249 CLR 571
Hamilton v R [2016] NSWCCA 59
Hampton v R [2014] NSWCCA 131
Kentwell v The Queen [2014] HCA 37
252 CLR 601
Khoury v R [2011] NSWCCA 118
Source
Original judgment source is linked above.
Catchwords
249 CLR 571
Hamilton v R [2016] NSWCCA 59
Hampton v R [2014] NSWCCA 131
Kentwell v The Queen [2014] HCA 37252 CLR 601
Khoury v R [2011] NSWCCA 118
Judgment (3 paragraphs)
[1]
Solicitors:
Aboriginal Legal Service - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2015/020907
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 23 June 2016
Before: Frearson SC DCJ
File Number(s): 2015/020907
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by his Honour Judge Frearson SC in the District Court at Sydney on 23 June 2016.
On 13 July 2015 the applicant was charged with the offence of "take/detain person in company with intent to obtain advantage, namely $20,000", contrary to s 86(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of imprisonment for 20 years.
The applicant pleaded guilty to that charge in the Griffith Local Court. On 30 September 2016 he was sentenced to imprisonment with a non-parole period of 5 years, commencing 13 November 2015 and expiring 12 November 2020, with a balance of term of 2 years and 6 months to expire 12 May 2023.
Initially the applicant relied upon the following grounds of appeal:
Ground 1 - The sentencing judge erred in not backdating or otherwise taking into account the applicant's pre-trial custody.
Ground 2 - The sentence imposed in respect of the offence of aggravated take and detain for advantage is infected by error and that this error has resulted in a miscarriage of justice which should be rectified by the Court.
When the matter came on for hearing, those grounds were not pursued and leave was granted to the applicant to rely upon the following single ground of appeal:
Ground 1 - The sentence appealed was partially accumulated upon an earlier Local Court sentence where the applicant had been concurrently in custody bail refused; the setting aside by the District Court on appeal of that Local Court sentence, gives rise to a miscarriage of justice, which should be rectified by this Court.
Factual background
About 4pm on Saturday, 17 January 2015 the victim, Brendan Ogden, drove to a location approximately 15km east of Barellan where he met with the applicant. The applicant had been waiting at that location in another car. The applicant placed the victim in the rear of his vehicle and took him to a shed in Simms Road, Beelbangera. The applicant then placed the victim on the ground and hog tied his arms and legs behind his back with a rope. When the victim asked what was happening, the applicant replied "BK will be here soon".
The applicant placed the victim under a pool table and covered the pool table with cloth. The victim was left alone in the shed. Sometime later, a co-offender, Brandon Kay (Kay), also known as "BK", arrived and spoke with the victim. Kay pulled the victim from beneath the pool table and slammed him onto the ground. He said words to the effect:
"I'm sick of people thinking of me as a joke. Do you think the Wagga people take me as a joke."
Kay then left the shed, locking the victim inside. A few hours later, Kay returned with an unknown male and another male believed to be Dwayne Simpson (Simpson). The applicant arrived at about the same time. Kay said to the victim:
"You're taking food out of my daughter's mouth. Do you know my friend the devil? The devil shouldn't kill you, he had his taste of blood tonight. Get back to your friends in Wagga and tell them I'm not to be fucked with."
(Investigating police believed the applicant is also known as "the devil".)
Kay left the shed with the unknown male. The applicant and Simpson remained. The applicant tortured the victim by holding knives, saws, weapons and power tools to his throat, neck and body. He revved power saws next to his ear and prodded him with a large homemade cattle prod which caused considerable pain to the victim. The victim was put in fear of his life and/or serious injury.
Kay returned to the shed and said "Now you owe me twenty". The victim understood this to mean that he owed $20,000. The victim had previously accumulated a drug debt in the vicinity of $5,000 to Kay when he was the subject of a home invasion and was "ripped" of a large quantity of methylamphetamine. Under duress the victim agreed to pay $20,000. The applicant then untied the victim's wrists and made him write a note containing the names of certain people. The names on this note were those persons whom the victim believed were involved in an assault incident in Wagga Wagga in November 2014. The applicant retained the note.
Kay left the property. The applicant and Simpson put the victim in a white Holden utility and drove him from the property further into the bush. It was late at night. They stopped and walked the victim further into the bush. Simpson put a jumper on him and sprayed him with a large amount of deodorant, saying "This will keep the pigs away". The applicant instructed the victim to stand with his back against a tree while the applicant wrapped a chain around him and secured the chain to the tree with a cordless drill and screws. Simpson and the applicant drove away and left the victim chained to the tree overnight.
About 6am on Saturday, 18 January 2015, when the sun was rising, Kay returned to the victim on a dirt bike. The applicant arrived at the same time in the Holden utility. The victim was placed inside the utility and driven to an unknown service station where Kay purchased a meat pie and water for him. The victim was then driven to Kay's unit in Wakaden Street, Griffith. The victim was kept inside the unit until late evening. The applicant arrived and made the victim drive him and Kay to various houses in the Griffith area, dropping off items believed to be methylamphetamine.
The victim drove Kay back home before driving to an address and collecting an unidentified female. The applicant made the victim get into the back seat. The applicant drove the victim to the Spring Hill Rest Area on the Whitton Stock Route at Yenda. The applicant threw a pair of socks and shoes at the victim and made him put them on. The female activated a torch and walked with the applicant and the victim into the bush. The applicant carried a black bag with a Samurai sword protruding and also carried a "mobile phone taser", which he used to prod and zap the victim in the back of the neck. They walked approximately 300 metres into the bush and the applicant chained the victim to a tree using a cordless drill and screws. The applicant and the female left the victim. The location was well out of sight from the rest area and there was no chance of passing traffic seeing the victim.
About 7.30am on Monday, 19 January 2015 the victim began to yell out. By chance a witness on a neighbouring property could hear the yelling. The witness was able to locate the victim and contacted police. Police arrived and a crime scene was established. The victim was conveyed to Griffith Police Station and later sought medical attention.
Police attended the Simms Road, Beelbangera residence and declared it a crime scene. The scene was consistent with the statement provided by the victim and exhibits, including rope bindings located on top of a pool table, machetes and a large cattle prod were seized.
About 1.20pm on Tuesday, 20 January 2015 police executed a search warrant on the applicant's home address. No person was home at the time. Police seized bindings, which were consistent with the bindings seized at Simms Road, Beelbangera. Police also seized a black "Billabong" brand bag.
About 5pm police executed a search warrant at the unit in Wakaden Street, Griffith, the home address of Kay. No person was home at the time. Police seized a white Samurai sword, a black Samurai sword, a homemade cattle prod stick which conducts electricity and a black Samsung mobile phone.
In summary, the victim was subjected to torture and left chained to trees exposed in bushland for two consecutive nights. He received ant and insect bites overnight on both evenings and suffered sleep deprivation. The victim incurred pain as a result of being hog tied and chained to trees over extensive timeframes.
The applicant was arrested by police on 13 July 2015 and taken to Griffith Police Station before being placed in custody.
On that date, 13 July 2015, the applicant was bail refused for this offence and various driving offences. On 26 May 2016 the applicant was sentenced in the Local Court in respect of the driving offences. He was sentenced to a fixed term of imprisonment of 10 months to date from 13 July 2015. As already indicated, on 23 June 2016 the applicant was sentenced in respect of this offence with the sentence to commence on 13 November 2015, i.e. 4 months after bail had been refused on 13 July 2015. On 23 February 2017 the conviction for the driving offences and the sentence imposed in respect of them, were set aside by the District Court on appeal.
Remarks on sentence
Because the applicant had pleaded guilty at an early point in time, his Honour allowed a discount of 25 per cent. His Honour further noted that although this was not a ransom case, he regarded it as "an extremely serious example of this type of offence". His Honour reached that conclusion because of the level of threats, the mechanism of the threats, the duration of the detention and what happened during the detention. His Honour had particular regard to the threats of violence involving all sorts of objects, as well as the victim being tied to a tree and the degradation and humiliation which was associated with the detention.
His Honour concluded that the offence:
"… certainly approaches the worst case category, in my view, regardless of the fact that it is not for ransom. What happened here was degrading and humiliating and one would think that in any civilised society no human being should be treated in this fashion by a number of others." (Sentence judgment 6.8)
His Honour had regard to the applicant's poor criminal record. Although his Honour did not set out the full record, he noted that there were matters going back to the Children's Court, which included a robbery in company and an assault occasioning actual bodily harm. In the Local Court in 2002 there was a larceny offence and an affray offence in 2007. In 2011 there was an especially aggravated enter dwelling with intent and a wounding. In 2009 there was an assault officer in execution of duty offence. His Honour regarded that previous offending as a matter of aggravation, not in terms of the objective gravity of the offending, but in terms of the sentence to be imposed.
The applicant gave evidence before his Honour and explained some of the offending. He came from a background of domestic violence where alcohol was regularly abused. He was basically illiterate, having left school in year 9 at the age of 15. He had worked in shearing sheds and essentially had two employers. He had returned to shearing after his various periods in gaol. He was good at shearing and had won prizes.
The applicant had used alcohol since the age of 15 and consumed a six pack every night. He had been using cannabis since the age of 15. He had, however, abstained from the use of cannabis before this offending. He had had some relationships, one of which lasted a long time and at the time of sentence, had a daughter aged 10. He was close to his daughter and stepson. He was aged 31 at the time of the offences, having been born in September 1983.
The applicant explained that he was introduced to ice just before this offence. His smoked one gram per day and was under its influence for two days. He was also upset by discovering that his nephew had leukaemia, having been diagnosed in November 2014.
When explaining the offending, the applicant said that the victim owed money for a debt. He was asked to "get him" and did not really have any plan and just went along with things and consumed drugs throughout the period. His evidence was that ice motivated him and he became depressed when he was not able to take it.
His Honour noted that the applicant's evidence was confirmed by a pre-sentence report of 2013 which set out the social and family circumstances and his disadvantaged background which included abuse and domestic violence. There were also a number of housing relocations which adversely affected the family. In that regard, his Honour accepted that the principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 applied.
His Honour noted that while there was no evidence of any substantial emotional harm having been suffered by the victim, one would have expected that some such harm would have occurred. His Honour was not prepared to find that the offending was unplanned, although he regarded the planning which was involved as being of a rudimentary kind.
His Honour found that the applicant had fair prospects of rehabilitation and that he had accepted responsibility for his offending. His Honour was not prepared to find that the applicant was unlikely to re-offend because of his criminal history and his problems with alcohol and methylamphetamine.
His Honour determined that there was no alternative to a custodial sentence because of the seriousness of the offending. His Honour noted that no application to the contrary had been made.
In relation to the commencement date of the applicant's sentence, his Honour said:
"There is a question on totality here, particularly in relation to Mr Little who has served ten months imprisonment from July 15 to May 2016. It is true that his custody is not referable to the present offence but it seems to me that the appropriate commencement date for his sentence will be 13 November 2015 having regard to totality." (Sentence judgment 12.1)
The background to that observation by his Honour was an exchange which occurred during the sentence proceedings on 23 June 2016 at p17 where the following was said:
"KERR [The Prosecutor]: Mr Little was sentenced to ten months in custody for driving while disqualified and I think it might be 81C, but police pursuit. Ten months.
HIS HONOUR: There would be a totality consideration there. So when do people suggest I should start the sentence from?
KING: He's lodged a conviction appeal, your Honour.
HIS HONOUR: Has he?
KING: Yes, he has.
HIS HONOUR: I can't assume he'll be successful.
KING: No, but your Honour can't assume he won't.
KERR: So he was in custody for those offences, the Local Court offences, from 31 July 15 to 30 May 16. He was also in custody, bail refused for these offences at that time. I'm instructed, your Honour, that those driving offences occurred during the period Mr Little had a warrant out against him for this offence.
HIS HONOUR: Assuming I just take into account that he's actually served ten months, it's not referable to this matter, I wouldn't add the whole ten months on. I know Mr King says I should have a hopeful expectation of his success on his appeal. But assuming that I don't do that--
KERR: So he was arrested on 13 July. Sorry, for this matter, sorry.
HIS HONOUR: Yes, for this matter.
KERR: I don't have any instructions to when these driving offences --
HIS HONOUR: No, but the fact is he has got - sorry, when does the ten months date from?
KERR: 31 July 15." (T17 - 23.6.2016)
THE APPEAL
The applicant's initial approach (as indicated in the abandoned grounds) was somewhat simplistic. It assumed that all that needed to be done was to note the change in circumstances (i.e. the success of the appeal to the District Court in relation to the driving offences) and to then adjust the commencement date of the applicant's sentence back 4 months to 13 July 2015 when bail was refused in this matter and the driving offences. Reliance was placed on Hamilton v R [2016] NSWCCA 59. As is readily apparent from a reading of Hamilton v R, it turned very much on its own facts. Most particularly, the backdating of the sentence was consented to by the Crown. In this case, the Crown has not consented to any backdating or other adjustment to the sentence imposed by Frearson SC DCJ on 26 June 2016.
In the appeal two difficulties were pointed out to the applicant. The first was that at the time when judgment was delivered in this matter, the 10 month prison term for the driving offences had been imposed and Frearson SC DCJ took into account the principle of totality when both formulating the sentence and determining its commencement date. To what extent the principle of totality affected the length of sentence which his Honour imposed is not known. It cannot be assumed that the only adjustment which his Honour made was to backdate the commencement date of the sentence.
The second difficulty was that this Court is a court of error and no error on the part of the sentencing judge was identified. He sentenced in accordance with the circumstances as they were at the time and in accordance with submissions which had been made to him. Moreover, it is by no means clear that this Court could even have regard to the change of circumstances, i.e. the success of the appeal against the driving offences. This was a matter which occurred after sentence had been passed and no basis was put in the written submissions on behalf of the applicant, to justify this Court having regard to the change in circumstances and if so, acting upon it. It is for that reason that the applicant abandoned his original grounds of appeal and replaced them with the ground which was ultimately relied upon.
The difficulties associated with this matter were succinctly and, with respect, comprehensively examined by Simpson J (as her Honour then was) (with whom Davies J and Grove AJ agreed) in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509.
The issue in Khoury v R was whether the applicant should be granted leave to rely upon additional evidence. The additional evidence was identified as:
Two psychological reports.
Four psychiatric reports.
An affidavit of counsel who had represented the applicant in the sentence proceedings at first instance.
The questions to which the fresh evidence was directed concerned the level of the applicant's intellectual functioning and his mental and/or psychological condition. There was no such evidence provided to the sentencing judge and an explanation for its absence was given in the affidavit of counsel. The Crown objected to the reception of the fresh evidence and argued that the applicant was bound by the way in which his case was presented at first instance and that he should not be permitted to enhance his case on appeal by the production of fresh or new evidence.
In the course of resolving the issue thus raised, Simpson J stated the relevant principles as follows:
"105 The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice … In criminal cases, two important but competing policy considerations collide:
(1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance;
(2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied.
But there are limits as to the extent to which the court may legitimately accept additional evidence. … These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved."
In addition to that difficulty, her Honour also identified what she described as "an additional, sometimes intractable, barrier to admissibility". This barrier arose from the wording of s 6(3) of the Criminal Appeal Act, 1912 (NSW) which relevantly provided:
"6(3) … the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
In relation to that difficulty, Simpson J said:
"110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177.
111 The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities …
112 The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing.
113 Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217." (Emphasis added)
As part of her analysis of this aspect of the law, Simpson J identified exceptions to the above requirement. Her Honour said:
"114 Two classes of case have emerged. I have already referred to cases in which evidence of post sentencing assistance to authorities has not been admitted. However, in other cases, where it has been held that the circumstances existed at the time of sentencing, even if not put before the sentencing judge, the evidence may be admitted. An example is R v Many (1990) 51 A Crim R 54. An extension occurs where there is some evidence of assistance, but subsequent events show that its significance was not fully appreciated: Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13.
115 Another, and increasingly common, category concerns medical evidence. Examples of these are R v Abbott (1984) 17 A Crim R 355; R v Ehrenburg (NSWCCA, 14 December 1990, unreported ); R v Fordham (1997) 98 A Crim R 359; R v Ashton [2002] NSWCCA 498; 137 A Crim R 73; Iglesias v R [2006] NSWCCA 261; Stumbles v R [2006] NSWCCA 418; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1."
Even allowing for those exceptions, Simpson J warned of the need for caution when dealing with such issues:
"117 Caution must be exercised in the admission of the evidence. As I have already indicated, in Lanham, it was held that a proper basis for the admission of the evidence must be established. In Ehrenburg, Loveday J, with whom Gleeson CJ agreed, described the case as "most unusual"; Samuels JA, who also agreed, cautioned against allowing sympathy to lead the Court, against its duty to the community, to make an error of principle. In Ashton, Howie J warned that the Court must be careful to maintain a principled approach in dealing with appeals before it, and be scrupulous to ensure that there is a proper basis for receiving evidence of events that occur after sentence where there is no error established in the sentence imposed.
…
120 For myself, I would question the too ready acceptance that a psychological report post dating sentencing, is, because it is prepared after sentencing, fresh or new evidence. The substance of the evidence is not the existence of the report, but the history and opinions expressed in the report concerning the applicant's psychological condition. That may or may not be something of which the offender was (or his legal representative were) aware at the time of sentencing, but it is almost certainly evidence that, in the ordinary course, could with reasonable diligence have been obtained prior to sentencing.
121 That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court to examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. ..."
With those principles and examples in mind, it seems to me that the closest analogy to the circumstances of this case is that line of authority where a matter has been raised in sentence proceedings but the full facts were not known or understood at the time of the sentence proceedings but have subsequently become known. In accordance with that line of authority, I am of the opinion that it is open to this Court to have regard to the change in circumstances, i.e. the quashing of the conviction for the driving offences, and to intervene in the proceedings. That does not necessarily mean that the applicant should automatically have the commencement date of his sentence backdated by 4 months to 13 July 2015 when bail in this matter was first refused.
Since error has been identified, albeit of a technical kind, it is necessary for this Court in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601 to re-exercise the sentencing discretion. This is not a case where a mere arithmetical alteration is required: Lehn v R [2016] NSWCCA 255; 93 NSWLR 205 at 216 [72]. In re-sentencing the applicant, the Court is to make its own assessment of the facts and take into account any developments which have occurred since the date of sentencing. In this case, the only development which has been brought to the Court's attention is the success of the appeal in the driving offence matters. It is also significant that no other challenge has been made to any other finding, either of fact or law, made by his Honour in the sentence judgment.
Moreover, when having regard to whether a lesser sentence is warranted, the Court needs to take into account that a consideration of totality was part of the overall intuitive synthesis on the part of his Honour which produced the sentence originally imposed. It should also be noted that while s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that the Court "must take into account" any time for which the offender has been held in custody in relation to the offence, the section does not prescribe any particular method by which that time in custody should be so taken into account.
As his Honour appreciated, this was a very serious example of an offence contrary to s 86(2)(a) of the Crimes Act 1900 for which there is a clear guidepost, i.e. maximum sentence of 20 years. While there were some powerful factors favouring a lesser sentence, i.e. the application of the Bugmy principle, there were also other matters which militated against that, i.e. the objective seriousness of the offending and the problems associated with rehabilitation and re-offending.
Having regard to those matters, and also other factors identified by his Honour in his sentence judgment, which have not in any way been challenged, and having regard to the change of circumstances, I am of the opinion that an appropriate sentence would involve a further backdating of the sentence imposed by his Honour by 2 months to 13 September 2015. I am of the opinion that this would also appropriately balance the requirement to take into account time served, pursuant to s 24(a) of the Crimes (Sentencing Procedure) Act with the need to impose an appropriate sentence, given the purposes of sentencing and the seriousness of this offence.
Accordingly, the orders which I propose are:
1. The sentence imposed by Frearson SC DCJ on 23 June 2016 is quashed.
2. In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 5 years, commencing 13 September 2015 and expiring 12 September 2020, with a balance of term of 2½ years expiring on 12 March 2023.
3. The applicant will be eligible for release on parole from 12 September 2020.
JOHNSON J: I have had the advantage of reading, in draft, the judgment of Hoeben CJ at CL. I agree with His Honour's reasons and proposed orders. I wish to make some short additional observations.
The difficulty in this case was not one which could be remedied by application of s 59 Crimes (Sentencing Procedure) Act 1999. Nor was the resolution of this appeal assisted by application of the principles stated by this Court in Hampton v R [2014] NSWCCA 131; 243 A Crim R 193. The present case is an unusual one where the sentencing Judge had regard to the totality principle by reference to a sentence of the Local Court which was thereafter quashed following the acquittal of the applicant on appeal to the District Court. In these circumstances, a proper basis has been identified for this Court to intervene by application of the principles referred to by Hoeben CJ at CL.
PRICE J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 16 April 2018