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Court of Criminal Appeal 13 August 2002

R v McGourty

[2002] NSWCCA 335

Assault & violencePublic order & justice offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE MANIFESTLY INADEQUATE SENTENCE KIDNAPPING OBJECTIVE CRIMINALITY NEED FOR GENERAL DETERRENCE

Citation: R v McGourty [2002] NSWCCA 335
Court: Court of Criminal Appeal, New South Wales
Date: 13 August 2002
Judge(s): Wood CJ at CL, Giles JA, Levine J

Background

The respondent drove a vehicle used in a violent kidnapping of a 51-year-old security guard in Wollongong. Two male co-offenders robbed the victim at gunpoint, forced him into the respondent's car, and repeatedly assaulted him while demanding his PIN and credit card details. The respondent drove the group into dense bushland at Mount Kembla, where she waited in the vehicle while her co-offenders took the victim into the bush, broke his wrist, tied him to a tree, blindfolded and gagged him, and abandoned him. When police arrived and arrested the respondent, she refused to co-operate about the victim's whereabouts or whether the co-offenders were armed.

The respondent pleaded guilty to one count of kidnapping, an offence then carrying a maximum of 20 years imprisonment. The sentencing judge at Wollongong District Court imposed a two-year term of imprisonment, backdated one week, but then suspended the balance of the sentence on condition of a good behaviour bond. Four additional matters were placed before the sentencing judge on a Form 1 (a procedure by which related offences are acknowledged and taken into account at sentencing without separate convictions being recorded). The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the two-year suspended sentence was manifestly inadequate given the objective seriousness of the kidnapping and the Form 1 matters
  • Whether the sentencing judge erred in his application of the two-tiered sentencing approach by failing to reflect the objective gravity of the offence at the outset
  • Whether the sentencing judge gave excessive and cumulative weight to the respondent's subjective circumstances at the expense of general deterrence and totality
  • Whether this was an appropriate case for a suspended sentence at all

Decision

The Court of Criminal Appeal found the sentence manifestly inadequate. The sentencing judge failed from the outset to select a starting point that properly reflected the objective seriousness of the crime. Kidnapping is among the most serious offences in the criminal calendar, and this was a particularly bad example of it, involving armed co-offenders, prolonged detention, physical violence, threats of torture and death, and the victim being abandoned in bushland in circumstances where he genuinely believed he would die.

The sentencing judge also failed to make proper provision for the Form 1 offences and allowed subjective considerations, while real, to carry disproportionate weight. The Court emphasised that subjective circumstances must be kept in perspective and cannot override the need for general deterrence where the objective criminality is serious. Both the instinctive synthesis approach and the two-tiered approach to sentencing are permissible, but each requires a final check that the sentence as a whole is appropriate to the case. The sentencing judge neglected that review.

On the question of suspension, the Court held that this was not an appropriate case for a suspended sentence regardless of the term imposed. It is not permissible to adjust a sentence downward simply to bring it within the range where suspension becomes available. The respondent's personal circumstances, while deserving of some recognition, could not justify non-custodial treatment in light of the very serious objective features of the crime.

Applying the principle of double jeopardy (which requires some moderation of a sentence on a Crown appeal, in recognition of the additional burden the appeal itself places on the offender), the Court varied the sentence to three years imprisonment with a two-year non-parole period. Special circumstances were found to exist, given the respondent's medical conditions and favourable rehabilitation prospects, justifying a parole period longer than the standard one-third of the head sentence.

Orders Made

  • Crown appeal allowed
  • Sentence below varied
  • Respondent sentenced to three years imprisonment, dating from 5 June 2002 and expiring 4 June 2005
  • Non-parole period of two years, dating from 5 June 2002 and expiring 4 June 2004
  • Respondent to be released on parole on standard conditions upon expiry of the non-parole period

Key Takeaways

  • A sentence is manifestly inadequate where it is so disproportionate to the objective criminality that error must be inferred, even where the offender has genuine subjective mitigating factors.
  • Subjective circumstances, including medical conditions and rehabilitation prospects, must be kept in perspective and cannot displace the need for general deterrence in cases of serious objective criminality.
  • Under the two-tiered sentencing approach, the sentencing court is required to review the final sentence as a whole to ensure it is appropriate to the case, not merely to apply arithmetic adjustments from a starting point.
  • It is not permissible for a sentencing court to adjust a sentence downward for the purpose of making it eligible for suspension; the question of whether to suspend must follow from, not drive, the assessment of the appropriate sentence.
  • In allowing a Crown appeal and resentencing, the Court of Criminal Appeal applied the principle of double jeopardy, moderating the new sentence to reflect the additional burden placed on the respondent by the appeal process itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 90A (since repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 50
- Criminal Appeal Act 1912 (NSW), s 5D
- Children (Criminal Proceedings) Act 1987 (NSW)
- Inclosed Lands Protection Act 1901 (NSW)
- Summary Offences Act 1988 (NSW)

Cases:
- Regina v Zamagias [2002] NSWCCA 17
- Regina v Thomson (2000) 49 NSWLR 396
- Pearce v The Queen (1998) 108 CLR 610
- Dinsdale v The Queen [2000] 175 ALR 315
- Regina v JCE [2000] NSWCCA 498
- Regina v Elhalabi [2001] NSWCCA 516
- Regina v Dodd (1991) 57 A Crim R 349
- Regina v Rushby (1977) 1 NSWLR 594
- Regina v Morgan [1993] 70 A Crim R 368
- Regina v Lemene [2001] NSWCCA 5
- Regina v Bavadra [2000] 115 A Crim R 152
- Regina v Thwaites NSWCCA, 6 October 1993
- Regina v Blackman and Walters [2001] NSWCCA 21
- Regina v Bloomfield (1998) 44 NSWLR 734
- Everett v The Queen (1994) 181 CLR 295
- AB v The Queen (1999) 108 CLR 101
- Regina v Kalache [2000] NSWCCA 2
- Regina v Quatami [2001] NSWCCA 353