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District Court 8 December 2023

R v Girdler

[2023] NSWDC 616

Assault & violenceTheft & property

Citation: R v Girdler [2023] NSWDC 616
Court: District Court of New South Wales
Date: 8 December 2023
Judge: Haesler SC DCJ

Background

The offender, a young woman born in July 2003, pleaded guilty to three offences: taking and detaining a person in company (under s 86(2)(a) of the Crimes Act 1900 (NSW)), and two counts of being carried in a conveyance (under s 154A(1)(b)). The sentencing proceedings were conducted in parallel with those of a co-offender, Joshua Nyrhinen, and a third offender remained to be sentenced separately.

The principal offence arose from an incident on 30 September 2022. The offender arranged to meet the victim, a man known to her, and lured him to a lookout at Mount Kembla. Co-offenders arrived in a second vehicle, confronted the victim with a gun-shaped object (not established to be a real firearm), punched him, and demanded his keys and phone. The offender then left the victim's car and entered the co-offenders' vehicle. One co-offender, armed with a knife, drove the victim to another location where he was forced to transfer money from his bank account. The victim was ultimately released near the offender's home address. The two separate motor vehicle offences involved the offender and a co-offender stealing cars on 11 and 12 October 2022.

The offender had a significant criminal history dating to her teenage years, including prior appearances in the Children's Court and Local Court. A Form 1 offence involving unpaid petrol from the victim's recovered vehicle was also taken into account on the principal offence, though it did not increase the sentence imposed.

  • What was the appropriate sentence for the principal offence of take and detain a person in company, having regard to the offender's role, objective seriousness, and subjective circumstances?
  • What weight should be given to the early guilty plea, admissions made at arrest, the offender's age and immaturity, mental health, and drug use?
  • Whether an Intensive Correction Order (ICO) was appropriate, or whether full-time custody was warranted.
  • How parity with the co-offender Nyrhinen should be reflected in the sentence.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

Haesler SC DCJ assessed the principal offence as objectively serious. The offender had arranged the meeting that brought the victim to Mount Kembla, making her a foundational participant in the enterprise. Although she was not present during every phase of the detention, and was not the one who inflicted violence, the judge found that her role in setting up the encounter placed her moral culpability close to that of her co-offenders. The court was careful not to punish her for the armed robbery committed by others, but noted that by her presence and her facilitation, she bore equal criminal liability for her own part in the offending.

A 25% reduction was applied to the otherwise appropriate sentences to reflect the utilitarian value of the early guilty pleas. Additional weight was given to the significant admissions the offender made at the time of her arrest, which assisted the course of justice even if not entirely accurate. The judge also gave substantial weight to the offender's age, immaturity, mental health, drug use, and what was described as a tragic background, supported by a comprehensive Sentence Assessment Report and other materials.

Despite those mitigating factors, the court concluded that the seriousness of the principal offence meant that only a full-time custodial sentence could adequately address the purposes of sentencing, particularly general and specific deterrence, adequate punishment, and community protection. The court held that the leniency already built into the sentence structure through discounts and the treatment of the Form 1 matter meant that the additional leniency of an ICO was not warranted. The court also found that while progress toward rehabilitation was evident, it had not yet been sufficiently demonstrated to justify immediate release to an ICO.

Special circumstances were found, justifying a longer parole period than the statutory default, given the offender's rehabilitation needs and background.

Orders Made

  • Principal offence (take and detain in company): indicated sentence of 2 years and 7 months.
  • Each motor vehicle offence (carried in a conveyance): indicated sentence of 9 months each.
  • Aggregate sentence: 2 years and 9 months.
  • Non-parole period: 1 year and 8 months, commencing 12 October 2022, expiring 11 June 2024.
  • Parole period: 1 year and 1 month, commencing 12 June 2024 and expiring 11 July 2025.
  • Finding of special circumstances made.
  • Form 1 matter taken into account on the principal offence without increasing the sentence.

Key Takeaways

  • A young offender who arranges circumstances enabling a kidnapping can bear equal criminal liability for the enterprise, even where others directly inflict violence, if her participation is foundational to the offending.
  • Full-time custody was appropriate for a take and detain offence in company where the victim was subjected to sustained fear, financial loss, and humiliation, even where the offender's moral culpability was reduced by age, immaturity, and mental health factors.
  • Leniency built into the sentence structure through guilty plea discounts and favourable treatment of Form 1 matters can itself weigh against the further leniency of an Intensive Correction Order.
  • Under the instinctive synthesis approach confirmed in Markarian v The Queen [2005] HCA 25, the sentencing court must identify and discuss all relevant factors before arriving at a final sentence, rather than applying mechanical additions or subtractions.
  • A finding of special circumstances permitted an extended parole period, reflecting the court's recognition that rehabilitation work remained in progress and required ongoing support in the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(2)(a) (take and detain a person in company)
- Crimes Act 1900 (NSW), s 154A(1)(b) (carried in a conveyance)

Cases
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Nyrhinen [2023] NSWDC 615
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Zheng v R [2023] NSWCCA 64
- Clarke-Jeffries v R [2019] NSWCCA 56
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DM v R [2005] NSWCCA 181
- Hearne v R [2001] NSWCCA 37
- KT v R [2008] NSWCCA 51
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346