R v Girdler

Agreed Facts

1. The facts before the Court are similar to those in the matter of Nyrhinen, I dealt with this morning: R v Nyrhinen [2023] NSWDC 615.
2. Girdler was born in July 2003. On 30 September 2002, she contacted the victim, a man she had known for some time. They arranged to meet. He picked her up in his car and they drove to a lookout at Mount Kembla. There was another car a Subaru, near where that initial meeting initially took place. It followed them to Mount Kembla and pulled up alongside them. Strugess and Nyrhinen got out of that car. Sturgess, who was well known to the offender, tapped on the driver's door. The victim wound the window down. At that point Girdler said, "Don't hurt him, don't hurt him".
3. It was submitted by Mr Hibbard, counsel for the offender, that her words showed an intent that there be no harm to the victim. I cannot make that finding. It may be what she intended, but the material before me indicates that she well knew that these people were going to be there and that something had been planned so far as this person, the victim, was concerned.
4. The victim saw what he described as a "gun-shaped object". There is no suggestion it was, in fact, a firearm. A threat was made. Sturgess told him to, "Remove the key from the vehicle and give me your mobile phone". The victim was very scared and uncertain about what might happen. He said, "No." At which point Sturgess punched him to the face and repeated his demand, "Remove the key and give me your mobile phone". The victim gave him the keys and handed the phone over. The victim received bruising and had soreness to the right side of his face.
5. Someone said, "Remy [get] out of the car and get in the car". She left the car, and hopped into the Subaru. As she did so she said, "I love you's".
6. At that point Nyrhinen, holding a knife, entered the victim's car. He made him move to the front passenger seat. Nyrhinen then drove with him to an address in Berkeley. When they arrived, Girdler and Sturgess entered the victim's vehicle. At this point the victim was, entirely understandably, very scared. He was then driven to a nearby park which I know to be quite dark and deserted at that time of night. There Nyrhinen demanded the victim unlock his phone, open his credit union account, and transfer $1,464 to an account associated with Nyrhinen. When his vehicle was ultimately recovered, a weapon was found in it. I have to take care here. The facts are silent on whether or not the offender was aware there was a weapon.
7. The victim was then driven to Girdler's address, about ten minutes away, and let go.
8. It is important to note that the victim knew Girdler. He was dropped at her address, an indication of her state of mind and the lack of any sensible planning of this event.
9. She was in the car the following day. It was then the Form 1 offence was committed. She pumped petrol into the victim's vehicle. It was not paid for, costing the service station $46. The vehicle was recovered shortly after.
10. There are two other matters for sentence unrelated to this incident. On 11 October 2022 she and Sturgess went to a car wash. They obtained the keys to some vehicles and drove off in one of them. The incident was captured on CCTV.
11. The following day, 12 October 2022, Girdler was in a car with Sturgess. They drove into a service station. Their victim had put petrol in her car but left the key in it when she went to pay. Her car was taken by Girdler.
12. Girdler was arrested on 12 October 2022. She made admissions. She said that she was not aware of what was intended at Mount Kembla. She gave another version to her psychologist. She may not have been aware that there was to be a robbery as such, but even on her own version she must have been aware that some ill was intended to the victim.

Objective seriousness

1. Given Girdler's admitted lack of capacity to reason rationally at the time, I make no finding as to her motivation. I sentence on the facts as to what occurred and what she participated in, and what she was aware was occurring.
2. The matter is serious as is obvious from the facts. Courts should be careful of seizing on one or two critical facts in isolation. There is a danger that such matters can be given undue weight. All relevant matters have to be synthesised. A judge must identify all factors relevant to the sentence, discuss their significance and make value judgments about what an appropriate sentence is. Only at the end of the process does the judge determine the sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] and [55].
3. As is obvious from the Agreed Facts, this offence was, taking into account its objective features, serious. I have to give a mathematical value to those features. I must impose a proportionate sentence. I punish according to what was done and the seriousness of what was done, but I must also take into account the case made for the offender.
4. I note that the detention of the victim had two phases to it. It started at Mount Kembla and ended at Northcliffe Drive, a distance of about 20 kilometres. It took place over a period of time. The offender was not present during all of that time.
5. I am not sure what advantage was sought by her, but the victim lost his car keys, his car and all the money he owned. There was violence in her presence.
6. She is not to be punished for the armed robbery; I make that clear. But clearly while she was present, and during the enterprise to which she was a party, the complainant suffered severe discomfiture, distress and humiliation. While an 'in company' is an element of the offence, the force of numbers deployed is important.
7. There is and should be a relevant difference here between a person who inflicts the violence and a person who is present. But here that difference is not great, as by her presence and by her setting it up, in the sense that she got the victim to Mount Kembla, she bears equal criminal liability for her part in what occurred. While planned, it was ill-planned and ill-thought out.
8. The motor vehicle thefts, it was submitted, could have been dealt with in the Local Court. This is true but they are not trivial offences; not that that was a submission. They may have ended up in custodial sentences. They could have been served subject to intensive correction, but that would depend on all the circumstances. Unless you are lucky enough to own your own home, a motor vehicle is probably the most expensive possession that a person can have. I do not underestimate the impact of such offences on their victims.

Maximum penalties

1. Take and Detain offence carries a maximum penalty of 20 years' imprisonment and Carried in a Conveyance, 5 years' imprisonment. I have to give careful attention to the maximum penalties. They are important guides to the exercise of my discretion.

Record

1. The offender has been before the Children's Court on many occasions since she was a teenager. There has been no crime-free period. As soon as she was old enough, she was before the Local Court. An intensive correction was imposed upon her while she was on remand, but she could not obtain any benefit from intensive correction in the community. The principal offence was a considerable escalation. The other matters, sadly, fitted a well-established pattern. Her criminal record disentitles her to leniency often given to first offenders.

Subjective case

1. I have a helpful, informative, and comprehensive Sentence Assessment Report before me. I have a letter from a friend who can provide accommodation for her even though her friend notes that she probably needs, first, to go to a rehabilitation centre. She is receiving counselling under the Victims Services program, and she consistently attends. She has certificates from the gaol. They show that she is applying herself as best she can in custody. There is a comprehensive, perhaps over-comprehensive report, from Ms Cornell which goes through her personal history.
2. Girdler had a positive relationship with a supportive family during her childhood. Things changed when she was 13 or 14. It is not entirely clear why.
3. Her psychologist says there is no apparent trigger, but it is clear from that age that rather than adopting the prosocial attitudes of her family, she increasingly engaged in antisocial activity. As her life went downhill, given her age and lack of maturity, she became increasingly vulnerable. She lived on the streets. Her vulnerability was exploited. She was sexually abused. She used and abused drugs. She has never before received a full time custodial sentence.
4. She had pushed her family away, but the material before me indicates that while she has been on remand, she is in contact with them. She is attempting to regain their trust. They will reciprocate, but she will have to prove herself to them.
5. The material indicates that she is presently abstinent, but through her late teens and early adulthood she continually self-sabotaged. She engaged in destructive, almost suicidal behaviour. She was impulsive and reckless. She is quoted as saying she "loved living on the line of death". She wanted to "feel something". These comments indicate that her emotional and coping responses were deadened as life free of substance abuse can be full of feeling and emotion.

A vulnerable adolescent

1. She was a very vulnerable adolescent. She was, for a long time, in a poor mental state, often presenting to hospitals in crisis. Her psychologist says that she fits the diagnostic criteria for Borderline Personality Disorder and Substance Abuse Disorder, but she notes that Girdler is also, while drug-free, self-aware and insightful. She is a person who, while impulsive and easily distressed and distracted, has positive potential.
2. She still has complex needs which require intervention. Her underlying mental conditions will be taken into account in amelioration of her moral culpability. But that does not mean that there is no need to denounce the offence, nor does it mean she is less a vehicle for general deterrence. She is a vehicle for specific deterrence, she is capable of learning and understanding that if she behaves as she did courts have very little choice but to imprison her: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Ms Cornell's report, Exhibit 1, Tab 1, will go with the warrant.

Drug use

1. Her drug use does not excuse her crime. Her negative lifestyle does not excuse her crimes; nor does trauma. Nor does her underlying mental health conditions excuse what she did. But they are all matters I have to take into account. They mean that her moral culpability was less than someone who did not have that background, which started when she was far too young to make rational choices.
2. Her drug abuse problem, and the efforts that she is making to overcome it, help explain both the offence and its impulsivity. Drug use help explain the stupidity of the offence - in the sense that she was going to get caught as the victim knew exactly who was involved. Her drug use, her efforts to remain abstinent and her need for help and rehabilitation, inform the sentencing exercise and the structure of the sentence: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.

Youth

1. Her youth is also a relevant factor. Although she is now an adult, she is very immature. She has had little opportunity to grow. Her immaturity was a significant contributing factor to her offending. Her capacity for cognitive and emotional and psychological growth has to be considered: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.
2. That lack of capacity, I am sure, contributed to her breaches of the law over many years. She will, and is, maturing. And if given support has, as the Sentence Assessment Report makes clear, solid prospects.

The Sentence Assessment Report

1. The Sentence Assessment Report is, in my view, a very positive one. It notes that she does not have a stable plan at present, but she will have time to put that plan in place. Although a submission was made that she could be released now, that is not the finding I intend to make. There will be time to plan for her future.
2. Her background, the fact she did not care about herself or others, is recognised as is the nature of her many personal problems. Those significant problems are set out in the Sentence Assessment Report. They mirror the psychological report. She showed significant insight to the parole officer about into the impact of her offending on the victim of her offence. She expressed a willingness to engage; a supervision plan can be put in place for her.

Parity

1. Questions of parity, proportionality with the co-offenders must be considered. "Like must be compared with like". But her personal and criminal history is different from those of the other offenders: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.
2. She did not adopt the violent role and she did not inflict violence upon the victim, but she was there at the start and she was there at the end. She played an important role. All matters that have to be taken into account.

Submissions

1. Mr Hibbard, on Girdler's behalf, put submissions in writing and orally. I received written and oral submissions from Mr Edye, solicitor for the Director of Public Prosecutions. There is no significant difference between them on matters of law and principle. It is accepted that a custodial sentence has to be imposed. It is accepted that it is in the community interest for significant emphasis to be put on fostering her rehabilitation. But it is also accepted that the purposes of sentencing do not point in one way.

An Intensive Correction Order ('ICO')?

1. The sentence I intend to impose will be under 3 years: Zheng v R [2023] NSWCCA 64; Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3. The aggregate sentence I intend to impose reflects considerable leniency and ordinarily would have attracted one of more than that period. While no submission was made that an ICO be imposed, that option was considered.
2. In my opinion the detain offence was so serious that only a full time custodial sentence could meet the purposes of sentencing, particularly specific and general deterrence, and adequate punishment. While the progress towards rehabilitation has been shown, it has not yet been demonstrated. I am not confident immediate release to an ICO is justified. More work needs to be done to build on the present optimistic signs.
3. Here the issue of community protection looms large. Community protection sometimes requires that a sentence of full time gaol be imposed. There are some matters where the Court forms a view that only a full-time custodial sentence is warranted. This is one of them. To detain the victim in these circumstances justifies a custodial sentence. Further, a considerable degree of leniency was shown to this young woman in the structure of the sentence and in the reduction of the sentence, to give as much weight as I could to her tragic background and all the material before me.
4. In those circumstances, the further leniency inherent in having it served by intensive correction was not warranted.

Synthesis

1. While full weight can and will be given to Girdler's subjective case, it cannot be forgotten that here, a fellow citizen was treated with criminal distain. While the offender's moral culpability is reduced, there is still some need for personal deterrence and a need to express the community's disapproval of the offending. The indicated sentence for the detain offence in particular must attempt to vindicate the dignity of a fellow human being who was detained and humiliated.

Orders

1. There are three matters for sentence. There will be some modest accumulation. There will be an aggregate sentence. There will be a finding of special circumstances. The indicated sentences reflect the 25% reduction. The Form 1 matter taken into account on the principal matter.
2. I indicate a sentence of 2 years and 7 months for the detain. I indicate a sentence for each of the motor vehicle matters of 9 months.
3. The aggregate sentence will be 2 years and 9 months. The non-parole period will be 1 year and 8 months. It will commence on 12 October 2022. It will expire, and you will be released to parole, on 11 June 2024. The parole period will be 1 year and 1 month to commence on 12 June 2024 and expire on 11 July 2025.

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: 27 March 2024