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Court of Criminal Appeal 3 November 2023

Richards v R

[2023] NSWCCA 264

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHERE APPLICANT AND HER EX APPLICANT WANTED EX UNDERCOVER OPERATIVE ACTED AS GO

Citation: Richards v R [2023] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 3 November 2023
Judges: Ward P, Davies J, N Adams J

Background

The applicant pleaded guilty in the Local Court to two offences: soliciting a person to kidnap, detain and threaten to pervert the course of justice (contrary to s 319 of the Crimes Act 1900 (NSW)), and contravening an apprehended domestic violence order. The first offence was committed for sentence to the District Court; the second was dealt with concurrently by the same judge.

The offending arose from acrimonious Family Court property proceedings between the applicant and her former husband. The applicant first approached an acquaintance asking him to arrange to kill her ex-husband for payment. That acquaintance went to police, who then arranged for an undercover operative to act as a go-between for a purported "enforcer." In two recorded conversations, the applicant gave detailed instructions for her ex-husband to be lured to a premises under false pretences, detained, and threatened with serious violence until he agreed to sign property settlement documents. She described wanting him threatened with "lifelong injuries" and said she did not care if a gun was put in his mouth. Two months later she told her nephew the arrangement was still on foot.

In the District Court, the applicant was sentenced to 3 years and 3 months' imprisonment (with a non-parole period of 2 years) for the s 319 offence, and 15 months' imprisonment for the ADVO contravention, both commencing 21 July 2022. She sought leave to appeal against sentence on multiple grounds.

  • Whether the sentencing judge failed to give adequate weight to the involvement of an undercover operative when assessing the objective seriousness of the offending
  • Whether the sentencing judge failed to consider the applicant's mental health conditions and their impact on her moral culpability
  • Whether the applicant was denied procedural fairness because the sentencing judge made only a qualified finding of remorse without alerting counsel in advance
  • Whether the sentencing judge erred in failing to consider an aggregate sentence or an intensive corrections order

Decision

Ground 1(a): Undercover operative and objective seriousness. The Court found no error. The applicant was not encouraged or entrapped by the undercover operative. The extent to which police involvement bears on objective seriousness is a matter for the sentencing judge, and no appellable error was demonstrated. This ground was not upheld.

Ground 1(b): Mental health and moral culpability. This ground succeeded. The applicant had been diagnosed with alcohol use disorder, an anxiety disorder, and depressive illness. While the sentencing judge referred to these conditions, her Honour did not explain whether or how they reduced the applicant's moral culpability. The Court found the conditions were "somewhat related" to the offending and that the sentencing judge erred by not addressing their effect on moral culpability. However, having identified error, the Court re-sentenced the applicant and concluded that no lesser sentence was warranted. The offending involved multiple serious threats of violence, was not a single impulsive act, and the applicant had still sought to justify her conduct. The mental health conditions provided only a modest reduction in moral culpability.

Ground 4: Procedural fairness and remorse. The Court held that no denial of procedural fairness was established. Counsel had made a deliberate forensic decision not to call the applicant as a witness, after the sentencing judge had asked whether she would be called. It was not incumbent on the judge to signal in advance that she would make only a qualified finding of remorse. This ground was not upheld.

Grounds 2, 3, 5, 6, 7 (manifest excess; pre-sentence custody; aggregate sentencing; intensive corrections order). Davies J addressed these grounds and found no lesser sentence was warranted. The offence was a serious example of conduct under s 319, involving an initial approach to have the ex-husband killed, two lengthy recorded conversations with the operative, and a follow-up conversation with the applicant's nephew two months later. Most comparable cases did not involve threats of violence of this gravity. The Court approved a 25% discount for early guilty pleas, accepted some remorse, and acknowledged good rehabilitation prospects conditional on the applicant avoiding relapse into alcoholism.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge must not merely refer to a diagnosed mental health condition but must address whether and to what extent it reduces the offender's moral culpability; failure to do so constitutes an error requiring the appellate court to re-sentence.
  • In dismissing the appeal after re-sentencing, the Court of Criminal Appeal confirmed that a modest reduction in moral culpability on account of mental health conditions does not necessarily produce a lesser sentence where the objective gravity of the offending is high.
  • No denial of procedural fairness arises from a qualified finding of remorse where counsel made a deliberate forensic choice not to call the offender to give evidence; the sentencing judge is not required to foreshadow that finding during the hearing.
  • The involvement of an undercover operative does not automatically reduce the objective seriousness of an offence; the weight to be given to such involvement is a matter within the sentencing judge's discretion.
  • Sentencing statistics for offences contrary to s 319 of the Crimes Act 1900 (NSW) have consistently been noted by the Court of Criminal Appeal as not reflecting the serious view courts have expressed about the gravity of perverting the course of justice offences, particularly where threats of violence are involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 319
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14
- Crime (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases:
- Camilleri v R [2023] NSWCCA 106
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Edmonds v R [2022] NSWCCA 103
- House v The King (1936) 55 CLR 499
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260
- R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
- R v Reid [2016] NSWCCA 151
- R v Taouk (1992) 65 A Crim R 387
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Paterson v R [2021] NSWCCA 273