R v DRR [2004] NSWCCA 126 | Case summary

Friday, 7 May 2004 Regina v D R R Judgment 1 Sperling J: On 5 May 2003, following a plea of guilty, the applicant was sentenced in the District Court to imprisonment for four and a half years with a non-parole period of two years and three months on one count of detaining for advantage. The maximum penalty for that offence is 14 years' imprisonment. 2 The facts of the case are set out in a fact sheet tendered at the sentencing hearing. The facts, as there recorded, are as follows. About 6pm on Friday 21 June 2002, the victim was loading some items into her car from a flat located at 10/6 Fowler Street, Hamilton South. During this activity she was unable to lift one of the bags. She went down to another unit to seek assistance from her friend. However, the friend was not home. She then went to another flat where she knew the occupants, again to seek assistance to carry the bag. There she saw the offender who she said was not known to her. When she requested assistance he offered to help on condition that she give him a lift to the Nineways at Broadmeadow. The offender then went with the victim and carried the items to her car. The victim and the offender then got into the car and she drove him towards the Nineways. Part way through the journey the offender requested the victim to drive him to Charlestown. Given that the offender had assisted her, she agreed and headed towards Charlestown. At this stage of the journey the offender started behaving strangely, directing the victim through back streets muttering strange things to himself and constantly checking that they were not being followed by police. The victim began to fear for her welfare, but complied with the offender's directions and demands with a view that he would soon be out of her car. The offender then directed the victim to a set of units in Windale. There the offender's behaviour became even stranger. He indicated to the victim that people outside the units were police and that they were after him. He told the victim that she herself was a police officer. He further indicated that he was going to get out of the car and, 'Take as many with him as possible', using the victim for his cover. The victim's level of fear and concern rose but she was unable to determine how to get rid of the offender. She was then directed to other addresses where the offender's behaviour did not alter. The offender then directed the victim to drive him to the Broadmeadow area, which she did. The offender threatened to punch the victim to the face and shoot her and kill her if she did not comply. At Broadmeadow the offender directed the victim to drive him to Bridges St, Charlestown. The victim was not aware of such an address and believed that she would be seriously assaulted, raped or killed if she didn't do what he said. After stopping at further addresses as directed the offender told the victim to drive to the Police Boys Club at Windale. Upon arrival at the club car park the offender ordered that the victim let him drive and told her that she should get in the passenger seat. Fearing for her well-being the victim complied with this direction. The offender then drove at high speed from the club and continued into Lake St and a number of other streets in the Windale area driving in a dangerous and erratic manner. So much so that the victim considered jumping from the vehicle to avoid being killed in an accident. The offender on a number of occasions took hold of the victim by the hands whilst he was driving in order to stop her from jumping from the vehicle. During the journey the offender collided with a number of sign posts and median strips causing an amount of minor damage to the vehicle. Further, during this journey on a number of occasions, the offender told the victim he was going to rape her and possibly kill her. At 9.30pm the offender drove the victim's car into a driveway at Campton Close, Jewells. The offender then dragged the victim from the car and forced her on to the ground laying on top of her to restrain her. A short time later the offender dragged the victim to her feet and took hold of a handful of her flesh on the stomach area and walked her around the nearby streets. At this time the offender informed the victim that he had a gun and would, 'Blow her liver through her stomach', if she did anything stupid. The victim recalls having an unknown object pushed in to her back, at the time believing it possibly to be a gun. Whilst walking the victim around the streets the offender threatened to throw her into the path of several approaching motor vehicles, and then on other occasions throw her into gardens to hide from approaching vehicles believing them to be police vehicles. The offender then dragged the victim into a nearby street, still adopting the same grip on her stomach, and with the object pointed into her back. He forced her to the ground on a driveway. The offender sat behind her and wrapped his legs and arms around her in a restraining manner. At this time the offender directed the victim interlock her arms into the sleeves of her jacket. The victim believed that an occupant of a nearby house came out but was told to go inside or be shot. She recalls the door being shut. Whilst the victim was being held on the driveway, police arrived at the scene. Police approached and directed the offender release the victim. He was called upon to do so several times and eventually released her only after seeing police produce capsicum spray. The victim broke free of the offender's grip and fled on foot. The offender was arrested and conveyed to Charlestown police station. Upon his arrival at the police station the offender appeared to be drug affected. He was muttering to himself and was erratic in his behaviour. When asked if he would be interviewed in relation to the matters he acknowledged that he took the victim against her will but would not comment any further or participate in any form of interview. As a result of the incident, the victim had a large bruised area on her stomach where the offender had hold of her. This is shown in photographs tendered with the material on sentence [in Exhibit A]. As a result of the offender driving the victim's car at speed, and in an erratic manner, the vehicle sustained severe engine damage and minor panel damage. 3 The sentencing judge found that, objectively, the offence was a very serious one. The victim was put in fear and suffered physical violence. 4 Subjective matters taken into account by the sentencing judge included the age of the applicant, 23 years at the time of the offence and 25 years at the time of sentencing, the applicant's criminal history, his upbringing and drug problems. 5 The criminal history of the applicant disclosed that most of his past offences had involved matters of dishonesty, drugs or driving, although there was one conviction for assault. 6 A pre-sentence report indicated that the applicant was known to the Probation and Parole Service since 1996 and had been subject to supervision on a number of occasions. On all such occasions, it was said that the applicant's response was either superficial or non-compliant with breach action resulting in relation to each order. His Honour noted, however, that the pre-sentence report also revealed subjective considerations which were favourable to the applicant. His family had broken up when he was five years of age. There was harassment by his father which resulted in his mother becoming addicted to alcohol until her death. The applicant's father was physically and emotionally violent towards the applicant until his death. The applicant was sexually abused for a year by a neighbour who was subsequently gaoled for the offences. The family was quite dysfunctional, requiring the applicant and his siblings to virtually raise themselves. At the age of 13, the applicant became a poly drug user with regular use of amphetamines from the age of 12, then heroin from the age of 22. There had been long periods of unemployment. The applicant felt devastated for the victim and recognised the seriousness of the offence. 7 A report by Dr Westmore, forensic psychiatrist, indicated that, at the time of the offence, the applicant was suffering from a drug-induced psychosis, involving paranoid and delusional behaviour, which explained the applicant's conduct at the time of the offence. At the time of examination, the applicant was no longer presenting with psychotic symptoms. 8 A handwritten letter from the applicant to the court expressed his remorse. 9 The sentencing judge took into account that the applicant was being held in protective custody. 10 Although the applicant had threatened to rape the victim while the offence was in progress, the sentencing judge was not satisfied that there was any sexual motive behind the commission of the offence. 11 A 20 per cent discount was allowed for the utilitarian value of the plea. 12 The sentence was dated to commence from the expiration of a non-parole period under sentences currently being served by the applicant. 13 His Honour found special circumstances, in that the applicant was still a relatively young man with potential for rehabilitation and the sentence would be served in protection. 14 At the hearing of the appeal, it was submitted on behalf of the applicant that the sentence was manifestly excessive having regard, in particular, to the applicant's psychosis at the time of the offence. It was submitted that the head sentence reflected elements of general and specific deterrence which were not appropriate, having regard to the applicant's mental state at the time. It was further submitted that the sentencing judge had given insufficient weight to the totality principle in the relationship between the present sentence and the sentences he was serving. It was also submitted that the likelihood of release into a drug rehabilitation programme, with the restraint on liberty which that would involve, was not adequately considered. 15 Concerning the applicant's psychosis at the time of the offence, his Honour said: So far as sentence is concerned I am satisfied that, to some extent, issues of general and specific deterrence should be moderated in the sentencing process. I say this because whilst there is no doubt that the psychosis suffered by the offender at the time of the commission of the offence was self induced, the reality is that his drug addiction was brought about no doubt as a result of those factors occurring in his life at an age when he was unable to make decisions for himself. It is hardly surprising that a person with such a background would fall into drug use and abuse. This is not to say that considerations of general deterrence and specific deterrence are not appropriate, simply that some moderation should be exercised in the sentencing process because of the factors to which I have referred. 16 It is unnecessary to review the well-known authorities relating to the way in which mental illness bears on the sentencing process. His Honour specifically mentioned the way in which mental illness moderates the consideration of general deterrence. Where mental illness has materially contributed to the offending conduct, it is also a consideration moderating the offender's culpability, and hence the denunciation and punishment warranted for the offence. That was so obviously a factor in the present case that it cannot have been overlooked by the sentencing judge. 17 As for totality, the sentences being served were for unrelated offences. There was no error in principle in accumulating the present sentence. 18 The fact that the applicant was likely to be discharged into a drug rehabilitation programme was not a weighty consideration. His Honour mentioned this factor and no doubt took it into account. 19 The serious questions for the sentencing judge were a balancing out of conflicting considerations. The subjective features of the case favourable to the applicant had to be weighed against the objective seriousness of the offence. Moral culpability and general deterrence are moderated by mental illness. That, however, is to be weighed against special deterrence and the need to protect the community from repetition of the behaviour which led to and constituted the offence. There are, accordingly, a number of considerations in this case which pulled in different directions. 20 I am not satisfied that the sentencing judge erred in balancing out these conflicting considerations. I am not satisfied, in terms of s6(3) of the Criminal Appeal Act 1912 that a lesser sentence was warranted and should have been passed. 21 The orders I propose are accordingly as follows:

R v DRR

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cited By (1)