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Court of Criminal Appeal 27 September 2004

Regina v Turner

[2004] NSWCCA 340

Assault & violence
EXCEPTIONAL CIRCUMSTANCES DEPENDENT CHILDREN.

Citation: Regina v Turner [2004] NSWCCA 340
Court: NSW Court of Criminal Appeal
Date: 27 September 2004
Judge(s): Wood CJ at CL, Barr J, Hoeben J

Background

The applicant was convicted after a jury trial in the District Court at Penrith of detaining a person with intent to hold for advantage, where the victim sustained substantial injury upon liberation (under s 90A of the Crimes Act 1900). She had earlier pleaded guilty to a related charge of assault occasioning actual bodily harm (s 59). The offences arose from an incident in July 2000 in which the applicant orchestrated the detention and prolonged assault of a fifteen-year-old boy at her home, with her then-boyfriend inflicting the physical violence using a baseball bat while the applicant directed questioning and assisted in concealing the crime.

The victim was bound and gagged with masking tape, detained for approximately nine hours, and suffered extensive injuries requiring a four-day hospital stay. Knight DCJ sentenced the applicant to eight years' imprisonment with a non-parole period of three and a half years for the s 90A offence, and a fixed term of one year for the assault.

The applicant sought leave to appeal against sentence, arguing primarily that the sentencing judge had given insufficient weight to the impact of her imprisonment on her five dependent children.

  • Whether the sentencing judge gave adequate weight to the applicant's dependent children as a mitigating factor, particularly in the context of "exceptional circumstances" reducing the non-parole period below the statutory norm
  • Whether the head sentence of eight years was manifestly excessive given the applicant's subjective circumstances, including her difficult background, mental health, and role relative to the co-offender
  • Whether the parity principle required a sentence more favourable than the sentence imposed on the co-offender

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in Knight DCJ's exercise of sentencing discretion. Hoeben J, with whom Wood CJ at CL and Barr J agreed, held that the sentencing judge had correctly assessed the objective gravity of the offence. The applicant had played a central role in the joint criminal enterprise, including initiating the detention, directing the questioning that triggered the assaults, and actively concealing the offences.

On the question of dependent children, the Court acknowledged the difficult position of the applicant's five children but found that Knight DCJ had already factored this into the sentence. The non-parole period was set at 44% of the total term, a significant departure below the statutory norm, specifically on the basis of the children's reliance on the applicant and her prospects of rehabilitation. The Court found this reduction adequately reflected that circumstance.

Regarding parity with the co-offender, the Court accepted the sentencing judge's reasoning that the two offenders were not equally culpable. The co-offender had an extensive criminal history, was the one who physically inflicted the injuries, and had received a discount for his plea of guilty. The applicant, having contested the principal charge and shown no remorse, was appropriately denied equivalent leniency. The Court noted that while the applicant was not to be punished more severely for maintaining her innocence, she could not receive any discount that would have flowed from an acceptance of responsibility.

The Court also observed, without treating it as determinative, that programs exist within the prison system for mothers, referencing s 26(2)(l) of the Crimes (Administration of Sentences) Act 1999.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The presence of dependent children can constitute special circumstances justifying a reduction in the non-parole period, but this does not automatically reduce a head sentence that is otherwise commensurate with the objective gravity of the offence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court is not required to give exceptional weight to dependent children where the objective circumstances of the offence are sufficiently serious.
  • Where an applicant maintains a not-guilty plea at trial, the sentencing court is entitled to impose the full measure of an appropriate sentence, without the reduction that would follow an admission of guilt and genuine contrition.
  • Parity between co-offenders does not demand identical sentences where their relative culpability, criminal histories, and conduct at sentencing differ materially.
  • No error warranting appellate intervention was established simply because an applicant's personal circumstances were difficult; the Court will interfere only where some other sentence was warranted in law and should have been passed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 90A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 26(2)(l)

Cases:
- R v Dodd (1991) 57 A Crim R 349
- R v Rushby [1977] 1 NSWLR 594
- R v Todd [1982] 2 NSWLR 517
- Veen v The Queen (No 2) (1988) 164 CLR 465