Submissions
88The Crown submitted that an appropriate finding of objective gravity for this offence, once made, would lead to the necessity for a sentence of full-time imprisonment to be imposed.
89In this respect, the Crown pointed to what was said to be the careful planning of the kidnapping, the fact that the Respondent knew that there were at least poles and a baseball bat in the boot of the car, the fact that (although the Respondent did not know there was a firearm in the boot of the car) once Mr Alford produced it, and struck the victim over the head with it, the Respondent remained involved in the enterprise, the duration of the detention (at least a number of minutes) in circumstances of what must have been extreme fear for the victim, the occurrence of the offence in the late evening and in a place not known to the victim, the production of three weapons (the firearm, knife and handcuffs) and the fact that others were available (the baseball bat and poles), the Respondent's ability to locate a knife readily in the boot of the car once requested by Mr Alford and the fact that the detention only ended because the victim managed to escape and continued to run away, despite the fact that Mr Alford discharged the firearm again at that point. It was submitted that, if the intention was to scare the victim, then that had already been well and truly done.
90The Crown submitted that the sentencing Judge had substantially underestimated the objective gravity of the Respondent's offence, and her culpability, in the characterisation of her offence as "foolish" (see [41] and [43] above).
91The Crown submitted that the objective seriousness of the offence was to be taken into account in the selection of the manner of performance of the sentence and that a court, in choosing an alternative to full-time custody, cannot lose sight of the fact that the more lenient the alternative chosen, the less likely it is to fulfil all the purposes of punishment: R v Zamagias [2002] NSWCCA 17 at [28].
92It was submitted that the selection of a sentence of one year and 11 months indicated that the sentencing Judge had commenced his process of reasoning from the starting point that the sentence to be imposed upon the Respondent was to be suspended: R v Stambolis [2006] NSWCCA 56 at [52].
93In circumstances where the maximum penalty for an offence under s.86(2) was imprisonment for 20 years, the Crown submitted that the sentence imposed, in all the circumstances of this case, was unreasonable or plainly unjust so that the Crown appeal should be allowed, the sentence quashed and the Respondent resentenced.
94Mr Stratton SC submitted that this offence lay towards the lower end of the scale of objective gravity. In this regard, he relied upon an examination of factors referred to by Roden J in R v Collett and Robson. By reference to these factors, it was submitted:
(a) length of detention - the period of detention was for a few minutes (and not days, weeks or months);
(b) the extent to which fear or terror was occasioned in the detainee and the manner in which he was treated - it was submitted that the only injury suffered by the victim here was a blow to the head;
(c) the purpose of the detention - the purpose was to scare and not to harm or ransom the victim;
(d) whether there are persons who were subjected to anguish through fear for the well-being of the detainee (as in cases of holding for ransom or holding hostages) - no third parties were put through anguish in this case.
95Mr Stratton SC submitted that the Respondent had a strong subjective case, including no prior convictions and a finding of contrition.
96In response to the Crown submission concerning the selection of the length of sentence, Mr Stratton SC submitted that the sentencing Judge had allowed a 25% discount for the Respondent's plea so that the starting point was in the order of two years and six months. Reliance was placed upon sentencing statistics of the Judicial Commission of New South Wales in support of the submission that the sentence imposed upon the Respondent was within the discretionary range on the facts of the case, and that the Crown had not established the contrary.
Decision
97It is appropriate to assess the objective gravity of the Respondent's offence for the purpose of determining this ground of appeal.
98The elements of the offence under s.86(2), admitted by the Respondent's plea, included the detention of the victim whilst the Respondent was in company with the intention of obtaining an advantage, namely assaulting and intimidating the victim. This was not a case of a bare intention to scare the victim. By her plea, the Respondent admitted an intention that the victim be assaulted and intimidated, as indeed he was.
99I note that no victim impact statement was placed before the District Court on sentence, although the fear instilled in the victim is readily apparent from a description of the offence.
100It is the case that Ms Aubourg and Mr Alford were the prime movers with respect to the offence. It was Ms Aubourg who informed the Respondent that she had been sexually assaulted by the victim. It was Mr Alford who, once informed of this, determined to kidnap the victim and to assault him. Mr Alford was aware of the availability of a firearm, a knife and other items contained in the boot of the car. On the evidence, the Respondent had no knowledge of the presence of the firearm or the knife until the kidnapping was well underway.
101Although Ms Aubourg and Mr Alford were the prime participants in the crime, the Respondent was not a mere bystander on the sidelines of the offence. The Respondent had discussions with Ms Aubourg and Mr Alford before the offence and was aware of the plan to kidnap the victim. The Respondent committed the offence in company so that the victim was confronted by the combined force or strength of two or more persons who shared a common purpose (see [61] above). The Respondent was present with the requisite intent and she physically participated in the offence by obtaining the knife when asked by Mr Alford to do so. When the victim had earlier pleaded "Please don't hurt me, I'm a good person", the Respondent replied "You're not a good person. You deserve everything you get for what you've done to Jessica" (AB61.21).
102The fact that the Respondent was aware that a baseball bat and poles were in the boot of the car supported a finding that she knew that objects may be used as part of the process of intimidating and assaulting the victim.
103The fact that the Respondent did not, in some way, seek to remove herself from the event once the firearm was produced by Mr Alford and discharged does not assist her, although the practical reality was that events moved very quickly in what was undoubtedly a volatile and fluid situation. These factors, of course, made it all the more risky when weapons were being used for the purpose of assault and intimidation.
104The Respondent complied with Mr Alford's request to obtain the knife from the boot of the car and returned with it, no doubt in the knowledge that it was to be used in a manner adverse to the victim's interests. The fact that the victim broke free and escaped at that time was fortuitous for his captors, including the Respondent.
105This Court has observed that the movement away from s.90A, and the enactment of the offences now contained in s.86, reinforces the need to concentrate upon s.86 (and cases which have applied it) in the assessment of factors bearing upon the objective gravity of kidnapping offences: Jeffries v R at 511 [79]. That does not mean that factors mentioned in R v Collett and Robson are to be placed entirely to one side. As is apparent, a number of the factors identified in that case are relevant to kidnapping offences generally. However, the statutory structure of s.86 is different to that previously contained in s.90A Crimes Act 1900, as will be demonstrated shortly by reference to the submissions made for the Respondent.
106Firstly, the length of time of detention is always relevant. However, this is not a case where the victim was released by his captors. Rather, as the level of intimidation escalated, he broke free and fled in circumstances involving an irresistible inference of extreme fear on his part. The relative brevity of the period of detention is of limited assistance to the Respondent in an assessment of objective gravity.
107Secondly, the extent to which fear or terror was occasioned, and the manner in which the victim was treated, operated to elevate the objective gravity of this crime. As Mr Stratton SC conceded during argument, the absence of injury to the victim (beyond the blow to the head) cannot assist the Respondent in an assessment of objective gravity of an offence under s.86(2)(a) Crimes Act 1900. If it was the case that actual bodily harm had been occasioned to the victim in this case, then the Respondent would have been liable to conviction and sentence for an offence of specially aggravated kidnapping under s.86(3) of the Act. It should be kept in mind that the threshold of "actual bodily harm" is relatively low (see [62] above).
108In assessing the objective gravity of a s.86(2)(a) offence, it would be erroneous to have regard to the absence of a feature which, if it were present, would constitute a different and more serious offence under s.86(3) of the Act: R v Burton at [90]. It is this particular feature which renders reliance upon R v Collett and Robson problematic in an assessment of objective gravity of a s.86 offence.
109It is true that the purpose of the detention in this case was not ransom. However, this Court has rejected a submission that holding a victim to ransom is the most serious form of offence under s.86: R v Newell at [31]-[32]; Jeffries v R at 511 [80]. The purpose of the detention in this case was to assault and intimidate the victim. It went beyond mere scaring, although this was an undoubted consequence of the victim's ordeal.
110As mentioned earlier, offences under s.86 committed as a form of vigilante action have come fairly regularly before the criminal courts. It has been necessary for courts to take into account the need to condemn actions of this type and to reflect general deterrence on sentence. At the same time, motivation of this type is capable of bearing in other ways on the determination of sentence.
111In Barlow v R, McClellan CJ at CL said at 189 [2]:
"The offence committed by the applicant was serious. Motivated by the wrong she believed was previously done to her and accompanied by a male friend, she took the law into her own hands. The victim was punched, dragged, hit with kitchen tongs and threatened with death and generally put in terror for at least two hours. Whatever be the crime committed by the victim, a civilised society cannot condone such conduct. The rule of law requires that offenders be tried by the appropriate authorities and, if convicted, punished in accordance with accepted principle. In our society crime is dealt with by the courts."
112In the same case, Hall J (McClellan CJ at CL and Price J agreeing) said at 195 [40]:
"The nature of the conduct by the applicant could be correctly identified in the remarks on sentence as having been in the nature of 'vigilante' conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenge for the alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms."
113Later in Barlow v R, Hall J referred to other decisions of this Court where considerations of this type have arisen (at 200-201 [67]-[68]):
"67 In Regina v Swan [2006] NSWCCA 47, the Court of Criminal Appeal determined that where the motivation for an offence is retaliation for prior sexual abuse and to prevent abuse of others, the need for personal deterrence and protection of the community is considerably lessened, unless prior offences indicate that the behaviour is not isolated. Spigelman CJ observed at [33]:-
'Where the stated motive for the offence was retaliation for prior sexual abuse and to prevent the abuse of others, it would be relevant if this was the only such offence committed by the Applicant. Then it could be said that the need for personal deterrence and protection of the community was considerably lessened, because the act of retaliation was unlikely to be repeated against the particular victim and also because of the fact that it was the crime now under consideration that led to the victim eventually being charged in the manner set out above.'
68 In Regina v Mitchell; Regina v Gallagher [2007] NSWCCA 296, the Court of Criminal Appeal, in accepting that it was a relevant factor that the respondents believed that the victim had been guilty of sexual activity in relation to one of them, observed the following, per Howie J at [30] - [32]:-
'... But a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value.
The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan, the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence.
...
It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence'."
114The principles in Barlow v R, R v Swan [2006] NSWCCA 47 and R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94 were also applied in R v Rayment at 67-69 [105]-[108].
115How do these considerations operate in this case? It is clear that the Respondent was motivated to commit this crime as a form of punitive response for the victim's sexual assault of her friend (which the Respondent believed had occurred). The Respondent has no prior criminal history. Although the Respondent has had problems with the use and abuse of cannabis, it seems reasonable to approach the question of sentence here upon the basis that she would not have become involved in this form of criminality, but for her misplaced concern for her friend. As Howie J observed in R v Mitchell at 101-102 [30]-[32], the more serious the offence committed, the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. However, as Howie J further observed, the existence of motive is relevant to other factors that may impact upon the sentencing discretion, by explaining why the Respondent committed such a serious offence notwithstanding that she had no prior criminal record, and was otherwise considered a person of good character apart from her use of cannabis. In these circumstances, the existence of the Respondent's motive may indicate that there is no need for personal deterrence.
116Consideration has been given to the appropriateness of a suspended sentence for an offence under s.86 Crimes Act 1900. That a non-custodial sentence or suspended sentence will generally not be appropriate for a s.86(2) offence was made clear in R v Anforth [2003] NSWCCA 222. In most exceptional circumstances involving misguided motives and the commission of a s.86(3) offence by a person with no prior convictions where cultural mores played a part, it was accepted that all the objectives of sentencing could be met by the imposition of a suspended term of imprisonment: R v Davis [2004] NSWCCA 310 at [26]. In Barlow v R, on appeal from a sentence of full-time imprisonment, Hall J at 196-203 [49]-[81] considered whether a suspended sentence may have been appropriate, but ultimately rejected grounds of appeal which asserted error in not suspending the sentence.
117I do not accept the Respondent's submission that this offence under s.86(2)(a) lay towards the lower end of the scale of objective gravity for s.86(2) offences. This was an offence of significant objective gravity, well above the lower end of the scale.
118The Crown submission based upon the sentencing Judge's use of the term "foolish" does not, in my view, advance the matter very far. Plain speaking by judicial officers in remarks on sentence should not be discouraged. The principal purpose of remarks on sentence is to provide an oral explanation to the offender, the victim and persons in court at the time when sentence is being passed, as well as informing the community and an appellate court of the reasons for imposition of the sentence: R v Hamieh [2010] NSWCCA 189 at [29]-[30].
119At times, sentencing Judges may characterise offending conduct by use of terms such as "stupid" or "foolish". Whether the particular label is apt will, of course, depend upon the circumstances of the case. If there is no greater articulation of the objective gravity of the offence, there is a risk that the use of such a term may downplay or underestimate the objective seriousness of the crime: R v Gaudry [2010] NSWCCA 70 at [47]-[48]; R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at 584 [63].
120In the circumstances of this case, I take the use of the term "foolish" by the sentencing Judge as being a reflection of the involvement of the Respondent, a young woman with no prior convictions, in a serious crime which could well have escalated into even more serious crime. I do not consider that the use of the term in this case bespeaks error.
121Nor am I persuaded that error is demonstrated in this case by the duration of the sentence which was ultimately passed.
122The resolution of this ground of appeal ultimately involves an assessment of whether the sentence imposed upon the Respondent was unreasonable or plainly unjust so as to be manifestly inadequate. This was a crime of significant gravity committed by a young and immature woman, who would not have been in this position but for her misguided loyalty to her friend which drew her into serious criminality. It was also necessary that the sentence reflect the need for denunciation and general deterrence, as resort to vigilante action as a response to some misconduct or crime committed (or believed to have been committed) by the victim is to be severely discouraged: Barlow v R at 189 [2], 195 [40]; R v Rayment at 67-68 [106]. The Respondent had a strong subjective case with an indication to the sentencing Judge that she had learned from this experience.
123It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case), the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her own discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. Nor is appellate intervention on the ground of manifest inadequacy justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where error is established in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 505; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]. In this case, the Crown contends that there is a latent error giving rise to a manifestly inadequate sentence.
124Although the length of sentence imposed upon the Respondent lay within the range of sentence reasonably open to the sentencing Judge for this crime, I am satisfied that the suspension of the sentence resulted in the imposition of a manifestly inadequate sentence. By choosing to suspend the sentence, the punishment was deprived of much of its effectiveness and did not reflect the objective gravity of the offence: R v Zamagias at [28], [32]. The sentence was clearly disproportionate to the objective gravity of the offence, even after making due allowance for the Respondent's subjective case.
125I would uphold this ground of appeal.