Circumstances of the offence
5 On 9 December 2004, Mr Christopher Carroll was the victim of a home invasion in which he was assaulted and property including a computer was stolen. The offenders involved in the home invasion were Christopher Whyte and Patrick Crouch. Shortly after the commission of the home invasion offence, Crouch heard that the police were looking for his vehicle and he went to Lenard for help. Crouch is Lenard's uncle. Crouch was arrested on 30 December 2004 and was refused bail. Shortly thereafter, on 5 January 2005, Carroll received an email and a letter, which his Honour described as "the beginning of an extortion campaign that was organised and carried out by the offenders Lenard and Fail".
6 The extortion campaign involved eight telephone calls, two letters and two emails, in which money of up to $200,000 was demanded from Carroll in exchange for the return of his computer that had been stolen by Crouch and Whyte. In the initial letter, Carroll was threatened that if he did not comply with the directions given in it, his computer would be released to the authorities. The underlying basis of the threat to release the computer to the authorities was a belief that it contained child pornography.
7 In addition to the demands for money and the threats relating to the release of the computer to the authorities, demands were also made that Carroll change his police statement regarding the home invasion, so as to exculpate Crouch.
8 His Honour found that Lenard made three of the eight telephone calls to Carroll. Whyte made one telephone call, and another person, Sateki Tuipulotu, made two. His Honour found that Whyte and Tuipulotu made the calls at the behest of Fail. There was no finding by his Honour as to who made the other two telephone calls. His Honour found that Fail sent the second of the two letters, in which a demand for payment of $20,000 was made, payment being demanded in the week the letter was sent, with an ongoing payment schedule for the remaining $180,000, as well as demands that his Honour described as being designed "to achieve the objective of securing the release of Crouch from prison".
9 The 'campaign' was attempted to be carried though to effective completion when an arrangement was made with Carroll for a meeting at a somewhat remote location on 3 February 2005, at which the computer would be handed over to him in exchange for $20,000. Fail and Lenard had arranged for Tuipulotu to effect the handover. Fail and Lenard went with Tuipulotu to the arranged location, remaining out of sight during the proposed handover. The three men were arrested that day.
10 His Honour characterised the commission of the offences as involving "quite a deal of planning, cunning and guile". His Honour observed that, although "the one series of activities made up the two offences, they had quite different objectives and the harm caused or intended was directed at different entities". It was agreed by the Crown and counsel for the respondents that his Honour's last-mentioned reference was intended to draw a distinction between the fact that Carroll was the victim of the 'Demand Money' offence and that the affected entity of the 'Interfere with Witness' offence was the criminal justice system itself.
11 In sentencing the respondents, his Honour considered that Lenard and Fail should be treated as equally culpable for both offences. His Honour had regard to the subjective features of each, observing that whilst they were different, they were of broadly similar significance, save that he considered that Lenard had shown remorse sufficient to be reflected in a "slight difference in the sentences imposed". His Honour also recognised that general deterrence was an important consideration in respect of these particular offences.
12 The Crown has appealed on the basis that each of the individual sentences is manifestly inadequate and fails to reflect the objective criminality of the offences. In particular, it was submitted that his Honour erred in three respects: firstly, failing to properly assess the objective seriousness of the offences and giving that factor inadequate weight; secondly, giving undue weight to the subjective circumstances of each respondent; and thirdly, structuring the sentences so that the combined sentences and non-parole periods resulted in a departure from the statutory ratio such that the period in custody was equivalent to only half of the total term.
13 Before considering these specific grounds of appeal, it is appropriate to refer briefly to the principles that govern a Crown appeal and which are relevant to this case. First, error must be shown: R v Tait (1979) 46 FLR 386 at 388; Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] and [109]. It is not sufficient for the appellate Court to consider that some different sentence should be imposed. Secondly, double jeopardy applies, in the sense that a person once convicted and sentenced is, by reason of a Crown appeal, required to be subjected to the sentencing process a second time: R v Allpass (1993) 72 A Crim R 561; Wong and Leung v The Queen at [110]. Thirdly, and it follows from the preceding principle, the sentence which an appellate court is entitled to impose as a consequence of a successful Crown appeal will generally be less than that which would have been imposed by the sentencing court: R v Holder and Johnston [1983] 3 NSWLR 245 at 269; and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [62]. Finally, as a matter of general principle, even if error is found, an appellate court may only re-sentence if some other sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW); R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [79].
14 The Crown accepted that there was no apparent error in his Honour's expression of sentencing principle. However, it was submitted that the sentences imposed were so inadequate that his Honour must have failed adequately to take into account the objective seriousness of the offences, or minimised the objective seriousness having regard to the subjective features.
15 Emphasis was placed upon the fact that the offence of 'Influence Witness' was a serious offence, threatening the integrity of the criminal justice system and thus calling for condign punishment. Further, the offence was committed in circumstances where each of the respondents knew of the home invasion and it took the form of demands on Carroll to change his police statement over a period of one month. It was submitted that the circumstances of the offence were aggravated by the fact that it was carried out in conjunction with the extortion campaign that was being waged upon Carroll for the return of his computer. In relation to the 'Demand Money with Menaces' offence, it was pointed out that it involved a number of threats over a period of time in circumstances where the victim was already vulnerable.
16 The Crown also submitted that there should have been a greater degree of accumulation of sentences, in accordance with the totality principles referred to by the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 and Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15. It was submitted that the extent of the accumulation was insufficient, so that the overall effect of the sentences imposed was to fail to impose a sentence that reflected the totality of the criminality of each respondent. It was submitted that the offences were each of a distinct character and had a different purpose and that there was not such commonality of the elements of the offences as to justify the degree of concurrency allowed by his Honour.
17 The Crown relied upon the statement by this Court in R v Dodd (1991) 57 A Crim R 349 at 354 per Gleeson CJ, Lee CJ at CL and Hunt J that:
"… 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 … The relative importance of the objective facts and subjective features of a case will vary … 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 …"
18 It was submitted on behalf of each of the respondents that there was no error in the approach taken by the sentencing judge. In particular, it was submitted that his Honour assessed the objective seriousness of the offences, describing them as "quite serious" and making a finding, to which I have already referred, that the offences involved "planning, cunning and guile". Further, his Honour took into account general deterrence, particularly in relation to the offence of 'Influence Witness' because of the "strong community interest in maintaining the integrity of the criminal justice system". His Honour took into account the relevant aggravating factors and had appropriately dealt with the relevant subjective circumstances of each.