Citation: R v Crystal MARES; R v Michael MIDDLETON [2007] NSWDC 396
Court: District Court of New South Wales
Date: 13 December 2007
Judge(s): Cogswell SC DCJ
Background
On the night of 10 to 11 July 2006, a woman and three men attended the home of a man she had known since January 2006. Over the preceding months, the victim had paid her significant sums of money at her request. She organised the men to attend with her, paying each $1,000 to provide physical intimidation, and on the way she became aware one of them was carrying a firearm.
When the victim answered the door, it was pushed open and the men entered his home. They ransacked and stole property including a television, DVD player, and other household items. The woman then demanded $20,000 from the victim by the following Wednesday and threatened to send people to his mother's home with a firearm if he did not comply.
The woman was arrested the next day and admitted to organising the men. The male co-offender was located through phone and DNA evidence several months later and voluntarily attended the police station. Both entered guilty pleas at the earliest opportunity.
Legal Issues
- What sentences were appropriate for each offender, given their different roles in the offences?
- How should the objective seriousness of the offences be assessed, including the relevance of planning, the presence of a firearm, and the victim being at home?
- What weight should be given to mitigating factors including early guilty pleas and histories of drug abuse?
- Were there special circumstances justifying a departure from the standard ratio between non-parole and parole periods?
Decision
Cogswell SC DCJ assessed the offences as falling in the middle of the range of objective seriousness. The planning involved, knowledge that one man was armed, and the direct threat to the victim and his mother were all treated as aggravating features. However, the firearm was not brandished in the victim's presence, which the court noted would have been more serious still.
The court distinguished clearly between the two offenders' roles. The woman was the organiser: she knew the victim, devised and initiated the plan, recruited and paid the men, and issued the threats directly. She bore substantially greater culpability. The male co-offender attended at her request, guarded the victim while others stole property, and played a supporting rather than directing role.
Both offenders had prior criminal histories and histories of drug abuse. The court accepted that drug addiction did not reduce the objective seriousness of the woman's offences given the level of planning involved. The male co-offender was on parole at the time of the offences, which the court treated as an aggravating factor in his case. Early guilty pleas were recognised as a significant mitigating factor for both.
Special circumstances were found to exist for both offenders, warranting a departure from the standard non-parole to parole ratio. The court adjusted the ratio to allow for longer parole supervision periods, particularly to support rehabilitation given both offenders' drug histories.
Orders Made
Crystal Mares:
- Aggravated break and enter and commit a serious indictable offence: non-parole period of 3 years, balance of term of 3 years (total sentence of 6 years, commencing 11 July 2006)
- Demanding money with menaces: fixed term of 3 years (concurrent, expiring 10 July 2009)
Michael Middleton:
- Aggravated entering a dwelling house with intent to commit a serious indictable offence: non-parole period of 1 year 10 months, balance of term of 1 year 2 months (total sentence of 3 years, commencing 22 December 2006)
- Release on parole ordered for 21 October 2008, with conditions including good behaviour, notification of change of address, appearance in court when called upon, and acceptance of reasonable directions from the Probation and Parole Service
- Stealing in a dwelling house: fixed term of 12 months (commencing 22 December 2006)
Key Takeaways
- Where co-offenders play materially different roles in a planned offence, the sentencing court will assess culpability separately and impose significantly different sentences accordingly; the organiser who recruited, paid, and directed others received a total sentence of six years compared to three years for a recruited participant.
- Planning and organisation, even if executed over a short period, weighs against reducing the objective seriousness of an offence on the basis of drug-induced impulsivity.
- Knowledge that a co-offender carries a firearm, even where that firearm is not shown to the victim, constitutes a significant aggravating factor because it materially elevates the risk of serious injury or death.
- Being on parole at the time of the offences was treated as an aggravating factor in the male co-offender's sentencing.
- Special circumstances justifying an adjusted non-parole to parole ratio may be found where both an offender's rehabilitation needs and the need for extended supervision on release are established, even where both offenders have prior criminal histories.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 99(2) (demanding property in company with menaces with intent to steal)
- Crimes Act 1900 (NSW), s 111(2) (aggravated enter dwelling house with intent to commit serious indictable offence)
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter and commit serious indictable offence)
- Crimes Act 1900 (NSW), s 148 (stealing in a dwelling house)
Cases cited: None referenced in the judgment text provided.