R H McL v The Queen (2000) 203 CLR 452
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
R v Gilmore (1979) 1 A Crim R 416R H McL v The Queen (2000) 203 CLR 452
Category: Sentence
Parties: Regina (Crown)
Judgment (2 paragraphs)
[1]
Judgment
Daniel O'Brien, on 8 March 2021 you were arraigned before a jury panel in waiting in Queanbeyan on an indictment which contained the following three Counts.
First, that on 12 March 2014, at Thredbo, in the State of New South Wales, whilst in company with Lawrence Richard Pashley, you robbed Dane Sheridan of $30,205.80 in Australian currency, the property of Kosciusko Thredbo Proprietary Limited (the robbery in company Count).
Secondly, that on 12 March 2014, at Thredbo, in the State of New South Wales, you did, whilst in the company with Lawrence Richard Pashley, take Dane Sheridan without his consent and with the intention of obtaining an advantage, namely, delaying the notification of the robbery to the relevant authorities, and immediately after the taking, actual bodily harm was occasioned to the said Dane Sheridan (the specially aggravated kidnapping Count).
Thirdly, that on 12 March 2014, at Thredbo, in the State of New South Wales, you did take and drive a conveyance, namely, a white Hyundai iLoad Panel van registered number BM73ZT which was in the lawful possession of Kosciuszko Thredbo Proprietary Limited (the take and drive conveyance without consent of owner Count).
Upon your arraignment before the jury panel in waiting, you pleaded not guilty to each of the three Counts on the indictment.
At the conclusion of the trial which commenced by that arraignment, the jury, on 24 March 2021, found you guilty of each Count on the indictment.
R v O'Brien [2021] NSWDC 278 | Case summary | Zoe
You, therefore, appear before the Court today for sentence in relation to each of those offences.
The robbery in company offence involves a contravention of s97(1) of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment.
The specially aggravated kidnapping offence involves a contravention of s86(3) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment.
The take and drive conveyance without consent of owner offence involves a contravention of s154A(1)(a) of the Crimes Act. The maximum penalty for that offence is 5 years imprisonment.
There is no standard non-parole period for any of the three offences. However, in relation to the robbery in company offence, there is a relevant guideline judgment - R v Henry (1999) 46 NSWLR 346 - although, as Williams ADCJ said in sentencing Mr Pashley on 22 September 2017 (page 5): "The Henry guidelines have little relevance to this offending other than as a starting point".
Because you were found guilty by the jury, it is necessary for me to make findings of fact in relation to each Count, beyond reasonable doubt, consistent with the jury's verdicts.
Before doing so, it is appropriate to note that the trial which you faced in March 2021 was not the first time you had appeared before a jury for trial in relation to those charges.
You first appeared before her Honour Judge English and a jury in Queanbeyan in September 2015. For reasons which are not presently relevant, that trial was aborted.
You appeared on a second occasion before his Honour Judge Hoy SC and a jury in Queanbeyan on 20 September 2016. On 4 October 2016, that jury returned verdicts of guilty in relation to each of three Counts on the indictment. On 9 August 2019, the Court of Criminal Appeal (per Simpson AJA and Walton J, Adamson J dissenting) set aside those verdicts and ordered a new trial on each Count (cf O'Brien v R [2019] NSWCCA 187).
The trial which commenced in Queanbeyan on 8 March 2021 was the new trial ordered by the Court of Criminal Appeal.
Returning to the facts underpinning the three convictions, I am satisfied, beyond reasonable doubt, of the following facts.
From May 2012 until 20 January 2014, you had been employed in various capacities at the Kosciuszko Thredbo Hotel (the Hotel), including restaurant manager and duty manager.
Your employment at the Hotel was terminated on 20 January 2014. The reason for that termination was not revealed in evidence before the jury (other than by reference to "performance issues") but, in material tendered without objection in the sentence hearing, it was disclosed that the "performance issues" were that you were found to be under the influence of alcohol whilst on duty.
You were resentful about your dismissal. During the trial, evidence was given by Ms Jones, who at all relevant times was a supervisor in the restaurant at which you had been the manager before your dismissal. Ms Jones gave evidence about a very casual farewell drink function for you at a bar in Thredbo - but (unsurprisingly) not at the Hotel.
Ms Jones did not give express evidence of the date of this casual drinks function but I am satisfied, beyond reasonable doubt, that, in context, it was between 20 January 2014 and 12 March 2014 - and closer to the earlier date.
What Ms Jones did give express evidence about (and which I accept beyond reasonable doubt) is that, in your resentment about your dismissal, you said to her at this function "… something along the lines of either wanting to light the place up - blow the place up or rob the place… as far as I remember it was wanting to light the place up, along those lines. And then rob the place" (T281, 17 March 2021).
Well, you didn't blow or light "the place" up ("the place" being the Hotel), but you did rob it, as I shall now describe.
As at March 2014, you were associated with Mr Lawrence Pashley.
You and Mr Pashley lived (but separately) at that time in Canberra.
Mr Pashley's father (Professor Pashley) was the owner of a Ford Falcon. (I do pause to observe that Professor Pashley had no involvement of any kind with the facts and events to which I shall now refer).
On or about 12 March 2014, a set of number plates was stolen from a caryard business in the Canberra inner-city suburb of Braddon.
Those stolen number plates were subsequently fixed to Professor Pashley's car. Your fingerprints (and no one elses) were subsequently found on those number plates.
After the stolen number plates had been attached to the Ford Falcon, you and Mr Pashley, in the early hours of 12 March 2014, travelled in that motor vehicle from Canberra to Thredbo. Mr Pashley was the driver, and you were the only passenger. You took with you: masks; balaclavas; bags; a knife; a screwdriver; a claw hammer; and duct tape.
The vehicle travelled through Bredbo (1:57am), Cooma (2:11am) and Jindabyne (approximately 2:30am) before you and Mr Pashley ultimately arrived at your agreed destination - the Hotel. You arrived at about 4:00am to 4:15am.
Because you had worked at the Hotel in a senior managerial position, you knew that there would be (only) one member of staff (the night auditor) in the manager's office in the early hours of the morning, and that no other staff would be in the reception area or backroom offices of the Hotel. You also knew that, apart from that one member of staff, there would be unimpeded access to the float of approximately $30,000.00 that would always be kept in the unlocked safe in that office.
You and Mr Pashley entered the Hotel at about 4:15am and made your way from the front reception area to the manager's office where Mr Dane Sheridan was working as the night auditor.
When you entered the reception area of the Hotel and then the manager's office, you were in possession of the knife; Mr Pashley was in possession of the screwdriver and the claw hammer. One of you had the duct tape.
Amongst other things, you were wearing a ski-mask which only covered the lower half of your face; it did not cover the upper portion of your face. From this, and your voice, Mr Sheridan thought he recognised you as one of the robbers.
You and Mr Pashley cornered him in the office area. You told Mr Sheridan to cooperate and, if he did so, it would be "over quickly".
You went to the open safe and removed approximately $30,000.00.
Whilst this was happening, you held the knife to Mr Sheridan's face and Mr Pashley bound Mr Sheridan's hands with duct tape which had been brought by you and Mr Pashley and, which I am satisfied beyond reasonable doubt, was done for the purpose of, not only restraining Mr Sheridan whilst you and Mr Pashley were in the office, but also to facilitate his subsequent removal from the premises.
Whilst in the main safe, not only did you take the money I have referred to, being the float money, you also knew where the key was for other safes within the main safe and you used that key to obtain additional money. Ultimately, $30,205.80 was stolen by you and Mr Pashley from the Hotel.
After the stolen money had been secured in bags, you then took the keys to a motor vehicle leased by the Hotel and which was out the front of the reception area.
After the keys to that second vehicle had been taken, you said to Mr Pashley, "Come on, let's go, we're taking him to the van".
Mr Sheridan was then pulled up and, against his will, walked out of the reception area towards this vehicle. He was pleading with you and Mr Pashley not to take him with you.
Mr Sheridan was placed in the rear of the van. Once inside the van, Mr Sheridan's legs were secured by Mr Pashley using more duct tape so that his legs and hands were now secured.
You then got into the driver's seat of this van and Mr Pashley returned to the Ford Falcon. You had the stolen money with you.
Both vehicles then left the township of Thredbo and drove towards the township of Jindabyne.
The motive in taking Mr Sheridan was clear.
You and Mr Pashley could not afford to leave him at the Hotel - bound and gagged or otherwise. There was only one road in and one road out of Thredbo (there was no direct evidence on this given to the jury, but it was also disclosed in material tendered without objection in the sentence hearing) and, if Mr Sheridan had been able to raise the alarm, or if he had been discovered in the manager's office in a bound position, it would have been an easy thing for you and Mr Pashley to be apprehended as you sought to escape.
During this journey, Mr Sheridan was pleading with you for you to let him go, promising that he would not tell anybody about what had occurred.
Your response was to threaten Mr Sheridan with death, a threat that you extended to his brother and parents - threats which Mr Sheridan thought, not unreasonably, were a real possibility.
As the van drove towards Jindabyne, Mr Sheridan was able to stretch the duct tape around his hands to a point where they could be removed and, once removed, he was able to remove the duct tape that had been wound around his legs.
As the van approached the township of Jindabyne, and in his terror as a result of the threats you had made, Mr Sheridan made the dangerous decision to jump from the vehicle as it approached Banjo Patterson Drive - an area where he knew people whom he thought might be able to help him.
Accordingly, near that part of the township, Mr Sheridan was able to open the sliding door of the van - and he jumped from that moving vehicle which was travelling somewhere between 60 and 70km/hr.
After Mr Sheridan made this highly dangerous escape, you continued to drive that stolen vehicle until you abandoned it in Jindabyne, after which you were collected by Mr Pashley in the Ford Falcon sedan.
You and Mr Pashley returned to Canberra in that motor vehicle and, upon arrival, one of you replaced the registration plates that had previously been stolen from the vehicle in Braddon.
Unsurprisingly, Mr Sheridan sustained serious injuries in his desperate attempt to escape:
1. small traumatic pneumothorax in the apex (top) of his right lung with extensive subcutaneous emphysema (air under the skin) over his right side extending from the right side of his neck down to his groin and scrotum;
2. fractures to his right fifth, sixth and seventh ribs;
3. a head injury with haematoma (a collection of blood) and lacerations over the back and right side of his skull with no underlying skull fracture or intracranial injury; and
4. multi-lacerations and abrasions to his right arm and hip.
After escaping from the van, Mr Sheridan wandered in quite a dazed state to a nearby house where the occupant called police and, subsequently, an ambulance was dispatched.
After being assessed initially by the ambulance officers, Mr Sheridan was conveyed to Cooma District Hospital where he was further treated for his injuries. He remained in that hospital from 12 March 2014 to 21 March 2014. During that time, treatment continued and, in particular, the lacerations to his skull and hip were sutured. There were also consequent complications regarding his pneumothorax where his right lung nearly collapsed. A chest drain was applied and remained there for 48 hours until the injury ultimately successfully resolved.
The injuries suffered by Mr Sheridan were serious - and, in particular, those to his chest and the related complications were sufficiently significant to have been life threatening without prompt treatment.
It is appropriate, and indeed necessary, for an assessment to be made of the objective seriousness of each of the offences for an offence of its kind.
In my opinion, the robbery in company is a mid-range offence; the specially aggravated kidnapping is above the mid-range and towards the upper range; and the take and drive conveyance without consent of owner is somewhere equidistant between the middle and the bottom of the range.
Each of the robbery in company and specially aggravated kidnapping offences are additionally aggravated because the offences were part of a planned criminal activity which involved a high degree of premeditation and planning.
The robbery in company offence was additionally aggravated because the victim (Mr Sheridan) was vulnerable.
The specially aggravated kidnapping is additionally aggravated because the physical injuries and emotional harm done to Mr Sheridan were substantial. In this regard, although there is no evidence of any ongoing physical disability, there is evidence that the injuries he sustained were life threatening; and the contents of the victim impact statement, and the manner in which it was read to the Court by Mr Sheridan, revealed the complexity and long-term nature of the substantial psychological injuries he sustained - and from which he still obviously suffers, seven years after the event.
Although it should not be necessary for me to say this, apparently it is. I have said "additionally" above to indicate these specific considerations were not taken into account in assessing the objective seriousness of any offence.
Your other subjective circumstances were advanced through a sentencing assessment report, a psychologist's report, and a number of references.
You are now 41 years old.
You were brought up in a loving and supportive middle-class family.
Your upbringing, education and employment histories are unremarkable.
You have no physical or mental health issues.
You have used alcohol and illicit drugs in social contexts, but you do not have relevant drug dependency issues.
You have a proven capacity for legitimate work in the hospitality and building industries.
You have the continued support of your family, including your partner and two young children.
All of these factors are positive factors in considering your prospects of rehabilitation.
A further relevant factor is that you have a criminal record in the ACT but not previously in New South Wales. The ACT offences, with one exception, were relatively minor. However, in 2008, you were sentenced in the ACT Supreme Court for an offence of violence for which you received a suspended period of imprisonment. You are, therefore, not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.
And genuine remorse is a very important factor in assessing any offender's prospects of rehabilitation.
You have expressed no remorse for your offending. You, of course, are not to be punished because you exercised your right to a trial. And you are not to be punished because you continue to assert your innocence. But, in this context, the Crown case against you was a strong one. I was not surprised at the jury's verdicts.
Not only do you continue to deny the offences, you told the author of the sentencing assessment report that it was your belief that the allegations against you were "… falsified by persons [you] believed were colluding against [you] as a result of [your] alleged inappropriate behaviour towards other associates". No such allegation was put in cross-examination to any of the Crown witnesses - each and all of whom, in my opinion, were transparently honest.
There is no evidence that you were suffering any especially difficult financial hardship at the time of the offences.
Although financial gain was undoubtedly part of the motivation for your involvement - the only rational inference in the circumstances is that revenge at your dismissal was also a significant motivating factor. It is of particular concern that the main victim of that revenge was an innocent young man who had absolutely nothing to do with your dismissal.
On balance, I regard your prospects for rehabilitation as being guarded.
In the result, both general and specific deterrence are fully engaged.
No sentence other than full-time imprisonment is appropriate for any of the offences.
I intend imposing an aggregate sentence and in due course I shall state the indicative sentences underpinning the ultimate aggregate sentence.
Before formulating those indicative sentences, and the ultimate aggregate sentence, I note that two further sentencing principles need to be referred to.
The first of those further important sentencing principles is what is colloquially referred to as "the ceiling principle" (cf R v Gilmore (1979) 1 A Crim R 416 and R H McL v The Queen (2000) 203 CLR 452). Where an offender is convicted of an offence after a retrial, this principle requires that he should not ordinarily receive a longer sentence or non-parole period than that imposed after the first trial unless there is some significant circumstance to be taken into account. In the present case, there is no significant circumstance to be taken into account.
In this context, although I have not been given a copy of the remarks on sentence of Hoy SC DCJ, I do know, by reference to page 3 of the remarks on sentence of his Honour Williams ADCJ in sentencing Mr Pashley on 22 September 2017, what the indicative sentences and ultimate aggregate sentence imposed by Hoy DCJ were.
The second further important sentencing principle is parity.
As I have just indicated, Williams ADCJ sentenced Mr Pashley on 22 September 2017. His Honour considered that there were certain differences between you and Mr Pashley insofar as your subjective circumstances were concerned; and, also, as to your respective involvements in the offending. His Honour concluded that these differences did not justify a significant difference in penalty - the main differences being that, unlike you, Mr Pashley did not have any prior convictions; and also, unlike you, he did have significant psychological difficulties at the time of sentence (but from which he was not suffering at the time of the offending).
On the material before me, you and Mr Pashley performed similar roles such that your moral and criminal culpability are roughly equivalent.
That said, however, I agree with Williams ADCJ at page 4 of his Honour's remarks on sentence for Mr Pashley that you were the instigator of the scheme given your inside knowledge of the Hotel and you seemed to play the more leading role throughout the incident: including accessing the safe; driving the van with the kidnapped victim; retaining possession of the stolen money when leaving the Hotel in the stolen vehicle; and the presence of your fingerprints on the stolen number plates.
In your earlier sentencing proceedings, Hoy DCJ noted the following indicative sentences: for the robbery in company, 6 years; for the kidnapping, 12 years; for stealing the motor vehicle, 1 year. His Honour imposed an aggregate sentence of 14 years with a non-parole period of 9 years (thereby making a finding of special circumstances).
In sentencing Mr Pashley, Williams ADCJ noted the following indicative sentences: for the robbery in company, 6 years 6 months; for the kidnapping, 12 years; for stealing the motor vehicle, 1 year 6 months. His Honour imposed an aggregate sentence of 13 years with a non-parole period of 8 years.
I have arrived at the following indicative sentences: for the robbery in company, 7 years; for the kidnapping, 13 years; and for stealing the motor vehicle, 2 years.
I have ultimately determined that the appropriate aggregate sentence is imprisonment for 14 years.
But for the ceiling principle, I would not have made a finding of special circumstances to vary the statutory ratio of the non-parole period to the head sentence, notwithstanding that you have not previously served a period of imprisonment. You are not a young offender. Your prospects of rehabilitation would not be enhanced by a longer period on parole (and, in any event, the period on parole would have been sufficient for that purpose). And the seriousness of the offending does not justify such a finding.
However, I am bound by that principle and, therefore, for the three offences of which the jury found you guilty I impose an aggregate sentence of 14 years imprisonment with a non-parole period of 9 years.
The sentence will be backdated to take into account the period of time you were imprisoned in accordance with the sentence imposed by Hoy DCJ and following the revocation of bail following the jury's verdicts in March 2021.
As at 11 June 2021, the relevant backdating was 3 years 11 months and 26 days which, effectively, was 4 years - and I shall allow another month (rounding up) to account for the period since 11 June 2021.
I, therefore, fix a non-parole period of 9 years to be backdated by 4 years 1 month to date from 25 May 2017 and which will expire on 24 May 2026.
I fix a balance of 5 years to date from 25 May 2026 and which will expire on 24 May 2031.
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Decision last updated: 25 June 2021