R v Cunliffe [2000] VSCA 146

Court of Appeal (Vic)|2000-08-18|Before: PHILLIPS, CHARLES and BUCHANAN, JJ.A.

Criminal law - Sentencing - Kidnapping, false imprisonment, rape, extortion and bomb threat in curiously bizarre circumstances - Offender apparently respectable 51 year-old with family - Guilty pleas - Remorse - Unlikelihood of re-offending - Sentence of 20 years' imprisonment crushing - Individual sentences mainly confirmed, but orders for cumulation modified.

On 18 October 1999 the appellant was arraigned in the Supreme Court on a presentment containing eight counts, to all of which he pleaded guilty. Count 1, which arose out of events on 10 May 1999, was of false imprisonment of a 21 year old woman ("the complainant"), a common law offence for which the maximum penalty was 10 years' imprisonment. The other seven counts arose out of events on 17 May 1999. Count 2 was of kidnapping the complainant (an offence under of the for which the maximum penalty was 25 years' imprisonment). Count 3 charged the carrying of a firearm, namely a pistol, when detaining the complainant with intent to demand $1 million by way of ransom from her parents, for her release. (This was an offence under of the for which the maximum penalty was five years' imprisonment). Count 4 was another count of false imprisonment of the complainant, this time on 17 May. Count 5 was of blackmailing the complainant's parents of the , maximum penalty 15 years' imprisonment); count 6 was of raping the complainant of the maximum penalty 25 years' imprisonment); count 7 was of indecently assaulting the complainant of the , maximum penalty 10 years' imprisonment); and count 8 charged the appellant with what is shortly called a bomb hoax (an offence under of the , for which the maximum penalty was five years' imprisonment).

On 18 October, after the case had been opened on behalf of the Crown, a plea in mitigation was made by appellant's counsel. A number of exhibits were tendered. For the Crown there were a tape-recording of a ransom demand made by the appellant, a photograph showing the complainant tied to a chair, apparently with explosive strapped to her chest; two ransom demands in writing, a booklet of photographs and three victim impact statements from the complainant and her parents. For the appellant there was a file from St. Vincent's Hospital, a report from Professor Mullen, Professor of Forensic Psychiatry, dated 17 August 1999; a report of Mr. Cummins, the consulting psychologist, dated 11 August 1999; and a character reference from a colleague of the appellant. In the course of the plea nine witnesses were called to give evidence orally for the appellant: his wife and his 21 year old daughter (herself a university student), the appellant's sister (who gave evidence of early parental abuse), the family solicitor of some 12 years, a friend of the appellant and a colleague of his at work and, in addition, a trained counsellor who, having seen the appellant and his wife for counselling a month earlier, by chance also saw the complainant shortly after the offences were committed. Mr. Cummins and Professor Mullen gave oral evidence in support of their reports.

On 19 November 1999, the judge sentenced the appellant to a total effective term of 20 years' imprisonment, 16 years to be served before the appellant became eligible for parole. A declaration was made that 186 days already spent in custody should be reckoned as time served under the sentence. In more detail, the appellant was sentenced on count 1 (false imprisonment), to one year's imprisonment, on count 2 (kidnapping) to seven years' imprisonment, on count 3 (carrying the firearm) to two years' imprisonment; on count 4 (false imprisonment) to four years' imprisonment; on count 5 (blackmail) to five years' imprisonment; on count 6 (rape) to six years' imprisonment; on count 7 (indecent assault) one year's imprisonment and on count 8 (bomb hoax) to two years' imprisonment. The judge made cumulative on the seven year sentence imposed on count 2 the one year imposed on count 1, one year of each of the sentences imposed on counts 3, 4 and 8, three years of the sentence imposed on count 5 and the whole of the six years sentence imposed on count 6. Hence the total effective sentence of 20 years.

By leave granted on 16 March last under s.582 of the Crimes Act, the appellant now appeals against sentence. Initially his grounds of appeal were that the sentences imposed were manifestly excessive and that the orders for cumulation disclosed error. Subsequently by amendment grounds were added that the sentencing judge failed to accord any, or sufficient, weight to the "full and frank confession" made by the appellant to the authorities, the appellant's pleas of guilty, his "mental state at the time of the commission of the subject offences", the principle of totality and "the harsh circumstances" in which the appellant would have to serve any term of imprisonment. Although these added grounds appear more detailed than the first, all of the factors mentioned were put before his Honour on the plea and it was not contended by counsel for the appellant that his Honour had not taken any of them into account. The weight to be attached to them was, of course, essentially a matter for the judge and Mr. Holdenson accepted that in the end the added grounds could be regarded as particulars of the first ground, manifest excess.

Obviously, the total effective sentence of 20 years is a very, very substantial sentence: it is not uncommon to find such a sentence imposed for murder. But then the offences to which the appellant pleaded guilty were themselves very serious offences and they were committed, simply for gain, against a 21 year old and her parents. The experience to which the appellant subjected the complainant could scarcely have been more terrifying for her; nor did the parents fare any better save for the fact that their daughter did finally return to them, alive. That the appellant so offended as he did is only the more incredible given that he has a wife and two daughters of his own, one of whom was herself a university student of much the same age as the complainant.

According to the judge's findings, the appellant began planning the extortion weeks in advance, by identifying the complainant as his victim, following her and setting up an alcove in his work shed where he could detain her. His plan was to kidnap the complainant by posing as a police officer and then to demand a ransom from her parents by a bomb hoax. The appellant was anxious at the time about his own family's financial stability and was apparently intending to repair matters by extorting a million dollars from the complainant's parents, whom he believed to be wealthy.

On the morning of Monday 10 May 1999, the appellant dressed in a blue striped jacket and drove his white Ford sedan behind the complainant's car, as she was driving to her university, near Geelong. As she looked in the rear view mirror she noticed flashing blue and red lights on the dashboard of the car following and saw the appellant waving to her, to pull over. This she did. The appellant approached her and introduced himself as a sergeant from the Drugs and Narcotic Squad and the complainant believed him to be a member of the police force. The appellant accused her of driving at 140 k.p.h. along the highway and asked her for her licence. He took it to his vehicle where he appeared to her to speak on a mobile phone or radio, no doubt pretending to check the licence. For her part, the complainant was very upset, believing that she had done nothing wrong and being very troubled that, for the first time, she had been pulled up by the police. The appellant came back to her car and told her that he had "checked her out" and she was fine. He gave her back the licence and told her that she was free to go. Although upset and fearing that she might have unwittingly fallen asleep at the wheel, the complainant then continued on her way to the university. (This is the conduct that led to count 1. During the subsequent record of interview with police, the appellant admitted that when he accosted the complainant on 10 May he was intending to abduct her to get a ransom from her family, but he had then decided not to go through with it as "things were a bit better" in his life.)

A week later, on 17 May, at about 11 a.m. the complainant was driving home from university when again she was intercepted in her car by the appellant. Again he activated the blue and red flashing lights on the dashboard, pulled her vehicle over and told her that he was from the Drugs and Narcotic Squad. The appellant recognised him as the same person who had pulled her over previously. The complainant asked him if there was a problem, to which the appellant replied: "There sure is, I gave you enough of a warning last week" and ordered her to open the boot. Upon looking in the boot, the appellant accused the complainant of earlier having had drugs in the car which, he alleged, had been placed in the boot and removed by one Daniel, who was known to the complainant. He then told her that she would have to come with him to the police station. Again the complainant was shocked that she should be so accosted by police and accused of something of which she had no knowledge at all.

At that point, the complainant was told to lock her own car and leave it where it was. The appellant made her place her hands behind her back and placed handcuffs on her left hand. The complainant became suspicious and asked for identification. The appellant showed the complainant a false police identification which did not have a badge or photograph and she challenged it. The appellant then pulled out a hand gun, pushed her face down on to the back seat of his car and placed the other handcuff on her free hand. He then accused her father of drug-dealing and told her that she was being kidnapped and held for a ransom and that a million dollars was wanted from her father. The appellant claimed that he was acting on behalf of another and asserted that the complainant would not be hurt if her father paid the ransom. (These are the events which gave rise to counts 2 and 3 - kidnapping and carrying a firearm - and they were admitted by the appellant in his record of interview.)

The complainant having already been secured with handcuffs, the appellant tied her legs with some packing tape and told her to keep her head down. He put thick tape over her eyes and mouth and covered her with a blanket; he told her that they were going for a 20 minute drive. The drive, the complainant said later, was terrifying: "I was hysterical but trying to hold in my sobs because I thought he'd hit me with his gun, or worse, give up and kill me". After driving for about 20 minutes, the appellant stopped the car and placed a cloth over the complainant's head. At this point, the complainant said, she lost all sense of direction and became even more upset. It is not difficult to imagine the sheer terror that she must have been experiencing by now. Ten minutes or so later the appellant reversed his car into a shed in a laneway behind some shops in Belmont, where a witness later recalled giving way to the appellant's car as it manoeuvred. It was by then about 11.30 a.m.

In the shed, which was rented to the appellant and his wife for business purposes, the appellant had constructed an alcove padded with foam and lined with thick plastic. A reclining lounge chair with plastic webbing was bolted to the floor and the frame of the shed. The appellant untied the complainant's ankles, dragged her from the car and, pushing her forward, told her to "sit on the bed" (the chair having already been set in the reclining position). He then pushed her down so that she was lying on the chair and handcuffed her left hand to the seat. He taped her right arm to the arm rest and tied her legs with straps and reapplied the blindfold. According to his record of interview, the appellant also put a strap across her neck, although he took pains (he said) to see that that strap was not too tight and was not hurting. (The complainant remained tied to this chair until she later freed herself and was rescued. These are the events that gave rise to count 4, false imprisonment. During his record of interview, the appellant indicated that he originally intended to keep the complainant tied to the chair for 14 days in accordance with the ransom note.)

The complainant being thus secured, the appellant then put something on her chest and told her that he was making a ransom demand and she would have to "say a message into a tape". At the direction of the appellant, the complainant then read a message into a tape-recorder to the effect that she was being held for ransom, that her father should go to the telephone box near their home and collect "something there under the phone", and not get the police involved. The appellant then placed a gag over his victim's mouth and, having placed a realistic looking explosive device on her chest with wires leading to her armpits and legs, he took a polaroid photograph of her in this position - blindfolded, gagged and lying trussed to the chair with an "explosive device" on her chest, apparently wired up. Having at some stage demanded her father's telephone numbers, which the complainant gave him, the appellant placed headphones over her head so that she could hear only loud music being played by a radio station. This was so that she would not be able to hear noises in the surrounding area. When he left the shed, the appellant padlocked the door behind him.

Before leaving, however, the appellant completed a second ransom note. According to his record of interview the appellant had written the first, in the form of a letter addressed formally to the complaint's parents, on the Sunday before he first intercepted the complainant in her car. In this letter he demanded the payment of one million dollars in ransom within 14 days, adding the somewhat bizarre rider that delay would attract "interest" of $1,000 per day. Instructions were given to signify receipt of the letter of demand and subsequent gathering by the parents of the ransom money. The writer who signed himself "F.A.D." named members of the family (presumably to demonstrate his intimate knowledge of them), claimed to have a "complete dossier" on them and warned the parents not to contact "police or the authorities" or "she's dead". This was the letter prepared, according to the appellant, before 10 May. In the shed on 17 May the appellant typed up a briefer second note to explain that the devices appearing in the photograph on the complainant's chest, under each arm and at her feet were "all connected to a modem via a phone which can detonate all or any package at my demand" and the whole was wired to explode "if entry is made illegally". The system, the note concluded, "has to be reset every 60 minutes" so that any delay "can set off the reaction". The note was addressed to the complainant's father familiarly, by a shortened version of his first name.

The appellant put the letter of demand and the note he had just typed, with the polaroid photograph of the complainant, in an envelope which he then took to the designated telephone box where he placed it under the telephone as described in the recording which he had forced the complainant to make. The appellant then telephoned the complainant's home and transferred the contents of the tape recording to an answering machine where the message was found not long afterwards by the complainant's 14 year old brother and her mother. Again, one can imagine the distress and concern, if not the panic, felt by the family. Such was it that it took the brother and mother two trips to the telephone box to locate the envelope which the appellant had left for them. What followed was much agonising about the proper response, especially when the complainant's father returned home at about 10 past 5. Ultimately, the matter was raised with a friend who considered approaching a policeman he knew; but shortly thereafter, the family received a phone call from a police station to advise them that the complainant had been found. (In his record of interview, the appellant admitted that he had intended that the person to whom he sent the polaroid photograph should believe that the device apparently tied to the complainant was an explosive device and the events just described gave rise to counts 5 and 8 - blackmail and bomb hoax.)

I return to the complainant who had been left strapped to the chair in the shed while the appellant delivered the ransom notes to the telephone box. The complainant's victim impact statement is a remarkable document and it vividly discloses the victim's terror at this time. Blindfolded, gagged and trussed up as she was, she had something on her chest of which she could only feel the weight. As she said later: "I thought it was an explosive device, making me scared to even breathe". She was of course completely uncertain what would be the outcome of "this nightmare". She said: "I half wanted to die then and there, so I didn't have to suffer any more, but then again I didn't want my family to have to deal with the loss." Unfortunately there was more to her ordeal.

The appellant, after depositing the envelope in the telephone box left the appellant alone until about 2 p.m. when, after changing the number plates on his car, he returned to the shed, gave the complainant a soft drink, adjusted the duct tape on her mouth and asked her if she needed to go to the toilet. When she signified that she did, he told her that there was a bucket under her and that she could "just go" and that she would be cleaned up later. Telling her that he was going to cut her pants off, he cut away her pants and her underwear, using scissors. The appellant left her there, naked from the waist down, for about 10 minutes. But apparently, the activity just completed had served to arouse the appellant and he started touching the appellant and pushing her legs apart. It was then that he penetrated her, knowing full well (he admitted) that she did not consent. After withdrawing, he entered her a second time and ejaculated, at the same time lifting her top and licking her breasts. After withdrawing a second time the appellant wiped the complainant's vagina with a cloth and tossed the condoms he had used into a bin. The appellant then threw a blanket over the complainant and left her alone for several hours, again padlocking the shed behind him. (These events, which gave rise to count 6 (a representative count of rape) and count 7 (indecent assault), were admitted by the appellant during his record of interview. Denying that these crimes had been planned at all, the appellant said that the condoms had been to hand fortuitously.)

Again, the complainant's victim impact statement describes her reaction to these assaults:-

"I thought he was going to mutilate me and I knew he was going to rape me . He never spoke to me again [after cutting away the trousers]. The anticipation of the rape was worse than the rape itself. I've always been a modest girl and lying there with nothing covering me was a nightmare, I was dying inside. . . . The rape made me lose all hope of survival; I gave up all hope of living. I even tried to will myself to die. If he raped me, no doubt he would kill me, I thought. When it was all over I was left shivering uncontrollably. I've never felt so empty and cold in all my life, it was almost like a part of me had died then and there. I remained in a miserable, black daze for a long time afterwards, and even though the headphones were blaring. I heard nothing."

Eventually, however, as the complainant herself was to say later, she "snapped out of the state of dumbness engendered by the rape" and tried to see out of the corner of her eyes. At first she saw the appellant still present there, "staring straight at me" (a moment she described as "probably the scariest") and she started thinking about how she might be killed. Some time afterwards she heard a child's voice in addition to "the truck noises I'd been hearing all day", and that, it seems, gave her some hope that other people might be around who were not involved. The victim impact statement continues:

"I also heard the accused in what seemed to be a phone conversation. I strained my ears, hoping for a clue, any clue for the police. My will to live had returned, and I had newfound strength. I willed myself to open my eyes, and try and see through the side of the tape. As I opened my eyes I half expected to see his face again. It was pitch black, obviously the fluorescent light was off, and I assumed that this meant I was alone. Next I started trying to get the headphones off, which I'd been trying to do on and off throughout the day but was afraid if he saw it he'd hit me."

This time she was successful and once the headphones were off the complainant struggled to free her arms and remove the tape over her mouth. With the tape off, she "screamed, and screamed and screamed" and heard a woman's voice answer. (It was the proprietor of a nearby fish shop.) The complainant ripped the tape off her eyes, taking some hair in the process, and looked around to verify that she was indeed alone in the shed. She described it thus:-

"I couldn't really see much, it was so dark, but I could see a red light next to me and thought it was either a bomb or a camera. Perhaps he's monitoring me, I thought. I couldn't breathe, I expected him to come back any second, realising my [plan to] escape. I heard the voice again. When I finally freed my other arm, I ripped off the rope and explosives from my chest and started freeing my legs. I managed to rip whatever it was that was around my legs, wrap a blanket around myself and ran through the blackness [out of the alcove] into a shed and towards the voice at the door."

Still unable to escape the shed, the complainant screamed again and was told by the woman's voice that the door to the shed was padlocked and that the police had been called. The complainant said that by this time she was "crying like a baby". She peered through a crack in the door and saw cars driving past. She reached out a finger and when it was touched by the woman on the other side, "that little bit of human contact was enough to get me through". The police arrived, cut the padlock and the complainant was free. She ran from the building with the blanket around her waist and was taken to hospital.

At this stage the appellant was driving back to the shed, intending, he said in his record of interview, to cover the appellant with a blanket and give her some food. He said also that by then he was having serious doubts about what he had done and was thinking of how to get rid of her or to release her. On arriving at the shed he saw the police and so he drove home, throwing the tape recorder, the tape itself and the food out of the car window. At home, he retrieved a pistol with the intention of taking his own life; and he went so far as to make a tape-recording to his wife, confessing what he had done. By chance the appellant's wife telephoned him at that point and she managed to persuade him to consult the family solicitor. On the following morning, he went to the police. During the interview that followed, the appellant admitted his involvement in the offences and admitted that he had "abducted a young lady, held her in a shed he had been renting and at one stage raped her". He agreed to re-enact the crime and show the police what had happened and the re-enactment was video-taped.

There is no doubt but that the crimes admitted by the appellant are quite appalling, which was the view of the sentencing judge. It is difficult, perhaps, to overstate the consequences for the complainant herself and her immediate family, including her young brother who was only 14. The victim impact statements of the complainant, her mother and her father all make it plain that the scars of these events will last for a long time. The complainant has undergone a personality change, losing interest in her studies; her mother (unjustifiably but naturally enough) feels guilty for failing to protect her child; and her father, who doubtless feels that same sense of guilt, has found himself unable to cope with the daily demands of his business and sees his family at risk of disintegrating. The 14 year old has lost interest in his school activities.

"To say that these are extremely serious offences is a gross understatement. The kidnapping and blackmail were carefully planned. The method you adopted was persistent and calculated to produce as much fear in the victim and her parents as possible. It is hard to describe the terror and agony which your actions caused. The victim impact statements reflect the suffering and the effect of what you did on the lives of the members of this family, which they will probably never overcome. The effect of your crimes on the wider community is also significant. Individually, these crimes are very serious. In combination, they create fear and abhorrence in the community which this court must acknowledge by imposing adequate punishment."

The planning to which the judge referred included not only the appellant's selecting his victims and the writing on 9 May of the main ransom demand, but also the construction of the dashboard lights to indicate police, his plan for the tape recording of the complainant's own voice, his appraisal of the nearby telephone box as a suitable place to leave the written communications, his preparation of the shed, the chair and the supposed explosive device, and presumably the idea too of using false number plates on his car.

In his sentencing remarks, the judge referred to the personal circumstances of the appellant. The appellant, who was 51 years old when sentenced for these offences, migrated from the United Kingdom in 1967. When he was 18, he was convicted in England of garage breaking and theft and, at 22, he was convicted in Geelong of larceny. And in 1974, when 25 years old, he was convicted of receiving stolen car parts and sentenced to 9 months in gaol (served mainly on a prison farm), although that was a conviction which the appellant blames entirely on his brother, who was then repairing cars.

In 1971 the appellant married and now has two daughters, one of whom though now free of drugs, had serious problems with heroin at one stage (even being in prison for a time for drug-related offences). A motor mechanic by trade, and a maintenance engineer and electrical contractor also, the appellant later ran a reputable business as a builder. He and his wife lost heavily upon the collapse of the Pyramid Building Society, but, keen to re-establish the family financially, the appellant, who belongs to a pistol club, then trained and worked as a security guard and took on additional work as a process server. The judge accepted that the appellant and his wife have both been hard working throughout their lives. At the time of these offences, the appellant was in gainful employment as a security guard and as a builder/electrician (the former giving him access to guns, including the one with which he threatened the complainant on 17 May). His wife was the one who managed the money within the family and, despite his working hard and being in gainful employment, in January 1999 the appellant came to believe that the family was in financial difficulties. Although this belief appears to have been without foundation, on the plea in mitigation it was this, said his counsel, which led the appellant into planning the abduction and the ransom of the complainant.

A month or so before these offences, the appellant's wife had threatened to leave the marriage because of the appellant's periodic bouts of withdrawal and anger. Seeking counselling, the appellant divulged a history of physical abuse by a violent and drunken father during his childhood and repeated, serious sexual abuse by teachers, both male and female, at the boarding schools he attended in England. The appellant, it seems, was making these disclosures substantially for the first time and that step appeared to be occasioning him great personal difficulty. Professor Mullen and Mr. Cummins, giving evidence on the plea in mitigation, both said that the appellant was suffering from significant psychological problems, depression and suicidal thoughts before and at the time of these offences. Mr. Cummins described the appellant as a man who had always been pre-occupied with being an adequate provider, with feelings of abandonment by his father who had regularly abused him, his mother and his siblings. In custody, the appellant was regarded as suicidal and kept under observation. Mr. Cummins noted the appellant's remorse particularly with respect to the sexual offences (counts 6 and 7), based in his own history of abuse and the fact that one of his own daughters was "date-raped" when 13 years old. Professor Mullen considered the events in question quite extraordinary for a man of the appellant's age and background and concluded that his judgment had been impaired by depression. Psychological counselling had continued during the appellant's time in custody.

It is unnecessary, I think, to deal in great detail with the grounds of appeal for, as will be seen, I think that the sentences imposed, when taken overall, were manifestly excessive. I am far from persuaded, however, that any of the individual sentences imposed by the judge was indicative of error. For example, despite a strenuous argument to the contrary by counsel I see no error in a term of imprisonment of seven years on count 2 (for kidnapping), one year on count 3 (for carrying the firearm) and four years on count 4 (unlawful imprisonment on 17 May), when only two years were made cumulative on the seven. Nine years' in prison for these three counts does not seem to me inappropriate, even after considering all that counsel put in mitigation. For example, before us counsel stressed the appellant's prompt cooperation with police and his comprehensive confession, his early pleas of guilty and his insistence (by way of instructions to counsel on the plea) that the complainant not be subjected to any further stress or trauma. The appellant did not himself give evidence on the plea and, whilst his concern now for the welfare of the complainant is praiseworthy, the judge said he took it into account, accepting that the appellant had shown remorse for his actions. It is an understatement to say what a pity for all involved that the appellant did not begin to entertain those feelings of concern for his victims, if not before 10 May, then before 17 May.

Certainly his pleas of guilty saved his victims from having to relive their experiences in the witness box and saved the State the considerable expense of a trial; and, although the appellant was not likely to have escaped arrest for very long, he did voluntarily surrender to police all but immediately. Among the extraordinary aspects of the case are that the appellant used his own car to intercept the complainant on two occasions (albeit that on the second at least he used false number plates); attempting no disguise beyond the jacket to represent the police, he gave her ample opportunity to see his face on both occasions - and, indeed, on the second the complainant quickly recognised him as "the policeman" who had "apprehended her" on the first; the appellant took the complainant to a shed which was behind a busy shopping area where he was unlikely to go unobserved - and consequently he was seen when arriving; and the shed was one rented to him for business purposes. In those circumstances it is difficult to suppose that the appellant would have escaped detection for long, once the complainant had managed to win free. Indeed one can only wonder for how long, even if the venture had been carried through to completion, the appellant would have remained at large or whether he had it in contemplation that his own suicide should be the end of it all, leaving his family in possession of the ransom once obtained. Be that as it may, his surrendering to police and his full and frank confession, like his pleas of guilty and his remorse, all stood to his credit and the judge took them into account in mitigation.

Appellant's counsel also emphasised to us the fact that the appellant had already been assaulted while in custody so that prison was likely to be particularly harsh and burdensome. That may be so, given the nature of these crimes, but the scars suffered by the victims are likely to be so too, and long-lasting. Prison is obviously going to be a shock for a man in his fifties who has a wife and adult children and who has for 25 years been hard-working and an apparently respectable member of the community. To be many years in custody will in itself be harsh and burdensome, and perhaps particularly so for this man who at times in his life has attempted suicide. Suffice it to say that the particular effect of prison life on the appellant, given his circumstances and his background, cannot be ignored as a mitigating factor - but, again, this was put to the judge and counsel did not contend that it was not taken into account at all. Mr. Holdenson argued only that it was given too little weight.

The third aspect of the case seised upon by counsel on this appeal lay in the evidence about the appellant's mental condition at the time of the offences. I mentioned this evidence above and I do not describe it again. In the course of his very long, detailed and comprehensive report, Mr Cummins suggested that the appellant might possibly have been undergoing a brief or transient psychotic episode at the time of these offences, but, as the judge himself indicated during the plea, it is perhaps difficult to see how this could be so, given all the preliminary planning, the first interception of the complainant on 10 May with a view to carrying out the plan, and then the execution of the plan in full on 17 May. Nor did Professor Mullen share Mr. Cummins' view.

Mr. Cummins saw the appellant on 23 June. Professor Mullen saw the appellant on 2 August and by then the appellant professed himself unable to recall the events of 17 May. Professor Mullen's opinion was that the appellant's judgment at the time of the offending had probably been impaired by depression. He said:-

"[The appellant] gives a history, which appears to be confirmed in many aspects by the accounts of his wife and daughters, of being in a depressed and despairing state in the days and weeks prior to the offence. In the absence of [the appellant's] ability to recount how the plans for the alleged offending emerged, one can only note that it appears to be in the context of lowered mood and despair and probably suicidal thoughts and impulses. There was no evidence from [the appellant's] account currently, nor in my view in the transcripts of his interviews with the police, to suggest that he was deluded or in any way influenced by psychotic experiences prior to, or during, the commission of the alleged offences. His judgement may well have been impaired by the depression, but not to such a degree as to deprive him of the capacity to know the nature and qualities of his actions nor to make him unable to understand the wrongfulness of those actions.

In my opinion it is probable that the depression impaired his judgement. The offence appears so extraordinary for a man of [the appellant's] age and background that it is difficult to imagine that were he not in a depressed, despairing and potentially self destructive state that he would have undertaken such an appalling enterprise. [The appellant's] state of mind may have been further disturbed both by the marital problems and his talking for the first time about his childhood experiences of abuse, both of which events occurred in the months immediately preceding the offences." [Emphasis added]

It was common ground on the plea that the appellant's mental state was not such as to attract the principles applied in R. v. Anderson [1981] VicRp 17; [1981] V.R. 155. None the less, it was submitted to us, as on the plea, that, given the appellant's age, background and remorse, specific deterrence was scarcely a major consideration and any consideration of general deterrence should be "sensibly moderated" in view of the psychologist's report and the psychiatrist's: see R. v. Tsiaras [1996] VicRp 26; [1996] 1. V.R. 398, R. v. Richards and Gregory [1998] 2. V.R. 1 at 10, R. v. Yaldiz [1998] 2. V.R. 376 at 380-1 and 382-3 and R. v. Kasulaitis [1998] 4 V.R. 224. Yet these cases seem to me distinguishable if only because of the nature of the mental illness or psychiatric condition there concerned. (For example, in Yaldiz at 381, Batt. J.A. speaks of "an offender suffering from a mental disorder or severe intellectual handicap" and in Kasulaitis at 232, his Honour spoke of the offender's having "cracked" or "snapped" during "a total breakdown in appropriate mental functioning".) The most that could be said here, is that, given the somewhat bizarre features of the appellant's offending, the appellant's judgment must have been astray at the time and that, if impaired through depression, that could serve as some explanation of the offending and should be brought to account, to some degree, in mitigation. That was how the judge put it in his sentencing remarks, and with respect I agree.

Speaking of the two reports and the oral evidence given by the authors in support, and of the underlying history given by the appellant of sexual and physical abuse during childhood (history which, it had been submitted by the Crown, was in truth unsubstantiated by evidence), his Honour said:-

"From the whole of the evidence before me I am prepared, for the purpose of sentencing you, to act on the basis that the history of abuse of you which you gave is true. That history was part of the material upon which Professor Mullen and Mr Cummins acted and forms part of the basis for their conclusions about your mental state before and at the time when you conceived and carried out your criminal plan. All that, and the pressures which were upon you, both real and perceived, provides some explanation for your behaviour, but does not justify or excuse it. Your mental state must, I think, be taken into account as an explanatory and, to some degree, a mitigatory factor. It does not, however, in my view, in any significant way remove the need for a general deterrence component in your overall sentence."

I see no error there, nor do I think that the judge gave too little weight to the evidence about the appellant's mental state, when fixing the individual sentences.

These were of course not the only sentencing considerations; they are merely those emphasised by Mr. Holdenson on this appeal. The judge faced a sentencing task with many difficulties, not least of which was how to deal with the rape and the indecent assault. It was submitted for the appellant on the plea in mitigation that the sexual offences had formed no part of the planning, occurring only on impulse when the appellant became sexually aroused (as he said in his interview) by what he observed when cutting away the complainant's trousers and underpants. On the plea there was some discussion over this but in the end the judge accepted the submission and sentenced on the footing that the rape and the indecent assault were separate and discrete. Thus his Honour said:

"I accept Mr. Wraith's submission on your behalf that the sexual abuse of your victim was not part of your original plan. However, I do not think that is a significant mitigatory factor because you took advantage of her when she was terrified and helpless. It was an act of degradation beyond what was necessary for your original plan of kidnapping and blackmail."

This no doubt is what led his Honour to order that the six years' sentence for the rape (together with the concurrent sentence of one year for indecent assault) should be wholly cumulative upon all the other sentences imposed, including the seven year sentence imposed on count 2, for kidnapping.

As for the other individual sentences imposed below, there can be no substantial complaint, I think, about the one year sentence imposed on count 1, the only count reflecting conduct on 10 May (though whether it ought to have been wholly cumulative I deal with later). On counts 5 and 8 the judge had to sentence for crimes involving the family of the complainant, the demand for ransom and the bomb hoax. (Whether it was intended by the appellant that the complainant too should believe in the explosive device need not be pursued.) Again I see no real ground for complaint in the judge's decision that the appellant serve five years' imprisonment on count 5 and two years' on count 8, three years of the first and one year of the second to be cumulative on each other and on the sentences on all other counts; that is, the appellant was ordered to serve an additional four years in prison by reason of counts 5 and 8. On their own that might be considered lenient.

My difficulty, as I indicated earlier, is not with the individual sentences, nor yet with the orders for cumulation if the offending is broken into four parts: count 1 (the offence on 10 May); counts 2, 3, and 4 (kidnapping, use of the firearm and false imprisonment); counts 6 and 7 (the sexual episodes) and counts 5 and 8 (the ransom demand and the bomb hoax). But it is important when sentencing to have regard to the sentences as a whole in order to consider whether, when totalled in accordance with such directions as are given for concurrency or cumulation, the end result is not crushing on the offender - or in other words offends against the principle of totality. That principle is well established: see Mill v. R. (1988) 1966 C.L.R. 59, D.P.P. v. Grabovac [1998] 1 V.R. 664 at 676-7. In Mill at 62-3 the High Court in a joint judgment approved this statement from Thomas, Principles of Sentencing:-

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is `just and appropriate'. The principle has been stated many times in various forms: `when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[`]; `when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

In short, "at the end of the day, as one always must, one looks at the totality and asks if it is too much": R. v. Faulkner (1972) 56 Cr. App. R. 594 at 596 per Lord Parker (quoted by the Full Court in R. v. Knight (1981) 26 S.A.S.R. 573 at 576). When one looks at these eight sentences, totalled in the light of the cumulation ordered, and asks whether 20 years' imprisonment is too much, I think the answer is yes. Such a sentence is in my opinion crushing and went beyond what was reasonably open to the sentencing judge, given the circumstances both of the offending and of the offender.

As for the latter, at the time of these offences the appellant was 51 years old and for 25 years he had been a hardworking member of the community, supporting wife and children, without any recurrence of the earlier offending. More particularly, he had worked specially hard to overcome adversity when it struck upon the collapse of the Pyramid Building Society. Then suddenly, and apparently without warning, he embarked upon this dreadful episode. As Professor Mullen said, this particular offending is all so extraordinary for a man of the appellant's age and background that he must surely have been "in a depressed, despairing and potentially self-destructive state". If so, the reason would be not hard to find: for it was shortly before these offences, and as a result of marital problems, that the appellant was divulging to a counsellor (apparently with considerable emotional difficulty) his own experiences of sexual abuse during childhood - a tale that was quite appalling in itself. As for the offending, although there were undoubtedly both planning and persistence in the commission of these offences, the planning was not very sophisticated and the execution somewhat bizarre - and the appellant's apprehension could not have been long delayed. Moreover, fortunately the fear to which the appellant subjected the complainant's family did not endure for long; for through the complainant's own courage and resourcefulness the whole episode was brought to an end relatively speedily. Indeed, the complainant's victim impact statement is a most impressive document which betokens a degree of endurance and fortitude on her part - and these, it is to be hoped, augur well for her coming to terms with the ordeal and moving on.

Thus, while deploring the appalling crimes of the appellant and seeking in no way to excuse them or to diminish the terrifying experience undergone by the complainant and her immediate family, or indeed to ignore the general revulsion of the community at large at such crimes, I consider that on this occasion the sentencing discretion did miscarry; in all the circumstances, the total effective sentence of 20 years' imprisonment lay outside the range reasonably open to the sentencing judge. It falls then to this court to re-sentence. Mindful of the gravity of the offences and their effect on the victims, but bearing in mind also the personal circumstances of the appellant and those factors that are properly taken into account in mitigation (such as his genuine remorse, his age, his real ability to overcome adversity in the past and the unlikelihood of his ever re-offending like this), I would confirm the individual sentences imposed on all eight counts on the presentment save the sentence on count 2 which I would reduce to six years' imprisonment. I would then set aside the orders made below for cumulation on counts 1, 3, 5 and 6, ordering instead that six months of the sentence imposed on each of counts 1 and 3, two years of the sentence imposed on count 5 and four years of the sentence imposed on count 6 be served cumulatively upon the sentences otherwise imposed. In view of the substituted orders for cumulation and the other orders for cumulation (which I would confirm), the total effective sentence becomes one of 15 years' imprisonment and I would fix 12 years as the non-parole period.

It should be noted that, accepting the submission of the Crown to that effect, the judge considered the appellant to be a serious sexual offender within the meaning of the Sentencing Act. That was for sentencing on count 7 only. His Honour saw this "as having no real effect on the sentences to be imposed in the circumstances of this case" - that is, he saw no need to sentence disproportionately under s.6D or to allow for the full cumulation provided for by s.6E - and with respect, I agree. His Honour also declared the appellant to be a serious violent offender but, in view of the definition of that term in s.6B, I think that there the judge was mistaken. While in itself that declaration could have had no effect on the exercise of the sentencing discretion, the declaration should obviously be set aside if incorrect.

Finally, before leaving this appeal I add this. Nothing can excuse the conduct of the appellant on 10 and 17 May 1999 and I hope that I have said nothing in the course of this judgment to suggest otherwise. In that context, however, may I be allowed to commend the extraordinary courage shown by the complainant throughout her horrifying ordeal, as witness her moving victim impact statement. Had it not been for her resourcefulness and her sheer will to survive, one cannot tell how this whole episode would have ended. I hope that in time all her family will come to appreciate how fortunate they were in that the complainant's own character was such as to bring events on 17 May to a premature end, enabling the complainant to return to them.

I agree that the appeal should be allowed, and the appellant re-sentenced in the manner proposed, for the reasons given by Phillips, J.A.

At a glance

Court

Decision date

Before

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Judgment (55 paragraphs)

Parties