HER HONOUR: Each of the offenders is before the Court for sentence charged with different offences but arising out of the same circumstance and as such, the sentences are being heard together.
Katherine Murray pleaded guilty in the Local Court on 8 September 2021 to two offences. One was an offence contrary to s 61JA(1) of the Crimes Act 1900 (NSW), being sequence 16, of aggravated sexual intercourse in company. Specifically, the charge before the Court is that on 5 September 2020 at Uralla, while in company with another person, she had sexual intercourse with the named complainant without her consent knowing that she was not consenting, and for a period before the sexual intercourse deprived the complainant of her liberty. This offence carries a maximum penalty of life imprisonment with a standard non‑parole period of 15 years. She has adhered to that plea of guilty in this Court.
She also pleaded guilty at the same time to an offence which is sequence 10, an offence contrary to s 80(2A) of the Crimes Act 1900, of sexual assault by forced self-manipulation. Specifically, the charge is that on 5 September 2020 at Uralla in company with another person, the offender compelled the complainant by means of threat to engage in self-manipulation in circumstances where she could not reasonably have been expected to resist that threat and knowing that she engaged in that self-manipulation as a result of that threat. The maximum penalty for this offence, if sentenced separately, is 20 years' imprisonment.
Both of these offences were committed for sentence to this Court on 7 September 2021 by way of charge certificate pursuant to the Criminal Procedure Act 1986 (NSW). She had originally been charged with a number of other offences at the time, which either were or are to be withdrawn. Before committal for sentence, as part of the early appropriate guilty plea conferencing, the offender offered to plead guilty to sequence 16, with sequence 10 taken into account on a Form 1. A case conference certificate indicates that this was accepted.
R v Murray & R v Brazier [2022] NSWDC 597 | Case summary | Zoe
Nonetheless, and for reasons that are hard to understand, both offences were committed to this Court via charge certificate for sentence. That should not have happened, but again it is an example of how, albeit that there are lengthy negotiations in the Local Court under the auspices of the Early Appropriate Guilty Plea Scheme, things go wrong. In any event, in this Court, because of the agreement that had already been reached in the Local Court, it was necessary to re-arraign her, which is what occurred and she pleaded guilty on 23 November 2021 to the only count in the indictment dated 22 November 2021.
Montana Brazier pleaded not guilty to five charges in the Local Court and was committed for trial to this Court. Kayleen Moran, Holly Moran and Lawrence Tafra also pleaded not guilty in the Local Court to various charges arising out of the same circumstances, and all four were committed to the District Court to the circuit commencing 8 November 2021. There were some initial delays in circumstances where a new Crown Prosecutor had been briefed recently, and adjournments granted during the first week of the circuit to finalise an indictment, so that all accused could be arraigned and a trial date set.
There were ongoing negotiations and representations, and on 23 November the offender was arraigned on one count in an indictment dated 22 November and pleaded guilty to that count. It is a charge contrary to s 316(1) of the Crimes Act 1900 (NSW) of concealing a serious indictable offence. Specifically, the offence is that between 4 and 7 September 2020 at Uralla, believing that the serious indictable offence of aggravated kidnapping had been committed by the offenders Kayleen Moran, Lawrence Tafra and Holly Moran, and believing that she had information that might be of material assistance in securing the apprehension of the offenders for that offence, failed without reasonable excuse to bring that information to the attention of a member of the New South Wales Police Force.
This offence carries a maximum penalty of 3 years' imprisonment and is an offence capable of being dealt with in the Local Court where the jurisdictional limit would be 2 years' imprisonment. She was never charged with this offence initially, and it was not an offence on which she was committed for trial. The Crown accepted her plea of guilty to this offence in full discharge of all matters otherwise committed to this Court for trial.
There are agreed facts tendered for both offenders. There are some differences between them, but there is sufficient enough common ground between the two sets of facts to make findings of fact relevant for both of them at the same time.
The background to the offending is that on 3 September 2020 a group of three people, including the victim of the sexual assault offence, went to an address in Armidale to buy drugs from a named co‑offender, Lawrence Tafra. One of them, not the victim, stole some methylamphetamine, known as ice, from him and then all three got into a car and drove away north along the New England Highway. Mr Tafra discovered the theft and pursued them. The victim of the sexual assault was a passenger in the car which was fleeing up the New England Highway.
Mr Tafra eventually forced them off the road at Guyra which caused the car to stop. The victim of the sexual assault offence got out at this point, and the other two drove away, again pursued by Tafra at great speed, further north, eventually causing the car to roll several times. One of the other two was unconscious for a time. Others attended the scene at Tafra's request, and the two who had fled were detained at knifepoint. The victim of the sexual assault offence was not with them at that stage and was not detained at this stage, but was apparently picked up on the way back to Armidale and went back to a house in Armidale with them.
I have already sentenced several people in relation to offences arising out of this general set of facts. At the scene of the car crash, at the direction of Tafra, the other two detained victims searched the area and the car in an attempt to locate the stolen drugs. It would appear some were found but others were not. Mr Tafra formed the view that about half of his stolen drugs were still not recovered.
All three, including the victim were taken back to the house in Armidale but the victim was not detained at that stage. The other two were, but escaped after a period of time and notified police. Mr Tafra also left the premises not long afterwards and was picked up by one of the other co-offenders Kayleen Moran. At this stage it would appear the victim was not suspected of having possession of any of the stolen drugs, and certainly not at that stage by Mr Tafra.
It needs to be made clear of course that these factual findings being made by me are on the basis of the material presented to me at sentence, and I am conscious that in doing so there are outstanding trial proceedings in relation to three others, who are named as co-offenders. I am sentencing and making findings of fact on the basis of what is presented to me.
After the other two detained people escaped, the co-offender, Ms Brazier, went to the house at Armidale to pick up the victim. Initially the victim wanted a lift to her mother's house in Glen Innes, but was persuaded to go with Ms Brazier and her partner to the offender Murray's house in Uralla, so that they could all use drugs. Ms Murray is Ms Brazier's mother.
When they arrived, the victim stayed in a car in the backyard with the offender Brazier, and they both spoke about what drugs they currently had in their possession. The victim told Brazier that she had some ice which she had been given by Tafra earlier. She told Ms Brazier that she wanted to smoke some cannabis and was invited inside to do so. At that stage Ms Murray was significantly involved in supplying drugs in the Uralla area, and each of the people involved in this offence, either as victim or perpetrator or on the periphery, were all of them involved in the drug supply and use scene in Armidale and Uralla.
The victim went inside and there saw Ms Murray. Together they smoked some cannabis and then Ms Murray gave her some liquid drops which the victim believed was cannabis oil, and then she started to feel drowsy. It is not clear on the evidence whether this was cannabis oil, but what is clear is that she gave her a substance at her request, which she knew she was taking, but believed to be cannabis oil. Whether or not it was, is not known.
In the agreed facts for Ms Murray there are summaries of intercepted telephone conversations between her and Tafra and between Tafra and others. Ms Murray told Tafra that the victim seemed a little odd and raised with him the prospect that in fact it was the victim who had stolen or retained the stolen drugs. She told Mr Tafra that she thought the victim had secreted them in her vagina. At that stage she told Tafra that the victim was in the car in the backyard and was not going anywhere.
There were arrangements made for Tafra to travel to Uralla, and Ms Murray confirmed to him that the victim was still there. Tafra then arranged to go to Ms Murray's house in Uralla, together with Holly and Kayleen Moran according to the facts. It is also apparent from other intercepted telephone calls which appear in the agreed facts that the reason for doing so was because he believed that the victim was secreting the stolen drugs in her vagina and that the two women who were accompanying him were going to take action to extract the drugs from her body.
This belief, I accept, was formed in part from what Ms Murray told him after the victim arrived at her house, and also what he was told by another person who claimed to have seen a message on the victim's phone trying to sell drugs. It would appear, and would be a reasonable inference, that Mr Tafra formed the view that it was the victim who had stolen the drugs and secreted them in her vagina, even though beforehand he did not think that that was the case. There is no evidence from which I could ascertain where Ms Brazier was at the time these conversations were occurring.
The facts establish that she arrived at the premises with the victim in a car and sat in it with her for a while talking about drugs. The facts for Ms Brazier mention her presence in the house several hours later after the sexual assault occurred, and by inference I accept that she was inside the house at the time it occurred, and in any event that is where she lived. There is no evidence, however, about where she was inside the house, and those charges originally brought against her alleging an involvement in the sexual assault have been discontinued.
The facts tendered for Ms Murray continue that after the victim ingested the liquid drops given to her she started to feel drowsy and went to lay down in a bedroom, which apparently was Ms Brazier's bedroom. Tafra and the two Morans then arrived. Ms Murray was still there and had been in contact with Tafra beforehand agreeing to keep the victim there, including agreeing with Tafra that if the victim tried to run she would "hit her with a tyre iron".
Holly Moran was armed with a knife and demanded the drugs from the victim. She said she did not have them. According to the facts before me Holly Moran then cut her with a knife on the upper right thigh twice, which caused her to bleed. The Morans spoke to each other and decided that the victim was secreting the drugs in her vagina. Holly Moran cut the shoulder strap of her bodysuit and screamed threats at her. They demanded that she remove the rest of her clothes and she did so because she was terrified of being hurt.
Holly Moran then pushed her onto the bed on her back and pointed towards her vagina and said, "Get it out". She was still armed with a knife. The victim was crying but complied by putting her own fingers into her vagina and pulling them out three or four times. She insisted there was nothing there. Holly Moran disputed that. The victim then used her own hands to open her vagina, telling the Morans to look inside.
These would appear to be the facts relevant for the Form 1 offence, sequence 10, the forced self-manipulation offence. Kayleen Moran moved closer and used a torch to look inside her vagina. Whilst doing that, without warning, she pushed one of her hands entirely inside the victim's vagina. She was not wearing gloves and the victim could feel her vagina stretching and she felt pain. The victim was crying uncontrollably and she felt sharp pains as Kayleen Moran's hand was moving around inside her.
I note that the facts say that Ms Moran was searching her uterus. That cannot possibly be true given the physiology of the female reproductive system because the uterus is located above the cervix, which is rarely dilated sufficiently to allow a hand to pass through, and usually only then, in normal circumstances for childbirth, after several hours. That is clearly a mistake and cannot be true. I accept that what is intended is that Ms Moran searched her vagina with her hand, that is, placed her hand inside her vagina stretching it and causing pain. They are the facts for count 1, the aggravated sexual intercourse in company offence.
The facts do not indicate that either Ms Brazier nor Ms Murray was inside the room when that was happening, but at the time someone in the house, and the facts do not indicate whether male or female, called from outside the room that they should make the victim squat and cough. The Morans forced her to do that several times for about five minutes. Nothing ever came out, and whilst the Morans continued to attempt to obtain drugs from her, nothing was ever recovered.
Whilst both sets of facts are not entirely identical in relation to where it was that Ms Murray's partner was, nonetheless he was either away from the home or certainly out of the house whilst that was occurring. He came in, and according to the facts I accept was furious to see so many people in the house, and to see, I infer, what was occurring. He ordered them out.
Ms Murray arranged for Ms Brazier's partner to drive the victim home to Glen Innes and then left shortly afterwards. The agreed facts for Brazier indicate that Ms Brazier, both Morans, and another person walked the victim out to the car at one stage after the sexual assault and they all got in. Mr Tafra then came to the door and he and Holly Moran together gave the victim some Ice. Ms Brazier and the victim then went back inside for a while and came out with two other people, and then drove away down the highway to Uralla.
One of those two people snatched the bag of drugs from the victim when they soon after left her on the side of the highway. The Morans and Tafra then left Uralla and went back to Armidale. The victim walked to a nearby café at around 7:00pm and sought assistance. Police attended and took her to the police station where she was examined by paramedics. She would not, at that stage, reveal to police what had occurred and she was allowed to go home. They are the relevant facts for Ms Murray's offending, both the substantive offence and the Form 1 offence.
Later on that evening, Holly Moran called Ms Brazier who told her that detectives had been to the house, believing that they confused her with another person. She told Holly Moran that she informed police she had seen the victim briefly that day and that she was fine. She told Holly Moran that she thought she should know what she had told police. The next day, 6 September, Mr Tafra called Holly Moran and they discussed the fact that the victim had apparently arrived home safely, but they thought that she had called police. Ms Brazier then had contact with her mother, Ms Murray, by phone later that day confirming that in fact the victim had made it home safely, and that she had been offered drugs in the car by Holly Moran as she was leaving the house at Uralla, and in her words, "After it was all said and done" she said to her mother, "Yeah, I think they felt bad honestly".
Ms Brazier also told her partner that day that either Holly Moran or the other person she described as the other Aboriginal woman in her words "stuck her hand inside of the victim because they thought she had drugs inside her." She also told her partner that the two women had bashed the victim because they thought she had taken the drugs that had been stolen from Tafra.
The victim eventually went to the police station on 22 December 2020 and commenced her statement in relation to this incident.
They are the relevant facts for the charge faced by Ms Brazier. Clearly enough, the surrounding circumstances her, and all of the circumstances, give rise to a finding of very serious criminal behaviour. The Morans and Tafra have continued to plead not guilty to these offences and will face trial in due course.
The actual assault on the victim is very serious and the fact that the count in the indictment carries a maximum penalty of life imprisonment makes that clear. The Form 1 offence for Ms Murray is also a serious offence with a maximum penalty of 20 years and must be taken into account in a meaningful way. Ms Murray's involvement in the offence to which she has pleaded guilty is as part of a joint criminal enterprise with Tafra and the Morans. There is no evidence that in fact she participated in any physical way in the assault, or in the self-manipulation charge, and there is no evidence that in fact she was even in the bedroom when the sexual assault occurred.
The offence in which she participated is one of aggravated sexual assault in company. The fact that she was in company is a statutory aggravating factor not to be taken into account additionally. She is not a principal in the offending and participated as part of a joint criminal enterprise in a secondary role. The seriousness of the other statutory circumstance of aggravation, that is depriving her of her liberty is informed by a number of factors, including the length of the detention, the circumstances in which it occurred, the purpose of the detention, and the person who was being detained.
The detention of the victim here I accept lasted for several hours. The purpose of the detention or deprivation of liberty was to retrieve drugs that Ms Murray and others believed were being secreted by the victim. It was done in circumstances where there was some force used by the Morans at least in the course of committing the sexual assault, and in circumstances where there were also threats screamed at her.
As I have said, in the facts for Ms Brazier there is evidence that Ms Brazier told her mother that there were some physical injuries on the victim because she had been bashed by the Morans during the course of the offence, but there is nothing in the facts before me for either of these two for which any finding can be made in relation to that. There is no evidence, however, of any other force being used, and for example there is no physical restraint, no evidence of locked doors or some of the other matters that are sometimes seen, and frequently seen, in offences involving deprivation of liberty, and particularly involving sexual assault.
She was, however, drowsy after being given drugs by Ms Murray, but that would appear to have been with her consent and probably at her request, and as I have said whether it really was cannabis oil or something else is not something about which I can make a finding. What is more, it would appear that everyone in the house at the time this offence was committed were using drugs and had been for some considerable period of time beforehand.
The detention was not for a very short period of time, but nor was it for a lengthy period of days or similar, as often occurs in cases involving deprivation of liberty. There was no restraint used or the like. The purpose of the detention was only to commit the sexual assault but for the purpose of retrieving drugs wrongly thought to be secreted.
The sexual assault amounted to a serious violation of the victim's integrity in a sexual way because of the definition of sexual intercourse in the Crimes Act 1900 (NSW), but I accept that it was never done with the intention of obtaining sexual pleasure, or for any sexual purpose.
However, the victim was forced to strip naked, to put her own fingers into her vagina several times in the presence of at least the Morans in the bedroom, and more probably than not, Mr Tafra, to expose her genitals to view, to allow her vagina to be inspected with the use of a torch and then to be penetrated by the hand of one of the Morans in a rough manner. It was degrading, frightening and humiliating.
That having been said, the gravamen of the offending by Ms Murray is that she knew the victim was going to be vaginally penetrated, and was involved in detaining her in her house, and knew that she was not free to leave the bedroom when she was in there with the Morans. She knew that this was going to occur, which is clear from her conversations with Mr Tafra. She was a party to the joint criminal enterprise between Mr Tafra and the Morans to do so because of this belief that the victim was secreting drugs. I accept the submission made on her behalf that her role was to offer support and encouragement to the other offenders, as well as to provide a place where the offence could occur.
The foundational offence itself committed by those who actually committed the assault on the victim is certainly well within the mid-range in terms of objective seriousness for an offence charged under this section. But given Ms Murray's actual role in it, the objective seriousness relevant for her it seems to me is towards the lower end of the range for offences capable of being charged as an aggravated sexual assault in company.
There is no evidence of the impact on the victim by way of a victim impact statement or otherwise. Clearly the victim was very distressed at the time the offences were occurring, and it is likely that she has some ongoing psychological sequelae as a result of being assaulted in the way she was.
However, some of the matters which the Court would normally be required to take into account when assessing the ongoing impact of offences of sexual assault on victims, are not necessarily appropriate in this case. This is a somewhat unusual set of facts for an offence charged under this section, because whilst it is in fact a sexual assault and a serious one at that, there is no suggestion of any sexual motive involved.
It is likely that the victim quite rightly regards herself as the victim of a serious assault, but it is also likely that she does not regard herself as the victim of sexual assault in the way that that is normally understood. In any event, there is nothing specifically before the Court. There is no evidence of any significant physical injuries, nor any evidence about the impact of the victim that would amount to an aggravating feature.
The Form 1 offence itself is serious in the circumstances in which it was committed, in company, humiliating and degrading and the purpose for which it was committed. But I also agree with the submission made on behalf of the offender that in reality it is part of the factual matrix relevant for the substantive offence. It is indeed another form of sexual penetration by way of self‑manipulation brought about as a result of threats. But it is part and parcel it seems to me of the offence of aggravated sexual intercourse in company, and even if sentenced separately, in those circumstances it is likely that the sentence would be ordered to be served concurrently. It is unlikely that there would have been any partial accumulation if there were two sentences being heard together substantively. So whilst I take it into account in a meaningful way, that is done by looking at the extent to which it elevates the objective seriousness of the principal offence, and the sentence for that principal offence should not in my view be increased because of it.
The offender pleaded guilty in the Local Court at the earliest opportunity and there will be a 25% discount as a result. For these two reasons, that it is below the mid-range and the plea of guilty, the standard non-parole period does not strictly apply but must be taken into account as a guidepost.
The subjective circumstances for Ms Murray are before me by way of a bundle of tendered documents which in fact are a re-tender of documents originally before the Court when I sentenced her, together with a number of co-offenders, for drug supply offences committed at around the same time.
I repeat the findings made there and there is nothing in addition tendered, it seems to me in any event, nor additional submissions made that would alter those findings. She is now 51 and is an Indigenous Australian woman who grew up in Uralla. Her upbringing was characterised by a degree of dysfunction and deprivation. Her mother had a gambling problem and her father had an alcohol problem and was violent towards her.
Alcohol abuse and family violence was the norm and she often felt abandoned. She started running away at the age of 12 and was placed in a foster home, but was unfortunately exposed to violence in that home. She was also introduced to drugs at that stage. She ran away from the foster home at the age of 15 and returned to her mother's home. She became pregnant to an older man after that, and whilst pregnant was sexually assaulted by someone else for whom she was babysitting.
She was pregnant, dealing with the consequences of sexual assault and the Court processes and had difficulty coping at a young age. Ms Murray briefly lived with the father of her baby but then returned to Guyra before the baby was born. Many of her family members have a history of alcohol abuse and drug addiction and she gave a history of the sort of intergenerational trauma, of which courts are aware, surrounding Indigenous families in Australia of the type referred to by the High Court in the Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58 cases.
She became addicted to drugs early, I accept, as a result of this dysfunctional and deprived background. She started drinking alcohol at age 15 with foster siblings. She drank to the point of blackouts to dull the pain of the sexual assault. She used cannabis from the age of 13, and she was continuing to use cannabis up until the time she was arrested for the drug supply matters for which I have already sentenced her.
To an extent she did that also to deal with some of the arthritis pain from which she suffered. She used heroin in her late 20s and was an intravenous user for about a year before going into rehabilitation. She successfully underwent two consecutive residential rehabilitation programs for about 10 months and then went regularly to Alcoholics Anonymous for a few years.
She has been essentially free of heroin for about 20 years. Regrettably, she has not been drug-free. She was for a considerable period of time, but started to use methylamphetamine about 5 years ago in the context of breaking up with her supportive partner, and reverted to spending time with substance-using peers. She was injecting a quarter of a gram per day in the months leading up to her arrest. She was misusing Ritalin over these 5 years also, and her use of the drug methylamphetamine, known as ice, in the circumstances was connected to her increasing problem gambling, and in the year before she went into custody she would spend the entirety of her Centrelink payment on the day she received it on gambling.
She has a limited educational history and was often in trouble at school. She was asked to leave school in year 9 when she became pregnant. As an adult she completed literacy and numeracy courses as well as various certificates. She has undertaken some employment in the past, including on farms, but has been primarily in receipt of Centrelink benefits. She has some medical history which is set out in the psychological report.
She has experienced racism as an Indigenous Australian and suffered from intergenerational trauma. She had no ongoing contact with the father of the child who she gave birth to at the age of 16. She entered into a relationship in her late teens and was together with that partner for about 10 years. They had three daughters, of whom the youngest is Ms Brazier, the co‑offender.
It was this man, the father of these children, who provided the only prosocial influence in her life until more recent times. When that relationship broke up, however, she moved in as a friend with his brother and started using heroin again with him. She went back into rehabilitation again and then the father of the children obtained custody of them through the Family Court. She then entered into a relationship with her current partner when she was in her early 30s and they were together for 9 years until they separated.
It was after this separation that she reverted to drug use, on this occasion using the drug ice. It is in that context that she started supplying the drug as part of the larger group of drug suppliers in the Armidale and Uralla area. As I have said, many, if not all of those involved in this offence, were part of that group, and many have been charged and sentenced already within the last 6 months for those drug supply and other offences.
She reunited with this partner, and they have been together for 4 years. It would appear, however, unfortunately that her partner was not aware that she had reverted to drug use, let alone to supplying drugs, until she was arrested. He was the person who came home and became furious at seeing everyone there and ordered them out. He provided a positive letter to the Court, as did his mother. They are available to continue to provide support to her when she is next free in the community, and she plans to resume living with him when that is next possible. He was previously a cannabis user but stopped in large part because he wanted their life together to be completely free of drugs when she is next released.
At the time I sentenced her for the drug supply charges I accepted that he had a plan for them to move away from Uralla after she was released and where she was well-known as a drug supplier. He had a plan to continue with a woodcutting business. I accept that this plan is likely to remain, but it will have to be activated much further into the future than originally planned, given the sentence which I am to deal with today. They have been dependent on each other for transport and care in the past and that has been a positive attribute. That will happen again in the future. That will play some part in improving her prospects of rehabilitation.
Ms Murray has a criminal history which is as would be expected given her background, but it is not particularly lengthy. It started in the Children's Court with larceny and similar offences. There are assault, driving offences, offensive behaviour and drug possession. In 2003 she received a term of imprisonment for the offence of stealing property in a dwelling house and obtaining money by deception, but it was a short term of imprisonment, only 11 months, with a non-parole period of only 2 months. It can be assumed that this was a relatively minor offence. There are a number of drug possession charges but it is not a particularly long criminal record and that short term of imprisonment in 2003 is the only term of imprisonment on her record. In reality, the earlier drug supply charges and the sentence that I will impose today amount to her first real term of imprisonment.
Whilst there are two relatively minor assault charges on her record, the most recent being 2001, her criminal record does not indicate that she is a person given to acts of violence. Her involvement, albeit as a part of joint criminal enterprise, in the offences before me are very much out of character, given her record and the letters and references before me.
I made a finding in the earlier sentence and do again that her prospects of rehabilitation are reasonable but could not be said to be good. She only committed this offence because of her involvement with drugs and on this occasion her involvement with those, as she was, who were drug suppliers in the area. Her prospects, however, are linked to her ability to remain free of illegal drugs, to address her addiction and to deal with her mental health issues, the two of which are inextricably linked.
She has been able to deal with her drug addiction in the past and did so successfully when she was able to break free of heroin. She continues, as I understand it, to have the support of her partner and his mother, and in due course when released will be able to remove herself from poor influences in Uralla. If her drug addiction and mental health issues are managed, it would improve her prospects of rehabilitation.
She will need, it seems to me, a somewhat longer than normal period of supervision in the community to do so. There are special circumstances, one which I have just identified, the need for a longer than normal period of supervision in the community, and this combined term of imprisonment, combined with the drug supply term, is in reality her first term of imprisonment. There will also be some partial accumulation.
She has been in custody bail refused for the drug supply matters since 10 December 2020. She was not arrested for the matters before me until 10 March 2021 and she has been bail refused for that ever since. On 30 November 2021 I sentenced her for the drug supply matters to a term of imprisonment of 2 years with a non-parole period of 12 months, both commencing on 10 December 2020. She was eligible for release to parole on 9 December 2021 but could not be and was not released to parole because she continued to be bail refused for the offences before me today.
I then look to the appropriate sentence for her for the offences before me. I have been referred to a number of cases dealt with in the Court of Criminal Appeal for offences under this section. Hardly surprisingly, there is nothing with similar facts. The facts for the cases to which I have been referred, Qoro v R [2008] NSWCCA 220, Weatherall v R [2013] NSWCCA 282 and King are of all much greater seriousness. In each case they involved a group of men who detained a woman in a house and carried out multiple offences of sexual intercourse on her and treated her like a sexual object. Each of the offenders would appear to have had relatively serious criminal records.
They are, in any event, much more serious instances of this particular offence than the objective seriousness of the offending undertaken by the offender before me. Making that comment, of course, does not ignore the seriousness of the offence before me, but it is necessary to make those comparisons in order to understand the extent to which, if at all, these cases amount to comparable cases. They would not seem to be so in these circumstances. There are two offences for which the Judicial Commission has published statistics in this Court. Only one of those gave rise to a term of full‑time custody. Statistics of that type are not of much use to the Court, but in any event, I make that note and have had regard to those statistics.
Taking all of the relevant matters into account, I have come to the conclusion that a starting point for this offence is 8 years, reduced by 25% to 6 years, and that there will be a non-parole period of 3 years to take into account the special circumstances to which I have already referred. I need to look to total criminality to determine the starting date for that sentence. In my view the sentence should start at the time she was eligible for release to parole on the other sentence. I will thus be sentencing her to a period of 6 years' imprisonment with a 3 year non-parole period, all of which will commence on 10 December 2021.
For Ms Brazier, the offence that she faces for sentence is significantly less serious. It attracts only a maximum penalty of 3 years, and as I have said, it is capable of being dealt with in the Local Court where the jurisdictional limit would have been 2 years. I accept that the matters which are relevant in determining the objective seriousness of her offence are these. One, the seriousness of the indictable offence which was concealed. This is of course a very serious offence, namely aggravated kidnapping, and particularly so in the factual circumstances in which this aggravated kidnapping was committed.
A second factor is her relationship with the person she was concealing, and her motivation for concealing the serious indictable offence. It is not easy to determine who it was she thought she was protecting when concealing the serious indictable offence. It has been suggested that if she was concealing the involvement of her mother, the co-offender, in the offending, that is a factor that I would take into account in determining perhaps her moral culpability for offending.
It is not entirely clear, it seems to me on the evidence, that she actually realised or understood that her mother had committed an offence. It appears to me that she believed that she was concealing the involvement of the Morans and Tafra, with whom her relationship was simply as joint drug supplier or drug supplier to her, or a person in any event involved in the drug milieu in the Armidale and Uralla region.
Her motivation for concealing the offence is not one that could therefore be considered to be worthy. She was merely protecting those with whom she was involved in drug supply and use in the New England area. Another factor is the extent to which, if at all, she was actually present when the offence she was concealing occurred. The evidence is absent as to exactly where she was or exactly what she was doing when the kidnapping occurred, but she was clearly in the house. The evidence however does not allow for a finding any more than that.
At the end of the day, what she did, which constitutes this offence, is that when the police contacted her, she concealed the fact that there had been an offence against the victim by telling them that she was fine that day when she had seen her, and she did not disclose that she had in fact been at her mother's house in the circumstances that she must have known she was at the time because it was her house too at the time. If she had told the police about Tafra and the Morans' presence in the house with the victim, perhaps they could have apprehended them earlier.
However, it is also perfectly clear that the bulk of the evidence the police have against Tafra and the Morans for the kidnapping or sexual assault is the intercepted telephone conversations, together with the statement of the complainant, but nonetheless the intercepted telephone conversations which they had at the time, and so it seems to me that it was only a question of time in any event before they would have apprehended Tafra and the Morans. Her commission of the offence, however, means that their apprehension could have occurred earlier had she not concealed that from police.
Her offending, however, it seems to me cannot be cast as anything other than towards the bottom half of the range for offences capable of being charged under this section. The only motive that takes it anywhere beyond that is the very serious nature of the offence that she was concealing when she committed this offence. I also sentenced Ms Brazier for drug supply on 30 November 2021, and that was to a period of 2 years and 3 months' imprisonment, with a non-parole period of 15 months, all to date from 23 March 2021. She was originally arrested on 10 March 2021 but had been serving other periods in custody. She is due for release on that non-parole period on 22 June 2022, that is 22 June this year.
There were findings made about her too in relation to her subjective case, largely informed by a sentence assessment report which was before the Court then, and the same sentence assessment report is before the Court now. That again is the only material before me on which I am able to make any findings about her subjective circumstances, and I repeat those findings made on the earlier occasion.
She is now 22. She has a limited criminal history which started in the Children's Court with a domestic violence offence in 2016. There was then a gap and she stated to offend in a significant way from mid-2020 at the same time as she was committing the drug offences and the offence before me. I accept that all of her offending at the time was entirely connected to her increasing drug use and to the influence of those with whom she was spending time.
She committed the offences to which I have already referred, ultimately leading to terms of 12 months' imprisonment at the time, and that was the extent of her fingerprint record. That and probably the non-fingerprint offence committed and dealt with in the Children's Court in 2006 would appear to be all of the offending covered by her criminal record, apart from the ongoing supply charge which I dealt with on 9 December and to which I have already referred. The bulk of the offending was committed around the same time, for the earlier offences dealt with by a group of concurrent 12 month sentences.
At the time of the offending, she was living a transient lifestyle between motels, friends' places and her mother's home. Her mother was not a prosocial influence, at least not at the time, and is a co-offender here. I accept from the sentence assessment report that her mother had a negative influence on her throughout her life, and probably was part of the reason she started to use drugs. Most of her friends at the time were within the criminal and drug taking milieu of the region.
The only prosocial influence so far, as the evidence would seem to suggest, was her father, in whose care she had been as a result of family law proceedings when she was a child. He provided her with positive support and has tried over the years to engage her in intervention services, but unsuccessfully. He is reluctant to have her come to live with him because of her continuing drug use, and the impact that that has on her.
The major issues surrounding her criminal offending is her polysubstance drug abuse which started at the age of 14. She was originally living with her father but decided to see more of her mother, and then started to use drugs, including cannabis and then ice from the age of 14. She actually had a drug overdose at the age of 15, and has used illicit drugs extensively throughout her life.
She has experienced episodes of drug-induced psychosis and has been institutionalised for that. The drugs have also led her to engage in antisocial and violent behaviour. She had apparently been abstinent from drugs for a year or so leading up to this overall period of offending, and she did that by locking herself in her room, but this impacted negatively on her mental health. She informed Community Corrections that as soon as she re-engaged with society, she immediately started taking drugs again. Her mental health declined in the period leading up to the offending in 2020.
She was pregnant and with her partner in a motel in Sydney when he died in front of her from a drug overdose. She tried to administer CPR but unsuccessfully. She had a miscarriage and her mental health declined significantly. In her own words, she went off the rails and started to use drugs extensively, using at least half a gram of methylamphetamine daily and other drugs at the time of the drug supply offending and the offending before me. She had only limited insight into the impact of her drug supply offending on the community, and I have nothing in relation to the offence before me, particularly in circumstances where she had initially pleaded not guilty to the much more serious range of offences.
It appears from other material before the Court that she is an Indigenous Australian woman, but there is little in the way of material before me from which I could make any findings that might be relevant arising from that. She has had some disrupted upbringing, particularly when being cared for by her mother, but her father has been a positive influence in her life.
She has incurred some offences since going into custody, two of which are drug related and two are for property damage. The details of those are not before me, but as I found earlier, they would not appear to be of significant concern to the authorities because, at least as I was told in December 2021, since June 2021 she has been employed as a store sweeper at Clarence Correctional Centre and the custodial case notes report positively on her work ethic.
This is a significant change from her past where she had very limited employment history in the community. She has indicated a willingness to undertake interventions to help her cease drug use, and to gain support with her mental health. She is willing to undertake these interventions, both in custody and when she is released. Her prospects of rehabilitation will be increased if this occurred. She is assessed at a medium to high risk of reoffending by Community Corrections, and when released will be the subject of the supervision plan referred to in that report.
It is to be hoped that this occurs in due course because it seems to me it would assist her prospects of rehabilitation. Those prospects are reasonable but not excellent, but entirely dependent on her remaining free of drugs, which also requires her to address and receive treatment for her mental health issues, and find a way to remove herself entirely from criminal and antisocial influences when she is next free in the community.
I take into account the fact that she is young, she is only 22. Her criminal history is in fact relatively limited, and all committed around the same time as this offending, and all as a result of her drug use and spending time with others who were using drugs. Her mental health issues also played a part in her drug use.
There must be general deterrence factored in this sentence as there must be in relation to the sentence involving Ms Murray, a matter which I overlooked mentioning earlier, and Ms Brazier's mental health issues mean that she is a somewhat less appropriate vehicle for general deterrence than others might be. Her plea of guilty here was entered late after she had been committed for trial, but in fact she pleaded guilty to this offence at the first time it was offered to her. It is appropriate therefore that she be given the benefit of a 25% discount in the circumstances.
I have looked at the range of sentences imposed by the Local Court, which would be the appropriate place for this offence, and I have noted that there is I think one offence only indicated in the JIRS statistics having been sentenced for this offence in the District or higher courts.
I have ultimately come to the conclusion that the appropriate penalty for this offence is one of 12 months with a 6 month non-parole period. There will be some partial accumulation of this sentence with the other drug supply sentence, but I propose to overlap it by 6 months. I propose to commence the sentence in March 2022 with a non-parole period expiring in September 2022, and parole thereafter of 6 months, which will have the effect that she will spend an additional period of three months in custody before she is eligible for release to parole and will serve that parole at the same time as the other period of parole ordered for the drug supply offence.
For those reasons, for each of them I make the following formal orders. For Ms Murray, she is convicted. She is sentenced to a term of imprisonment of a non-parole period of 3 years commencing 10 December 2021, expiring 9 September 2024 with parole thereafter of 3 years commencing 10 December 2024, expiring 9 December 2027, giving rise to an overall term of imprisonment of 6 years commencing 10 December 2021 and expiring 9 December 2027. I have taken into account the Form 1 offence when sentencing for that matter.
For Ms Brazier, she is sentenced to a non-parole period of 6 months commencing 23 March 2022, and expiring 22 September 2022, with parole thereafter of 6 months commencing 23 September 2022, and expiring 22 March 2023, giving rise to an overall term of imprisonment of 12 months, commencing 23 March 2022, and expiring 22 March 2023.
[2]
Amendments
05 December 2022 - removed victim's name
15 September 2023 - no amendments made
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Decision last updated: 15 September 2023