R v Proud [2017] NSWSC 286

Supreme Court New South Wales

Medium Neutral Citation: R v Proud [2017] NSWSC 286 Hearing dates: 3 March 2017 Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Common Law Before: Harrison J Decision: Sentenced to a term of imprisonment of 10 years commencing on 21 December 2011 and expiring on 20 December 2021 with a non-parole period of 6 years expiring on 20 December 2017. Catchwords: CRIMIAL LAW – sentence – accessory before the fact to murder Legislation Cited: Crimes Act 1900 Cases Cited: Aoun v R [2007] NSWCCA 292 Lowe v The Queen (1984) 154 CLR 606 at 609; [1984] HCA 46 Proud v R (No 2) [2016] NSWCCA 44 R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140 R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979 R v Stewart; R v Schofield [1995] 3 All ER 159 White v Ridley (1978) 140 CLR 342; [1978] HCA 38 Category: Sentence Parties: Regina (Crown) Michelle Sharon Proud (Offender) Representation: Counsel: C Maxwell SC (Crown) R Wilson (Offender)

Solicitors: Solicitor for Public Prosecutions (Crown) Blair Criminal Lawyers (Offender) File Number(s): 2011/410458 Publication restriction: Nil

REMARKS ON SENTENCE 1. HIS HONOUR: On 28 July 2014, I sentenced Michelle Proud and two of her co-accused for the murder of Katherine Foreman on 27 October 2011: see R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979. On 21 March 2016, Ms Proud successfully appealed against her conviction to the Court of Criminal Appeal: see Proud v R (No 2) [2016] NSWCCA 44. A new trial was ordered. At a call-over before Garling J on 11 November 2016, the Crown indicated that it would not be proceeding against Ms Proud on the basis of joint criminal enterprise but on the basis that she was an accessory before the fact to the murder of Ms Foreman. On 16 December 2016, Ms Proud was arraigned and pleaded guilty to that charge. Ms Proud now stands to be re-sentenced in those circumstances. It is agreed between the Crown and Ms Proud that the factual basis for her guilt is the same as that found by me for the purposes of sentencing her the first time. 2. My original sentencing remarks following the jury's verdict contained the following paragraphs: "[172] The Crown submitted that I would be satisfied beyond reasonable doubt of the following facts concerning Ms Proud's involvement in the murder of the deceased. [173] Ms Proud was approached by Ms Evans to engage her then partner Mr Spicer in the criminal enterprise. She was the link or connection between Ms Evans and Mr Spicer in the payment of money and in encouraging Mr Spicer to participate in the commission of the offence. She was a willing and enthusiastic contributor in the plan to cause very substantial harm to the deceased. Ms Proud later showed no remorse concerning what had occurred and spoke in terms to Ms Gallagher suggesting that the deceased was a nasty and violent person who deserved to be killed. [174] Ms Proud has at all times sought to distance herself from any involvement in the crime. However, she was part of an agreement to cause grievous bodily harm to the deceased. Her culpability can in this respect be distinguished from Ms Evans and Mr Rawlinson who were each part of a joint criminal enterprise to kill the deceased. [175] With some qualifications about the finding of no remorse, which are referred to later, I am satisfied of these facts beyond reasonable doubt. I am also satisfied beyond reasonable doubt, for the purposes of sentencing Ms Proud, of the same facts of which I was satisfied in the sentencing proceedings involving Ms Evans." 1. Under the heading "Objective seriousness", I also made the following findings: "[194] The legal and factual foundations for Ms Proud's liability for the murder of the deceased are different to those of both Ms Evans and Mr Rawlinson. Ms Proud was not present at the scene of the crime. She was not involved in assisting the commission of the murder by direct or active participation in events that caused the death of the deceased. She was uninvolved in planning the murder or in carrying it out. Ms Proud barely knew the deceased and clearly had no basis upon which to feel any animus towards her beyond the lies she was told and the misinformation with which she was cynically provided. Ms Proud became liable for the murder of the deceased because of the violent domestic and impoverished financial situation in which she found herself as the result of her unfortunate association with Mr Spicer. [195] I am satisfied beyond reasonable doubt that Ms Proud was a party to a joint criminal enterprise to cause serious harm to the deceased. However, with one relevant exception, her role in that enterprise was entirely passive. The exception is, simply as a matter of happenstance and disastrously for her, that she introduced Ms Evans to Mr Spicer. No other act committed or performed by Ms Proud in any way advanced or facilitated the commission of the crime. Her enthusiastic demands for payment of the money owed to Mr Spicer by Ms Evans and Mr Rawlinson after the event were not acts performed in the course of committing the crime, even if they inculpated her as a participant in the enterprise. [196] To that extent the particular crime of murder for which Ms Proud stands to be sentenced is in my opinion clearly below the mid-range of objective seriousness for offences of this description. One might well have expected the jury to return a different verdict in her case, or not to be surprised if it had done so. In contrast to the crimes of murder for which Ms Evans and Mr Rawlinson have been found guilty, which I have indicated are objectively very serious examples of murder, Ms Proud's crime is not. I hasten to add that such a conclusion ought not to be mistaken for the expression of an opinion about the seriousness of the crime of murder generally, for which the community and the legislature have unambiguously and consistently reinforced their unanimous disapprobation. It is rather no more than my recognition of the need expressly or impliedly, but in either case clearly, to indicate where in the comparative range of offences of this nature Ms Proud's crime should be placed." 1. Before proceeding further it is necessary to deal with what counsel for Ms Proud suggested was a conflict or tension between my finding that she "was a willing and enthusiastic contributor in the plan to cause very substantial harm to the deceased" on the one hand and my conclusion that "with one relevant exception, her role in that enterprise was entirely passive" on the other hand. There is no tension or conflict between these two statements as long as it is understood that Ms Proud's willingness and enthusiasm, to which I was there referring, was limited to her role in introducing Ms Evans to Mr Spicer. Whatever may have been her enthusiasm for that particular role, it remains true that it was small in the overall scheme of the plan and that she was in all other respects only passively involved in it. 2. Ms Proud stands to be sentenced in accordance with s 346 of the Crimes Act 1900. It is as follows: "346 Accessories before the fact-how tried and punished Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not." 1. It was contended by the Crown that the standard non parole period applicable to the charge of murder should apply in this case. However, Aoun v R [2007] NSWCCA 292 at [27] is to the contrary, as indicated by Hodgson JA: "[27] The trial judge noted that s.54D of the Crimes (Sentencing Procedure) Act provides for a standard non-parole period of 20 years for murder. The trial judge rejected a submission for the Crown that this provision applied to the applicant, and I agree with the trial judge on this matter. However, the section does demonstrate the attitude of the legislature to the offence of which the applicant has been convicted of aiding, and it is to be kept in mind that the maximum penalty for both sentences is the same…".