The applicant relied upon a psychiatric report prepared for sentence by Dr Olav Nielssen, who saw him in December 2013. The applicant was in an acutely manic state at that time, with his speech grandiose and uninhibited. Like Professor Greenburg, Dr Nielssen concluded that the applicant had a Bi-polar Mood Disorder (then in a manic phase) and a Substance use Disorder. In a supplementary report of February 2014 (made after a review of documentation only) Dr Nielssen recorded the earlier instances on which the applicant had been psychiatrically assessed, and noted that the opinions expressed by treating medical staff were consistent with his own.
The applicant did not give evidence on sentence.
[2]
The Conclusions of the Sentencing Judge
In jointly sentencing the applicant and Sorensen his Honour set out the facts of the offending conduct consistent with the verdicts of guilty returned by the jury, and noted the additional charge against the applicant of supplying a prohibited drug, being methylamphetamine. His Honour concluded that the detention of Ms L commenced at some time after midnight, concluding when she made her escape and secured police assistance at about 7.45 am that same morning. He referred to R v Speechley (2012) 221 A Crim R and the factors relevant to be taken into account in a case involving kidnapping. His Honour said,
"The Court [in Speechley] held that offences pursuant to s 86 when committed as a form of vigilante action also require condemnation to reflect general deterrence on sentence. There are some aspects of that factor in the present matter. It was said that motivation of that type is capable of bearing in other ways on the determination of sentence."
The sentencing judge continued (after a reference to Barlow v R (2008) 6 A Crim R),
"In order to avoid any perception of double counting of the aggravating feature and the kidnapping it is necessary that much of the offending will, after individual assessment require recognition as very serious but also intimately related offending in the course of, an ongoing course of criminality. That will require consideration of whether a requisite degree of concurrence is to be applied. The formulation nonetheless leaves any assessment of totality in the criminality for both offenders, as very grave, albeit with a dominating concern to properly assess the totality of all the indictment counts within the frame work of the related and very serious offence of specially aggravated kidnapping" (ROS 16-17).
He went on to detail the subjective cases of both offenders.
The sentencing judge found that both the applicant and Sorensen had engaged in a grave course of criminality and had shown no remorse for the suffering inflicted on Ms L. He had regard to the principles of totality, and of parity, and to those matters referred to in s 3A of the Crimes (Sentencing Procedure) Act. Of the applicant his Honour said,
"As to the offender Hall, although younger he was the initiator of the violence and of the gross humiliation heaped upon the victim. His persistence in the assaults and the level of brutality places him in an at least equally culpable position to that of his older and more criminally experienced offender. I have noted his recent and, I infer, past history of mental illness. As previously stated, I have not found any such mental illness to have been established as more probable than not, and present at the time of the offences" (ROS 33).
Whilst the sentencing judge referred to the differing features of the respective cases for each offender, he concluded that the level of offending of each was of the same high order, notwithstanding some differentiation between the acts of each individual, and having regard to the fact that the offences were committed in furtherance of a joint criminal enterprise. He concluded,
"The outcome in distilling of all matters [including the additional charge for the applicant] is an effective parity between the two offenders' sentences."
In considering count 5, the offence of specially aggravated kidnapping, the sentencing judge observed,
"I find that the detention came about as an act of quasi-vigilantism on the part of the offenders. I regard that as an aggravating circumstance."
[3]
The Sentence Appeal
In his sentence appeal to the Court of Criminal Appeal Sorensen complained that the sentencing judge was in error in finding that the "quasi-vigilantism" was an aggravating feature, and in making that finding when an element of the offence of specially aggravated kidnapping was "to obtain gratification by punishing and humiliating" Ms L. The applicant seeks to make the same complaint, relying alternatively on a parity argument to contend for a reduction in sentence.
The Crown accepts that the conclusions of this Court in Sorensen v R provide a basis for the Court to grant the applicant leave to appeal, uphold his appeal, and resentence him. Having regard to the finding of the sentencing judge as to parity, the Crown submits that lesser indicative sentences are warranted with respect to counts 4 and 5, and a lesser aggregate sentence is warranted in law.
[4]
Consideration
As the Crown has fairly conceded, the conclusions of this Court in Sorensen v R are such that the applicant should be granted an extension of time in which to bring his application, and be granted leave to appeal. His appeal should be upheld, and the sentence imposed in the District Court quashed.
At [128] - [129] of Sorensen v R Ward JA said (with the agreement of Adams and Bellew JJ),
"However, having properly recognised the need to avoid double counting the aggravating factor of the quasi-vigilantism in relation to the other offences when considering the totality of the offending (that being overshadowed by the specially aggravated kidnapping) (see [105], [108] above), his Honour nevertheless expressly referred to quasi-vigilantism as an aggravating factor for the count 5 offence, when the aggravation itself formed part of the charge. Punishment and humiliation were necessary parts of the offence of specially aggravated kidnapping as pleaded on the indictment. It could not properly be regarded as an aggravating factor on sentencing for an offence of which it formed part.
Therefore, even though the extent to which and the manner in which that factor was taken into account in determining the sentence for count 5 is not clear, I am of the opinion that his Honour erred in finding that the quasi-vigilante nature of the count 5 offence was an aggravating factor. Ground 2A is made out. In those circumstances it falls to this Court to re-sentence Mr Sorensen in line with the principles in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601."
The same error was made with respect to the applicant.
As a consequence of the error, it will be necessary to resentence him.
On resentence, the applicant tendered a further report from Dr Nielssen dated 5 September 2017. The doctor took a history from the applicant in which he said of the offences, "someone took my mother's jewellery and I have handled it the wrong way". He referred to having been "in a bad place mentally" at the time as a consequence of a relationship breakdown, and to having been "all over the place" because of drug use.
The applicant said that his condition now was much improved due to the effectiveness of the medication he had been taking. He felt that he had attained a level of maturity and "grown up", and was now in a positive relationship, with employment prospects in his mother's business. The applicant's mother similarly told Dr Nielssen that the applicant had a new relationship and that it was anticipated that he would work in the family business upon release.
The applicant referred to having completed an "aggression management course" in custody, and to be enrolled in "an addiction course". The applicant had employment making furniture. His security classification had been reduced.
Dr Nielssen confirmed his earlier diagnoses, although noted that the applicant's bi-polar and substance use disorders were in remission. He thought that, as a result of consistent treatment in custody, the applicant's future prospects were improved, although he cautioned that release to the community could "trigger an episode of mania", as could illicit drug use, the risk of which remained. The doctor suggested that the applicant may benefit from treatment by long acting injectable medication, and close supervision on release.
The applicant relies upon the report of Dr Nielssen to argue that this Court should impose a sentence "more benevolent" than that imposed upon Sorensen, if not in its term then in the ratio of sentence. Although no such argument was advanced in the written submissions in support of the application, the applicant submitted at the hearing of the matter that the supply offence for which the applicant alone was sentenced was not a particularly serious offence, and should not have operated so as to lead to the imposition of equivalent sentences as between the applicant and Sorensen, who had a longer criminal history than did he.
As the applicant stated in his written submissions, and in arguing for reinstatement of parity, it was plain from the sentencing judgment of the District Court that "the applicant's sentence was determined with express relativity to Sorensen's". Until oral arguments put at the hearing of the application, the applicant had not sought to take any issue with the approach to parity taken by the sentencing judge.
For my part, I see no legitimate basis upon which to take a different approach to that taken to parity at first instance. There were differences in the cases of the two offenders, but not of such a nature as to require differentiation in sentence. Indeed, such a conclusion appears implicit in the applicant's written submissions, wherein he submitted that "the Court should quash the applicant's sentence and re-exercise the sentencing discretion having express regard to the fresh sentence imposed on Mr Sorensen".
Of Sorensen's case Ward JA said, at [140] - [144],
"As to subjective matters, the pre-sentence report dated 5 December 2013 disclosed a history of an unstable upbringing as well as a lengthy history of criminal conduct. Mr Sorensen accepts that he has spent over half his life in custody. Significantly, at the time of the offence he was on parole for the offence of maliciously inflicting grievous bodily harm.
Mr Watson-Munro, a consultant forensic psychologist whose report was tendered on Mr Sorensen's behalf at the sentencing hearing, concluded that Mr Sorensen had exhibited signs indicating he was suffering from major depression and was in remission from a poly-substance abuse disorder. His criminal history included a series of offences committed after having consumed illicit substances. It is apparent from the evidence that he is, as his Honour described him, a seasoned criminal and seasoned drug abuser.
Mr Watson-Munro recommended cognitive behavioural therapy to address and develop relapse prevention strategies in a number of areas in effect to provide Mr Sorensen with the basic skills for living in society as a normal citizen. Mr Watson-Munro also noted Mr Sorensen's commitment to his partner and to his partner's infant daughter.
Mr Sorensen had, as referred to earlier, provided a letter to the sentencing judge asserting his determination to cease using drugs and to use the motivation of a potential for a normal family life to strengthen his resolve to avoid further offending. There was, however, no expression of remorse for the suffering meted out to Ms L nor did Mr Sorensen accept his guilt. Mr Sorensen's prior record and poor prospects of rehabilitation require a sentence that focusses on specific deterrence and community protection.
The sentencing judge considered that Mr Sorensen had a "glimmer of insight in him that he had wasted far too much of his life in custody as he now approached middle age, with looming powerful indications that he has become institutionalised" and thus he should be subjected to a longer period on parole "which, if productive, will be for the good of the community" and accordingly found special circumstances that justified a variation of the statutory formula in s 44 of the Crimes (Sentencing Procedure) Act. I am sceptical that such special circumstances are present, there being little, if any evidence to justify a finding that there are significant positive signs which show that if Mr Sorensen is given a longer period on parole rehabilitation is likely to be successful, as opposed to being a mere possibility (R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399 at [56]-[57]). However, the Crown did not in this Court submit that his Honour erred in this regard or that, in resentencing, no such finding should be made. In the circumstances I have slightly reduced the non-parole period from that which would follow from applying the s 44 formula."
Each offender had a criminal history, amongst which were convictions for violent offences similar to that before the Court. Each had offended whilst subject to conditional liberty. Each had a long history of illicit drug use. Each has mental health issues. The applicant is younger, and his criminal history is not quite as extensive but, as the sentencing judge observed,
"[…] although younger he was the initiator of the violence and the gross humiliation heaped on the victim."
The applicant additionally had a fifth charge for sentence, which reflected his offence of supplying a small amount of methylamphetamine to Ms L during the course of the relevant events. Whilst not a gravely serious example of such an offence, neither is it so trivial as to largely disregard it when considering parity, and resentence.
Having regard to all of the relevant features of the respective cases of each, I would approach the re-sentencing exercise on the basis that the principle of equal justice requires the imposition of an equal sentence overall.
I do not regard anything in Dr Nielssen's report as altering that conclusion. Much of what Dr Nielssen reports is what was in turn reported to him by either the applicant or the applicant's mother. This Court has repeatedly warned of the caution with which untested statements to third parties should be treated: R v Qutami [2001] NSWCCA 353; (2001)127 A Crim R 369 at [58] - [59]; R v Imbornone [2017] NSWCCA 144 at [57]. Whilst I am prepared to accept that the applicant has hopes for a stable future on the basis of his new relationship and employment prospects, his past history would suggest that his prospects remain guarded.
Dr Nielssen reports that the applicant is currently medicated, and his present intention is to remain compliant with any medication regime. There remains however, as pointed out by Dr Nielssen, a risk of relapse into illicit drug use, with the possible consequence of the applicant ceasing to take necessary medication. A return to a criminal lifestyle thus continues to be a possibility.
These were extremely grave offences, as this Court concluded in Sorensen v R. A significant custodial penalty was required to serve the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act. Having regard to the principle of parity, and noting the requirements of totality, I would impose the same aggregate sentence of 10 years imprisonment upon the applicant as that imposed by this Court upon Sorensen. Taking into account the need for close supervision on release I would make a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act to permit a very modest extension to the NPP that would otherwise apply. The indicative sentences I propose are:
1. count 1: imprisonment for 3 years;
2. count 3: imprisonment for 3 years;
3. count 4: imprisonment for 2 years;
4. count 5: imprisonment for 8 years; and
5. count 6 of the indictment of 25 September 2013: imprisonment for 2 years and 9 months.
The orders, and sentence I propose are:
1. Grant an extension of time until 23 June 2017 to file the notice of appeal against sentence.
2. Grant leave to appeal against sentence.
3. Appeal against sentence allowed.
4. Sentence imposed in the District Court is quashed.
5. In lieu thereof, Timothy Leigh Hall is sentenced to imprisonment for a term of 10 years, commencing on 16 December 2012 and expiring on 15 December 2022, with a non-parole period of 7 years to expire on 15 December 2019.
[5]
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.
Decision last updated: 07 November 2017
On 17 November 2015 this Court (constituted by Ward JA, Adams and Bellew JJ) heard an appeal against both conviction and sentence filed by the co-offender. In the judgment delivered on 14 April 2016 the Court dismissed the appeal against conviction, but upheld the appeal against sentence: Sorensen v R [2016] NSWCCA 54.
The offender Sorensen was resentenced by the Court. Ward JA concluded:
"Taking into account those [objective and subjective] matters, the respective maximum penalties and, as to count 3, the standard non-parole period, as well as the principle of totality, and applying, as the primary judge did, a high degree of concurrency, I propose the following indicative sentences:
on count 2, 3 years' imprisonment;
on count 3, 3 years' imprisonment with a non-parole period of 2 years, 3 months;
on count 4, 2 years' imprisonment;
on count 5, 8 years' imprisonment,
aggregated to an overall sentence of 10 years' imprisonment commencing on 24 May 2013 with a non-parole period of 7 years expiring on 23 May 2020."
In light of that decision, the applicant now seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal (significantly out of time) against the sentence imposed upon him. The proposed ground 1 mirrors the ground of appeal (being ground 2A) accepted as having been made out with respect to Mr Sorensen; ground 2 is in the alternative. The grounds advanced are:
1. "In sentencing the appellant [sic], the learned trial judge erred in taking into account the vigilante nature of the offence as an aggravating factor because an element of the offence charged pursuant to s 86(3) of the Crimes Act 1900 (NSW) was "to obtain gratification by punishing and humiliating" the complainant.
2. In the alternative to Ground 5 [sic - ground 1], the parity principle requires the appellant [sic] to be resentenced having regard to the Court of Criminal Appeal's re-exercise of the sentencing discretion in relation to the appellant's [sic] co-accused, Mr Sorensen in Sorensen v R [2016] NSWCCA 54"