R v Speechley

Judgment 1McCLELLAN CJ at CL: I agree with Johnson J. 2JOHNSON J: This is an appeal by the Crown under s.5D Criminal Appeal Act 1912 against sentence imposed upon the Respondent, Tara Maree Speechley, by his Honour Judge Bennett SC at the Parramatta District Court on 3 February 2012. 3The Respondent pleaded guilty to an offence of aggravated kidnapping contrary to s.86(2)(a) Crimes Act 1900, an offence punishable by imprisonment for 20 years. There is no standard non-parole period for this offence. 4The sentencing Judge imposed a term of imprisonment for a period of one year and 11 months and, pursuant to s.12 Crimes (Sentencing Procedure) Act 1999, suspended the execution of the sentence conditionally upon the Respondent entering into a bond to be of good behaviour for that period upon certain terms, including the supervision and guidance of the Probation and Parole Service. 5A Notice of Appeal to this Court was filed by the Crown on 27 February 2012 and served upon the Respondent on 29 February 2012.

6The Respondent pleaded guilty to a charge that on 2 May 2011 at Riverwood, she did, without consent, take and detain Mosa (Julius) Mbele with the intention of obtaining an advantage, to wit, to assault and intimidate him, while in the company of Jessica Aubourg and Jason Alford. 7A Statement of Facts was tendered at the sentencing hearing. In addition, the Respondent gave evidence. 8What follows is drawn from the Statement of Facts which constituted the foundation for findings of fact made by the sentencing Judge. 9The Respondent (then 19 years' old) was a close friend of the co-offender, Ms Aubourg. As at the date of the offence, Ms Aubourg was in a relationship with the second co-offender, Mr Alford. Ms Aubourg had previously been in a relationship with the victim, Mosa (Julius) Mbele. She told the Respondent that he had sexually assaulted her. 10On 2 May 2011, Ms Aubourg telephoned the victim and asked to meet him. She told him that she would bring a friend. At about 9.00 pm that night, the Respondent and Ms Aubourg drove to Bankstown to meet the victim. They were in Ms Aubourg's grandfather's motor vehicle, and they carried Mr Alford in the boot of the vehicle. Unbeknown to the Respondent, Mr Alford was in possession of a loaded 0.22 calibre shortened rifle. 11Ms Aubourg picked up the victim and he entered the rear of the vehicle, a two-door Hyundai. Ms Aubourg drove the vehicle to Belmore Road, Riverwood. At that stage, the victim became uneasy and he asked Ms Aubourg to pull over so that he could smoke a cigarette. The Respondent said to Ms Aubourg, "Is this the guy that tried to rape you"? Ms Aubourg replied, "Yes". The victim said, "What are you talking about? Stop playing games". Ms Aubourg said, "Don't worry about it". The Respondent, Ms Aubourg and the victim got back into the car and Ms Aubourg drove to a location near Saltpan Reserve at Riverwood. 12Ms Aubourg opened the boot and then alighted from the vehicle. The victim was unable to exit the vehicle because the front seat was blocking his way. The victim heard the boot open and he then heard Mr Alford say, "Hey fuckhead, don't move, don't even look at me". The victim saw Mr Alford standing behind the vehicle holding a firearm. It was at this point that the Respondent became aware of the presence of the firearm. The firearm was pointed at the victim's head, through the open boot. The victim said, "Please don't hurt me, please don't hurt me". 13The Respondent exited the vehicle, and she moved her seat forward, to enable the victim to leave the vehicle. As he attempted to do so, Ms Aubourg reached into the vehicle and attached a metal handcuff to the victim's left wrist. She pulled on the handcuff and the victim got out of the car. The victim then grabbed Ms Aubourg's wrist. 14Mr Alford said to the victim "You think this is not a real gun"?, whereupon he hit the barrel of the firearm against the top of the victim's head, causing the firearm to discharge. 15Mr Alford reloaded the firearm and said "Should we cut his fingers off now"? The Respondent started to walk away. Mr Alford said to the Respondent, "Tara, get the knife out of the boot". The Respondent went to the boot of the vehicle and found a knife which she handed to Mr Alford. 16The victim then struggled with Ms Aubourg. He managed to break free and run away from the offenders. Mr Alford discharged the firearm into the air to frighten the victim, who ran to a nearby unit where a resident called the police. 17Ms Aubourg, Mr Alford and the Respondent re-entered the vehicle and drove around the area, attempting to locate the victim. In evidence during the sentencing proceedings, the Respondent said the purpose of this was to try to retrieve the handcuffs because they thought they would be in trouble if police found them. The three then made their way to Mr Alford's premises. 18On Tuesday 3 May 2011, Ms Aubourg attended Campsie Police Station where she was arrested and charged. In a recorded interview, she made partial admissions as to her involvement in the offence. She denied the use of a firearm and stated that Mr Alford was not involved in any way. Later that day, Ms Aubourg participated in an electronically recorded interview, during which she made full admissions. 19The Respondent was then contacted by police. She attended Campsie Police Station where she provided a statement to police outlining her involvement in the offence, and was then allowed to leave. 20Police later executed a search warrant at Mr Alford's residence and located a short barrel rifle within the roof cavity of the premises. That rifle matched the description of the firearm which was given to them by the victim. Police also located 10 .22 calibre projectiles. 21The Respondent was arrested at her home on 5 May 2011. She participated in an electronically recorded interview. She discussed her involvement in the offence, revealing the following. 22The Respondent told police that Ms Aubourg was her best friend. On the morning of 2 May 2011, Ms Aubourg disclosed that she had been sexually assaulted by the victim, and that she wanted to get back at him but did not quite know how to do so at the time. The Respondent then discussed the matter with Mr Alford resulting in a plan to take the victim and scare him to make him leave Ms Aubourg alone as he had been messaging and calling her. The Respondent said there was no conversation about weapons being involved. She and Mr Alford then discussed the plan with Ms Aubourg and they agreed together to get the victim in the car, take him to the park and scare him. 23The Respondent said that Ms Aubourg rang the victim and asked him to meet them. Ms Aubourg said to the victim that they were "keen to go and have a threesome" with him. She and Ms Aubourg got into the vehicle, and Mr Alford got into the boot. 24The Respondent knew that there were poles and a baseball bat in the boot of the car. She did not know there was a firearm in the car. They then picked up the victim. On the way to the park, the victim admitted to Ms Aubourg that he had "raped her". At the park, Mr Alford held the gun through the hatch and told the victim not to move and that the gun was loaded. The Respondent stood there watching and did not know what to do. 25According to the Respondent, Ms Aubourg was told by Mr Alford to put the handcuffs on the victim's wrists. Ms Aubourg attempted to do so and got one handcuff on. At that stage, the victim grabbed Ms Aubourg's wrist. Mr Alford then struck the victim on the head with the rifle, and the rifle discharged. 26The Respondent said that Mr Alford was telling the victim to get in the boot of the car. She said that Mr Alford also said that there was a knife in the car, and for her to get it. She did so and, at that point, the victim escaped and ran down the road. Mr Alford then fired a shot from the rifle to scare the victim, who kept running. 27During the interview, the Respondent said that did not feel sorry for what happened because the victim should not have done what he did to her friend. 28Following her arrest and charging on 5 May 2011, the Respondent was granted conditional bail, upon which she remained until sentence was passed on 3 February 2012.

29The Respondent was born in 1991 and was 19 years' old at the time of the offence and 20 years' old at the time of sentence. She has no prior criminal convictions. 30As mentioned earlier, the Respondent gave evidence at the sentencing hearing, as did her father. In addition, a presentence report was tendered, together with a report of Anthony Diment, consultant psychologist, dated 30 January 2012 and a number of character references. 31The Respondent has a three-year old son who was not living with her at the time of the offence, but had returned to live with her at the time of sentence. The Respondent stated that she had used cannabis, including during the period when the offence occurred.

32The grounds of appeal relied upon by the Crown are as follows: (a) Ground 1 - His Honour erred in holding that the offence was aggravated by the use of only two weapons. (b) Ground 2 - His Honour erred in failing to assess the objective seriousness of the offence. (c) Ground 3 - His Honour erred in imposing a sentence that failed to reflect the objective gravity of the offence and was manifestly inadequate.

Remarks on Sentence 33To allow the grounds of appeal to be properly understood, it is appropriate to set out extracts from his Honour's remarks on sentence. 34In doing so, it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be "as robustly structured as they might otherwise have been" (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may "lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing" (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]). 35When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour's remarks on sentence, bearing in mind the features of an ex tempore decision. 36Following a recital of the facts of the offence, during which reference was made to the Respondent obtaining the knife from the car boot, his Honour turned to a number of discrete issues. Firstly, his Honour referred to the explanation and suggested motive for the offence (AB12): "There is no evidence before me as to the nature of the sexual assault that Aubourg alleged, sufficient to have an appreciation of what she has alleged to have suffered. I was told from the bar table that there was a report of that matter to the police but I know nothing further about it. Whether or not the matter was taken up by the police, or pursued with the police by the co-offender Aubourg, the court will not tolerate members of the community taking the law into their own hands. At this very point in the history of this city, hardly a week goes by without there being drive by shootings by those engaged upon acts of retaliation, following some earlier event causing some insult or offence, prompting these further serious episodes of misconduct. The court needs to make clear, that if someone is the victim of an offence, of whatever character, it is a matter to be brought to the attention of the authorities given responsibility for the investigation of such behaviour, and then for the authority given the responsibility for prosecuting the perpetrators of the misconduct to do so. It is not acceptable for any member of the community to engage on conduct such as that with which I am concerned." 37His Honour then addressed the use of weapons, the subject of the first ground of appeal (AB12): "The Crown correctly points out that this behaviour is aggravated by the use of a weapon. In this case, there were two weapons, in my assessment of the matter, the firearm which was discharged twice, once deliberately, and the handcuffs which were used in an attempt to secure the victim." 38Reference was then made to the degree of planning (AB12): There was planning but I do not take that into account as a factor in aggravation, drawing upon s 21 A(2) of the Crimes (Sentencing Procedure) Act, but I bring it to account, as part of the factual matrix, upon which to assess the gravity of this offence." 39The sentencing Judge then turned to the Respondent's subjective circumstances, including the absence of any criminal history, the contents of character references and the presentence report together with the report of Mr Diment. 40His Honour accepted that the Respondent had demonstrated contrition (AB16-17): "To her credit she acknowledged in the witness box that she was not sorry for her wrongdoing at the time or when she was interviewed by the police but that as time progressed she came to the realisation that what she did was serious and involved significant consequences for her. The Crown suggests in her submissions that in these circumstances I would be circumspect when considering whether to accept her expressions of remorse to be genuine. I have come to the view that on balance at this point in the sequence of events the offender is appropriately contrite and I shall find accordingly." 41The sentencing Judge made reference to the Respondent's background and upbringing, together with her youth and immaturity (AB17-18): "I have brought to account that she was raised in circumstances that must have had a deleterious effect in her formative years with both parents addicted to heroin. Her mother and father appear to have done what they can to address their burden and have embarked upon methadone programs, and her mother has been working, but even so the parameters that ought to have been set as she was growing appear not to have been available to her and have, I believe, made some contribution to her attitude that ultimately led her to the decision to embark upon this offence. She is young and I believe she is immature and I accept that at the present time she is suffering from a depressive disorder of moderate proportion, borne of the cumulative effect of the stressors brought because of the dispute regarding her son, a foolish decision to embark upon this crime, the use of cannabis, which I accept is diminishing, and the fear of consequences that she now has to face." 42The sentencing Judge then turned to the question of sentence, noting that the Crown and the Respondent's counsel had accepted that nothing less than a custodial sentence was appropriate (AB18): "The Crown and Mr Taylor both concede that nothing less than a custodial sentence should be imposed in relation to this crime. The Crown concedes that there are special circumstances by reason of the offender's age, that this will be her first time in custody, and the circumstances of her son. Implicit in what the Crown has acknowledged is the need for the offender to have an extended period of time on parole to facilitate her rehabilitation, the prospects for which the Crown concedes are strong. I agree with those concessions and the observations that the Crown made leading to them. First of all the question arises as to what is the appropriate sentence. Allowing her the discount of twenty five percent for the utility that her plea has provided would reduce what I believe to be the otherwise appropriate sentence of two years and six months to one year and eleven months; indeed it is a little less than that but I propose that the sentence should be one of one year eleven months." 43His Honour then turned to the manner in which the sentence should be served (AB18-20): "The next question to be determined is how should the sentence be served. The options are simply to incarcerate her with an appropriate non-parole period or refer her for assessment for her suitability to serve the sentence by way of an intensive correction order in the community. Alternatively there is available the suspension of the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act which I am urged by Mr Taylor to consider. S 3A of the Crimes (Sentencing Procedure) Act specifies the purposes for which sentences are imposed. They are to ensure adequate punishment for the offence and to prevent the crime by deterring the offender and others from committing similar offences. In this case general deterrence is a significant factor. As I made clear at the beginning the courts cannot tolerate this sort of response to what might be thought to have been a crime against another member of the community. There is a need to protect the community from the offender; I do not believe that looms large in this exercise. There is the need to promote the rehabilitation of the offender and what is required in this case is to get her away from the use of cannabis, which is not a soft drug but one that puts the user at the risk of psychosis. The offender must be made accountable for her actions, the sentence must denounce her conduct and recognise the harm done to the victim. S 5(1) of the Act provides that I must not sentence her to imprisonment unless satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate. As I have indicated I am satisfied that imprisonment is appropriate in this case; the question I have to determine is whether or not she should go into custody. It seems to me that the conduct upon which this offender engaged is comparable to that of the offender Aubourg, but something less than that of Alford. The co-offenders are yet to be dealt with; this is the first of the three offenders who is to be sentenced. I propose to deal with the offender pursuant to s 12 of the Crimes (Sentencing Procedure) Act. Stand up please and come forward. What you did was foolish and could have ended in tragedy that might have ended with you in the Supreme Court facing a much more serious charge than you are facing. You should understand that if you breach the bond that I am going to require you to enter you will be called back before me to face sentence. A sentence of imprisonment is there; I will have no choice depending upon the assessment of the nature of the breach but to send you to gaol. If you continue to use cannabis and if you are detected using cannabis during the term of this bond you will be going to gaol, do you have any question about that?" 44His Honour then proceeded to sentence the Respondent to a term of imprisonment of one year and 11 months, suspended pursuant to s.12 Crimes (Sentencing Procedure) Act 1999 conditionally upon the Respondent entering a bond to be of good behaviour for one year and 11 months from 3 February 2012. The bond was subject to conditions: (a) that the Respondent be of good behaviour and appear before the Court if called upon to do so; (b) that the Respondent continue to reside with her parents at Punchbowl; (c) that the Respondent submit to the supervision and guidance of the Probation and Parole Service and obey all reasonable directions of the officers of that Service, including with respect to her use of cannabis; (d) that the Respondent report to the Bankstown office of the Probation and Parole Service within seven days to arrange for supervision.

45This Court was informed that Ms Aubourg's matter is listed for sentence at the Parramatta District Court on 26 June 2012, with Mr Alford's matter listed for sentence at the same Court on 17 August 2012. 46The Court is unaware whether Ms Aubourg and Mr Alford are charged with further offences apart from that for which the Respondent was sentenced. Whatever be the position, however, steps ought be taken to ensure, so far as it is reasonably possible, that these related offenders are sentenced by the same District Court Judge: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [32]-[46].

47It will assist an understanding of the grounds of appeal, and their resolution, to make some general observations concerning the offences contained in s.86 Crimes Act 1900. 48The offence for which the Respondent was sentenced lies within s.86 Crimes Act 1900, which provides as follows: "86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person's consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly. (5) A person who takes or detains a child is to be treated as acting without the consent of the child. (6) A person who takes or detains a child does not commit an offence under this section if: (a) the person is the parent of the child or is acting with the consent of a parent of the child, and (b) the person is not acting in contravention of any order of a court relating to the child. (7) In this section: child means a child under the age of 16 years. detaining a person includes causing the person to remain where he or she is. parent of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children. taking a person includes causing the person to accompany a person and causing the person to be taken." 49The development of the law of kidnapping, commencing with the offence as understood at common law and then contained in s.90A Crimes Act 1900 before the enactment of s.86, was considered by Howie J in Davis v R [2006] NSWCCA 392 at [23]-[55]. 50It will be observed immediately that the offences contained in s.86 extend beyond the traditional concept of kidnapping, involving the holding of a person for ransom. The concept of "any other advantage" in s.86(1)(b) (and previously in s.90A) has been interpreted broadly, extending (amongst other things) to psychological gratification or satisfaction: R v Rose [2003] NSWCCA 411. Indeed, the experience of the courts in recent years has been that the detention of a person for purposes other than for ransom has been the predominant scenario for offences under s.86. There have been regular examples of persons detained for advantage in the context of domestic violence incidents, or the taking of vigilante action in circumstances where it is believed that the detained person has committed some wrong against the offender, or persons associated with the offender. 51Examples of s.86 offences committed in a domestic violence context include R v Hamid [2006] NSWCCA 302; 164 A Crim R 179, Heine v R [2008] NSWCCA 61, R v Burton [2008] NSWCCA 128 and Jeffries v R [2008] NSWCCA 114; 185 A Crim R 500. 52Examples of s.86 cases involving what might be described as vigilante conduct include Williams v R [2006] NSWCCA 33; Barlow v R [2008] NSWCCA 96; 184 A Crim R 187 and R v Rayment [2010] NSWCCA 85; 200 A Crim R 48. 53The very breadth of conduct which is capable of falling within s.86 was noted in R v Newell [2004] NSWCCA 183, where Howie J at [43] doubted "that offences under s 86 will be sufficiently homogenous that a reference to statistics alone will be of much assistance". 54The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person: R v Newell at [32]; R v Falls [2004] NSWCCA 335 at [42]; R v Burton at [95]; Jeffries v R at 511 [79]. 55Factors which bear upon an assessment of the seriousness of a basic offence under s.86(1) include the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention, although the nature of the advantage that the offender sought to obtain is not conclusive as to the seriousness of the offence: R v Newell at [32]. 56The statutory scheme of offences under s.86 is clear enough. 57The basic offence is contained in s.86(1). 58An aggravated offence under s.86(2) will be committed if the offender is in the company of another person or persons or the offender occasions actual bodily harm to the victim at the time of, or immediately before or after the commission of the offence. 59The specially aggravated offence under s.86(3) will be committed if the offender is both in company of another person or persons and occasions actual bodily harm to the victim at the time of, or immediately before or after the commission of the offence. 60The statutory scheme recognises that a kidnapping offence committed in company is more serious because of the force of numbers deployed against the victim, as is a kidnapping offence where the victim sustains actual bodily harm in the context of the offence. 61The meaning of the term "in company" in provisions of the Crimes Act 1900 has been considered: R v Leoni [1999] NSWCCA 14 at [16]; R v Villar and Zugecic [2004] NSWCCA 302 at [68]; R v Button and Griffen [2002] NSWCCA 159; 54 NSWLR 455 at 464 [120]. The victim is confronted by the combined force of two or more persons who share a common purpose. 62The threshold for "actual bodily harm" is relatively low. Injury need not be permanent, but must be more than merely transient or trifling, with bruises and scratches to a victim being typical examples of injuries which constitute actual bodily harm: McIntyre v R [2009] NSWCCA 305;198 A Crim R 549 at 558 [44]. 63It will be observed that s.86 does not nominate other circumstances of aggravation, such as the offender being armed with an offensive weapon or instrument at the time of the offence: cf s.105A Crimes Act 1900 and s.112 Crimes Act 1900. 64Clearly, offences under s.86(1), (2) or (3) may be further aggravated when committed in circumstances which attract one or more aggravating factors contained in s.21A(2) Crimes (Sentencing Procedure) Act 1999 or any other common law factor which may bear upon the objective gravity of the offence itself. In this case, the involvement of a weapon or weapons arises for consideration: s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999.

Ground 1 - His Honour Erred in Holding that the Offence was Aggravated by the Use of Only Two Weapons

65This ground of appeal is based upon the finding by the sentencing Judge set out at [37] above. Submissions 66The Crown submits that his Honour referred only to the firearm and the handcuffs and left out any reference to the knife, being the very weapon which the Respondent had given to Mr Alford following his request to the Respondent. It was submitted by the Crown that this omission was significant to an assessment of the objective gravity of the Respondent's crime so that its omission was important. 67Mr Stratton SC, for the Respondent, submitted that the sentencing Judge's finding that the handcuffs were used as a weapon was a generous one in favour of the Crown. With respect to the knife, he submitted that the Statement of Facts was somewhat ambiguous, but that it appeared that the victim had in fact escaped whilst the Respondent was looking for the knife and that there was no evidence before the sentencing Judge that the victim saw the knife or that it was used against him. 68Mr Stratton SC submitted that his Honour's finding was clearly open in the circumstances of the case. Decision 69Section 21A(2)(c) Crimes (Sentencing Procedure) Act 1999 nominates as an aggravating factor, to be taken into account in determining the appropriate sentence for an offence, the fact that "the offence involved the actual or threatened use of a weapon". The term "weapon" is not defined in that Act. 70The ordinary meaning of the word "weapon" includes "any instrument for use in attack or defence in combat, fighting, or war, as a sword, rifle, cannon etc" and "anything serving as an instrument for making or repelling an attack". Clearly, an otherwise innocuous item, such as a walking stick or a bottle, may fall within this provision if the relevant offence involved the actual or threatened use of either of those items as a weapon. Handcuffs may be capable of use as a weapon depending upon the actual or threatened use in the particular case. 71Here, Ms Aubourg attached the handcuff to the left wrist of the victim for the purpose of restraining him as he attempted to leave the vehicle. It may have been more appropriate to characterise the use of the handcuffs as an instrument of restraint rather than as a weapon. However, that is not the issue raised by this ground of appeal. 72The agreed facts stated that Mr Alford said "Should we cut his fingers off now?" with the Respondent starting to walk away, and Mr Alford then saying "Tara, get the knife out of the boot". The Respondent then went to the boot and found a knife which she handed to Mr Alford. In my view, the appropriate (and only reasonably open) finding was that the victim was present when these words were said and the knife was produced, but that the victim then struggled with Ms Aubourg, broke free and ran away from the scene. At this point, Mr Alford discharged the firearm into the air to frighten the victim. 73A finding ought to have been made that the offence involved the actual or threatened use of a knife (as well as the firearm), with this issue being one of particular significance to the assessment of objective gravity of the Respondent's offence. 74The issue is whether the experienced sentencing Judge in this case failed to have regard to the Respondent's obtaining of the knife as an aggravating factor, even though his Honour had recited these events shortly before in his summary of the facts. 75Clearly, express reference ought to have been made to the knife in the recital of aggravating factors. However, in the context of ex tempore reasons delivered on the day of the sentencing hearing at which the knife was expressly mentioned, I am not persuaded that his Honour overlooked the use of the knife or its operation as an aggravating factor on sentence.

Ground 2 - His Honour Erred in Failing to Assess the Objective Seriousness of the Offence

Submissions 76Whilst acknowledging that the sentencing Judge had summarised the facts of the offence, the Crown submitted that his Honour had erred in failing to assess the objective gravity of the offence. The failure to assess the objective gravity of the offence, it was submitted, was accompanied here by undue attention being paid to persuasive subjective considerations: R v Dodd (1991) 57 A Crim R 349 at 354. 77The Crown submitted that the sentencing Judge had not assessed the seriousness of the offence by reference to factors identified by Howie J in R v Newell, including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. 78The Crown submitted that this error on the part of the sentencing Judge gave rise to the imposition of a sentence complained of further in Ground 3. 79Mr Stratton SC submitted that the sentencing Judge went to great lengths to set out the objective circumstances of the offence, and then expressed conclusions which constituted an effective finding with respect to the objective gravity of the Respondent's crime. 80It was submitted for the Respondent that the determination that a custodial sentence was necessary demonstrated that a conclusion was reached and applied as to the objective gravity of the offence. Decision 81Offences under s.86 have no applicable standard non-parole period. Accordingly, an assessment of objective seriousness relevant to that class of offence (Muldrock v The Queen [2011] HCA 39; 244 CLR 120) has no application to this case. 82However, an assessment of objective gravity is an important part of the sentencing function with respect to all offences. In Zreika v R [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at [46]: "The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to is the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999." 83A classic statement of this general principle is that of this Court (Gleeson CJ, Lee CJ at CL and Hunt J) in R v Dodd at [354]: "As Jordan CJ pointed out in R v Geddes (36 SR at 556), making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen v The Queen No 2 (1987-88) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary. (See, for example, the passage from the judgment of Street CJ in R v Todd [1982] 2 NSWLR 517 quoted in Mill v The Queen (1988) 166 CLR 59 at 64). Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case (R v Rushby [1977] 1 NSWLR 594). We consider that to have happened here. In our view the requirement of a reasonable proportionality with the circumstances of the crime called for a significant full-time custodial sentence." 84Counsel appearing for the Respondent in the District Court had addressed the objective gravity of the offence by reference to the factors mentioned by Roden J in R v Collett and Robson (Court of Criminal Appeal, unreported, 7 June 1979) (AB72) although no express submission was advanced as to the degree of objective gravity of the offence. 85In the District Court, the Crown pointed to what were said to be aggravating features of the offence without also descending to a submission as to the level of objective gravity of the offence, although it was contended that no penalty other than a full-time custodial sentence was appropriate in the circumstances of the case (AB74). 86I have made all due allowance for the ex tempore nature of his Honour's remarks on sentence. It is implicit in his Honour's conclusions that the Respondent's offence was of such a degree of objective gravity that a custodial sentence only was appropriate. However, it was, at the least, highly desirable that an assessment of objective gravity, expressed shortly by reference to the factors referred to in R v Newell, ought to have been stated by his Honour. 87In the result, I am not persuaded that patent error has been demonstrated as contended by the Crown under this ground of appeal. The gravamen of the Crown's complaint is essentially that contended for under Ground 3, to which I will now turn.

Ground 3 - His Honour Erred by Failing to Impose a Sentence that Reflected the Objective Gravity of the Offence and was Manifestly Inadequate

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.

126If error was demonstrated, Mr Stratton SC submitted that this Court, in the exercise of discretion, should not resentence the Respondent. 127It has been said that the primary purpose of Crown appeals against sentence under s.5D Criminal Appeal Act 1912 is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, so that this Court, in the exercise of its jurisdiction under s.5D, has a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36 at 39 [1]-[2]. 128This discretion may be exercised for reasons other than double jeopardy: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 24 [92], 25 [95], 33 [150]. 129In determining whether or not the discretion should be exercised, it is open to the Court to receive evidence of what has happened between the time of sentence and the hearing of the appeal: R v Deng [2007] NSWCCA 216; 176 A Crim R 1 at 8 [28]. 130At the hearing of the appeal on 12 June 2012, Mr Stratton SC read an affidavit of the Respondent affirmed that day on the question of discretion and resentence. The affidavit had not been filed or served in advance of the appeal. Discussion ensued during the hearing, culminating in leave being granted for the Respondent to file and serve an updated affidavit that day (given indications that the earlier affidavit was not up to date). Leave was also granted to the Crown to file and serve an affidavit in reply by 15 June 2012, with the Court to convene thereafter if necessary to hear any evidence and submissions arising from the affidavits. 131A further and more detailed affidavit of the Respondent, also affirmed on 12 June 2012, was filed and served. The Crown filed and served an affidavit of Carolyn Griffiths sworn 15 June 2012 in response to the affidavits of the Respondent. 132A non-controversial aspect of the Respondent's affidavits of 12 June 2012 was her statement that she continued to live at home with her mother and had begun a stable relationship with a new partner and had settled into a normal routine of being a mother to her three-year old son, with the child's father having access every second weekend. 133However, controversial areas of the Respondent's affidavits involved her statements concerning her attendance at a hairdressing course and her undertaking treatment with a psychologist, Ms Ida Shapievsky. 134The presentence report before the District Court stated that the Respondent had received a Certificate II in hairdressing in 2008 and had worked as a hairdresser for two months after leaving school, leaving when she became pregnant. 135The Respondent's second (and more considered) affidavit affirmed 12 June 2012 (made after the hearing on that day) stated that she had begun a full-time hairdressing course on 4 June 2012, which occupied Monday to Thursday of each week, and that she had "gone every day, except one day when I was sick". 136The affidavit of Ms Griffiths confirmed that the Respondent had enrolled as a full-time student in Certificate III in hairdressing and in a Diploma of Hairdressing Salon Management, being courses which commenced on 4 June 2012 and were scheduled to be completed on 17 September 2013. The course involved attendance on Mondays to Thursdays with 28 hours' study per week. A letter obtained from the relevant educational institution stated that the Respondent had attended on 4 June 2012 for student orientation, but had not attended since, with a paper rollcall being marked and recorded for each group twice daily, and with each student being placed on a rollcall according to their session group. It was said that there was no paper or electronic record of the Respondent having contacted the college with a reason for her non-attendance. 137In the Respondent's second affidavit on 12 June 2012, she stated that she had commenced treatment with Ms Shapievsky, psychologist, in late March 2012 and had "seen her twice, each time for one hour". In a letter dated 14 June 2012, Ms Shapievsky stated that the Respondent had attended the initial consultation on 20 March 2012 with follow-up consultations being scheduled for 10 April, 17 April, 26 April, 3 May, 15 May and 30 May 2012 with the Respondent not attending any of these further sessions. 138In view of the conflict between the Respondent's affidavits and the evidence contained in the affidavit of Ms Griffiths, the Court resumed the hearing of the appeal on 20 June 2012. The Respondent was cross-examined on her earlier affidavits and a further affidavit of the Respondent affirmed 20 June 2012 was read. 139In the affidavit of 20 June 2012, the Respondent stated, with respect to the hairdressing course, that she had attended on 4 June 2012 and 7 June 2012 (she was unsure why her name was not marked off on the rollcall for that day), but that the students were advised on 4 June 2012 that the course program had not been finalised, so it was not necessary to attend on 5 and 6 June 2012. 140With respect to her attendance upon Ms Shapievsky, the Respondent stated that she attended an additional follow-up session after the initial consultation and that there were further sessions scheduled, however they fell over the Easter period and were cancelled by the psychologist. She stated that the rescheduled sessions during May 2012 were cancelled by herself as they conflicted with her requirement to report to the Probation and Parole Service and she requested alternate dates from Ms Shapievsky, but no further appointments had yet been made. 141Under cross-examination by the Crown, the Respondent stated that she did not have a clear understanding of these matters at the times when she affirmed her affidavits of 12 June 2012. She stated that she had a lot on her mind at different points and that this had affected her ability to give accurate accounts of these matters. 142Under cross-examination, the Respondent agreed that she had not reported on all occasions as required to the Probation and Parole Service and that she had received a warning letter which stated that, if three warning letters were issued, breach action would be initiated against her with respect to the bond. 143By reference to the affidavits and oral evidence of the Respondent given on 20 June 2012, the Crown submitted that the Court would not be satisfied that the Respondent had made real efforts towards her rehabilitation in the period since sentence was passed in the District Court, and that she had not been frank with the Court. 144Mr Stratton SC submitted that it would be open to the Court to conclude that the Respondent was not a reliable historian with respect to these matters, but that the evidence confirmed that she had enrolled in the hairdressing course and had attended at least once upon the psychologist. He submitted that the Court should conclude that the Respondent still manifested signs of youth and immaturity and was also subject to the demands of raising a three-year old child. He emphasised that there had been no further offence committed whilst the Respondent was subject to the bond. 145I have concluded that error has been demonstrated by the Crown in the sentence imposed on the Respondent on 3 February 2012. Accordingly, the occasion arises for the Court to consider whether, in the exercise of residual discretion, it should determine not to interfere and to leave in place the suspended sentence and bond ordered in the District Court. 146From time to time, this Court has declined to resentence an offender on a Crown appeal, despite error having been established, because of solid and substantial evidence of rehabilitative steps taken by the offender between the time of sentence and the hearing of the appeal: R v Tortell [2007] NSWCCA 313 at [63]; R v SC [2008] NSWCCA 29 at [55]. In such circumstances, it may be seen that the offender has taken full advantage of opportunities for rehabilitation which have presented themselves as a result of an erroneous and unduly lenient sentence. Depending upon the circumstances of the case, the residual discretion may be exercised in favour of the offender with the Court dismissing the Crown appeal. Of course, in those circumstances, the judgment of this Court will still serve the primary purpose of Crown appeals referred to at [127] above. 147The Respondent was given a very significant opportunity, as a result of the suspended sentence imposed on 3 February 2012, to demonstrate strict compliance with the terms of her bond and the taking of steps to advance her rehabilitation. There was a reasonable expectation that she would be full and frank, in any evidence to be provided to this Court at the hearing of the Crown appeal, concerning the steps she had taken since sentence was passed. 148The most favourable view of the Respondent's approach towards her affidavits and evidence in this Court is that she has demonstrated less than enthusiastic efforts to comply with the terms of her bond and, more significantly, a capacity to provide self-serving and misleading accounts concerning action which she had taken. 149I have sought to make allowances for the youth and relative immaturity of the Respondent and the other demands in her life of which she has spoken. However, I have concluded that the Respondent has not demonstrated the taking of significant rehabilitative steps, in a way that should lead this Court to have confidence in her. 150It is true, as Mr Stratton SC submitted, that there has been no allegation that she has committed a further offence whilst subject to the bond. The difficulties for the Respondent, however, lie in the different areas to which I have adverted. 151Having considered the submissions made in the context of the somewhat unusual scenario which developed in this Court, I have reached the view that the Court should not decline to resentence the Respondent, in the exercise of the Court's residual discretion. A manifestly inadequate sentence was imposed in the District Court. The appropriate course is that the Court should allow the Crown appeal and resentence the Respondent. 152It is necessary to consider the appropriate sentence which ought be imposed in the circumstances of this case. I am satisfied that the sentence of imprisonment imposed in the District Court of one year and 11 months ought be fixed. As the Respondent has been subject to the suspended sentence and bond since 3 February 2012, it is appropriate to direct that the sentence commence from that date. 153As his Honour determined to suspend the sentence, it was not necessary for the sentencing Judge to specify a non-parole period. As a full-time sentence of imprisonment ought now be imposed, it is necessary for the Court to consider that issue. I am satisfied that "special circumstances" should be found so as to vary the statutory ratio under s.44(2) Crimes (Sentencing Procedure) Act 1999. These circumstances include the fact that the Respondent has care of a three-year old child, a factor (amongst others) accepted by the sentencing Judge if "special circumstances" were to be considered on sentence in that Court (see [42] above). 154A non-parole period of 12 months is appropriate in the circumstances of the case. That non-parole period will date from 3 February 2012. 155I propose the following orders: (a) Crown appeal allowed; (b) quash the sentence passed at the Parramatta District Court on 3 February 2012 with respect to the Respondent; (c) for the offence of aggravated kidnapping under s.86(2)(a) Crimes Act 1900, the Respondent is sentenced to imprisonment comprising a non-parole period of 12 months commencing on 3 February 2012 and expiring on 2 February 2013, with a balance of term of 11 months commencing on 3 February 2013 and expiring on 2 January 2014; (d) pursuant to s.50 Crimes (Sentencing Procedure) Act 1999, direct the release of the Respondent on parole at the end of the non-parole period on 2 February 2013. 156HAMMERSCHLAG J: I agree with Johnson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2012