R v Lister

Late guilty plea

1. Lister was arrested on 9 October 2019 and charged with a s 86(3) Crimes Act 1900 offence. A s 86(2)(a) offence was also included on a charge certificate.
2. The matter came to this court and was listed for trial. She pleaded guilty to an offence pursuant to s 86(2)(a) of the Crimes Act 1900 on 27 November 2020. That offence carries a maximum penalty of 20 years imprisonment.
3. The appropriate reduction for the utilitarian value of her late plea of guilty was in dispute. Accordingly, it was necessary to review; the case conference certificate kept in an envelope on the court file, now exhibit D, the indictment originally presented in this Court, exhibit C, and the subsequent indictment to which she pleaded guilty to count 2. This count was accepted in full satisfaction by the Director of Public Prosecutions. I was to consider s 25D Crimes (Sentencing Procedure) Act 1999 (C(SP)Act 1999) and in particular 25(3)(a) and 25D(4)(a).
4. Mr Steward, who appears for the offender, submitted that as the plea was entered as soon as the fresh indictment was filed, a reduction of 25% for the utilitarian value of the plea should be allowed. The prosecution position, argued in written submissions prepared by Mr McGonigal, solicitor, and supplemented by oral submissions of Ms Kerr, solicitor, that only 5% should be allowed.
5. In discussion and argument I indicated that I accepted the prosecution proposition. Shortly put, the scheme of the Early Appropriate Guilty Pleas (EAGP) scheme introduced into the Criminal Procedure Act 1986 is to encourage early offers to plead guilty with a need for an appropriate and fixed recognition for those early offers. No offer to plead was made until days before the date fixed for trial. Only then the discussions led to the prosecution indicating they would accept a plea to the alternative s 86(2)(a) Crimes Act 1900 in full satisfaction of the matters. Only then did they prepare a fresh indictment.
6. Mr Steward submits that scenario this falls into what is required by s 25(3)(a) C(SP)Act 1999: " A reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count'
7. The prosecution submit subsection (3)(a) does not apply. They draw my attention to s 25(4)(a) C(SP)Act 1999: "However, the discount in subsection (3) (a) does not apply if - "the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment."
8. The substantive facts that form the basis for my sentence today, and the new count are substantially the same, if not identical, to the facts that were before the Local Court. Those facts that were said to support the original indictment. The only difference now is an assessment of how and when the joint criminal enterprise was formed. The prosecution are not now pressing that the joint criminal enterprise started with the original detention of the victim. Rather, they accept it commenced when she joined the joint criminal enterprise after the violence had been inflicted.
9. The essential facts have not changed since the arrest of the offender, only their interpretation. Mr Steward's approach would require I ignore not only the words of s 25(4)(a) C(SP) Act 1900 but also the scheme of the EAGP system and its purpose; which is to encourage early pleas of guilty. In all the circumstances as I indicated in discussion only 5% could be allowed for the utilitarian value of the plea.
10. The guilty plea though late has other value; which I will take into account. Notably, that at last the offender accepts responsibility for her role in the crime committed against the victim. Her acceptance of responsibility is one positive step on the road to rehabilitation.

Submissions

1. It is the Director's case that Ms Lister joined a criminal enterprise and played an important role in it for a substantial period; that is from 6am until the victim left the premises at 3:30pm. She was given a role by the other co‑offenders; she took up that role and by her presence reinforced the threats that had earlier been made. They say her motivation was clear; she wanted repayment of the debt. She could have walked away at any time, but she did not.
2. Her entry into and her failure to withdraw from the joint criminal enterprise are matters that go to her role. Further she joined the enterprise knowing violence had been inflicted: Reference was to cases such as R v Newell [2004] NSWCCA 183, R v Kerr [2008] NSWCCA 201, R v Flentjar [2008] NSWSC 771 and R v Speechley (2012) A Crim R 175.
3. It is the Director's position that notwithstanding a powerful subjective case made for the offender a full time custodial sentence and only a full time custodial sentence could meet all the purposes of sentencing. It is submitted such a sentence is required in the interests of community protection; which here encompasses the sentencing principle of general deterrence and a community expectation of a retributive or just punishment. In addition there must be appropriate vindication of a victim of violence who was detained for a lengthy period of time.
4. Mr Steward asks for a more nuanced approach to the agreed facts. He notes that the facts are silent about whether this offender commissioned the offence, nor is there any evidence before me that she participated in the joint criminal enterprise until the early hours of 6am. He notes that there is no evidence that she was present when any of the assaults occurred and that first overt act, which indicates her joining the joint criminal enterprise, was at 6am. He says she was not the person who made the demand at 10am, rather it was Guinness. Although he accepts that she did facilitate that call.
5. It is submitted that Lister did nothing, other than by her presence, enforce the detention after the men had left, and that when the victim left the premises she did nothing to stop him. To the contrary, he submits the victim's remaining at the premises was predominantly because of the threats made earlier - nothing was directly done by the offender other than to reinforce by her presence that if he left he would be subject to further assault by the other offenders. He seizes on her saying to the victim she was "not in the mood to get a verbal" to indicate that a threat had been directed at her by one of the violent offenders. And that this may have been an operating factor in her involvement in the offence.
6. While there is authority to indicate that duress can be taken into account as part of the assessment of objective circumstances but Mr Steward did not press duress, rightly so. There is no evidence of forcible compulsion on the offender. That does not mean that every case should not be examined on its own particular facts. The evidence led about the state of mind of the offender is of particular relevance when I come to formulate a sentence.

Assessing objective seriousness

1. Lister joined, and became therefore a party, to what had been the "in company" aspect of the offence. And she sought to obtain a benefit from it, a financial advantage. Although that financial advantage was a genuine debt owed to her for rent and a basic necessity - food, it is her method of enforcing the debt that adds to the seriousness of the offence. Whatever the real motivation of the other offenders, they said they were acting on her behalf. She sought to obtain repayment of the debt, not by legitimate means, but by joining their joint criminal enterprise. That adds a vigilante aspect to the offence, of taking the law into her own hands, which increases the objective seriousness of the offence.
2. Knowing that a violent incident must have occurred in her home, against a person in her home, this offender agreed to effectively keep a watch on the victim, and did so. She facilitated communications by the others with the victim with the ultimate aim of him repaying, at least in part, a debt owed to her. She chose to engage in a serious criminal offence knowing that the victim had been seriously assaulted and was still having his liberty and rights overborne by continuing threats, threats based upon earlier violence. The consequences of those earlier assaults would have been obvious. The victim was in her presence between 6am and 3pm. Importantly, she chose to stay with him and made no attempt to withdraw from the joint criminal enterprise
3. Her actions were however passive. She took no direct steps to assault or intimidate the victim. He remained free to leave as he ultimately did. Although serious this puts this matter above the lowest category urged upon me by Mr Steward. But, it has been said on a number of occasions that mitigating circumstances can go only so far. The Court must always return to the objective seriousness of the offence when ultimately formulating a sentence.. The court must take guidance from the maximum penalty; here 20 years imprisonment. I am required to take into account all the matters noted by the prosecution about the purposes of sentencing. Here noting s 5 Crimes (Sentencing Procedure) Act 1999 a custodial sentence must be imposed.
4. I sentence on the basis of the agreed facts, but it is for me alone to decide how they are to be interpreted. Courts must sentence according to what is known or agreed. Matters in aggravation must be proved beyond reasonable doubt, matters in mitigation on balance of probabilities, but there are significant limitations on judge capacity to find relevant facts beyond those in the agreed facts.

Parity

1. Here, the facts for sentence are significantly different than the two co‑offenders that I have already sentenced. They were both young men with criminal antecedents, one more serious than the other. They pleaded guilty to a more serious offence with a maximum penalty of 25 years. While there should always be some proportionality between co‑offenders involving in the same criminal enterprise, difference in antecedents, difference in roles, difference in charge can, and in this case do, justify a real difference in sentence, such that no legitimate grievance could be held by them if this offender was dealt with separately.

The Case for the offender

1. The offender provided an affidavit to the Court. I had a chance to read it prior to coming on the bench today. In that affidavit she does not traverse the agreed facts. It is accepted. It is uncontroversial. On balance given that many of the assertions made by her are supported by independent documentation, including court reports.
2. The offender also provided to the Court a report of Bradley Jones, forensic psychologist. Mr Jones regularly provides reports to this Court, including a matter I will be dealing with this afternoon. Although Mr Jones has skill as a psychologist, on occasions, he picks up and reports exculpatory versions of the facts given by the offender, which are not supported by evidence on oath and which are at odds with the agreed facts. In such circumstances a court could not, and the weight of authorities says should not, proceed on those unsworn assertions: R v Qutami [2001] NSWCCA 353, R v JDX; JDX v R [2017] NSWCCA 9. When I come to assess the objective facts for sentence and the objective seriousness of the matter for sentence I do not proceed on the basis of those untested assertions.
3. I have also received a Sentence Assessment Report. The offender told her Community Corrections Officer said that at the time of the offence she was "scattered", "fried" and "drug fucked." She claims she did not know what was happening. As I said during discussion that seems to me, given all of the material before me, a more accurate statement about her state of mind than that set out in history given to Mr Jones. The fact that she was drug affected I think is clear. But as Ms Kerr, for the Director, points out the agreed facts indicate that she accepts that she knew what was happening. And, as I indicated earlier, it would have been obvious to her that the victim had been seriously assaulted and wounded.
4. In any event, and as is notorious, as a matter of law the fact that a person was affected by illicit drugs does not mitigate. Although history of drug addiction and the fact they have come to grips with it, can be a very relevant matter when it comes to formulating a sentence and how it is to be structured or served.
5. It is urged upon me that the mitigating circumstances moderate this offender's role in this criminal enterprise by comparison with her co‑offenders. Two have already received lengthy custodial sentences, despite the fact they were juvenile offenders. Mr Steward suggests that a sentence taking into account a reduction for the plea of guilty and the four months already served in a sentence could be less than two years, and that that sentence be served by intensive correction in the community.
6. The foundation for the submission is set out in the material in the Sentence Assessment Report, the IDAS report and the medical report, which indicate that the offender has certainly over the last months, perhaps 12 months, engaged with psychologists, with drug rehabilitation services, to change her life and prove that she can with assistance lead a law abiding life in the community. She has kept to strict bail conditions. She has responded positively to treatment, and although she has a number of psychological problems and had a substantial problem with illicit drugs at the time of the offending, she has sought help to change her ways and is willing to undertake interventions which can be provided through the Wollongong Community Corrections Aboriginal Client Service Office. She can meet part of the purposes of punishment by engaging in limited community service work; noting that she is on social security and has no work requirement placed upon her because of her psychological condition.
7. She has engaged with a psychologist, Mr Di Martino, whose report indicates that she has been diagnosed complex post‑traumatic stress disorder combined with a major distress disorder. He details a number of unresolved issues that are currently being dealt with. He recommends a continuation of psychological treatment and has a treatment plan in place.
8. Dr Jones puts forward a risk management and treatment plan. He too diagnoses post-traumatic stress disorder with a provisional diagnosis of cyclothymic disorder with anxious distress. He says that from her history and his testing it is likely the offender's acquiescence to what the other male offenders asked of her is a learnt behaviour, developed during because she has been a victim of violence and abuse. Such acquiescence is a protective behaviour to reduce her risk of harm. He notes severe levels of anxiety, depression and post-traumatic stress.
9. Mr Jones also notes a family history which shows; an early uptake of alcohol and illicit drugs, self-harm behaviours since she was very young, sexual and other assaults since she was very young. That history is reinforced by the material in the offender's affidavit to which I'll shortly turn.
10. The offender also spent four months in custody. There is evidence before me that she was assaulted while in custody, although she did respond reasonably well during that short period of remand. That a person has been seriously assaulted in gaol is a relevant factor on sentence. But the law draws a distinction between assaults that can be shown to involve extra curial punishment and those that cannot be so linked: Silvano v R [2008] NSWCCA 118: R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487. The law allows a reduction in sentence where extra curial punishment can be shown, but it does not do so where a person is simply assaulted in gaol. Adamson J noted in O'Connor, "It is difficult to see how the assault could rationally make a difference to the appropriate sentence". Nevertheless, Her Honour went on to say "The sentencing judge was entitled to have regard to the potential difficulties that the respondent would face in custody".
11. With respect to Her Honour and those who agreed with her in that judgment, there are other harms from assaults additional to the physical wounds that may heal. Where a prisoner is assaulted in custody even after the wounds heal a person will inevitably suffer anxiety and other concerns if they are to be returned to the same environment where they were previously assaulted. They could not be protected in the past. While in gaol they have no control over whom they associate with and no control over their immediate safety. Gaols are nasty, violent places and all prisoners are placed at risk. It needs no imagination nor is additional evidence required to show that a person who has been seriously assaulted in gaol, particular a person with psychological problems and other vulnerabilities as a result of being a victim of violence, would find incarceration at the very least more worrying than someone who has not had that experience.
12. I do not ignore the lived experience of gaol. The custodial environment in New South Wales is a harsh one with frequent exposure to violence, threats and intimidation. As a victim of domestic violence and sexual violence this offender is likely to be more sensitive than others to any violence, threats and intimidation in custody; and custody is likely to exacerbate her existing mental conditions making custody more onerous for her than on a theoretical inmate who does not suffer such entrenched problems.
13. The harm that prison causes offenders and empirical evidence, that particularly for young offenders, harsher prison conditions and longer prison terms do not deter must be recognised: see Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011. That however does not mean courts should refrain from imposing custodial sentences on people such as this offender. To the contrary, proper guidance taken from the maximum penalties and decisions of the Court of Criminal Appeal, particularly those designed to give guidance, requires courts harden their hearts and impose custodial sentences where the objective facts demand them.
14. This offender had no criminal convictions, although there was one s 10 C (SP) Act 1999 matter recorded. She is entitled to have the benefit of her prior good character
15. The affidavit before me is comprehensive. It is supported by material from police records. I can act on it. It sets out a history that establishes her childhood depravation, and would in accordance with the principles set out by the High Court in Bugmy v The Queen (2013) 249 CLR 571, require sensitive consideration about the offender's capacity to form moral judgments. Anyone who has read it in detail and then considered what this young woman has been though during her short life would say she should not be treated as harshly as others who did not have such a background.
16. Lister was born in December 1995. On her mother's side she is an Aboriginal Australian, her father is African, Zimbabwean. She grew up primarily with her maternal grandmother. Her father was in and out of gaol. Her mother had her own problems and Lister was taken into care. She spent time on the streets and in refuges when she was a young child. Her mother appears to have overcome her problems and is here to support her daughter. They have reconciled.
17. The police reports show a history of repeated suicide attempts, drug use and significant levels of domestic violence on her, including sexual assaults. The assaults have continued after her release to bail. In custody she did the High Intensity Program Unit, (HIPU) course and learned from it. She also expresses concern that should she be imprisoned for a lengthy period she would lose her Department of Housing home. She tells me; "It is the first house I have felt stable in my whole life. I have worked very hard and done a lot of work to it since being released from custody". Having a home and a stable family support is one important protective feature in the sentencing exercise.

Synthesis

1. Community protection is the principal aim of any sentencing exercise. But as I said earlier, the Court cannot ignore principles relating to deterrence and vindication of the victim. Community protection can be achieved by removing a person from the community for a period, but that is not necessary in this case. Community protection can involve ensuring by the harshness of punishment that a person learns the lesson and does not reoffend. That purpose has been served by the short period in custody already served.
2. Community protection ultimately is achieved by restoring an offender to the community. It is clear that that process is well under way. Were this offender to be returned to custody it is clear that she would, on my view, be able as she was when she was last released, of rebuilding her life, but it would be so, so much harder.
3. Although an adult when this offence occurred, her offending behaviour was more like that of the young people that she was hanging out with at the time, indicating a degree of immaturity; which must be taken into account despite her actual age. She had never really lived a normal life in the community but the material before me indicates that she is maturing and is capable of taking her place in the community.
4. Taking into account all those matters an appropriate sentence in this matter would have been in the vicinity of a bit over two years. Sentencing is not meant to be strictly mathematical. I have to allow 5% for the plea of guilty and I have to allow for the four months in custody. She must have credit for those four months. When I come to formulate an appropriate sentence, a sentence of one year and ten months would meet all the purposes of sentencing. That then allows it to be served by way of Intensive Correction Order (ICO).
5. The Intensive Correction Order scheme, as Mr Steward carefully sets out in his written submissions, is one that is designed for a community benefit. Although, as Ms Kerr points out, other factors can trump the community protection aspect of a sentence to be served in the community.
6. While Lister had criminal habits at the time of this offence, she had no prior convictions. She now has real prospects to grow and mature if allowed to stay in treatment to deal with multiple matters; matters which no young person should have had to endure. She has her mother's support. She has an opportunity to do some community work and this will be the first time she has ever worked in her life. She can make some reparation. Full time detention is more likely to impede rather than address the offender's risk of reoffending
7. This requires a degree of leniency and consideration that she should have been shown to her victim. There is no way that on the material before me the safety of the community could be imperilled by an ICO. She has demonstrated her capacity to comply with conditional liberty for an extended period. I will allow the sentence to be served by way of intensive correction.
8. What that means Ms Lister is this. For the next one year and ten months you will be subject to a sentence of imprisonment. You will be subject to supervision and monitoring by the Community Corrections. If you break the rules you will go to gaol. OFFENDER: Yes, your Honour.
9. HIS HONOUR: You will have to perform 100 hours of community service, that is nine hours a month. That is work, that is hard work, it might get you used to working in the community, and note I used to supervise community service a while back as part of my own community activities, I do it myself, it helps, and it might even get you into a job. If you have trouble speak to your parole officer and your psychologist. Do not run away from your responsibilities.

Orders

1. You are convicted. You are sentenced to a term of imprisonment for a period of 1 year 10 months. The sentence will commence on 12/03/2021. The sentence is to be served by way of intensive correction in the community in accord with the Crimes (Administration of Sentence) Act 1999:s 7(1) of the Crimes (Sentencing Procedure) Act 1999,
2. You must report to the Community Corrections Office at Wollongong as soon as practicable but no later than 7 days from 12/03/2021. The standard conditions of the order apply. The following additional conditions apply 1. Perform 100 hours of community service work. 2. To accept the guidance and supervision of Community Services NSW. 3. Follow the supervision plan of Community Corrections and obey all reasonable directions in relation to referral to Community Corrections Aboriginal Client Service Officer for appropriate cultural support, continue with engagement with IDAS counselling, continue with psychological counselling.

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: 21 April 2021