Stott v The Queen
[2012] ACTCA 33
•July 23, 2012
SHARON ANN STOTT v THE QUEEN
[2012] ACTCA 33 (23 July 2012)
APPEAL – In general and right of appeal – Appeal from single Judge of the Supreme Court – Appeal against sentence – Appeal dismissed.
APPEAL – Sentence – Facts found by sentencing judge – Subjective circumstances – Objective seriousness of offence – Sentencing judge not in error.
APPEAL – Sentence – Parity – Relevant factors – Contribution to offence conduct – Age – Criminal antecedents – Comparison between ultimate, not ‘undiscounted’ sentences – Instinctive synthesis – Sentencing judge not in error.
APPEAL – Sentence – Manifest excess – Penalty not outside range.
Crimes (Sentencing) Act 2005 (ACT), s 35
Crimes Act 1900 (ACT), s 34
GAS v The Queen (2004) 217 CLR 198
Green v The Queen (2011) 244 CLR 462
Lowe v The Queen (1984) 154 CLR 606
Pavicevic v The Queen [2010] ACTCA 25
R v JW (2010) 77 NSWLR 7
R v Olbrich (1999) 199 CLR 270
R v Williams [2007] VSC 131
Veen v The Queen (No 2) (1988) 164 CLR 465
Wong v The Queen (2001) 207 CLR 584
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 48 of 2011
No. SCC 314A of 2009
Judges: Refshauge and Lander JJ and Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 23 July 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 48 of 2011
) No. SCC 314A of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SHARON ANN STOTT
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Refshauge and Lander JJ and Nield AJ
Date: 23 July 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 48 of 2011
) No. SCC 314A of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SHARON ANN STOTT
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge and Lander JJ and Nield AJ
Date: 23 July 2012
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Sharon Ann Stott, the appellant, pleaded guilty on 27 June 2011 to a count of unlawful confinement on an indictment dated 5 November 2009.
That offence, contrary to s 34 of the Crimes Act 1900 (ACT), rendered her liable to a maximum penalty of ten years imprisonment.
On 6 September 2011, Ms Stott was sentenced in the Supreme Court to imprisonment for three years and six months to commence on 31 May 2009, to be suspended on 30 September 2011 with a Good Behaviour Order for two years from the date of sentence.
THE FACTS
The offence arose from events in which Ms Stott was involved with a number of other persons (the co-offenders) on 12 and 13 May 2009.
It relevantly commenced with the victim, the person unlawfully confined, being telephoned on 12 May 2009 by Stephen Trotman, one of the co-offenders, to arrange a meeting later that day at some suburban shops to discuss a debt said to be owed by the victim to Mr Trotman.
At about 9.30 pm, the victim attended the meeting as arranged, in company with his partner and two others. Shortly after they arrived, Mr Trotman drove up to the shops. Ms Stott was also in the car, with three others, Fakatounaulupe Ngata, Jeremy Campbell and Michael Berwick (three of the co-offenders). The victim got into that car and they then drove to Ms Stott’s house.
It appears that, on their way, Mr Ngata rang another of the co-offenders, Adam Deans, and asked him to check around the residence for him. Mr Deans later rang back to say “she’s all clear”.
When the car arrived at Ms Stott’s residence, all the occupants went inside joining Mr Deans, and the victim was held there against his will. The room was dimly lit, but he saw Ms Stott’s sixteen year-old son at the residence.
There was discussion about the debt said to be owed by the victim to Mr Trotman, though later there were also references to money said to be payable to Ms Stott, a total figure of $7 000 being mentioned.
The victim was said to be unable to escape because the co-offenders were watching him. Ms Stott and Mr Ngata continued to ask the victim to come up with ideas for paying the money demanded before he would be released. Ms Stott made a number of threats to him. These included a threat “to place a pillowcase over [his] head”. The victim received a number of calls on his phone and, each time, Ms Stott told him to say he was okay when answering and, if she did not like the way he spoke, she would “rebuke” him. On one occasion, she said, “You talk nice right cunt because when you get off the phone I’ll smash you, set the white dog onto ya, talk nice, talk nice.”
One of the friends of the victim who had driven with him to the shops arrived at the house and Ms Stott told him to sell his car and provide her enough money to release the victim.
Ms Stott continued to discuss with the victim how the debt might be paid, including the suggestion that he telephone his mother to get the money. It was also suggested that some of the co-offenders might get goods from the victim’s flat. In fact, two of the co-offenders then did go with the victim’s friend to the victim’s flat and took some items, including a television set and a laptop computer which the victim said he had stolen in burglaries he had committed.
The victim’s friend later returned to Ms Stott’s residence and gave her $1 000 but, even together with the property taken from the victim’s flat, it was not accepted as sufficient to release the victim. Mr Ngata said, “Think of another plan, another way for someone to come rescue you.”
At about 1.58 am, Ms Stott, Mr Ngata and Mr Trotman calculated that the victim then owed them $7 000. The victim’s friend offered to give them his car but Mr Ngata said, “We will hold him here until you come up with the cash.”
At about 2.15 am, Mr Deans reported “two suspicious cars” near the house. About forty-five minutes later, the victim’s friend and three of the co-offenders left the house.
The victim began to fall asleep and Ms Stott began running around the house looking out the window, saying “You stay here, I’ll fucking sort this out.”
At about 5.30 am, police established a cordon around the house and a short time later Ms Stott left the house and was arrested. Shortly after that, Mr Ngata said to the victim, “The police are here. Take your phone and walk out the door.” The victim did so at about 6.40 am. Mr Ngata left the house half an hour later and was arrested by police.
Ms Stott and Mr Ngata appeared in the Magistrates Court on 14 May 2009 (though the Statement of Facts, in obvious error, referred to the date as 13 April 2009) and remained in custody until sentenced.
THE SENTENCING PROCEEDINGS
Ms Stott appeared for sentence in the Supreme Court on 31 August 2011. After the agreed Statement of Facts was tendered and read and Ms Stott’s prior criminal history was tendered, the author of a Pre-Sentence Report was called and that Report tendered and read.
The author of the Pre-Sentence Report was cross-examined briefly on the Report by Mr K Archer, counsel for Ms Stott at sentence and on the appeal.
A number of other reports, letters and certificates or evidence of attainment were tendered on behalf of Ms Stott.
The prosecutor submitted that the offence was a serious one; the victim was held overnight for a considerable time, demands were made for money and he was only released after the police arrived. He referred to Ms Stott’s prior record and, in accordance with what the High Court said in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477–8, submitted that it illuminated the moral culpability of Ms Stott, showed her dangerous propensity and showed a need to impose condign punishment to deter her. He submitted that the plea of guilty had to be taken into account, but that it came at a late stage.
He submitted that general deterrence was important in a case such as this and referred to a passage in the Pre-Sentence Report which noted that “Ms Stott sought to rationalise her actions, attribute portion of the blame to the victim and minimise her level of responsibility.” This, he submitted, moderated her expression of remorse. He submitted that while the victim was “no angel,” he deserved “the protection of the law like everyone else.”
He noted that Ms Stott had been in custody since 31 May 2009.
Mr Archer sought, before starting his submissions, to tender the Statement of Facts in respect of the sentencing of Mr Deans, whom the learned Sentencing Judge had earlier sentenced to twelve months imprisonment, on a charge of aiding and abetting Ms Stott in the unlawful confinement of the victim. It appears to have been received as an exhibit, however, it was not included in the Appeal Papers. He submitted that “to a large extent the actual and moral culpability of each [co-offender] is not particularly different.” All of them, he submitted, met the victim at the shops, drove him to the house and were present while he was held.
He submitted that the offence was not the most serious version of the offence and that there was no physical interference with the victim. He noted that there was no victim impact statement and differentiated the instant case from those where there was actual violence inflicted on the victim or where the offenders were not known to the victim, creating a greater deal of anxiety or terror in the victim’s mind. He referred to some decisions of the Supreme Court on the same offence.
He also submitted that “the court can have regard to the particular circumstances of the victim”, namely that he was part of the “drug culture” and that the debt was owed because of his illegal activity.
Mr Archer submitted that as Ms Stott had been in custody for approximately two and a half years, the sentence should not require her to spend any further time in custody.
He referred to Ms Stott’s criminal record, noting that her most recent period of imprisonment was in 2004 for an offence committed in 1999. The next earlier serious offence was the offence of conspiracy to supply methamphetamine in 1999 for which she was sentenced to a suspended term of imprisonment. He noted convictions for another drug supply charge in 1994 and for an assault in 1981. He acknowledged, however, that there were other convictions recorded against her.
THE SENTENCE
The learned Sentencing Judge adjourned the proceedings and pronounced sentence on 6 September 2011.
In her Honour’s remarks, she recited the facts. Referring to R v Williams [2007] VSC 131 at [66], she rejected the submission that the offence was mitigated by the fact that the victim was part of the drug culture. Her Honour also rejected the submission that all co-offenders were equally liable, saying:
My reasons for that conclusion are as follows: the confinement occurred in Ms Stott’s home. Ms Stott appears to have taken the lead in threatening Mr Elliott in general and, in particular, by reference to her dog. Significantly, Ms Stott, along with Mr Ngata, has pleaded guilty to an offence of unlawful confinement while the four other co-offenders pleaded guilty only to aiding and abetting unlawful confinement.
I note also that Ms Stott is significantly older than her co-offenders and that her energy and willingness to take a leadership role when suitably motivated were noted in the reference provided by Paul Cooper of Auswide Projects, a training provider operating in the AMC.
Her Honour took into account Ms Stott’s drug addiction, though rejecting that the events of the evening were directly caused by recent drug use. She noted her efforts at drug rehabilitation in custody, but considered that “nothing has been put before me to indicate any intention on Ms Stott’s part to change her life or to pursue rehabilitation.”
Her Honour took into account the period of pre-sentence custody, her plea of guilty on the date on which her trial was to commence, namely a late plea of guilty. Her Honour referred to but distinguished the cases to which Mr Archer had referred her.
The sentence noted above (at [3]) was then imposed.
THE APPEAL
Ms Stott appealed against the sentence by filing a Notice of Appeal on 30 September 2011. The grounds of appeal were:
a)The learned sentencing Judge erred by failing to give appropriate weight to the Appellant’s subjective circumstances.
b)The learned sentencing Judge made findings on the objective seriousness of the offence which were not available on the evidence.
c)The sentence offended the principle of parity having regard to other sentences imposed in the proceedings.
d)The sentence is manifestly excessive.
The submissions of Ms Stott’s counsel did not follow the grounds precisely. In particular, it appears that grounds a) and b) were considered together. It is convenient to follow that course.
Facts found by the learned Sentencing Judge
As noted by Mr Archer, the entry of a plea of guilty only admits the elements of the offence. As the High Court said in GAS v The Queen (2004) 217 CLR 198 at
211; [30]:
Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor (citations omitted).
The standard of proof is that matters adverse to the offender must be proved beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270 at 281; [27]. Two points must be noted about this, however. In the first place, the Court there observed (at 280; [24]):
[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt.
Secondly, as was clear from the passage cited in GAS v The Queen, an agreed statement of facts, or a statement of facts tendered by consent, will ordinarily amount to an admission of the facts contained in it and permit the sentencer to accept them beyond reasonable doubt and draw appropriate inferences from them.
There were four matters of which Mr Archer made complaint:
The presence of Ms Stott’s son
Her Honour said that “[t]he presence of Ms Stott’s 16-year-old son in the house during the commission of the offence is an aggravating factor.”
Mr Archer submitted that there was “[n]o suggestion ... made that any of the conduct thereafter described was witnessed by [Ms Stott’s son] or that he appreciated that when [the victim] arrived or at any time after he was aware that he was there against his will.”
The Statement of Facts, as an agreed statement amounting to an admission of the facts in it, stated that “[the victim] saw the [living] room was dimly lit and the television was playing music videos. He saw that [sic] a male person he knows as [Ms Stott’s son] at the residence.
It is clear from this passage that the victim must have seen Ms Stott’s son from or in the living room where he was being unlawfully confined. That, in itself, was sufficient to aggravate the offence. Even had Ms Stott’s son then left the room, his presence in the house during the events of the confinement is an aggravating feature, as her Honour rightly acknowledged.
There is nothing in this complaint.
The victim’s knowledge of the offenders
Her Honour considered that the fact that the victim knew the offenders “may have made the experience less frightening for him” than if the offenders had been strangers. Mr Archer’s complaint seems to be that, while her Honour said that this “does not go far in mitigating the seriousness of the offence”, his submission on sentencing had been that this fact had meant that there were not present aggravating features which would elevate the offence’s seriousness, thereby differentiating the seriousness of the offence from others where such factors were present.
While the form of counsel’s submissions may be said to have referred to the absence of an aggravating factor, her Honour cannot have been in error to hold that the absence of such factors did not mitigate the offence. That must, logically, be so. Indeed, if anything, the reference to the fact not going far seems to suggest that her Honour did see some mitigation in these matters, giving Ms Stott a benefit that the form of submission made by her counsel would not have justified.
There is nothing in this complaint.
Premeditation
Her Honour found that the offence “also seems to have been premeditated.” Mr Archer submitted that the facts “equally sustain a conclusion that [the offence] was a result of the meeting things [sic] developed.”
This submission is difficult to follow. The meeting with the victim was arranged at 9.00 pm. At about 9.30 pm the victim and his friends arrived at the shops and at about 9.45 pm Ms Stott and some of the co-offenders arrived. Given the timing, there must have been some conversation amongst the co-offenders about what was to happen. This is reinforced by the fact that Mr Ngata later called Mr Deans, who was at Ms Stott’s residence, to look around for certain cars, indicative of a formed plan or intention. The plan need not, of course, have been formed a long time in advance; all that is required is that it not be spontaneous, that is occurring unexpectedly or in circumstances where Ms Stott found herself by chance. It was open to her Honour to find, from the Statement of Facts, that the offence was relevantly premeditated.
This complaint has not been substantiated.
Absence of prospects of rehabilitation
The learned Sentencing Judge had a variety of material which referred to rehabilitation or related matters.
The Pre-Sentence Report referred to Ms Stott stopping the use of illegal drugs in 2005 or 2006 and remaining abstinent “for a number of years”. Reference was made to her taking up the use of them again to help her deal with grief and loss following the death of her partner. There was no reference in that Report to any efforts or intentions expressed by Ms Stott to rehabilitation or returning to the abstinence she appeared to have previously achieved.
The letter from Directions ACT referred to a Mutual Obligation Agreement that Ms Stott had signed. It, in turn, referred to the obligations and responsibilities “identified in the support plan (attached)”. The difficulty is that no such plan was attached. While it could be inferred that this involved some form of rehabilitation, it was entirely unclear whether it was grief counselling, drug treatment or counselling or both or, indeed, something else. It may have been no more than, as its name implied, support of the kind necessary for a person who had been in custody for some time.
The author of that Report did say:
When Ms Stott is released to the community I would be assessing her further and providing Intense Support, developing a Treatment Plan to address her underlying issues a [sic] drug misuse and continuing with intense case management to further work on self change and life skills management.
This will be a challenge for Ms Stott however I am of the opinion she is prepared to continue with counselling a [sic] management in the community. I am prepared to follow through with her progress a [sic] support her needs if the court pleases.
When Ms Stott is released from prison I would be prepared to work closely with Community Corrections to coordinate all conditions of the court.
This is, clearly, an offer of support from that agency and an expectation that it would be taken up, but far from a commitment by Ms Stott to abstinence or further rehabilitation.
The reference from the ACT Women and Prisons Group referred to support provided to Ms Stott and her attendance at the services offered but did not describe those services. The Group offered support post-release and this may be accepted as welcome and appropriate but it was entirely unclear whether it could amount to the kind of rehabilitation to which her Honour referred.
The report from WIREDD (Women’s Information Resources and Education on Drugs and Dependency) showed that, in custody, Ms Stott had attended groups on Relapse Prevention. It referred to improvements in her thinking patterns, noting:
My professional opinion is that Ms Sharon Stott’s thinking patterns have improved and she has realised how important it is that she will need support to be able to deal with day-to-day life and to feel safe once back out into the community. Ms Stott has learnt new skills and strategies in how to approach matters and to function in her daily life.
While Ms Stott has been incarcerated she has contacted Wiredd very regularly for emotional support and for us to advocate on her behalf with other Community agencies. This is also in my professional opinion that Ms Stott has learnt a positive skill in reaching out for support.
There was, apart from the reference to Relapse Prevention, no reference to drug and alcohol counselling nor any plan for specific or general ongoing contact or rehabilitation especially in relation to drug treatment once Ms Stott is released into the community.
What her Honour said in sentencing was:
Ms Stott has presumably been wholly or largely abstinent from illicit drugs while in custody, and I note that, during that time, she has completed the first steps alcohol and drug program, an anger management program, and the women’s cognitive skills program as well as a number of other short courses. However, nothing has been put before me to indicate any intention on Ms Stott’s part to change her life or to pursue rehabilitation. There are no promises to remain abstinent from illicit drugs, no suggestion that she might find employment in reliance on skills she has acquired while on remand, and nothing to give me any particular hope that this offence and her extended period in custody has made any real difference.
Her Honour clearly recognised the work done while Ms Stott was in custody and accepted it. The opinion expressed by her Honour may have taken a somewhat pessimistic view of the material, but it was an opinion that was open to her Honour on the reports and information available, without any expression of commitment by Ms Stott herself, either directly or indirectly as to the matters about which her Honour expressed the opinion.
This complaint must also be dismissed.
Parity
The principle challenge to the sentence was that it was significantly more severe than those imposed on Ms Stott’s co-offenders.
In Pavicevic v The Queen [2010] ACTCA 25, this Court described the principle in the following terms (at [68]–[78]):
The parity principle
In Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 623, the principle is summarised by Dawson J (Wilson J agreeing):
There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been don[e].
(Citations omitted.)
The principle is further elaborated by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 (Postiglione) (at 301–302):
The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice re4quires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentence, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
The principle is generally invoked where differing sentences are imposed by different judges at different times.
We accept, as the NSW Court of Criminal Appeal did, that as far as the objective seriousness of the offence is concerned, there are limits to the amount of differentiation that may be allow amongst co-offenders to a joint criminal enterprise (R v JW [2010] NSWCC 49). In making an observation to that effect, the court in that case, also commented (at [166]):
Differences in subjective circumstances will, however, result in differences, sometimes significant differences, in the end result.
As to the test to be applied, we adopt what Johnson J said in R v Pan [2005] NSWCCA 114 (at [34]):
The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender’s grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at para 6.
See also, more recently, Green v The Queen (2011) 244 CLR 462 at 473–476; [29]–[33].
While Mr Archer initially submitted that a comparison with each of the other offenders should be made, that submission was ultimately not pressed. There were significant differences of age and criminal antecedents so far as all but one of the others were concerned. Most importantly, they played a lesser role in the offence. Most of them were charged with a different offence.
Mr Archer submitted that as the gravamen of the offence was the coerced detention of the victim, all of the co-offenders were party to that – it was all of them in Ms Stott’s living room that kept him there.
That, however, does not mean that all must receive the same sentence. Apart from subjective features, their contribution to the offence is relevant. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and such matters as ... the part which he or she played in the commission of the offence, have to be taken into account.
Further, as Spigelman CJ said in R v JW (2010) 77 NSWLR 7 at 36; [166]:
Whilst recognising that some differentiation in culpability amongst co-offenders in a joint enterprise is often appropriate, there are limits to which this can occur with respect to the objective seriousness of the offence, because of the existence of the common purpose to commit the offence. Differences in subjective circumstances will, however, result in differences, sometimes significant differences, in the end result.
It is clear that Ms Stott played a more significant part in the offence. It was her house at which the offence was committed. She, and Mr Ngata, were the ones who demanded that the victim “come up with ideas for getting money to pay back the alleged debt.” Ms Stott made the only threats that were reported in the Statement of Facts. While not the most serious of threats, they were nasty menaces. Ms Stott also was the person who “rebuked” the victim if he did not speak on the telephone as she liked.
Mr Archer did, however, submit that as Mr Trotman was the person to whom the victim owed the debt, his participation should be equated to Ms Stott’s role. This is not so. That the debt was owed to him was, it appears, the vehicle that was used for the commission of the offence and this is relevant. He did not, however, play any more significant part than the other co-offenders, apart from Ms Stott and Mr Ngata, so far as was disclosed in the Statement of Facts, other than calling the victim and arranging to meet him at the shops. In addition, he was much younger than Ms Stott or even Mr Ngata. Further, Ms Stott appears from the Statement of Facts to have also demanded money from the victim herself.
In her sentencing remarks when imposing sentence on Mr Trotman, her Honour noted his significant remorse. Although he had a long criminal record, it consisted of driving offences or drug possession offences apart from a charge of common assault and a charge of causing harm to a police officer. He was assessed in the Pre-Sentence Report as unlikely to re-offend. His situation was not comparable with that of Ms Stott.
If there is any unjustifiable disparity, it is with Mr Ngata. Regrettably, he was not sentenced by her Honour but by a different judge. Mr Ngata played a more prominent role in the offence than any of the other offenders, other than Ms Stott. His role was, however, somewhat lesser than hers as, although he spoke to the victim making comments such as “He’s not a very good hostage” and “This guy [the victim] has to pay up before he goes anyway”, he is not recorded as making any direct threats to the victim as did Ms Stott.
As already noted, the confinement was at Ms Stott’s house. She was clearly the person in charge of the confinement. Mr Ngata supported her. It was also her son who was present, which aggravated her participation.
Mr Ngata was younger than Ms Stott; she was 47 years old at the time of the offences while Mr Ngata was 30 years old. His criminal record was described by the judge who sentenced him as follows:
Fakatounaulupe Ngata, you have a history of driving offences, having been convicted of a number of offences of driving whilst disqualified. You have also been convicted or found guilty of offences involving possession of weapons and possessing dangerous drugs. Your criminal history differs from that of your co-offender, both in terms of the number of previous convictions and their type. Whilst you are not entitled to the same degree of leniency in these proceedings as would somebody who has no prior convictions, you are entitled to a degree of leniency based upon the relatively short period of time over which your previous offending has occurred and the nature of that previous offending.
This has to be contrasted with the record of Ms Stott, which disclosed offences from 1980. There were a number of traffic offences, but four assault offences, including assault occasioning actual bodily harm, dishonesty offences, damage property and offence of possessing a prohibited weapon. She had been convicted on a number of drug possession offences but also an offence of supplying a prohibited drug and conspiracy to supply a prohibited drug. In all, she had on her record fifty-five offences dealt with in thirty-four court appearances. While her most recent serious offence, dealt with in 2004, was for an offence which was committed in 1999, she had convictions for driving offences in 2005 and drug possession in 2009.
Her criminal record was more serious than that of Mr Ngata. It is true, however, that the offence was committed while Mr Ngata was on bail for other offences. Mr Ngata also pleaded guilty on 27 June 2011, as did Ms Stott.
Mr Ngata was sentenced for this offence to imprisonment for two years and nine months. This was nine months less than that imposed on Ms Stott.
Mr Archer, however, pointed out that before the discount for a plea of guilty under s 35 of the Crimes (Sentencing) Act 2005 (ACT) was taken into account, the disparity was much greater. Ms Stott, her Honour said, would, but for the plea of guilty, have been sentenced to four years imprisonment, a discount of 12.5%. The discount given Mr Ngata because of his plea of guilty was, however, only 5%, making the undiscounted sentence, rounded, two years and eleven months. At this level, the difference is thirteen months or 27% of Ms Stott’s undiscounted sentence.
Part of that disparity is because of the different discounts given for the pleas of guilty. It is not clear what justified those differences: the pleas were both late, indeed entered on the same day, and the facts of the offence was largely the same, so that the evidence against one was not more overwhelming than against the other.
In any event, the comparison should be between the actual sentences and not with the undiscounted sentences. These latter are, of course, the result of the instinctive synthesis which every sentencer is required to make when sentencing (Wong v The Queen) (2001) 207 CLR 584), including the discount for the plea of guilty and how that affects or is affected by the other relevant factors. It would make the assessment of disparity almost impossible if the courts had to consider how any reduction in sentence for a plea of guilty, which, of course, includes both the factors of remorse and acceptance of responsibility as well as the utilitarian value, were to be compared. The comparison should be with the ultimate sentence, having regard to the differences between the offenders, both in respect of their participation in the offence as well as their subjective features.
On this basis, given the differences between Ms Stott and Mr Ngata, the disparity does not give rise to a justified sense of grievance.
This ground of appeal must be dismissed.
Manifest excess
Mr Archer submitted that when all the relevant factors are considered the sentence was manifestly excessive.
He noted the maximum penalty of ten years, putting the offence, with reference to the sentence at the mid range. It is at the lower end of the mid range, in fact. This is appropriate, given the period of the confinement, the number of offenders confining the victim, the threats that were made. Some aggravating features were not present though some, such as actual violence, would have constituted separate offences. While the penalty was severe, it was not outside a proper sentencing range.
The criminal record of Ms Stott has been mentioned. While serious offences had not been committed by her for some time, there were continuing, though much less serious, offences being committed by her. The record was more serious than that of Mr Ngata viewed in totality. Ms Stott expressed some limited remorse, but the author of the Pre-Sentence Report, who was not cross-examined on this, assessed Ms Stott as having sought to “rationalise her actions, attribute portion of the blame to the victim and minimise her responsibility by reference to her illicit drug abuse”.
The matter of rehabilitation is referred to above (at [52]–[61]). In any event, the sentence imposed was suspended shortly after it was imposed and a Good Behaviour Order made that gave opportunity for further rehabilitation if Ms Stott sought to avail herself of it.
The other sentencing decisions referred to by Mr Archer were carefully analysed by her Honour. She clearly took them into account. They do not suggest that the sentence was manifestly excessive.
This ground has not been made out and must be dismissed.
CONCLUSION
We dismiss the appeal.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 23 July 2012
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Kamy Saeedi Lawyers
Counsel for the Respondent: Mr A Doig
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 1 May 2012
Date of judgment: 23 July 2012
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