Objective circumstances of the indictable offence
212Section 86 of the Crimes Act, so far as is relevant, is in the following terms:
86 Kidnapping
(1) Basic offence
A person who takes or detains a person, without the person's consent:
(a) with the intention of holding the person to ransom, or
(a1) with the intention of committing a serious indictable offence, or
(b) with the intention of obtaining any other advantage,
is liable to imprisonment for 14 years.
(2) Aggravated offence
A person is guilty of an offence under this subsection if:
(a) the person commits an offence under subsection (1) in the company of another person or persons, or
(b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.
A person convicted of an offence under this subsection is liable to imprisonment for 20 years.
In the present case, paragraph (b) of subsection 2 is the source of the relevant aggravation. In particular, the offence to which the respondent pleaded guilty included the element of occasioning actual bodily harm to the victim immediately before the commission of the basic offence.
213As I stated at the outset, the additional offences on the Form 1 arose out of the same events, as did the related summary charge on the s.166 certificate. The sentencing judge recorded his findings in respect of each matter compendiously at [5] - [13] of his reasons on sentence, which I set out as follows:
5. The facts are that the offender and Ms. Sprowle had been in a relationship prior to 5 July 2009. On that day at about 1:30 am, Ms. Sprowle drove her motor vehicle to the Parramatta McDonald's restaurant in Parramatta. She was with two friends, she had left her vehicle there, she came back and she tried to start her vehicle and she was unable to start it as the battery had gone flat. During that day Ms. Sprowle had been receiving text messages from the offender. After not being able to raise help from anyone else, she responded to the text messages that she had been receiving by text asking the offender if he had any jumper leads. Prior to receiving any response from the offender, Ms. Sprowle decided to accept a lift home and that is where she went. When she was being driven home she received a text message from the offender saying that he could bring jumper leads down to where she was and she responded by saying that she was being driven to her home by a friend. A little bit later she received a phone call that the offender would pick her up.
6. The offender then went to her home and when she was there she, Ms. Sprowle, saw a white utility pull up and she saw the offender in the passenger seat. The offender called out to her "hurry up, I've got the jumper leads, we'll go and fix the car". Ms. Sprowle got into the utility and it was driven to the McDonald's car park. When the offender and Ms. Sprowle and the other person got to the car, Ms. Sprowle's car started and the offender said that he would drive Ms. Sprowle's car and the other person left. Ms. Sprowle did not want the offender to drive her car as she had formed the view that he had been drinking. She ended up driving her car with the offender in the passenger seat.
7. As she was driving along Windsor Road, the offender said to her, "I bet you had a good night, where did you go? Without warning Ms. Sprowle felt a blow to the side of her face, she pulled the car to the side of the road and said to the offender, "Get out of the car". The offender put his hands up to his face and said, "I'm really sorry." She again told him to get out of the car and he refused. At this stage the car was at the intersection of Windsor Road and Whitehaven Road, Northmead. The offender struck Ms. Sprowle to the face with his right arm and pushed her face against the driver's side glass window and started pulling her hair. He pushed her against the door and continued to push her against the window. Ultimately Ms. Sprowle was occasioned bruising to her face and forehead with an indentation to the left side of the forehead as a result of the assault.
8. After some time Ms. Sprowle managed to open her door and she fell out of the car. As she lay on the ground she could see that the driver side door was still open. She saw the offender climb across into the driver's seat, close the door and drive off a short distance. She then saw her car being driven rapidly in reverse towards her. She jumped over a small brick fence to avoid being struck by the vehicle. The vehicle mounted the kerb and crossed the nature strip and the rear of the vehicle struck Ms. Sprowle's arm. The vehicle came to a stop and the offender got out and came up to Ms. Sprowle, she was screaming for help. He began to hit her again. He grabbed her by the hair and dragged her towards the car. During the course of this assault and previously Ms. Sprowle was on the telephone ringing triple-0. Ms. Sprowle yelled, "Help, help somebody help" and said to the offender, "Please stop, please just leave me alone".
9. The offender began to drag Ms. Sprowle towards the vehicle for a short distance before leaving her on the ground. He got back into the vehicle and moved it onto the roadway on the corner of Whitehaven Road and Windsor Road, Northmead. He got out and again approached Ms. Sprowle. She got off the ground and went to the passenger side of the vehicle and attempted to lock herself in the vehicle. The offender put his hand through the open passenger side window and opened the door. He grabbed her by the neck and hair and dragged her out of the vehicle. He kneed Ms. Sprowle in the stomach, winding her and causing her to fall to the ground. The offender then kicked Ms. Sprowle to her ribs and buttocks. Ms. Sprowle screamed, "You're killing me". The offender said, "Oh yeah". He kicked at her again. Ms. Sprowle begged the offender not to touch her. He yelled at her, I'll fucking, I'll kill you, I'll fucking kill you, I swear I'll kill you. I don't give a fuck, you fuck it up, you think I fucking care about you, I don't fucking care, you don't fucking love me, you don't fucking love me." The offender took hold of Ms. Sprowle's hair and dragged her over to the passenger side of the vehicle where the front passenger door was still open. The offender forced her into the front passenger seat.
10. It is clear on my view of the evidence that the offence for which the offender pleaded guilty on indictment commences at this particular time, although the assault occasioning actual bodily harm was certainly before. The offender picked Ms. Sprowle up and attempted to force her body into the foot space of the passenger side of the vehicle. She was stuck in the corner of the foot space with her leg still hanging out of the vehicle. The offender pulled around to the driver's side of the vehicle and got into the driver's seat. He started driving the vehicle and Ms. Sprowle pulled herself inside the vehicle and closed the door. Ms. Sprowle had occasioned bruising to her side, back and buttocks and minor lacerations to her feet as a consequence of the assault. The offender drove in a northerly direction upon Windsor Road at high speed. Ms. Sprowle said, "Please stop the car". The offender said, "No, I'm going to crash it." Ms. Sprowle said, "Slow down, you're going to kill us". The offender said, "Good, I will kill you". Ms. Sprowle said, "Please slow down, please stop the car you're going to kill us both." The offender said, "Good, I have nothing to lose." The offender continued to repeat the words, "I'm going to kill you, I'm going to crash the car, I don't care about you or anything."
11. As the car was about a hundred metres south of the intersection of the M2 Motorway, the vehicle nearly collided with a Holden sedan travelling lane two. The offender continued driving at high speed until he reached the intersection of Cook Street where he turned right at high speed. The rear of the vehicle lost control and slid towards a telegraph pole on the western kerb of Cook Street narrowly missing it. The offender continued driving at high speed until he reached the intersection of James Street, Baulkham Hills. The offender at that time lived in James Street. He attempted to turn left but was travelling too fast and collided with a keep left sign on the median strip in the middle of James Street. The offender continued driving to the top of James Street, Baulkham Hills where he pulled to the right side of the roadway, stopped the vehicle outside a unit complex near the intersection of Railway Street Baulkham Hills. Ms. Sprowle heard sirens and got out of the vehicle.
12. The offender drove the vehicle into the underground car park of the unit complex where he stayed for a short time. The offender walked up the driveway towards Ms. Sprowle from the underground car park. He approached Ms. Sprowle and started pushing her. The offender said, "Come inside, let's talk". At this time Ms. Sprowle noticed that the offender had her mobile phone in his hand. She attempted to get her phone from the offender but was unable to. The offender walked back into the unit complex. A male person asked the offender to return Ms. Sprowle's phone. The male returned with the phone and handed it to Ms. Sprowle. The offender came up to Ms. Sprowle and saw that she was on the phone and he started screaming at her and tried to take the phone off her. The offender managed to take the phone from her and threw it against a nearby brick wall causing it to break into pieces. The offender was shortly after that arrested.
13. So far as the offence on the indictment, which is shortly known as kidnapping, it is quite clear that the offending started at the intersection of Whitehaven Road and Windsor Road and the offending was whilst Ms. Sprowle was taken into the motor car, the motor car was then driven very quickly up the street, as I have just said. It is quite clear in my view that the length of time that Ms. Sprowle was detained was a matter of some minutes rather than longer. It is quite clear from the material before me, that it was in the course of travel from the intersection to where the vehicle stopped that the detention took place. That, as I understand it, is something in the region of about two kilometres.
214I observe that no medical or psychiatric evidence was tendered quantifying the nature and extent of the actual bodily harm suffered by the victim. But in her Victim Impact Statement, the victim spoke of her physical injuries, including scars which were then "still visible", and of the emotional consequences, which must be real enough.
215As the infliction of actual bodily harm is an ingredient of the offence, I interpolate that it is important that care be brought to bear so as not to double count this consideration contrary to s. 21A (2) Sentencing Act. But, I will proceed on the basis that the injury and emotional harm caused by the offence to the victim were not insubstantial.
216The additional offences on the Form 1 are: first, the initial assaults occasioning actual bodily harm the subject of [7] of his Honour's reasons; secondly, reversing the car at her in [8], averred as using "an offensive implement... with intent to commit an indictable offence"; thirdly, intentional damaging her the mobile phone by throwing it against the wall; and fourthly, taking and driving the victim's car without her permission.
217The manner of the applicant's driving during the period the victim was detained may well have been without regard for public safety, but as this is the related summary offence, again care must be taken to avoid double punishment. This factor cannot both increase the objective seriousness of the principal offending, and at the same time attract significant independent punishment.
218Given the previous domestic relationship, it may be said that the respondent abused his position of trust in relation to the victim. However, the relationship had previously degenerated and the victim had formed a new relationship with another person. Accordingly, the principles discussed in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 195 [86] may not be strictly apposite, even though the present offence is one that meets the definition of "serious personal violence offence" in s.21A(6) Sentencing Act. Trust between them must have dissolved already.
219The offence was certainly not planned, but rather occurred in a spontaneous and opportunistic way.
220An element of the offence is the intent to obtain an advantage. Here, the Crown relied upon psychological gratification as advantage.
221The only criminal offence on the respondents record at the time of the commission of the subject offence was a conviction for affray, for which he was dealt with by the Downing Centre Local Court on 25th November 2006 with a $500 fine. This particular offence did not trouble the sentencing judge greatly. Of more concern were convictions recorded subsequently to the 5th July 2009. These offences were related to the disintegration of his relationship with the victim, and to the formation of her new relationship (a matter to which I will return below).
222A few days before 5th July 2009, the victim had introduced the respondent to her new partner. As is not unknown in the annals of human affairs, an altercation developed between the two young men. No complaint was made about the respondent's conduct on this occasion until after the events of 5th July 2009, when the respondent was charged with common assault. The matter was dealt with by the imposition of a fine on the 8th February 2010.
223It is necessary to record that other offences relating to the victim, to which the respondent pleaded guilty, occurred on 10th July 2009 and were dealt with in the Parramatta Local Court on the 18thFebruary 2010 by the imposition of a community service order of 100 hours duration. These were offences of contravention of an apprehended domestic violence order by approaching the residence of the victim, and breaking into the residence with the intention of committing an indictable offence.
224At the time he was charged with the instant offence, an apprehended violence order was made in favour of the victim, including the usual condition restraining the respondent from approaching her home.
225The circumstances of the subsequent offences were that a very short time before 5th July 2009, perhaps surprisingly, given the altercation which occurred when the two young men met, the victim showed the respondent the home she shared with her new partner. He noticed some garden lamps that he and the victim had purchased during their cohabitation. He formed the intention to reclaim possession of them. Accordingly, on 10th July 2009, the respondent drove to the victim's home, broke in and took the lamps. He was soon apprehended and charged.
226At the time he was charged with the instant offence, he was also charged with an offence of refusing to submit to a breath analysis in accordance with the directions of a police officer contrary to s15(4) Road Transport (Safety and Traffic Management) Act 1999 (NSW). In the exercise of the power under s.205 Road Transport (General) Act 2005 (NSW), the police officer gave the applicant a notice suspending his driver's licence. Driving to the victim's home contravened the police suspension. The Parramatta Local Court dealt with this offence at the same time as the other two. For the driving offence he was fined $1,000 and disqualified for 12 months commencing on 22nd July 2009. There is no doubt that the police suspension was validly issued under the relevant legislation. Such a suspension inures until a court determines the charge in respect of which it is given, or the charge is withdrawn. In the present case, the charge was withdrawn on the 6thJune 2010, I infer from the information provided to the Court by the Crown Particulars of Trial.
227The respondent's traffic record is very poor. He had incurred a number of traffic infringement notices for speeding matters. He had also been subject to a number of suspensions of his licence by administrative action because of his record, and due to default in paying some fines. Prior to the 18th February 2010, it had never been necessary for a court to deal with him for a traffic matter.
228The respondent was also dealt with at North Sydney Local Court on 31st May 2011 on a charge of driving when his licence was cancelled on 28th December 2010. The circumstances of this were that when the disqualification imposed at Parramatta Local Court on 10th February 2010 expired on 22nd July 2010 (it had been backdated), the respondent neglected to reapply for his licence, being ignorant of the necessity so to do. Ignorance of the law is, of course, no excuse, as all are bound by it. The respondent apparently remedied this omission and when he was dealt with on the 31st May 2011, he received the benefit of a twelve-month good behaviour bond under s.10 Sentencing Act. These complexities in relation to the applicant's criminal and driving record were referred to and taken into account by the sentencing judge.