Hills v The Queen [2011] VSCA 364

CRIMINAL LAW - Application for leave to appeal against sentence - Election to have application determined by the Court of Appeal - Applicant convicted of kidnapping, reckless conduct endangering life, intentionally causing serious injury, aggravated burglary and making threat to kill - Applicant sentenced to a total effective sentence of 8 years with a non-parole period of 5 years - Whether manifestly excessive - Whether sentencing judge mischaracterised the applicant's role in the offending - Whether sentencing judge gave insufficient weight to a psychologist's report - Application dismissed - No point of principle.

1 The applicant seeks leave to appeal against her conviction of kidnapping and abduction related offences and, also, leave to appeal against the consequential sentence. On 19 August 2011, Redlich JA refused the applicant leave to appeal. This is a renewal of the application for leave to appeal against conviction and sentence pursuant to s 315(2) of the Criminal Procedure Act 2009.

2 The applicant and her three co-accused - NKC, Brodie Cooper and RAC, were found guilty of a series of offences arising from their involvement in the kidnap and abduction of Leah Freeman from her home in East Brunswick on 9 December 2008. There was an additional co-accused, Craig Hills, brother of the applicant, who was unfit to stand trial. Another individual, Kylie Meulenbrock, pleaded guilty to charges arising out of her participation in the events. She gave evidence at the trial on behalf of the prosecution.

3 The applicant was convicted and sentenced as follows:

5 On the evening of 9 December 2008 the applicant together with Brodie Cooper, RAC, NKC, Kylie Meulenbrock and Craig Hills drove in two vehicles to Each Brunswick. There was a third vehicle containing two males. The vehicles parked around the corner from Ms Freeman's home. Each of the applicant, Cooper, RAC, NKC, Meulenbrock and Craig Hills walked to Ms Freeman's house. Craig Hills knocked on the door. Freeman was then home alone. When she opened the door the group of six forced its way in. (Count 1 - aggravated burglary).

6 Immediately the applicant and Craig Hills each physically assaulted Ms Freeman. The applicant made a threat to kill Ms Freeman stating 'you're going to die Leah, do you understand that? You're going to die today. Do you understand?' (Count 5 - making threats to kill). Craig Hills then told Ms Freeman that she would be placed in the boot of his car. Following a struggle Ms Freeman was overpowered by Craig Hills who, then assisted by Brodie Cooper, RAC and NKC forcefully abducted Ms Freeman from her home. She was carried out into the street and then forced to walk. She was placed in the boot of a vehicle. (Count 2 - kidnapping). The boot was closed. At some stage beforehand Ms Freeman was punched in the face by Brodie Cooper. The medical evidence disclosed that Ms Freeman suffered multiple bruising and abrasions, particularly to the face and head. In addition, she suffered a mildly displaced fracture of the nasal process of the left maxillary process. (Count 3 - intentionally causing serious injury). The group entered the vehicles and then drove off. Eventually the group arrived at East Keilor, a short distance from the Maribyrnong river. Ms Freeman was forcefully extracted from the vehicle and forced through the bush to the river. Along the way she was further assaulted and kicked.

7 Upon reaching the banks of the river, Craig Hills threw Ms Freeman in. She managed to pull him in with her. Craig Hills struck Ms Freeman and commenced to push her head under the water on a number of occasions. Each time she forced herself to the surface she was pushed under again. Whilst this was happening, the applicant called out 'drown the slut' more than once. (Count 7 - reckless conduct endangering life). Then, upon hearing the sound of a nearby vehicle, the applicant and her co-offenders left the scene with Cooper threatening Ms Freeman that he would 'put one' in her and 'knock [her] family too'. Ms Freeman was left in the river. She struggled up the bank of the river and eventually was taken to the hospital for her injuries.

8 The applicant and the co-accused NKC, RAC and Brodie Cooper were subsequently arrested and denied involvement in the offending. The applicant was arrested on 10 December 2008. She denied being present at or involved in the offences.

9 Ground one - the applicant's first proposed ground was that the trial judge erred in admitting into evidence the search of the laundry at 120 Westmeadows Lane, Truganina ('the Truganina premises') and items seized therefrom. There was evidence that the applicant was registered as the tenant of the premises. After her arrest the applicant was briefly interviewed and then taken to the Truganina premises where a search warrant was executed by the police. In the course of the search some 14 items were seized. During the search the police searched the laundry of the premises in which they found three pairs of runners and a pair of tracksuit pants. One pair of runners were in a dirty or soiled state and the other two pairs of runners were located in the sink in the laundry. A police officer, Detective Senior Constable Ramage, gave evidence as to what was observed and, also, that either one or both of the other two pairs of runners were wet and were both in a soiled or dirty condition. Subsequently, the runners and track pants were examined by the forensic officer who took soil samples. There was also evidence by the soil scientist that there was a high probability that the soil taken from the tracksuit pants and the other two pairs of runners came from the same site at which Ms Freeman alleged the applicant and the co-accused attempted to drown her.

10 Arising from the objection by counsel for the applicant at trial his Honour permitted a voir dire to be conducted in the course of which eight police officers who were involved in the search of the Truganina premises gave evidence.

11 In submissions before the learned trial judge, counsel for the applicant relied upon section 138 of the Evidence Act 2008 to support the assertion that the items found and the observations made in the course of the search were obtained contrary to law. Counsel submitted that the runners and the track suit pants found in the laundry had been tampered with and that the police action constituted an attempt to pervert the course of justice. In the alternative, counsel submitted that as a consequence of an impropriety consisting of six factors, the evidence could not be admitted.

12 The illegality point was abandoned on the hearing of the application for renewal. The applicant persisted with an allegation of police impropriety.

13 During the course of the search of the laundry, a door between the laundry and the kitchen area of the premises was closed. One police officer, Mr Ramage, accepted that it had been closed during some of the search of the laundry. A second police officer, Mr Chrystie, supported that evidence. Mr Todorov, another police officer, was not directly cross-examined on the point but said in evidence that his recollection was that no doors in the house had been closed in the course of the search. Counsel submitted to his Honour that he should conclude that Mr Todorov told deliberate lies on oath in stating that evidence. His Honour observed in his ruling that it was not directly put to Mr Todorov in cross-examination that the door to the laundry had been closed. In those circumstances, his Honour declined to find that Mr Todorov had deliberately lied. Furthermore, he held that on his assessment of Mr Todorov's evidence the latter was 'clearly mistaken in his memory'. His Honour went on to observe:

Certainly, my assessment of the evidence of Mr Todorov as a whole, and the manner in which he gave it in the voir dire would not entitle me to find that he was deliberately untruthful in any relevant respect in giving his evidence to this court.

14 It is highly relevant to set out his Honour's description of the evidence on the voir dire and his assessment of it:

1. 18 Mr Ramage stated in his evidence that the door was closed after the three pairs of runners and after the track pants had been located, bagged and noted in the log. No evidence has been put before me which could contradict or make that evidence of Mr Ramage improbable or unacceptable. I, therefore, accept that evidence of Mr Ramage.
2. Mr Ramage was principally cross examined as to the reason why the door of the laundry was closed. At the committal proceeding he stated that he thought that Mr Todorov had closed the door, to enable the clothes, which were in the laundry basket, to be spread on the floor of the laundry. He also suggested that it was closed to enable the cupboard doors in the laundry to be open. However, in evidence before me, he accepted that neither explanation was a correct reason why the laundry door was closed. It is clear that the laundry was sufficiently large to permit the clothes to be spread on the floor, without the door being closed. Evidence was also given that the cupboard doors were sliding doors, and are not hinged; therefore, it would not be necessary to close the laundry door to enable them to be opened.
3. Mr Ramage, in the course of cross examination, stated that shortly after the committal proceeding, he inquired of Mr Todorov as to why the laundry door had been closed in the course of the search. Mr Todorov told him that he, Mr Todorov, had closed the door, because Karen Hills had been abusive to them, while they were conducting the search and that he closed the door in order to reduce the noise that she was making. In re examination, Mr Ramage told me that, at the time at which the door was closed, he did not know, in fact, what was the reason for Todorov closing the door. Mr Todorov did not then tell him that reason. Mr Ramage said that he only learnt of the correct reason as to why the door was closed after he made an inquiry of Mr Todorov shortly after the committal proceeding. In his re examination, he did confirm that his recollection was that, in fact, while they were in the laundry, Karen Hills had been directing abusive language at them.
4. As I stated, Mr Todorov was not tackled in cross examination about this matter, and it was certainly not put to him that he closed the door for an improper or criminal purpose. Mr Chrystie knew the door was closed, but it would appear that he was not able to shed any light on the reason for it being closed.

15 Ultimately his Honour concluded that he was not satisfied that there was any evidence which would enable him to conclude that the door of the laundry in the premises was closed for any 'improper, nefarious or criminal purpose'. We are unable to find any error in his Honour's reasoning. Significantly, his Honour had the benefit of assessing the witnesses and determining their veracity or otherwise in the course of the voir dire. The explanation of the door closure because of the abusive language of the applicant was plausible and a factor his Honour appropriately considered, especially given Mr Todorov was not cross-examined on the point.

16 Next his Honour considered the allegation that the track suit pants and the shoes were tampered with in the laundry during the search. His Honour described the allegation as firstly, that the shoes found in the sink were actually found on the floor and placed by the police in the sink; and, secondly, that the track suit pants and the shoes were deliberately contaminated by the police planting soil or dirt on them. His Honour carefully considered the submissions:

1. As I stated, apart from pointing to the closing of the door, Ms Randazzo, in support of those propositions, also pointed to some conflicts and inconsistency in the evidence of Mr Ramage as to the state of the shoes when they were seized. Mr Ramage, in his evidence before me, said that all three shoes were soiled. In his statement, he said only the Fila shoes were soiled. That statement is supported by the log, which only describes the Fila pair of shoes as being soiled. Mr Todorov, in his evidence, confirmed that the log in that respect was accurate. Indeed, I also note that Mr Ross of the Victorian Forensic Science Department described the Puma shoes, which were found in the sink, as being extremely clean. Furthermore, Mr Ramage in his evidence before me, as I understood him, thought that the Puma and Nike shoes were both wet, but the log only records the Nike and not the Puma shoes as being wet.
2. Those inconsistencies may ultimately affect the weight of the observations and the reliability of Mr Ramage relating to the state of the items found by him. However, they are not such that they would entitle me to conclude that he has been deliberately untruthful about his evidence. Indeed, that type of inconsistency would indicate to me that he has not sought to confabulate, or simply parrot, evidence he has pre rehearsed in relation to the search. I must say that my impression of Mr Ramage in the witness box in cross examination before me is such that I would not be able to conclude that he deliberately was lying about that, or any other matter before me.

27 There is no evidence that has been put before me that the shoes, that is, the Nike, Fila and Puma shoes, were not in the position stated by Mr Ramage in his evidence in the voir dire. There is no evidence that the condition of the shoes have been mis-described in the log, that is, that they were not in the condition so described in the log. There is no evidence, in particular, that the tracksuit pants and that the Fila and Nike shoes did not have some dirt on them, which was later extracted by Mr Ross and examined by Dr Fitzpatrick. It was put directly to both Mr Todorov and Mr Ramage that there had been tampering with those items. They denied it, and there is no evidence to indicate to the contrary.

17 His Honour concluded that on the basis of the state of the evidence there was no basis on which he could infer that the police had tampered with any of the items found in the laundry, in particular, the track suit pants and the runners. His Honour held that the evidence fell 'significantly short' of the sufficient basis on which he could draw an inference on the balance of probabilities against the police. His Honour further stated that he did not consider these matters to 'collectively or individually, constitute a proper evidentiary foundation' upon which he could draw the inference sought to be relied upon on behalf of the applicant. His Honour rejected the submission that there was any illegality in relation to the conduct of the search.

18 We are unable to find any error in that part of his Honour's reasons either. The submission at trial and before us was founded on section 138 of the Evidence Act 2008 and the principles expressed by the High Court in Ridgeway v R[1] and Robinson v Woolworths Ltd.[2] The argument was that his Honour failed to apply the principle in Ridgeway. We are unable to accept that submission. His Honour carefully considered the authorities at some length[3]. The submission revolved around the concept of impropriety discussed in Ridgeway as conduct which 'is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances'. The burden of proof lay with the applicant to establish the relevant impropriety on the balance of probabilities. His Honour noted that the allegation of impropriety is 'a reasonably grave allegation' and the proof would need to be 'sufficiently cogent to enable such a finding on the balance of probabilities'[4].

19 His Honour considered six factors relied upon by counsel for the applicant at trial as the basis for establishing the impropriety:

1. In submitting that there had been an impropriety, Ms Randazzo relied on six factors, namely: firstly, what she described as the stubborn determination by the police and, in particular, Detective Senior Constable Ramage, to have Karen Hills adopt the Truganina address as her home address; secondly, she submitted that there had been a failure by the police to advise Karen Hills that they were intending to attend the Truganina address with her until they were en route to that address after leaving the Werribee police station; thirdly, she submitted that the search warrant had not been served on Karen Hills until the completion of the search and not, as required by the police manual, at the commencement of it; fourthly, she submitted there had been a failure by the police to properly explain the search warrant to Karen Hills; fifthly, it has been submitted that there had been a failure by the police to comply with the provisions of the police manual which require a list of the items taken from the premises to be signed or countersigned by the suspect or owner/occupier at the premises and, if it is not, to be countersigned by a policeman, and for a receipt there and then to be issued to the owner/occupier; and sixthly, Ms Randazzo relied on the actions of Mr Ramage and Mr Todorov in closing the laundry door while the search of that room was being undertaken.
2. In putting those six matters, Ms Randazzo accepted that none of the first five matters, either individually or collectively, could constitute an impropriety; however, she put them to me as demonstrating what she described as the mindset of Mr Ramage before he conducted the search, and she also submitted that they compounded the impropriety of the search of the laundry being undertaken behind closed doors.

20 His Honour rejected each of the six matters raised by the applicant's counsel. On the hearing of the renewal application, the applicant abandoned submissions with respect to factors one to four and persisted solely with his Honour's ruling on factors five and six to make out the alleged error on impropriety. We now turn to these factors.

21 It was submitted on behalf of the applicant at trial that contrary to the provisions of the police manual, the police did not issue to the applicant at the completion of the search a receipt for the property and did not have her sign or counter-sign a copy of the list. Mr Todorov and Mr Ramage in their evidence on the voir dire accepted that the typed list was not prepared until they returned to the police station and was later attached to the result of search document. Also, the part of the document described as the property seizure record containing a provision for the occupier to sign was not filled in or signed by the applicant or countersigned by a police officer.

22 Counsel for the applicant at the trial did not tender the police manual during the voir dire. After its conclusion and the completion of submissions counsel sought to reopen the voir dire in order to tender the police manual and to further cross-examine Mr Chrystie. The trial judge permitted that to occur and the police manual was tendered. His Honour in the ruling noted that the police manual provides that when property is seized the Forward Commander must 'where practicable' and preferably at the location of the seizure ensure a receipt is issued for the property to the suspect or representative; that a list is compiled; that the list is countersigned by the suspect and if not so signed that a second police officer countersign the list. His Honour found that the provisions were not complied with. Mr Chrystie gave evidence on the reopened voir dire that he assumed that the police officers conducting the search would have had the document signed and he omitted to check that was done. His Honour accepted the explanation by Mr Chrystie and viewed the departure from police regulations as 'regrettable'. Importantly his Honour made a finding of fact that the departure was not a deliberate or reckless act but was 'a little careless'. Ultimately his Honour concluded that the departure could not in any 'realistic sense' constitute an impropriety. His Honour found it was not a clear inconsistency with the minimum acceptable standards which the community would expect of the police. Accordingly, his Honour held that the fifth point was not made out.

23 In this regard his Honour made findings of fact which were open to him on the evidence. We are unable to detect any error in his Honour's reasoning to reach these finding of fact. In our view it is not reasonably arguable that the judge erred in coming to the conclusion he did.

24 This was the main matter relied upon by counsel for the applicant at the trial. His Honour made a number of significant findings of fact: he was not satisfied that the door between the laundry and the kitchen was closed for an illegal purpose or for the purpose of concealing any improper or illegal conduct in the carrying out of the search of the laundry.

25 Further, his Honour proceeded to consider whether the closing of the laundry door was an impropriety under s 138 of the Evidence Act. His Honour accepted that the action would not be regarded as 'good police practice'; however, he did not regard the action to be a clear inconsistency with the minimum standards of police conduct. His Honour concluded on the evidence that he was not satisfied that there was either an illegality or an impropriety. As the judge said, the question was not whether the conduct in closing the door was regrettable but whether it was an impropriety under s 138 of the Evidence Act. We are unable to detect any flaw in his Honour's reasoning.

26 In any event, his Honour proceeded in his ruling to consider the consequence if his conclusion had been to accept that the closing of the laundry door constituted an impropriety. He observed that the onus would then have lain on the prosecution to persuade him that the desirability of admitting the evidence outweighed the desirability of not admitting it. His Honour observed that in his view in the circumstances of the case the impropriety would be at the low end of the scale of improprieties of the type that are usually considered in this type of case. Doubtless his Honour was averting to conduct at the high end as demonstrated in cases such as Ridgeway v R[5]. Ultimately his Honour concluded that as to whether the impropriety was deliberate or reckless, it was neither; rather it was a failure by the police to give adequate consideration to the requirements of good police practice.

27 Weighing up the matters, his Honour also took account of the criterion in s 138 (3)(a) of the Evidence Act as to the probative value of the evidence. His Honour noted that it was difficult at the time of the voir dire to assess its probative value. He noted there was no evidence that directly connected the applicant with the runners. However, in light of the anticipated evidence of Ms Freeman, his Honour concluded that the evidence obtained from the laundry would have probative value as part of the circumstantial evidence at the trial. Nevertheless, the judge also noted that the evidence was independent of that to be given by both Ms Freeman and Meulenbrock. Meulenbrock was an accomplice and a witness who gained benefit on her sentence because she would be giving evidence on behalf of the Crown in the applicant's trial. Weighing matters up his Honour considered paragraph (c) of sub-section 138(3) and concluded that if the evidence was excluded then relevant and probative evidence in respect of charges which alleged particularly serious criminal conduct would be precluded. His Honour concluded that the probative value and the importance of the evidence on balance would clearly out-weigh any impropriety, if there were any. The balancing exercise which that entailed involved an exercise of discretion.[6] We do not think it reasonably arguable that the exercise of discretion miscarried.

28 Ground two - The second proposed ground relied upon by the applicant was that the learned trial judge erred by not discharging the jury as a result of particular evidence given by Ms Freeman.

29 In the written submission filed on behalf of the applicant it was submitted that Ms Freeman disclosed to the jury that the applicant's father had raped her prior to the commission of the offences. To clarify the point, the actual evidence was that the applicant's father had raped the applicant, not that he had raped the complainant as seems to be suggested in the written submission before us.[7] It was submitted that at the time of the evidence, Alan Hills the father of the applicant, was a potential Crown witness and may have provided a partial alibi for the applicant.

30 In her evidence Ms Freeman said in describing the circumstances when she was about to be thrown into the river:

'Cause I had said to Karen [the applicant], "why would you do this? I've been there for you right through the whole of, you know the trauma that you've been through". Her dad raped her, I'm sorry to bring that up.'

31 In a statement to the police Alan Hills indicated that on 9 December 2008 he was at home with the applicant and could confirm she was there until at least 7pm. Mr Hills did not say that she went out afterwards. He said he had a bath and did not see the applicant because she slept upstairs.

32 Counsel for the applicant at trial informed the trial judge that there was CCTV security footage at the premises where the applicant was residing (other than the Truganina premises) which would show that the applicant was home until about 8.21pm. Counsel argued at trial that the 'throwaway comment' by Ms Freeman irrevocably tarnished the credit of Mr Hills. Accordingly, a discharge of the jury was sought. Counsel for the applicant urged his Honour that a direction to the jury could not satisfactorily resolve the matter and that the jury should be discharged. However, his Honour concluded that an appropriate direction should be given and would offset any unfair prejudice to the credit of Mr Hills and, accordingly, to the case of the applicant. His Honour reached this conclusion on five grounds:

1. The comment by Ms Freeman was brief in the context of fairly lengthy evidence.

1. The comment was made in passing as a 'throwaway line'. His Honour noted that the audibility was difficult and, nevertheless, the tone of delivery was without any particular emphasis.

1. There was some significance in the fact that Ms Freeman used the words 'her dad' rather than referring to Alan Hills by name.

1. His Honour observed that some time would pass before Mr Hills was called either by the Crown or on behalf of the applicant to give evidence in the trial. His Honour, an experienced judge in jury cases, observed that the jury's attention would be absorbed by much evidence in relation to many other matters, including some technical matters. His Honour was of the view that if there was any residual memory of what was said, which he doubted, that memory would soon be eroded by the necessity for the jury to concentrate on a range of other substantial matters that would arise in evidence.

1. Most significantly in his Honour's view, he observed that juries have shown themselves to be properly amenable to the type of direction which the comment by Ms Freeman called for.

33 Of course, this Court in R v Halliday[8] has made it plain that '[o]ur system of justice assumes, as it must, that juries obey instructions given to them by trial judges'.[9] There was further submission to his Honour by the applicant's counsel that the allegation was of a sexual offence which is a serious and sensitive matter. His Honour dismissed the point on the basis that the trial was not concerned with the charging of Mr Hills with a sexual offence. Weighing all these matters up his Honour rejected the application for the discharge of the jury. His Honour then delivered a direction:

Before we resume, I take the opportunity just to give you a direction at this stage in relation to one small piece of evidence that was given by Ms Freeman this morning. You may or may not recollect that Ms Freeman in passing made a comment relating to what was said to her on the banks of the Maribyrnong River, and her referring to someone being raped.

Now you may or may not recollect that. That comment made by Ms Freeman was completely irrelevant, it was non-responsive to the question asked of her and being non-responsive and irrelevant, it will not be tested in this court and is totally unsubstantiated.

Now being irrelevant you must put it completely out of your minds. I explained to you yesterday you are judges and as judges from time to time we hear irrelevant throw-away comments like that and we are trained to put them out of our minds and we do. The same is expected of you and I anticipate you will be able to do that. Thank you very much.

34 It was submitted for the applicant before us that the evidence by Ms Freeman as to the alleged 'rape' significantly impacted on the overall credibility of Alan Hills. Further, the failure to discharge the jury left open the possibility that the jury may consider Alan Hills not to be a witness of truth on any matter. It was also submitted that the jury was likely to reason in an impermissible way that Alan Hills was lying to 'make up' or 'compensate' for the rape. It was also submitted that given the importance of Alan Hills as an alibi witness, the failure to discharge the jury resulted in a substantial miscarriage of justice.

35 Drawing again on the statements in authorities such as Halliday, in our view the direction was appropriate and adequate such as to negate any likelihood of the jury using the evidence for impermissible reasoning. We could not be satisfied there was a sufficiently high degree of necessity to discharge the jury. We also consider the observations made by his Honour as to the way in which the evidence was given, its time of delivery in the trial and all the other surrounding circumstances meant it was unlikely to have the level of impact that the applicant's counsel suggested.

36 By and large, it was a question for the judge to determine whether the comment gave rise to a high degree of need to discharge the jury. As has been said repeatedly in the authorities, the informing principle is one which places principal responsibility on the trial judge to determine, in light of the nature of the trial and the extent of the prejudice caused by the disclosure, whether it is necessary to discharge the jury in the interests of ensuring a fair trial. A good deal of leeway should be allowed to a trial judge in evaluating the considerations which are relevant to appreciation of the significance of the event complained of, because the judge will ordinarily have a better appreciation of the significance of the event complained of, when seen in context, than can be discerned from the transcript.[10]

37 We are not satisfied ground 2 is reasonably arguable. It follows, the application for renewal for leave to appeal the conviction should be refused.

38 The applicant sought leave to appeal on three proposed grounds:

2. Mischaracterisation of the applicant's role in the offending.

3. Inadequate weight given to psychological evidence.

39 At the time of the offending the applicant was 35 years of age. The co-accused Brodie Cooper was 18, NKC and RAC were each 15 years old. The applicant is the mother of NKC. Ms Freeman and the applicant had been friends for a long time. His Honour described that there was evidence of issues between the applicant and Ms Freeman but that there was no hostility at the time of the offending. His Honour found that the principal participants in the offending were Craig Hills together with the applicant and Brodie Cooper. His Honour accepted that Craig Hills was the principal decision maker. The prosecution at trial informed the jury that the motive for the offences had origins in an incident in which Craig Hills had been stabbed by one Beau McMahon then the partner of a niece of Ms Freeman. His Honour described the applicant and the co-accused as 'willing participants'. He described the applicant as giving strong vocal support to the actions of Craig Hills. The circumstances of the offending involved a frightening threat of violence to the individual Ms Freeman. His Honour correctly characterised the offending as particularly serious.

40 The maximum sentences for the offences of kidnapping and aggravated burglary are each 25 years imprisonment. Like the judge, we agree the circumstances are particularly disturbing. Ms Freeman was defenceless and completely outnumbered. Furthermore, the offence of aggravated burglary involved the violation of her basic right to enjoy the security of her own home.

41 Ms Freeman was physically assaulted, bundled into the boot of a car and driven for about thirty minutes to the river where there was an attempt to drown her. His Honour found that Ms Freeman genuinely thought she was going to die. She suffered a displaced fracture to the left side of her face and, also, ongoing psychological injury from which she has not recovered. Ms Freeman has been diagnosed as suffering from post-traumatic stress disorder. In her victim impact statement she described the psychological and emotional difficulties she has suffered. His Honour observed that two years after the event she remained traumatised. He accurately and appropriately described the conduct of the offending as 'outrageous and entirely unacceptable and struck at the fundamental norms of a decent and civilised society'.

42 At the time of sentence his Honour noted that the applicant was raised in reasonably comfortable circumstances but that her mother had a long standing psychiatric illness. The applicant's parents separated when she was 10 years of age and she lived with her father. She was close to her father. His Honour noted the psychologist's report of Mr Ball. The applicant was educated to the level of year 10 and then worked in a number of retail jobs. At the age of 19, she entered into a relationship with a violent heroin addict and had been subjected to a number of assaults. She had two children with that individual, one of whom was a co-accused, NKC. Subsequently in 2002 the applicant formed a relationship with another man with whom she had a son who, at the time of sentence, was four years old.

43 The applicant was noted by his Honour to have suffered from abuse of alcohol and prescription medication. She commenced drinking alcohol when she was 16 and told the psychologist that she drank 'non-stop' from the age of 16 to the age of 30. His Honour noted that at the time of the offending the applicant had been drinking alcohol. In addition, she was addicted to Valium and from the age of 30 had been prone to seizures. This condition was said to relate to an underlying anxiety or stress condition. Hence the consumption of Valium.

44 His Honour noted that the applicant admitted to 20 previous convictions arising from approximately 20 separate court appearances over a period of 20 years before the subject offending. Mostly the offending related to dishonesty and drugs. At the time of sentence she had not been previously sentenced to a term of immediate incarceration although on four occasions she had been sentenced to separate terms of imprisonment each of which had been suspended. She had also been twice subjected to intensive corrections orders.

45 His Honour considered the report of the psychologist, Mr Ball. He concluded that the applicant met the diagnostic criteria for a borderline personality disorder. His Honour accepted that the disorder 'had its origins in your disrupted childhood and in the abuse which you have suffered at the hands of your partners'. His Honour went on to note other aspects of the psychologist's report.

46 His Honour concluded that the applicant was one of the three principal actors in the events which led to her conviction. He took account of the fact that she had no previous record for violent offending and, also, would be separated for some time from her young son. In addition his Honour noted that she suffered a leg injury which would cause ongoing problems together with a number of psychological problems.

47 Ground 1 - The first proposed ground of appeal against sentence is that the individual sentences, orders for cumulation and non-parole period are all manifestly excessive, when regard is had to:

1. The fact that this is the applicant's first term of imprisonment.

2. Evidence of significant physical and emotional abuse at the hands of both the applicant's father and first husband.

5. Serious medical conditions including susceptibility to 'seizures' and ongoing serious physical concerns relating to an injury to the applicant's leg.

6. Diagnosed borderline personality disorder, co-morbid substance (alcohol and benzodiazepine) dependence.

8. The fact that the applicant had previously been sentenced to two wholly suspended terms of imprisonment and two intensive corrections orders and had not breached the conditions of any of them.

48 We do not accept the argument. It is apparent from the judge's sentencing remarks that his Honour gave attention to each of the considerations which were urged in mitigation of sentence and, having regard to the sentence which he imposed, there is no reason to doubt that he gave them adequate weight. These were serious offences of a violent and degrading nature which demanded condign punishment. In all the circumstances of the offending and taking account of the aggravating circumstances but also the mitigating features of the applicant's plea we do not detect any error in the sentence. As described by his Honour, the offending was frightening and a serious form of offending.

49 Ground 2 - The second proposed ground of appeal against sentence is that the judge erred in characterising the applicant's role as a principal compared to the roles of her co-offenders Cooper, RAC and NKC.

50 We see no error in the judge's characterisation of the applicant's level of criminality. As the judge said, and appears clearly to have been the fact, Craig Hills, the applicant and Brodie Cooper were the principal participants and Craig Hill was the decision maker. The applicant was a principal in the aggravated burglary, because she entered the complainant's premises with the intention of employing violence against the complainant; and, in relation to the balance of the offending, the applicant either acted in concert with the other principal offenders or as an aider and abettor.

51 Ground 3 - The third proposed ground is that his Honour did not give sufficient weight to the report of the clinical and forensic psychologist and in particular the effects of the rape. Scrutiny of his Honour's reasons for sentence makes it palpably clear that consideration was given to the report of Mr Ball. It is referred to extensively in the reasons for sentence. Furthermore, whilst his Honour did not address the question of the alleged rape in detail it is apparent from his Honour's reference to Mr Ball's report and his finding that it was a factor that featured in his Honour's sentencing discretion. Further, the ground adds nothing to ground 1. The judge gave detailed consideration to each of the matters raised in mitigation and accepted that the hardships to which the applicant had been subjected, including the rape, necessitated mitigation of the sentence to be imposed. The sentence actually imposed reflects that mitigation. We do not consider that ground three is made out.

52 For these reasons we dismiss the application for renewal for leave to appeal against sentence.

[1] [1995] HCA 66; (1995) 184 CLR 19.

[2] [2005] NSWCCA 426; (2005) 64 NSWLR 612.

[3] See DPP v Hill & Ors [2010] VSC 444, [31-37].

[5] [1995] HCA 66; (1995) 184 CLR 19.

[6] Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, [95] (Gummow and Hayne JJ).

[8] [2009] VSCA 195; (2009) 23 VR 419.

[10] R v Hartwick [2005] VSCA 264; (2005) 14 VR 125, 156 [75].