New South Wales Court of Criminal Appeal CITATION : Regina v Turner [2004] NSWCCA 340 HEARING DATE(S) : 27/09/04 JUDGMENT DATE : 27 September 2004 JUDGMENT OF : Wood CJ at CL at 40, 42; Barr J at 41; Hoeben J at 1 DECISION : Leave to appeal granted.; Appeal dismissed. CATCHWORDS : Exceptional circumstances - dependent children. LEGISLATION CITED : Crimes Act 1900 R v Dodd (1991) 57 A Crim R 349 at 354 CASES CITED : R v Rushby [1977] 1 NSWLR 594 R v Todd [1982] 2 NSWLR 517 Veen v The Queen (No 2) (1988) 164 CLR 465 PARTIES : Janine Turner - Applicant Crown - Respondent FILE NUMBER(S) : CCA 2004/1879 COUNSEL : R Hulme SC - Applicant GIO Rowling - Crown SOLICITORS : S O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/1157 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1879 WOOD CJ at CL BARR J HOEBEN J Monday, 27 September, 2004 REGINA v Janine May TURNER Judgment 1 HOEBEN J: On 18 March 2002 in the District Court at Penrith the applicant pleaded guilty to the following offence: That on 13 July 2000 at Bidwill in the State of New South Wales she did assault James Hilton Proctor thereby occasioning to him actual bodily harm, contrary to s59 of the Crimes Act 1900, the maximum penalty for which was imprisonment for 5 years. 2 The applicant had also been charged with a further offence: That on 13 July 2000 at Bidwill in the State of New South Wales she did detain James Hilton Proctor with intent to hold him for advantage and when liberated, the said James Hilton Proctor had sustained substantial injury, contrary to s90A of the Crimes Act 1900, the maximum penalty for which was imprisonment for 20 years. 3 The applicant pleaded not guilty to that second offence and the matter proceeded before Backhouse DCJ and a jury between 18-22 March 2002. On 22 March 2002 the applicant was found guilty of the second offence. 4 The applicant came before Knight DCJ for sentence on 8 December 2003. His Honour sentenced the applicant to imprisonment for a period of 8 years, to commence on 8 September 2003 and expire on 7 September 2011, in relation to the s90A offence. He fixed a non-parole period of 3½ years, set to commence on 8 September 2003 and to expire on 7 March 2007. He directed that the applicant was to be eligible for release on parole on 7 March 2007. 5 In relation to the s59 offence, his Honour sentenced the applicant to a fixed term of imprisonment of 1 year, to date from 8 September 2003 and to expire on 7 September 2004. 6 His Honour noted that the non-parole period was less than three-quarters of the term of the sentence because there were special circumstances. His Honour identified those special circumstances as the reliance on the applicant of five children and the detrimental effect of the prisoner's incarceration in relation to those children, together with what his Honour assessed as the applicant's reasonable prospects of rehabilitation given the lengthy period on parole. Facts 7 On 13 July 2000 the victim, James Proctor, a fifteen year old boy, was residing with the applicant at her home in Bidwill. On that day the applicant telephoned her then boyfriend, Terry German, requesting his presence to interrogate the victim as to his alleged mistreatment of cats belonging to the applicant. 8 Mr German arrived at the premises bringing with him a baseball bat to conduct that interrogation. It was accepted that the applicant did not request Mr German to bring a baseball bat, but its purpose upon his arrival must have been obvious. After he arrived at the premises Mr German began to assault the victim by striking him with the baseball bat, his fists and by kicking him and demanding that he answer various questions. This was done in the presence of the applicant. 9 The applicant and Mr German went to a service station where black masking tape was purchased. They then returned to the home where the tape was used to secure the victim to a chair. Thereafter Mr German continued to assault the victim and whilst he was being assaulted, he was being asked questions along the lines of "Why did you do it Jimmy?", referring to the cats. The applicant was the person who was asking the questions and the asking of the questions was the trigger for Mr German to assault the victim. 10 At one stage Mr German held a knife to the throat of the victim and asked the applicant if he should slit the victim's throat. The applicant responded "No". In the course of the day inquiries were made by the victim's mother as to his whereabouts and wellbeing, which were deflected by the applicant. The victim was detained from approximately 10 am to 7 pm and for a large part of that detention, was bound and gagged with masking tape whilst he was being assaulted. 11 During the day the victim was sent by the applicant to have a number of showers in the premises to wash off blood. A gag and a bloody towel that had been used in the assault were placed in a plastic bag. It was agreed that those matters were done in an attempt to conceal the offence. 12 The victim spent four days in the Royal Alexandra Hospital for Children. On admission he was suffering from multiple soft tissue injuries to the head, face, chest and both lower limbs. The injuries included multiple soft tissue contusions to the face, with lacerations to the scalp and the lips, including a perforating wound on the lower lip and bruising of the lips. The left eye was swollen shut and bilateral subconjunctival haemorrhages were noted on examination under anaesthesia. There were marks on his neck noted in the Emergency Department. There were bruises to his chest, a bruise over the right lower ribs and small bruises on the shoulder. There was a linear bruise on the right forearm. There was significant bruising to the legs and an area of bruising on the left thigh. 13 The photographs tendered at trial show the extensive nature of the injuries sustained by the victim. As his Honour observed, there can be no doubt that the victim was very badly beaten. Remarks on sentence 14 His Honour noted that objectively the offence was a serious one involving very considerable criminality in that the applicant acted as part of a joint criminal enterprise with Mr German in detaining the victim with intent to hold him for advantage and that when liberated the victim had sustained substantial injury. 15 It was noted that the victim was aged fifteen at the time of the offence and the applicant was then aged twenty seven. The co-offender, Mr German, was aged thirty eight. Accordingly, the victim as a juvenile was confronted by two adults, one of whom was carrying a baseball bat. The victim was detained for approximately nine hours and for a large part of that detention was bound and gagged with masking tape. Not only were the injuries substantial, but at one point the victim lost consciousness. The fact that the detention and assault was carried out by two people in company aggravated the offence. In the course of the offence the applicant had kicked the victim in the small of his back, and the offence had taken place in a house where there were a number of young and teenage people present. There was no evidence that they witnessed any part of the offence. 16 The co-offender, Mr German, had pleaded guilty to the same offences. He was sentenced by her Honour Backhouse DCJ on 17 May 2002 to imprisonment for 9 years, with a non-parole period of 5½ years for the detain for advantage offence, and to imprisonment for a fixed term of 2 years for the assault offence. Her Honour started at 12 years and applied a 25% discount for the plea of guilty. 17 Before Knight DCJ it was argued, on behalf of the Crown, that the applicant was equally culpable with Mr German and that in the interests of sentencing parity, her sentence should be of a similar kind. His Honour rejected that submission on the basis that their ages were different, Mr German had a lengthy criminal history and that it was Mr German who had actually inflicted the injuries, albeit that the applicant had requested Mr German to attend at the premises. 18 His Honour took into account the following subjective matters in relation to the applicant. (i) Her age, she was thirty one at the time of the sentence (having been born 19 October 1972). (ii) Her prior criminal record, of two prior offences of assault of a comparatively minor nature, of offences in relation to the supply of prohibited drugs, of larceny and of leaving a child in a motor vehicle thereby impairing the health of that child. The applicant had not served any time in gaol. (iii) At the time of the offence she was the subject of a 3 year recognizance imposed in 1998 for the supply drug offence. (iv) The pre-sentence reports and psychological report indicated a disturbed youth and that she alleged that she was sexually assaulted by her stepfather between the ages of 7 and 12. She left school in year 10 without her school certificate, although subsequently she had successfully obtained some employment. (v) She had five children to four different partners. At the time of sentencing their ages were 13, 11, 6, 2 and 1. The applicant had suffered significant physical abuse at the hands of three of those partners. (v) She had some experience in using drugs, particularly cannabis, since the age of 13 and was a moderate user of alcohol. These had nothing to do with the subject offences. (vi) Psychological testing showed that she was of average intellectual functioning, but had personality attributes of suspicion, defensiveness, hostility, bitterness and was in need of psychological counselling. 19 There were two subjective matters to which his Honour directed specific attention. The first was that the applicant had five young children. A comprehensive report by Danielle Castles, the manager of client assessment and referral for the NSW Legal Aid, pointed out in some detail the significant risk to these young children if a lengthy custodial sentence was imposed. The detriment related to the breakdown of the bond between the children and the applicant and the breakdown of the bond between the children themselves as siblings in that it was most unlikely that five children could be placed in the one home as part of foster care. One of the children was already experiencing behavioural problems. 20 The other matter was the delay in sentencing. The offence occurred on 13 July 2000, the applicant was convicted on 22 March 2002, but the sentence was not imposed until December 2003. As his Honour pointed out that delay was in part due to delays by the court system for which the applicant was not responsible, but was also due to the applicant's own conduct, particularly in failing to attend for sentence in April 2003 and thereafter absconding until 8 September 2003. 21 It was those last two subjective considerations which seem to have influenced his Honour to fix a relatively short non-parole period by comparison with the head sentence (44%, ROS p17.1). Appeal 22 The only ground of appeal is that the sentence is manifestly excessive. Two arguments are put forward to support that ground – that insufficient attention was given by his Honour to the differing roles of the applicant and Mr German and that insufficient allowance was made for the applicant being the sole carer for five young children. 23 In relation to the first argument, it is submitted that it was Mr German who was primarily responsible for the length and nature of the detention and it was when he left the premises that the detention ceased. During the prolonged period of the victim's detention, the applicant's only contribution to the physical violence was a single kick to his back. 24 I have difficulty with the distinction sought to be drawn between the person who actually strikes the blow and the person who is present and at least implicitly, approves of, if not encourages, that action. On the other hand, I accept that there is a distinction between the situation just described and where although involved in a joint criminal enterprise, something occurs which is entirely unpredictable and unexpected. 25 What occurred here was entirely predictable. The arrival of Mr German with the baseball bat made his intentions clear. In addition the applicant initiated the incident, was a party to the joint interrogation, accompanied Mr German when he acquired the tape, deflected the inquiries made by the victim's mother and took steps to conceal the offence. 26 In the circumstances I am of the opinion that his Honour was more than generous to the applicant in the way he treated her offence in comparison with that of Mr German and I would not apply any further reduction, either to the head sentence or non-parole period, on that basis. 27 In relation to the hardship imposed on the children by the applicant's imprisonment, it is conceded on her behalf that a case has to qualify as exceptional before those circumstances should influence the ultimate sentence. Whereas hardship through separation from one, two, or perhaps even three children might not be exceptional, it is submitted on behalf of the applicant that separation from five children is quite different and brings this case into the category of "exceptional". 28 Reference is made to problems being experienced by the two eldest children which at least in the case of Cheree, would seem to be directly related to the applicant's imprisonment. In relation to the three younger children it is submitted that the separation from the applicant at such an age will have a considerable adverse impact. 29 In summary, it was submitted: "This was not a case in which the circumstances were so exceptional that an alternative to full-time custody could be contemplated. However it was a matter which militated very strongly in favour of a significant reduction in the sentence which might otherwise be appropriate." 30 On behalf of the Crown it is submitted that circumstances have to be "highly exceptional" before those circumstances should be permitted to influence the ultimate sentence. Whether there is any difference between the concepts of "highly exceptional" and "truly exceptional" or "exceptional" is something of a moot point. The principle is clear, its application is less so. 31 The Crown submits that the question of exceptional circumstances should not depend upon the number of children involved, but rather the particular circumstance whether it relates to one child or more than one. I agree. 32 The offence for which the applicant was convicted is a serious one, as is clear from the fact that a maximum sentence of 20 years has been provided. Having weighed the circumstances, his Honour placed the offence "approximately in the middle of offences contrary to s90A of the Crimes Act". (ROS, p6.4) He was correct to do so. There were a number of aggravating factors. There was actual violence, a weapon was used (although not by the applicant), there was a record of previous convictions, the offence was committed in company, the offence was committed whilst the applicant was on a bond, it extended over nine hours and involved gratuitous cruelty. The objective seriousness of the offence, together with those aggravating features and the principle of general deterrence, required his Honour not only to impose a fulltime custodial sentence, but one which was substantial. 33 In that regard what this Court said in R v Dodd (1991) 57 A Crim R 349 at 354 remains apposite: "As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, a maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64. Even so, there is sometimes a risk that attention to pervasive subject considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594." 34 It is also relevant that the applicant has shown no remorse or contrition. Although she is not to be punished more severely because she continued to deny that she was guilty of the s90A offence, she could not expect or receive any of the consideration that would have followed a plea of guilty and an acceptance of responsibility for what she had done. Thus she was to receive the full measure of the sentence that was appropriate to her crime with the aggravating features to which I have referred. 35 In those circumstances, it is difficult to see how his Honour could have awarded anything other than a head sentence in the order of 8 years. 36 Although one cannot help but be moved by the plight of the applicant's five children, his Honour took that into account and found special circumstances to such an extent that the non-parole period was significantly less than the statutory norm (ie 44% of the total term). In other words his Honour did grant in the applicant's favour a significant reduction in the non-parole period which would otherwise have been awarded. This was despite the fact that the pre-sentence reports were not favourable to the applicant as a parent. 37 It is only where this Court is of the view that some other sentence is warranted in law and should have been passed that the Court should interfere with the discretion exercised by the sentencing judge. There is nothing in the material before the Court which indicates that the sentence imposed by his Honour was anything other than a sound exercise of his Honour's sentencing discretion. His Honour took into account all of the relevant principles and facts in formulating his sentence. As indicated above, if anything he was favourable to the applicant in his characterisation of the part she played in the overall joint criminal enterprise. 38 Although his Honour did not refer to it, there are programs within the prison system for mothers in the applicant's situation. In that regard s26(2)(l) of the Crimes (Administration of Sentences) Act 1999 is relevant. 39 I would grant leave to appeal against sentence, but would dismiss the appeal. 40 WOOD CJ at CL: I agree 41 BARR J: I agree 42 WOOD CJ at CL: The order of the Court then will be as Hoeben J has proposed. ********** Last Modified: 10/05/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.