O'Brien v R

Grounds

1. The applicant now seeks leave to appeal against his sentence on four grounds: Ground one: The sentencing judge erred in concluding that the offending was aggravated by substantial physical injuries and substantial emotional harm to Mr Sheridan. Ground two: The sentencing judge erred in concluding that the offence was aggravated as it was part of a planned criminal activity. Ground three: The sentencing judge erred in his assessment of the objective seriousness of the kidnapping offence. Ground four: The court passed a sentence which was manifestly excessive.
2. Because no ground impugns a finding of fact, it is convenient now to summarise the findings made by his Honour in the remarks on sentence, and several other aspects of the matter.

Objective features

1. The applicant worked at the Kosciuszko Thredbo Hotel in various capacities, including as restaurant manager and duty manager, from May 2012 until January 2014, when his position was terminated. There was evidence that he was resentful about his loss of employment.
2. In March 2014, the applicant associated with the co-offender, the two of them living in Canberra.
3. On 12 March, a set of number plates was stolen from a caryard business in a Canberran suburb and fixed to the car of the co-offender's father, a Ford Falcon. The applicant's fingerprints were subsequently found on these plates.
4. In the early hours of 12 March, after the number plates had been attached to the car, the applicant and the co-offender then travelled in the Ford Falcon from Canberra to Thredbo. The co-offender drove, and the applicant was the passenger.
5. The applicant and the co-offender took with them masks, balaclavas, bags, a knife, a screwdriver, a claw hammer, and duct tape.
6. The car travelled through Bredbo at 1:57am, Cooma at 2:11am, and Jindabyne at approximately 2:30am, before the applicant and the co-offender arrived at the Hotel between 4-4:15am.
7. Shortly thereafter, the applicant and the co-offender entered the hotel and made their way to the manager's office, where a Mr Sheridan was working as the night auditor.
8. Certainly, the applicant was relying upon his "inside knowledge" as to the operation of the hotel in order to exploit its vulnerabilities. As the applicant had worked in senior managerial positions at the Hotel, he knew that: there would be only one member of staff in the manager's office in the early hours of the morning, namely, the night auditor; there would be no other staff in the reception area or Hotel offices, and; there would be unimpeded access to the Hotel's float money of approximately $30,000.00, which was kept in the unlocked safe located within the manager's office, leaving aside the night auditor.
9. The victim was cornered by the applicant and the co-offender. He was told that if he cooperated "it" would be "over quickly".
10. The applicant held a knife to the victim's face, while the co-offender bound the victim's hands with the duct tape the two offenders had brought with them from Canberra (the commencement of count two).
11. The applicant then opened the safe and removed the Hotel's float money, which totalled $30,000.00. The applicant, who knew where the key was for other safes that were located within the main safe, used that key to open them and obtain additional money. Ultimately, the applicant and the co-offender robbed the Hotel of $30,205.80 (count one).
12. The stolen money was secured in bags and taken to a motor vehicle leased by the Hotel that was parked out the front of the reception area. The applicant took the keys to this vehicle, and said to the co-offender, "Come on, let's go, we're taking him to the van."
13. The victim was pulled up and walked out of the reception area towards the vehicle against his will. He was pleading with the applicant and the co-offender not to be taken with them.
14. The victim was placed in the rear of the van. Once inside, his legs were secured by the co-offender with more duct tape. The bags containing the stolen money were also placed in the van.
15. The applicant got into the driver's seat of the van and the co-offender returned to the Ford Falcon.
16. Both vehicles left Thredbo and drove in the direction of Jindabyne (count three).
17. The sentencing judge found that the reason for taking and detaining the victim was because, as there is only one road in and one road out of Thredbo, had the victim been able to raise the alarm, or if he had been discovered in the manager's office in a bound position, the offenders could "easily" have been apprehended as they sought to escape.
18. While in the van, the victim pleaded with the applicant to be released, and promised not to tell anyone what had occurred.
19. In response, the applicant then threatened the victim, his brother, and his parents with death - threats which the victim took seriously.
20. While the van was driven towards Jindabyne, the victim surreptitiously removed the duct tape from his hands and legs. As the van approached Banjo Patterson Drive, an area where he knew people that might be able to help him, the victim opened the sliding door of the van and jumped from the vehicle. At the time, it was travelling at approximately 60 to 70km per hour.
21. After the victim jumped from the van, the applicant continued to drive until he arrived in Jindabyne, abandoned the vehicle, and was collected by the co-offender in the Ford Falcon.
22. The victim wandered in a dazed state to a nearby house, the occupant of which called the police. An ambulance was then dispatched.
23. After assessment by ambulance officers, the victim was conveyed to Cooma District Hospital, where he was further treated for his injuries. He remained there for nine days before his discharge on 21 March 2014.
24. The victim suffered serious injuries, entirely as one would expect. He was treated for lacerations to his skull and hip. He suffered pneumothorax (air in the pleural cavity) and his right lung nearly collapsed. A chest drain had to be applied and remained there for 48 hours until the injury was successfully resolved.
25. The injuries to the chest and their related complications were found by the sentencing judge to "have been life threatening without prompt treatment".
26. According to quotations in the written submissions for the applicant in this Court, in a recorded interview (not placed before us) subsequent to his ordeal, the victim spoke of his fears having been "alleviated" whilst in the vehicle by the applicant having given him a false story to tell the police.
27. The applicant was arrested on 6 May 2014.
28. In a victim impact statement provided to Judge Colefax, Mr Sheridan spoke of the immense fear he felt as a result of the applicant's threats against him and his family. He also described how, feeling as though he had no other choice, he leapt out of a moving van to escape the applicant and suffered multiple life-threatening injuries. Even once his physical wounds recovered, he continued to suffer from psychological damage, extreme fear, and nightmares.

Subjective features

1. At the time of the imposition of sentence, the applicant was 41 years of age. Born into privilege in a supportive middle-class family, his upbringing and education were unremarkable. He was not burdened by physical or mental health issues.
2. The applicant commenced using cocaine and ecstasy in his 20s in social settings, but did not develop any drug dependency issues.
3. His employment histories were also unremarkable, with capacity for legitimate work in the hospitality and building industries.
4. He continued to have the support of his family at the time of sentence, including his partner and two young children.
5. Previously, the applicant had intersected with the criminal justice system, but only in the Australian Capital Territory. Those offences were relatively minor, although the sentencing judge noted that, in 2008, the applicant had been convicted of an offence of violence, for which he was sentenced to a suspended period of imprisonment. As a result, the applicant was not entitled to the leniency which could otherwise, and in appropriate circumstances, be extended to a first-time offender.
6. In accordance with his denial of guilt, the applicant not only expressed no remorse for his offending, but also a belief that the allegations against him were "falsified" by persons "colluding" against him.
7. The applicant was not suffering any especially difficult financial hardship at the time of the offences. Financial gain was part of his motive, but so too was revenge for his dismissal. Of particular concern to the sentencing judge was that the main victim of that revenge was "an innocent young man who had absolutely nothing to do with [the applicant's] dismissal".
8. In the continuing absence of remorse or acceptance of responsibility, the assessment of the sentencing judge about prospects of rehabilitation was that they were "guarded".
9. As I have said, the ultimate sentence imposed was an aggregate head sentence of imprisonment for 14 years, with a non-parole period of 9 years.
10. I turn now to the grounds of appeal. Ground one: the sentencing judge erred in concluding that the offending was aggravated by substantial physical injuries and substantial emotional harm to Mr Sheridan
11. The background to this ground is the following. In the remarks on sentence, the sentencing judge found that count 2 was "additionally" aggravated by the "substantial" physical injuries and emotional harm done to Mr Sheridan. In terms of his physical injuries, although there was no evidence of "ongoing physical disability", the injuries sustained were "life threatening".
12. As for the substantial emotional harm, the contents of the victim impact statement and the manner in which it was read, the sentencing judge found, "revealed the complexity and long-term nature of the substantial psychological injuries he sustained".
13. The word "additionally" was used, the sentencing judge explained, "to indicate [that] these specific considerations were not taken into account in assessing the objective seriousness" of the offences.
14. The submissions for the applicant in support of this ground may be summarised as follows: 1. Count two was not aggravated by "substantial" physical injury and emotional harm, as Mr Sheridan suffered no "ongoing physical disability", and no expert or medical evidence was presented to support a finding beyond reasonable doubt that substantial emotional harm had been suffered. 2. Although evidence of psychological harm suffered was available to the Crown, this evidence was not presented in such a way that the sentencing judge could utilise psychological harm as an additional aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA). Instead, the Crown case on sentence focussed exclusively on the physical - as opposed to emotional - injuries that the victim suffered. 3. The victim impact statement referred to the victim's emotional harm. This was the only evidence which the Crown presented that went to ongoing substantial harm. No medical or expert evidence of psychological or emotional harm was presented. 4. A procedural fairness issue arose, as the applicant was not given an opportunity to properly address the submission in the original proceedings on sentence. 5. Additionally, the sentencing judge made no delineation between which injuries were taken into account as to the actual bodily harm that was suffered, and which were taken into account as an aggravating factor under s 21A.
15. During oral submissions, the applicant asserted that the sentencing judge did not specify the aggravating factors which made s 21A applicable in sentencing. The victim, it was submitted, suffered no continuing injury, no scarring, and no deformity or disability flowing from the physical harm which occurred.
16. The applicant conceded that the sentencing judge was right to find that the injuries suffered by the victim did go beyond the inherent physical elements of the offence of "actual bodily harm".
17. However, the applicant maintained that the sentencing judge did not precisely identify the matters his Honour took into account to find that "substantial" physical harm was made out.
18. Later, the applicant abandoned this argument, and the focus was narrowed to the sentencing judge taking into account substantial emotional harm, gleaned from the victim impact statement and without other supportive evidence.
19. Turning to my concise determination of this ground, as conceded by counsel for the applicant at the hearing in this Court, the element of "actual bodily harm" in the kidnapping offence could have been constituted by a cut lip, or a small bruise, or any other form of minor physical injury to the person of the victim. In fact, his injuries went far, far beyond that. It was therefore not just open to the sentencing judge to make the finding about which complaint is made; such a finding was almost inevitable.
20. As for psychological harm, it is true that the evidentiary status of a victim impact statement is a little contestable, and there is a question as to what probative value it may possess in certain circumstances: see R v Thomas [2007] NSWCCA 269 at [36]-[7]; R v Tuala (2015) 248 A Crim R 502 at [77]-[84].
21. But even if, for the sake of argument only, one excludes the victim impact statement entirely from one's consideration of the topic of psychological harm to the victim, there remains the following: the victim had a knife presented to his face; he was subsequently bound with duct tape by two disguised intruders in the early hours of the morning; he was thereafter bundled into a vehicle, pleaded for his release, and threatened with death as a result; and so great was his fear that he eventually escaped in circumstances that were highly dangerous - as events proved - and easily could have been fatal.
22. Significant psychological injury arising from that course of events can be safely inferred after a moment's reflection.
23. Again, the finding of substantial aggravation by way of psychological injury was not exceptionable, but, rather, inevitable.
24. Finally, whatever position was adopted, or emphasised, by the Crown at first instance as to this or that form of injury is of little moment: it was absolutely clear that the objective features of the offending, including its effects upon the victim, would be a very significant factor in the question of appropriate sentence. For that reason, there was no denial of procedural fairness here.
25. It was also inevitable on the facts of this case that the sentencing judge would find that, for the purposes of s 21A(2)(g) of the CSPA, there was indeed aggravation by way of "the injury, emotional harm, loss or damage caused by the offence" being substantial.
26. In my respectful opinion, the propositions underpinning this ground are untenable. Ground two: the sentencing judge erred in concluding that the offence was aggravated as it was part of a planned criminal activity
27. This ground is based on the following. The findings made in the remarks on sentence about the robbery in company and kidnapping were that each offence was "additionally aggravated" because each count was "part of a planned criminal activity" which involved a "high degree of premeditation and planning".
28. The written submissions for the applicant may be summarised as follows: 1. The degree of planning which occurred here involved "no more" than that which is ordinary in cases of this kind. 2. The use of face coverings, in the commission of a robbery, was common; the use of the stolen van, stolen numberplates, and carrying of weapons "not unusual"; and, where there was an intention to delay notification of the robbery to authorities through detention, "contemplation of the use of duct tape" was to be expected.
29. During oral submissions, the applicant argued that committing any offence in company requires some preconcert. However, the kidnapping was "spontaneous" and done with the intention of delaying notification of the robbery to authorities. This submission was maintained, even though the applicant and the co-offender took duct tape to the hotel.
30. The applicant did, however, eventually concede that the planning of the robbery went well beyond the minimal position which may constitute the offence.
31. Turning to my concise determination of this ground, it is true, as counsel submitted, that the commission of any offence of which "in company" is an element that almost always calls for some degree of preconcert and forethought on the part of two or more persons. (In fact, an offence can be committed in company even if one person is already in the course of committing it, and another person joins in, with the concurrence of both.) But one can readily bring to mind examples that would fulfil the elements of the offence of robbery in company and detaining, or kidnapping, in that way, despite a minimal amount of preconcert. One would be two men seeing a third man a short distance away in a park and deciding to rob him together as they approached him on foot. That would constitute a robbery in company, even if the preconcert occurred over 30 seconds. And if the victim screamed as a result of being robbed, the two offenders could decide to drag him under a bush, hold him down, and cover his mouth in order to hide what was occurring. That would constitute a detention or kidnapping in company, although the preconcert was, again, almost spontaneous.
32. As my sketch of objective features demonstrates, this offending was an "inside job"; featured a degree of preparation by way of the stolen number plates; involved a lengthy drive from Canberra to Thredbo; and involved the deployment of many items collected at the start of that journey, not least the duct tape.
33. Again, in my respectful opinion, the findings made by the sentencing judge were unremarkable; indeed, entirely to be expected, and in accordance with the aggravating factor in s 21A(2)(n) of the CSPA.
34. For that reason, the proposition underpinning this proposed ground is untenable as well. Ground three: the sentencing judge erred in his assessment of the objective seriousness of the kidnapping offence
35. This ground had the following foundation. The finding made in the remarks on sentence about the objective seriousness of count two was that it was "above the mid-range and towards the upper range". Count one was found to be "a mid-range offence" and count three was "somewhere equidistant between the middle and the bottom of the range".
36. Written submissions for the applicant argued that the objective seriousness of count two fell at the "mid-range or slightly below" of objective seriousness, for the following reasons: 1. No evidence was presented that the decision to transport the victim was planned. 2. The victim was detained in order to delay notification of the robbery to the police, as opposed to detention for the purpose of extortion or harm. 3. The victim was detained for a relatively short period of time, being one hour. 4. No attempt was made to injure the victim. 5. No weapon was used to inflict physical injury on the victim despite there being weapons present. 6. The physical harm to the victim was not directly inflicted by the applicant. 7. There was nothing to suggest that, had the victim not chosen to jump out of the car, he would not have been later abandoned.
37. Further, it was submitted that the threats made on the victim's life, and the lives of his family members, were "somewhat downgraded" after the victim was given a story to tell police about two other persons taking money from the hotel's safe which "alleviated" the victim's fears.
38. The applicant did not further elaborate on this ground of appeal during oral submissions.
39. Turning to another concise determination, in light of all of the characteristics of the offence that I have outlined, none of which require repetition here, the finding made by the sentencing judge about objective seriousness was entirely open. Indeed, any lesser finding would have been surprising, if not potentially erroneous.
40. Relatedly, I readily reject the proposition that count two could ever have been assessed as being - to any degree - below the middle of the range of objective seriousness, in all circumstances that I have outlined.
41. In short, the proposition underpinning this ground is untenable as well. Ground four: the court passed a sentence which was manifestly excessive
42. The submissions for the applicant in support of the proposition that latent error is manifest may be summarised as follows: 1. The three s 21A aggravating factors which the sentencing judge found established affected the length of the indicative sentence imposed for count two. This flowed on to affect the aggregate sentence imposed on the applicant, which was in turn manifestly excessive. 2. Comparative cases in which the offenders committed "much more objectively serious" offending had attracted lesser sentences than here imposed: see, from the selection provided, Carroll v R [2015] NSWCCA 219; Hall v R [2017] NSWCCA 260; and Calhoun v R [2018] NSWCCA 150.
43. During oral submissions, the applicant referred to the comparative cases supplied and argued that the sentence imposed here was "well above" such like cases, at the "top end" of sentencing for offences of this kind, and required a reduction by "a number of years".
44. Determining this final ground, it may be accepted that the sentence is a very substantial one to have been imposed on a person without an extensive criminal record. But it was imposed - for offending that, for many reasons, was grave indeed, as I have demonstrated - upon an offender who was neither remorseful, nor even accepting of responsibility; who had not been burdened by a childhood of deprivation to which he could point in reducing his moral culpability, unlike very many persons who commit serious criminal offences; who had offended by way of violence in the past; and who could point to nothing other than greed and resentment as motives for the offence.
45. Such a combination of objective and subjective features was always going to result in an aggregate sentence that was towards the upper end of the available spectrum. Anything else would have been remarkable, if not vulnerable to a Crown appeal.
46. In my opinion, the aggregate sentence imposed by Judge Colefax was well within the range available by way of the sentencing discretion.
47. For that reason, this ground should not be upheld either.

Orders

1. On the basis of the above analysis, and accepting that the length of the sentence itself calls for a grant of leave, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

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