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Court of Criminal Appeal 25 June 2013

Aubourg v R

[2013] NSWCCA 154

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCING OFFENDERS WHETHER ERROR MATERIAL CRIMINAL LAW APPEAL

Citation: Aubourg v R [2013] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 25 June 2013
Judges: Basten JA; R A Hulme J; Garling J

Background

The applicant pleaded guilty in the District Court to a kidnapping offence under s 86(2)(a) of the Crimes Act 1900 (NSW). The offending arose from a plan she conceived to frighten a man she believed had raped her and who had continued to harass her. She lured the victim into her car, where her boyfriend was concealed in the boot armed with a sawn-off rifle. The victim was handcuffed, threatened at gunpoint, and struck on the head with the firearm before managing to escape.

The applicant was sentenced alongside her boyfriend, Jason Alford, by Sides DCJ in the District Court on 12 September 2012. A third co-offender, Tara Speechley, had already been sentenced separately and had been re-sentenced by the Court of Criminal Appeal to a non-parole period of 12 months in R v Speechley [2012] NSWCCA 130.

On appeal, it was common ground that the sentencing judge had made a factual error. The judge wrongly attributed to the applicant a threatening remark ("Should we cut his fingers off now?") that the agreed facts attributed to Alford, not the applicant. The appeal turned on whether that error materially affected the sentence and, if so, whether a less severe sentence was warranted.

  • Whether the sentencing judge's misattribution of the knife threat to the applicant constituted a material factual error affecting the sentence imposed.
  • Whether, given that error, a less severe sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • Whether reducing the sentence would produce an inappropriate sentencing disparity with the less culpable co-offender, Speechley.

Decision

The Court of Criminal Appeal accepted that the sentencing judge had materially misattributed the threatening remark about cutting the victim's fingers to the applicant when it was, on the agreed facts, Alford's statement. The error was real and affected the judge's characterisation of the applicant's conduct. Leave to appeal was accordingly granted.

However, the Court held that the error did not relate to the most serious aspects of the offending. Setting aside the misattributed remark, the sentence was not shown to be manifestly excessive given the gravity of the objective conduct: the applicant had instigated the entire plan, lured the victim, handcuffed him, and knew Alford was armed with a firearm before the events unfolded.

The Court also found that the applicant's subjective circumstances did not significantly reduce her culpability to a level that would independently justify a reduced sentence. While her belief that the victim had raped her provided some context, it did not substantially alter the objective seriousness of the offending.

Critically, any meaningful reduction in the applicant's sentence would have produced a result close to, or indistinguishable from, the non-parole period imposed on Speechley. The Court found that such an outcome would be inappropriate given the substantially greater culpability of the applicant: she instigated the offending, sourced the car, assaulted the victim with handcuffs, and knew about the firearm in advance, none of which applied to Speechley. The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A factual error by a sentencing judge can be material and still not warrant a reduction in sentence if the error did not bear on the most serious aspects of the offending and the sentence was not manifestly excessive when the error is disregarded.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the question is whether a less severe sentence is "warranted in law," not merely whether an error occurred. The existence of an error does not automatically produce a reduced sentence.
  • Parity principles operate as a constraint on sentencing reduction: where reducing a sentence would effectively equalise it with that of a less culpable co-offender, that outcome may itself constitute a reason to decline the reduction.
  • Co-offenders in a joint criminal enterprise may legitimately be sentenced on different factual bases where agreed facts differ between them. This can produce disparate outcomes, but the Court of Criminal Appeal confirmed this is a practical inevitability rather than an arbitrary result.
  • In assessing disparity, the Court looked beyond total head sentences and gave significant weight to the respective non-parole periods, since both offenders were entitled to automatic parole release at the end of mandatory custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a) (kidnapping in company)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Firearms Act 1996 (NSW)

Cases:
- R v Speechley [2012] NSWCCA 130