[2013] HCA 38
Olbrich v The Queen (1999) 199 CLR 270
Queen v Pham (2015) 256 CLR 550
[2015] HCA 39
R v Herring (1956) 73 WN (NSW) 203
R v Simpson [2001] NSWCCA 534
53 NSWLR 704
R v Windle [2012] NSWCCA 222.
Ryan v The Queen (2001) 206 CLR 267
Weininger v The Queen (2003) 212 CLR 629
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 38
Olbrich v The Queen (1999) 199 CLR 270
Queen v Pham (2015) 256 CLR 550[2015] HCA 39
R v Herring (1956) 73 WN (NSW) 203
R v Simpson [2001] NSWCCA 53453 NSWLR 704
R v Windle [2012] NSWCCA 222.
Ryan v The Queen (2001) 206 CLR 267
Weininger v The Queen (2003) 212 CLR 629
Judgment (9 paragraphs)
[1]
Introduction
Joshua White was friends with AJ Nicholls and both Nicholls' wife and his girlfriend, the complainant in this matter. In June 2020 White formed a view that Nicholls' girlfriend had leaked information about him relating to his relationship with his partner.
At about 10PM on 26 June 2020 Nicholls phoned the complainant and asked her to come to his workshop in Unanderra so they could "talk." She arrived about 11PM. Three men were present when she arrived - White, Nicholls and Rutherford.
Immediately on arriving she engaged with the men in a heated verbal argument about what the complainant had "leaked". The situation escalated. She was detained and threatened by all three men. For a short period she was tied to a chair. She was assaulted. Her life was threatened and a knife was produced to her. She was however allowed to leave but not after what it is accepted was a short but terrifying ordeal.
The victim complained to police the next morning. White was arrested on 27 June 2020 after he attended Lake Illawarra Police Station of his own volition. In the Local Court he accepted his guilt to a s 86(2)(a) Crimes Act 1900 offence. He adhered to that plea in the District Court on 27 May 2021.
R v White [2021] NSWDC 272 | Case summary | Zoe
What occurred at Nicholls' workshop was video and audio recorded by a security device at the premises. The video portion of the device showed little other than the girlfriend arriving and departing but the audio captured most of what was said.
A "statement of agreed facts" was tendered; so too was that audio recording. While the defence did not object to the tender of the audio recording there was a dispute about who said what at various points. The speaker designations put into the transcript by a police officer were not accepted or admitted. The transcript was tendered as an aid to assist in my determining who said what. I received no other assistance. I was not told anything about the substance of the "leaked" information or who some of the people named in the conversation were or their relationship with the parties or each other. I was left to determine the issues based on the logic of events and how the audio recording related to what was agreed. Neither the complainant nor White gave evidence.
Where a matter put forward in sentencing proceedings is contested, notwithstanding that the Evidence Act 1995 does not apply, it may not be acted accepted unless it is established. The proof of such a fact must occur in the context of the proceeding concerned. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. The High Court also recognised that sometimes a sentencing Court must sentence according to what is known or agreed. This point was expanded upon by in the joint judgment in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [24].
[2]
Facts for sentence
The statement of agreed facts notes that when the complainant entered the office it was White who started questioning her and who yelled at her. The verbal altercation continued and Nicholls got in her face and said "that's it get the rope. He pushed her to a chair. Nicholls held her by the throat. The offender White ran to his van and got a rope. While Nicholls held her to the chair he tied her wrists together while Rutherford tied her ankles. The complainant was pleading with Nicholls. She was able to loosen her bonds and stood. Nicholls pushed her back down on to the chair. He grabbed her jaw. She was in pain and couldn't breathe. He forced her backwards and she hit her head. She tried to leave but Rutherford pushed her away from the door. White then pushed down onto a lounge. She then saw Rutherford holding a small knife.
Soon after, and after receiving more threats, she stood up and left. Further threats were made to her and about her father as she left but she did so without further attempts to restrain her. She complained soon after to friends. She went to the police that morning.
[3]
The audio recording
I have listened to the audio recording a number of times. For the most part what is said is clear. The three men can be distinguished one from the other except when White and Nicholl's raise their voices. When voices are raised I can only distinguish who is who from the context, including what is in the agreed facts. It was clear to me that the early yelling involves White and the complainant. While I could not say exactly who it was threatened to kill the complainant or said "do you want to disappear" or "You are fucking done" or "get in the fucking chair", all these things were said by either White or Nicholls, in the presence of all three men.
Given there was a joint agreement to confront the complainant and given the matter escalated from when White started raising his voice. It matters little who said what. Nicholls was more involved in the physical portion of the confrontation but it was this offender who went and got the rope that all three used to tie her to the chair. After she was able to escape her bonds White pushed her down on the lounge. White was present when the knife was produced. If White did not make the serious threats he was present when they were made and by his actions and presence reinforced what was said.
[4]
Objective seriousness
I could not find beyond reasonable doubt that there was initially a plan to detain the complainant at the workshop. They did however intend to confront her and intimidate her. While this offence informs the acts that then occurred it was not charged and White is not to be sentenced for it.
When the complainant stood up for herself it appears a spontaneous decision was made to detain her. So much can be deduced from White being asked by Nicholls to get a rope. While the detention may not have been his idea he immediately joined in it. Although, the complainant was able to escape her bonds, this had nothing to do with the offenders. She was then forced back on the lounge and the threats to her life and well-being continued. The recording of what occurred conveys the force of the threats made by each offender, with each reinforcing the other, and the complainant's obvious fear and terror. While the detention took only a few minutes it must have been a terrifying ordeal for her. Until the sudden de-escalation of the confrontation she was not to know that the threats were not going to be carried immediately.
White's grievance with the complainant, whatever it was, was the catalyst for what occurred. Three men were involved. She was detained in an isolated warehouse late at night. She was assaulted, although thankfully she suffered no physical injury. A rope was used and a weapon produced to her. The purpose of the detention was to force her to confess she had revealed information about this offender; that is, to obtain a psychological advantage over her. In doing so she was demeaned and her rights as a person ignored.
I cannot accept the submission by Mr Ly, solicitor for White, that White played a "minor role" in offence for sentence. To contrary, as Mr Taylor, solicitor for the Director of Public Prosecutions (DPP) submits; the offender played an active role and he made or reinforced the threats of extreme violence. His role was comparable to the other co-accused.
When offenders are involved in a joint enterprise this does not necessarily mean that each offender is sentenced on the basis their individual actions had the same objective criminality. There can be reasons why one offender is less objectively culpable than others involved: Johnson v R [2010] NSWCCA 124. Here, however there is little to distinguish what was done by White from what was done by the others. While Nicholls did have more physical interaction with the complainant and Rutherford produced the knife, White started the heated verbal confrontation and by his presence and actions reinforced what the others did and added his force to the threats made to the complainant,
[5]
Subjective case
White was born in 1995. He has no criminal convictions. Until this incident he had lived a normal life in the community. He is in a relationship and is a father of two young children. He had worked since leaving school and presently provides for his family. He is a valued employee working full time as a truck driver and machine operator. His referees speak highly of him. They cannot comprehend why he did what he did. Nothing in his past indicates any propensity to violence or any form of crime (a minor traffic matter can be disregarded).
In his letter to me White expressed deep remorse and apologised to his victim. He asked for a second chance. He described his actions as "stupid" and "idiotic." They were that but they were also seriously criminal.
[6]
Submissions
The position of the DPP is clear; regardless of the strong subjective case made for the offender, his remorse and his early guilty plea, only a full time custodial sentence could meet the purposes of sentence, particularly those that call for a deterrent sentence and condemnation of acts where a woman is detained so that a perceived wrong can be righted. Despite the detention taking place for only minutes Mr Taylor notes how serious the courts view such deprivations of liberty and the circumstances in which it took place.
Mr Taylor points to the fear being felt by the complainant. This is abundantly apparent from the audio recording. He notes that the absence of a Victim Impact Statement does not give rise to an inference that an offence had little or no impact on her: s 30E (5) Crimes (Sentencing Procedure) Act 1999. He drew my attention to the maximum penalty of 20 years imprisonment.
Mr Ly, while he concedes the matter is so objectively serious that the s 5 Crimes (Sentencing Procedure) Act threshold had been crossed, contends that a sentence of less than two years could be imposed. If that is done he submits that it would be in the offender's and the community's interest that it be served subject to intensive correction in the community. Community safety he said would be achieved by such an outcome that would have the added benefit of allowing the offender to continue to work and provide for his family.
He noted the early guilty plea that requires a 25% reduction of the otherwise appropriate sentence for its utilitarian value. He submits that I would accept this offence was poorly planned and unsophisticated. He submitted that, when I take into account the offender's otherwise good character and his work and family commitments, community protection could best be served by not sending the offender to gaol. He drew my attention to the Judicial Commission statistics and matters from this court, where full time custodial sentences had not been imposed.
[7]
Synthesis
I have had regard to the statistics and the other cases to which I have been referred by Mr Taylor and Mr Ly. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions of this court is always welcome. The pattern of past sentences for an offence may serve as a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520. In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Bell and Gaegler JJ, said:
"…sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.'' At [47].
I have had regard to the maximum penalty prescribed. It is one guide to how the community view such offences. I have had regard to the decisions of other courts, particularly those designed to give guidance and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to the victim and the community.
I have no doubt that White will not offend again. I have no doubt he regrets was he did and is deeply remorseful. Past behaviour is a good indicator of future behaviour and until 26 June last year White had led a blameless existence. If he is gaoled his family will lose their father and their breadwinner. His family and work life will be disrupted.
I do not underestimate the lived experience of gaol. He has spent 3 days in custody. If imprisoned he will return to an intrinsically violent environment that he is ill-equipped to handle. He will not be made a better man by more time in gaol. Given the present pandemic restrictions contact with family and pro-social friends will be limited. Gaol will be a real punishment.
But here such punishment is deserved. White, in company with two other men, took away the liberty of a woman, who thought he was her friend. He tied her up. He pushed her around. He threatened her and played his part supporting others who threatened her. He took part in threats, including threats she would be killed and disappeared. He along with two other men terrified his victim. While the event was aberrant and took place over only a short period, it must be condemned and retributive punishment extracted.
Retribution is a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them: R v Herring (1956) 73 WN (NSW) 203, at 205.
Further, while the detention was relatively spontaneous White knew the complainant had been lured to an isolated location and did not expect to be confronted by three men. He did what he did for a trivial but personal motive. He ignored his victim's pleas and her obvious terror.
Mitigating factors can 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 crime for sentence. Here the offence was so objectively serious that only full time custody could meet all the purposes of sentencing. That sentence can be mitigated by a finding of special circumstances, to reflect the offender's prior good character and the fact he is unlikely ever to offended again. That said, the minimum period of custody must also properly reflect the gravity of his offence and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]
Further, and very importantly here, sentencing courts have an obligation to not only express the community's disapproval of the offending but attempt by the severity of the sentence imposed to vindicate the dignity of the victim of an offence such as this, committed against a young women who was placed by the offender's in a particularly vulnerable position: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, [52] to [58]
[8]
Orders
You are convicted.
The sentence reflects a reduction of 25% for its utilitarian value. The original term of the sentence was 3 years. After applying a discount of 25%. The sentence reflects a finding of special circumstances. Three days pre-sentence custody is taken into account.
I set a non-parole period of 1 year 2 months commencing 29 May 2021 and expiring 28 July 2022. Offender to be released to parole at the expiration of the non-parole period. There will be a parole period of 1 year 1 month to commence upon the expiration of the non-parole period, and expiring on 28 August 2023. The term of the sentence is 2 years 3 months.
[9]
Amendments
16 June 2022 - Suppression order removed.
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Decision last updated: 16 June 2022