[2014] HCA 2
Barrett v R [2020] NSWCCA 11
Betts v The Queen (2016) 258 CLR 420
[2016] HCA 25
Chung v R [2017] NSWCCA 48
CMB v The Attorney General (NSW) (2015) 256 CLR 346
[2015] HCA 9
Cooper v R [2009] NSWCCA 57
Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428
[2017] HCA 41
Goodbun v R [2020] NSWCCA 77
Hili v The Queen
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 2
Barrett v R [2020] NSWCCA 11
Betts v The Queen (2016) 258 CLR 420[2016] HCA 25
Chung v R [2017] NSWCCA 48
CMB v The Attorney General (NSW) (2015) 256 CLR 346[2015] HCA 9
Cooper v R [2009] NSWCCA 57
Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428[2017] HCA 41
Goodbun v R [2020] NSWCCA 77
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Monis v The QueenDroudis v The Queen (2013) 249 CLR 92[2013] HCA 4
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
R v Borkowski [2009] NSWCCA 102195 A Crim R 1
R v Droudis (No 14) [2016] NSWSC 1550
R v Qutami [2001] NSWCCA 353127 A Crim R 369
R v Sharma (2002) 54 NSWLR 300[2002] NSWCCA 142
R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309
R v Weismantel [2016] NSWCCA 204
The Queen v Pham (2015) 256 CLR 550
[2015] HCA 39
Wong v The Queen (2001) 207 CLR 584
[2001] HCA 64
Xiao v R (2018) 96 NSWLR 1
Judgment (20 paragraphs)
[1]
Citation: [2017] NSWSC 20
Date of Decision: 01 February 2017
Before: Johnson J
File Number(s): 2013/345405
[2]
[This headnote is not to be read as part of the judgment]
Amirah Droudis (the applicant) was found guilty of the 2013 murder of Helen Lee (a pseudonym) and was sentenced to a term of imprisonment of 44 years, with a non-parole period of 33 years. She sought leave to appeal against her sentence.
The applicant was the partner of Man Haron Monis, and Ms Lee (the victim) was Monis' former wife. Whilst in a relationship with Monis, the applicant converted to Islam and participated with him in various extreme and offensive activities. It was not controversial that Monis had exercised a significant degree of influence over the applicant and that she was prepared to act at his behest. The victim and Monis separated in 2011, and Monis obtained visitation rights with respect to their two sons. From mid-2012, the applicant and Monis became extremely close and Monis would encourage his sons to address the applicant as if she was their mother, with his plan being to create a family unit with the applicant, her daughter and his sons. It was common ground that Monis planned the murder of the victim, but was not prepared to carry out the killing himself.
On 21 April 2013, the applicant waited for the victim at an apartment which was used by Monis for child access visits. The applicant stabbed the victim 18 times and set her body alight. She then fled the scene. The sentencing judge found that the crime lay "very significantly above the mid-range of objective seriousness".
Monis, the perpetrator of the Lindt Café seige, died there on 16 December 2014 before the commencement of the applicant's trial. Despite her plea of not guilty, the applicant provided assistance at the trial which facilitated the administration of justice, including by limiting the facts in issue.
On the appeal, the applicant first contended that the sentencing judge erred in his assessment of the significance of the death of Monis to her risk of re-offending and prospects of rehabilitation. She also contented that he erred in his application of s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and that the sentence was manifestly excessive.
The Court upheld the first ground of appeal and re-sentenced the appellant to a term of imprisonment of 35 years with a non-parole period of 26 years and 3 months.
Significance of the death of Monis to risk of re-offending and prospects of rehabilitation
i) Whilst the applicant's relationship with Monis did not reduce her moral culpability or the gravity of the offence, the death of Monis and the removal of his ongoing influence were relevant factors to take into account in considering personal deterrence, future dangerousness and prospects of rehabilitation: [68]-[71] (the Court).
ii) There was nothing to suggest that the applicant's continued adherence to the Islamic faith rendered it more likely that she would engage in future criminal activity of the nature of that for which she had been convicted: [72] (the Court).
Application of s 22A of the Sentencing Procedure Act
i) The sentencing judge gave proper consideration to the nature of the assistance given: [99] (the Court).
ii) Section 22A does not require a two-stage approach to sentencing. Matters under s 22A can be taken into account as part of the instinctive synthesis approach to sentencing. The section does not create a legal requirement for a sentencing judge to specify a percentage discount or to quantify mathematically the extent by which the sentence has been reduced: [100]-[104] (the Court).
R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142, referred to.
iii) It is nonetheless desirable to specify the penalty which would be imposed but for the facilitation of the administration of justice where the facilitation has made a significant difference to the sentence. This has the benefit of providing transparency and encouraging the efficient and expeditious conduct of trials: [105] (the Court).
Issues relevant to resentence
i) Despite the relevance of the death of Monis, the offence was a very serious one in which considerations of retribution and general deterrence play a significant part on sentence: [120]-[129] (the Court).
Barrett v R [2020] NSWCCA 11; Goodbun v R [2020] NSWCCA 77, considered.
ii) The point of having regard to comparable cases is to provide guidance as to the identification and application of relevant sentencing principles. Such cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence, although the range so disclosed is not necessarily the correct range: [130] (the Court).
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41, referred to.
[3]
Judgment
THE COURT: The applicant, Amirah Droudis (the applicant), was convicted on 3 November 2016 of the murder of Helen Lee (a pseudonym) following a judge alone trial.
On 1 February 2017 she was sentenced to a term of imprisonment of 44 years, comprising a non-parole period of 33 years commencing on 22 December 2014 and expiring on 21 December 2047 with a balance of term of 11 years commencing on 22 December 2047 and expiring on 21 December 2058.
The applicant has sought leave to appeal against her sentence.
[4]
The sentencing judgment
The background to the murder, the circumstances of the killing, the applicant's subjective circumstances and other matters relevant to the sentence and to the appeal are fully set out in the sentencing judgment. What is set out below is a summary of that judgment.
The applicant was born Anastasia Droudis in July 1979 of Greek Orthodox background. At the time of the murder of Ms Lee (the victim) she was the partner of Man Haron Monis (Monis). The victim was the former wife of Monis and the mother of their two sons, who at the time of the murder were aged 8 and 5 years. The sentencing judge noted that prior to meeting Monis in 2003 the applicant was not involved in any criminal conduct.
The sentencing judge noted that Monis died on 16 December 2014 in the Lindt Café in Sydney as a result of his own criminal and murderous acts. He stated that Monis "may be described accurately as an evil man" who "exploited what life in Australia offered to him" and who "used persons with whom he came into contact". He described Monis' personality as being marked by "a grandiose sense of self-importance, a lack of empathy and a demonstrated capacity for exploitative behaviour and deceitful conduct". He noted that in his judgment in the judge alone trial of the applicant in R v Droudis (No 14) [2016] NSWSC 1550 (Droudis (No 14)), he found that Monis had planned the murder of his former wife, although he was not prepared to carry out the killing himself, with the applicant doing so on his behalf. This finding was not disputed on this appeal.
His Honour found that the applicant had formed a very close bond with Monis which persisted for years and intensified between 2012 and 2014. He referred to Droudis (No 14) in which he described the applicant and Monis as having a "highly unusual and longstanding relationship".
His Honour stated that in early 2003, Monis met the victim after she responded to an advertisement in a community newspaper with respect to his spiritual healing business. They formed a relationship and married in August 2003 and had two sons born in 2004 and 2008.
The sentencing judge stated that Monis and the applicant commenced an intimate relationship by at least 2006 which continued, with varying degrees of intensity, until 21 April 2013 and beyond. He stated that it was apparent that Monis had a great impact upon the applicant, with her converting to Islam and changing her first name from Anastasia to Amirah by July 2008. The sentencing judge referred to what he described as Monis' self-appointment as "Sheikh Haron", with a website established in that name as a vehicle for hateful and offensive propaganda. He stated that a powerful indicator of the impact of Monis upon the applicant may be seen from her activities in 2008 and 2009 appearing in extreme and offensive videos associated with Sheikh Haron. He referred to the applicant appearing in videos under the guise of "Sister Amirah", reciting "with feeling and passion" scripts written by Monis. He noted that in her presentations the applicant praised Osama Bin Laden, delivered a fatwa against then President-elect Obama, and expressed happiness about the Holocaust, the September 2001 terrorist attacks and the Bali bombings of October 2002. He stated that the applicant "uncritically adopted and espoused" Monis' beliefs and acted in support of him in public protests in June 2008 and November 2009. She also assisted in highly offensive activities that Monis directed towards the families of deceased Australian servicemen: see Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92; [2013] HCA 4. The sentencing judge noted that the applicant pleaded guilty to one count of aiding and abetting Monis in the offensive use of the postal service, for which she was placed on a good behaviour bond. He also noted that in September 2013, some four months after the murder of the victim, the applicant assisted Monis by filming him outside the Downing Centre where they had been sentenced, with her smiling as Monis defended his activities.
[5]
The grounds of appeal
The applicant relied on the following grounds of appeal:
"1. The sentencing judge erred in his assessment of the significance of the death of Man Haron Monis to the applicant's risk of re-offending and prospects of rehabilitation.
2. The sentencing judge erred in his application of s 22A of the Crimes (Sentencing Procedure) Act 1999 to the applicant's case.
3. The sentence is manifestly excessive."
[6]
Ground 1 - The sentencing judge erred in his assessment of the significance of the death of Man Haron Monis to the applicant's risk of re-offending and prospects of rehabilitation
[7]
a The applicant
In written submissions on this ground the applicant referred to the findings of the sentencing judge which we have set out at [5], [6], 29, [38] and [39] above. She also referred to his findings in Droudis (No 14) at [628]-[629] that the applicant had a tendency to do the bidding of Monis, in whatever manner he desired, including acts of illegality and acts that were socially and morally reprehensible, and his conclusion in Droudis (No 14) at [762] that it was her relationship with Monis that led the applicant to adopt her extreme religious beliefs and adopt uncritically Monis' view of the world with its extreme and perverse features.
It was submitted that these findings made it clear that all the criminally and morally reprehensible conduct that the applicant engaged in was at the behest of Monis. It was submitted that this was not negated by the finding that the applicant was not naïve in her dealings with Monis.
It was submitted that having regard to these factors, the sentencing judge erred in his conclusion that the applicant was "not assisted in any real way by the death of Monis".
The applicant referred in particular to the finding by the sentencing judge that it was difficult to conclude in her favour that her preparedness to murder only arose in the context of her life with Monis and that there was no prospect in the future that she may act in the same way. She submitted that the relevance of his death on the question of future dangerousness and prospects of rehabilitation, was not an "all or nothing" issue, but rather was a relevant matter to be taken into account. She submitted that it was difficult to reconcile the conclusion that she was not assisted "in any real way" by the death of Monis with his conclusion that a life sentence was inappropriate: see [52] above.
At the hearing, senior counsel for the applicant submitted that it was important to distinguish between remorse and prospects of rehabilitation, and that it might be possible to demonstrate good prospects of rehabilitation in the absence of remorse. He submitted that what was involved in this ground was not so much whether there were prospects of rehabilitation, but rather whether the death of Monis was a relevant factor in consideration of those prospects. He submitted that the other central aspect was future dangerousness.
[8]
b The Crown
In her written submissions, the Crown pointed out that senior counsel for the applicant in the court below had acknowledged that there was no actual evidence that the applicant was no longer a disciple of Monis' values. She submitted that there were two factors that the sentencing judge had regard to in reaching the conclusion that the applicant was not assisted by the death of Monis. She stated that the first of these was the applicant had adopted Monis' view of the world with its extreme and perverse features, and the second was that she stood to gain from the murder.
In relation to the applicant's extremist beliefs, the Crown referred to the activities undertaken by the applicant in support of Monis which we have set out at [9] above. She submitted that there was no evidence that the applicant had renounced these extremist beliefs adopted whilst Monis was alive.
She also submitted that the applicant had her own selfish motives to kill, which were significant in the assessment of whether the death of Monis assisted the applicant. She referred to the findings of the sentencing judge which we have summarised at [12]-[13] above. She referred to the finding in Droudis (No 14) that the day after the murder, Monis filmed the applicant, his sons and her daughter engaging in what he described as "happy family scenes" at a time when the boys had not been told of the death of their mother. She also referred to his finding that the applicant's motive for the murder included a desire to form a single family unit with Monis, his sons and her daughter, and that this incident the day after the murder demonstrated that "the intention to create a family unit by disposing of the boys' mother had been realised, and was being acted on without delay".
At the hearing, the Crown submitted that the sentencing judge carefully assessed the importance of the death of Monis. She noted that the assessment occurred in that portion of the judgment dealing with rehabilitation, future dangerousness and the need for specific deterrence. She emphasised that the applicant bore the onus of proof in establishing matters favourable to her on sentence.
The Crown submitted that the important issue that the sentencing judge needed to determine was whether Monis' death gave rise to the conclusion that the applicant had rejected the extremist religious and political views she had expounded since 2008. She emphasised that the views of Monis extended to areas of violence. She pointed to the finding by the judge in Droudis (No 14) at [632]-[634] that the extreme religious views of Monis were not absent from the circumstance of the killing. She relied in particular on the conclusion reached at [634] that the attacker was wearing "Middle Eastern head dress, in the form of a hijab". She submitted that that was further supported by a letter Monis had written to the magistrate presiding over his custody dispute with the victim seeking to withdraw his application and "to file in God's court": Droudis (No 14) at [165]. It should be noted that the letter was written on 5 July 2012, whereas the sentencing judge found that the applicant was not involved in the plan to murder the victim until around 13 April 2013. The Crown also referred to the fact that the victim's body was set alight, referring to a letter which was written by Monis to the then Premier of Victoria and Prime Minister in 2009 at the time of the 2009 Victorian bushfires, which stated that "the fire of bush is nothing" compared to the fire of Hell.
[9]
Consideration
In considering this ground it should be noted that it is not contended that the applicant's relationship with Monis reduced her moral culpability or, for that matter, lessened the gravity of the offence. We have summarised the sentencing judge's findings on the question of objective gravity at [29] above and none of these findings were challenged. Nor did the applicant seek to resile from the concession made at the sentencing hearing that the evidence of the applicant's involvement with Monis did not operate to ameliorate the applicant's culpability or give rise to a form of non-exculpatory duress. Nor was it disputed that the sentencing judge was correct in his conclusion that the applicant had showed no contrition or remorse.
Further, it must be borne in mind that it was not contended that the death of Monis eliminated the need for personal deterrence or led to the conclusion that there was no need to take into account future dangerousness. Rather, it was contended that the death of Monis and the removal of his ongoing influence on the applicant were relevant factors to take into account in considering these issues and the applicant's prospects of rehabilitation. In our opinion this contention is correct. As we indicated at [9] above, the sentencing judge found that Monis had a great impact on the applicant and that she uncritically adopted and espoused his beliefs. We have referred at [52] above to the conclusion of the sentencing judge that Monis exercised a significant amount of influence over the applicant and was the planner and orchestrator of the murder which the applicant carried out. Importantly, he also accepted that there was no evidence that the applicant would have become involved in crime before her association with Monis commenced and that it was clear that the applicant was deeply affected by Monis in both her thought processes and actions, although there was no psychiatric or psychological impediment to her capacity to exercise freewill: see [37] above. The sentencing judge also noted that Monis was able to exercise a significant degree of influence over the applicant which played a part in her preparedness to act criminally with him: see [38] above. He also found that Monis exercised a measure of control beyond mere persuasive powers (see [39] above) and that the psychological persuasion was fortified by a level of physical abuse (see [42] above).
[10]
Ground 2 - The sentencing judge erred in his application of s 22A of the Crimes (Sentencing Procedure) Act 1999
To understand the submissions it is necessary to have regard to the terms of s 22A of the Sentencing Procedure Act and somewhat similar sections dealing with discounts for a plea and assistance to authorities. Section 22 of the Sentencing Procedure Act, which deals with discounts for a plea, is in the following terms:
"22 Guilty plea to be taken into account for offences not dealt with on indictment
(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account--
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty, and
(c) the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
(5) This section applies only to a sentence for an offence that is dealt with summarily or to a sentence for an offence dealt with on indictment to which Division 1A does not apply.
Note. Discounts for the utilitarian value of a guilty plea to other offences are provided for by Division 1A."
Section 22A was introduced into the Sentencing Procedure Act by the Criminal Procedure Amendment (Pre-Trial Procedure) Act 2001 (NSW). As originally enacted, it empowered a court to impose a lesser penalty having regard to the degree to which the defence made pre-trial disclosures for the purpose of the trial. However, it was amended in 2011 to provide as follows:
"22A Power to reduce penalties for facilitating the administration of justice
(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).
(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."
[11]
a The applicant
In written submissions the applicant submitted that the sentencing judge erred in two respects. First, it was submitted that the sentencing judge wrongly failed to make an assessment of the degree to which the administration of justice had been facilitated by the defence as necessarily required by s 22A. It was submitted that the judge paid no regard to the submissions made on the issue, and merely acknowledged the applicant's co-operation as a relevant matter but failed to make any assessment of its significance.
Second, it was submitted that the sentencing judge erred in treating s 22A as if it were a mitigating factor rather than a discount. The applicant submitted that the use of the words "may impose a lesser penalty than it would otherwise impose" in that section meant that s 22A, like ss 22 and 23, envisaged the granting of a discount in the sense described by Howie J in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [33]-[34]:
"[33] There also appears to be some looseness in the use of the expression 'a discount' that is apparent in the exchange between the prosecutor and the judge set out above. Since Thomson a 'sentencing discount' should be taken to mean a reduction in the otherwise appropriate sentence by a quantifiable amount due to a specific policy consideration. Such a discount is applied after the otherwise appropriate sentence has been determined. There are two sentencing discounts that have been identified: a discount for the plea of guilty and a discount for assistance. Where both these discounts apply they should be combined: SZ v The Queen (2007) 168 A Crim R 249 at [11]. The High Court has indicated that there should be limited use of 'arithmetical deduction' in determining an appropriate sentence: Markarian v The Queen (2005) 228 CLR 357 at [39].
[34] There are also matters that mitigate the sentence."
It was submitted that Howie J was distinguishing between discounts which are to be applied in a "two-staged" fashion and may be quantified, and other mitigating matters which are to be taken into account in a process of instinctive synthesis.
The applicant accepted that this approach was contrary to what was described as dicta in R v Weismantel [2016] NSWCCA 204 at [17]. She noted that that decision was applied in Chung v R [2017] NSWCCA 48 where it was argued that a discount should be quantified in relation to delay and bail conditions. However, the applicant submitted that delay and bail conditions clearly fell into the category of "mitigating matters" and that Chung had nothing to say about s 22A. It was submitted that s 22A in common with ss 22 and 23 provides for the allowance of a discount and is not simply a matter which mitigates sentence. It was submitted that a statutory discount is something to be applied after the court has arrived at an otherwise appropriate sentence by instinctive synthesis.
[12]
b The Crown
In dealing with the first complaint under this ground, the Crown in written submissions noted that the sentencing judge referred to his remarks in Droudis (No 14) concerning the manner in which the trial was conducted on behalf of the applicant. It is convenient to set out those remarks:
"[13] The trial was conducted in a most efficient way by the legal representatives for the parties.
[14] A substantial volume of documentary, photographic, video and audio evidence was tendered at the trial. The parties limited the witnesses called to those who were essential to the determination of the issues in the trial.
[15] The factual narrative contained in this judgment is almost entirely undisputed. The question to be addressed is what conclusions should be reached by reference to this evidence, taken with the oral evidence of witnesses called at the trial."
The Crown submitted that his Honour's reference to these remarks, coupled with his remarks in the sentencing judgment to which we have referred at [50]-[51] above, demonstrated that he undertook an assessment of the nature and extent of the facilitation of the course of justice, and appreciated that it had been so great that almost all the matters in the narrative described in his reasons were undisputed and only essential witnesses were called. It was submitted that in these circumstances there was no basis for this complaint.
So far as the complaint that the sentencing judge treated the effect of the section as a mitigating factor instead of a discount, the Crown referred to the decision of this Court in Cooper v R [2009] NSWCCA 57 where in dealing with s 22A in its original form, Grove J stated at [82] (Blanch and Johnson JJ agreeing) that the sentencing judge "was not obliged to formulate some arithmetical or individually quantified discount" and that the purpose of the sentencing judge in mentioning the matter (the facilitation of the course of justice) "was obviously to include it as a matter of mitigation".
The Crown noted that the matters referred to in s 22A, along with those in s 22 and s 23, are listed as mitigating factors in s 21A(3)(k), (l) and (m) of the Sentencing Procedure Act.
The Crown submitted that the two-stage process outlined in Borkowski arose from the terms of s 23 in the case of assistance, and in the case of a plea from the guideline judgment in Thomson and Houlton. It was submitted that the two-stage process has otherwise been rejected by the High Court, referring to Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, Markarian and Muldrock.
[13]
Consideration
We have set out the judge's comments and conclusion on this issue at [49]-[51] above. As we indicated, he noted that the applicant sought a discount for facilitating the course of justice.
So far as the first ground of complaint is concerned, it amounts to a complaint that the sentencing judge did not engage with the submissions on that issue. We do not think this is made out. The sentencing judge had conducted a judge alone trial and would have been well aware of the extent of the assistance given. He was entitled in these circumstances to summarise his views without referring to the submissions in detail. It seems to us that his remarks demonstrated that he had given proper consideration to the nature of the assistance given.
The second complaint was that the sentencing judge treated the assistance as a mitigating factor rather than granting a discount. It is by no means clear that he did do so, having regard to his reference to a discount in dealing with the applicant's submissions and to his statement (at SJ [113]) that the applicant was entitled to credit under s 22A in the circumstances of the case. However, even if he did take it into account as a mitigating factor, in our opinion he was not in error in doing so.
We have set out s 22A and the equivalent sections concerning a guilty plea and assistance to authorities above. As was explained in Sharma at [68], the adoption of a two-stage process of allowing a discount in respect to matters having a utilitarian value, as distinct from dealing with them as part of the instinctive synthesis process on sentencing, depends on the terms of the legislation in question.
In the present case, the provisions of s 22A may be contrasted with the provisions of s 22 and s 23. In particular, s 22 unlike s 22A imposes a mandatory requirement to make a record of the reasons for not imposing a lesser sentence under the section. Further, s 23 unlike s 22A sets out matters which a court is required to consider in exercising its discretion under the section, and imposes an obligation to state the penalty it would have imposed had it not exercised the discretion.
We have referred to the Second Reading Speech which dealt with the 2011 amendments at [76] above. The statement that "it merely provides the ability to reduce a penalty where the course of justice has been facilitated" does not suggest that the section requires a two-stage process as distinct from taking the matter into account as part of the instinctive synthesis approach to sentencing.
[14]
Ground 3 - Manifest excess
Although we have concluded that it is necessary to resentence the applicant, the submissions on this ground provide some assistance in undertaking that task.
[15]
a The applicant
In written submissions, the applicant referred to a table of cases containing a summary of all murder offences in respect of which a sentence containing a non-parole period of or above 20 years was imposed. It was submitted that total sentences of 40 years or more and non-parole periods of 30 years or more are extremely rare. It was submitted that in most cases where such a sentence has been imposed, the objective gravity has been at the highest end of the scale. It was submitted that the present sentence was one of the highest determinative sentences ever imposed for a single murder.
At the hearing, senior counsel for the appellant referred to the finding by the sentencing judge at [124] that the applicant had a "sustained and unusual relationship" with Monis and again emphasised the significant influence he had on the applicant. He submitted that that distinguished the position from some of the more recent cases where sentences in excess of more than 40 years had been upheld on appeal.
[16]
b The Crown
The Crown referred to the caution with which sentencing patterns should be treated. In written submissions, she summarised the following findings made by the sentencing judge which demonstrated the gravity of the offence:
1. The applicant became an "integral and knowing part" of the plan to murder Helen Lee around 10-13 April and no later than 13 April (a week before the murder).
2. The plan involved providing Monis with an alibi.
3. The applicant stabbed the victim 18 times to the back, chest and arms before dousing her with petrol and setting her alight. Although the victim was dead before she was set alight, it is not at all clear that the applicant would have been aware of this.
4. It was a "brutal and callous attack upon a defenceless woman". The attack continued even after the victim fell to the ground and tried to defend herself.
5. The setting alight of the victim's body was "a gratuitous act of defilement" which bore on the objective gravity of the crime.
6. The applicant was able to maintain a level of composure by departing the building (out the back so as not to be seen by a witness) with the implements used in the murder.
7. The fire, set on a Sunday afternoon in the stairwell of a three storey apartment block, endangered other people to the knowledge of the applicant.
8. The applicant knew that the murder would deprive two young boys of their mother and the victim's parents of their only child.
9. The offence was a "flagrant attempt to circumvent the custody order of the Federal Magistrates Court".
10. After the murder the applicant took steps to deflect the police investigation, including making false allegations against the victim's father.
11. She was on bail for the Commonwealth offences when she committed the murder.
12. There was no evidence of contrition or remorse on the part of the applicant.
13. Whilst Monis had a significant degree of influence over the applicant, at all times she was a mature adult with no evidence of any impediment to her free will.
14. The objective seriousness lay "very significantly above the mid-range of objective seriousness".
The Crown described the offence as a "gravely serious murder", submitting that there were limited subjective matters available to ameliorate the sentence.
The Crown pointed out, referring in particular to Goodbun v R [2020] NSWCCA 77 and Barrett v R [2020] NSWCCA 11, that there were a number of cases where determinative sentences of more than 40 years were imposed. It placed particular reliance on the pre-discount sentence of 54 years imposed on the applicant in Goodbun.
[17]
The additional evidence tendered at the appeal
The applicant sought to rely on a report of a psychiatrist Dr Jonathan Adams of 3 December 2019 which relied, among other things, on six interviews Dr Adams had with the applicant covering the period 17 October 2018 to 18 October 2019. The applicant accepted that the history given by the applicant to Dr Adams was not admissible to prove the truth of statements, but rather submitted it was relevant that she had admitted her guilt and had sought psychiatric help. The Crown ultimately accepted that that part of the report initially objected to was admissible on that limited basis.
In that part of the report not objected to, it was stated that the applicant had told the psychiatrist she continued to follow the Islamic faith but did not endorse any religious extremism or forms of violence. The report also referred to the fact that the applicant had completed courses in custody, including the foundation course for EQUIPS concerned with avoiding offending, and that the applicant had intended to continue those courses. There was also tendered an affidavit from the applicant's solicitor Ms Knowles. The affidavit summarised extracts from the applicant's Corrective Services NSW file which demonstrated that during the period in custody she had been a polite and co-operative prisoner who was willing to learn and undertake employment. It also indicated that she had completed a number of courses and that she had had no punishment or disciplinary proceedings during her time in custody.
The affidavit also annexed a letter from the applicant admitting her guilt and expressing remorse, and an email from her daughter stating that the applicant had expressed remorse to her.
The Crown described the evidence as being "self-serving statements", all of which were untested. The Crown noted that it was only after the applicant had been convicted and sentenced that she admitted her guilt in the context of an application for leave to appeal. The Crown submitted that little weight should be placed on that matter, and that little if any weight should be placed on those portions of her statements to the psychiatrist to which objection was not taken.
[18]
Resentence
It is important to note that no challenge was made to the finding of the sentencing judge of the objective gravity of the offence: see [53] above. Nor was it contended that the sentencing judge was incorrect in his conclusion that the psychological persuasion of the applicant by Monis coupled with physical abuse did not give rise to a form of non-exculpatory duress such as to reduce the applicant's moral culpability. We agree with these conclusions and with the conclusion of his Honour that the crime lay very significantly above the mid-range of seriousness for a crime of this nature: see [53] above.
Further, the sentencing judge in our respectful opinion was correct in concluding that there was no evidence of contrition or remorse. In that context, the applicant at the hearing of the appeal emphasised the fact that she had admitted her guilt and sought psychiatric help. Evidence of these facts is relevant evidence of post-sentence conduct which can be taken into account on resentence: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [14]. Whilst it is true, as the Crown submitted, that the expression of remorse in her letter could only be given limited weight having regard to the fact that she did not give evidence (R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59]), we are prepared to find that the admission of guilt and her consistent engagement with a psychiatrist over a period of a year is limited evidence of remorse and of progress towards rehabilitation.
It is in that context that the relevance of the death of Monis falls to be considered. Although the applicant committed the murder of her own free will and to achieve a result she regarded as beneficial both to herself and Monis, the fact remains that Monis was the instigator of the crime, as indeed he was in respect of the extremist acts which were undertaken by her. His removal from her life does increase her prospects of rehabilitation.
Further, it must be remembered in considering her prospects of rehabilitation that the crime for which she was sentenced was not motivated by any terrorist ideology. Although future dangerousness remains relevant, particularly having regard to the vicious nature of the crime she committed, there is little evidence that she would commit such a crime for purely ideological considerations when no longer under the influence of Monis. We do not think that her continued adherence to the Islamic faith alters that conclusion. This is particularly the case when the evidence demonstrates that since she has been in prison the applicant has been a polite and co-operative prisoner. There is nothing to indicate that she has expressed extremist views during her period in prison. In these circumstances we think that there are reasonable prospects of rehabilitation and the need for personal deterrence is somewhat diminished.
[19]
Conclusion
In the result we make the following orders:
1. Grant the applicant leave to appeal.
2. Quash the sentence imposed on the applicant and in lieu thereof impose a sentence of 35 years imprisonment comprising a non-parole period of 26 years and 3 months commencing on 22 December 2014 and expiring on 21 March 2041 with a balance of term of 8 years and 9 months expiring on 21 December 2049.
[20]
Amendments
10 December 2020 - [114] line 1 - Amend 3 December 2009 to 3 December 2019
20 January 2021 - Coversheet - Amend "R Wilson to "R Wilson SC"
04 May 2021 - [21] Change 'The applicant' to 'The sentencing judge'
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: 04 May 2021
The sentencing judge noted that between 2009 and 2012, Monis was involved sexually with a number of women apart from his then wife, the victim. He stated that although the applicant remained involved with Monis she was only one of a number.
In June 2011, the victim ended her marriage with Monis and separated from him. The two boys lived with their mother. In August 2011, Monis commenced custody proceedings with respect to the two boys, as a result of which he obtained visitation rights.
The sentencing judge found that from May 2012 the applicant became the central focus of Monis' attention. He stated that they were regularly and constantly in each other's company, and that Monis' sons and the applicant's daughter interacted with each other and with Monis and the applicant in a way which indicated long-term plans for the future on the part of the applicant and Monis. His Honour stated that he was "well satisfied" that after May 2012 the only relationship which Monis had was with the applicant.
The sentencing judge referred to the fact that from July 2012, the applicant and Monis became increasingly close involving, amongst other things, child access visits where Monis encouraged his sons to address the applicant as if she was their mother. The sentencing judge stated that he was satisfied that Monis had planned for some months before 21 April 2013 to murder the victim. He stated that Monis' plan was to secure custody of his two sons so that they could live in a family unit with the applicant and her daughter.
The sentencing judge found that by 10 April 2013, Monis planned the murder of the victim with the crime to take place at a rented Werrington apartment utilised by him for the purpose of child access visits. The sentencing judge, referring to Droudis (No 14), stated that Monis and the applicant took out home contents insurance and life insurance on 10 April 2013 which steps pointed to the implementation of the plan. He noted that the home contents insurance policy taken out on the Werrington unit included cover for water damage, indicating an expectation that the unit would suffer damage from water used to extinguish a fire.
The sentencing judge concluded that it was not until about 10 April 2013 that the applicant became "an integral and knowing part of Monis' homicidal plan". He stated that on 13 April 2013, Monis met with friends from Iran and made arrangements for a family outing to take place with them. He noted that Monis' two sons were to undertake an access visit with him that day. He stated that Monis deceived his friends by indicating that he was not in a relationship with anyone.
The sentencing judge noted that the access visit on 21 April 2013 would be the first time in months when such a visit took place without the applicant being present, which he said was a "strong indicator" that the applicant was an integral part of Monis' homicidal plan. He stated that it was an essential part of the plan that Monis be nowhere near the scene of the murder, referring to what he described by reference to Droudis (No 14) as Monis' "elaborate and highly contrived alibi" for the afternoon of 21 April 2013. He stated that Monis not only filmed events on the outing to prove he was nowhere near Werrington, but also staged a minor collision outside the Penrith Police Station and insisted he be taken to hospital although he had suffered no genuine injury.
In dealing with the murder itself, the sentencing judge stated that during the day on 21 April 2013, the applicant travelled to the Werrington address and entered the external security door by use of a key which had been provided by Monis. He said she waited in Monis' apartment, having entered using another key provided by Monis. He stated that she was armed with a knife and a container of petrol.
The sentencing judge stated that soon after 4.20 pm, the victim and her companion parked in Albert Street next to the apartment block. He said that the victim opened the gate and her companion waited in the car. He stated that the applicant well knew that the victim parked her car in Albert Street when she attended the Werrington apartment block in connection with access visits.
The sentencing judge stated that the victim pushed the intercom at the security door and was buzzed into the building by the applicant. The victim entered the stairwell and walked up towards the third level where the unit was located. As she climbed the stairs between the second and third levels, she was attacked by the applicant who stabbed her repeatedly in the back, chest and arms inflicting 18 wounds, before dousing her with petrol and setting her alight. He stated that the applicant was wearing a hijab which covered her head but not her face. He stated that the terrifying circumstances of the murder were recounted in the evidence of Wayne Morris, the occupier of the adjoining unit. The sentencing judge referred to his summary of Mr Morris' evidence in Droudis (No 14). As the Crown placed particular reliance on one portion of this summary, it is convenient to set that portion out in full: Droudis (No 14) at [365]-[366]:
"[365] Mr Morris was watching football on television when he heard a noise outside his unit door. He described in evidence-in-chief what happened next (T57-59):
'Q. Would you tell us as best you can what you heard initially?
A. I heard a loud scream and it was a lady's voice and she was screaming out 'I've got children, I've got children', that's what I heard, and I got off the lounge and went to the door. Do you want me to keep going?
Q. Yes, please.
A. Then I looked through the peephole, and I saw a person in dark clothing going like that with a knife (indicated), stabbing in a downward motion, and there was a person on the ground trying --- it looked to me she had her hand up trying to defend herself, and then I ---
Q. Pause there. Could I ask you to stand up and to demonstrate with your hand the action that you saw the woman in black doing?
A. I can't tell you which hand it was, I can't remember, at the time I couldn't even say but it was just going up and down like that (indicated).
CROWN PROSECUTOR: For the record, it is a stabbing motion from about head level down to about waist level that he has demonstrated.
HIS HONOUR: Yes.
WITNESS: The person was on the ground ---
CROWN PROSECUTOR
Q. The other person, woman, who presumably you had heard calling out, was on the ground?
A. Yes.
Q. Was she entirely lying on the ground?
A. That is what I could see, yes. She was on the ground and it looked to me she had an arm up trying to protect herself.
Q. The woman who was doing the stabbing motion ---
A. She was leaning over the body, yes.
Q. You were looking through a peephole in your door?
A. Yes.
Q. And are you able to tell us for how long you looked through that peephole?
A. Obviously it happened really quick.
Q. Please sit down.
A. I saw --- to me I saw --- it was so surreal. I saw at least three to four like stabs, and then the lady just, the person on the ground, just went quiet and everything just went quiet, and then I don't know where the knife went. All of a sudden there was a plastic bottle in the lady's hand and she was pouring it over the body.
Q. Can you tell us what size bottle it was?
A. It looked like a 600ml Coke bottle, but it was clear. It didn't have a wrapper or anything like that on it.
Q. No label that you could see?
A. No.
Q. Did you actually see her pouring liquid from the bottle?
A. Yes.
Q. Where was she pouring liquid?
A. All over the body.
Q. At that stage, was the woman on the ground moving at all?
A. No.
Q. You were still looking through your peephole?
A. Yep.
Q. Did you hear the woman on the ground or did you hear any calling out other than 'I've got children'?
A. No, all I heard was a loud scream, and then 'I've got children, I've got children'.'
[366] The Senior Crown Prosecutor asked Mr Morris what happened next (T59):
'Q. Having seen all that, what did you then do?
A. Obviously I was afraid, and I didn't go out there at first because when she had the knife because I was scared. I didn't think it was really happening, I couldn't believe it. Then when I saw her pouring the liquid on the body, I was on the top floor so I thought 'I'm in trouble here, I need to stop her from doing it'. I knew, I just knew what was going to happen, so I opened up the door and ran out to the railing, and she was on the other side, and I tried to scare her off, you know, from lighting up the body because I knew I was on the top level.
Q. What did you say?
A. I just said, 'Don't, no'. And she screamed back at me, 'No, you go in there'. Just the rage in her face was --- yeah. And then she said, 'Go back in there' and I mentioned 'I can't, I can't get down', you know.
Q. When she addressed you and said those words, can you describe the way in which she said those words?
A. She was angry at me, she was very angry. She looked at me --- I have said all along that she made me feel that I did something wrong. I felt, like --- for a long time, I felt, yeah, I was, I did something wrong. --- That is how she made me feel, and it was very --- she was very very in a rage. It was a pretty scary moment.
Q. Can you describe the voice to us?
A. The voice? Imagine a --- it was definitely a female and imagine a female screaming at you after doing something like that. Well, that's what it was.'
In that context, the sentencing judge found that the applicant well knew that other persons would be endangered by a fire from her interaction with Mr Morris, it being inevitable that other persons in would be in the apartment block on a Sunday afternoon.
The sentencing judge noted that the applicant then fled down the stairs taking with her the knife and petrol container. He noted that by the time she had passed through the external security door she had removed her head covering.
The sentencing judge stated that the applicant fled via the stairs leading to Parkes Avenue on the opposite side of the building from Albert Street. He stated that he was satisfied that the applicant took this route as she was aware that the victim usually parked her vehicle in Albert Street, and that there was a prospect that her companion may be in the vehicle at that location at the time of her flight.
The sentencing judge stated in summary that the applicant became a critical player in Monis' plan to murder the victim no later than 13 April 2013. He stated that she had agreed to commit the crime by means of a knife and the use of fire. He said that there was ample opportunity for the applicant on the day of the murder to withdraw from the planned attack, but that she did not do so.
The sentencing judge noted that following the murder, the applicant and Monis made false allegations against the victim's father to the effect that he had killed his daughter. The sentencing judge stated that he was satisfied this was done to deflect the police investigation.
The sentencing judge then referred to features of the evidence (at the trial) which shed light on the relationship between the applicant and Monis.
He referred to an incident of 20 February 2014 when the applicant recorded her mother making what he described as "a grovelling apology" to Monis. The circumstances are set out in Droudis (No 14) at [340]-[346] and it is unnecessary to set them out. The sentencing judge stated that this incident said something about the dynamics of the applicant's relationship with Monis and her preparedness to act at his behest.
The sentencing judge also stated that by 22 April 2014, Monis was in custody again as a result of being charged with sexual assault offences. He referred to the fact that the applicant wrote to Monis in prison in terms which demonstrated the depth of her feelings for Monis and which illustrated the applicant's continual adherence to religious beliefs which she had adopted as a result of her relationship with Monis: sentencing judgment at [53]. It is not necessary to reproduce the letter as the summary by the sentencing judge accurately reflects its contents.
The sentencing judge also referred to another incident which he described as a further event of significance. He referred in that context to Droudis (No 14) at [351]-[352]:
"[351] On 31 July 2014, a number of photographs of Monis were taken using the Accused's mobile telephone. Monis is wearing a headband containing Arabic script which stated 'We are your soldiers Mohammed, may Allah honour him and grant him peace'. The photographs were taken whilst Monis was sitting in the Wiley Park premises occupied by Monis, the Accused and the Accused's daughter (T645).
[352] I am satisfied that the Accused took these photographs whilst Monis posed for them. Apart from evidencing the continuing relationship between Monis and the Accused at that time, the photographs point more importantly to the preparedness of the Accused to assist Monis in a measure which involved the display of extremist religious content."
In dealing with the objective gravity of the offence the sentencing judge made the following findings: SJ [57]-[67]:
1. The applicant intended to kill the victim. A savage and sustained knife attack starkly revealed that intention, followed up by the use of fire which would obliterate any possible chance of survival.
2. The applicant used a large knife to kill the victim, with the use of the weapon being an aggravating feature of the crime.
3. The offence was a brutal and callous attack upon a defenceless woman. The applicant continued to stab the victim after she was on the ground, making an attempt to defend herself by raising her hand. She proceeded with her plan to set fire to the victim, even when confronted by Mr Morris. Despite the frenzied and sustained nature of the attack, the applicant disclosed a measure of composure by departing the building with the implements used in the crime.
4. The applicant knew that the killing of the victim would deprive two young boys of their mother and the victim's parents of their only child. The degree of harm which the applicant knew would be caused by the offence was relevant to her culpability.
5. The medical evidence was that the victim was dead by the time that her body was set alight. The applicant may or may not have known this, but the use of fire clearly ensured that there was no prospect of survival. The setting alight to the body was a gratuitous act of defilement on the part of the applicant. It formed part of the circumstances of the offence so as to be capable of bearing upon the objective gravity.
6. It was common ground that the Court could have regard, in considering the objective gravity of the offence, to the danger to others resulting from setting fire to the victim in the apartment block. This aspect of the offence involved a total disregard for public safety and was an aggravating feature.
7. There was a significant degree of planning in advance of the murder.
8. The motive for the murder included the desire of the applicant and Monis to secure a clear pathway to the custody of Monis' two sons. The applicant's associated motive was her desire to cement her relationship with Monis within a single family unit. The applicant was enthralled by Monis and was prepared to act at his behest.
9. The offence constituted a flagrant attempt to circumvent the custody order of the Federal Magistrates Court. The murder constituted a form of extra-curial criminal measure whereby Monis and the applicant sought to obtain custody of the children. That substantially elevated the objective gravity of the offence.
The sentencing judge also stated that the applicant's actions after the murder, involving the taking of steps to deflect the police investigation, were also relevant on sentence. He stated that that conduct could not be taken into account in an assessment of the objective gravity, but may bear upon the applicant's lack of remorse and contrition and prospects of rehabilitation.
The sentencing judge also referred to the fact that at the time of the murder, the applicant was subject to conditional liberty in the form of bail for the Commonwealth offences of aiding Monis to use a postal service to menace and harass contrary to the Criminal Code 1995 (Cth). He stated that that was also an aggravating factor.
The sentencing judge stated that the applicant had a criminal record limited to the 2008 Commonwealth offence which she committed in conjunction with Monis.
In dealing with the applicant's subjective circumstances, the sentencing judge noted that she did not give evidence at the trial or at the sentencing hearing. He noted that the applicant's daughter gave evidence at the trial and that an affidavit sworn by her on 28 November 2016 was tendered on sentence. He also noted that the applicant's brother and her cousin gave evidence, which provided some brief personal history of the applicant.
His Honour noted that no psychiatric or psychological report was tendered on sentence.
The sentencing judge referred to a letter from the Chaplain at Silverwater Women's Correctional Centre which stated that the applicant "has been exemplary in her attitude to me as Chaplain, to Staff and to other inmates appearing to accept those different to her". The letter also described the applicant as being "committed to her Muslim faith and faithful and reverent in her prayer times".
The sentencing judge noted that it was common ground that there was no evidence of contrition or remorse.
In dealing with the role of Monis, the sentencing judge stated that there was nothing in the evidence to indicate that the applicant would have become involved in crime before her association with Monis commenced. He stated it was clear that the applicant was deeply affected by Monis in both her thought processes and actions. He stated, however, that the applicant was a mature adult and that there was no evidence of any psychiatric or psychological impediment to her capacity to exercise free will.
The sentencing judge accepted that Monis was able to exercise a significant degree of influence with respect to the applicant and that this played a part in her preparedness to act criminally with him, whether in the extreme ways depicted in 2008 and 2009 (the propagation of his extremist beliefs) or in the "murderous fashion" involved on 21 April 2013.
The sentencing judge noted that there was evidence that Monis exercised a measure of control in his relationship with the applicant beyond mere persuasive powers, referring to his conclusion in Droudis (No 14) at [625] that the applicant had demonstrated "a preparedness to act, in a variety of extraordinary ways, at his request". However, he noted that in Droudis (No 14) he had concluded that the applicant was "not naïve in her dealings with Monis", was a "mature woman of sound mind" and "was not young and impressionable".
The sentencing judge referred to the affidavit of the applicant's daughter in which she stated that Monis had been physically and emotionally abusive towards the applicant from about 2006 until his death in 2014. He stated that the Crown did not wish to cross-examine the applicant's daughter and the Court should thus proceed on the basis that this evidence had not been put in issue.
The sentencing judge referred to a summary of surveillance material tendered at the sentencing hearing covering the period between May and November 2013. In that material, Monis was heard lecturing the applicant and her daughter on religious matters. He stated that the surveillance material showed that Monis' views and wishes took precedence in the household. He said that there was only one incident of physical violence being overheard, with the applicant screaming accompanied by a sound consistent with Monis striking her.
The sentencing judge stated that he was prepared to find that there was a level of abuse in the relationship between Monis and the applicant, so that the psychological persuasion of the applicant was fortified by a level of physical abuse.
However, the sentencing judge noted that senior counsel for the applicant did not submit that this evidence operated to ameliorate the applicant's culpability for the murder, nor did he contend that it gave rise to a form of non-exculpatory duress. He noted the Crown submission that there was no evidence from the applicant which could support such conclusions, and recorded the view that no such finding should be made in the applicant's favour which may serve to reduce her moral culpability.
The sentencing judge noted the submission by senior counsel for the applicant that, in effect, the "spell was broken" as a result of the death of Monis and the applicant learning of the extent of Monis' duplicity with other women and his deceit of the applicant. He noted that the submission was that the applicant was "less likely to remain a disciple [of Monis] if indeed she still is" and that the applicant had "every reason to reject everything he [Monis] stood for and, in so doing, return to a law-abiding life". He noted that the Crown pointed to the absence of evidence from the applicant herself on these matters and argued that no positive finding should be made in her favour on aspects of prospects of rehabilitation, future dangerousness and personal deterrence. He also noted that senior counsel for the applicant conceded that there was no evidence that the applicant was ignorant of Monis' duplicity with other women before he died. He also noted his findings that the applicant was the only woman with whom Monis had a relationship from mid-2012.
In those circumstances, the sentencing judge stated that in the absence of evidence from the applicant, he had difficulty in making a finding in her favour that any measure of physical abuse provided any real assistance to her on sentencing. He stated that on the face of it, she stood to gain from the murder and she persisted in her support of Monis after the murder: SJ [96]. He stated further that she was "not assisted in any real way by the death of Monis". He concluded that in the absence of any evidence from the applicant, it was difficult to conclude in her favour that her preparedness to murder only arose in the context of her life with Monis and that there was no prospect in the future that she may act in that way again. He stated that a sentencing court was entitled to take into account the circumstances of the offence itself in determining the question of future dangerousness: SJ [97]. He stated that in assessing the risk of re-offending, it was necessary to keep in mind that it is the risk and not the certainty of re-offending which is under consideration, especially when the applicant was likely to receive a lengthy sentence of imprisonment so that early release to the community was not open: SJ [98].
The sentencing judge stated that on one view of the matter, it was "difficult to understand" why the applicant maintained her adherence to the Islamic faith if she had left the influence of Monis behind her. He stated that it might be thought that the applicant's experience with her Muslim faith was "something of a poisoned chalice, associated as it was with criminality in conjunction with Monis". In those circumstances, the sentencing judge reached the following conclusion:
"[100] Having considered all evidence bearing on the topic, however, I accept that the Offender's prospects of rehabilitation are fair. It is apparent, from the letter of Ms Wiseman, that the Offender is a compliant prisoner who is making use of her time in custody for productive purposes. However, hanging over this assessment is the enormity of her crime and the absence of evidence from the Offender to provide an objective foundation for a conclusion that she has modified (or is prepared to modify) her beliefs so that there is no prospect of repetition of the serious criminal conduct which has brought her before the Court."
The sentencing judge stated that a similar conclusion should be reached with respect to future dangerousness and specific deterrence. He also stated that general deterrence played an importance part on sentencing for this offence, including the need to deter other persons from seeking to circumvent orders made in family law proceedings and from using fire in public areas as an instrument of crime.
The sentencing judge took into account the victim impact statement read at the sentencing hearing on behalf of the victim's parents.
The sentencing judge noted that it was submitted on behalf of the applicant that the Court should extend a discount on sentence arising from the facilitation of the administration of justice, referring to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). Having regard to the grounds of appeal, it is important to note that the sentencing judge here referred to the granting of a discount.
In that context, the sentencing judge referred to his reference in Droudis (No 14) to the highly efficient way in which the trial was conducted, including appropriate pre-trial co-operation and assistance. He acknowledged the Crown submission that a substantial part of the applicant's co-operation flowed from the defence acceptance of the Crown case against Monis. He stated, however, that the measure of co-operation extended to areas involving the applicant and not just Monis.
In those circumstances, he reached the following conclusions at [112]-[113]:
"[112] Section 22A is not intended to simply reward the defence where it has complied with a mandated disclosure requirement. However, co-operation encompassed by the section extends to admissions, disclosures made before or during the trial and limiting the facts in issue in the trial thereby reducing the number of witnesses to be called. All of these things occurred in this case. I am satisfied that the Offender took steps to facilitate the administration of justice in this case.
[113] The Offender is entitled to credit under s.22A in the circumstances of this case. This aspect will be taken into account on sentence as a factor favouring the Offender."
In rejecting the submission that a life sentence should be imposed, the sentencing judge made the following remarks at [128]:
"[128] It is appropriate, at this point, to return to the role of Monis and its relevance to sentencing of the Offender. Monis is dead and cannot face justice for his own large part in the murder of his former wife. I have declined in this judgment to make certain findings as sought by the defence with respect to Monis and the consequences for the Offender flowing from his death. At the same time, I have made findings concerning Monis and his personality, the nature of the relationship between Monis and the Offender and her preparedness to act in extraordinary ways on his behalf at different times. Monis did exercise a significant measure of influence over the Offender. Monis was the planner and orchestrator of the murder which the Offender carried out. An understanding of the unusual relationship between the two people provides a broader context for the crime, which operates in the Offender's favour on the question whether a life sentence should be imposed."
The sentencing judge in conclusion stated that the crime lay "very significantly above the mid-range of objective seriousness, for the purpose of considering the relevance of the standard non-parole period of 20 years". In that context he imposed the sentence to which we have referred at [2] above.
Senior counsel for the applicant pointed to the conclusion of the sentencing judge that in the absence of evidence from the applicant, he had difficulty in finding that any measure of physical abuse provided any assistance to the applicant, and to his statement that she stood to gain from the crime: see [45] above. He submitted that what she stood to gain was in the context of her relationship with Monis. He also referred to the statement of the sentencing judge that the applicant persisted in her support of Monis after the murder, which he said should be read in the context that she was "in the thrall of Monis". Senior counsel for the applicant accepted the statement by the sentencing judge that the nature of the crime itself was relevant to future dangerousness, but stated that the relevance of future dangerousness was diminished because Monis planned the offence. He submitted that his Honour's findings in Droudis (No 14) at [633]-[634] that the killing had a "ritualistic" quality about it underscored the role of Monis.
He also referred to that portion of the sentencing judgment which we have set out at [46] above, where the sentencing judge stated it was "difficult to understand" why the applicant maintained her adherence to the Islamic faith. He submitted that maintaining that faith could hardly be an indication of a capacity for future wrongdoing. He accepted that other offending in which the applicant was involved had aspects of ideology, but submitted that they were actions done solely in support of Monis. He submitted that the murder was not an ideologically motivated offence.
The Crown in those circumstances submitted that the key features which justified the conclusion of the sentencing judge were first, the holding of extremist views which involved violence in circumstances where the sentencing judge found that there was a religious aspect to the crime and the applicant had not renounced those extremist views, and second, that the applicant committed the crime because there was "something in it for her".
These matters would seem to suggest on their face that the removal of an evil and pervasive influence on the applicant was a relevant consideration in considering personal deterrence, future dangerousness and the prospect of rehabilitation. However, the judge reached a contrary conclusion for two principal reasons. First, he concluded that in the absence of evidence from the applicant it was difficult to conclude that her preparedness to murder only arose in the context of her life with Monis and that there was no prospect that in the future she may act that way again: see [45] above. Second, he stated that there was no evidence that she was prepared to modify her beliefs so that there was no prospect of the repetition of the conduct which had brought her before the Court: see [46] above.
So far as the first matter is concerned, whilst accepting the fact that the absence of evidence from the applicant is a relevant factor in considering the extent that the death of Monis impacted on her future dangerousness and prospects for rehabilitation, it does not follow that his death is not a relevant consideration, although the absence of evidence from the applicant limits the extent to which it can be taken into account. Further, as the sentencing judge found that there was no evidence to indicate that the applicant would have been involved in crime but for her involvement with Monis, it follows logically that the absence of an ongoing involvement must be relevant in determining future dangerousness, the need for personal deterrence and the prospects of rehabilitation.
So far as the second matter is concerned, accepting that it might be said that the killing had a "ritualistic flavour" about it, there is nothing to suggest that the applicant's continued adherence to the Islamic faith rendered it more likely that she would engage in future criminal activity of the nature of that for which she had been convicted. It must be remembered that the offence which was committed was not in furtherance of an extremist cause but rather to secure a domestic relationship which both she and Monis wished for. Once Monis had died, there was nothing to suggest that the applicant was likely to commit an offence for a similar purpose, and his death was relevant in considering whether she would commit other acts of criminality, particularly ones of extreme violence.
It follows that this ground has been made out and it is necessary to re-sentence the applicant.
The amending legislation (the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)) also introduced s 22(1A) into the Sentencing Procedure Act. In the Second Reading Speech dealing with both the introduction of s 22(1A) and s 22A of the Sentencing Procedure Act the following comments were made:
"Item [2] of schedule 1.2 inserts a new subsection which requires that any lesser penalty imposed as a result of a guilty plea will not be unreasonably disproportionate to the nature and circumstances of the offence. This reflects provisions elsewhere in the Act which ensure the reasonableness of discounts given. Item [3] of schedule 1.2 explicitly recognises a sentencing court's power to reduce penalties for facilitating the administration of justice. The Act currently provides for the court to impose a lesser penalty where the defence has made disclosure before the trial that facilitates the administration of justice. However, the council acknowledged that there is no point of difference between disclosure and cooperation pretrial and cooperation during the trial. As such, the latter will be included in the legislation as a basis upon which to impose a lesser penalty.
Cooperation may be in the form of admissions or disclosures in the course of the trial but may also encompass behaviour such as agreement to limit the facts in issue during a trial and hence reduce the number of witnesses required where the court is of the view that such behaviour is sufficient to justify a reduction of the sentence. I note that this provision will not result in defendants being penalised for the poor performance of their counsel; it merely provides the ability to reduce a penalty where the course of justice has been facilitated. Moreover, the amendment is not made to simply reward the defence where it has complied with mandated disclosure requirements; hence the court is provided with the discretion to impose a lesser penalty, which it may or may not exercise, having regard to the degree to which the defence has facilitated the administration of justice."
Section 23, which provides discounts for assistance to authorities, is in the following terms:
"23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters--
(a) (Repealed)
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(j) (Repealed)
(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must -
(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and
(b) state the penalty that it would otherwise have imposed, and
(c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason.
(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence."
In those circumstances it was submitted that the sentencing judge erred by simply treating the assistance as a matter of mitigation. However it was also submitted that the quantification of the discount under s 22A is optional.
At the hearing, senior counsel for the applicant, referring to the submissions made at the sentencing hearing, submitted that facilitating the course of justice was a significant aspect of the applicant's case on sentence. submitting that it led to a trial of seven weeks rather than seven months.
He submitted that s 22A sits between s 22 and s 23 which he stated allowed for a two-stage approach. He submitted that each of the three provisions concern a "non-sentencing purpose". He referred to the words in s 22A that "A court may impose a lesser penalty than it would otherwise impose", which he submitted postulates some alternative sentence to that arrived at by the process of instinctive synthesis.
He also referred to the fact that the operation of the section is limited to trials on indictment, which he submitted suggested a framework distinct from a sentencing purpose. He submitted that it was simply concerned with the utilitarian value of the facilitation of the administration of justice which he described as the "pure measurement of pragmatic value". He submitted that it could have significantly greater pragmatic value than a plea of guilty, giving the example of admissions which narrow the case to a discrete legal issue thereby avoiding a long trial, compared to a guilty plea on the day of the trial after all the preparation work had already been undertaken. He submitted that the contrary approach was inconsistent with the approach in relation to guilty pleas referred to in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (Thomson and Houlton) and in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.
Senior counsel for the applicant accepted that it was not mandatory to quantify the discount. He rejected the proposition that the use of the words "I've allowed a discount" rather than "I've taken the matters into account" is a distinction without a difference, stating that if a court is properly to apply a discount one is looking at a two-stage process. He submitted that if the instinctive synthesis approach is adopted, the focus is on the considerations in s 21A of the Sentencing Procedure Act and the idea that something which sits outside those considerations would have any impact is difficult to grapple with and bring properly to account.
He referred in particular to the statement by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [74] where his Honour stated that the instinctive synthesis approach is not inconsistent with awarding a discount for some factor, provided that discount relates to a purpose distinct from a sentencing purpose. McHugh J also stated that a discount should be reserved for "only one - maybe two - factors in a particular sentence that serve some goal other than a sentencing goal": see also Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
In his submissions in reply, senior counsel for the applicant referred to s 22A(2) and the statement in CMB v The Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 at [78] that the equivalent wording in s 23 permits disproportionate sentences but not sentences which are unreasonably so. He submitted that showed that what was being dealt with was outside normal sentencing purposes.
He also submitted that the Crown was incorrect in stating that Thomson and Houlton was based on common law principles, referring to the decision of this Court in R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142 at [67]-[68] to the effect that although the legislature may have considered at the time that s 22 was passed that it was reflecting the common law, the force of the relevant principle (allowing a discount) was based on statute.
In relation to s 22(2), he submitted that it reflected the fact that a plea of guilty has a binary quality such that it could be expected that the legislature would require the fact that no discount was granted be recorded. He submitted that s 22(2) was "confirmatory of what would, in any event, be required at common law", namely to give reasons.
The Crown also pointed out that the applicant acknowledged that quantification of the discount was not mandatory.
At the hearing, the Crown submitted that the adoption of a two-stage approach in s 23 resulted from the terms of the section, whilst in respect of s 22 it is a "concept of a requirement or a common law basis of encouragement for quantification that actually allows for the two-stage process". She referred in that context to the reasoning in Thomson and Houlton, which she submitted did not proceed on the basis that a two-stage process was mandated by s 22 prior to the guideline judgment. However, she submitted that "given the similarity of wording and purpose on ss 22, 22A and 23, arguably it would be preferable to quantify the discount for the purposes of transparency and to encourage accused persons to facilitate the administration of justice".
Further, we do not think that the words in s 22A "impose a lesser penalty than it would otherwise impose" affects the position. In contrast to the language employed in s 23, those words do not create a legal requirement for a sentencing judge to specify a percentage discount or to quantify mathematically the extent by which the sentence has been reduced. As the Crown pointed out that was consistent with the matters referred to in ss 22, 22A and 23 of the Sentencing Procedure Act being treated as mitigating factors in s 21A(3)(k), (l) and (m).
The Crown accepted that it would not be inappropriate to specify the penalty which would be imposed but for the facilitation of the administration of justice. We agree. In general terms that would be desirable where the facilitation made a significant difference to the sentence which would otherwise have been imposed. It has the benefit of providing transparency to the sentencing process and encouraging accused people and their legal representatives to conduct criminal trials efficiently and expeditiously. However, a failure to quantify the discount will not, by itself, establish error.
It follows that this ground of appeal has not been made out.
At the hearing, the Crown emphasised that the offending was premeditated, savage and sustained. She submitted that it was not correct to say that all the planning was done by Monis, although she accepted that Monis devised the plan. She submitted that the applicant was part of the planning and that she went to the unit voluntarily for the purpose of carrying out the murder. She referred to the fact that the applicant set the victim alight despite pleas by Mr Morris not to do so, and to the fact that she was able to maintain a degree of composure throughout. She submitted that the purpose of the crime to establish the family unit was her purpose as well as that of Monis.
Notwithstanding, the fact remains that the offence was a very serious one in which considerations of retribution and general deterrence play a significant part on sentence. Both parties made available a considerable number of cases where sentences were imposed for what might be described as serious cases of murder. Bathurst CJ summarised these cases in Barrett at [78]-[86] and [91]-[93] and in dissent in Goodbun at [95]-[101]. They were also summarised by Bellew J in Goodbun at [227]-[249]. It is not necessary to repeat those summaries in the present case.
In Barrett, the applicant was sentenced to an aggregate sentence of 46 years with a non-parole period of 34 years and 6 months. The indicative sentence for murder which comprised one of the offences the subject of the aggregate sentence was 40 years and 6 months, arrived at after a 10 per cent discount for a guilty plea. Twenty-one offences were taken into account on a Form 1, 19 of which were the offence of filming the private parts of a person without consent for sexual gratification and two of which were the offence of installing a device for filming private parts without consent. The victim was the niece of the applicant's wife, at the time aged 25 years. In the early morning of 22 April 2016, the applicant detained the victim, binding her and gagging her with heavy duct tape secured over her mouth. He then photographed her naked and bound, the images focusing on her breasts and genitalia. It was not disputed that the victim was forced to part her legs so that she could be seen humiliatingly exposed. The detention comprised the kidnapping offence for which the applicant received an indicative sentence of 9 years.
The applicant then stabbed the victim to death, there being 31 wounds all of which were consistent with being inflicted with a knife. The post mortem also showed numerous blunt force injuries.
The applicant then placed the body of the victim wrapped in black plastic in his car, took it to an area described as the Snapper Point Blowhole and threw the body off the cliff, taking seven images of the cliff and waters off the Blowhole on his mobile phone. The sentencing judge stated that she found it difficult to accept that the applicant was genuinely remorseful and said that she was unable to assess the applicant's prospects of rehabilitation.
In Goodbun, the applicant was sentenced to an aggregate sentence of 41 years and 6 months in respect of four offences. The first of these offences was the murder of his wife, in respect of which there was an indicative sentence of 40 years and 6 months after a discount of 25 per cent for an early plea. The pre-discount sentence was thus 54 years.
The applicant, who was separated from his wife, resolved to kill her and burn down the family house following disputes concerning a financial settlement. He obtained a repeater .22 calibre rifle and a large knife. He had ammunition and tested the gun to make sure it was in working order. He also obtained two 10 litre containers of petrol, one of which was full and the other partially full. He burnt the caravan in which he was living and drove 250 kms to the family home. The circumstances of the murder were graphically summarised by the sentencing judge in the following terms:
"[31] The offender, visibly armed with the .22 calibre rifle, tried to force his way into the house through the partially opened door, but Mrs Goodbun resisted him. She yelled to Ms Simmons, 'Call the police, call the police'.
[32] Ms Simmons, who did not have a telephone, ran out onto the street, calling for help from Mr Myers before returning to the house. She saw her mother and the offender on the verandah of the house, struggling together. The offender was holding the butt of the rifle in his right hand and the barrel in his left. He fell into a chair on the verandah, and then knocked Mrs Goodbun over, causing her to fall to the ground. The offender then pointed the gun at his wife and shot her in the chest. Mrs Goodbun immediately began to gasp for air. She called to her daughter,
'Sit me up, sit me up I can't breathe, he shot me.'
[33] The offender aimed the gun at Mrs Goodbun again. Seeing that, Ms Simmons ran towards the offender and tried to grab him. The offender used the butt of the rifle to strike his daughter to the right side of the head. Ms Simmons wrestled with the offender, trying to wrest control of the gun away from him, to save her mother. At one point she even pulled the barrel of the rifle towards her own body, directing the muzzle away from her mother. The rifle discharged and Ms Simmons momentarily released her grip on it, before again wrestling with the offender for control of the gun. She had in mind that she would fire the remaining bullets into the roof to prevent the offender from shooting her mother again, but was unable to do so.
[34] Whilst the struggle for the gun continued the offender yelled at Ms Simmons,
'Get off and let go of the gun, I won't shoot your mother again.'
[35] Ms Simmons released her grip on the rifle and said, 'Ok, ok, I've let go.'
[36] The offender pointed the gun at Mrs Goodbun as she lay injured on the floor, and shot her again, to the head. As he walked from the verandah into the house, the offender said,
'I hope she fucken dies, the bitch deserves to die, she had caused me enough hurt and pain'.
[37] Ms Simmons, who was herself injured as a consequence of the struggle with her father (the scratches and bruises being reflected by the charge of AOABH on the s 166 certificate), crouched down on the floor next to her dying mother and tried to provide first aid. She told her,
'I love you mum, stay with me, I'm getting help just stay with me till we get help here, please don't leave me'.
[38] Mrs Goodbun, who was covered in blood and unable to speak, nodded in response to her daughter's words.
[39] As Ms Simmons sat on the verandah floor trying to comfort her terribly injured mother, the offender came out of the house. She told the offender, 'Look what you've done to her' and asked him to help. The offender replied,
'I'm not gunna fuckin' help her, I hope she fuckin' dies'.
[40] He then pointed the rifle he was still carrying at his wife. Ms Simmons grabbed a cane box as the closest thing to hand and threw it at her father in an attempt to stop him from shooting her mother again. Her gesture had no effect; he shot Mrs Goodbun to the temple at close or contact range, shooting through the hand she had raised to her head.
[41] Ms Simmons called to her mother,
'Mum talk to me, are you alright, are you still with me, please say something or do something'.
[42] Mrs Goodbun made no response.
[43] The offender pointed the rife at his daughter and threatened her, yelling,
'Get the fuck out of here or you're next, you're lucky I haven't done it already.'
[44] Forced to leave her mother and flee, Ms Simmons kissed her mother on the arm, saying 'I have to go, I love you'. She then ran from the premises to a neighbouring property.
[45] Without his daughter to interfere, the offender shot his wife for a fourth time, directing the rifle to her temple, at contact range."
The applicant told the police that he fired the last two shots "to make absolutely sure" that she did not get up.
The applicant at the time of sentence was 62 years of age. He was assessed at being in the average range for overall cognitive function and it was likely that he had alcohol related brain damage. The sentencing judge stated that she did not regard the applicant's mental health as being in any material way connected with the commission of the offences, although she said that she had regard to the applicant's state of health when considering his overall subjective case. She rejected his statement of remorse in the absence of evidence from him and stated that the sentence she imposed was to ensure that there was no realistic possibility of re-offending. She emphasised the importance of general deterrence in dealing with serious offences including domestic violence. The appeal to this Court was dismissed.
We have taken Goodbun, Barrett and the cases referred to in them into account in a manner consistent with the authorities, namely, that the point of having regard to comparable cases is to provide guidance as to the identification and application of relevant sentencing principles, and may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence, although the range so disclosed is not necessarily the correct range: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [25]-[28], [40]-[41]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26]-[27]; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [61]-[83].
The Crown has placed particular reliance on Goodbun. Whilst we accept that was a premeditated murder committed in circumstances of extreme violence, there are significant differences to the present case, including the fact that the applicant in the present case was not the instigator of the crime albeit a willing participant. Further, as we have indicated, we think that the prospects of rehabilitation are reasonable, a conclusion which was not reached in Goodbun. Finally, accepting the majority conclusion in Goodbun that the sentence imposed in that case was not manifestly excessive, we are of the view that a pre-discount sentence of 54 years on a 62 year old man in circumstances where the sentencing judge considered it inappropriate to impose a life sentence was exceptionally severe and not of particular assistance in providing a yardstick. So far as Barrett is concerned, the facts and the subjective circumstances are quite different. However, we have taken these cases and the other cases to which we were referred involving sentences for serious cases of murder into account in determining the appropriate sentence.
We have also imposed a lesser penalty than we would have otherwise imposed to take account of the degree that the administration of justice has been facilitated by the offence. Because it has been a live issue in these proceedings, we should indicate that the sentence which we would impose is one year less than we would have otherwise imposed had it not been for the facilitation of the course of justice.
In the result we would impose a head sentence of 35 years comprising a non-parole period of 26 years and 3 months and a balance of term of 8 years and 9 months.