Cross v R

Background Facts

1. As at the date of commission of the offences the applicant was 46 years of age.
2. On 14 June 2017, she threatened two teenage girls, aged 14 (according to the agreed facts) at the time, with whom she had no relationship; demanded that they enter the car in which she was travelling whilst holding pocket knives; detained them in the car; again threatened them; drove around with her co-offender with them in a dangerous manner; made demands of them; further threatened them and ultimately let them go with the final threat that she would kill them if they told the Police what had happened.
3. The details of the events which occurred are set out in the agreed facts and the ROS. The further detail is as follows.
4. At approximately 11.40am on 14 June 2017 the two victims left their high school with the intention of having a cigarette. As they were walking along the adjoining street, they were approached by the applicant driving a motor vehicle with her co-offender, Mr Peck, in the front passenger seat. The applicant stopped the vehicle, near where the victims were standing. The applicant accused one of the victims of having sexual relations with the applicant's partner. One of the victims was the step-daughter of someone with whom the applicant was previously in a relationship.
5. The victim denied the conduct but the applicant refused to accept her denials. At this stage the applicant removed four or five pocket knives and multi-tools from her glove box, got out of the car and approached the victims, continuing to abuse them and make the same allegations against one of the victims regarding having sexual relations with her partner. At this time, she made the threat "Tell me the truth otherwise you're going to be dead". She was very close to the victims and claimed to recognise the scent of one of them on the bed she shared with her partner. The co-offender, Mr Peck, stayed in the car whilst the applicant became angry and continued to abuse the victim who she maintained had sexual relations with her partner (the first victim).
6. At this time, both victims became fearful and attempted to walk away, walking across the street. The applicant got back in the car and then drove in their direction. She then aggressively demanded that one of them (being the second victim) enter the car. The second victim did so and sat in the back of the car behind the co-offender, Mr Peck. The applicant then drove the car further up the street where the first victim was and stopped the car. She then demanded that the first victim get in the car which the first victim did. She sat behind the applicant. The applicant then used the central locking mechanism to stop the girls getting out. One of the victims tried to unlock the doors but the applicant said "Don't even think. It's locked."
7. Thereafter, the applicant drove fast and erratically, such that the victims feared for their safety. She again pulled over and again questioned the first victim about having sexual contact with her partner. The applicant then continued driving, whilst continuing to abuse and threaten the victims. By that stage, the victims were scared and crying. One of the victims telephoned her grandfather and her sister answered but the applicant forced the victim to give up her phone. The applicant was then abusive towards the sister of one of the victims. When the victim's sister rang back, the victim was told to tell the sister that she was at school and would call her back.
8. The applicant then stopped the vehicle for approximately 10 minutes during which time the victims continued to be held against their will and continued to be the subject of threats, including violence to their families and that they would be killed if they attempted to run away. The applicant produced a multi-tool and took hold of a knife which she placed on the dash of the vehicle. She produced a pole and said "This is what happens to little girls that be silly". The victims thought they were going to be hit with the pole. The applicant directed them to turn off their mobile phones and hand them to Mr Peck, which they did. The applicant drove past the high school. Mr Peck then suggested that the applicant pull the car over so he could speak to them and determine whether they were telling the truth. As the sentencing judge found, Mr Peck was hoping to act as some sort of peacemaker. He took each of the victims separately a short distance away and was talking to them. Each of the girls wrote something down on a piece of paper. Whilst the victims were out of the car, the applicant demanded that the second victim write a note on a piece of paper about her mother sleeping with the de facto partner. At the time, the applicant was holding a knife in her hand. The victim complied with the request.
9. The victims were compelled to get back in the car. The applicant then drove, again in an erratic manner, causing the victims to have fear for their safety. When the applicant got back to the school, the victims were detained for a further five minutes and told "You have two days to get out of town." The applicant threatened the victims that she would kill them if they told the Police what had happened. The victims ran screaming from the vehicle into the school and lay on the floor outside the principal's office, traumatised and scared by what had occurred.
10. Police were called and attended a short time later. At about 2.20pm Police observed the vehicle containing the applicant and Mr Peck. Both were arrested in the course of which the applicant struggled with Police. The applicant was later interviewed by Police and gave a false account stating that a harmonious conversation only had taken place at the roadside. The applicant was charged with the offences.

Ground 1

1. The applicant submits that the sentencing judge failed to have regard to s 66 of the Act. The significance of that is said to be that her Honour failed to assess whether making an ICO or serving the sentence by way of full time imprisonment was more likely to address the applicant's risk of re-offending. This is said to be an error on the part of the sentencing judge.
2. The applicant submits that the sentencing judge was required to expressly refer to s 66 of the Act and that the effect of s 66 is to make the consideration of community safety the paramount consideration, among other considerations, including those enunciated by s 3A of the Act: see R v Pullen [2018] NSWCCA 264 at [76]-[93]. It was the applicant's position that a proper consideration of community safety and the risk of re-offending should have led the sentencing judge to conclude that the sentences could be served by way of an ICO (which they could not have been by virtue of s 68 of the Act).
3. Section 66 is contained in Pt 5 Div 2 of the Act. Section 66 must be applied when deciding whether to make an ICO. Section 66 makes community safety the paramount consideration when deciding whether to make an ICO. There is no requirement to consider s 66 other than when deciding whether to make an ICO.
4. It seems rather artificial for the applicant to be maintaining error on the part of the sentencing judge in failing to specifically refer to s 66 of the Act (and presumably specifically assess whether full time imprisonment or making an ICO was more likely to address the applicant's risk of re-offending) when, having regard to the sentence imposed and her Honour's clear view that a period of full time imprisonment was appropriate, the sentencing judge could not make an order for an ICO.
5. Having said that, the ground of appeal is specified as being that the sentencing judge erred in not taking into account community safety as required by s 66 of the Act. Essential to ground 1 must thus be the proposition that the sentencing judge was required to have regard to s 66 in the sentencing process.
6. In R v Fangaloka [2019] NSWCCA 173 ("Fangaloka") at [44]-[45], Basten JA identified the correct approach to the sentencing process as follows: "44. Being characterised as a form of custodial penalty, the making of an ICO requires the sentencing judge to follow a three stage process in accordance with the principles stated in R v Zamagias and Douar v The Queen with respect to periodic detention. The first step is to determine, pursuant to s 5 of the Sentencing Act, that no penalty other than imprisonment is appropriate. The second step, as explained by Johnson J in Douar, is to determine the length of the sentence. That step was taken by the sentencing judge in determining that an overall term of imprisonment should be 2 years 6 months, comprising a sentence of 2 years for the robbery in company and a further sentence, partly accumulated, of 12 months for the assault occasioning actual bodily harm. 45. The third, and critical stage for present purposes, was to determine whether the sentence should be served by way of an ICO. The reasoning by which the judge concluded that such an order should be made implicitly treated the amendments to Pt 5 of the Sentencing Act as qualifying the need to have regard to the general purposes of sentencing set out in s 3A; the question is whether the amendments had that effect. That question requires reference to the legislative history, the Second Reading Speech introducing the amendments and the case law." (Footnotes omitted.)
7. The sentencing judge made a finding that no penalty other than imprisonment was appropriate, having regard to her finding as to the objective seriousness of the offending and the maximum penalty imposed by the legislature. Her Honour went on to say, in returning the applicant to custody, that it hurts the community that custody is a more expensive option than her being in the community and being supervised, but she felt that she had no option to do so in the circumstances of the offending. Her Honour said there should be a significant message of general deterrence and said that those who would behave in this way must face the prospect of periods in gaol to take account of the objective criminality of their offending.
8. Her Honour then determined the length of the sentence. The applicant does not challenge the term of 2.5 years. Indeed in her written submissions (paras 40-42) she says that no issue is taken with these two steps in the process.
9. The applicant's point must be that her Honour did not then go onto consider s 66 of the Act in the sense that her Honour did not consider community safety as the paramount consideration, even though she plainly considered matters of community safety more generally. However, her Honour did consider whether the sentence should be served by way of an ICO because she expressly said that she was considering it and went on to explain why she was declining to order an ICO. She identified the objective criminality of the offending as being too serious and considered that it was necessary to consider parity with the co-offender.
10. The failure of the sentencing judge to expressly identify that she was undertaking the three step process (as referred to in Fangaloka) does not demonstrate error when it is plain from the ROS that she did undertake the sentencing exercise in accordance with that process.
11. Her Honour concluded that an ICO was not appropriate in the circumstances of the case, in particular, because of the objective gravity of the offences. As it happens, s 68 of the Act prohibited use of an ICO in any event but her Honour's conclusion as to full time imprisonment meant that s 68 did not of itself operate as the bar to use of an ICO.
12. In para 6 of her written submissions, the applicant suggests that her Honour's discretion in relation to the availability of an ICO miscarried because she did not take into account community safety as the paramount consideration as required by s 66 of the Act. In fact, her Honour had no discretion to order an ICO, having followed the correct process and firstly determined the length of sentence, rather than commence the process with a consideration of community safety as referred to in Pt 5 of the Act and the appropriateness of an ICO having regard to the risk of re-offending. It follows that the discretion to order an ICO did not miscarry because there was no discretion to do so by virtue of s 68 of the Act.
13. In any event, in assessing community safety, there was no evidence to support the view that one form of imprisonment was more likely to reduce the risk of re-offending than another. The sentencing judge referred to the contents of the sentencing assessment reports when finding that the prospects of rehabilitation might appear to be relatively limited, particularly given the applicant's apparent lack of insight into her criminality and the fact that she has not taken full advantage of supervision offered in the past.
14. Her Honour also found that the applicant's prospects of rehabilitation would be greatly enhanced if she is offered psychiatric treatment whilst in custody and released on a community treatment program on parole so she is properly supervised and undertakes the necessary medication and, if necessary, counselling.
15. Her Honour specified her reasons for declining an ICO. They might have included that it was precluded by s 68. Describing the failure to refer to s 66 as a manifest error or an error which underpins the whole sentence ignores the reality of the sentence, in that based on the length of sentence an ICO was precluded.
16. In these circumstances it is unnecessary to further consider the issues raised in Fangaloka (Basten JA at [47]-[67]), most recently considered in Karout v R [2019] NSWCCA 253 at [57]-[59] and [89]-[94].
17. In my view ground 1 fails because there was only a requirement to consider community safety in accordance with s 66 of the Act for the purposes of deciding whether to make an ICO. As the sentencing judge had determined a length of sentence that precluded an ICO, there could be no error in not expressly then referring to s 66 of the Act.

Ground 2

1. The applicant submits that the sentencing judge misapplied the principle of parity in a way that unreasonably confined her sentencing discretion.
2. Her Honour had already sentenced the co-offender, Mr Peck (on 14 November 2018), to a total sentence of 1 year and 9 months commencing 15 November 2017 with a 12 month non-parole period.
3. In the ROS her Honour referred to the sentence imposed upon Mr Peck and the reasons for such a sentence. Her Honour referred to his subjective factors as well as the objective seriousness of his offending (as being at the bottom of the range). She then concluded that the sentence for the applicant must be higher than for Mr Peck to take into account the far greater role she played in the offending and the objective seriousness of the offending itself. Her Honour emphasised that it is important that questions of parity be properly taken into account. Her Honour then went on to identify the issue of parity as being one of the reasons why she did not consider an ICO appropriate.
4. Whilst acknowledging the principle that like offenders should be treated in a like manner: Lago v R [2015] NSWCCA 296 at [55], the applicant submits that, as was stated in Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ; [1984] HCA 46, things are not always equal and matters such as age, background, previous criminal history and general character of the offender and the part played in the commission of the offence have to be taken into account. Further, the applicant submits that the principle of parity should not be applied in such a way as to result in an offender receiving a harsher sentence than might otherwise be appropriate.
5. Further, as the applicant submits, caution is required not to artificially increase or make harsh a sentence for the purposes of parity: R v Nguyen [2010] NSWCCA 331 at [62] and R v Connell [2013] NSWCCA 155 at [46].
6. The primary submission made in the applicant's written submissions is that the principle of parity acted as a form of detriment to the applicant because the co-offender was ineligible for an ICO. Mr Peck was ineligible for an ICO as he intended to reside in a different jurisdiction (and thus was ineligible) by virtue of s 69(3) of the Act.
7. The applicant submits that the sentencing judge's approach to sentencing the applicant led to a harsher sentence in order to pre-emptively avoid a perceived sense of grievance by the co-offender who could not serve his sentence by way of an ICO.
8. In my view, ground 2 suffers from the same inherent difficulty that arises in ground 1. The focus of ground 2 is that the sentencing judge was incorrectly influenced by the issue of parity in determining not to order an ICO in respect of the applicant. However, as the applicant was not entitled to an ICO based on the length of the sentence then the way in which the sentencing judge approached the issue could hardly have been to the detriment of the applicant.
9. In reality, this case falls into the category of cases in which there are a number of relevant differences between co-offenders. Two critical differences identified by the sentencing judge were that the role played and the objective seriousness of the offending itself were greater in respect of the applicant. Further, Mr Peck's prospects of rehabilitation were far better than those of the applicant.
10. The applicant is correct in her submission that the sentencing judge raised the issue of parity as one of the reasons why she did not consider that an ICO would be appropriate but her Honour had already determined the length of sentence and thus that an ICO was precluded in respect of both the applicant and the co-offender. Further, her Honour did have regard to the issue of parity in determining the sentence to be imposed upon the applicant and made express reference to the matters that distinguished the applicant and Mr Peck, in circumstances where her Honour was sentencing both offenders: Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at [77]-[78].
11. In my opinion, ground 2 fails.

Ground 3

1. The applicant submits that the sentencing judge failed to properly account for the applicant's mental health. This is not so. After referring to her family history and the substantial history of mental illness within her family, the sentencing judge specifically stated that she accepted Professor Davies' opinion that the applicant has presented with a psychotic illness and has a long history of substance abuse. Further, the sentencing judge specifically concluded that the commission of the offence was necessarily connected with the psychiatric illness and held that even if the evidence about that connection was not clear, the applicant presented as a person who continued to suffer from a form of psychiatric illness albeit at that time she was not being treated with medication.
2. Further, the applicant submitted that the final remarks in the ROS relating to general deterrence demonstrate that her Honour put aside the applicant's mental illness. Again, I do not agree. The sentencing judge specifically observed that there should be a significant message of general deterrence sent to people who would behave in the way that the offender did and then concluded that, even if they are suffering from some form of psychiatric illness, they must face the prospect of gaol to take into account the objective criminality of their offending. The express reference to persons who are suffering from some form of psychiatric illness in the context of sentencing the applicant must be taken as a reference to the applicant's psychiatric illness.
3. Ground 3 has not been established.

Ground 4

1. The applicant submits that the sentencing judge did not give adequate reasons. No oral submissions were made on this point. The primary written submission is that the sentencing judge's reasons do not sufficiently explain the weight afforded to significant considerations and that specifically: 1. the sentencing judge did not set out how the paramount consideration of community safety featured in declining an ICO; 2. the sentencing judge did not articulate the relationship between parity and the reasons that would preclude the sentence being served in the community; and 3. the sentencing judge did not explain how the applicant's mental illness informed the sentence (aside from special circumstances).
2. For the reasons which will be apparent from this judgment the written submissions on this topic are flawed because they proceed on the basis that the sentencing judge had a discretion to order an ICO and erred in not doing so.
3. Having failed on each of these three earlier points, there is no merit in the applicant's submission that her Honour failed to give adequate reasons.

Conclusion

1. The applicant has not made good any of her grounds of appeal. If error had been demonstrated with the Court applying s 6(3) of the Criminal Appeal Act 1912 (NSW), it would have been necessary to consider the appropriate sentences for serious offences where two young persons were each victimised. This aspect would have been relevant to issues of concurrency and accumulation: R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534 at [105]-[109]. The sentencing judge's approach of totally concurrent sentences was generous to the applicant given the traumatic effects of the offences on two child victims. However, as error has not been demonstrated, it is not necessary for this Court to consider this aspect further.
2. In the circumstances, the orders I propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2019