Kerr v R

They drove to an address at Kingswood where the victim was taken into a garage. He tied the victim's hands behind her back with zip ties and ordered her to sit on the garage floor. They stayed in the garage for part of that day. The applicant hit her and kicked her many times. He also hit her once on the head with a black metal bar. That afternoon she was driven back to her friend's house at Penrith as the applicant wanted to get the victim's other mobile phones. At first only he got out of the car. As he could not find the phones the victim got out of the car and went inside. Her friend asked her if she was alright. As the applicant was there the victim felt she could not say anything. He had made her wear sunglasses to cover the bruises on her face. Once the mobile phones were found, they sat in the car. The victim's friend had asked the applicant "When is she coming back?" The applicant pointed at the friend and said, "You won't be seeing her for a very long time." While they were sitting in the car he received a phone call from someone who said the Police had been called so he drove to a house in the Campbelltown area. By this stage it was late in the afternoon on Saturday 30 July 2005. While they were in the car throughout that day, the applicant had punched the victim in the head, chest and ribs. He asked her questions. If she didn't know the answer, or if he felt she was lying, he would punch her.

It was dark by the time they arrived at the Campbelltown house. The applicant told the victim that he was going to keep her there. He said he had a number of friends and he was going to let them have sex with her. He also said that there was a cellar at the house and he was going to put her down there. They went inside the house. There were a couple of women inside the house who tried to speak to the victim. The applicant told them not to speak to her because she was "just a dog". Whilst at the house he slapped her to the face once and yelled at her, calling her a dog.

Soon after they arrived at the house, the applicant went into the bathroom. When he came out his demeanour had changed and he was nice towards the victim. She telephoned her friend that night and told her that she would be back on Sunday "about 11.30am". No further incident occurred that night and the applicant and the victim spent the night at the house. The victim was still scared of the applicant and unsure if his behaviour would change.

The following morning the applicant drove the victim back to the friend's house at Penrith arriving around midday. She walked inside and the applicant drove off in her car. Later that day she told her friend what had happened.

The next day the victim went to the Nepean Hospital. She was seen in the Emergency Department. She complained of pain to her face, head, right knee and ribs. A doctor examined her face (including two black eyes), her ribs, right knee, throat and the back of her neck. She had a superficial stab wound to her left foot.

Subjective circumstances 12 The applicant did not give evidence during the proceedings on sentence. Evidence of his subjective circumstances was put before the Judge by way of a report from Dr Anthony Samuels, a forensic psychiatrist, and a Probation and Parole pre-sentence report. 13 The applicant was born on 20 February 1967 and at the time of offence was aged 38 years. He was one of four children with older twin brothers and a younger sister. His father was a violent alcoholic and left the family when the applicant was nine years old. He lived with his mother the majority of the time, with some periods spent with his father. He left school in year 6 at age 13. He has no formal qualifications and apart from a period of employment as a labourer between the ages of 21 and 25, he had been unemployed. For eight years prior to sentence he had received a Disability Support Pension. He was divorced after a marriage of nine years. He entered into another relationship which lasted for five years until his partner died. The applicant has two children from this union who were 15 and 17 years old at the time of sentence. He told the author of the pre-sentence report that his life "fell apart" following his partner's death. Due to his lifestyle of drug abuse and lawlessness his children were removed from his care following the intervention of the Department of Community Services. 14 His lengthy history of illicit drug abuse commenced when he was 15 years old with cannabis and "acid trips". At the age of 17, he commenced using amphetamines and crystal methamphetamine colloquially known as "speed" and "ice". He developed a daily addiction to these drugs and reported that the only time he was "drug free" was when he was in gaol. Whilst in custody for the present offence, the applicant entered the methadone program and was on a 115mg dose at the time of sentence. 15 The applicant told the author of the pre-sentence report that his daughter had been sexually abused and approximately four days before he committed the offence he had learnt the details of the abuse. On the day of the offence, he had a bad reaction to a shot of "speed", had subsequently "lost it" and proceeded to commit the offence. 16 Dr Samuels considered that the applicant has had a significant poly-substance abuse history. His alcohol abuse did not appear to have been a recent problem. Dr Samuels opined that the applicant had developed mood and anxiety symptoms as well as some psychotic symptoms in the form of paranoia and perceptual disturbances. He was no longer using illicit substances and had been on a low dose of an antipsychotic medication. The psychologist regarded him as having antisocial personality features. The applicant had expressed remorse to the psychologist for what had happened and was keen to become drug free. 17 A statement from Sandra Laycock, a drug and alcohol counsellor with the Department of Corrective Services, was tendered (exhibit J) which disclosed that the applicant was regularly having one on one sessions on a voluntary basis with the counsellor, had regularly attended voluntary group sessions and had become aware that he had many issues to address. 18 The applicant's extensive criminal history includes convictions for offences of violence and dishonesty. Terms of imprisonment have been previously imposed for offences of assault, making a false instrument, attempt stealing of a motor vehicle, possession of implement capable of entering a conveyance, possession/use of prohibited weapon, supply and possession of prohibited drugs, stalk/intimidate with intention to cause physical/mental harm, enter dwelling with intention to steal, take and drive conveyance without consent of owner, possess shortened firearm (not pistol) without authority, goods in personal custody reasonably suspected of being stolen and escape from lawful custody. 19 For the offence of escape from lawful custody, he was sentenced in the District Court at Sydney on 20 June 2003 to imprisonment for 18 months commencing on 29 August 2004 and expiring on 28 February 2006 with a non-parole period of 6 months expiring on 28 February 2005. The applicant was released to parole on that day. 20 The present offence was committed whilst he was subject to parole. His parole was revoked on 18 August 2005 and the applicant commenced serving the balance of parole when he was arrested on 9 October 2005. The revocation of the parole order expired on 10 May 2006. 21 On 28 October 2005, the applicant was sentenced in the Local Court at Campbelltown to concurrent sentences of imprisonment for 12 months with a non-parole period of 8 months for offences of take and drive a motor vehicle, drive whilst disqualified, driving furiously and entering a dwelling to commit a felony. The term of the sentences commenced on 9 October 2005 and expired on 8 October 2006. The non-parole period expired on 8 June 2006.

Dealing with the Appeal Ground one - His Honour failed to properly backdate the sentence. 22 The Crown concedes that this ground of appeal has been established. The commencement date of the sentence was 9 October 2006 which resulted from the Crown's indication to his Honour that that was the date on which the applicant had been bail refused solely for the matters for which he was to be sentenced. The correct date was 9 June 2006 as the non-parole period of the sentence imposed by the Local Court expired on 8 June 2006 with the full term of the sentence expiring on 8 October 2006. As he was bail refused for the present offences, he remained in custody after 8 June 2006. He was otherwise entitled to be released to parole. 23 Section 24 of the Crimes (Sentencing Procedure) Act 1999 provides: "In sentencing an offender, the Court must take into account: (a) anytime for which the offender has been held in custody in relation to that offence…"

His Honour was obliged by s 24(a) to take into account the time the applicant had been held in custody in relation to the offence which his Honour inadvertently did not do as the sentence he imposed commenced after the expiration of the full term of the Local Court sentence. The sentence should have been backdated to commence from 9 June 2006.

Ground two - His Honour failed to properly consider and apply the principle of totality to the sentence imposed. 24 It was submitted for the applicant that his Honour was required to take into account the existing sentence which was being served and consider with respect to that sentence whether the aggregate sentence was 'just and appropriate' to the totality of the offending behaviour. At no stage did his Honour, it was argued, consider the issue of the totality of the sentences imposed including the sentence for which he had previously been sentenced. The sentence should have been made partially concurrent with the previous sentence. During oral submissions in this Court, counsel argued that the effect of the sentence flowing on from a sentence of a full year for the other matters was to impose a starting point of 15 years rather than the Judge's starting point of 14 years. The submission was confined to the sentence imposed in the Campbelltown Local Court and did not include the custody served as a result of the revocation of parole. In view of the Crown's concession as to the first ground of appeal, the applicant's complaint as to the accumulative effect of the Local Court sentence is reduced to 8 months. 25 No submission was made for the applicant before the Judge that he should take into account the time spent in custody for the Local Court offences and his Honour did not refer to the principle of totality in his sentencing remarks. 26 Whether a sentence is to be served concurrently, partially concurrently or consecutively on an existing sentence is determined by the application of the principle of totality. As was explained by the Court (Spigelman CJ, Whealy and Howie JJ) in R v MMK [2006] NSWCCA 272 at [11]: "One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616." 27 The totality principle is designed to avoid a court imposing a "crushing sentence" in the sense that "it will induce a feeling of hopelessness and destroy any expectation of a useful life after release": R v M.A.K, R v M.S.K [2006] NSWCCA 381 at [17]. 28 The sentence imposed by his Honour taking into account the 8 months the applicant had previously served, the total period he would spend in custody and his age of 38 years was not, in my opinion, a "crushing" sentence. It cannot be characterised as destroying any expectation of a useful life after release. 29 In any event, the totality principle, in my view, did not apply as the applicant was not serving an existing sentence when he came to be sentenced by the Judge. The full term of the Local Court sentence had expired on 8 October 2006. He had from that time been in custody for the offence for which he was to be sentenced because bail had been refused on 24 October 2005. 30 This Court has previously considered the application of the principle of totality to a sentence that had commenced and expired during an offender's time in custody on remand for an offence for which he was to be sentenced. 31 In Huntington v Regina [2007] NSWCCA 196, the applicant was convicted of one count of assault contrary to s 61 of the Crimes Act and one count of commit an act of indecency contrary to s 61L of the Crimes Act. On 1 September 2006, the applicant was sentenced in the District Court to imprisonment for a fixed term of 80 days in respect of the first offence and to imprisonment for a non-parole period of 15 months with an additional period of 5 months in respect of the second offence. Each sentence was backdated to commence on 8 May 2006. The applicant had been arrested on 8 January 2006 and had remained in custody bail refused since that time. On 19 May 2006, he was sentenced to 12 months imprisonment with a non-parole period of 6 months for use offensive weapon. The non-parole period commenced on 9 November 2005 and expired on 8 May 2006. It was agreed by both parties at the sentencing hearing that the applicant's custody in relation to the offences for which he was to be sentenced dated from 8 May 2006, from which date the sentencing Judge commenced the sentences. It was argued on appeal that the sentencing Judge erred in failing to take into account the pre-sentence custody and in failing to apply the principle of totality. Hislop J (with whom Giles JA and James J agreed) in rejecting this ground of appeal said at [26]: "Save in exceptional cases, the general principle is that although when a person is being sentenced for an offence a period which he has already spent in custody in relation to that offence should be taken into account, a period which the person has spent in custody in respect of an unrelated offence should not be taken into account - R v Niass (unreported NSWCCA 16 November 1988); R v John David (unreported NSWCCA 20 April 1995). The present is not an exceptional case." 32 There is, in my opinion, nothing about the present case which makes it exceptional. 33 The second ground of appeal has not been established.

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.

58 The fourth ground of appeal has not been established. 59 The applicant's success upon appeal is confined to the commencement date of the sentence. I propose to re-sentence the applicant so that the sentence commences on 9 June 2006. 60 The orders I propose are:

(i) Leave to appeal be granted. (ii) Appeal allowed.

(iii) Quash the sentence in the District Court only to the extent of the commencement and expiration dates of the sentence.

The applicant is sentenced to imprisonment with a non-parole period of 8 years to commence on 9 June 2006 and to expire on 8 June 2014 with a balance of term of 3 years expiring on 8 June 2017.

The earliest date on which the applicant is eligible for release to parole is 8 June 2014.

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