Simpson (a pseudonym) v R

1. [1]

   MITCHELMORE JA: I agree with Ierace J.

2. [2]

   IERACE J: The applicant, Ms Simpson, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal two sentences imposed on her by her Honour Acting Judge Latham in the District Court on 17 November 2023, following a trial by jury, for two counts as follows.

3. [3]

   On or about 5 May 2021, while in the company of other persons, the applicant detained Ms Shelley without her consent and with intent to obtain an advantage, namely a psychological advantage, and at the time of the detention actual bodily harm was occasioned to Ms Shelley, contrary to s 86(3) of the Crimes Act 1900 (NSW) (the detain offence). Ms Shelley is hereinafter referred to as “the victim”. The maximum penalty was 25 years’ imprisonment. On this count, the applicant was tried with a co-accused, who I shall refer to as “MP”.

4. [4]

   On 2 June 2022, the applicant sent ‘Signal’ messages to DJM, [1] a potential witness in the trial of the applicant before the District Court, with intent to persuade DJM to withhold true evidence, contrary to s 323A of the Crimes Act. The maximum penalty was 7 years’ imprisonment (the influence witness offence). Neither offence has a standard non-parole period.

5. [5]

   For the influence witness offence, the applicant received a fixed sentence of 3 years’ imprisonment commencing on 25 December 2021 and expiring on 24 December 2024, and for the detain offence, a sentence of 10 years’ imprisonment commencing on 25 December 2022 and expiring on 24 December 2032. Her Honour set a non-parole period for that offence of 5 years that will expire on 24 December 2027. In fixing this sentence, the sentencing judge took into account a s 166 certificate offence of recklessly damaging property, contrary to s 195(1)(a) of the Crimes Act, relating to the applicant having deliberately damaged the car of the victim’s partner on the evening of 4 May 2021. The total effective sentence was 11 years’ imprisonment, with a non-parole period of 6 years, which is a non-parole period to total sentence ratio of 55 per cent.

6. [6]

   The essence of the Crown case at trial as to the detain offence was that on 4 May 2021, the victim lost control of a vehicle she was driving and caused a collision. At the time, the applicant’s six-year-old daughter, who I will refer to as “XY”, was in the back seat. The following morning, the applicant, who was angry with the victim for endangering the safety of her child, conveyed the victim into a shed at the rear of the applicant’s home and, with the assistance of co-offenders including DJM, threatened and assaulted her over a period of approximately 20 hours, causing injuries to her.

7. [7]

   The influence witness offence involved the applicant attempting to persuade DJM, who was charged for his part in the detention, to not accept a negotiated plea, which involved giving evidence against the applicant at trial.

8. [8]

   The grounds of appeal are as follows:

   1. (1)

      The sentencing judge erred in concluding that the applicant’s commission of the detain offence was “methodical”, “calculated” and “systematic”.

   2. (2)

      The sentencing judge erred by failing to properly take into account the applicant’s mental health conditions in that:

   3. (3)

      The aggregate sentence is manifestly excessive.

9. [9]

   I am of the opinion that none of the grounds is made out. These are my reasons.

The sentence hearing

1. [10]

   Counsel for the applicant submitted that, for the purposes of the appeal, the core facts as found by the sentencing judge as to the detain offence were apposite, subject to a factual dispute to which I will return. I extract that part of the sentence judgment.

2. [11]

   The reference by the sentencing judge to text messages sent by the applicant to the victim’s partner, who I will refer to as “AB”, was to a series of texts that were in evidence, sent between 10.24pm on 4 May 2021 and 7.35am on 5 May 2021, in which the applicant expressed a high level of anger at the victim and AB.

3. [12]

   At 10.31pm on 4 May 2021, the applicant sent AB a text message in which she apparently referred to DJM having been pricked by a needle when searching the car involved in the crash. She texted:

4. [13]

   In messages sent over the following half hour she expressed an intention to visit AB, texting at 10.42pm:

5. [14]

   In a message sent at 10.50pm on 4 May 2021, she stated:

6. [15]

   At 11pm that night, she sent AB a text which included the following, referring to something the victim had previously told the applicant:

7. [16]

   In a message sent at 11.10pm:

8. [17]

   AB was a witness for the prosecution in the trial. Her evidence included her account of the message exchange. She said that on the night of 4 May 2021, she picked up the victim from the police station and drove her home. While parked out the front of the applicant’s next door neighbour’s house, she received the texts in which the applicant referred to AB’s car. While sitting there, she saw the applicant approach her car from behind carrying a letter box and hit the car with it twice alongside the passenger seat where the victim was seated. AB started the car and drove away. This was the incident that was the basis of the damaging property offence that was dealt with by way of a s 166 certificate.

9. [18]

   Shortly afterwards, the victim told AB that she wanted to “go back there”. AB said she refused to drive the victim, who set off on foot. AB texted the applicant at 12.33am on 5 May 2021:

10. [19]

    The records indicate that this message was not read until 6.44am on 5 May 2021. At 6.48am, the applicant responded, which included the following:

11. [20]

    It was accepted in the trial that the applicant sent this message minutes before discovering the victim in her son’s bed.

12. [21]

    The Crown contended at trial that the applicant’s offending behaviour commenced at about 7.30am on 5 May 2021, when she woke the victim and took her to the shed, and lasted until about 6am the following morning when the victim was released.

13. [22]

    The defence case on sentence was that, consistently with the jury’s verdict and part of the applicant’s evidence in the trial, it was open to the sentencing judge to find that the detention lasted no more than 10 hours in so far as the applicant was involved, from about 8pm or 9pm on the evening of 5 May until 6am the following morning; and that the applicant was unaware that the victim was at the residence during the course of the day of 5 May 2021.

14. [23]

    The first ground of appeal involves a challenge to the sentencing judge’s characterisations of the manner in which the assaults were carried out which, as developed by the applicant on appeal, revisits this factual dispute at first instance. For that reason, and the nature of the second ground, it is appropriate to consider the evidence in the trial as to the assaults.

15. [24]

    The victim was 25 years old at the time of the detain offence. Her evidence was to the following effect. The victim was asleep in the bed of the applicant’s son. The applicant woke her and pushed her out of the bedroom, down a flight of stairs, into the backyard and into a shed. DJM, MD and MP entered behind her and the applicant closed and locked the door. The applicant hit the victim on the right side of her face twice with a hard object, which caused her to lose vision in her right eye from swelling. Immediately following one of the blows, she looked up and saw that the applicant was holding a hammer. She tried to run away and was hit in the back of the head with a hard object, which she deduced to be the hammer, that sent her to the ground. She could feel blood coming from her ears and nose.

16. [25]

    The applicant told MP to “hold her down” and “kick her”. As the victim tried to get up, MP kicked her in the ribs and on one of her arms. The victim lapsed in and out of consciousness.

17. [26]

    While she was being held on the ground, the applicant said she was going to “take my arms off”. The applicant picked up an angle grinder, turned it on and approached the victim, who was so scared she urinated. When the applicant was a metre from her, the electric cord reached its maximum length and detached from the power point. The applicant put it down and walked away.

18. [27]

    The applicant announced that pouring boiling water on someone’s head, with coffee, stops it from running off. MP retrieved a kettle, water was boiled and as the victim continued to be held on the ground, the applicant poured it over her head, which caused her “indescribable pain”, prompting her to urinate a second time. The victim called out “I’m going to die. I need to go to a hospital”. The applicant said: “Get her on a tarp ‘cause I don’t want her to bleed everywhere”. A tarpaulin was placed on the ground and a chair was positioned in it. The applicant approached her and said: “I want you to be as frightened as [XY] was in the car … Are you frightened?” The applicant waved cable ties in the victim’s face which MD used to tie the victim’s ankles together and her hands in front of her. She said: “[MD] please”. He said: “shut up” and the applicant said: “He’s not going to save you like no-one’s going to save you”.

19. [28]

    The applicant removed a bottle from her handbag, saying: “You like drugs. I’ll give you some drugs”. She inserted a syringe into the bottle and withdrew an almost-full syringe of what the victim believed was methadone. She said: “I’ll shoot you up” and placed the syringe on a table. The applicant asked the victim if she knew what a lobotomy was, explaining that it was when “they drill into your brain while you’re still alive”. Shortly afterwards she left the shed.

20. [29]

    Two of the men, MD and MP, remained. The victim asked MP if he would let her go to hospital. He replied: “I can’t do that”. She was fading in and out of consciousness. MP woke her, saying: “you need to stay awake. You’ve got a concussion”. At one point she regained consciousness and MD was the only other person present. She told him she needed to go to the toilet. He cut the ankle tie and warned her, saying: “don’t try anything”. He led her to a toilet in the house and then to a chair outside the house, telling her she could sit there. As to the time, she said: “It was dark, but … I don’t know what time it was”.

21. [30]

    The victim lapsed into unconsciousness and regained consciousness when a glass of water being thrown into her face by the applicant, who told her to get back into the shed. The applicant, MD and DJM came with her. She sat down and the applicant said: “I need some pliers so I can pull some teeth out”. She drew a tube of Bonjela from her handbag and asked the victim if she wanted some. She said that she did, and the victim applied it in her mouth. The applicant said: “I’m going to slash your face up so every time you look in the mirror you remember what I did to you”. The applicant swung a metal object at her face, which knocked out two of the victim’s teeth.

22. [31]

    The applicant asked her: “Are you ready for your lobotomy now or do you want methadone?” The victim responded that she wanted the methadone:

23. [32]

    When she regained consciousness, the applicant, DJM, MD and the applicant’s oldest daughter were present. The daughter left. The applicant approached the victim with a lit cigarette, asking: “Where do you want it?” The victim replied: “On the hand, please”. The applicant pressed the lit end of the cigarette into her forehead and punched her in the face. She lost consciousness and shortly afterwards, she was escorted out of the shed by the applicant, DJM and MD. It was dark. They drove her to a street and told her to get out. She approached a nearby house and asked the occupants if she could use their phone, saying she did not want them to call the police. She rang AB, who picked her up. The next day, AB drove her to a hospital.

24. [33]

    DJM corroborated AB’s evidence of the applicant hitting her car while the victim was in it on the night of 4 May 2021. The following morning, after the victim was woken in the bed of the applicant’s son, he saw her go to the shed. He ended up in there as well, “at some time”. Inside, he heard the applicant yelling at the victim. MP and MD were there. The applicant punched the victim “in the face area”. DJM said he was “in and out” of the shed during the day. He saw MP and MD yelling at the victim. The second time he entered the shed, he was “pretty sure” he saw MD strike the victim. The third time, MP, MD and the applicant were there. He noticed that the victim was “in a bad way”. “She had a bit of swelling on her face and her eye and her … mouth”. Her hands were zip-tied and she was being “yelled at a lot” by all three persons. The victim was crying. He entered the shed a fourth time when he heard a grinder start up. He saw the applicant holding the grinder and the victim holding her hands in front of her face. He said he unplugged the grinder and asked the applicant what she was thinking.

25. [34]

    That night he entered the shed and saw the applicant and MD with the victim. The applicant offered the victim a tube of Bonjela, which he thought the victim accepted, although he was not sure. The applicant then hit the victim in the mouth with an object, which caused bleeding and “a tooth or something” to come out. He saw a tooth on the ground. On the last occasion he entered the shed, the applicant and MD were discussing what to do. They decided to let her go. He and the others drove her to a street that had bush and houses in it.

26. [35]

    MD’s account was that he saw the applicant and victim walk into the shed. They said “good morning” to him “like normal”. Later, he saw MP and DJM. MP told him he should go into the shed because the applicant was going to cut up the victim with a grinder, and he was “missing out on all the fun”. He heard the grinder being used, walked in and saw the applicant holding the grinder towards the victim’s face. He took the grinder off the applicant, who then told him about the car accident the night before. He left the shed, had a sleep and returned after “several hours … later that afternoon”. He saw that the victim was tied to a chair with cable ties. DJM had a bottle of methadone and said something like they were going to inject the victim with it. He saw the applicant hit the victim in the mouth with a hand stapler, which dislodged a tooth.

27. [36]

    At one point he saw that DJM and the applicant were asleep in the house. He untied the victim, took her to the toilet and sat her down outside the house. He was “pretty sure it was dark by then”. The applicant arrived and said: “I want her back in the shed” and something like “I relieve you of your duty”. He saw the applicant and victim go back into the shed. An hour or two later, he entered the shed and saw that the victim was again cable-tied. He persuaded the applicant to leave and stayed with the victim until about 4am, when the applicant entered with DJM. They drove the victim away, leaving her at a location which he believed was not far from AB’s residence.

28. [37]

    David Attrill was a resident in the house approached by the victim on the morning of 6 May 2021. He said that “in the early hours” of that date, his son answered a knock on their front door and he attended shorty after. He saw the victim, who he described as follows:

29. [38]

    She said she had been “bashed on a tarp” by another girl. He asked her if she wanted to phone the police. She replied, words to the effect: “No, if I rang the cops they’d kill me next time”. She rang someone who picked her up.

30. [39]

    An agreed fact at trial was that the victim was examined at hospital at about 12:20am on 7 May 2021. The following injuries were noted:

31. [40]

    The applicant gave evidence in the trial. Her account was that she woke the victim by throwing some Lego pieces at her and told her to leave. Instead of leaving, the victim walked outside and into the shed, followed by the applicant, who was telling the victim to leave. Inside the shed, the applicant punched the victim to her head with a closed fist, which started a fist fight between them, which was broken up by DJM and MD when they entered the shed. The applicant threw some objects at the victim which she accepted could have hit her and was taken to the house by DJM. As she left, she told MD that she wanted the victim gone, to which MD replied: “Don’t worry I’ll get rid of her”.

32. [41]

    She next saw the victim that evening after dinner, when she went into the backyard to have a cigarette, and noticed the victim seated on a chair wrapped in a blanket, having a drink. DJM and MD emerged from within the house and she asked them: “Why is she here? I asked her to leave”. DJM replied that he didn’t know, and that MD had hit her while they were in the shed. The applicant walked into the shed and was followed by the victim. The applicant fell asleep on a chair and was woken by her eldest daughter. The victim was no longer there.

33. [42]

    The applicant’s eldest daughter gave evidence to the effect that she saw her mother at various times throughout the day of 5 May 2021. Her mother and DJM were present at dinner that night. She said that she entered the shed at about 10pm on the evening of 5 May 2021, because her grandfather asked her to find the applicant. Upon entering the shed, she saw the applicant and the victim asleep on lounges. She woke the applicant and guided her into the house.

34. [43]

    The sentencing judge referred to the factual conflict between the parties and rejected that aspect of the defence case on sentence:

35. [44]

    The sentencing judge summarised the facts for sentence for the influence witness offence:

36. [45]

    MD and DJM pleaded guilty to offences arising from the incident and, as noted, gave evidence for the prosecution in the trial of the applicant. Both were sentenced by McGrath SC DCJ in December 2022; MD, for a count of specially aggravated detention for advantage of the victim contrary to s 86(3) of the Crimes Act, and DJM for a count of being an accessory after the fact to the same offence. MD received a sentence of imprisonment for a period of 2 years and 3 months, with a non-parole period of 18 months. DJM received an Intensive Correction Order for a period of 2 years, taking into account two possess prohibited drug offences which involved small quantities of prohibited drugs, on a s 166 certificate.

37. [46]

    The applicant was 40 years old at the time of the detain offence and 42 at the time of sentence. In 2002, when she was aged 20, she committed a robbery in company, for which she received a sentence of imprisonment for 2 years and 6 months, with a non-parole period of 10 months, taking into account an offence of supplying a prohibited drug. In December 2012, she committed the offence of having goods in custody. That was followed by offences of driving while her licence was cancelled, suspended or while disqualified; in April, September and October (twice) 2013, and in January 2014. In April 2021, she committed the offence of driving with an illicit drug present in her blood.

38. [47]

    The applicant tendered a report by Dr Kim Dilati, a consultant clinical and forensic psychologist. She interviewed the applicant via audio visual link following the trial. The information available to Dr Dilati for her report preparation was limited: the indictment, the Crown Case Statement for the trial and the applicant’s criminal record. She did not have documentation as to the applicant’s physical or mental health history or other corroboration of her personal history, so that Dr Dilati was dependent upon the applicant’s reliability as an historian. Dr Dilati noted:

39. [48]

    The applicant gave a personal history to the following effect. She was the youngest of three siblings who grew up in a house in Newcastle without financial difficulties, since both of her parents were employed. Her mother had mental health issues and disliked her, to the point of perpetrating domestic violence upon her. She was “kicked out” of home when aged 12 or 13 and lived with a heroin dealer until she was placed with her maternal grandmother in Queensland, who subsequently suffered a heart attack. The applicant was then placed with a family, during which time she was sexually assaulted. She was suspended in Year 9 of high school and expelled in Year 10. At the age of 15, she commenced a TAFE course in Business Administration and worked in retail positions. She met her husband when aged 16. She gave birth to their first child in 2000 when aged 19 and to their second child in June 2003, while she was serving her prison sentence.

40. [49]

    Following her release to parole in November 2003 (when she was aged 22), she resumed employment. From 2004, for a period of 15 years, she worked for an insurance company in their claims department. She and her husband married in 2006, when she would have been aged about 25.

41. [50]

    In 2011, she was sexually assaulted by an off-duty police officer during a “night out” with friends, resulting in a son being born in July 2012.

42. [51]

    In 2013, when she would have been aged about 32, a brother died suddenly at home from a blood clot. Her mother told her: “It should have been you”. In November 2014, she gave birth to a daughter conceived during a “one night stand” with “a violent drug user”. Her husband died in 2015 from cirrhosis of the liver, shortly after being released from prison and, since that year, she has been estranged from her mother. She ceased work when her son was diagnosed with myotonic dystrophy, which is a hereditary condition from which she also suffers.

43. [52]

    As to the applicant’s drug use, she told Dr Dilati that around the age of 12, she began using amphetamines (intravenously from the age of 16), MDMA, cannabis and LSD “daily”. From the birth of her third daughter, in 2014, she began using methamphetamine. From the same time, she used benzodiazepine until 2021.

44. [53]

    As to her physical health, Dr Dilati noted:

45. [54]

    Concerning her mental health, Dr Dilati stated that the applicant reported:

46. [55]

    She noted that the applicant reported having been diagnosed with Post-Traumatic Stress Disorder (PTSD) in 2000.

47. [56]

    Dr Dilati applied an assessment tool known as the Depression Anxiety and Stress Scale (DASS-21), which returned scores that placed the applicant in the “Mild” range for depression, the “Extremely Severe” range for anxiety and the “Severe” range for stress. Based on the applicant’s self-reporting, Dr Dilati diagnosed the applicant as scoring within the “high severity” range for PTSD, as per the criteria in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (the DSM-V).

48. [57]

    Dr Dilati assessed the applicant’s risk of committing a violent offence with the assistance of a tool known as the Historical, Clinical Risk Management-20, Version 3 (HCR-20 v3). Dr Dilati concluded, again qualifying her findings (“[b]ased on the information made available to me”), that the applicant scored within the “High” range of future violence/case prioritisation, the “Moderate” range for serious physical harm and the “Low to Moderate” range for imminent violence. She assessed preventative factors for violence with the assistance of the Structured Assessment of Protective Factors for Violence Risk (SAPROF) tool, which identified several protective factors, including motivational factors (her employment history and skills, vocational goals, life goals, and motivation for treatment) and external factors (professional care and living situation).

49. [58]

    Dr Dilati was of the opinion that “at the time of offending and interview”, the applicant met the DSM-V criteria for PTSD, Stimulant Use Disorder, Opioid Use Disorder, Major Depressive Disorder and Generalised Anxiety Disorder. Dr Dilati underscored that all the diagnoses were based on aspects of the history provided by the applicant.

50. [59]

    As to the applicant’s account of the circumstances of the detain offence, Dr Dilati noted that she described “multiple psychosocial stressors” at that time (house renovations, a property settlement, the ten-year anniversary of the death of her brother, coping with her father’s mental health issues and her mental health difficulties) so that by the afternoon of 4 May 2021, she felt “swamped”. Due to the applicant’s stress levels, the victim offered to pick up the applicant’s six-year-old daughter from after-school care. AB arrived home that night with the applicant’s daughter, who was “‘hysterical’ and highly distressed”. The friend told the applicant there had been a car accident. The applicant and DJM went to the scene of the collision where her car was still located and searched it. They found “a syringe in the front seat which belonged to the victim who was drug affected at the time of the accident”. The following morning, the applicant found the victim “semi naked” in bed with her son, who was naked. The applicant’s account from that point, as relayed by Dr Dilati, was as follows:

51. [60]

    Dr Dilati addressed the issue of whether there was a nexus between the mental condition of the applicant and her offending behaviour as follows:

52. [61]

    Dr Dilati considered that the experience of prison was likely to exacerbate the applicant’s symptoms: “stress, isolation, and potentially traumatic experiences of prison life can lead to a worsening of symptoms”. Dr Dilati observed that although efforts are made to make available mental health care in prison, it may be a struggle to access those services.

53. [62]

    As to her prospects of rehabilitation, Dr Dilati noted the applicant’s protective factors, particularly that she has:

54. [63]

    Dr Dilati gave evidence in the sentence hearing. She clarified that her opinion was that the applicant’s PTSD materially contributed to the applicant’s offending behaviour as part of her “distressed, hyperaroused and reactive state”, as described in the last sentence of the passage of her report extracted at [60] above. She was asked by the sentencing judge whether her opinion was altered by the car accident having occurred the day before, and that there was a “sustained pattern of offending” over a period of about 24 hours; Dr Dilati responded that it did not. Similarly, Dr Dilati said that the applicant would also have been experiencing hyper-arousal at the time she sent the text messages that constituted the offending behaviour for the influence witness offence.

55. [64]

    In cross-examination, Dr Dilati said she supplemented her sources of information in preparing her report with “newspaper articles” about the incident, although she exercised a degree of circumspection with that material in view of the tendency for the media to “report on incorrect information”. She did not attempt to obtain the applicant’s Justice Health file or her psychiatric records “due to the constraints of time”.

56. [65]

    Counsel for the Crown took Dr Dilati to extracts from Justice Health records of a history provided by the applicant following her entry to remand custody on 24 June 2021, which had discrepancies with details provided to Dr Dilati. The applicant had told a Justice Health officer that she had “a happy childhood”; that her mother left home when she was a child (rather than the applicant leaving home), that her brother died in 2011 (rather than in 2013, as Dr Dilati had reported she was told by the applicant); and that she had never previously been diagnosed with PTSD (whereas she told Dr Dilati she had been diagnosed with PTSD in 2000. Counsel referred to a police report of a sexual assault complaint made by the applicant. According to the report, the applicant said she had been in a relationship with the perpetrator for six months until April 2011, that he sexually assaulted her on several occasions between May and December 2011, and that as a consequence she fell pregnant, giving birth in July 2012 (rather than the sexual assault resulting in the birth being by an off-duty police officer who she encountered on a night out).

57. [66]

    Counsel also acquainted Dr Dilati with some matters from the applicant’s personal history that emerged from her evidence in chief during the trial, that she had not informed Dr Dilati of: in about 2006 she completed a diploma in paralegal studies and came within 6 months of completing a law degree, for which she was enrolled between about 2007 and 2011.

58. [67]

    Dr Dilati said that her diagnoses of the applicant were unchanged by the discrepancies drawn to her attention by counsel.

59. [68]

    As to a causal connection, Dr Dilati acknowledged that her opinion in the last sentence of the passage from her report extracted at [60] above was in the context of the applicant’s version of events as to what occurred, but added that, accepting the alternative version of the offences as set out in the Crown Case Statement, which I note was not tendered below and is not before this Court, her opinion as to a causal connection would be the same. For the purposes of the appeal, I presume that the Crown Case Statement alleged that the offending behaviour in respect of the detain offence was in similar terms to the facts found by her Honour for the purposes of the sentencing exercise, as extracted from the remarks on sentence at [10] above.

60. [69]

    The applicant’s father gave evidence on sentence, which was to the following effect. He and the applicant’s mother separated in 2016. He characterised the relationship between the applicant and her mother as:

61. [70]

    He said the applicant’s mother was “very psychotic” and paranoid, given to fabrication and sudden changes in behaviour. He said:

62. [71]

    When the applicant was in primary school, her mother was prescribed medication for her behaviour, which “sedated her … calmed her down”. She “kicked out” the applicant “on several occasions”. He said:

63. [72]

    The applicant’s father also gave evidence as to his poor health and the extent to which he relied upon the applicant to assist him, which was supported by a patient health summary.

64. [73]

    The applicant tendered material concerning her health issues and those of her children that were relevant to the issue of whether family hardship would be occasioned by a custodial sentence. The latter included a patient health summary and an NDIS plan for her son, whose myotonic dystrophy was more severe than that suffered by the applicant, and a clinical psychologist’s brief letter concerning the applicant’s youngest daughter who was receiving counselling for trauma she suffered from “two significant car accidents”. Letters from the applicant’s two oldest daughters were tendered that outlined their own mental health issues and the weight of responsibility they felt in caring for their disabled brother and youngest sister. A letter from a parent support agency attested to the burden that the applicant’s incarceration was placing on one of her older daughters in caring for her younger sister.

65. [74]

    The applicant also tendered character references by a former work colleague and a prison chaplain, and a certificate of achievement for personal development courses that she has completed in prison.

66. [75]

    After recounting the facts for sentence, the sentencing judge noted that a victim impact statement by the victim “provided insight into the enduring psychological effects” of the offence.

67. [76]

    The sentencing judge determined that the objective gravity of the detain offence “places it high on the scale of criminality represented by the maximum penalty”. Her Honour continued:

68. [77]

    As to the objective seriousness of the influence witness offence, her Honour found it fell in the mid-range:

69. [78]

    The sentencing judge canvassed similarities and dissimilarities between the roles of MD, DJM and the applicant on the detain offence, and determined there was “no real parity” between them:

70. [79]

    The sentencing judge noted the differences between the personal and mental health history the applicant gave to Dr Dilati and to Justice Health, and that the applicant had not given evidence on sentence to confirm her history to Dr Dilati, although her father had, in his evidence, “confirmed some salient aspects of [the applicant’s] upbringing”. The sentencing judge summarised (and inferentially accepted) the applicant’s account to Dr Dilati of the abusive relationship between the applicant and her mother, leaving home in early adolescence, living with her grandmother in Brisbane and being sexually abused by a family she subsequently stayed with, her violent adult relationships, her brother’s sudden death, her substance abuse from 12 years of age and her recent development of a suboxone dependence in prison, her strong work record and her and her son’s physical disabilities.

71. [80]

    As to a possible causal connection between the mental conditions diagnosed by Dr Dilati and the applicant’s offending behaviour, the sentencing judge recited the two paragraphs in the extract from Dr Dilati’s report at [60] above that are emphasised, and stated:

72. [81]

    The sentencing judge accepted that the applicant experienced trauma from the deaths of her husband and brother and anxiety from her son’s disability and that she had “a less than ideal” upbringing with a mother who “may well have been bipolar”. Special circumstances were established pursuant to s 44(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by the onerousness of the applicant’s health issues and her separation from her immediate family. The sentencing judge expressly took into account periods on remand that the applicant had spent in quarantine, isolation and lockdowns due to the COVID-19 pandemic.

73. [82]

    The sentencing judge found the applicant had no remorse, although her prospects of reoffending were low, notwithstanding the risk of future violence that was assessed by Dr Dilati, and noted the significance of general deterrence, punishment and denunciation in formulating the sentence.

74. [83]

    The sentence for the influence witness offence, of 3 years’ imprisonment, was backdated to commence on 25 December 2021. This took into account that, although the applicant entered into custody on the date of her arrest on 24 June 2021, she was released on bail on 9 December 2021 and returned to remand custody on 13 June 2022.

The sentencing judge erred in concluding that the applicant’s commission of the detain offence was “methodical”, “calculated” and “systematic”

1. [84]

   The applicant submitted that the characterisations by the sentencing judge of the detain offence as “methodical”, in the passage from the sentence remarks extracted at [10] above, in the context of the applicant “methodically” carrying out the threats in the texts she sent earlier that day to AB, and “calculated” and “systematic”, in the passage extracted at [80] above (“[The applicant] then carried out those threats in a calculated and systematic fashion over the course of a whole day”), were not open on the evidence.

2. [85]

   The applicant submitted that the detention itself, as well as a substantial proportion of the violence inflicted upon the victim, was effected “in the immediate aftermath” of the victim being discovered in the applicant’s son’s bed. The bouts of violence perpetrated by the applicant on the victim, towards the beginning and end of the detention, were “impulsive and relatively short lived”.

3. [86]

   The text messages sent by the applicant the night before “do not support an inference that the applicant anticipated an opportunity to commit the detain offence, let alone planned it”. The only text in which the applicant directed a threat towards the victim was that which is extracted at [14] above. However, in context, that text was more likely to convey a warning to AB to not bring the victim back to the applicant’s residence.

4. [87]

   The applicant submitted that there was no other evidence that the applicant “planned, or even contemplated, the detain offence”. The violence was opportunistic, in that the applicant made use of instruments at hand: the angle grinder, cable ties, and the boiling water.

5. [88]

   The applicant submitted that the evidence in the trial was to the effect that the applicant had left the shed by about 8:30am, since there was evidence in the trial that she was engaged in activities elsewhere from about that time. The victim’s evidence was that the applicant did not return to the shed until after dark. Absent MD’s evidence that the applicant told him that he was “relieved of his duty” when she discovered the victim was outside the shed, there was no evidence that the applicant directed others to maintain the victim’s detention when she was not there.

6. [89]

   The Crown submitted that the sentencing judge’s characterisations were open on the evidence:

7. [90]

   The Crown submitted that the sentencing judge’s characterisations, properly understood, do not equate to a finding that the applicant planned the offence, but rather that she intended to harm the victim. In this sense, the detention was consistent with the applicant’s stated intention in her text message extracted at [14] above. The applicant’s detention of the victim was not confined to the periods when she was present, so that the finding that it lasted for approximately 20 hours was open on the evidence.

8. [91]

   The principles that apply to this Court when assessing primary fact-finding and inferences drawn from primary facts made in a sentence hearing were recently reviewed (and in one respect revised) in the judgment of this Court (which sat as a five-judge bench) in Hancock v R [2025] NSWCCA 213 (“Hancock v R”). At [73], the Court stated that an error of the kind identified in House v The King is established if a finding of primary fact, or an inference drawn from a finding of primary fact, was not “reasonably open” on the evidence and it was a material error.

9. [92]

   Part of the applicant’s submission is that the sentencing judge’s characterisation of the offending behaviour necessarily attributed to the applicant a degree of planning of the offence. However, to my mind, committing an offence in a calculated, systematic or methodical way does not necessarily denote that planning was involved.

10. [93]

    The applicant’s text messages the night before conveyed her intention at that time to cause serious harm to the victim, if she had an opportunity to do so. When questioned in cross-examination about the text extracted at [14], she agreed that she was threatening to kill the victim. In examination in chief, she explained what she meant by the text message that she sent immediately before discovering the victim in her son’s bed, extracted at [19] above:

11. [94]

    In the passage from the sentencing remarks extracted at [10], the sentencing judge noted that the victim’s evidence was that, at the outset of the ordeal, the applicant told her that she was going to put her in fear of her life, just as her daughter was put in fear. Her Honour said that this evidence was “reinforced” (that is, corroborated) by the content of the text messages that the applicant had sent to AB. Her Honour continued: “In the result [the applicant] methodically carried out that threat, an essential part of which was a lengthy detention and numerous assaults”. The references to the applicant carrying out the abuse “in a calculated and systematic fashion over the course of a whole day”, in the passage extracted at [80], similarly place the characterisations in the context of the length of time of the abuse.

12. [95]

    The gravamen of the detain offence was the “psychological advantage” sought by the applicant which, in the circumstances of this case, was to cause suffering to the victim by inducing a sustained sense of fear of her impending death, in the course of which actual bodily harm was inflicted. Although the applicant was not in the victim’s immediate presence throughout the detention, it was open to the sentencing judge to find that on the evidence the applicant ensured that the victim could not leave the premises throughout that period, through locking the shed door, the use of the cable ties and the agency of the three co-offenders, thus maintaining the level of fear that had been induced in the victim by the initial assaults and continuing threats, such as to give her a fatal dose of methadone or use power tools on her head. In that fashion, the applicant maintained the psychological pressure over the whole period that the victim was in the shed or overseen by at least one co-offender, even though the physical assaults book-ended that period.

13. [96]

    For those reasons, in my view, it was reasonably open to the sentencing judge to make the challenged findings; they were well-founded in the evidence and, accordingly, ground 1 is not made out.

(b) Her Honour failed to find a causal connection between the applicant’s mental health conditions and the detain offence

1. [97]

   As to ground 2(a), the applicant submitted that in assessing the nature of the trauma underlying the applicant’s PTSD, the sentencing judge either disregarded or overlooked the undisputed evidence that she had been sexually assaulted in about 2011 and that such assault(s) resulted in the pregnancy of her son, which was a failure to take into account a material consideration: House v The King (1936) 55 CLR 499; [1936] HCA 40.

2. [98]

   As to ground 2(b), the applicant referred to the two bases for the sentencing judge’s rejection of Dr Dilati’s opinion as to a causal connection, in the first paragraph of the extract of her sentencing remarks above at [80]. The applicant submitted that neither basis was “proper”. As to the first, the elements of unreliability were not sufficiently material to undermine the validity of the PTSD diagnosis, in particular, the differences as to the year of her brother’s death and her omission to Dr Dilati of her legal studies. As to the second, the applicant relied upon her analysis of the evidence in support of ground 1, submitting that the evidence supported Dr Dilati’s opinion that the detention and threats “were more consistent with the distressed, hyper-aroused and reactive state that Dr Dilati explained precipitated a ‘fight or flight position’ and, in turn, the offending”.

3. [99]

   The applicant further submitted, referring to the last paragraph in the extracted passage of the sentence remarks above at [80]:

4. [100]

   The Crown disputed the applicant’s premise in support of ground 2(a), since the sentencing judge referred to the applicant’s conflicting accounts of the 2011 sexual assault and Dr Dilati’s opinion that it contributed to her diagnosis of PTSD. The Crown submitted that, although the sentencing judge did not accept Dr Dilati’s opinion that there was a causal link between the applicant’s “mental condition” and the offending so as to reduce her moral culpability:

5. [101]

   In so submitting, the Crown agreed with the applicant’s understanding of the sentencing judge’s reference to the term “mental condition” as used in the passage at [80] above.

6. [102]

   The sentencing judge recited Dr Dilati’s diagnoses of the applicant and extracted the passage from Dr Dilati’s report emphasised at [60] above (which was the diagnostic basis of her opinion as to a causal connection) but did not, in terms, accept them. As to whether it may be inferred that her Honour accepted the diagnoses, although the parties are in agreement that it may be inferred from the term “mental condition” in the extracted passage at [80] above that she did, in my view what her Honour meant in that passage is that while she accepted that the applicant had experienced trauma that was traceable to the deaths of her brother and husband and anxiety over her son’s medical condition, the nexus advanced by Dr Dilati was not established for the two reasons that her Honour gave. That being so, her Honour did not further consider Dr Dilati’s diagnoses and, it follows, it could not be inferred that they were accepted.

7. [103]

   The sentencing judge only referred to the 2011 sexual assault in the context of it being one of the significant discrepancies in the history the applicant provided to Dr Dilati, as opposed to her version in the police report and, by implication, the difficulties that created in the absence of corroboration for accepting Dr Dilati’s findings. That being the only reference, it is not reasonably possible to infer that her Honour accepted, on the balance of probabilities, that the applicant had in fact been sexually assaulted in 2011 according to either (or a different unknown) scenario.

8. [104]

   In Hancock v R, the Court noted at [78] that certain other sentencing principles are unaffected by its determination, including the following:

9. [105]

   The question is whether it was reasonably open to her Honour to not accept the applicant’s history that she gave to Dr Dilati that she had been sexually assaulted in 2011 and Dr Dilati’s opinions that the applicant had PTSD and that her mental health condition, as relevantly described by Dr Dilati, was causally connected with the offending behaviour.

10. [106]

    The sentencing judge explained why she did not accept Dr Dilati’s opinion that there was a causal link of sufficient strength between the applicant’s mental condition and the offences, in the passage extracted above at [80]. The first was the inherent unreliability of the applicant’s account to Dr Dilati. The second was the incongruity between the offending behaviour and the aspects of the applicant’s mental condition that Dr Dilati considered to be relevant to causation. The applicant was able to attend to various family functions while at the same time detaining the victim (“this was not an impulsive episodic outburst of violence”), which was at odds with Dr Dilati’s opinion that the applicant committed the offences because she was:

11. [107]

    I accept that some of the discrepancies between the applicant’s history to Dr Dilati and her history to others are of little moment or significance, such as the year in which her brother died (particularly since Dr Dilati also recorded the applicant’s account to her that she was stressed by the victim’s car accident coinciding with the 10th anniversary of his death, meaning that it did occur in 2011) and the circumstances of her leaving home as a young adolescent. The same could not be said of the conflict between the applicant’s two accounts of the circumstances of the sexual assault, which was so fundamental as to give rise to a question of whether her account to Dr Dilati of the sexual assault, in the absence of sworn evidence from the applicant or other corroboration, was credible. In my view, in those circumstances, it was reasonably open to the sentencing judge to either not accept or give little weight to that aspect of the history provided to Dr Dilati.

12. [108]

    The sentencing judge’s second basis for rejecting Dr Dilati’s opinion as to a nexus was also reasonably open on the evidence. It is difficult to reconcile Dr Dilati’s opinion that the applicant committed the 20-hour-long detention offence while in a “fight or flight” state of mind, having regard to the controlling and sustained nature in which it was carried out and the absence of any threat from the victim. Dr Dilati’s opinion is more referable to the account of the offence that the applicant gave her, which was wholly discredited by the jury’s verdict, although Dr Dilati maintained her opinion in spite of the presumed content of the Crown Case Statement for the trial.

13. [109]

    I am satisfied that the sentencing judge did give due consideration to the applicant’s claim to Dr Dilati that she was sexually assaulted in 2011 and to its relevance to Dr Dilati’s opinion that the applicant had PTSD. I am also satisfied that it was reasonably open to the sentencing judge to find that there was not a causal connection between the applicant’s mental condition and the detention offence.

14. [110]

    In my view, sub-grounds 2(a) and (b) are not made out.

The aggregate sentence is manifestly excessive

1. [111]

   The principles that apply to a determination of whether a sentence is manifestly excessive were succinctly stated by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443]:

2. [112]

   The applicant submitted that manifest excess is demonstrated by a review of comparative cases. Banat v R [2020] NSWCCA 321, Green v R [2022] NSWCCA 230, Jackson v R [2022] NSWCCA 148 and Rahman v R [2023] NSWCCA 148.

3. [113]

   The case of Banat was an appeal on two grounds against an aggregate sentence imposed after the applicant’s conviction at trial for four offences, one being a count of specially aggravated detain with intent to ransom (in company, occasion actual bodily harm) contrary to s 86(3) of the Crimes Act, for which he received an indicative sentence of 8 years. One of the grounds was the severity of the aggregate sentence, which was dismissed.

4. [114]

   The victim was kidnapped and held for 39 hours. The circumstances were described by Brereton JA at [3] as follows.

5. [115]

   Brereton JA referred to the sentencing judge’s findings at [6] and [7]:

6. [116]

   Brereton JA concluded (Walton and Beech-Jones JJ agreeing), at [31] and [32]:

7. [117]

   The case of Green was an appeal against sentence on the basis that it miscarried due to an oversight by the applicant’s solicitors in the pre-trial phase of the proceedings. The appeal was upheld and the applicant was re-sentenced. The applicant had pleaded guilty to an offence contrary to s 86(3) of the Crimes Act of detaining a person with intent to obtain financial advantage and causing actual bodily harm in the course of the detention. At first instance, he received a sentence of imprisonment for 6 years and 7 months with a non-parole period of 3 years and 4 months. He was re-sentenced to imprisonment for 5 years and 8 months with a non-parole period of 3 years.

8. [118]

   The applicant and three offenders attacked the victim in a joint criminal enterprise to recover money from him for rent owed. The applicant was also motivated by a suspicion that the victim had stolen money from him. The victim was detained over a period of about 15 hours. He was kneed, kicked and punched multiple times to his head and subjected to verbal abuse. During the detention, while the applicant was not present, a co-offender cut the victim’s cheek with a knife.

9. [119]

   The applicant was on bail at the time. He was found to be “belatedly” remorseful and to have engaged in community treatment services, including a residential drug rehabilitation program (for which his sentence was reduced by three months on the basis of it being a form of quasi-custody), while awaiting sentence. His moral culpability was reduced pursuant to Bugmy [2] principles consequent to his disadvantaged background. The sentencing judge found special circumstances and observed that the applicant had “done everything he [could] do during his period of remand to demonstrate a progress to rehabilitation”.

10. [120]

    On re-sentence, the Court accepted the findings of the sentencing judge and took into account evidence of the applicant’s progress in custody since sentence and a parity consideration.

11. [121]

    In Jackson, the applicant pleaded guilty to two counts contrary to s 86(3) of the Crimes Act of specially aggravated take and detain in company with intent to commit a serious indictable offence occasioning actual bodily harm and a count of reckless wounding in company, for which she received an aggregate sentence. An offence of robbery in company on a Form 1 was taken into account on each of the detain offences. The applicant received an aggregate sentence of 7 years’ imprisonment with a non-parole period of 4 years and 6 months. Following a 25 per cent discount for her early guilty pleas, the indicative sentence for each of the detain offences was 5 years’ imprisonment.

12. [122]

    The sole ground of appeal was an alleged unjustifiable disparity with the sentence imposed on one of her five co-offenders, who received an intensive correction order for a period of 3 years. She did not contend that her sentence was manifestly excessive.

13. [123]

    The applicant and her co-offenders detained and assaulted two persons over a period of about 24 hours. The applicant’s motive was “somewhat obscure”. The reckless wounding count arose from the applicant stabbing one of the victims to her knee, causing a 1.5cm wound, during the detention.

14. [124]

    The sentencing judge found that the applicant was not one of the dominant participants, that no participant was involved to a greater or lesser extent than the others in the planning, that others inflicted a higher degree of physical violence on the victims than the applicant and that all offenders were present during the commission of the physical violence and use of the weapons. The offending fell slightly above the mid-range of objective seriousness.

15. [125]

    The Crown accepted that the applicant had a strong subjective case and that the Bugmy principles were enlivened. The sentencing judge found that the applicant had expressed genuine contrition and remorse for her actions, that she had good prospects of rehabilitation and did not have a significant criminal record.

16. [126]

    The ground was allowed. On re-sentence, N Adams J adopted all of the sentencing judge’s findings except for a finding that there was little to differentiate the applicant’s case on sentence from the co-offender whose sentence was said to be unjustifiably disparate. Her Honour proposed a fresh aggregate sentence of 6 years’ imprisonment with an aggregate non-parole period of 3 years and 10 months. The indicative sentences for each of the detain offences was 4 years and 6 months imprisonment.

17. [127]

    In Rahman, the applicant pleaded guilty to two counts contrary to s 86(3) of the Crimes Act. An aggregate sentence of 10 years and 6 months was imposed, with a non-parole period of 6 years and 9 months. The indicative sentences were as follows. For the first detain offence, after a 10 per cent discount for the guilty plea, a sentence of imprisonment for 8 years and 6 months; for the second, after a 25 per cent discount for his guilty plea and taking into account two other offences on a Form 1 (knowingly directing a criminal group and fitting a vehicle with a tracking device in order to locate it), a sentence of 5 years’ imprisonment.

18. [128]

    The applicant and a co-offender entered into a joint criminal enterprise to abduct individuals for monetary gain, with the assistance of a second co-offender. Two such abductions were carried out. The first victim was abducted by the applicant’s two co-offenders from the victim’s workplace and struck on his head with a pistol, causing grievous bodily harm. The victim was then further “bashed” by the co-offenders, driven to a semi-rural property, and placed, unconscious, into a shed. A demand was made for the payment of $4 million, and the beating continued. The victim was left in the shed overnight, where he was subsequently found by passers-by. His injuries were summarised as follows:

19. [129]

    The second detain offence was only partly successful. The intended victim was able to escape while the two co-offenders were attempting to transfer him from his vehicle into their vehicle, following a manufactured car accident. He suffered cuts and abrasions, and an injury to a shoulder and a bicep which required surgery.

20. [130]

    The applicant’s motive for the offences was his financial difficulties. His personal history included exposure to significant trauma in his country of birth (Lebanon), physical abuse during his childhood in the family home by his father, sexual abuse when aged nine by a church figure which prompted substance abuse to block out the memories, and homelessness from the age of 16. He had a history of violent offending, including offences of common assault, stalk and intimidate, and breaching a domestic violence order.

21. [131]

    The Crown submitted that the cases relied upon by the applicant do not support the proposition that the sentence imposed on her was manifestly excessive. The Crown referred to another case as a comparative, O’Brien v R [2023] NSWCCA 41. In that case, the applicant was convicted at trial of three offences arising from the one incident: robbery in company, specially aggravated detention contrary to s 86(3) of the Crimes Act (in company, inflicting actual bodily harm) and taking and driving a conveyance without the consent of the owner. He received an aggregate sentence of 14 years’ imprisonment with a non-parole period of 9 years. The indicative sentence for the detain offence was 13 years’ imprisonment.

22. [132]

    The applicant and a co-offender robbed the applicant’s previous workplace, which was a hotel at Thredbo. They arrived at the hotel shortly after 4am and detained the “night auditor” by holding a knife to his face and binding his hands with duct tape. The applicant relied on his inside knowledge to open the hotel safe and steal, in all, over $30,000. They placed the victim in the rear of a hotel van and bound his feet as well with duct tape. The two offenders left the area, the applicant driving the van and his co-offender driving the vehicle in which they had travelled to the hotel. The victim was able to remove the duct tape from his hands and legs, and while the van was being driven towards Jindabyne, he leapt from it, suffering serious injuries but making good his escape. He had lacerations to his skull and hip, a pneumothorax (air in the pleural cavity) and his right lung nearly collapsed. The chest injuries and complications were found by the sentencing judge to “have been life threatening without prompt treatment”. The length of the detention was about an hour. The sentencing judge found that the objective seriousness of the detain offence was “above the mid-range and towards the upper range”.

23. [133]

    The applicant was aged 41. His upbringing was unremarkable. He had no physical or mental health issues. He had used cocaine since the age of 20 but had not developed a dependency on it. The sentencing judge found that his motivation for committing the offences was financial gain and revenge for his employment at the hotel having been terminated. He had a criminal history, the most serious offence having resulted in a suspended sentence of imprisonment.

24. [134]

    The cases to which the Court was taken by the parties demonstrate, unsurprisingly, that offences contrary to s 86(3) of the Crimes Act encompass a wide range of circumstances as well as degrees and types of injury that come within the meaning of actual bodily harm, with a consequent wide range of comparative sentences. I do not think that, in the context of the sentencing judge’s findings, the comparative cases relied upon by the applicant demonstrate manifest excess.

25. [135]

    The sentencing judge’s basis for finding that the objective seriousness of the detain offence was relatively high, extracted at [76] above, is unimpeachable. Elsewhere in her remarks, the sentencing judge referred to the victim’s “compelling evidence” that she believed that she was about to die, and summarised the detain offence as follows:

26. [136]

    The applicant’s subjective case in relation to both offences, as assessed by the sentencing judge, included positive findings as to her prospects of reoffending and rehabilitation. The hardship that she faced with a custodial sentence, so long after her first prison sentence and coupled with the burden of her physical ailments and family separation, were recognised in the finding of special circumstances and the reduction of the statutory ratio of the non-parole period to 55 per cent of the total sentence. There is no complaint about the sentence imposed for the influence witness offence or the structure of the two sentences.

27. [137]

    In my view, ground 3 is also not made out. In relation to all three grounds, I would grant leave to appeal and refuse the appeal.

28. [138]

    McNAUGHTON J: I agree with Ierace J.