Richards v R

1. [1]

   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).

2. [2]

   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).

3. [3]

   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.

4. [4]

   Taking those matters into account, and for the reasons that Davies J has given, I would grant leave to appeal but dismiss the appeal.

5. [5]

   DAVIES J: The applicant pleaded guilty in the Local Court to two offences as follows:

6. [6]

   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.

7. [7]

   On 4 April 2023 the applicant was sentenced by Judge English as follows:

The offending

1. [8]

   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.

2. [9]

   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.

3. [10]

   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.

4. [11]

   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.

5. [12]

   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.

6. [13]

   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.

7. [14]

   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.

8. [15]

   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:

9. [16]

   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

1. [17]

   The applicant originally sought leave to appeal against her sentence on the following grounds:

2. [18]

   At the hearing of the appeal she sought to rely on three further grounds as follows:

3. [19]

   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.

4. [20]

   In Paterson v R [2021] NSWCCA 273 Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing) said at [29]:

5. [21]

   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:

6. [22]

   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.

7. [23]

   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.

8. [24]

   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:

9. [25]

   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.

10. [26]

    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.

11. [27]

    In Taouk, Badgery-Parker J (Clarke JA and Abadee J agreeing) said at 404:

12. [28]

    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].

13. [29]

    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.

14. [30]

    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.

15. [31]

    I would reject ground 1(a).

16. [32]

    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.

17. [33]

    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:

18. [34]

    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.

19. [35]

    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.

20. [36]

    The sentencing judge said of this material:

21. [37]

    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.

22. [38]

    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]:

23. [39]

    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.

24. [40]

    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.

25. [41]

    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.

26. [42]

    In Moiler v R [2021] NSWCCA 73, Button J (Basten JA and Davies J agreeing) said:

27. [43]

    In Luque v R [2017] NSWCCA 226 Hamill J said at [114]:

28. [44]

    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.

29. [45]

    I would uphold ground 1(b).

Other grounds of appeal

1. [46]

   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).

2. [47]

   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.

3. [48]

   In his report, Mr Sheehan reported the applicant saying:

4. [49]

   In the letter to the sentencing judge, the applicant said:

5. [50]

   In the Sentencing Assessment Report (SAR) the following appeared:

6. [51]

   In the written submissions to the sentencing judge, the applicant said this under the heading “Section 21A(3)(i) the offender has shown remorse”:

7. [52]

   In the written submissions by the Crown to the sentencing judge the following appeared:

8. [53]

   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:

9. [54]

   In her ROS, the sentencing judge said:

10. [55]

    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.

11. [56]

    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.

12. [57]

    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.

13. [58]

    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]:

14. [59]

    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.

15. [60]

    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]:

16. [61]

    In addition, the sentencing judge asked counsel if she intended to call the applicant, and counsel said that she did not.

17. [62]

    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.

18. [63]

    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.

19. [64]

    I would reject this ground.

Re-sentence

1. [65]

   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.

2. [66]

   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.

3. [67]

   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.

4. [68]

   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.

5. [69]

   In his report, Mr Sheehan said:

6. [70]

   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.

7. [71]

   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.

8. [72]

   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.

9. [73]

   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.

10. [74]

    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]:

11. [75]

    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.

12. [76]

    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

1. [77]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [78]

   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).