Ground three - his Honour having found special circumstances, failed to reflect that finding in the non-parole period ultimately imposed.
34 The applicant complains that although his Honour found special circumstances, the non-parole period was reduced only by two months. It was submitted that such a minor reduction failed to properly implement the Judge's finding of special circumstances and a greater reduction in the non-parole period was called for. It was also submitted that his Honour's finding that imprisonment would provide opportunities for the applicant's rehabilitation through the provision of programs available to those held in custody was contrary to the evidence as to the almost insurmountable difficulties he faced in being able to attend rehabilitation programs to address his drug problem.
35 As to this last submission, there had been discussion during the sentencing proceedings on 1 June 2007 as to whether the applicant's escape classification would restrict or prohibit his access to rehabilitation programs. Prior to sentencing the applicant on 14 June 2007 the statement from Sandra Laycock to which I have referred at para 17 above was tendered and marked exhibit J. As I have recited, the statement made reference to the applicant's contact with Ms Laycock on a regular basis to address his issues in one to one counselling sessions and that he had attended group programs on a regular basis. He was then classified as an "EIU" (Escape High Risk Unsentenced) prisoner. Ms Laycock went on to recount that as a result of a future sentence, he "would be classified as a sentenced E1 or E2 inmate…" and "with [this] classification it is almost impossible for him to attend group Alcohol and Other Drug Programmes and can be very difficult to do one to one counselling due to high demand for this service".
36 It is evident that his Honour did not overlook the difficulties of access to rehabilitation programs which arose from his prison classification. The Judge expressly referred to exhibit J in his sentencing remarks. It was open to his Honour to find that the applicant required the discipline of the custodial setting to maximise the opportunities for rehabilitation and he could, if he wished, take advantage of those programs that he might be offered whilst in custody.
37 During his remarks on sentence, the Judge said:
"I have also turned my mind to the question of special circumstances. I am of the view that there are some limited circumstances to which I might apply this description, largely arising as a consequence of the submissions made to me today, regarding the lost opportunity to pursue remedial programs whilst in custody. The adjustment to the statutory ratio provided in s 44 of the Crimes (Sentencing Procedure) Act , however, will not be great.
The sentence upon which I intend to settle will provide more than adequate time on parole for the adjustment of the offender from his custodial setting and his return to the community."
38 Section 44(2) of the Crimes (Sentencing Procedure) Act requires that the balance of the term of the sentence must not exceed one third of the non-parole period, unless the court decides that there are special circumstances. As was observed in Regina v Cramp [2004] NSWCCA 264 per Spigelman CJ at [31] the size of an adjustment for special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene". The Court will usually not intervene unless the non-parole period is found to be manifestly inadequate or manifestly excessive: see Cramp per Spigelman CJ at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]. This is not such a case. No error by his Honour has been demonstrated.
Ground four - the sentence imposed is manifestly excessive.
39 Counsel for the applicant took issue with the Judge's assessment of the objective seriousness of the offence being greater than the mid-range.
40 It was submitted that his Honour made factual errors with respect of the length of time that the victim had been held in captivity. The first contention was that his Honour said that the captivity commenced at 7am on the Friday morning when it in fact commenced at approximately midnight, some 17 or 18 hours later.
41 The agreed facts tendered on sentence disclosed that the victim's detention commenced at about midnight on 29 July 2005. In his remarks on sentence under the heading "The Submissions of Counsel", the Judge said:
"The Crown points out that detention was not for a short period but extended from about 7am on Friday 29 July 2005 until the following Sunday morning."
42 His Honour had earlier summarised the agreed facts and had relevantly stated (ROS at 9):
"During the evening of Friday 29 July 2005, [CD] was at Penrith, the home of her friend [EF]. About midnight, the offender came to those premises and persuaded Ms [CD] to go with him."
43 The incorrect reference to the commencement of the detention was made in the context of his Honour's summary of the Crown submissions. It seems to me that what has occurred is no more than an inaccurate recounting of the Crown submissions. The Judge had previously accurately recited the agreed facts. I am not persuaded that the Judge made the factual error which is claimed.
44 The next factual error that his Honour is said to have made is that the applicant pleaded guilty to the single count on the indictment which related to the captivity which concluded at Prospect. The submission, as I understand it, is that the Judge erred when he said that the detention extended "until the following Sunday morning". It was an agreed fact that the applicant arrived with the victim at his home at Prospect at about 7am on the Saturday morning. Later on that day he drove the victim to an address at Kingswood.
45 During his sentencing remarks, the Judge said (ROS at 33):
"The events, upon which the Crown relies for the principal charge, are those occurring from when the offender first took Ms [CD] through to the point where she was held at Prospect. The first of the additional offences occurred from when the offender took Ms [CD] from that address to Kingswood, returned to Ms [EF's] house and then to Campbelltown before returning her finally to Ms [EF's] house where she was released."
46 It is plain from these remarks that his Honour was aware that the time of the detention for the count on the indictment ended when the victim was taken from Prospect. In any event, his Honour was entitled to take into account that the victim's detention had continued from the time that they had left Prospect until her release about midday on Sunday. This was the first offence on the Form 1. No error was made by the Judge in respect of the length of time that the victim had been detained.
47 It was contended for the applicant that there were a number of unusual features in the commission of the offence which impacted upon the overall objective criminality displayed, the significance of which was not apparently fully appreciated by the Judge. The features which were pointed to included no physical assaults upon the victim after they arrived at the applicant's home until the time of driving to Kingswood, the change of his demeanour after he emerged from the bathroom at the Campbelltown house, the telephone call by the victim to her friend on the Saturday night and her return to her friend's home on the next day around noon. The objective nature of the criminality displayed after the applicant and the victim arrived at Campbelltown early in the Saturday evening was said to be of a very much lower order than it had been.
48 The applicant's offending in the early hours of the Saturday morning involved a high degree of violence. The victim was forced from her vehicle at knife point, marched into a paddock and pushed to the ground. She was kicked, punched, bound and gagged. The applicant threatened to kill her by injecting her with a substance and to cut off her nose with a large knife which was held under her throat. He cut her foot with the knife. During the assaults she lost consciousness.
49 Although it is true that the degree of actual violence decreased from that time, the use of actual violence did not cease until some time after they arrived at the Campbelltown house. A very real threat of violence to the victim existed throughout the whole of the detention. After he woke up at the Prospect house, the applicant verbally abused the victim and told her that she was going to die. When she was being driven to Kingswood, his threats included telling her she would be kept as a hostage for a month. Whilst in the garage at Kingswood, the victim's hands were tied with zip ties behind her back and she was hit and kicked many times. At the Campbelltown house, the applicant's threats included sexual assault by his friends and her detention in a cellar.
50 In R v Newell [2004] NSWCCA 183, this Court considered the offence of kidnapping contrary to s 86 of the Crimes Act. Howie J (with whom Bell and Hislop JJ agreed) said at [32]:
"The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence."
51 In view of the arguments advanced for the applicant, it is necessary to recognise that circumstances which increase the seriousness of the unlawful detention are not confined to the period within which the victim is detained or to the actual use of violence. A real threat of violence and the presence of a weapon, like a knife, capable of killing or inflicting serious injury are factors of aggravation even though actual injury may not be occasioned to the victim.
52 When actual bodily harm is occasioned and/or the kidnapping is committed in company, the statutory scheme for the offence of kidnapping in Division 14 of the Crimes Act elevates the basic offence (s 86(1)) to an aggravated offence (s 86(2)) or a specially aggravated offence under s 86(3).
53 Greater weight is to be given, in my view, to considerations of protection of society, general and specific deterrence when violence is threatened or actual violence is used in the kidnapping.
54 His Honour's finding that the offence was "well above the middle of the range" of objective seriousness was essentially one of fact. I am not persuaded that the Judge overlooked a relevant consideration or that wrong principle was applied or that the finding was not open on the evidence: R v Johnson [2004] NSWCCA 140, Mulato v Regina [2006] NSWCCA 282. His Honour's characterisation of the degree of objective seriousness of the offence was open to him. In my view, this was a very serious offence.
55 The seriousness of the offence, as the Judge found, was aggravated by the fact that he was on parole at the time. The offences on the Form 1, particularly the first offence, were serious in their own right and his Honour was entitled to increase the sentence for the principal offence "to a significant extent" (ROS at 34) by taking them into account. His Honour was generous in his allowance of a discount for the plea and closely considered the applicant's subjective circumstances.
56 A number of sentences imposed in other cases was attached to the applicant's written submissions. None of the cases referred to persuade me that the sentence in this case was manifestly excessive.
57 In my opinion, the sentence is within the upper end of an appropriate range and the undiscounted starting point of sentence of 14 years imprisonment does not manifest error.