R v Taylor

Objective seriousness

1. I have already sentenced Chambers and Earnshaw: R v Mark Chambers; R v Raynor Earnshaw [2019] NSWDC 848. There was some debate during submissions in that case about whether the offence was planned. There is only one inference I could draw beyond reasonable doubt; what occurred was not a coincidence. Taylor picked up Mr Fitzpatrick. The car belonged to Chambers' mother. Only a short distance down the road Chambers was waiting, Earnshaw was with him. Taylor stopped where Chambers was. Chambers had a perceived, if groundless, grievance against Mr Fitzpatrick. The others joined him in his crime. Chambers' motives are at best obscure and perhaps can be best explained by intoxication by the drug methylamphetamine. The motives of Taylor and the others remain a puzzle. These facts indicate a degree of planning but it is clear nothing was well thought out and not one of the offenders considered the potential consequences either to their victim or to themselves.
2. Courts are enjoined by the legislature and the appellate courts to consider the principle of general deterrence in matters such as this. That is, the hope that by the severity of the sentences imposed others in the community will learn the consequences of such crimes. A maximum penalty, here 25 years, indicates how Parliament, on behalf of the community, views offences of this type. Crimes which carry a maximum penalty of 25 years often end up with participants being sent to gaol if caught. However, general deterrence principles did not stop this offence occurring as I suspect no one thought that they would end up in gaol. While planning is an aggravating factor this level of planning here must fall at the very bottom of the range.
3. Mr Fitzpatrick was the victim of a kidnapping and a serious assault committed by four others acting together. A weapon was used by one of the offenders. He was injured. It was intended that he be intimidated and undoubtedly he was. He was detained by first being held in a choke hold and then bundled into the boot of a car. He was detained for about half an hour. That period of detention and the nature of that detention are significant factors. Whatever was intended to be done to him was foiled by his escape. There is no suggestion that this attackers allowed the escape to happen, to the contrary. Mr Fitzpatrick's desperate measures prevented a more serious level offending occurring but in order to do so he had to jump from a moving vehicle.
4. Despite Taylor's assertions to her psychiatrist and psychologist the agreed facts make clear that she was not a passive participant. Her role was critical. I make that finding on the basis that I cannot find beyond reasonable doubt who made the initial call. But it was her and the other woman who were in the car: it was her and the other woman who stopped the car 500 metres down the road so that Chambers and Earnshaw could effect the initial detention, which included a choke hold. She is responsible for that act even though she did not actively participate. She was not a passive participant during the short trip in the car; rather, she joined in directly the assault upon Mr Fitzpatrick.
5. On any measure each of the offenders was participating in a serious offence not just against their victim but against the community. The offending, as I will discuss later, calls for a measure of retributive punishment.
6. There is some room for distinguishing between each of the offenders as their roles differed. Here, Taylor appears to have allowed her phone to be used. It was certainly her name that was used to get Mr Fitzpatrick to the scene. But she was responsible, along with the other woman, for the stopping of the car and she clearly knew Chambers and Earnshaw were at that spot, in wait. She acted with the other woman in attempting to prevent his escape from the boot. Her individual actions were seriously criminal. Her individual actions both had an immediate and continuing impact on Mr Fitzpatrick as did, of course, the combined actions of each offender.

Victim Impact Statement

1. Mr Fitzpatrick read his Victim Impact Statement to the court: exhibit B. In it he spoke of the impact of this offence on his life and his continued anxiety and suspicion of others. His ability to lead a normal community life and participate in community life has been restricted. He spoke of both the physical and psychological scars that still remain. The impact upon him is what one would expect given the serious crime committed against him. Any sentence in such matters must attempt to vindicate the victim of violence and recognise the harm done to him and the community in general.

Guidance

1. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include; the maximum penalties prescribed; the decisions of other courts, particularly those designed to give guidance; and, of course, the purposes of sentencing.
2. Section 86(3) Crimes Act 1900 carries a maximum penalty of 25 years imprisonment. The maximum penalty fixed by Parliament is a sentencing measure to be balanced with all other relevant factors. It invites a comparison between this case and others and the submissions of counsel both refer to other cases to which I have had regard. But it is not a case of simply going to the maximum and then making deductions from it Markarian v The Queen (2005) 228 CLR 357, at [30] and [31].
3. Taylor has been on strict bail including curfew provisions since her arrest; a remand period of almost two years. Taylor has no record for any serious offence other than traffic matters. She has never been to gaol before and she has not served any time on remand in relation to this matter.

Parity

1. On 29 November 2019 I sentenced Earnshaw to 2 years 11 months imprisonment for his role in this offence. When sentencing Chambers for this and other matters I indicated a sentence of three years nine months imprisonment for the kidnapping offence. Both men entered their pleas of guilty in the Local Court. Unlike Taylor both had lengthy criminal records.
2. This sentence has to be determined having regard to the circumstances of her co‑offenders and the respective degrees of culpability of each. Like must be compared with like. However, different personal and criminal histories can justify a real difference in sentence including how it is to be served.
3. The principle I apply is known as parity; it is a classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246. While every offence and every offender is individual and requires independent consideration no offender who plays a part in a criminal enterprise such as this should have cause to be aggrieved because they have been treated disproportionally harsher than others.

Section 23 Crimes (Sentencing Procedure) Act 1999

1. Section 23 Crimes (Sentencing Procedure) Act 1999 is engaged. I have material which will remain in a sealed exhibit: exhibit C. I will only summarise it to the minimum degree necessary. That material assisted police. It led directly to the arrest of a person. The offender has given an undertaking to give evidence at another person's trial. The value of the assistance was tempered by some concerns about its veracity. Nevertheless, the Officer‑in‑charge notes that without it another person would not have been charged.
2. In gaol and in the community Taylor will face some risk. If gaoled it is likely that she will require protective custody. It is notorious that those who give or offer assistance are looked down on by other prisoners with whom they are compelled to share cells and other facilities. This is especially so during periods when they are required to attend court while in custody to give evidence.
3. As a consequence of these matters a lesser penalty is required. That reduction in penalty must be in accord with what is set out in s 23. The lesser penalty cannot be unreasonably disproportionate to the crime committed. I have in the exercise of my discretion apportioned the deduction by reference to the penalty that I would otherwise have imposed. I set out the percentages for transparency: For past assistance I have allowed 4%, for future assistance 5%, a total of 9%.

Subjective case

1. Taylor is now 31 years old. She has some drug driving offences on her record but in all the circumstances can be regarded as a first offender. She entered her guilty plea in the Local Court indicating some acceptance of responsibility. Although not immediate, her cooperation, has already taken into account under the heading s 23. It and the plea indicate acceptance of responsibility.
2. To her psychiatrist and psychologist she expressed appropriate remorse and empathy to her victim. Her letter to the Court and to Mr Fitzpatrick repeats that apology and shows appropriate empathy and consideration. Something she failed to show him when this offence occurred.
3. She has strong family support. It, her lack of criminal antecedents, her acceptance of responsibility and other material to which I will refer in dealing with her many problems, indicates that it is highly unlikely, no matter what punishment is imposed today, that she will not reoffend in a like manner.
4. I have the benefit of a report from Dr Furst, a respected Forensic Psychiatrist, who has spent considerable time providing services within gaols, and Ms Dombrowski, a Psychologist.
5. Some of the material set out in the reports was put forward as evidence went to the offender's view of the objective circumstances of the offence. It was not on oath, it was not able to be tested. Where it was at odds with the agreed facts I will not rely upon what is reported: R v Qutami [2001] NSWCCA 353. For example: Taylor told Dr Furst that during the incident she was in a foetal position frozen and could not stand seeing people get hurt.
6. Other aspects of the report, particularly in relation to her background and personal history are uncontroversial. I do not believe the factual matters at odds with the agreed facts raised by her with those prepared the reports had any, let alone any significant influence on, the ultimate conclusions and diagnosis made by those respected professionals.
7. The history before me indicates that Taylor has used illicit drugs regularly. She reports a number of relationships that have been marred by mutual drug use and domestic violence directed towards her. The expert opinions about her psychiatric conditions accord with the material before me and can be accepted. The material relevant to her background and prospects of future risks is the sort of material regularly presented in sentencing proceedings. While the experts relied on matters provided by the offender it is clear that Dr Furst and Ms Dombrowski's reports were based on testing and their considerable expertise, matched against their verifiable parameters designed to validate their findings. The material allows some understanding of the woman now to be sentenced.
8. Taylor was born and raised and educated in the local area. She has suffered from a number of what Dr Furst described as poorly controlled mental disorders; they include bipolar affective disorder, borderline personality disorder and substance use disorder. She has received treatment for anxiety and depression since she was a teenager. Her schooling and self‑esteem were negatively affected by her depression and being bullied. She engaged in self‑harm behaviour when very young. She has a history of suicide attempts but medication and psychological sessions have helped her.
9. She has been addicted to illicit drugs for many years. She has used methylamphetamine and cannabis as a maladaptive way to cope with her mental disorders. At the time of the offence she reports, and her actions seem consistent with, her not taking her regular prescribed medication and being on what she describes as an "ice bender." She had recently ended a relationship and such self‑destructive behaviour appears to have been a common pattern of her life for many years.
10. Dr Furst notes her apparent abstinence from illicit drugs for the last 16 months following a treatment regime involving a low dose of prescription drugs. In his opinion her current indications are positive if she refrains from illicit drug use, engages in a mental health care plan and stays away from criminal associates. Dr Furst notes that a harsh custodial environment could not benefit a woman who has already been exposed to domestic violence. He agrees, and I concur, gaol will impact more harshly upon her than the theoretical average inmate. Gaol could be more dangerous for her, particularly in terms of future suicide risk, as she may have less access to necessary psychological treatment.
11. Ms Dombrowski stresses that the history, which I have recounted in brief summary, reveals a woman who is not inherently antisocial but who has suffered a number of difficulties since when she was very young; difficulties which have impacted on her decision making capacity. That capacity was further impeded by her methylamphetamine use. Since her arrest she has demonstrated a capacity both to refrain from methylamphetamine use and to manage her other symptoms. She has done so with help and supervision. Her capacity to continue to do so is critical to her recovery and resumption of normal community life. Again, those are opinions that I am prepared to accept and act on.

Submissions

1. Ms Humphreys, for the offender, and Ms Cabrera, Solicitor for the Director of Public Prosecutions, provided comprehensive and considered written submissions with appropriate reference to authority. I trust this judgment indicates that I have taken them into account.
2. Ms Humphreys referred to the decision of the High Court in Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600, at [52] to [58] and argued that heavy sentences as a deterrence would be of little utility in reducing the general incidence of crimes such as this.
3. The joint judgment of the High Court in Munda referred to crimes which are not premeditated. I could add, as here, crimes which were not thought out and where no thought was given to the consequences and crimes committed by those whose capacity to make rational judgments was compromised. But, and it is an important but, the joint judgment also made it clear that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The Court noted that mitigating factors must be given appropriate weight but they must not be allowed "to lead to the imposition of a penalty which is disproportionate to the gravity of the offence for sentence."
4. Ms Humphreys' ultimate submission was that a custodial sentence of less than two years could be imposed and that it would be in the community interest, not just Ms Taylor's interest, that it be served by way of Intensive Correction Order in the community where her present conditions could be monitored and she could give something back to the community.
5. Ms Cabrera stressed the need to take into account general deterrence. Anyone who sensibly and rationally considered the crime of kidnapping and what was done to Mr Fitzpatrick must realise the consequences if caught.
6. Heavy penalties should not be required to bring this home. Previous gaol sentences had not deterred Chambers and Earnshaw. I do not believe Taylor thought at all about the consequences of her actions but was going along with what occurred and participating in it. At times the term general deterrence is used interchangeably with retribution: R v Herring (1956) 73 WN (NSW) 203, at 205. Retribution is a notion that reflects the community's expectation that an offender will suffer punishment and that particular offences will attract severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.
7. Ms Cabrera's ultimate submission was that any sentence that had proper regard to all sentencing factors and principles required it be served by a term of full time custody. She submitted that, so serious was the offence and Taylor's role in it that only full time gaol could do justice to what was done, that is, be proportionate to the gravity of the offence and that includes, of course, the harm caused to Mr Fitzpatrick.

COVID-19

1. If sent to gaol Ms Taylor will go to gaol when the entire community, not just prisoners, are under a cloud created by the COVID‑19 pandemic. There has been no indication of any COVID‑19 getting into the gaol but it is a factor I take into account. I also take into account that visits from family members are restricted; if not presently prohibited and that that can and does have a detrimental impact on a person's capacity to cope with a custodial sentence and to maintain contact with pro‑social members of the community. If, and one hopes it will not, COVID‑19 gets into the gaols there is nothing in Ms Taylor's background or the crime committed which would disqualify her from the early release plans that have been put in place.

Synthesis

1. A sentencing judge must fix a sentence appropriate to the circumstance of the crime and the offender. The sentence must adequately reflect and have some proportion to what was done. A proper sentence marks the Court's view of the seriousness of the crime and should let others know the retribution that will fall upon them if they commit similar crimes: R v Herring, at 205.
2. The purposes of sentencing for which a court may impose a sentence include the need to prevent crime by deterring others; to prevent crime by deterring this offender; and to protect the community from the offender. Any custodial sentence, no matter how served, will meet the second and third points. Community protection is the ultimate aim of the Court in sentencing but it requires adequate punishment.
3. Taylor's methylamphetamine use cannot excuse her crimes. She took an active part in a very serious crime that left her victim bloodied by the side of the road. Her various mental conditions and methylamphetamine use do however help explain why she was unable to think clearly or rationally this night. Those conditions, including her drug addiction, are amenable to treatment and her response to date has been very positive. If she is able to continue to deal with them with help and supervision her chances of ever reoffending are very slight. If she is gaoled there is a real prospect that there will be setback in dealing with both conditions. All assistance should be given to her to reduce the risk she will relapse and lose control of her life and her will to live, something she has regained during her period on remand.
4. There is a strong community interest in promoting the rehabilitation of every offender and as Dr Furst observes gaol will delay and impair that process. Restoration to the community is of particular importance; where an offender is not one who has serious criminal habits, where there is scope for treatment in the community, where gaol poses significant risks and where they are amenable to supervision and regulation.
5. The real issues in this case are both the length of the sentence and how, if less than two years, it is to be served. Questions of parity and objective seriousness and reductions for an early guilty plea and assistance mean here that a sentence of two years or less simply could not be imposed. I note that even if it had led to such a lenient sentence or if an Intensive Correction Order would be open to me when I consider all relevant factors ultimately the seriousness of this offence, my duty as a sentencing judge, would compel a sentence of full time custody given the seriousness of the offence committed.
6. A judge must try and synthesise all relevant factors and here significant leniency can be extended to the offender both in the term of the offence and by a finding of special circumstances. There are clearly many aspects that call for such a finding and a long period of supervision on parole. That said the minimum period spent in custody must properly reflect the gravity of the offence and the other purposes of sentencing.
7. I do not lose sight of the need for successful rehabilitation. I recognise that gaol is a setback, which will cause considerable problems for the offender on her path to rehabilitation. Her time in custody will be more difficult for her than the average notional offender. It is with a heavy heart that I conclude that mitigating circumstances can go only so far.
8. This crime was planned to some degree. Although a secondary player Taylor participated throughout. Considerable violence was involved. Harm was intended and harm was caused. Only full time custody could properly reflect what was done, vindicate the dignity of the victim and express the community's approval of what occurred.
9. The sentence will be reduced by 25% to take into account the utilitarian value of the offender's plea of guilty. The sentence will be reduced by a further 4% for past assistance and 5% for future assistance. Despite the apparent mandatory terms of s 25D Crimes (Sentencing Procedure) Act 1999 the specification of determining days or hours is not necessary. There is no need for absolute arithmetical precision in the assessment sentence and I have rounded down to the offender's benefit.

Orders

1. You are convicted. Taking into account the plea of guilty, the assistance, questions of parity, the term of the sentence that would have been imposed before applying the statutory discounts was three years and six months. The total discount is one of 34% which means the term of the sentence is two years and three months.
2. The formal orders are that there will be a non‑parole period of one year and one month which will date from today, 12 June 2020. You will be released to parole on 11 July 2021. The balance of the term of one year and two months will expire on 11 September 2022.
3. The total sentence therefore is 2 years 3 months, comprising the non-parole period and the balance of the sentence.
4. A copy of Dr Furst's report (Exhibit 1) is to accompany the warrant.

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: 10 August 2020