CRIMINAL LAW - sentencing - appeal against sentence - whether sentence manifestly excessive - whether principle of accumulation and totality correctly applied
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Original judgment source is linked above.
Catchwords
CRIMINAL LAW - sentencing - appeal against sentence - whether sentence manifestly excessive - whether principle of accumulation and totality correctly applied
Judgment (3 paragraphs)
[1]
Solicitors:
Kernaghan & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2013/309678
Decision under appeal Court or tribunal: District Court
Date of Decision: 11 April 2014
Before: Frearson DCJ
File Number(s): 2013/309678
[2]
Judgment
BASTEN JA: On 11 April 2014 the applicant, Tracey Karen Taylor, was sentenced by Judge Frearson SC in the District Court on four counts of assault, two being common assaults and two being assaults occasioning actual bodily harm.
Following a trial on five counts, to which the applicant pleaded not guilty, she was acquitted on count 2 but convicted by a jury on counts 1, 3, 4 and 5. The victim of the assaults, Louise O'Brien, was the daughter of a friend of the applicant. She lived with the applicant and her family for approximately three years and eight months from February 2005 until the last day she was seen alive, being 12 October 2008.
It is appropriate to refer to Ms O'Brien by name. Although the law is generally protective of the identity, and hence the privacy, of children involved in criminal proceedings in any way, in some circumstances that protective purpose may have unacceptable consequences. As will be noted below, Ms O'Brien was subjected to degrading and humiliating treatment as a child, which continued after her death. To refer to her in this judgment merely as "the victim", or otherwise anonymously, is to perpetuate the denial of her humanity. While there is a statutory prohibition on the publication of the name of a child to whom criminal proceedings relate, [1] which applies even if the person is deceased at the time of the publication or broadcast, [2] that prohibition does not apply to "an official report of the proceedings of a court" [3] and hence does not apply to this judgment. The application of the statutory prohibition to further publication or broadcasting of details of this proceeding need not be addressed.
Following the trial and convictions, the applicant was given an aggregate sentence of two years and five months with a non-parole period of 15 months, commencing on 6 September 2014. The judge identified indicative sentences as follows: Count 1, 9 months; Count 3, 7 months; Count 4, 12 months; Count 5, 18 months. The notice of appeal, filed on 11 November 2014 alleged a single ground, namely that the sentence was "manifestly excessive."
When the matter came on for hearing, counsel for the applicant indicated that she proposed to argue, in addition to the general ground, that the judge had failed correctly to apply principles relating to accumulation and totality. Whether such principles can properly apply with respect to an aggregate sentence may be doubted, but the applicant was granted leave to file an amended notice of appeal and nothing turns on that question for present purposes.
In fact the grounds of appeal travelled more widely than the matters so identified. Four further factors were relied upon, including failure to give proper consideration to (a) the possibility of a non-custodial sentence, (b) the fact that the applicant suffered from a depressive illness, (c) that the assaults could have been dealt with summarily in the Local Court rather than on indictment and (d) the delay in bringing the charges.
A fifth additional matter requires some further elaboration. It arose from the fact that the victim died while living with the applicant in circumstances where the applicant was charged with being an accessory after the fact to manslaughter. The trial judge, in sentencing her for that offence, said that the applicant and another person had removed the victim's body from her house and taken it to premises in which Patricia Goddard, the applicant's mother, was then living and had placed the body in a bin and buried it in a hole. This was said to have been done to assist Ms Goddard, "so that she might escape responsibility and punishment for the death of [the victim]." (These facts are taken from the judgment of this Court on the applicant's unsuccessful challenge to the sentence imposed on her for that offence: TT v R. [4] ) Although the trial judge in the present matter had knowledge of these facts, they were not recounted in the judgment on sentence, nor was the trial transcript made available to this Court. The parties were content, however, for this Court to place such reliance as was required on the findings set out in the judgment in TT v R.
That offence was relied upon by the applicant in the present proceedings on two bases. One was that that offending was, according to counsel, inextricably intertwined with the facts of the present case. There was, therefore, a need to consider totality by reference to the overall sentence imposed for the present assaults and for the accessory to manslaughter conviction. Secondly, it was said that the trial judge erred in declining to give leniency to the applicant with respect to the assault charges because, at the time of sentence, her criminal record included, amongst other offending, the offence of being an accessory after the fact to manslaughter. That course, it was submitted, was not open to the trial judge, who should have restricted his consideration of the applicant's criminal record to offending prior to the assaults: by its nature, the conduct underlying the charge of being an accessory after the fact to manslaughter post-dated the assaults for which she was being sentenced.
As it is relevant to the submissions made with respect to "totality", it is necessary to record the applicant's sentence on the accessory charge, namely imprisonment for four years with a non-parole period of three years. That was, as this Court noted in TT v R, a "stern" sentence, given that the maximum penalty for the offence was five years. [5]
Before turning to the question of manifest excess, it is convenient to deal with the more specific complaints. First, there is the complaint of delay. As explained in R v Todd [6] questions of delay may require a degree of leniency, as a matter of fairness to the offender, for a range of reasons, including the progress of the offender's rehabilitation during the term of an earlier sentence, the fact that he or she has been left in a state of uncertain suspense as to what will happen and because the crime may properly be characterised as "stale".
These factors do not apply in the present case. Although the charges identified a period of some three years during which the offences were committed, the period of time which had elapsed in respect of any particular offence was not known. During the whole of that period, Ms O'Brien was in the care and control of the applicant, who was, therefore, in the place of a parent. The fact that Ms O'Brien did not complain to authorities of the treatment by her substitute mother is not a factor which the applicant can call in aid in support of leniency. The offences came to light as a result of police investigations following the death of the victim and the discovery of her decomposed and dismembered corpse. The lapse of time from the date of her death until the discovery of the offending resulted from conduct which Hamill J in the earlier appeal described as "remarkably deceptive and callous" and continuing over "a lengthy period of time". [7] She maintained the pretext that Ms O'Brien remained alive until 20 February 2011, being the day when the police discovered the victim's decomposed remains. [8] Thereafter, charges were promptly laid, originally in the same indictment as that including the charge of accessory after the fact to manslaughter. (The assault charges were later severed from the more serious charge.) Finally, this is not a case in which the fresh sentences will interfere with the process of rehabilitation: the trial judge found that "there is no remorse, there is no acceptance of any responsibility at all". In these circumstances, reliance upon supposed "delay" was misplaced.
Secondly, complaint was made that the trial judge declined to take into account the fact that the applicant had "suffered from a major depressive disorder for most of her life." That putative diagnosis was made by Mr Gerry Wenzel, a clinical psychologist, on the basis of "her presentation and the history provided during her clinical psychological assessment". The trial judge noted that the applicant "has never been formally diagnosed for or received treatment for depression." [9] By contrast, the trial judge accepted the psychologist's opinion that "because of the offender's background there was a lack of impulse control", not amounting to a psychiatric or psychological condition that would "preclude the offender from fully appreciating the consequences of her actions and the wrongfulness of her actions." [10]
Mr Wenzel's report was prepared in September 2013 for the purposes of use at the sentencing hearing on her conviction of being an accessory after the fact to manslaughter. The assessment was undertaken "by a video linkup" two days earlier. Although the psychologist noted that there had been a "one hour wait before approval could be obtained to assess her via video link", there was no record of the length of the consultation. Ms Taylor apparently reported that she had experienced "labile shifts in her mood including episodes of depression", but had considered this to be normal and had not at any time spoken to a doctor or psychologist about her "mood disturbance".
Against this background, the trial judge was entitled to reject the putative diagnosis. The complaint appears to be that Conlon DCJ, when sentencing for the accessory charge, had accepted that she suffered from such a condition. All that was said on her appeal from that sentence appeared in the following passage: [11]
"While there was evidence before the sentencing Judge that a psychologist (Gerry Wenzel) was of the opinion that the applicant suffered from a serious depressive illness and had done so for many years, there was nothing in the evidence that required some 'automatic consequence [to follow]' from the presence of that condition ….
… [T]his was not a case where there was a causal link between the condition and the offending such that the objective gravity of the crime, or the applicant's moral culpability, was diminished."
Even if the trial judge ought properly to have accepted the diagnosis (which is not the case) the same assessment should be made: it would not have materially affected the sentence.
Thirdly, it was suggested that the assaults could have been dealt with summarily by a Local Court, which would have been limited to a maximum sentence of imprisonment for two years. That is a factor which may properly be taken into account when sentencing for such offences dealt with on indictment, and indeed it was. The judge accepted that "in this case the availability of the summary jurisdiction is a relevant consideration and it will provide some amelioration of the sentences" [12] , but noted, correctly, that the factor will have a varying operation from case to case. He dismissed the submission that the matters were not serious examples of the particular offences.
All of the sentences were comfortably below the two year maximum available in the Local Court. The suggestion that they should in some manner have been dealt with as if a two year maximum were applicable is wrong in principle: the available range of sentences was not so limited: R v Doan. [13] The judge did not err in this respect.
Fourthly, it was submitted that the trial judge gave no consideration to a non-custodial option, merely concluding that there was "no alternative to gaol". [14] The trial judge had in fact noted the submission that "no additional penalty should be imposed in terms of an extension of the current non-parole period", but had rejected that submission on the basis that there was "serious criminality" that required punishment. He expressly referred to the factors required to be considered pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). The requirement that the Court not sentence an offender to imprisonment unless satisfied that no lesser punishment is appropriate [15] did not require further explication in the circumstances. In any event, the substance of this challenge must stand or fall with a consideration of whether the sentence was manifestly excessive.
Fifthly, it is necessary to consider each of the challenges based on the antecedent sentence for being an accessory after the fact to manslaughter.
There was no inappropriate element of double counting involved. In noting the earlier sentence, the judge also noted the submission that the sentence was "of no relevance at all". He dismissed that submission, saying that it deprived her of "having an unblemished record at the time of sentence", but further stated, "that is the only relevance of it." [16]
Despite that, the judge was careful to note the date on which the extant non-parole period expired, namely 5 December 2014. The new non-parole period was not made entirely cumulative upon the existing non-parole period, but commenced three months prior to the expiration of the existing non-parole period, namely on 6 September 2014. In these circumstances, there can be no complaint either of double counting or failure to have regard to the effect of the existing sentence.
The remaining specific complaint is that the trial judge took account of the conviction for accessory after the fact to manslaughter as a basis for "denying leniency that a person otherwise would receive for having an unblemished record." He recognised that the conviction was, in his words, "a subsequent conviction", but identified the relevant issue as whether the offender had an unblemished record "at the time of the sentence." The phrase "subsequent conviction" referred to the fact that the circumstances on which the conviction was based post-dated the circumstances for which he was imposing a sentence.
Section 21A of the Sentencing Procedure Act identifies "a record of previous convictions" as an aggravating factor in sentencing. [17] That language is silent as to the temporal element. However, a purposive approach would suggest that it is the time of the offending which is often the significant time. For example, an offence committed first in time cannot reveal a "continuing attitude of disobedience of the law." [18] On the other hand, the order in which particular offending conduct takes place may not be critical in other respects: a later offence may demonstrate that the earlier offence was not an uncharacteristic aberration, but revealed a propensity, thus diminishing the scope for leniency, even in respect of sentencing for the earlier misconduct.
In describing the circumstances of the offending, the judge stated: [19]
"There is a common thread throughout the incidents; they all involved unacceptable bullying, humiliation and oppression. They all involved a situation in which the victim was demeaned, degraded, physically attacked for no sensible reason at all. The trigger related in each case to some perceived deficiency in the victim in the performance of some extremely menial task. The evidence reveals that the victim was vulnerable by reason of her age and her personality. She offered no resistance; she cowered to the offender and her response to the inappropriate punishment was not to complain and often to apologise."
Just as the judge would have been entitled to take into account the circumstances of one assault as revealing the culpability of an earlier act, or psychological testing undertaken after the offending but prior to sentence, the judge was entitled to take into account the character of the offender as revealed by the subsequent events. That he did so merely to deny her a degree of leniency does not demonstrate error. Being relevant in this way, it is not necessary to determine the limits of s 21A(2)(d). [20] This ground of challenge should be rejected.
There remains the question as to whether the sentence imposed was manifestly excessive. The first basis for reaching such a conclusion was said to be found in the available statistics. Accepting, as counsel properly did, the limited assistance which can be obtained from bare statistics, they do not assist the present argument. Counsel summarised the statistics for common assaults prosecuted in the higher courts, noting that 40% of offenders received fulltime imprisonment, with sentences ranging between six months and 24 months, with 80% of all offenders receiving a sentence of between six months and 18 months. With respect to assaults occasioning actual bodily harm, prosecuted in the higher courts, 45% of offenders received fulltime prison sentences, with 80% receiving a sentence between 12 and 36 months. Treating the indicative sentences on this basis, and accepting that a custodial term was called for, the sentence for each offence was either in the middle of the range for 80% of offenders, or below that figure.
The characterisation of the sentences by the sentencing judge has already been noted. It remains to say a little more about the facts of each case. The judge described the assault the subject of count 1 as involving the applicant "belting into" Ms O'Brien, meaning that she was "punching her with a closed fist to the stomach, arms and head." The event occurred in the kitchen: Ms O'Brien was saying "she was sorry and she was crouched and cowering down in the corner." One of the applicant's daughters apparently tried to pull her mother from the victim and tell her to stop but the applicant told her daughter to "fuck off".
Count 3 involved an assault in the kitchen of a home at Mount Druitt, which appeared to be the home of a friend of the applicant. The applicant instructed Ms O'Brien to go into the kitchen and make cups of coffee, which she did. She got milk out of the fridge, but the applicant came in, took a two litre milk carton saying, "well what the fuck is anyone going to do with this" and began striking Ms O'Brien across the head in a "forehand and backhand motion." The witness described three or four hits to the left side of the head, continuing:
"The movements was quite quick and you could hear the milk bottle compressing and decompressing. You could hear the plastic bending and [the victim] put her hands up and there were about four or five more hits after that. All up about 10."
Count 4 occurred in the family home and involved the applicant wiping her index finger along a coffee table, lifting it and looking at Ms O'Brien, saying "what the fuck do you call this". The applicant then took a vacuum cleaner tube and struck Ms O'Brien with a downward motion, hitting her on the forehead just above the bridge of the nose. The witness said that Ms O'Brien "had a bit of a yelp or a wince which came out and there as a mark and a bit of blood trickled down, so it did cause a bit of injury." There was an attempt at a second blow and the witness put her hands up and said words to the effect of "'that's fucking enough' and thereupon the [applicant] stood straight up and said [apparently to the witness] 'well get out of my fucking house' or words to that effect."
Count 5 involved the applicant having an argument with Ms O'Brien, grabbing her by the head and slamming her head through a glass panel of a wooden door. The evidence, as recounted by the judge, continued:
"And this argument was taking place in the lounge room and the result was a cut on the top of the head, a deep cut above her eyebrow and the [applicant] said 'well put a band aid on it and get over it'."
The objective seriousness of this conduct towards a child, not being her child but the child of a friend, is apparent from these brief summaries given by the trial judge of the facts of the cases. So far as the personal circumstances of the applicant were concerned, the judge accepted that she had frequently been confronted with violence in the family home when she herself was a child. He said:
"Her mother would frequently punish her and the other children by beating them with a stick, and when the violence was not directed at the [applicant], she often witnessed it towards her siblings. There was a particular incident where her brother was punished by the mother with a hot electric iron by burning his hand, after he had been accused of stealing."
The judge accepted that the applicant had "endured socio-economic hardship during her childhood, during her formative years, and she had started working in showgrounds throughout her adulthood." Referring to Mr Wenzel's report, he stated: [21]
"The report goes on to say:
'It appears that her early deprived childhood and exposure to violence in the home resulted in her becoming a chronically compensating person throughout her adulthood.'
In view of this it is likely that she had a reduced capacity for dealing with stress, but rather than recognise problems would simply push on, and she thought it was normal to feel this way and these feelings have been present throughout her life."
The favourable effect of the subjective circumstances of the applicant was diminished by the finding that there was no remorse, nor acceptance of responsibility, and the further finding that "it is unlikely the offender would not reoffend if in the same situation or a similar situation because of a lack of impulse control."
There is no basis for this Court to interfere with the sentence imposed by the trial judge. The indicative sentences were not beyond an appropriate range; nor was the aggregate sentence shown to be excessive. The substantive effect of the sentence imposed was to increase the period of mandatory custody which the applicant was already serving for the unrelated offence of accessory after the fact to manslaughter by a period of 12 months.
The Court should make the following orders:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
SIMPSON J: I agree with Basten JA.
DAVIES J: I agree with Basten JA.
[3]
Endnotes
Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1).
Ibid, s 15A(4)(b).
Ibid, s 15B.
[2014] NSWCCA 206 at [7], where Hamill J set out the facts in that matter as found by the trial judge, Conlon DCJ.
TT v R at [33]. The maximum penalty was fixed by the Crimes Act 1900 (NSW), s 350.
[1982] 2 NSWLR 517 at 519 (Street CJ).
TT v R at [19].
Ibid.
Judgment on sentence, p 8.
Ibid.
At [23]-[24].
Judgment on sentence, p 9.
[2000] NSWCCA 317; 50 NSWLR 115 at [35] (Grove J; Spigelman CJ and Kirby J agreeing.)
Judgment on sentence, p 10.
Sentencing Procedure Act, s 5(1).
Judgment on sentence, p 6.
Sentencing Procedure Act, s 21A(2)(d).
Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 at 477 (Mason CJ, Brennan, Dawson, Toohey JJ).
Judgment on sentence, p 5.
Note the non-exclusive scope of the section: s 21A(1).
Judgement p 7.
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Decision last updated: 18 February 2015