(2013) 249 CLR 571.
R v Newell [2004] NSWCCA 183
DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1
(2010) 79 NSWLR 1
Source
Original judgment source is linked above.
Catchwords
(2013) 249 CLR 571.
R v Newell [2004] NSWCCA 183
DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1(2010) 79 NSWLR 1
Judgment (3 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions - The Crown
File Number(s): 2017/682382017/1212252017/3868922017/386887
[2]
Judgment
HIS HONOUR: Carol Anne Raymonde is before the Court for sentence in relation to one offence. She participated in a specially aggravated detention in company, with the intention to obtain a financial advantage during which actual bodily harm was occasioned to the victim, in breach of s 86(3) of the Crimes Act. That matter has provision for a maximum penalty of 25 years. I will take into account a maximum penalty as a bench mark or a yardstick in a way contemplated by the authorities. No standard non-parole period has application.
It is common ground between the parties that Ms Raymonde has been in custody continuously in relation to this offence since the 21 December 2017. It is inevitable, in my view, that full-time sentence of imprisonment be imposed and it is common ground between the parties that that sentence should date from 21 December 2017.
Yvonne Raymonde is the daughter of Carol Anne Raymonde. She is before the Court for a range of offences. She is to be sentenced in relation to a detention, especially aggravated detention in company with the intent to obtain a financial advantage during which actual bodily harm was occasioned to the victim, in breach of s 86(3) of the Crimes Act and that matter similarly has a maximum penalty of 25 years imprisonment and no standard non‑parole period has application.
Ms Yvonne Raymonde has been in custody since 21 December 2017 and it is common ground that the inevitable sentence of full-time imprisonment to be imposed should date from that date. In relation to both of the detention matters, it is common ground between the parties that the offenders entered early pleas of guilty and that, in due course, I will provide to them utilitarian discount of 25%.
Ms Yvonne Raymonde faces a range of other offences committed earlier in time. In relation to those matters, there are two offences in breach of s 114(1)(a) of the Crimes Act, that is being armed with intent to commit an indictable offence on each occasion, being assault. Each of those matters have a maximum penalty of seven years imprisonment and no standard non-parole period has application to offences of damage property in breach of s 195(1)(a) of the Crimes Act, each of which matters have a maximum penalty of five years and no standard non-parole period has application.
A further count of enter land with intent to commit an indictable offence in breach of s 114(1)(d) of the Crimes Act which also has a maximum penalty of seven years imprisonment and no standard non-parole period has application. I will have regard to the maximum penalty in relation to each of the matters Yvonne Raymonde faces, as a benchmark or a yardstick as contemplated by the authorities.
In relation to those matters, a plea of guilty was entered in the District Court at the time the matters were listed for trial, but in circumstances where it had been first indicated some time before that there was likely to be a plea of guilty and, second, where much of the factual material relied on by the prosecution had its font in admissions made by Yvonne Raymonde.
Accordingly Ms Stanley's concession for the Crown that utilitarian discount of 15% is available within my discretion is well-founded in my view. Additionally, I have had regard to the context of confidential exhibit D and my own knowledge of Yvonne Raymonde having given evidence in the special hearing in relation to Robert Riley, who was a person not fit to be tried. Having assessed the value of that material, she entitled to a further 25% discount.
So accordingly each of the sentences, but for the detention, will be reduced by 40% on that basis in due course. The facts in relation to the detention disclose a very serious passage of offending. The agreed facts in relation to both offenders are identical, although they pick out different actions by each of them. I do not propose to read all of the six pages of agreed facts onto the record, but will summarise in short the offending.
Carol Raymonde had been in a domestic relationship with somebody called Fiona Rixon, who suffers from a slight to moderate intellectual disability. They had lived together for six years. The relationship ended acrimoniously. Ms Rixon moved back to her mother's home, her mother being Carol Browne, who is the victim in relation to Yvonne Raymonde's other set of matters.
Before 16 August 2017, Carol Raymonde and somebody yet to face his trial in relation to the same allegation, Matthew Kershaw, had some discussions that involved planning for there to be a detention of Ms Rixon for financial benefit. Although the Crown originally contended that Carol Raymonde was the prime mover in relation to that agreement, it is accepted that there is no proper evidentiary basis to say that her offending was more detailed or predominant over that of Mr Kershaw.
As a result of the discussions between Mr Kershaw and Carol Raymonde, during some of which Yvonne Raymonde was present, Ms Rixon at the direction of Mr Chin, and Ms Crowe, who I have already sentenced in relation to this offence, at the direction of Mr Kershaw required Ms Rixon to attend premises occupied by Mr Kershaw. When she was taken to both premises at around 3.40 in the afternoon, Kershaw said to Ms Rixon "I ought to kick your teeth in for what happened to (his dog)."
At that point the victim began to cry and was scared of Mr Kershaw. Mr Kershaw said to the victim "You're not going anywhere. You're here. You're not going. I'm holding you hostage against your will." At that time Ms Crowe demanded the victim's car keys from here, which were handed over. Sometime later Ms Crowe entered a bedroom where the victim was being held and said "I ought to kick your cunt in for what you said on Facebook about my nephew and brother." That was a reference apparently to Mr Kershaw, who was, in fact, not related to Ms Crowe.
At that point Ms Crowe punched the victim to the head and upper right arm, and took some cash from the victim's wallet. Mr Kershaw then said to the victim "If you don't sign the car over to me [Crowe] is going to hammer you again." The victim feared that she was going to be hurt so she signed registration papers of her vehicle over, giving ownership to Mr Kershaw.
A little bit later at a time the victim, Mr Kelleher, Mr Kershaw and Ms Crowe were all seated in an area. Mr Kershaw clicked his fingers and Crowe again punched the victim with a closed fist to her head and upper arm. She also kneed the victim in the ribs. Crowe said to Kershaw "If I don't stop I'm going to kill it," "it" being a reference to Ms Rixon. Crowe removed all of the cards from the victim's wallet and also took control of her Telstra mobile phone.
The victim was required to write down on a piece of paper her BSB and account number. Kershaw said to the victim "I'm sorry. I don't want to tie you up but I have to." In due course, the victim's arms were tied behind her back. Kershaw escorted her into the backyard and told the victim to get in the boot of a vehicle. At that time Kershaw said to the victim "I ought to take you out the bush and burn you alive" and then closed the boot door."
Crowe drove that vehicle to premises where Carol Raymonde and Yvonne Raymonde were living. Chin was a passenger in the vehicle, driven by Crowe, with the victim in the back seat. They left the vehicle upon arriving at the premises that at which the Raymondes were living, leaving the victim tied up in the boot. Crowe took the keys inside and advised the occupants, who included Carol and Yvonne Raymonde, that she bashed the victim and the victim was in the boot of the car.
Ultimately, the victim was let out of the boot of the car by Yvonne Raymonde and Carol Raymonde, and at that time the victim wrongly understood that they were assisting her and she remained living at those premises for some days. The victim's hair was dyed in an attempt to disguise her. Both Carol Raymonde and Yvonne Raymonde, during the next period of the next couple of days when police were searching for Fiona Rixon, reported that they did not know where she was when she was, in fact, within the premises.
Ultimately on 20 August, 2017 ironically Ms Rixon was arrested for allegedly contravening an AVO that Carol Raymonde had against her for her protection and at that time advised the police that she had been obtained against her will since 16 August 2017. Some days after the initial part of the detention, Yvonne Raymonde communicated with Kershaw over the phone to arrange for the green Ford car that the victim had been transported in to be destroyed, and she ultimately attended to that task.
As a result of the offence, the victim had bruising to her face, her arm, and to her lower back. Yvonne Raymonde gave a statement to the police indicating that the victim had been driven to the premises by Crowe and that Crowe had said "She's in the boot. Here are the keys." Yvonne Raymonde made admissions to arranging to get rid of the car in due course.
Both Carol Raymonde and Yvonne Raymonde were arrested on 21 December 2017 and they declined to be interviewed. In R v Newell [2004] NSWCCA 183 the Court gave some indications about matters that can be properly taken into account in determining the objective seriousness of detention offences. It is not a mitigating factor of itself that there is no request for a ransom. The conditions of the detention are relevant. The length of time of the intervention is relevant.
In this circumstance, the fact that the detention was in company as an element of the offence and does not serve to additionally aggravate. Similarly the occasioning of actual bodily harm is an element of the offence and does not serve to, otherwise, aggravate. The conditions of the detention initially were very serious because corporal punishment was occasioned to the victim on two occasions. Threats to kill her were made.
It must have been terrifying for the victim to be contained within the boot of a vehicle in circumstances where Kelleher had made threats against her life. Although I do not take it into account in assessing the level of harm to her, but take it into account in the principle required by the legislation, the victim impact statement speaks eloquently about the level of fear and threat that Ms Rixon understandably felt.
The time of the detention that involved these two offenders extended across days, although it is accepted in my assessment of the objective seriousness that she did not necessarily realise that she was being held against her will at that time or that there was a continuation of the same offence being committed against her. Each of the matters are aggravated because the two offenders were in breach of conditional liberty.
Carol Raymonde was in breach of the s 10 bond, and Yvonne Raymonde was on two conditional bails in relation to past allegations. Additionally, the offending can be properly characterised as being part of planned criminal activity. Each of the matters are mitigated by pleas of guilty. Because of what I would describe as some level of executive function and planning, I take the view and the principles about joint criminal enterprise are engaged.
I take the view that the objective seriousness of Carol Anne Raymonde's offending is above the midrange, but does not reach into the high range of objective seriousness. I form the view that her moral culpability is somewhat reduced for two reasons that I will identify in due course. Although Yvonne Raymonde took the step of destroying the vehicle and was, at least, present for the conversations where the detention was planned, I take the objective seriousness of her offending is below midrange, but does not reach the low range.
Moving then to the other matters that Yvonne Raymonde faces. These offences were committed earlier in time between February and April in 2017. They have some broad factual relationship to the offence that I have just been describing because the victim of these matters was Carol Browne, who is the mother of Fiona Rixon, the victim of the detention matter.
When I survey the facts in relation to these matters, I will also deal with the facts of some matters that are before the Court to be dealt with pursuant to a certificate under s 166 of the Criminal Procedure Act. The fact in relation to a 166 matter of using a carriage service to menace between the 13 and 17 February 2017, Yvonne Raymonde constantly rang the victim's landline from her own mobile phone in attempt to speak to Ms Rixon.
Among other things, during those calls Yvonne Raymonde told the victim that she would come to her house and threaten to smash her window. The facts in relation to the first arm with the intent to commit indictable offence relates to an event on 19 February 2017. The victim worked at a community radio station that involved her turning up to a public area around 6, 6.30 in the morning. Both Ms Yvonne Raymonde and a person, Robert Riley, were at the location of the victim's work premises where they were both armed with an intent to assault the victim.
At the time the victim arrived, she had a male friend, Mr O'Grady, with her. At that point Ms Raymonde determined not to continue with an assault of Ms Browne but instead use the knife to puncture all four tyres of her car which had been parked there. They are the facts in relation to the first allegation of damaging property.
On the 23 February 2018, at about 1.15 in the morning, Yvonne Raymonde, in the company of Robert Riley, attended the victim's residential premises in Worrigee. She turned off the power to the residence and the climbed over a fence to enter the rear yard. She used a knife to cut fly screens on the rear windows and sliding door. She attempted to slide open the sliding door but was not able to do so.
In due course, the victim was shining a torch in the premises that no longer had power operative and at that point Yvonne Raymonde and Mr Riley ran away. The damage to the fly screens was $280. On 4 March, 2018, Ms Yvonne Raymonde was arrested; she was interviewed about the harassing telephone calls and broadly made some admissions, including "I can't remember what I said, but it wouldn't have been nice. I'm not a nice person."
She was asked about the incident on 23 February 2018 and she admitted that she went to those premises to "Do stupid stuff to their house." She made admissions about having damaged the tyres to Mrs Browne's car on 19 February 2018.
The facts in relation to the final armed with intent to commit an indictable offence, which is the most serious of these constellation of offences are that at 3.30 in the morning, on 23 April, 2018 Yvonne Raymonde was at her residence. Mr Riley arrived; he drove the accused to the general area of Ms Browne's voluntary work. Yvonne Raymonde later admitted to the police that she saw an axe and a box of clear disposable gloves, a bag of cable tyres, a roll of clear tape, and some garbage bags.
At about 6.30 on the same morning Yvonne Raymonde and Mr Riley drove around Nowra CBD and saw the victim. The vehicle was parked and they approached her. At the time of that approach Yvonne Raymonde was holding a hammer and Robert Riley was holding a tomahawk. The indictable offence intended was to assault Ms Browne. In the event, the assault did not proceed. In due course Yvonne Raymonde was arrested and made a detailed set of admissions about her intentions and motivations, and included what seems to have been a truthful account of her involvement and Mr Riley's involvement.
As I have said even though she did not intend to do so, it is the case that at the special hearing in relation to Mr Riley that she ended up giving evidence consistent with the admissions that she had made to the police. Each of the armed with intent matters are objectively about at the intersection between the low and middle range of objective seriousness.
Even though there was an appropriate arming with weapons that are caught by the relevant charge and an appropriate intention to render violence on Mrs Browne, on each occasion the plan to hurt her was immediately abandoned upon seeing her there; seems to have been a great level of bluff in the articulation of intending to do these things, and happily Mrs Browne, a woman who was then in her early seventies, was not hurt.
The damage to the motor vehicle was significant. It involved damage to all four tyres and had the effect of immobilising Mrs Browne's vehicle, and Mr O'Grady had to attend to repairing it. The objective seriousness of damaging the fly screens is towards the lower end of the range, given the item that was damaged and the extent of the damage, that is $280 worth of damage.
In terms of the enter lands with the intent to commit a serious indictable offence, that matter approaches the midrange of seriousness because it included the termination of the power supply, was conducted in the middle of the night and must have been a fairly terrifying passage to Mrs Browne, particularly given the earlier offending committed against her.
In relation to the matters under s 166, which are the use carriage service and a contravention of an AVO, both of those matters approach the middle range of objective seriousness but do not quite reach it. I have taken into account each of those matters were also committed in breach of conditional liberty, that is bail for another arson matter, that Ms Raymonde has been dealt with previously.
I want to deal with some matters that are personal now to each of the offenders. Carol Raymonde has done what she can to make use of her time in custody. She has undertaken some courses which hopefully will help her deal with some of the issues that probably led to her offending. She has undertaken a positive lifestyle program, the course contributing to the health and safety of self and others, and she came second in the Women and Heart Disease poster competition, which is a significant achievement.
Carol Raymonde was assessed in a way that is helpful to the Court by two psychologists. Ms Van de Velde of Stephens & Bradley conducted a detailed assessment of Mrs Raymonde. I am prepared to accept the history that has been accounted to Ms Van de Velde, partly because of the way in which it intersects with other material known to the Court from other subjective material.
It must be said that the history described to the author of that report is a history that very much engages what might be described as the Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 factors. Carol Raymonde had a background that was littered by sexual abuse and physical violence, and importantly within the family unit those issues mean that she, from time to time, has fallen into drug and/or alcohol use and she was assessed at the time of Ms Van de Velde's report as suffering from alcohol use disorder, cannabis use disorder, post-traumatic stress disorder, and the consequences of child sexual abuse.
I am prepared to make assessments in favour of Carol Raymonde made by this report in part because the report is balanced and prepared to make observations that are against Carol Raymonde's interests, that is her general risk of reoffending is seen as being moderate to high, and her risk of being engaged in future violent behaviour is moderate. The other report is a report that was by Ms Sarah Brann of LSC Psychology and limited to an assessment of Carol Raymonde's cognitive state. In balance, she suffers from moderate intellectual disability.
On my reading of Ms Brann's report, which I accept, that is a pervasive condition which will not be the subject of any improvement. So while Carol Raymonde may be able to deal with matters to do with her propensity towards violence and threats to other, which is disclosed in her criminal record which I will come to, and might be able to make some improvements in terms of reliance on drugs and alcohol, her level of intellectual functioning is unalterable.
Her moral culpability in relation to these offences is reduced because of both the Bugmy factors, and because of her intellectual disability. Her record is one that denies her leniency and persuades the Court amongst the DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1; (2010) 79 NSWLR 1; [2010] NSWCCA 194 factors that an issue of continuing dangerousness subsists alongside the fact that she is a less appropriate vehicle for general deterrence and the reduction of moral culpability that I have already discussed.
I am prepared to find that Carol Raymonde has moderate prospects of rehabilitation. I could not find them to be good on all the material before me. The Crown provided a helpful chronology of her offending, which commenced in 2007, and continued until the index offence. A number of the matters that are set out in the chronology are consistent with their being contraventions of AVO, including threats made to others. She was sentenced to a period of home detention for an arson matter back in 2007 and has been dealt with from time to time for a range of driving matters. But the majority of her record relates to contraventions of AVOs. I ought to say that the plea of guilty by Carol Anne Raymonde is some indication of remorse, but there is no other really overt material about that, except for her handwritten note of her remorse.
Moving to Yvonne Raymonde, I had the benefit of seeing her give evidence in the proceedings by way of a special hearing in relation to Robert Riley. It must be said that her presentation is consistent with Mr Hoare's submission that it would be difficult for the Court to make findings about contrition or remorse.
Yvonne Raymonde presents in a unusual manner. Although I had formed the view without the benefit of Ms Seidler's detailed report that she had some level of intellectual delay, she does have a, to use the vernacular, quite charming and sparkly way of presenting herself, notwithstanding some of her unusual views which are not helpful to her in terms of animus towards the victims of these offences.
That said, having read the material and seen that she was able to persist and finish year 12 and high school is quite extraordinary, given that she suffers from an extremely low level of intellectual functioning. She has a way of expressing herself that presents her level of cognitive function as being indeed higher than it is. In all these matters there are some features of this offender's upbringing and difficulties, being parented by a mother like her co‑offender, which also engage the Bugmy principles.
There is no question that there is a huge level of affection between Carol Anne Raymonde and this offender, Yvonne Raymonde, and it is my view that some of the offending by Yvonne Raymonde was a misguided attempt to either protect or keep her own mother happy. I am not suggesting by that, apart from the detention offence, that Carol Anne Raymonde was responsible for the commission of those offences. Rather, Yvonne Raymonde offended against Mrs Browne from her own misguided view that it would either improve the relationship between her mother and Fiona Rixon, or make her mother happy in some way that I cannot fully say.
Apart from the effect of the Bugmy factors, in relation to Yvonne Raymonde the very low level of her cognitive function means that her moral culpability for all the offences is significantly reduced. A way in which that became manifest in the related proceedings of Mr Riley was that Ms Yvonne Raymonde said to the Court that she did not intend to "Roll on her coey", and then proceeded to give evidence in answer to questions for about 45 minutes, and then ask the Court the question "Am I rolling on my coey?"
It shows that she did not have a sophisticated understanding of matters and that bears out the conclusions that are drawn by Ms Seidler on the basis of her assessment of her and Ms Godbee having administered significant psychometric testing to her. Yvonne Raymonde has a fairly limited record and her prospects for rehabilitation are better than those of Carol Raymonde. In part that is because she is young.
Even though she has a pervasive difficulty in terms of her intellectual function, she has been entirely cooperative with the law enforcement authorities. In her matter rehabilitation, because of her youth, assumes a particular significance in the proceedings.
I want to say something briefly about parity. I have already sentenced Mr Chin and Ms Crowe in relation to their roles in the detention offence.
Given Ms Crowe visited significant violence on the victim and was the person who effectively drove the victim, imprisoned in the boot of the car, into the hands of Carole Raymonde, the objective seriousness of her offending was greater than that of Mr Chin. Against that, she had a more limited record, although she had some stark circumstances of disadvantage in her life.
Mr Chin had a more limited role. I have had regard to the various roles and I take the view that, on balance having regard to all the different matters that are raised, that Carol Anne Raymonde has about the same level of criminal culpability as Ms Crowe, and I will be broadly sentencing her in line with that finding.
Yvonne Raymonde, in relation to the detention matters, her culpability, while of a different kind, is allied to the culpability of Mr Chin and I will use the sentence that I imposed upon Mr Chin, who had a much more serious record, I think, than any of the other offenders that I am sentencing today. In relation to Yvonne Raymonde, I have already set a limiting term for Robert Riley. Necessarily, there was no ability to reduce that sentence for a utilitarian discount or any level of contrition given that Mr Riley was not fit to be tried and it was a limited hearing.
I gave him a limiting term of just over two years and I take the view that a similar starting point sentence of 24 months is called upon for Yvonne Raymonde. She had a very similar limited record to Robert Riley. Robert Riley had a pervasive intellectual deficit as well, although perhaps, as it turns out, not as profound as that of Yvonne Raymonde.
Ladies, now we come to the pointy end of the proceedings. Before I do that, can I just know the dates of the earlier period of custody that Yvonne Raymonde had?
HOARE: Yes, it was from 24 April 2017 to 27 June 17, two months and three days.
HIS HONOUR: Thank you.
In relation to Carol Anne Raymonde, but for the utilitarian discount, the starting point sentence for her matter would have been five years. She is convicted, she is sentenced to a period of imprisonment of three years and nine months to date from 21 December 2017 and to expire on 20 September 2021. There is to be a non-parole period of two years and nine months, which means her earliest date of release to parole is the 20 September 2020. I find special circumstances. The special circumstances that it is Carol Raymonde's first time in full-time custody, plus there is a need for her to have significant support in the community when she is released.
In relation to the s 10 bond that she was on for drive while suspended, I find the breach is established, the bond is revoked There is to be a conviction under s 10A and accordingly disqualification of her driving licence of six months, which will operate for the six months once she is released from prison
In relation to Yvonne Raymonde I have determined, as I have discussed with the parties, to deal with her matter by way of an aggregate sentence. That means that I will announce indicative sentences in relation to all the offences and the indicative sentences will have, in the case of the detention, a 25% discount and in relation to all the other matters a 40% discount on the basis as already outlined.
So in relation to the detention, the starting point sentence before discount is the same as Mr Chin, that was four years, and in relation to that matter the indicative sentence is three years imprisonment. In relation to the first armed with intent, starting point sentence for that matter would have been 18 months and the indicative sentence is 11 months. In relation to the first damage offence, that is the damage to the four tyres of the car, the starting point sentence would have been 18 months and the indicative sentence is 11 months.
In relation to the damage to the fly screens at the Worrigee premises, the starting point sentence would have been 12 months and the indicative sentence is seven months and two weeks. In relation to the enter land with intent to commit an indictable offence, the indicative sentence is 14 months and in relation to the armed with intent, the final offence that involved Yvonne Raymonde being armed with the hammer, the starting point sentence would have been 24 months and the indicative sentence is 15 months.
Just stand up, would you? You are convicted in relation to each of those offences. Having indicated those individual indicative sentences for each of the offences, the head sentence is one of four years and three months, which commences on 21 December 2017 and expires on 20 March 2022. I find special circumstances on the basis of Ms Yvonne Raymonde's youth, her need for support in the community, and the fact that this is her first time in imprisonment.
There has been a very significant rearrangement of the statutory relationship between the head sentence and the non-parole period. The non-parole period is one of two years and nine months, which means the earliest date of release is to the 20 September 2020. What that means is that the date you both can be considered for parole by the State Parole Authority is identical. There is a chance that you could both be released at the same time.
Yvonne, your parole period is a lot longer than your mother's. You are on parole for another six months after her parole. That is to provide you with further support so that you can keep your nose clean and not get into further trouble.
There are two matters before the Court pursuant to s 166, that is the contravene and use carriage way service. In relation to each of those matters, there is a fixed term of imprisonment of two months to commence on 24 April 2017 and expiring on 23 June 2017.
[3]
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Decision last updated: 18 March 2022