Turner v R

1. [1]

   PAYNE JA: I agree with Garling J.

2. [2]

   DAVIES J: I agree with Garling J.

3. [3]

   GARLING J: Cheree Louise Turner (“the applicant”) pleaded guilty on 11 July 2019 to eight blackmail offences. Seven of the offences were contrary to s 249K(1)(a) of the Crimes Act 1900, for which there is a maximum penalty of 10 years imprisonment. One offence was contrary to s 249K(2) of the Crimes Act, for which there is a maximum penalty of 14 years imprisonment. In respect of that offence, the applicant asked that seven further offences contrary to s 249K(1)(a) be taken into account on a Form 1.

4. [4]

   On 7 August 2019, the applicant was sentenced by Bright DCJ, the sentencing Judge, to an aggregate sentence of 10 years imprisonment with a 6 year 6 month non‑parole period. The sentence commenced on 7 August 2019, because the applicant had been on bail prior to that time. Bright DCJ allowed a discount of 40% on each indicative sentence to reflect the applicant’s early pleas and the assistance she provided to the police: R v Turner [2019] NSWDC 618.

5. [5]

   The individual indicative sentences and available maximum penalties together with the sequence numbers are most conveniently to be found in the table at [18] below.

Notice of Grounds of Appeal

1. [6]

   The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the aggregate sentence imposed upon her. She identified the following grounds, including Ground 1(A) which was added without objection at the hearing of the application:

Relevant Facts

1. [7]

   The facts upon which the applicant was sentenced were agreed and set out at length in her Honour’s careful and detailed Remarks on Sentence.

2. [8]

   The victim of each offence was the same. He was the principal of an accountancy practice carried out on the Central Coast, and which employed a number of staff.

3. [9]

   The applicant and the victim established contact, initially via a Facebook group. This contact resulted in the victim donating a number of items of children’s clothing and toys to the applicant. The applicant and victim met to exchange the goods and had no further contact for some months.

4. [10]

   About three or four months later, the applicant contacted the victim and established an ongoing, but wholly online, relationship which involved the exchange of sexually explicit photographs. During the course of this period, the victim voluntarily paid some small amounts of money ($200 to $400) to the applicant.

5. [11]

   It was in this context that the applicant then commenced to commit the offences to which she pleaded guilty. These offences were committed together with her co-offender, Mr Robert Pughe, with whom she was then living and with whom she had been in a de facto relationship for about 11 or 12 years.

6. [12]

   The first offence in point of time was for demanding money with menaces by accusing the victim of a serious indictable offence, contrary to s 249K(2). The Agreed Facts with respect to this offence reveal it was committed in circumstances where the applicant sent a text message to the victim informing him that he was required to loan her $10,000 and “… if you don’t I will plaster information on Facebook and Instagram and do anything to destroy your business”.

7. [13]

   In the course of a telephone conversation which followed shortly after that text message was sent, the applicant informed the victim that she was going to accuse him of raping her and sleeping around.

8. [14]

   At a meeting which occurred later that evening, the applicant handed a statement which she had signed to the victim, the effect of which was that if the victim provided her with $10,000, the whole matter would be at an end and there would not be any further contact. That document read in part:

9. [15]

   Consequence upon these events, the victim transferred a total of $10,000 to the applicant over the next week.

10. [16]

    However, despite the agreement to not do so, the applicant continued to threaten and extort the victim beyond this first offence. The applicant’s conduct occurred over 15 months and extorted the victim out of approximately $993,845.00 (although the charges only concern a sum of $573,955.00).

11. [17]

    It is convenient to deal with each of the other offences, whether on a Form 1 or as charged, by reference to the table set out below summarising the details of each offence. Each of these further offences was contrary to the same provision of the Crimes Act and carrying the same maximum penalty. What differed was the sum of money demanded, and the way in which it was demanded.

12. [18]

    Below is a table which summarises the offences to which the applicant pleaded guilty, and the offences which were taken into account on a Form 1:

Remarks on Sentence

1. [19]

   The sentencing Judge set out, in some detail, the entirety of the Agreed Facts. At [79] her Honour recorded this:

2. [20]

   This paragraph reflected paragraph 72 of the Statement of Agreed Facts.

3. [21]

   In the course of the submissions on sentence, the Crown addressed the sentencing Judge on the issue of objective seriousness. The Crown submitted that the offences against s 249K(1)(a) of the Crimes Act were:

4. [22]

   Counsel for the applicant did not make any submission at all in reply to this submission. He did not submit that the sentence according to this submission would be erroneous. Counsel had earlier submitted that the offences individually fell below the mid-range of objective seriousness. The applicant’s submissions had distinguished the nature of these offences from frauds against Centrelink, or larceny by a servant or where someone was in a position of trust.

5. [23]

   However, there were no detailed submissions to the sentencing Judge of any real substance on the objective seriousness of the offences, by either the Crown or the applicant. No submissions were made which differentiated the seriousness of the s 249(1)(a) offences by reference to the individual facts and circumstances.

6. [24]

   Neither counsel took her Honour to any authorities on the way in which representative counts ought properly to be dealt with when considering the application of sentencing principles. Neither counsel drew her Honour’s attention to the authorities which discuss the issue of the way in which “uncharged” acts can be considered on sentencing.

7. [25]

   Her Honour addressed her assessment of objective seriousness at some length. At [80] of her Remarks, the sentencing Judge noted that the Agreed Facts “… clearly disclose very serious objective criminality”. Her Honour noted that the offences constituted a “… sustained and vicious campaign against the victim lasting 15 months which had very significant detrimental consequences to his life”.

8. [26]

   Her Honour drew attention to the authorities dealing with the question of blackmail offences generally and, in particular, the importance of general deterrence for such offences.

9. [27]

   Her Honour then turned to consider the objective seriousness of the offence against s 249K(2) of the Crimes Act. She set out three factors which she regarded as particularly relevant. Then, having regard to the nature of the offence, and of those factors, her Honour assessed the objective seriousness of that offence as being in the middle of the range.

10. [28]

    Her Honour then turned to consider the objective seriousness of each of the other offences contrary to s 249K(1)(a) of the Crimes Act. At [86] her Honour set out five factors which she took into account as being relevant to that assessment:

11. [29]

    Her Honour assessed six of the seven sequences as being in the middle of the range of objective seriousness. She assessed the remaining sequence, being Sequence 12, as being above the middle of the range.

12. [30]

    Her Honour then turned to consider the contents of the Victim Impact Statement. She did so in an entirely conventional way.

13. [31]

    The sentencing Judge considered the subjective circumstances of the applicant. Her Honour noted that the applicant was 29 years old at the time of sentencing, and that she had had a criminal history of a kind which disentitled her to any leniency when compared with a person with no prior convictions.

14. [32]

    Her Honour took into account the applicant's background and a psychiatric assessment which had been conducted upon her. Her Honour noted that the applicant was separated from her partner, who was her co-offender, and that she was the mother of five children under the age of 10 years - all of whom had been living with her up until the time of sentencing.

15. [33]

    Her Honour noted the abusive background of the applicant and the fact that she had reported a history of excessive gambling, at times losing as much as $5,000 a day. Her Honour carefully considered the applicant's mental health and its effect on sentence. Her Honour was satisfied that some moderation of an otherwise appropriate sentence was appropriate in circumstances where the applicant suffered trauma and deprivation during her earlier years.

16. [34]

    Her Honour then turned to consider the provisions of s 23 of the Crimes (Sentencing Procedure) Act. Her Honour allowed a total discount on sentence of 40%. No complaint is made about this.

17. [35]

    Her Honour was persuaded that the applicant had reasonable prospects of rehabilitation and was satisfied that she was unlikely to reoffend.

18. [36]

    Her Honour considered the application of the principle of totality. She drew attention, correctly, to that principle. She recorded that partial accumulation was required to reflect the total criminality. She noted that the total criminality occurred over a period of 15 months. She then said at [146]:

19. [37]

    Her Honour then indicated the sentences which would have been imposed for each offence had separate sentences been imposed. They are recorded in the table at [18] above. Having considered all of those matters, her Honour then proceeded to impose the aggregate sentence which is subject to this application for leave to appeal.

Grounds 1 and 1A

1. [38]

   It is convenient consider these grounds together.

2. [39]

   The grounds allege that the sentencing Judge erroneously took into account the fact that the charged offences upon which the applicant was to be sentenced were “representative counts” when considering the objective gravity of the offending and, further, that the sentencing Judge erred by failing to provide reasons as to how the “uncharged conduct” impacted upon the objective gravity of the charged offences.

3. [40]

   The applicant submitted that, having regard to the Agreed Fact set out above at [21]ff concerning the “representative counts”, it is difficult to discern the precise nature of the uncharged conduct to which the applicant was admitting. Therefore, the applicant submitted it is difficult to appreciate what, if any, significance the “representative counts” had in the imposition of sentence upon the applicant by the sentencing Judge. The applicant submitted that the sentencing Judge did not set out in any way the manner by which the representative nature of the conduct aggravated the seriousness of each of the individual offences, other than recording the fact of the representative counts and noting that she was taking them into account on the issue of objective seriousness.

4. [41]

   Finally, the applicant submitted that it was contrary to principle for the sentencing Judge to have taken into account, as a matter elevating the objective gravity of the offences, that the applicant was being sentenced for representative counts. The applicant submitted this is because the fact that the charged conduct was representative was not capable of aggravating the gravity of the charge offences.

5. [42]

   In The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383, Gibbs CJ observed at p.389 that “No one should be punished for an offence of which he has not been convicted”. That is a fundamental principle of the criminal law.

6. [43]

   This Court considered this principle again recently. In LN v R [2020] NSWCCA 131, Hamill J noted that an offender is not to be punished for offences on which they do not stand to be sentenced or with which they are not charged: at [113].

7. [44]

   In LN, Basten JA (with whom RA Hulme J agreed) said:

8. [45]

   Hamill J in LN, although dissenting on the application of the principle to the facts, said at [152]:

9. [46]

   It is to be observed that the existence of other uncharged conduct, acknowledged by the Agreed Facts to which reference is made at [21] above, was a matter agreed to by the applicant. Further, it is clear that the Crown submitted to the sentencing Judge that, in the circumstances of this case, the uncharged conduct was a factor relevant to assessing the objective seriousness of the offences with which the applicant was charged. Clearly that was so. It provided a context which was relevant to whether or not the offences were isolated or out of the ordinary occurrences, or whether they were part of a sustained course of criminality. They were also relevant to establish the extent of the vulnerability of the victim.

10. [47]

    The approach of the Crown accorded with principle. The lack of any submissions opposing that approach should be taken as an indication that counsel for the applicant recognised that the Crown’s submission accorded with principle and that it would not be an error for the sentencing Judge to take the matter into account in determining the objective seriousness of the charges.

11. [48]

    The sentencing Judge did so and, in my view did so, in this matter, correctly.

12. [49]

    The applicant has failed to satisfy me that there is any merit in a contention that the sentencing Judge erred in taking into account that the charged offences were representative offences in the terms agreed to by the parties.

13. [50]

    The next ground of appeal is that the trial Judge failed to provide adequate reasons as to how the uncharged conduct impacted upon her assessment of the objective gravity of the offences to which the applicant pleaded guilty.

14. [51]

    In Corby v R [2010] NSWCCA 146 at [50], Johnson J (with the agreement of Beazley P and Kirby J) said that an assessment of objective seriousness for the purpose of sentence did not require “an elaborate verbal formula”.

15. [52]

    In Paxton v R [2011] NSWCCA 242 at [125]-[126], Johnson J (with the agreement of Tobias AJA and Hall J) said that in considering a ground of appeal such as this it was necessary for this Court to read fairly, the entirety of the sentencing Judge's remarks on sentence. In so doing, a practical approach should be taken by this Court in assessing such remarks with an emphasis upon substance (and the resulting sentence) and not just matters of form.

16. [53]

    His Honour then said at [126] this:

17. [54]

    I note that the ultimate characterisation of the objective seriousness found by the sentencing Judge was only attacked for error as set out in the earlier submissions relating to Ground 1. It was not said that, absent such error, the finding of objective seriousness was not open to the sentencing Judge. Plainly, on the Agreed Facts, the findings were well open.

18. [55]

    In my view the remarks on sentence on the issue of objective seriousness were apt to be described as being concisely made, but it is clearly apparent from the sentencing Judge's remarks what the basis of her findings were. No further elaboration was necessary. Her Honour did not fail to give adequate reasons for her findings. If anything, the sentencing Judge’s remarks here compare favourably with those the subject of a similar ground of appeal in Burr v R [2020] NSWCCA 282 - which the Court held were adequate.

19. [56]

    I am not persuaded that error has been shown in either Ground 1 or Ground 1A of the Amended Notice of Appeal.

Ground 2

1. [57]

   This ground complains the sentencing Judge failed to comply with the provisions of s 53A(2) of the Crimes (Sentencing Procedure) Act by not assessing individually the criminality involved in the offences against s 249K(1)(a), when indicating the sentences which otherwise might be imposed.

2. [58]

   Section 53A(2) of the Crimes (Sentencing Procedure) Act is in the following form:

3. [59]

   The mere fact that the same indicative sentences were enunciated by the sentencing Judge does not of itself and without more indicate an impermissible approach to determining the objective seriousness of the offence. This is particularly so in circumstances where, as is the case in this matter, each of the offences were contrary to the same section of the Crimes Act and each was committed during a single sustained course of offending over a lengthy period of time.

4. [60]

   As the indicative sentence for sequence 12 demonstrates, the sentencing Judge regarded that offence as meriting a longer indicative sentence than the other offences. The similarities in the other offences, including the sums of money sought and the surrounding circumstances of those offences, suggest that this was a particular case in which the coincidence of the imposition of the same indicative sentences for six of the offences does not indicate that the trial Judge engaged in a blanket assessment in a way which offends against what this Court said in JM v R [2014] NSWCCA 297 at [39] (by RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed).

5. [61]

   I am unpersuaded that this Ground should be upheld.

Ground 3 - The Aggregate Sentence is Manifestly Excessive

1. [62]

   The legal principles applicable to a ground of appeal in which it is alleged that a sentence is manifestly excessive are well known and have been regularly restated: see Obeid v R [2017] NSWCCA 221; (2017) 96 NSWLR 155 at 443; Goodbun v R [2020] NSWCCA 77 at [254]. Relevantly for the consideration of this ground of appeal, I note that those principles required to the applicant to establish that the sentence which was imposed was unreasonable or plainly unjust. Intervention by this Court is only warranted where the Court concludes that, although it is not apparent there must have been some misapplication of principle, or alternatively whether the sentence imposed is so far outside the range of sentences available that must have been error.

2. [63]

   The applicant contends that it can be seen that the sentencing Judge's discretion miscarried by an examination of two separate aspects of the aggregate sentence. The first is whether the discount of 40% applied by her Honour to each indicative term was reflected in the aggregate sentence imposed, to use the words of the applicant’s submission “… such that an appreciable difference (shorter total head sentence) in the final outcome materialised, and secondly whether the degree of notional accumulation overstated the totally of the criminality”.

3. [64]

   Ultimately it was submitted in writing by the applicant that when the maximum penalties for each offence are considered along with the circumstances of the offending, and that those factors are balanced with the applicant's favourable subjective case, “… no reasonable exercise of discretion could have led to an aggregate sentence of 10 years”.

4. [65]

   Although the submissions for the applicant contained, in part, an analysis of degrees of notional accumulation, this is an unhelpful approach. N Adams J in Kliendienst v R [2020] NSWCCA 98 said this at [85]:

5. [66]

   Properly analysed the substance of this ground of appeal is that, by reference to the principal of manifest excess, the length of the sentence of 10 years is such as to demonstrate that it was unreasonable or plainly unjust.

6. [67]

   In considering such a question this Court needs to keep in mind that there is no single correct sentence and sentencing Judges are allowed as much flexibility in sentencing as is consonant with the application of principle. Whether this Court may have imposed a less severe sentence is not, at least at this stage of the consideration of the appeal, relevant.

7. [68]

   The starting point of the analysis as to whether this sentence is manifestly excessive is to identify the nature of the offences to which the applicant pleaded guilty. These offences are blackmail offences. Courts have always regarded blackmail offences, by reason of their nature and kind, as being offences which are serious and which require emphasis in sentencing on general deterrence. As well, courts have been astute by imposing sentences for this kind of offending which ensures that the community is protected from such offending.

8. [69]

   Her Honour assessed one of the offences (Sequence 12) as being above the middle of the range of seriousness. She assessed all others as being in the middle of the range. This assessment, leaving aside the earlier grounds of appeal of which I have not been persuaded, is not otherwise attacked.

9. [70]

   The threats used by the applicant included threats to his business, threat of harm to his family members, threats that he would be publicly accused of rape, threats of extreme violence to his property, and threats that he would be sexually assaulted. The threats were accompanied by calls to the victim's business which disrupted the operation of that business. The offences only ceased because one of the victim’s employees reported the matter to police.

10. [71]

    The period of time during which the offences occurred commenced in 28 July 2016 and continued through to 27 October 2017. Her Honour, in addition to imposing sentence for eight offences was asked to take a further seven offences into account on a Form 1.

11. [72]

    The course of time over which the offences lasted was significant. Moreover, all of these offences for which sentence was to be pronounced were objectively serious, were accompanied by threats of personal violence to property and violence to the victim's family and were seeking significant sums of money. The total sum of money gained from the offences to which the applicant pleaded guilty over the full course of offending was a very large sum of money indeed.

12. [73]

    It can be accepted, as the trial Judge did, that the applicant had a number of favourable subjective factors. Her Honour found that the applicant was a single mother of five children under the age of 10 years; she had a limited criminal history; a diagnosis of a psychiatric condition (namely a generalised anxiety disorder) which would have the result that her time in custody would weigh more heavily upon her; a traumatic and deprived early childhood which warranted moderation of the sentence; reasonable prospects of rehabilitation; and that she was unlikely to reoffend. Making full allowance for each of those factors, I am unable to conclude that the aggregate sentence imposed on the applicant is manifestly excessive.

13. [74]

    The maximum sentence for the most serious offence was 14 years imprisonment. The maximum sentence for each of the other seven offences was 10 years imprisonment. The indicative sentences nominated by her Honour, even allowing for a notional adjustment to consider the sentence prior to the discount for the early plea and the giving of assistance to authorities, did not exceed one half of the maximum for each offence. The discount of 40% which was then applied to them, was an appropriate one in all the circumstances.

14. [75]

    Her Honour’s aggregate sentence was one which she needed to formulate by reference to the principle of totality.

15. [76]

    There is no suggestion that her Honour did not consider that matter. She did so explicitly. The complaint is that the result of her Honour’s approach to the aggregate sentence was demonstrative of legal error.

16. [77]

    I am simply unable to agree.

17. [78]

    In my view the aggregate sentence imposed was well within her Honour’s sentencing discretion and no error of law has been established. I am not satisfied that the aggregate sentence which was imposed was unreasonable or plainly unjust.

18. [79]

    I would reject this ground.

Orders

1. [80]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.