Richards v R

Court of Criminal Appeal (NSW)|2023-09-21|Before: Ward P, Davies J, Adams J

e Nicole Richards (Applicant) The King (Respondent) Representation: Counsel: S Kluss (Applicant) J Styles (Respondent)

Solicitors: Ross Hill and Associate Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2021/306674 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 4 April 2023 Before: English DCJ File Number(s): 2021/306674

Judgment

WARD P: I agree with Davies J, for the reasons that his Honour gives, that ground 1(b) of the grounds of appeal (as restated during the course of argument - see [23] below) is made good and hence that it is necessary for this Court to re-sentence the applicant (and not necessary separately to address the other grounds of appeal).
That said, I also agree with Davies J in relation to ground 4 that no denial of procedural fairness has been established in relation to the sentencing judge's finding as to remorse. A forensic decision was clearly made by the applicant's counsel not to adduce evidence from the applicant but to rely on the reports that had been obtained. It was not incumbent on the sentencing judge, having enquired as to whether the applicant was to be called as a witness, to indicate her thinking on the issue of remorse in the course of the hearing (whatever may be the practice of others in that regard).
On re-sentence, I agree with the conclusion that Davies J has reached that no lesser sentence than that imposed by the sentencing judge is warranted. I have reached that conclusion having regard to: the factual findings of the sentencing judge, with which I agree; the objective seriousness of the applicant's offending conduct (which I consider to be above the mid-range, noting the seriousness of the injury that the applicant was soliciting to be inflicted on her ex-husband); the moral culpability of the applicant (which is only somewhat reduced by reference to the diagnosed mental conditions with which she has been diagnosed, noting that no direct link between her conditions and her offending was perceived by the experts); and the applicant's subjective circumstances. I accept that a 25% discount for the early guilty pleas is appropriate; that the applicant has shown some remorse (though seems still to have sought to justify her actions); and that her prospects of rehabilitation (if she remains able to avoid relapse into alcoholism) are good.
Taking those matters into account, and for the reasons that Davies J has given, I would grant leave to appeal but dismiss the appeal.
DAVIES J: The applicant pleaded guilty in the Local Court to two offences as follows:
Solicit a person to kidnap, detain and threaten to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years' imprisonment.
Contravene prohibition in an apprehended domestic violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for this offence is 2 years' imprisonment.
The first of these offences was committed for sentence to the District Court. The second offence was placed on a s 166 certificate to be dealt with by the sentencing judge when sentencing for the first offence.
On 4 April 2023 the applicant was sentenced by Judge English as follows: For the offence contrary to s 319 of the Crimes Act, imprisonment for 3 years and 3 months commencing 21 July 2022 and expiring on 20 October 2025 with a non-parole period of 2 years expiring 20 July 2024. The sentence for the offence on the s 166 certificate was imprisonment for 15 months commencing 21 July 2022 and expiring 20 October 2023.

The offending

On 3 November 2020 the applicant was subject to a Queensland Protection Order, with her husband JR listed as the aggrieved person. The order required her to be of good behaviour towards JR and not commit domestic violence against him. It also prohibited her from contacting or attempting to contact or asking someone else other than a lawyer to contact JR except in certain circumstances irrelevant for the present offending.
The applicant and JR had been involved in acrimonious Family Court proceedings. Part of those proceedings involved apportioning settlement of a property apparently jointly owned by the applicant and JR in Nicholls Avenue, Beerwah.
At some stage prior to 2 August 2021, the applicant contacted an acquaintance, AB, asking him to arrange to "kill her ex-husband, JR" and offering to pay AB. The applicant handed AB two handwritten pieces of paper with some instructions in that regard. AB provided the information and the pieces of paper to the police.
It seems that the police then made an arrangement for a police informant, BB, to approach the applicant, or to be approached by her, and surveillance devices were placed in BB's motor vehicle. The evidence which formed the basis for both charges came from lawfully recorded conversations between the applicant and BB in the motor vehicle on two separate occasions on 12 August 2021.
It appears that BB was purportedly acting as an agent or go-between for his "cousin", who BB intimated would be carrying out the applicant's instructions. Although the applicant changed her instructions to BB during the course of the conversations on a number of occasions, the substance of what she was asking BB's cousin to do was to place a false order for work with her husband, so that he would come to premises where he would then be detained and threatened, unless he arranged to notify his solicitor that he agreed to the apportionment of the property the applicant was insisting on. Thereafter, it seems, he was to be detained until the proposed settlement was put in place.
In the course of the conversations the applicant explained the reason she wanted JR kidnapped. She wanted it to be so scary that "he's not going to refuse"; that she didn't care if they "put a gun down his mouth". She wanted him "threatened with lifelong injuries" "like fucking dribbling or limping". She did not want him killed, just threatened that "he'll be six feet under". When BB asked what to do if JR changed his mind, the applicant asked if he could be made to "look like he was in a car accident". BB said if they proceeded to kill JR it would cost $50,000.
The applicant then left and took a number of hours to think about it. She apparently did so over lunch where she consumed a number of glasses of wine. In the second conversation with BB she told him only to "belt the cunt" and she would pay $20,000.
Subsequently on 9 October 2021, she spoke to her nephew and told him about the arrangement she had made with BB on 12 August 2021. She said to the nephew: Well, I've tried to do it, I've tried to work it out, where I'm not kind of involved with it, like, you know, slip of the brakes or something like that, in the car. Oh no, I'd made it so I've already - okay, I'm going to tell you, I'm going to tell you something that I can tell you this because it's not on Snap or anything, and it's not written in a message, but I've got someone lined up. It's going to cost me 5 grand, but they actually book a shower job, and then he turns up at the house, and obviously there is no shower to be done, and they just fucking hold him there until he's made to sign papers so that me and your mum could buy the house, and he does 50/50 with the kids, and unless he signs the papers, he's never going to be allowed to go, and he'll be flogged, like really badly. It's only going to cost me 5 grand.
In other lawfully intercepted telephone conversations where the applicant was a party, the applicant described her frustration with the Family Court proceedings and mentioned her husband being killed or harmed.

Grounds of appeal

The applicant originally sought leave to appeal against her sentence on the following grounds: 1. The sentencing judge, erred in her assessment of the objective criminality of the offences in that: a. the conclusion that the involvement of the undercover operative, in all the circumstances, did not diminished the applicant's culpability. b. the sentence judge erred in failing consider the applicant's mental health at the time of the offence in the assessment of the moral culpability of the offence. 2. The sentences imposed are manifestly excessive and different sentences are warranted at law. 3. Her Honour failed to properly consider the presentence custody and the rehabilitation of the applicant and the principles in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2003) 97 ALJR 107 in the consideration of the imposition of an intensive corrections order. 4. The Applicant was denied procedural fairness in her Honour's assessment with respect to remorse.
At the hearing of the appeal she sought to rely on three further grounds as follows: 5. In sentencing the applicant her Honour deprived the applicant of procedural fairness by failing to indicate to the applicant's counsel or the Crown that she did not intend to resort to an aggregate sentence of imprisonment. 6. In declining to sentence the applicant to an aggregate sentence of imprisonment, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour failed to consider an aggregate sentence of imprisonment to be imposed where the two sentences were to be served concurrently. 7. Her Honour erred in failing to give reasons for declining to sentence the applicant to an aggregate sentence in accordance with s 53A of the Crimes (Sentencing Procedure) Act.

Ground 1: Error in assessment of objective criminality

The applicant's complaint in relation to both parts of this ground of appeal is that her moral culpability was reduced by reason of the involvement of the undercover operative and by reason of her mental health issues at the time of the offending, and by not making such findings the sentencing judge erred in assessing objective criminality. The preliminary difficulty about this ground of appeal concerns the assumption that the assessment of objective criminality involves an assessment of moral culpability.
In Paterson v R [2021] NSWCCA 273 Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing) said at [29]: In relation to ground 1, it is necessary to address how the sentencing judge addressed the submissions of the parties concerning two separate but related concepts of importance to sentencing, namely the "objective seriousness" of an offence and the "moral culpability" of the offender. As its name implies, the former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender's moral blameworthiness for an offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than the former (see: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [54]; Bugmy v The Queen (2013) 249 CLR 571 at [44]; Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57]; Zreika v R [2021] NSWCCA 243 at [55]).
In DS v R; DM v R [2022] NSWCCA 156, one of the applicants submitted that "moral culpability has been held to be an aspect of objective seriousness or gravity of an offence" (see at [63]). The Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) first drew attention to what had been said by Beech-Jones CJ at CL in Paterson and went on to say: [71] …it suffices to note that Muldrock clearly reflects a distinction between the objective seriousness of an offence and the moral culpability of an offender, although it arose in a particular statutory context. [72] Subsequent High Court cases have confirmed this distinction absent the statutory context considered in Muldrock. Bugmy and Munda best illustrate the relationship between an assessment of objective seriousness and moral culpability. In the oft cited passage from Bugmy at [44], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ stated: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult… An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." [73] Their Honours then referred to the discussion by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 of the potential significance of an offender's mental condition to the various sentencing factors, before adding (at [46]): "It does not advance the appellant's case to say, as he does, that the Court of Criminal Appeal was wrong to take into account general deterrence in concluding that Judge Lerve erred in his assessment of the objective seriousness of the offence. Consideration of the objective seriousness of the offence must take account of the fact that this was an offence committed by a prisoner against an officer in a prison. An issue for determination on the remitter is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that Judge Lerve allowed." [74] It is notable that the discussion of the objective seriousness of the offence (of inflicting grievous bodily harm with intent) related to the commission of an offence by a prisoner against a prison officer. There is no suggestion in Bugmy that the appellant's deprived background affected an assessment of the objective seriousness of his offence, although it was found to reduce his moral culpability. [75] Like Muldrock, Bugmy was a case from New South Wales and involved an offence that carried a standard non-parole period. However, Munda concerned Western Australia and had none of the statutory equivalents. In Munda, French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ found (at [57]): "This observation by McLure P is particularly poignant in this case, given the very lenient sentence imposed on the appellant in May 2009 and its evident insufficiency to deter the appellant from the repetition of alcohol-fuelled violence against his de facto spouse, or to afford her protection from such violence. The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending. It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree". (emphasis added) [76] The reference in this passage to the observations of McLure P is to her Honour's statement in the judgment appealed from that "addictions ordinarily increase the weight to be given to personal deterrence (and/or community protection) because of the associated increase in the risk of reoffending" (Western Australia v Munda (2012) 43 WAR 137 at [65]). [77] Again, this passage from Munda reinforces that an assessment of the seriousness of the offending and the moral culpability of the offender are separate but related steps. Their Honours held that a reduction in the offender's moral culpability from being affected by an environment in which the abuse of alcohol was common, was to be "balanced with" (or against) the "seriousness of the … offending". If DM's contention were to be accepted, then the effect of being raised in that environment on the offender's moral culpability would correspondingly reduce the seriousness of the offending rather than be "balanced" with the seriousness of the offending. [78] Other High Court authorities since Bugmy and Munda that relate to Victoria, and which did not involve the application of statutory provisions similar to those considered in Muldrock, confirm the above analysis of the relationship between the two concepts. Hence, in Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [53], Kiefel CJ, Bell and Keane JJ found that the Victorian Court of Appeal was correct in concluding that the current sentencing practices in that State for incest "did not reflect the objective gravity of the offending", but that its conclusion that the range had to apply in the case the subject of appeal was "not warranted by the need for reasonable consistency in the administration of criminal justice … because the range was seen to reflect a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence, and the moral culpability of the offender". Again, this statement is inconsistent with the proposition that assessment of moral culpability is a component of the assessment of objective seriousness. [79] Similarly in Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [39], Kiefel CJ, Bell, Keane, Nettle and Edelman JJ observed, in relation to an applicant for parole who had been convicted of murdering a policeman: "Whether the deceased officer was a police officer who at the time of the murder was performing duties or exercising powers of a police officer or whose murder was connected with his or her role are all matters critical to the assessment of the nature and gravity of the crime and at least in some cases also the prisoner's moral culpability. Thus they should be readily apparent from the sentencing remarks." (emphasis added)
What was said in DS v R; DM v R was recently followed in Camilleri v R [2023] NSWCCA 106 at [13] and [14] per Adamson JA, at [25] per Hamill J, and at [189] per Cavanagh J.
During the course of submissions, what was said in DS v R; DM v R was drawn to the attention of counsel for the applicant. Counsel then indicated that ground 1(b) was misstated, and that the ground should have asserted that no account was taken by the sentencing judge of the applicant's mental health issues when assessing her moral culpability. Counsel said that ground 1(a) was intended to be that there had been a failure on the part of the sentencing judge to take account of the principles from R v Taouk (1992) 65 A Crim R 387 at 404 when assessing the objective seriousness of the offending.

(a) The undercover operative

In relation to the submission made to the sentencing judge on the applicant's behalf concerning the involvement of the undercover operative, her Honour said: It is submitted on behalf of the offender that it was BB who facilitated the conversations, and that there were elements of entrapment, which should amount to a mitigating factor, as there was the real possibility that the offence would not have been committed if police had not, in some way, facilitated it. I reject that submission. As is clear from the facts, it was the offender who made the approach to solicit someone initially to kill her husband. I make perfectly clear the fact she is not charged with solicit to murder, those facts simply set out the background as to how the matter for which she is to be sentenced is founded. What that demonstrates, of course, is that the criminal behaviour was entirely her idea. ...Those initial steps taken by her are inconsistent with the suggestion that she was encouraged or entrapped in any way by BB. When the first proposal was not an option, she had no hesitation in coming up with the suggestions as to what should occur, and how, and indeed, nominated the amount to be paid, not only to the person contacted to kidnap the intended victim, but a further sum to be paid to another person, who was to remain with the intended victim for a week. Her intention was clear, to ensure that the intended victim signed Court papers which would bring about an outcome which she desired, rather than perhaps, the one considered to be just and equitable, or to be determined by a Court of law.
The applicant submitted in this Court that what the sentencing judge said about the involvement of the undercover operative showed that her Honour limited her consideration to the initiation of the meeting offence and not to the critical issue of the continuing involvement of the police operative in the conversation constituting the offence. Reference was made to what was said in Taouk in relation to the issue of whether, but for the assistance, encouragement or incitement offered by the police officer, the offender would not have done what he or she did.
The applicant submitted also that the sentencing judge failed to consider the role of the operative in her criminality by engaging with her, by seeking that she define her requirements, by seeking details as to the mechanisms of the proposal, and on occasions by empathising with her. The applicant submitted that the relevant consideration was the participation in the conversations with the operative rather than the initial reason for the meeting. In that way, it was submitted, the sentencing judge had not properly assessed the issue of the elements of entrapment in a mitigatory sense that were present in the factual scenario.
In Taouk, Badgery-Parker J (Clarke JA and Abadee J agreeing) said at 404: [W]hen it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability.
Although the sentencing judge did not refer to Taouk by name, it is clear from what her Honour said at [24] above that she was applying the principles set out in that case. Both parties had referred to Taouk in their submissions to the sentencing judge. How the involvement of BB impacted on the finding of objective seriousness was entirely a matter for the sentencing judge: Jomaa v R [2022] NSWCCA 112 at [25].
A reading of the conversations between the applicant and BB entirely justifies the conclusion the sentencing judge reached that the applicant was not encouraged or entrapped in any way by BB. It was not only the initial steps which justify that conclusion. BB took a fairly passive approach to the matter generally by merely asking open questions about what the applicant wanted to do. In that way he was "properly inquisitive": R v Anderson (1987) 32 A Crim R 146 at 155. It was necessary for him to have behaved in the way he did to maintain the pretence of who he was. As the Crown submitted, BB did nothing to induce or extend the conduct of the applicant. In fact, the price BB put on the exercise of $50,000 might have been thought to be a disincentive to the applicant. When she said that she did not have that much money, BB did not reduce the asking price.
Contrary to the ground of appeal as framed, the sentencing judge nowhere concluded that the involvement of BB did not diminish her moral culpability. Her Honour did, on the other hand, conclude, that the offence fell above the mid-range of objective seriousness. Not only was such a finding entirely within her Honour's determination, it was amply supported by the evidence.
I would reject ground 1(a).

(b) The applicant's mental health

Tendered on the applicant's behalf at the sentence hearing was a report from Dr Olav Nielssen dated 11 December 2021, a report from the psychologist, Patrick Sheehan dated 1 December 2022, and a report from the psychologist, Karen Weaver dated 6 February 2023.
Dr Nielssen diagnosed the applicant as suffering from Alcohol Use Disorder in early remission, Anxiety Disorder, and Depressive Illness. Dr Nielssen then set out the bases for each diagnosis. In the course of so doing he said: The further diagnosis of an anxiety disorder and more recently diagnosed post traumatic stress disorder, is based on the symptoms described by Ms Richards and the information in the various medical records.
Mr Sheehan thought her primary diagnosis was a Generalised Anxiety Disorder and comorbid Persistent Depressive Disorder. He said her condition was in partial remission with the assistance of multimodal therapeutic support. He said that the applicant also reported symptoms of Post Traumatic Stress Disorder, but the source events of those symptoms were diffuse and often not in keeping with trauma as defined in DSM-V. Mr Sheehan said he could not exclude such a diagnosis, but it was less clear than her other diagnoses.
The report from Ms Weaver briefly summarised the emergence of her psychiatric symptoms, noted that she was obviously anxious about the outcome of the sentence proceedings, but said that she seemed to be coping quite well, and was not using alcohol to cope.
The sentencing judge said of this material: She was referred to Dr Olav Neilssen for assessment. The assessment took place in November 2021, when she was still in custody. In the history recorded, the offender said, "In my head, I was not serious, but they have made it serious. I am just a person who has had enough, and I've tried to do it the right way." She says she had experienced anxiety and depression since her teenage years, including post-natal depression, and that she commenced to abuse alcohol in her teenage years, following separation from her parents when they moved to Queensland and she remained in New South Wales to complete her schooling. Thereafter, she had little to do with her parents, particularly her father. She has had a fractured relationship with her mother in more recent times. She does, however, enjoy a close relationship with her only sister. She reports losing friends due to her alcoholism, and hints she would drink alone. Attempts in the past to abstain from abusing alcohol had only been "half-hearted". Upon her admission into custody, following arrest, which was during COVID, she went through severe withdrawal. She has, in the past, been prescribed Zoloft for depression and medication to manage her symptoms of anxiety. She has also been prescribed Diazepam and Seroquel. There has been one attempted suicide by overdose in her twenties, and she was taken to hospital and discharged but she did not recall whether she received any after care. She has had a number of admissions to hospitals on the Sunshine Coast for alcohol-related illness, mainly acute intoxication. I also note that she had apparently been admitted to Coffs Harbour Hospital in February 2021, following another attempted suicide. She has a history of employment, working as a nanny, in the hospitality industry, but says she was limited in what she [did] due to her anxiety. She has also worked as a teachers' aide, and she had a horticultural business on the Sunshine Coast. Following the interview with Dr Neilssen, he diagnosed her as suffering from alcohol use disorder in early remission, anxiety disorder and a depressive illness. She was also referred for psychological assessment to Big Picture Psychology and a report under the hand of Patrick Sheehan, a forensic psychologist, dated 1 December 2022 has been tendered. There is little difference in substance between the reports and the opinions. In his opinion, the offender is diagnosed as suffering from alcohol use disorder in early remission, anxiety disorder and a depressive illness. What is of concern is the opinion of the psychologist, Patrick Sheehan, that the offender's mental health may require close scrutiny, and added support in the event her Family Court matter is resolved badly for her. It is the very issue which brought about her offending behaviour. She has written a letter to the Court. She was bail refused following her arrest, and she spent approximately four months in custody. She was released to bail and under treatment with Odyssey House. She completed the program at Odyssey House on 27 June 2021. She found the conditions at Odyssey House more onerous than gaol.
The applicant submitted that, although her Honour made reference to that evidence which discussed her mental health, she did not go on to say what impact that evidence had on any assessment of the applicant's moral culpability, nor how that evidence was applied when her Honour came to impose the sentence she did.
The Crown submitted that the evidence did not make any connection between the mental health difficulties the applicant had and the offending. The Crown drew attention to what was said in DS & DM v R at [91]: In many, perhaps most, cases there will be nothing about the circumstances of the offender that could warrant any diminution from their moral culpability that ordinarily follows from the commission of the offence in question. For that reason, it may not be necessary for a sentencing judge to always refer to it.
The applicant provided written submissions to the sentencing judge, setting out various authorities including Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, drawing attention to the psychiatric and psychological reports, and submitting that her moral culpability was reduced by reason of the diagnoses of the experts. In its submissions to the sentencing judge, the Crown accepted that the applicant had the mental health issues but submitted that there was no causal link between them and the offending.
In my opinion, this ground as ultimately reformulated as a failure by the sentencing judge to give consideration to the applicant's mental health issues and their impact on her moral culpability, should be upheld. That issue was expressly raised before the sentencing judge. It was not doubted by the Crown that the applicant suffered from the mental health issues identified and diagnosed by the experts. Certainly, there was an issue about whether there was a causal link between them and the offending. However, the sentencing judge merely noted the evidence without saying how it was used in reaching the sentence that was imposed. Although her Honour said that the applicant was "not an inappropriate medium for general deterrence", no reasons were given for that conclusion.
It was clear from the expert evidence that at least some of her mental health issues were bound up with what she described to the experts as physical and sexual abuse from her husband during the marriage. The offending came about directly from the acrimonious Family Court proceedings in which the applicant was involved. Indeed, the sentencing judge noted the concern from Mr Sheehan's report, that her mental health was related to the Family Court proceedings. When that link was noted, it was incumbent on the sentencing judge to make an assessment of whether or not those mental health issues impacted on her moral culpability and, if they did, to what extent.
In Moiler v R [2021] NSWCCA 73, Button J (Basten JA and Davies J agreeing) said: [59] It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it. … [61] In similar vein, whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other.
In Luque v R [2017] NSWCCA 226 Hamill J said at [114]: [A] sentencing Judge dealing with evidence of an offender's mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. In other respects, the impact of an offender's mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender's difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.
Her Honour did not reject the notion of diminished moral culpability on the applicant's part because the experts had not drawn a link between the mental health issues and the offending; her Honour simply made no mention of the applicant's moral culpability. Where the issue had squarely been raised in submissions made to her she ought to have done so. This was not an ex tempore judgment delivered at the conclusion of the sentence hearing.
I would uphold ground 1(b).

Other grounds of appeal

Since error has been found, it is necessary for this Court to re-sentence the applicant. In those circumstances, except for ground 4, it is not necessary to consider the other grounds of appeal. Submissions made in relation to ground 2, asserting manifest excess, will be considered when undertaking the resentence exercise. Grounds 3, 5, 6 and 7 were said to be all dependent on this Court upholding the grounds asserting manifest excess, which was itself said to be largely informed by success on grounds 1(a) and 1(b) as reformulated at the hearing of the appeal (see [23] above).
It is necessary, however, to say something about ground 4 which alleged a denial of procedural fairness in relation to the finding concerning remorse. If such a denial was demonstrated, it might have undermined the sentencing process. Depending on what would follow from such a denial, the matter may have to be remitted to the sentencing court. Whilst ground 5 asserts a denial of procedural fairness also, that issue does not arise because the applicant will be resentenced by this Court.

Ground 4

In his report, Mr Sheehan reported the applicant saying: I hate to go through the details of what I did. I look like a very nasty person. Everything about it was wrong. I had no right to do that. Its [sic] disgusting behaviour. … It could have gone really bad, he could have wound up dead. The kids could have been caught in the cross fire. Its [sic] just terrible. I'm so ashamed I did all that.
In the letter to the sentencing judge, the applicant said: On 28 October 2021 I was arrested for the offences that I considered nothing but absolutely awful and I regret more than I can say. … I have listened to the recordings and they are unacceptable on any level, I can't hide from my choices. I am very sorry to all those around me that have been affected by my choices. I chose to drink when I should have sought counselling. I chose to allow my mind to continually focus on myself and my problems when I should have thought of others. I wish to apologise to all, including my ex husband.
In the Sentencing Assessment Report (SAR) the following appeared: Ms Richards expressed considerable repugnance regarding her behaviour. She attributed a lot her actions to her alcohol abuse at the time, nevertheless accepts her offending was wrong and stated she felt disgusted by her actions.
In the written submissions to the sentencing judge, the applicant said this under the heading "Section 21A(3)(i) the offender has shown remorse": The offender has pleaded guilty and expressed real and significant remorse to the professional report writers and the author of the SAR. She has demonstrated insight and consented to final apprehended domestic violence orders (AVO) which is a further indication of her accepting responsibility and remorse. It is anticipated there will be further material in this regard.
In the written submissions by the Crown to the sentencing judge the following appeared: 16. The Offender has expressed remorse in a number of self-report hearsay documents. The Crown have not objected to those aspects of those documents; however, it is noted that, at the time of the preparation of these submissions, it is not in the form of sworn evidence, and the weight given to the matters contained in those documents is a matter for the Court. In Lai v R [2021] NSWCCA 217 at [79] - [80] per Bellew J, states, There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents. It follows that in my view, such a practice is to be strongly discouraged. 17. What is required is for the Offender to provide evidence of remorse - and it is not a requirement that the Offender give evidence, but the sentencing judge is entitled to take into account the fact that the Offender has not given direct evidence: Mun v R [2015] NSWCCA 234
At the sentence hearing, the sentencing judge asked counsel for the applicant if she was calling her client, and counsel said that she was not. Counsel then addressed some of the matters in her written submissions. In the course of doing so she said this: And in my submission the case would be open to a finding of remorse given the consistency of accounts that have been made to the various professionals including the author of the Sentencing Assessment Report.
In her ROS, the sentencing judge said: I allow a 25% discount for her pleas. They have significant utilitarian value. They demonstrate contrition. I find, however, that she is only somewhat remorseful, as she continues to seek to lay the blame for her offending behaviour in part, at the feet of BB, and more perhaps, alcohol. While she apologises to the community and her ex-husband, she offers no insight into the impact her offending would have had upon him and their children. Having heard the victim impact statement read out, she should now be in no doubt.
In this Court, the applicant submitted in writing that the Crown made no submission to the sentencing judge that the applicant was not remorseful, and the sentencing judge did not raise any issue pertaining to the submission of the applicant that there was no remorse. The applicant submitted that she was denied procedural fairness by being denied the opportunity to be heard "in relation to the extent of the remorse shown by the applicant". The applicant submitted that she was not put on notice that the sentencing judge might make a qualified finding. She submitted that had she been put on notice she could have provided relevant authorities to show that she was not required to give sworn evidence about the matter.
In oral submissions, the applicant submitted that, if the sentencing judge was not going to accept that she was remorseful, her Honour should have indicated that so that the applicant could call evidence, which might have been further evidence or might have been the applicant giving evidence. The applicant submitted that there was a practice in the District Court where some judges indicated to counsel that they did not put any weight on the evidence provided and "make the invitation to call the offender". The applicant submitted that there was evidence of clear remorse in a number of the documents put forward by her to the sentencing judge.
There are two answers to this ground of appeal and to the submissions made in support of it. First, the sentencing judge did not find that the applicant was not remorseful. Her Honour found that she was "only somewhat remorseful" for reasons her Honour gave. It is part of the sentencing judge's responsibility to assess and determine whether and to what extent an offender is remorseful. A challenge to such a determination can only be made if there is error of the House v The King (1936) 55 CLR 499 type. No such error is demonstrated here. It was open to the sentencing judge on the material she had to find that the applicant had some limited remorse only.
Secondly, sentencing proceedings are adversarial proceedings. Although the rules of evidence do not apply, the parties are bound to present all of their evidence on any matter in respect of which they want a favourable finding. In Edmonds v R [2022] NSWCCA 103 Dhanji J (Macfarlan JA & Rothman J agreeing) said at [26]: While a sentencing judge is not bound by the conduct of the parties, he or she is presiding over adversarial proceedings. In an adversarial context, the parties will make decisions as to the material to be put before the Court, and will join issue with respect to matters of fact and law. Where no issue is joined between the parties, the avoidance of practical injustice (and thus procedural fairness) will generally require a party to be made aware if issue is to be taken by the sentencing judge.
If remorse was to be found as a mitigating factor as the applicant contended in her written submission to the sentencing judge, what was required by s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) would need to be established on the balance of probabilities.
In the present matter, the Crown had made clear in its written submissions what ought to have been known to those acting for the applicant, that an offender took a risk, if the offender did not give evidence of remorse, that the sentencing judge would accord less weight to unsworn evidence, much of which in this case was second-hand. That was in accordance with well-known authority in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369, R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 and Imbornone v R [2017] NSWCCA 144 at [57]. Nothing said in Lloyd v R [2022] NSWCCA 18 casts doubt on the approach in those cases; the judgment simply makes clear that what was said in those cases is not a principle. As McClellan CJ at CL said (Hislop and Price JJ agreeing) in Pfitzner v R [2010] NSWCCA 314 at [33]: In Butters [Butters v R (2010) NSWCCA 1] the court made plain that s 21A(3)(1) of the Crimes (Sentencing Procedure) Act does not require an offender to give evidence before a finding of remorse is available. However, it does not follow that if an offender does not give evidence and accordingly is not exposed to cross-examination that the sentencing judge may not give significant weight to the lack of evidence from the offender when determining whether a finding of remorse should be made. It is one matter for an offender to express remorse to a psychologist and a psychiatrist or even when interviewed by the police and quite another matter to give sworn evidence and be cross-examined about the issue. When interviewed by the police or by a psychiatrist or psychologist it is unlikely that the offender's response will be challenged. It may be otherwise when the offender gives evidence. Furthermore, an issue of remorse may be susceptible to evaluation by consideration of an offender's demeanour an opportunity which will be denied the sentencing judge unless the offender gives evidence.
In addition, the sentencing judge asked counsel if she intended to call the applicant, and counsel said that she did not.
There was no denial of procedural fairness. Judges cannot be expected to indicate how they are thinking on this or that issue so as to enable some change of course by a party in terms of calling further evidence. A sentence hearing would be unworkable. It would frequently require re-opening of a party's case, or an adjournment to obtain further evidence, during the course of oral submissions. It may result in prejudice to the Crown. District Court Judges do not have the leisure to conduct sentence proceedings in that way.
The issue of how much weight ought to be given to the applicant's remorse was clearly identified in the written submissions. Notwithstanding what the Crown said in those submissions, the applicant's counsel chose a course of not calling her client and relying on what was contained in the various reports. The position might have been different if the Crown had agreed that the applicant was remorseful but, nevertheless, the sentencing judge found otherwise without any warning being given.
I would reject this ground.

Re-sentence

I agree with the factual findings made by the sentencing judge. The idea to deal with the applicant's husband in some way to achieve the applicant's end in relation to the jointly owned property emanated from her alone. So much is clear from the initial approach she made to AB. As noted earlier, nothing in the behaviour of BB induced, encouraged or entrapped the applicant.
Many, if not most, of the cases involving s 319 of the Crimes Act, concern attempts to provide false evidence. The present case is a serious example of behaviour that constitutes contravention of the section, involving as it does, intention to threaten and/or inflict serious injury on the victim so that justice will be perverted. The objective seriousness is above the mid-range.
By reason of the evidence from the psychiatrist and the psychologists, it is necessary to give consideration to whether the moral culpability of the applicant is reduced. As noted earlier, none of the reports of the experts, nor the SAR, makes any link between the diagnosed conditions of the applicant and the offending. However, it is apparent that the applicant has suffered from depression and anxiety since her late adolescence, and she turned to alcohol to deal with those issues. The material in the reports from Dr Nielssen and Mr Sheehan point to the marriage becoming an unhappy one, with violence on both sides.
The report of Dr Nielssen details suicide attempts when the applicant was in her twenties (by overdose) and again in early 2021 (by walking into traffic), both of which resulted in hospitalisation and treatment by mental health teams.
In his report, Mr Sheehan said: Her functioning has become increasingly compromised since 2018 in conjunction with her marriage deterioration, and evidenced by records of emerging criminal charges and hospital presentation.
In those circumstances, and where the offending resulted from, and was related to, the break-up of the marriage and the acrimony surrounding the property settlement, some small allowance should be made for the effect of the applicant's diagnosed conditions on her offending, with a consequent reduction in her moral culpability. However, that does not mean that general deterrence is not a significant consideration, given that the offence itself is one that strikes at and undermines the system of justice, and given also the manner in which the offence was committed in the present case. It was a serious attempt of self-help which the whole system of law is designed to avoid.
I would accord the applicant a 25% discount for her early pleas which show some contrition. However, like the sentencing judge, I do not consider that she demonstrates more than partial remorse. Her statement to Dr Nielssen that "In my head I was not serious….but they have made it serious…I am just a person who has had enough", together with the attribution of her actions to alcohol, is all a form of self-justification.
I consider her prospects of rehabilitation are good, especially because she has completed the Odyssey House program, and has been abstinent from alcohol since her arrest. I consider that she is unlikely to offend. I would make a finding of special circumstances to provide a longer period to assist her rehabilitation and to minimize the risk of relapse into alcoholism.
The applicant submitted that the statistics for offences contrary to s 319 of the Crimes Act lay in the 2 to 3 year range. The applicant also pointed to the cases identified by the Crown in a schedule to its submission to the sentencing judge, and submitted that, whilst some of the cases resulted in higher sentences than in the present case, the bulk of the cases involved sentences of 3 years or less, where the undiscounted starting point in the present case was 4 years and 4 months.
Of the statistics for offences contrary to s 319, Simpson J (as her Honour then was) said in Khoury v R [2011] NSWCCA 118 (Davies J and Grove AJ agreeing) at [88]: The sentences the subject of the statistics do not appear to reflect the serious view this Court has repeatedly and consistently expressed concerning the gravity of offences of this kind: see R v Taouk (1992) 65 A Crim R 387 at 415; Marinellis v R [2006] NSWCCA 307 at [10]-[11]; Taylor v R [2007] NSWCCA 99 at [39]-[40]. See also R v Einfeld [2009] NSWSC 119, per James J at [183] (upheld on appeal: Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1). That remark was endorsed in R v Reid [2016] NSWCCA 151 at [45] by Hoeben CJ at CL, R A Hulme and N Adams JJ. When the maximum penalty for this offence is 14 years' imprisonment, what Simpson J said is perhaps not surprising.
I have considered the cases in the Crown's schedule and others. The vast majority of the cases do not involve threats of violence. The present offence involved an initial approach to AB asking him to arrange to kill the applicant's husband, two lengthy recorded conversations with BB where the applicant set out what she wanted to happen to her husband, and a conversation with her nephew some two months later where the applicant still considered that the arrangement was on foot. It was not something which can be explained away by the applicant behaving foolishly when inebriated at one point in time.
Notwithstanding the allowance made for a reduction in the applicant's moral culpability, and her other positive subjective matters, I consider that no lesser sentence is warranted in law and should have been passed.

Conclusion

I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
N ADAMS J: I agree with the orders proposed by Davies J for the reasons provided. This was a serious example of an offence contrary to s 319 of the Crimes Act 1900 (NSW).

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: 03 November 2023

Crime (Sentencing Procedure) Act 1999(NSW)s 21A

Crimes Act 1900(NSW)s 319

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