R v Proud

1. [1]

   HIS HONOUR: On 28 July 2014, I sentenced Michelle Proud and two of her co-accused for the murder of Katherine Foreman on 27 October 2011: see R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979. On 21 March 2016, Ms Proud successfully appealed against her conviction to the Court of Criminal Appeal: see Proud v R (No 2) [2016] NSWCCA 44. A new trial was ordered. At a call-over before Garling J on 11 November 2016, the Crown indicated that it would not be proceeding against Ms Proud on the basis of joint criminal enterprise but on the basis that she was an accessory before the fact to the murder of Ms Foreman. On 16 December 2016, Ms Proud was arraigned and pleaded guilty to that charge. Ms Proud now stands to be re-sentenced in those circumstances. It is agreed between the Crown and Ms Proud that the factual basis for her guilt is the same as that found by me for the purposes of sentencing her the first time.

2. [2]

   My original sentencing remarks following the jury’s verdict contained the following paragraphs:

3. [3]

   Under the heading “Objective seriousness”, I also made the following findings:

4. [4]

   Before proceeding further it is necessary to deal with what counsel for Ms Proud suggested was a conflict or tension between my finding that she “was a willing and enthusiastic contributor in the plan to cause very substantial harm to the deceased” on the one hand and my conclusion that “with one relevant exception, her role in that enterprise was entirely passive” on the other hand. There is no tension or conflict between these two statements as long as it is understood that Ms Proud’s willingness and enthusiasm, to which I was there referring, was limited to her role in introducing Ms Evans to Mr Spicer. Whatever may have been her enthusiasm for that particular role, it remains true that it was small in the overall scheme of the plan and that she was in all other respects only passively involved in it.

5. [5]

   Ms Proud stands to be sentenced in accordance with s 346 of the Crimes Act 1900. It is as follows:

6. [6]

   It was contended by the Crown that the standard non parole period applicable to the charge of murder should apply in this case. However, Aoun v R [2007] NSWCCA 292 at [27] is to the contrary, as indicated by Hodgson JA:

Subjective circumstances

1. [7]

   My original sentencing remarks contained the following material concerning Ms Proud’s subjective circumstances:

2. [8]

   Ms Proud was recently re-examined by Dr Nielssen on 31 January 2017 by audio-visual link to the Dillwynia Correctional Centre. Under the heading “FURTHER OPINION” Dr Nielssen said this concerning Ms Proud’s present position:

3. [9]

   Dr Nielssen said that there was no obvious link between Ms Proud’s depression and the actual offence, as opposed to the circumstances that led to it. He considered that Ms Proud was affected by fear arising from physical and other abuse from her partner, which in turn affected her ability to resist his requests or to act against his wishes. He thought that her life choices were affected by the experience of sexual abuse, and her bereavement around the time she entered the relationship. Dr Nielssen thought that Ms Proud’s mental health had improved considerably since his previous assessment, and she reported that she had received all the help she has needed while in custody. Dr Nielssen also considered that she appeared to have made significant gains since his previous assessment and since her reception to custody, both in her mental health and in her ability to make healthy lifestyle choices.

4. [10]

   Dr Nielssen considered that Ms Proud’s prospects of rehabilitation were good in comparison to most other offenders, as she did not have any kind of substance use problem, or any pattern of criminal conduct, and could be expected to return to paid employment and to draw on her experiences to take over the proper care of her children. However, she still carries a risk of a further episode of severe depression if she were to cease treatment and is likely to require ongoing treatment for depression with both an adequate dose of antidepressant medication and continued supportive counselling, especially in the period after her release from prison.

5. [11]

   In my view it remains important to take into account that Ms Proud had no significant criminal record and was of prior good character. She has a history of having been sexually abused by family members in childhood, which has been a contributor to her depression. The offence occurred in the context of a violent and abusive relationship into which she entered when severely depressed and emotionally vulnerable. Ms Proud has now moved on from any relationship with Mr Spicer. Significantly, she has no history of drug or alcohol use or abuse. She presents as far as can be assessed as a loving and caring mother. She was formerly employed full time before having children.

Mitigating factors

1. [12]

   My original remarks recorded the following matters under this heading:

2. [13]

   Ms Proud gave evidence when originally sentenced. She did so again for the purposes of these sentencing proceedings. She said that she had found it very difficult to accept responsibility for her part in the murder of Ms Foreman. She was asked what she believed her part in the event had been. She responded as follows:

3. [14]

   Ms Proud said that she now hated herself, she felt disgusted and cannot forgive herself for what she has done to Ms Foreman and her family. Ms Proud expressed herself in a letter addressed to the Court, some of which is in the following relevant terms:

4. [15]

   I remain satisfied that Ms Proud is genuinely remorseful for her involvement in the events that led to the death of Ms Foreman. It was however contended by the Crown that Ms Proud’s recent statements of remorse could not be any more significant for present purposes than her original expressions of remorse were when she was originally sentenced. The proposition is that she either is or is not remorseful and that maintenance of her attitude over time cannot increase its value or significance for present purposes.

5. [16]

   I think that submission fails to accommodate the fact that a sentencing judge is entitled to take account of any material that is properly before the Court. Predictions are often made about prospects of rehabilitation and the like when no perfect understanding of what might occur in the future is available. It seems to me that information that admissibly informs the Court about the progress or otherwise of a particular offender ought to be given consideration in sentencing that person. In the present case, the more recent material serves to reinforce the conclusion about the genuineness of Ms Proud’s remorse that I earlier formed. It does not alter its significance but does increase the level of confidence in my original finding.

Deterrence

1. [17]

   I also remain of the view that my original findings concerning deterrence are still applicable. They were as follows:

2. [18]

   I am reinforced in these views all the more by testimonials tendered on Ms Proud’s behalf from Chaplain Suzie Johnson and Josie Vander-Reest from Victim Services Counselling NSW. I have also had regard to various extracts from the NSW Department of Corrective Services case notes that appear to confirm Ms Proud’s significant progress since being taken into custody, with positive prognostic significance for her return to society.

Special circumstances

1. [19]

   I consider that there are still special circumstances justifying some alteration of the statutory ratio in Ms Proud’s case. As I said when originally sentencing Ms Proud:

Plea of guilty

1. [20]

   Following her successful appeal, Ms Proud was re-arraigned on 8 April 2016. A trial date of 13 February 2017 was allocated. The matter was next listed for mention before the trial judge on 11 November 2016 and readiness for trial was confirmed. On 16 December 2016, she pleaded guilty. This was eight months after the trial had been set down.

2. [21]

   Ms Proud has submitted that a discount in the order of 15 to 20 percent is appropriate to reflect the utilitarian value of the plea. The Crown has submitted that a discount of something less than 10 percent is appropriate. In my view, a discount of 10 percent should apply.

Consideration

1. [22]

   A starting point for the determination of a proper sentence is the assessment of the role played by the particular offender in the commission of the offence: see, for example, Lowe v The Queen (1984) 154 CLR 606 at 609; [1984] HCA 46. Moreover, an offender’s state of mind is to be assessed at the time he or she performs the act or acts that constitute the role played by that offender in the commission of the offence, rather than at the time that the offence is committed: White v Ridley (1978) 140 CLR 342; [1978] HCA 38. The assessment of the offender’s state of mind at that time is crucial in assessing his or her role and culpability. In the present case, this calls for a determination of whether Ms Proud had prior knowledge of a plan to cause really serious harm, or alternatively to cause some harm with foresight of the possible infliction of really serious harm, to Ms Foreman and if so, whether she assisted, encouraged or facilitated the execution of that plan. The Crown submitted that this was the basis upon which I originally sentenced Ms Proud and that it remains the basis upon which I should sentence her now. The Crown submitted that I am “now sentencing [Ms Proud] for murder on exactly the same basis as in the first sentence”.

2. [23]

   The Crown specifically accepts my findings in the previous sentence and the basis for the sentence. This is referred to at [194] and [195] of my original remarks on sentence, extracted above. I was satisfied beyond reasonable doubt that Ms Proud was part of a joint criminal enterprise to cause serious harm to Ms Foreman but that her role was passive, apart from her introduction of Mr Spicer to Ms Evans. However, as the Crown now emphasises, that act alone would not have inculpated her as an accessory before the fact for murder unless she was aware of the purpose for introducing Mr Spicer to Ms Evans. As the Crown correctly observes, her present plea of guilty accepts that proposition. Having regard to the absence of any other evidence about it, this necessarily directs attention to the intercepted conversation that Ms Proud had with Michelle Gallagher on 15 December 2011, following Ms Foreman’s death.

3. [24]

   At [190] of my original remarks on sentence I expressed the opinion that the distasteful and pejorative statements made by Ms Proud to Ms Gallagher concerning Ms Foreman appeared on one view to have been repeated as some kind of justification for what had happened to her. Ms Proud had had no personal dealings with Ms Foreman, she did not know her and she had no personal reason to dislike her. She could have had no truthful or rational basis for saying what she said unless it was her clearly misguided attempt to diminish Ms Foreman and thereby simplistically also to diminish for Ms Proud’s own purposes the significance or importance of Ms Foreman’s terrible death.

4. [25]

   In this respect, the Crown has correctly observed that, in my original remarks, I did not find that what Ms Proud said to Ms Gallagher should or could be interpreted as her recounting to Ms Gallagher what she in fact told Mr Spicer to do to Ms Foreman. Having had the opportunity on several occasions to see and hear Ms Proud in the witness box, I am inclined to the view that she did not instruct Mr Spicer in the terms related to Ms Gallagher but that the conversation was in fact replete with hyperbole and self-justification in the way I have just described. Importantly for present purposes is the fact that it means that Ms Proud’s role in the death of Ms Foreman was limited to the introduction of Mr Spicer to Ms Evans with the requisite appreciation of what might happen to Ms Foreman rather than the substantial encouragement of the commission of the offence. A finding that Ms Proud was in fact recounting to Ms Gallagher what she had said to Mr Spicer accords with the basis of her liability, as the Crown points out, but it is not a precondition of it.

5. [26]

   Significant among the reasons why I do not consider that Ms Proud was accurately relating to Ms Gallagher what she said to Mr Spicer in the 15 December conversation is that it does not sit comfortably with the events and timeline of 25 and 26 October 2011. On 25 October, Ms Proud lost her licence after appearing in court. She spoke to Ms Evans that same day sometime between 12.30pm and 4.30pm. She told Ms Evans that she had lost her licence and had sold her car and that she was devastated. Ms Evans invited Ms Proud to come down to Wollongong for a holiday. Later that evening, Ms Evans called Ms Proud again and asked her if she knew anyone who could “do something to Katie”. Ms Proud said “no”. She then went out to see Mr Spicer in the garage and told him that Ms Evans had called asking if she knew anyone that could do something to Ms Foreman. Ms Proud said to Mr Spicer that she did not want him to get involved. Later that evening Ms Proud overheard Mr Spicer talking to Ms Evans saying “I will do it”. She did not ask Mr Spicer what “it” was and they did not speak about it later in the evening. Later that night, Mr Spicer came into the house and told the family that they were going to Wollongong for a holiday. Mr Spicer said that Ms Evans was going to hire a Tarago to get them down there.

6. [27]

   It is clear that Ms Proud’s original evidence that she was unaware of what it was that Mr Spicer had agreed to do must be rejected for present purposes. It is at the very least a contradiction of her plea. The point of referring to this evidence is to characterise the very small timeframe between Mr Spicer’s recruitment and Ms Foreman’s murder. The likelihood that Ms Proud “instructed” Mr Spicer within that timeframe in the terms that she purported to repeat to Ms Gallagher on 15 December seems to me to be extremely low. On the contrary, the likelihood that Ms Proud became aware on the evening of 25 October 2011 of the simple fact that Mr Spicer had been recruited by Ms Evans to cause harm to Ms Foreman appears by comparison to be extremely high. For present purposes it is an accepted fact.

7. [28]

   Accepting that Ms Proud’s current plea acknowledges an understanding that, in introducing Mr Spicer to Ms Evans, really serious harm may be caused to Ms Foreman, it is instructive to appreciate, in comparison to her co-offenders, and in assessing the role played by her in the commission of the offence, what it was that Ms Proud did not do. It is not possible to be exhaustive in compiling a list of things that did not happen, but Ms Proud did not drive Mr Spicer to Wollongong. She did not provide him with funds to purchase the items that combined to cause the fire. She did not attend the premises on the night. She did not perform acts of a practical nature that contributed in a causal sense to the death of Ms Foreman. Indeed, Ms Proud had never met Mr Rawlinson before the death of Ms Foreman, let alone seen him in the company of Mr Spicer or Ms Evans. Although it is strictly beside the point, it is not difficult to imagine, having regard to the evil determination of Mr Rawlinson and Ms Evans, that they would have been able to do what they did even without Ms Proud’s introduction of Mr Spicer. In that sense it can be seen that her role was not critical or indispensable.

8. [29]

   One significant contention advanced by the Crown in these sentencing proceedings is that the factual basis for Ms Proud’s liability is identical to that upon which she was originally sentenced and that, having regard to the terms of s 346 of the Crimes Act 1900, she should receive a sentence on her plea of guilty as an accessory before the fact to murder that is not substantially different to her original sentence for murder. That submission is supported by reference to the same maximum penalty for both offences.

9. [30]

   I have some difficulty with this submission. In the course of dealing with one of Ms Proud’s (ultimately rejected) grounds of appeal, Hulme J in Proud v R (No 2) [2016] NSWCCA 44 said this at [80]:

10. [31]

    In my opinion, the Crown’s current submission appears to draw upon this paragraph. However, in my view it does so erroneously as it conflates the commonality of factors necessary to establish Ms Proud’s guilt for the different offences (of joint criminal enterprise murder or accessory before the fact to murder respectively) with the existence of a common level of criminal culpability for each. The error in this approach is that Ms Proud’s criminal culpability as a participant in a joint criminal enterprise anticipates all of the criminality of the other participants in it, whereas her criminal culpability as an accessory before the fact includes only those acts performed by her, with particular regard to the time they were performed: see, for example R v Stewart; R v Schofield [1995] 3 All ER 159.

11. [32]

    This important distinction is perhaps best captured in the decision of Mathews J in R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140 at 145:

12. [33]

    Significantly for present purposes, Ms Proud’s acts were limited in scope even though performed upon the day preceding the murder. As I have already explained, my description of her as an enthusiastic contributor to the plan should not be confused with a description of her practical contribution to its performance. That distinction is important. I repeat for present purposes, with appropriate adjustments, what I said at [194] and [195] of my original remarks on sentence. However, having regard to those adjustments, I consider that Ms Proud’s offence falls towards the low to moderate end of seriousness for offences of its type.

13. [34]

    Ms Proud should be sentenced upon the basis of the acts performed by her that inculpate her as an accessory before the fact to murder. I consider that her role was minor. I maintain my view that is was mostly passive. I discount as presently relevant the unfortunate events in which Ms Proud became involved after the death of Ms Foreman. Those events do not cast her in a good moral light, but they are not germane to the assessment of her culpability or the assessment of a proper sentence. The awful and tragic significance of Ms Foreman’s death is something to which I have previously referred. It is important to recall that three of Ms Proud’s co-offenders are currently serving a combined total head sentence of 92 years, with a combined total non-parole period of 69 years for their roles in this crime. Consideration of the sentence I intend to impose upon Ms Proud should incorporate that solemn fact.

Sentence

1. [35]

   Michelle Sharon Proud, for the offence of being an accessory before the fact to the murder of Katherine Foreman you are convicted. I sentence you to a term of imprisonment of 10 years commencing on 21 December 2011 and expiring on 20 December 2021 with a non-parole period of 6 years expiring on 20 December 2017.