and the appellant was sentenced on 15 October 2020. |
| On 30 January 2020, the appellant had been sentenced by Loukas-Karlsson J for an aggravated robbery committed with Mr Evans and others on 10 January 2019, eight |
| days before the subject offences. Her Honour sentenced the appellant to 19 months’ |
| imprisonment (from 31 January 2019 to 30 August 2020), suspended after 12 months (from 30 January 2020): R v Stott [2020] ACTSC 5. |
| Consequently, from 31 January to 23 March 2020 (a period of 53 days) the appellant was in custody with bail refused solely in relation to the offences that are the subject of the appeal. |
| From 23 March 2020 to 15 October 2020 (207 days, or six months and 23 days), the appellant was at liberty on bail, but subject to conditions that she remain at her premises except when travelling directly to police for the purpose of reporting, attending |
| ACT Corrective Services as directed, attending her lawyer’s office, or obtaining |
| assistance in a medical emergency. She was required “to present herself to police |
| upon their reasonable request”, not consume alcohol or illicit drugs, and provide bodily |
| samples to Corrective Services as requested. Limitations were placed on her possession and use of a mobile telephone. Initially, she was required to report to police daily. |
| As stated above, when imposing sentences on 15 October 2020, the sentencing judge backdated the sentences to 15 April 2020, i.e. by six months. This meant that the |
| appellant would actually serve two years and ten months’ imprisonment (34 months) and |
| would be eligible for parole after actually serving 20 months’ imprisonment (59 per cent |
| of the sentence to actually be served). |
Sentencing judge’s assessment of objective seriousness, including findings about
premeditation
| The sentencing judge assessed the objective seriousness of the offence of the unlawful |
| confinement as “in the lower end of the mid-range of such offences”, taking into account |
| that: |
(a) the period of the confinement was approximately one hour; (b)
the purpose of the confinement was to commit the offence of making a demand accompanied by a threat; and
(c) as was intended, the victim was terrified.
| His Honour assessed the objective seriousness of the offence of making a demand | ||
| accompanied by threats as “in the upper end of the mid-range of such offences”. His | ||
| Honour noted that the victim had been terrified by the threats, although the victim’s | ||
| terror should not be “double counted” so as to aggravate the sentences imposed for | ||
| both offences. In assessing objective seriousness, the sentencing judge took into account that multiple threats were made over the course of an hour: to cause serious injury to the victim by using a baseball bat; to further restrain the victim using cable ties; | ||
| to transport him in the boot of a car to the appellant’s house, where (as a veiled threat) | ||
| she may set her dogs on him. | ||
| The sentencing judge also took into account that the offence was premeditated. At [5]– | ||
|
It was submitted on your behalf that these offences were opportunistic and were not the subject of any significant planning or premeditation. I accept that your choice of victim was opportunistic, but I cannot accept the proposition that these offences did not involve any planning or premeditation. The way in which the offences unfolded from the moment that you entered the premises with the victim speaks of a pre-existing plan. I have no doubt that you were aware that the occupant of the premises was a small-time heroin supplier. If you waited in the premises, there was a likelihood that someone would attend for the purpose of purchasing heroin. Alternatively, the occupant of the premises could be subject to threats and extortion. Such people are relatively easy targets for this type of offending, because they are less likely to go to the police and report any intimidation or extortion. Even if they do, their credibility can be attacked and, as occurred here, it can be suggested that they were drug affected. Whatever the correct scenario, the evidence speaks of a pre-existing plan.
There were no verbal communications between you and your co-offender about demanding money from the victim, or the use of a baseball bat, or the making of threats from the time that you and your co-offender entered the premises in the company of the victim, until your co-offender locked the front door and picked up the baseball bat, and you sat down and started to make your demands. This speaks very clearly of a pre-existing arrangement in which you would make demands of somebody in the premises and your co-offender would act as your muscle. I am satisfied that cable ties were brought with you in your car; some were left on the front seat and some were in the boot. There are possible scenarios which may explain your arrival at the premises at the same time as the victim, but I accept that they are speculative. I am however satisfied beyond reasonable doubt that you went to the premises with your co-offender for the purpose of engaging in the conduct which you did ultimately engage in should the opportunity arise. I accept that the choice of victim was opportunistic. I would assess this offence as in the upper end of the mid-range of such offences.
Appellant’s subjective circumstances
| The sentencing judge recorded the following matters. |
(a)
The appellant was a 58-year-old single woman. Some of her previous partners had been killed violently. She had two adult sons with whom she had positive relationships.
(b) She had a “very significant criminal history”, which included five separate periods of imprisonment. Her criminal history disentitled her to significant leniency. In 2000 she was sentenced in New South Wales for supplying a
prohibited drug. In 2011 she was sentenced to three years and six months’
imprisonment for an offence of forcible confinement. Between 2015 and 2019, the appellant did not offend. On 10 January 2019, she committed the offence of aggravated robbery for which she was sentenced by Loukas-Karlsson J on 30 January 2020.
(c) The appellant experienced a chaotic and traumatic upbringing. Her father died when she was about seven years old. Her mother was violent and inflicted physical abuse on the appellant. Her education suffered. The appellant was still scarred by her upbringing. (d) At times, the appellant had earned a significant income by drug dealing. More recently, she had received income from government benefits. (e) The appellant had a long history of illicit drug use, commencing with cannabis use when she was a school student. Later, she began to use amphetamines, injecting them intravenously from 1992 to 2005. Thereafter, she occasionally used intravenous amphetamines and smoked methamphetamine. (f) While on bail, the appellant had engaged with Directions ACT, acquired insight into the triggers for drug use, and developed a relapse prevention plan. She was willing to continue treatment and was prepared to undertake residential rehabilitation. (g) The appellant’s network was antisocial and included a connection with an “outlaw motorcycle gang”.
(h)
The appellant displayed no remorse, maintaining her innocence, blaming the co-offender, claiming that she had been assaulted by the victim, and asserting that he had damaged her car.
Premeditation
| The appellant submitted that the sentencing judge had erred in finding beyond reasonable doubt that the offences were premeditated in that, at an indefinite point prior to arriving at the premises, the appellant and Mr Evans agreed that the appellant would | ||
| make demands of someone at the premises while Mr Evans acted as the “muscle”; | ||
| whereas a reasonably available alternative inference was that the agreement to demand money was formed after the appellant and Mr Evans arrived outside the premises and saw the victim, who arrived at the same time. The appellant submitted that this was a material factual error to which his Honour had attached weight when assessing the objective seriousness of the offence. | ||
| The sentencing judge summarised the relevant evidence of the complainant in Evans | ||
|
He was riding pushbike … Just as he was arriving, a car pulled into the driveway of the
premises … Ms Stott was driving the car and that there was a male passenger. [The victim]
had known Ms Stott for a long time ... [He] did not know the male person who arrived withMs Stott.
[The complainant] said that he said hello to Ms Stott, and that Ms Stott and the other male
followed him into Ms Howson’s house …
| The parties agreed that the evidence established the following circumstances. |
(a) When the appellant and Mr Evans entered the premises, there was no verbal communication between them about demanding money from the victim, the use of a baseball bat or the making of threats, but that is what they did immediately after they entered the premises. (b) Cable ties were found in the appellant’s vehicle, including cable ties on the front seat from which the appellant’s DNA was recovered. On 16 January 2019,
police had observed cable ties in the vehicle.
(c) When the appellant made threats to the victim, she referred to the cable ties.
| We accept the appellant’s submission that the evidence was insufficient to establish |
| beyond reasonable doubt that, prior to pulling into the driveway of the premises and seeing the victim, the appellant and Mr Evans had agreed that they would demand money from someone at the premises. It went no further than establishing that the appellant and Mr Evans made an arrangement prior to entering the premises. |
| A sentencing court must consider the objective seriousness of an offence or, as stated |
| in s 33(1)(a) of the Sentencing Act, “the nature and circumstances of the offence”. The |
| degree of planning (or, on the other hand, the degree of impulsiveness) is usually a material consideration when assessing objective seriousness. |
| The question is whether, in this case, the Court should intervene. There may be no real difference between a finding that the appellant and Mr Evans decided to commit the offence at an indeterminate point before they arrived at the premises (possibly, just before they arrived), and a finding that they made the decision when they arrived but before they entered the residence. |
| In NSW, different views have been expressed regarding when a factual error is such as to require intervention in an appeal pursuant to the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). Is it enough that there has been a factual error, or must the impugned factual finding be such that it was not reasonably open to the sentencing judge to make that finding (regardless of whether the appellate court would have made the same factual finding)? |
| The latter and more orthodox view was preferred in AB v The Queen [2014] NSWCCA |
| 339 (AB), in which the appellant had challenged the sentencing judge’s factual finding |
| that the appellant had wished to "torture [the victim] by the infliction of the maximum |
| degree of pain" rather than attacking the victim “in a frenzy”. At [43]–[44], Simpson J |
| (with whom Meagher JA and Wilson J agreed) said: |
Apart from the two being not inconsistent, I find it difficult to see how a killing carried out in a "frenzy" is less objectively serious than a killing carried out with the intention of inflicting maximum pain. Whether the killing was carried out as a result of an intention to inflict maximum pain, or in a "frenzy", makes no difference to the assessment of objective seriousness. The challenged finding was open to his Honour, as was the categorisation of the objective seriousness of the offence. Even if the finding that the applicant wished to torture AG was not open, the alternative that the killing was carried out in a "frenzied attack" yields the same result in terms of objective gravity.
… the Crown referred to a long line of authority (indeed, going back to 1913) that consistently
holds that, in criminal proceedings, findings of fact made by a judge at first instance are binding on the appellate court unless they come within certain well established parameters: see, for example R v Kyriakou (1987) 29 A Crim R 50; R v O'Donoghue (1988) 34 A Crim R 397. These decisions are based on s 5 and s 6(3) of the Criminal Appeal Act 1912 (NSW),
…In oral argument the bold and novel proposition was put that this Court should review the
findings of fact of Adams J by taking the approach stated in Warren v Coombes [1979] HCA 9; 142 CLR 531 and Fox v Percy [2003] HCA 22; 214 CLR 118. He accepted that there was no authority for this rather startling proposition. Put succinctly, those decisions (both in the context of appeals in civil cases) establish that an appellate court may (or even must) make its own assessment of the facts of a case.
| At [45], Simpson J observed that the appellant’s “bold, novel and startling proposition”: |
relied essentially upon observations made (in each case obiter) in two cases in this Court by Basten JA: Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19 and Aoun v R [2011] NSWCCA 284.
| After considering the appellant’s argument, at [55], her Honour concluded that “the final | ||
| nail in the coffin” of the argument was to be found in Kentwell v The Queen [2014] HCA | ||
| 37; 252 CLR 601 (Kentwell). In Kentwell, when discussing the Criminal Appeal Act at | ||
|
Notwithstanding the breadth of its language, it was settled at an early stage that the appellate
court’s authority to intervene is dependent upon the demonstration of error. The significance
to the function of the appellate court of the distinction between specific error, of any of the kinds identified in House v The King, and the conclusion of manifest excess or inadequacy
is explained by Hayne J in AB v The Queen. In the case of specific error, the appellate court’s
powers to intervene is enlivened and it becomes its duty to resentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.
(citations omitted)
| The approach endorsed in AB has been applied in many cases. Recently, in Bentley v The Queen [2021] NSWCCA 18, the impugned fact in issue was that the applicants |
| knew where the deceased’s body was located; if so, the applicants were not entitled to |
| the full benefit of their expressions of remorse because they had failed to disclose the |
| location. “Consistent with a preponderance of authority” Bathurst CJ (with whom N |
| Adams and Ierace JJ agreed) formulated the issue as whether the applicants had established that it was not open to the sentencing judge to be satisfied of that fact beyond reasonable doubt: at [125]. |
| However, in NSW, opinions remain divided concerning the correct approach to intervention in the case of asserted factual error. Relatively recently, in Hordern v The Queen [2019] NSWCCA 138; 278 A Crim R 353 (Hordern), Basten JA adhered to the view that he had expressed in Clarke v The Queen [2015] NSWCCA 232; 254 A Crim R 150 (Clarke) at [34] and [36] and earlier cases that the concept of factual error was not limited, and an appellate court should intervene in relation to any error that may have affected the sentence. In Hordern, the alleged factual error was a finding that |
| “there was a degree of planning involved in the offence”. In reaching this view as to |
| the proper approach, Basten JA took into account that the relevant statutory appeal was an appeal by way of rehearing in which further evidence could be called (at [9]), to which no express limitation was attached, and which should not be read so as to curtail personal liberty (at [10]). His Honour concluded that there was no material before the sentencing judge that had warranted the impugned finding, the sentence must be set aside and the appellant resentenced. |
| In Clarke at [129]–[136] and Hordern at [82], Hamill J agreed with Basten JA regarding |
| the proper approach to be taken to intervention in an appeal asserting factual error. |
| In Hordern, Lonergan J decided the appeal without reaching a conclusion as to the proper approach on the basis that, in that case, the sentencing judge had made a finding for which there was no evidence at all: at [92]. |
| While interesting, at a practical level, the two approaches will often—perhaps almost always—involve a distinction without a difference to the result. As Button J observed |
| in Turnbull v Chief Executive of the Office of the Environment and Heritage [2015] NSWCCA 278; 213 LGERA 220 (Turnbull) at [31]: |
[I]t could be that, in many, if not most, applications … for leave to appeal against sentence,
the subtle difference in meaning between a mistake of fact by a sentencing judge that was material to sentence and a finding of fact that was not open to a sentencing judge will have no effect on the result.
| His Honour preferred the established approach. Meagher JA agreed with Button J. MacCallum J considered that no error was established on either approach and preferred to express no view as to which was the correct approach. |
| The debate in NSW is relevant in this jurisdiction because, like the Criminal Appeal Act, Part 2A of the Supreme Court Act 1933 (ACT) creates an appeal by way of rehearing in which further evidence may be called: s 37N(3). In addition, s 37N(2) expressly provides that the Court of Appeal may draw inferences of fact from the evidence given at first instance. |
| For present purposes, it is not necessary to resolve the debate in this jurisdiction as the sentencing judge made a finding that the appellant and Mr Evans had made an arrangement prior to arriving at the premises that they would make demands of someone at the premises, when there was no evidence to support that finding. That was a specific error of fact. |
| As specific error has been found, the Court must resentence unless, in the independent exercise of discretion, it concludes that no different sentence should be passed: Kentwell at [35], [42], applied by this Court in Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267. |
| Consequently, it is not necessary to decide whether, having regard to the three matters relied upon or generally, the sentences were manifestly excessive. However, in deference to the arguments that were advanced, we will briefly consider the question of manifest excess. |
Manifest excess
| In support of her contention that the sentences were manifestly excessive, the appellant referred to: |
(a)
A failure by the sentencing judge to take into account time spent in “quasi- custody” while on bail.
(b)
Current sentencing practice, as demonstrated by comparative sentences imposed for offences of similar or greater objective seriousness.
(c) [Redacted].
| The principles applicable to a ground alleging that a sentence is manifestly excessive are well-known. As stated in Ngata v The Queen [2020] ACTCA 18 at [10]: |
Manifest excess is a conclusion which does not require the identification of specific error in the reasoning of the sentencing judge. A complaint that insufficient weight has been accorded to any particular sentencing consideration is, in effect, a complaint that the sentence was manifestly excessive. It is not the function of an appellate court on a
sentencing appeal to try to assess the weight given to individual factors. … The relevant test
is whether the sentence is unreasonable or plainly unjust. If a sentence is clearly too long, unjust or unreasonable, error on the part of the sentencing court may be inferred without finding any specific error of fact or law. In making this determination, an appellate court recognises that there may be a range of judicial opinions in accordance with accepted
principles and ought not to simply substitute the appeal court’s preferred outcome.
(citations omitted)
| Consequently, the [redacted] matters to which the appellant referred are of only incidental relevance to the question of whether the sentences were manifestly excessive. |
Consideration of period on bail
| At the sentencing hearing, the appellant’s legal representative submitted that the appellant’s bail conditions could be characterised as “home detention”; she had been |
required to remain at her residence except for very limited exceptions, to refrain from consuming alcohol or illicit drugs, to present herself to police, and to accept the supervision of Corrective Services.
| At [8] of the reasons for sentence, the sentencing judge observed that the appellant had been subject to stringent bail conditions with which she had substantially complied. However, when explaining why he would backdate the sentence by six months at [17], his Honour made no reference to the stringent bail conditions, stating: |
You have served 53 days in pre-sentence custody relating to the present charges, but you also spent one year in custody in relation to the offence which occurred on 10 January 2019. I will backdate the commencement of the sentences which I intend to impose by 6 months in order to reflect your pre-sentence custody and also the need to consider totality regarding the sentence imposed on 30 January 2020 and the sentences which I impose.
| Section 33 of the Sentencing Act does not state that bail conditions must be considered when imposing sentence. Section 63 requires a sentencing court to take into account the period spent in custody when setting the commencement date of the sentence, but |
| does not refer to periods on bail or in “quasi-custody”. |
| Nevertheless, it is well established that a sentencing judge may take into account that |
| an offender has been subject to onerous bail conditions, often characterised as “quasi- |
| custody”, and exercise their discretion to backdate or discount a sentence on that basis: |
| R v Cartwright (1989) 17 NSWLR 243 (Cartwright) per Hunt and Badgery-Parker JJ at |
| 258–9 (Mahoney JA agreeing), R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at |
| [18], Hoskins v The Queen [2016] NSWCCA 157 (Hoskins) at [36], Banat v The Queen [2020] NSWCCA 321 (Banat) at [18]. Where an offender has spent a significant period in a residential rehabilitation facility, that period is often taken into account by way of |
| reduction of the sentence: R v Delaney [2003] NSWCCA 342; 59 NSWLR 1 at [19]– |
| [26] per James J (Santow JA agreeing). |
| However, a sentencing court is not required to take onerous bail conditions into account. If bail conditions are taken into account, the sentencing court has a broad discretion as to whether they will be taken into account by way of backdating, allowing a discount on the length of the sentence, or otherwise. In Frlanov v The Queen [2018] NSWCCA 267 at [24], RA Hulme J (with whom Macfarlan JA and Rothman J agreed) stated: |
A judge may, but is not obliged to, take into account that an offender has been the subject of onerous bail conditions prior to sentencing: Hoskins v R [2016] NSWCCA 157 at [36]. It is a discretionary matter that depends very much upon the facts of the case at hand. A particular circumstance that would favour taking such a matter into account would be if the conditions amount to "the notional equivalent of custody" for which an offender should be given credit in the assessment of sentence: R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [18].
| In the present case, it should not be forgotten that, for other reasons, the sentencing judge backdated the sentence by six months with the practical result that the appellant |
| will actually serve only 20 months’ imprisonment before she is eligible for parole and, |
| if granted parole at that time, will serve a further 14 months on parole. |
Current sentencing practice and objective seriousness of offence
| The appellant claimed that the sentencing judge imposed excessive sentences, having |
| regard to his Honour’s findings concerning the objective seriousness of the offences |
| and where they sat in the “range” from “low range” to “high range” objective |
| seriousness. His Honour described the offence of unlawful confinement as “falling in |
| the lower end of the mid-range of such offences” and the offence of making a demand accompanied by a threat as falling “in the upper end of the mid-range of such offences”. |
| While a consideration of the objective seriousness of an offence is critical to determining the appropriate sentence, in considering objective seriousness, it is not |
| necessary to categorise the objective seriousness as “low range”, “mid-range”, “high |
| range”, or otherwise by reference to a “range” of objective seriousness. Rather, it is |
| necessary to refer to the principal features of the particular offence that inform its objective seriousness. |
| The objective seriousness of an offence is only one matter that is relevant to a determination of the appropriate length and type of sentence. Other very important |
| considerations include the offender’s subjective features and the various discounts that |
| may apply to a sentence starting point. All relevant considerations must be viewed through the prism of the purposes of sentencing set out in s 7 of the Sentencing Act. |
| In the present case, the sentencing judge characterised the objective seriousness of |
| the offences by reference to the “mid-range” for such offences. There was no error in |
| doing so. More importantly, his Honour referred to the features of each offence that informed its objective seriousness. |
| The respondent provided a table of comparative cases involving offences of unlawful confinement; in those cases, the starting points for sentences for unlawful confinement |
| ranged from 12 months’ to four years’ imprisonment. |
| In Singh v The Queen [2015] ACTCA 65, the Court observed that the offence of unlawful confinement generally attracted a head sentence of between two and five |
| years’ imprisonment where violence was used. At [108], the Court noted: |
The upper end of that scale seems to be for cases where there is a high level of violence causing physical injury or a threat to cause injury or death, and where the offender had a significant criminal history.
| [Redacted]. Having regard to the objective seriousness of the present case when compared to the comparative cases to which reference was made, the appellant characterised the sentence imposed in the present case for unlawful confinement as |
| “at the upper end of sentences imposed”. That assessment may be something of an |
| overstatement, but we agree that the sentence was not lenient. |
| In relation to the offence of making a demand accompanied by a threat, [redacted]. The |
| appellant characterised the sentence of three years and two months’ imprisonment as |
| “at the higher end”. Again, for what it is worth, we agree that the sentence was not |
| lenient. |
| However, the sentencing judge was required to consider both the moderate objective |
| seriousness of the offences in question and the appellant’s subjective circumstances. |
| Having regard to those matters and in the context of the comparative cases to which we were referred, [redacted] the sentences that were imposed were well within the |
| sentencing judge’s discretion. |
[Heading redacted]
[Paragraphs 59 to 72 redacted]
Resentence
73. As noted above, the maximum penalty for each offence was 10 years’ imprisonment.
74. The offence of unlawful confinement was of substantial objective seriousness having regard to the following matters:
(a) the plan to commit the offence may have been formulated at the last minute, just before the appellant and Mr Evans followed the victim into the premises; (b) the period of the confinement was approximately one hour (a substantial but not lengthy period); (c) however, the episode ended only because the victim chased the appellant and Mr Evans from the premises with a knife; (d) the purpose of the confinement was to commit the offence of making a demand accompanied by a threat; (e) the appellant used no violence and attempted to restrain Mr Evans from assaulting the victim with a baseball bat; and (f) the combined effect of the offences was that the victim was terrified. 75. The offence of make a demand accompanied by a threat was of substantial objective seriousness having regard to the following matters:
(a)
the plan may have been formulated at the last minute, just before the appellant and Mr Evans followed the victim into the premises;
(b) verbal threats were reinforced with the presence of a baseball bat; (c)
both the appellant and Mr Evans made a significant number and variety of threats;
(d)
the threats ended only because the victim chased the appellant and Mr Evans from the premises with a knife; and
(e) the combined effect of the offences was that the victim was terrified. 76. Relevant subjective features are summarised at [20] above.
[Paragraphs 77 to 78 redacted]
79. The appellant’s bail conditions were particularly strict in that she was effectively
confined to her home for a period of almost seven months. The respondent pointed out that this period coincided with the period during which movements of the general community were restricted due to the COVID-19 pandemic. Nevertheless, we will allow a backdating of two months on the sentence that would otherwise have been imposed.
80. In addition, there will be a backdating of three months to allow for considerations of totality with the sentence imposed by Loukas-Karlsson J and a further one month and three weeks to account for the 53-day period spent in custody, i.e. a total period of six months and three weeks.
Orders
81. The orders of the Court are as follows.
(a) The appeal is allowed. (b) The sentences imposed by Burns J on 15 October 2020 are set aside. (c) The appellant is resentenced as follows:
(i) Unlawful confinement—two years’ imprisonment, from 25 March 2020 to 24 March 2022.
(ii) Make demand accompanied by threat—two years’ imprisonment, from 25
September 2020 to 24 September 2022.
(d) The nonparole period is 20 months’, from 25 March 2020 to 24 November 2021. I certify that the preceding eighty-one [81] numbered
paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Loukas-Karlsson.
Associate:
Date: 28 July 2021
6
25
5