Cross v R

The factual circumstances

1. The sentencing judge noted that there were differences in the statements of agreed facts tendered in the applicant's, Ms Priddle's and Mr Watt's sentencing proceedings. Her Honour said that it was regrettable that they were not consistent with each other and stated that separate negotiation should not have occurred. Nevertheless, she sentenced them on the basis of a common set of facts in relation to which no point is taken on appeal.
2. On appeal, the Crown summarised the common agreed facts as follows: 1. On Sunday 27 September 2020, the victim (Mr Latter, who was 19 years old) was at the house of Ms Priddle in Inverell, NSW, together with Ms Priddle, the applicant and another male. The victim obtained $20 worth of cannabis from the applicant but he did not have funds to pay her. The victim arranged to pay the applicant $20 the following day, as well as other money the victim owed the applicant, or to hand over his new shoes to the applicant. These facts formed the basis of a supply charge that was dealt with by a s 166 certificate. 2. Later that day, the victim again attended the Priddle residence. The applicant approached the victim and told him that she wanted her money but the victim again indicated that he had insufficient funds. The victim explained that he expected to have funds later that evening and offered to remain at the Priddle residence until he received them. 3. At about 2:00am on Monday 28 September 2020, the victim advised the applicant that he had received funds into his bank account. The applicant drove him to a bank and the victim withdrew $200 and voluntarily provided $150 to the applicant, as part of the money owed to her. The victim kept the remaining $50. 4. The applicant and victim then returned to the Priddle residence. Once at the Priddle residence, the applicant and Ms Priddle locked the front and rear doors of the residence. Ms Priddle said to the victim, "You're not leaving until we get the money". The applicant, Ms Priddle, the victim and another male remained there during the day. 5. At about 6:30pm the applicant and Ms Priddle came into the lounge room and the applicant said to the victim, "Well you need to organise something, either ring your dad or organise to get some money". The applicant dialled the victim's father, placing the phone on loudspeaker. The victim's father agreed to assist and told the victim to go to the victim's residence to collect money. The applicant, the victim and another woman drove to the victim's residence (see [51] and [52] as to whether Ms Priddle went with them). 6. Once outside the victim's residence, the victim called out to a family member to bring his shoes. The applicant became suspicious and aggressive towards the victim and placed the child locks on inside the vehicle to prevent the victim from escaping. The applicant drove away from the victim's residence before the victim could get his shoes or money as arranged. The applicant drove the victim back towards Inverell before parking in a truck stop. The applicant told the victim, "If you don't stop being cheeky, I'm going to hit you". 7. In the car, the applicant grabbed the victim by the shirt and held him. The applicant punched him forcefully several times to the rear of the head. The victim struggled and told the applicant to get off him. The applicant eventually got off the victim and told him to remain on the floor of the car. 8. The applicant then drove the victim back to the Priddle residence and the victim was taken inside. The rear door of the Priddle residence was locked and the applicant, Ms Priddle and another male remained near the front door to prevent the victim from leaving. The victim remained in the lounge room area for the coming hours. The applicant temporarily left the Priddle residence to inject ice at another location. 9. At about midnight at the end of Monday 28 September 2020, the applicant, Ms Priddle and another male entered the lounge room. The applicant held a brown leather dog collar with a silver buckle. Ms Priddle obtained a dog lead from another room. 10. The applicant told the victim to take off his clothing and the victim removed his clothing down to his underwear. The applicant grabbed the victim by the neck area and forced him to the ground. The victim attempted to get up and the applicant stepped on his back and, as the victim struggled, placed the dog collar around his neck and attached the lead. 11. The applicant, in the company of Ms Priddle, pulled the victim out the front door of the residence. The applicant pulled on the dog lead causing the victim to fall and strike his head on the concrete. The victim pleaded with the applicant to stop. The applicant forced the victim to crawl as she pulled him for about 200 metres over grass, bitumen and concrete. The victim suffered significant pain and grazing to his limbs that started to weep and bleed. The victim was forced to say repeatedly "William Latter is a dog, woof woof, and he barks like a dog too" under the threat of being kicked by the applicant. 12. The victim was led around the Aboriginal Community Centre. The applicant kicked the victim to the left side of his torso with such force that he was winded. The applicant then led the victim back to the Priddle residence, repeatedly kicking the victim with increasing ferocity. At one point, the applicant forced the victim to kneel like a begging dog and kicked the victim in the testicles with such force that he fell to the ground. The victim began to cry and begged to be let go. 13. Upon returning to the Priddle residence, the applicant and Ms Priddle forced the victim to sit curled up under a desk in his underwear for a number of hours. Photographs of the victim were taken by Ms Priddle and one photograph was distributed on Facebook. The victim was denied food or sleep, including by the applicant tipping water on him on one occasion. Ms Priddle's involvement ended at this point. 14. At about 9:00am on Tuesday, 29 September 2020, Mr Watts arrived at the Priddle residence. The victim was allowed to dress and Mr Watts then bound his wrists and ankles with duct tape. The applicant and Mr Watts carried the victim to a red station wagon and loaded him in the boot. At this stage the victim feared he was going to be killed. The applicant and Mr Watts drove the victim to another location in Inverell where they left him bound in the lounge room. The applicant said to the victim "If you do this again, you're going to get worse". The applicant then left the victim. The victim was released by another person and then left the house without further incident and was collected by his father at about 5:00pm on Tuesday, 29 September 2020. 15. On Wednesday, 30 September 2020, the victim attended Inverell Hospital and police were contacted. As a result of the incident, the victim suffered serious grazing to his knees, feet and hands, along with red marks to the back of his head, swelling to his testicles and was unable to urinate for two days. One of the grazes to the victim's arms became infected, requiring antibiotics.
3. On 29 and 30 October 2020 respectively, Ms Priddle and the applicant were arrested.

Objective seriousness - generally

1. The sentencing judge considered the objective seriousness of the offences by reference to the maximum penalties applicable for the aggravated and specially aggravated offences with which the offenders were charged. In a general observation her Honour stated that "[d]epriving someone of his or her liberty; namely, kidnapping, has long been regarded as a very serious offence and rightly so … such acts deserve to be condemned". Her Honour considered that the s 5 threshold (no sentence other than imprisonment being appropriate) was crossed for each offender due to the objective seriousness of the offences and the need for general deterrence.
2. Her Honour found that both the applicant and Ms Priddle "subjected the victim to humiliation and degradation", which was gratuitous and serious, and that this informed the objective seriousness of the offence for both of them. The conduct was significant and therefore operated as an aggravating factor.

Objective seriousness - the applicant

1. In relation to the applicant, her Honour found that: 1. the "offending undertaken by [the applicant] is objectively very serious" taking into account the length of the detention, the multiple locations of the detention, and the number and severity of the assaults committed by the applicant; 2. the injuries suffered by the victim and caused by assaults committed by the applicant "amount to a relatively serious example of actual bodily harm", including bruising, bleeding, grazes to the knees and swelling of the testicles that was so bad the victim could not urinate for two days; 3. the objective seriousness was "at least around the middle of the range for offences capable of being charged under [s 86(3) of the Crimes Act]."

Objective seriousness - Ms Priddle

1. In relation to Ms Priddle, her Honour found that there were various factors that lowered the objective seriousness of her offending compared to that of the applicant, namely that: 1. Ms Priddle was not the person who inflicted the actual bodily harm, although she did assist the applicant; 2. she was not the person who made most of the threats and demands, although she did make some; 3. she was not present during the whole period of detention in which Ms Cross was engaged; and 4. to the extent that she was present, there was no evidence to show that she knew that there would be a detention in the way that it occurred.
2. Notwithstanding the above, the sentencing judge found that Ms Priddle "played an active part in [the victim's] ongoing detention", "was an active participant in the humiliation and degradation", was present when the applicant assaulted the victim, did nothing to intervene or to prevent it, made demands of the victim and assisted the applicant.
3. In summary, the sentencing judge found that the objective seriousness of Ms Priddle's offending was "below the middle of the range but still very serious".

Victim impact statement

1. The sentencing judge also took into account the impact of the offending on the victim. This was detailed in a victim impact statement tendered without objection. The sentencing judge accepted that the victim would have suffered ongoing psychological sequelae as a result of the offence, including anxiety and fear of being alone.
2. Her Honour accepted that there have been adverse consequences on the victim but that the evidence of those consequences was such that her Honour accepted that they would not amount to an aggravating factor.

Discount

1. The sentencing judge noted that the applicant and Ms Priddle both pleaded guilty in the Local Court and were therefore entitled to a discount of 25% to represent the utilitarian value of their pleas.

Subjective circumstances - applicant

1. The sentencing judge considered the applicant's subjective circumstances in detail. These were primarily described in the report of Ms Bollinger, a forensic psychologist.
2. Her Honour noted that the applicant had a dysfunctional upbringing, marked by domestic violence between her parents and sexual abuse by a friend of her father for a period of a year when she was twelve years old. The applicant fell pregnant with her first son when she was 15 years old. The sentencing judge found that the applicant's moral culpability was somewhat diminished because of her deprived background, which "almost certainly had a connection to her then downward spiral into drug use and criminal offending".
3. Her Honour found that the applicant's education and work history were "not good", noting that her schooling included frequent truanting, excessive alcohol consumption and the use of cannabis.
4. Her Honour also found that the applicant had been diagnosed with a number of psychiatric conditions including Post Traumatic Stress Disorder and anxiety, which made her a somewhat reduced vehicle for general deterrence.
5. Her Honour described the applicant's criminal history as "extensive … which would be expected from such a background". Despite the length of the applicant's criminal record, her Honour found that the applicant "does not have a criminal history involving offences of violence … [and that it] is not one which operates as an aggravating factor", though it disentitled her to leniency.

Prospects of rehabilitation - applicant

1. The sentencing judge found that the main issue informing the applicant's criminal history was her use of and addiction to drugs, noting that there was a clear connection between her drug use on the one hand and her historical offending and the current offence on the other. Her Honour noted that the applicant was not using drugs while in custody and was motivated to stay off drugs to be a mother to her children but found that her "prospects of rehabilitation are somewhat guarded given her very lengthy drug history and the fact that she has on many other occasions had assistance to overcome it but without success".

Remorse and contrition - applicant

1. Her Honour found the applicant's remorse and contrition "hard to gauge". The applicant gave a somewhat exculpatory report to her forensic psychologist, Ms Bollinger. However, the applicant was found to have accepted the criminal activity and to have claimed that reading and hearing of the events in question "makes her sick". It was found she expressed "some remorse and contrition for the victim".

Subjective circumstances - Ms Priddle

1. Ms Priddle's subjective circumstances were described in the report of Ms Manoski, a forensic psychologist, and a Sentencing Assessment Report dated 16 September 2021.
2. Ms Priddle was 37 years old at the time of sentence and is the mother of six children. Five of the children are to one partner and one to a second partner. Five of the children live with their father and the youngest, 9 years old, lived with Ms Priddle prior to her arrest and is now cared for by Ms Priddle's mother.
3. The sentencing judge found that Ms Priddle's mother appears to offer "pro-social modelling and values and will remain available to [Ms Priddle] in the community".
4. Her Honour found that Ms Priddle appeared to have had "some disruption" in her childhood but had a "relatively positive upbringing". Ms Priddle did however experience a lack of stability due to her family frequently moving, resulting in her attending approximately ten schools. She moved out of home when she was 16 years old and has had three relationships since, including with a person that was present at the offending and who seems to have been involved in the drug culture which led to Ms Priddle relapsing into drug use at the time of the offending.
5. Ms Priddle was found to have a history of drug use, including intravenous use of methylamphetamine, but this was claimed to be interspersed with periods of abstinence. Ms Priddle claimed to have relapsed and started using drugs during the period when the victim was detained.
6. The sentencing judge referred to Ms Priddle's "very limited" criminal history and found that there was nothing in it "even vaguely approaching the seriousness of this offence and nothing to indicate a propensity to violence" and that the offence was a "very significant escalation in the seriousness of her offending".

Remorse and contrition - Ms Priddle

1. Her Honour noted that Ms Priddle had expressed some remorse and contrition but that she tried to minimise the seriousness of her involvement by claiming that her presence reduced the potential for more serious violence to the victim. Ms Priddle also claimed that she feared the applicant but the sentencing judge found that there was no evidence to support this.
2. Her Honour noted the offending partly occurred in Ms Priddle's house, there was an opportunity for Ms Priddle to bring the offending to an end (when the applicant was absent) and that Ms Priddle was an active participant in the humiliation and degradation of the victim.
3. Her Honour found that Ms Priddle's prospects of rehabilitation were "relatively good given her limited history, her good performance in custody and access to pro-social influences in the community" and that Ms Priddle had undertaken some programs in custody that would help her rehabilitation.

Parity between the applicant's and Ms Priddle's sentences

1. The sentencing judge referred to the issue of parity at a number of points in her Remarks on Sentence.
2. First, her Honour indicated that it was necessary for the three offenders to be sentenced together "in order to determine respective roles, relative objective seriousness, parity and the like".
3. Her Honour later referred to the different maximum penalties applicable to the offences of which the applicant on the one hand and Ms Priddle and Mr Watts on the other hand were convicted. Her Honour then referred to the objective seriousness of the offences being different for each of the offenders, stating: "The length of the detention was significant, between 12 and 15 hours [sic]. It was conducted in two [sic] different places, the car initially then back in the house, and then around the streets albeit at night in the back streets of Inverell. [Ms Cross] assaulted [the victim] on more than one occasion in the car and then in the house and the street and did so with considerable force. Whilst it is an element of the offence that actual bodily harm was caused to the victim it was in fact [Ms Cross] who caused it. The injuries suffered by the victim amount to a relatively serious example of actual bodily harm namely bruising, bleeding, grazes to the knees and swelling to the testicles so bad that he could not urinate for two days. Further, [Ms Cross] subjected him to humiliation and degradation as did Ms Priddle. This finding is a relevant finding for both Ms Cross and Ms Priddle that is, that the objective seriousness is informed to an extent by the fact that they subjected the victim to humiliation and degradation."
4. Having concluded that the objective seriousness of the applicant's offence was "at least around the middle of the range" for offences under s 86(3), her Honour described Ms Priddle's offending as follows: "For Ms Priddle the objective seriousness for her offending is also very serious. It is not as serious as for Ms Cross because, whilst she was present at all times, she was not the person who inflicted the actual bodily harm. She was not the person who made most of the threats, although she did make some. She was also not present during the whole of the period of detention in which Ms Cross was engaged. The evidence would appear to be that she did not leave … at the beginning of the detention, but the detention was in her house, [and] she was present when the demands were made. She knew where they were going but there is nothing in the evidence to show that she knew that there would be a detention in the way that it occurred. Certainly by the time Ms Cross returned with the victim, Ms Priddle played an active part in his ongoing detention, including being present at the front door with the others preventing him from leaving. [Ms Priddle] was also an active participant in the humiliation and degradation, filming the events and accompanying Ms Cross as [the victim] was paraded around the streets of Inverell. She was present when Ms Cross assaulted him. She did nothing to intervene or attempt to prevent it. She did not herself assault him but she did make demands and she assisted [Ms] Cross. It is not, in my view, at the bottom of the range for offences of this type, as submitted. It is below the middle of the range but still very serious."
5. Her Honour made the following observations when formulating the sentences to be imposed: "For Ms Cross, given her substantially more serious offending and other factors, it seems to me that the starting point for her sentence is 6 years which I reduce by 25% to an overall term of 4 years and 6 months. There is a need for a longer than normal period of supervision in the community, as I have said, and I also take into account the onerous circumstances of her custody during the time of COVID. I will be imposing a non-parole period of 2 years and 6 months for her with 2 years on parole with a 4 year and 6 month term overall. Ms Priddle is to be sentenced for an offence with a lower maximum penalty and for a somewhat lower involvement than Ms Cross. I am using 4 years as the starting point for that sentence reduced by 25% giving rise to an overall term of imprisonment of 3 years and I will be setting a term of 18 months non-parole for the special circumstances that I have already indicated."

Consideration of the application for leave to appeal

1. The applicant contends that she suffers a justifiable sense of grievance when comparing her sentence with the sentence imposed on her co-offender Ms Priddle.

Parity principle

1. An authoritative statement of the parity principle is found in the High Court decision of Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 in which French CJ, Crennan and Kiefel JJ said the following at [28]: "… Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances." (Footnotes omitted. Emphasis added.)
2. I referred to Green in Baquiran v R [2014] NSWCCA 221 at [56] as follows: "As French CJ, Crennan and Kiefel JJ said in Green… at [28], the parity principle requires 'that like offenders should be treated in a like manner' but 'allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances'. Whilst an appellate court will, because of the discretionary nature of the sentencing judges' decisions, exercise caution before intervening, it will do so where there is a marked disparity between offenders' sentences that cannot be explained by differences in the offenders' offences or circumstances." (Emphasis added.)
3. The nature of the principle was further explained recently in Smith (a pseudonym) v R [2022] NSWCCA 123 at [45]-[46] by Bell CJ (Button J and N Adams J agreeing) as follows: "45 When a question of parity arises on appeal but it is a matter which, as in the present case, has been the subject of attention by the sentencing judge, House v The King [(1936) 55 CLR 499; [1936] HCA 40] error must be established. As was said by Basten JA, Adamson J and Bellew J in Afu v R [[2017] NSWCCA 246 at [15]], '[w]here a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene.' 46 In determining whether a disparity in sentences between co-offenders is justified by differing circumstances, an appellate court must have regard to the discretionary and qualitative nature of the process of drawing relevant distinctions between co-offenders. Accordingly, the proper enquiry for an appellate court is that put by R A Hulme J in Lloyd v R [[2017] NSWCCA 303 at [97]]: 'was the differentiation made by the judge one that was open to her [or him] in the exercise of her [or his] discretion?'". (Footnotes omitted.)
4. The applicant's counsel accepted that the following factors justified "some disparity" between the sentences imposed on the applicant and Ms Priddle: "a. The different maximum penalties of the offences for which they were sentenced (25 years versus 20 years, respectively); b. The applicant's greater role in the offence; c. Ms Priddle's more limited criminal history; and d. Ms Priddle's more favourable prospects of rehabilitation."
5. Counsel however emphasised that the applicant's sentence, being a head sentence of 4 years and 6 months, was 50% more than the sentence of 3 years imposed on Ms Priddle. She submitted that that degree of disparity was not reasonably justified.
6. First, she submitted, orally, as follows: "In this case her Honour did not advert to the particular issue that is raised on this appeal, that is that there is some overlap between the reason why the accused has liability under the specially aggravated form of the offence and the reason why her role is more serious than Ms Priddle, such that when her Honour takes those two matters into account her Honour should moderate the weight to be given to them, to be cautious to avoid double counting."
7. I do not consider however that her Honour double-counted in the manner as suggested. Her Honour properly recognised that the offence of which the applicant was convicted was more serious than that of which Ms Priddle was convicted. This was reflected in the respective descriptions of the offences in the Crimes Act of "Aggravated offence" and "Specially aggravated offence" and by the consequent significant difference in maximum penalties (20 years imprisonment as against 25 years imprisonment).
8. Her Honour assessed the applicant's offence as higher in the range relevant to her offence ("at least around the middle of the range") than the point of Ms Priddle's offence in the range relevant to her offence ("below the middle of the range but still very serious"). To that difference in objective seriousness her Honour was entitled to add the fact that she was assessing the applicant's conduct in a range applicable to a significantly more serious offence than that of which Ms Priddle was convicted. There was no double-counting involved in this process.
9. Moreover, because it was not an element of the applicant's offence under s 86(3) that the actual bodily harm be caused by her personally, it was proper for her Honour to identify the severity of that actual bodily harm, which she described as "relatively serious" (see [37] above), and to consider the applicant's role in causing it.
10. The applicant sought to minimise the differences between her role and that of Ms Priddle. The Crown however contended that there were significant differences as follows: "The applicant identifies several differences in the roles played by the applicant and Ms Priddle, including that Ms Priddle was not present for two of the episodes of the victim's detention when the applicant was, and that her participation amounted to assisting in preventing the victim from leaving and being present at and filming the victim being forced to strip down and be led around in public on a lead while being subject to numerous assaults and forced humiliations, all of which was done by the applicant. Each of these differences explain why the substantially greater role the applicant played in the offending justified a substantially higher penalty than that imposed on Ms Priddle. Added to this are the facts that the applicant … took the leading role …, and that the purpose of the detention was to obtain a financial advantage, namely repayment of debts the victim owed to the applicant."
11. These contentions assume that Ms Priddle was not present in the car when the applicant drove the victim to the victim's home on the evening of Monday 28 September. The sentencing judge appears to have found otherwise notwithstanding that the statements of agreed facts that were before her indicate that Ms Priddle was not then present.
12. No point however was taken on appeal about this possible discrepancy, presumably because highlighting it would not have assisted the applicant in this Court. If Ms Priddle was not then in the car, the sentencing judge erroneously proceeded on the basis that Ms Priddle's offence was more serious than it was. If that occurred, the justification for imposing a much higher sentence on the applicant than on Ms Priddle would be all the greater.

Differences in subjective cases

1. Counsel for the applicant further submitted that the sentencing judge referred to "other factors" when determining the starting point for the applicant's sentence but did not identify those "other factors". The Crown submitted, correctly in my view, that the "other factors" referred to by the sentencing judge were the various elements of the subjective cases to which her Honour had referred. In particular, the sentencing judge found that the applicant's prospects of rehabilitation are "somewhat guarded given her very lengthy drug history" and her remorse and contribution are "somewhat hard to gauge", whereas Ms Priddle's prospects of rehabilitation are "relatively good" given her limited criminal history, the fact that this is her first time in custody, and her access to pro-social influences in the community.
2. The applicant's counsel further submitted that in any event the applicant had a more compelling subjective case than Ms Priddle and that this reduced the significance of the difference in objective seriousness of their offences. In response, the Crown correctly pointed out that there were subjective factors in relation to both offenders that worked, in different ways, to reduce their sentence. In the case of the applicant, her moral culpability was reduced by her disadvantaged personal history and in the case of Ms Priddle, she had better prospects of rehabilitation, leading to enhanced employment prospects and a lower prospect of reoffending.
3. Moreover, the objective seriousness of the applicant's conduct was considerably higher than that of Ms Priddle (see [47]-[49] above). Whilst the applicant arguably had the stronger subjective case because of her deprived background, the difference was not in my view sufficient to render the difference between the sentences beyond the range of differences reasonably open to the sentencing judge. The differentiation between the sentences was not therefore demonstrated to be unreasonable, with the result that although leave to appeal should be granted, the appeal should be dismissed.
4. The applicant further submitted that the difference in real terms between the applicant's and Ms Priddle's sentences was exacerbated by the principle that the severity of a sentence is not linear but instead increases exponentially as it gets longer (R v MAK [2006] NSWCCA 381 at [16]; (2006) 167 A Crim R 159 at 164). The Crown accepted that this was a factor to be taken into account in considering the applicant's application for leave to appeal, as do I, but doing that does not lead me to conclude that the difference between the sentences is beyond the relevant range.
5. Finally, I note that the applicant and Ms Priddle were sentenced by the same Judge at the same time and that her Honour gave explicit and careful consideration to the issue of parity. In reaching the conclusions stated above I have proceeded on the basis that this does not mean that there must be a greater level of disparity for the principle to operate than if the co-offenders were sentenced by different judges (see Borg v R [2019] NSWCCA 129 at [88]-[90]).
6. BUTTON J: I agree with Macfarlan JA.
7. WILSON J: I also agree with Macfarlan JA.

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: 09 December 2022