R v Johnson, Hall & Ersman

CATCHWORDS: Criminal Law - Sentencing - Especially aggravated kidnapping - aggravated breaking, entering and stealing - 3 co-offenders - 2 sources of evidence - agreed facts prepared by the Police Officer in Charge - victim lured tp penrith by female offender - beaten and captured whilst seated in car by two male offenders - held in house - assaulted - threatened - driven to remote location - threatened with death - driven to victim's home - entry to home granted because of fear - camera stolen - victim's car stolen - car driven to premises belonging to female's pimp - break, enter and intimidate - assessing objective seriousness of kidnapping/detailing - checklist.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act

R v Cuthbert (1967) 2 NSWR 329 CASES CITED: R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 Della- Vedova v R [2009] NSWCCA 107

Regina PARTIES: Ian Shaun Johnson Timothy Leigh Hall Rachel Anne May Ersman

FILE NUMBER(S): 2008/11/960; 2008/11/961; 2009/11/178

Crown Prosecutor: : M Barr COUNSEL: Counsel for Johnson: J Trevallion Counsel for Hall: P Adams Counsel for Ersman: S Hall

JUDGMENT

1. Mark Eynon is a knockabout bloke who lived with his mother in Glenmore Park in the western suburbs of Sydney. He had used a prostitute, Rachel Ersman, at the Stairway to Heaven Brothel at St Marys also in the western suburbs. Mark Eynon felt something for Ersman. She willingly provided him with two mobile numbers of hers so that they could meet privately. Timothy Hall's father owned the Stairway to Heaven Brothel.

Ian Johnson met Rodney Hall, the owner of the brothel, when working as an apprentice panel beater and shortly after his own father had died. Rodney Hall filled the role of a surrogate father for Johnson who in turn took on Timothy Hall as a brother, though I note that Timothy Hall, himself, does not seem to accept that relationship.

Hall, Ersman and Johnson together with another man, planned and effected the unlawful detention of Mark Eynon on 3 November 2007. It is difficult to determine the initial purpose of the detention but after some hours Eynon was taken to his mother's home where the three broke and entered the premises taking a digital camera. Today the three are to be held accountable for their criminal conduct on the night of 3 November 2007.

Shaun Johnson has been tried by a jury. He has been found guilty of two counts, one of detaining Mark Eynon in circumstances of special aggravation, namely, being in company and occasioning actual bodily harm to Mark Eynon. The second count was one of break, enter and steal in circumstances of aggravation, namely, being in company. My memory is, and I stand to be corrected, he was found not guilty of the third charge in respect of property of others. He asks that an offence of taking and driving Mark Eynon's car be taken into account when he is sentenced for the first offence.

Both Timothy Hall and Rachel Ersman have pleaded guilty to charges the Crown says satisfactorily covers their criminality. Hall has pleaded to one count of detaining Mark Eynon in circumstances of special aggravation. When sentenced for this matter he asks that I take into account five further matters on a Form 1, namely, aggravated break enter with intent to steal in the home of Mark Eynon's mother, take and drive conveyance, larceny (shoplifting), aggravated break and enter with intent the home of Rachel Ersman's pimp and enter enclosed lands at Lethbridge Park where he hid from police for four hours.

Ersman was committed for sentence on 13 March this year from the Penrith Local Court upon the charge of detain without consent with intention of obtaining an advantage, namely, fifty dollars and reprisal in circumstances of special aggravation. When dealing with her for this offence she asks the court to take into account three further matters: taking and driving Mark Eynon's car, the aggravated break enter and steal of the house at Glenmore Park and possession of 3.4 grams of cannabis.

As sentencing judge it falls to me to resolve a number of competing intensions as I strive to determine the appropriate sentences for these offences before this court committed by these offenders harming this victim in the western suburbs community. My initial task requires an assessment of the objective criminality of the offences before the court. I need to have regard to matters personal to the offenders. The starting point for my assessments requires me to make findings of fact from the evidence before the court relating to the offence and offenders. That task is more complicated in this case because while there is a common agreement as to facts there is also the residual of trial material which I have before me relating solely to Mr Johnson and other items that have been tendered relating solely to the relevant offenders coupled with evidence given by at least two of the offenders in open court that would be relevant to all offenders.

Each of the offenders' rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there will be questions of discounts, parity, whether special circumstances are to be found, those Form 1 matters that I referred to, and finally, of course, the ultimate length of the minimum term or other penalty to be imposed. None of these can be commenced until the primary facts are determined.

What weight will need to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined; see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts 10. I take the facts from a document that I note was apparently prepared by Detective Senior Constable Realph of the Penrith Police Station. I note in passing that there is a recent case from the Court of Criminal Appeal very critical of the DPP for allowing statements prepared by police officers to form the basis of facts without any apparent intervention from the DPP itself, who after all is responsible for the running and management of the case in assessing the criminality from its perspective; see Della- Vedova v R [2009] NSWCCA 107. I should indicate that at least I have made amendments to the agreed statement of facts and I should also indicate that I do not regard myself as bound by any agreement between the parties, my fact finding task must be on the evidence before the court.

On Sunday 28 October 2007, Mark Eynon contacted Rachel Ersman to "hook up for some fun." She placed an order with him for fifty dollars worth of cannabis. They arranged to meet at the Sportsman's Hotel at Blacktown. He delivered the cannabis to her. She asked him to return in half an hour telling him she was with friends. Shortly she contacted Eynon seeking a lift from the hotel. When he arrived she invited him into the hotel room. There he was introduced to Timothy Hall and another man, CH. In respect of CH I indicate that he was a close associate of Timothy Hall's. He appears to have been seriously involved in some of the criminal activities that engaged these three offenders on the night of the 28-29 October 2007. He has been charged with some of these offences but found unfit to plead. Therefore, nothing leading to his identity should be published until he is in a position to make his own answer to these charges or at very least participate in a limited hearing on the question of his guilt.

Eynon left and waited for Rachel Ersman in his car. Meanwhile, CH chatted to Eynon while sitting in the car. Eventually, she arrived, CH left and Eynon and Ersman drove to Nurragingy Reserve at Doonside. They chatted, she about her fighting with Hall and her desire to leave the sex industry. She suggested they get a room at the Colyton Hotel. They drove to the Colyton Hotel but no rooms were available. She then suggested they go somewhere to have sex.

It is important to note where that suggestion came from. On the agreed facts it came from her. The pair went to a grassy area of Carlisle Avenue in Mount Druitt and engaged in sexual intercourse in her (as said) vehicle. No money was paid, nor it seems was any expected. Eynon dropped her off at the 7-Eleven Service Station at Riverwood. I infer that it was her choice to go there.

Especially aggravated kidnapping, count one on the indictment for Hall and count one on the indictment for Johnson. It is the charge to which Ersman has pleaded guilty before the Local Court.

A few days later around 6 pm on Saturday 3 November 2007 Eynon again contacted Ersman. She told him she was at the Penrith Centro Shopping Centre. She placed another order for cannabis. He drove from Glenmore Park to make the delivery. Unable to contact or locate her at the shopping centre, he left with the cannabis.

About 9 pm she contacted him and asked him to return to the shopping centre. He did so and saw her standing near the car park. She rang him and told him was going back inside to get some condoms. She entered a fibro house at 12 Station Street across the road. As she walked onto the property, Hall and GH emerged and approached his car, a blue Holden Commodore VN sedan. Hall sat in the front passenger seat, shook his [Eynon's] hand and then punched him in the face. GH began punching him and punching his face from the other side. Hall and GH pulled him from the vehicle, marched him across the road into 120 Station Street.

Once inside the house, Hall directed him to "go wash up". He entered the bathroom whereupon Hall kicked him in the arm, causing him to fall against the wall. Eynon's nose was bleeding. He wiped it with the toilet paper. Blood was pouring from his nose down the front of his shirt and dripping on the bathroom floor and basin. In the house at this time were Ersman, Johnson and GH. Ersman frequently came and left. She did nothing to stop the assault or assist Eynon. The occupants of the house, one Kay Aurisch and Melika Watts, were at home. Clearly they were uncomfortable with what was going on. Aurisch told Hall to "get out and take it outside". She gave Eynon a bag of frozen peas to put on his swollen eye, no doubt in the hope of reducing its swelling.

After Mark Eynon emerged from the bathroom, Hall forced him to sit on a stool in a kitchen corner. He was held against his will, threatened and assaulted at this location over a four hour period. Hall threatened him with an orange pair of scissors; indeed cutting one of the "sleeper" earrings from his left ear. Hall put the scissors to his eyes saying, "I should gouge your eye out". Hall grabbed an axe saying, "I should cut one of your limbs off". He threw a knife in Eynon's direction, narrowly missing him. Hall at this stage, and as I understand it for the first time, accused Eynon of raping Rachel Ersman; an apparent reference to the episode of consensual sex the previous Sunday. So far as I can see, it was never explained to Eynon that the alleged rape related to that sexual episode. How he was to know that is unclear from the evidence.

At one point Hall left the house, leaving Mark Eynon in the custody of Johnson and GH, saying, "Watch him and if he moves, stab him". Whilst being so detained, Eynon asked to leave, be let go and was told, "We haven't finished with you yet". At one point Mark Glover, Rachel Ersman's then pimp, entered the house and saw Eynon being held against his will. About 1 am, by now Sunday 4 November, the three offenders and GH self injected speed in front of Eynon. Hall threatened to inject Eynon, but apparently changed his mind, saying he did not want to share it.

Eynon was made to get up from his stool. He was told, "If you run, we'll get you and kill you". All four walked him across the road to his blue Commodore where he was placed into the middle rear seat and driven for some twenty minutes to the Yarramundi Bridge on Springwood Road, Castlereagh, Penrith. By this time he had been in the house for something like three and a half hours. There is evidence in the trial, which I accept, that Ersman was in the driver's seat. She drove some distance. Hall also drove. Johnson and GH were also present in the car. For some reason, unknown to me, this evidence was not led against her, but is admissible only against Johnson.

In the trial Eynon gave evidence, which I accept, that he heard Hall say to Johnson, "We should kill him and bury him here". We now have the peculiar situation where that evidence stands against Johnson, but for some reason inexplicable to me is not led against Hall. The acceptance by the Crown of facts which do not reflect the criminality of what actually occurred is offensive to the victim and will, if it continues, bring the administration of criminal justice into disrepute, because victims will have a justifiable sense of grievance at Crown who wimp. I have no doubt these words terrified Mark Eynon, yet the person who caused that particular moment of terror is not to be held accountable for so doing.

The offender Hall got out of the car and went through the contents of the victim's boot, taking out a sledgehammer. The offender Hall made the comment to the victim, "Have you seen Misery?" They remained at Yarramundi for about ten minutes before the offender Hall drove the group back to Penrith. I note that the significance of the reference to the movie "Misery" is that there is a scene during which one of the character's ankles is broken with a sledgehammer. A significance well understood by Mark Eynon. They stopped at the Woolworths petrol station on Parker Street where Ersman purchased a packet of cigarettes.

The aggravated break and enter at Glenmore Park, this is the first matter on the Form 1 against Hall, it is the second matter on the Form 1 against Ersman and it is the second count of the indictment that Ian Johnson was found guilty of.

A short time later GH was dropped off at 120 Station Street, Penrith. Ersman drove Eynon to his house at Bursaria Crescent, Glenmore Park. Hall said to him, "I'm going to borrow the car, but I need some money and you're going to give me some to cover it". At the direction of Hall, Eynon unlocked his house. Hall entered. Eynon's unlocking the door amounts to a constructive breaking and, of course part of the offence of breaking and entering. Ersman and Johnson stayed in the car for a few moments before entering the house.

Hall began looking through Eynon's mother's handbag in the kitchen before opening the fridge and pouring himself a glass of apple juice. He drank from the glass and said, "There's your DNA". Hall and Johnson scanned other rooms of the house, trying to locate something to sell. They found a motorcycle in the garage, but Eynon said he did not have the keys. By this time Ersman indicated she wanted to leave. Hall settled on taking Eynon's Kodak digital camera which he removed from the camera box in the study. Just after 2am the three offenders left in Eynon's car, leaving Eynon behind in his house.

Of some significance in that passage is that the event was terminated at the request of Ersman. I understand her case to be that she was overawed by Hall and unable to do much. I simply point out that it was she that expressed the desire to go.

Eynon allowed the three offenders into his home only because he feared he would be assaulted further if he failed to cooperate. Once alone, Eynon contacted friends who drove him to Blacktown Hospital. It was observed there that he had sustained a heavily bruised and swollen right eye and cheek in the assaults that had occurred earlier that night. Following his medical examination he made a formal complaint to the police.

There is the third matter now on the Form 1 relating to Hall only. Again I ask why is this evidence not led against Ersman re her driving the stolen motor vehicle, but it is not.

At about 10.30am later that day, Hall, Ersman and GH were travelling in Ersman's stolen vehicle. Ersman was driving and pulled into the Quix service station at 238 Pacific Highway, Lindfield. Hall went to the rear of the shop and tried on a twenty dollar pair of Aerial brand sunglasses. He walked to the exit door. The console operator asked, "Are you going to pay for them?" He replied, "Charge me, just charge me", before shrugging and walking from the store wearing the glasses with the price tag still attached.

There is a fourth matter on the Form 1 which is led against Hall only, that is the aggravated break and enter at Parramatta. Again one might ask why Ersman is released from responsibility for her involvement in this offence.

At about 11:30am the three offenders drove to 5 Rosehill Street, Parramatta, Mark Glover's home. Ersman frequently contacted Glover for money, a fact well known to Hall. Ersman knocked on his door asking for money. Glover refused to let her in, rightly fearing she was still in the company of Hall and Johnson. They stood out of sight of the locked front screen door, Hall yelled, "You either let her in or I'll come in myself". Glover retreated to his bedroom where he called triple-0 for police. Hall forced entry to the front door and confronted Glover in his bedroom. Johnson followed him into the victim's bedroom. Hall said to Glover: "Mark, you know what I'm capable of. You saw that guy last night. I want money for rehab. I want 500. Rachel told me you've run her since she was twelve and you've been doing her since then. If you don't get my money, you know what I can do and I'll make sure everyone believes me when I tell them you're a paedophile. What do you think they will do to you then? I'll be waiting down the road and I want to hear what you've told the cops. You didn't see me break the door in, but if there's any trouble I'll come back and burn your house down. My parents run three brothels. I know how to deal with crap girls like Rachel." Hall and Johnson left, returning to the stolen car where Ersman was waiting.

A police officer, Senior Constable Dorey, approached the vehicle and requested identification from Hall. He produced his licence and was allowed to leave. I note that these police were unaware of what had just transpired.

Arrest of Ersman 33. At about 1.30 on Monday 5 November police sighted the stolen vehicle with five occupants on Pitcairn Avenue, Lethbridge Park. They stopped it. Hall fled the front passenger seat. Ersman was arrested and taken to Mount Druitt Police Station. Other passengers were spoken to by police and released without charge. Johnson was also in the vehicle, but needed to be taken to hospital after becoming seriously ill.

Possess Prohibited Drug; Third Matter on the Form 1 for Ersman 34. After being arrested, Ersman was searched. 3.4 grams of dried cannabis leaf was located in a resealable plastic bag inside a Long Beach cigarette pack in her handbag. During her ERISP interview she stated she had just scored before being arrested, claiming it was for her personal use and that she paid fifty dollars for it.

Take and Drive conveyance; Second matter on Form 1, first Matter in Form 1 for Ersman 35. The taking and driving of the stolen blue Commodore as described earlier in the judgement, paras 10 to 16, gives rise to the second matter in the Form 1 for Mr Hall and the first matter in the Form 1 for Ersman.

36. I should hasten to add that when taking it into account, I can only take into account the driving that is alleged against her, rather than the actual driving she did on the apparent undertaking made by the Crown.

Enter enclosed Lands; Fifth matter on the Form 1, Hall Only 37. At about 4.15am Susan Walker was asleep in her home at Papeete Avenue, Lethbridge Park. She was woken by Hall. He showed her his Parramatta gaol card in his name and his Medicare card. He tried to ring his girlfriend, but had no credit on his phone. Mrs Walker allowed him to use her phone to contact the girlfriend who was unable to come to pick him up.

38. He indicated to Mrs Walker that he had gained entry into the rear yard of Pitcairn Avenue, Lethbridge Park near where the police had last seen him running and had waited underneath her house for about four hours. He spoke with Mrs Walker for about an hour and begged her not to call police. She provided him with cigarettes and contacted his mother, having a phone conversation with her on the offender's behalf. She gave him a ten minute start before calling police.

The Arrest of Hall 39. On Wednesday 7 November police attended 8 Carmel Street, Glenbrook after becoming aware that he was resided there and arrested him. He was conveyed to the Penrith Police Station and subsequently charged.

Objective Criminality 40. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence, in this case the kidnapping, primarily, as an essential step in assessing the seriousness of the criminal behaviour of these offenders. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

I should stress that the starting point for recognising the criminality of the kidnapping or detaining type offences and the reason why it is so serious as to merit a maximum penalty of twenty-five years, is that the right of freedom and liberty is fundamental in a democratic country such as ours. Restriction of and even total loss of liberty is permitted to government and government authorities such as police and Corrective Services. No other authority is generally permitted to tamper with the rights of residents and citizens to be free, unless they have an order of the court. Even government cannot interfere with the liberty of citizens unless it does so pursuant to some order of a court or by reliance upon some particular legislative provision of the parliament.

Insofar as kidnapping and detaining offences are concerned, it is useful to assess the objective criminality of the offence against the following criteria: * The number of persons involved in the detention; * The relationship of the offender, if any, to the victim; * The mechanism by which the detention was achieved; * The purpose for which the victim was detained; * The harm or injury done to the victim; * The circumstances in which the harm was inflicted, (a) in the course of detaining, and/or (b) in pursuance of the purpose of the detention; * The period or duration of the detention; * The holding place where the detention was effected.

I am satisfied the detention was an undertaking in which the three offenders had a common purpose; to detain Mark Eynon. For some period of time the specific purpose of the detention was not articulated. The first glimpse is given well into the detention when reference is made to Eynon's "raping" Rachel Ersman. From the agreed facts it is clear no payment was made. There is nothing in the agreed facts or indeed in anything I have seen, save for an observation in the psychological profile of Ersman, that any sense of grievance by Ersman was occasioned relating to the consensual sexual intercourse occurring between them on Sunday afternoon.

In the agreed facts there is nothing to suggest she was seeking payment. Indeed it would seem she had been gifted with fifty dollars worth of cannabis. Hall could only have known of the Sunday episode of sexual intercourse from Ersman. There is no evidence Johnson knew of it until Hall made the accusation of rape. All offenders were abusers of drugs. As with many drug abusers, ready cash was not at hand.

While I am satisfied a decision to detain Ersman was made at least by Hall, GH and Rachel Ersman by 9 pm when Eynon was contacted and asked to return to the Penrith Centro Shopping Centre, I am not entirely convinced that at that point in time it was for the purposes of obtaining money. You see there is no demand made on Eynon when he is accused of rape to recompense at that time. The detaining charge to which Ersman has pleaded guilty is in terms where she has done so with the intent of obtaining both a financial advantage and the advantage of reprisal. Reprisal carries the connotation of retaliation for some injury. I reject any proposition implicit in this charge that Mark Eynon had done any injury to Rachel Ersman. She alleges none. As I said at the outset, he had feelings for her. I regard her as taking advantage of him. Reprisal also carries the connotation of inflicting injury, not necessarily physical injury, upon another. I am satisfied her intent was to do so, that is, to maintain an untruth to Hall, namely, that Eynon had failed to pay her in circumstances where she was performing as a prostitute.

It should not be thought that I find Hall was outraged by that, but he was prepared to use it to his advantage as an excuse for detaining Eynon. It is to be noted neither Hall nor Eynon ever demanded payment of outstanding fees during the detention period. Thus the initial purpose of the detention simply appears to give Eynon a terrifying time. Hall in particular and with the support of Ersman and Johnson physically, emotionally and psychologically abused an innocent, uncomplicated, knockabout bloke for their own psychological satisfaction in exercising physical and psychological dominance over him.

While I have crystallised Ersman's relationship to Eynon and what must be an abuse of that relationship, Hall and Johnson have no connection with him whatsoever, save for a chance meeting by Hall on 28 October. Neither had, nor could manufacture, a basis of any grievance against Eynon. The detention is achieved by physical overpowering of a man by two men - I have not seen GH, but Hall is a powerfully built young man - lured to Centro Shopping Centre by Ersman. As I say, in order to achieve the physical overpowering, Hall had GH accompany him.

I have determined upon the evidence the purpose of being detained. I note that as the hours passed, the focus of the detention changed to the use of Eynon's car and ultimately to the breaking and entering of his home for their own enrichment. I cannot be satisfied beyond reasonable doubt that the targeting of his home was a contemplated or original purpose of the detaining. Indeed my view is to the contrary. That would mean that the breaking and entering was an opportunistic offence.

I have referred to the physical harm that was done. There was bruising to Eynon's body, heavy bruising and swelling to his right eye and cheek. There was bleeding from his nose. All of that no doubt was minor to the psychological and emotional trauma occasioned to him. There is no victim impact statement or any psychological or psychiatric evidence touching upon the impact on him. Nonetheless I take judicial notice that many victims of crime suffer traumatic stress as a result of the commission of offences of a violence against them. That traumatic stress often graduates to a post traumatic stress disorder. This was an event so terrifying that Eynon must have suffered significant, if not severe traumatic stress during its occurrence. I cannot go beyond that.

The circumstances in which the harm was inflicted in this case are significant. Initially it was for the purpose of detaining, but it continued to be inflicted as part of the very purpose of the detention itself. So that that can be understood, the initial harm was inflicted in securing Eynon and then it was inflicted, particularly in the early stages at the house as part of the very purpose of the detention itself. Indeed when the decision is made to travel to Glenmore Park, there does not appear to be any gratuitous striking, stress or physical blows administered. Nonetheless, Eynon considered himself still threatened, as I say, and that was the basis of him allowing them into his house.

As best one can tell, the period of detention commences about 9.30 and terminates somewhere between 1.30 and 2.30am the following morning. That is something of the order of four or five hours. Many kidnappings last for days or weeks. By comparison, this one is far shorter . On the other hand, there are many kidnappings that last for less than an hour. Eynon was detained in a house in Station Street that was foreign to him, in his car as it was driven about and at his home until the offender's left.

The maximum penalty for a worst case is twenty-five years imprisonment. This does not, it would be obvious from what I have thus far said, qualify as a worst case. There was no maiming, no torture, no ransom demand, other family members were not targeted with demands or threats, the duration of the detention was relatively short, the physical injury was comparatively contained, but the psychological stress was no doubt of a high order. Even so, the offence is a nasty example of kidnapping. Its purpose was spiteful. During its currency, other offences against his property occurred. The objective facts clearly establish a level of criminality by all offenders meriting substantial imprisonment. Hall and Ersman bear responsibility for its instigation. Johnson was there for support and muscle, rather than for brain.

Subjective Matters 53. I turn now to subjective factors of all offenders. I am both entitled and required to do that. Not only am I sentencing for the criminal offences, but I am also sentencing each offender for them. Each offender coming before the court varies from other offenders who stand or have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of an offence by him or her or some reason why a more or a less sentencing outcome is appropriate. I start with Timothy Lee Hall

Family background and Relationships 54. Timothy Hall is a twenty-six year old single man. His parents separated when he was nine. Both still appear to support him. In February he was described by Probation and Parole as being in a de facto relationship of some twelve months. Five months later in a second Probation and Parole report the author describes "the offender's partner of three years", suggesting Hall is an unreliable historian.

55. He describes himself to the Probation and Parole Service as an only child of a "reasonably stable home environment". On the other hand in a long letter to me, he described himself as suffering depression: "As a result of a rough upbringing. I lived in a dysfunctional family where there was a lot of abuse and domestic violence...my mother's new partners did not accept me." Hall told Probation and Parole he was continuing to remain under his mother's care to this day, yet Probation and Parole Service note: "The accommodation arrangements are questionable as Mr Hall has been unable to be reached previously by this service at his mother's address."

Education, Employment and Skills 56. He left school aged seventeen with his HSC. He obtained a security licence. He completed occasional customer service training programs. There is evidence before the court that he was employed by Zenith, where he worked between 6 July 2007 and 6 October 2007 as a construction labourer. He told Probation and Parole he had been employed with construction for ten months. It was three weeks after the employment ceased with Zenith that this offence occurred. The employment, whether it be three months or ten months, on the evidence before me appears to be his only evidence of employment since leaving school. In his evidence he states he wants to find a place in the construction field where he worked before.

57. To his credit he has done a number of courses in prison. While they are not vocational in orientation, they did focus on giving him skills and strategies to deal with anger management, alcohol and drug minimisation and he has gained work experience at the Parklea Corrective Services as a sweeper. Although in that occupation he has had his share of problems.

Drug and Alcohol 58. He claims to have been using cannabis since the age of eighteen. He became a poly drug abuser by the age of twenty. Drugs of choice include heroin and amphetamines. He claimed to Probation and Parole his use of drugs related to his low self image and difficulty adapting to life's pressures. In his letter to me he claimed it was self-medication for depression caused by a dysfunctional family life. Again another example of being a poor historian.

59. What is clear is that at the time of his offending, his drug use was approaching the extreme. Whilst on drugs he was unfocused, narcissistic, mercurial, out of control, intolerant and intolerable. I am satisfied that during the detention of Eynon for much of the time he was disinhibited and unpredictable because of the impact drugs had upon him.

60. I am satisfied there is no causative link between his decision to detain Eynon and his drug use but I am satisfied of a causative link between some of his treatment of Eynon during the detention period as a consequence of his imbibed state through heavy drug use. I find there is a link between his breaking and entering and his needing of money to fund further drug purchases. I am cynical as to his expressions of a desire to rehabilitate from drugs. I have little doubt they are motivated by a wish to placate his supporters, including and particularly his girlfriend and his parents. I am not satisfied of their true sincerity, that is not to say he may not believe them himself. If proof were needed that he is insincere, one only needs to look at his history. He has been talking about rehabilitation for some time but doing all he can to be booted out of rehabilitation centres.

General Health 61. Mr Hall presents in court as a strong, well-built, twenty-six year old. So far as one can tell, he enjoys good health.

Mental Health 62. He admits in a letter to me a depression. There is a suggestion of bipolar disorder elsewhere in the evidence. That has been dismissed by him as merely the after effects of drug abuse. I have noted drug induced mood changes earlier in the judgment. I note comments about him presenting in prison in a highly agitated state and their concern, that is, the custodial official's concern, about self-harm, reported in the February PSR. I cannot rule out that there may be serious mental health issues that will impede his rehabilitation. At twenty-six though, it is only he who can accept responsibility for any mental health investigation of himself and if necessary any treatment of it. He does, however, have a character trait which suggests to me that he is unwilling to confront anything that is particularly difficult. For example, his drugs and the question of his bipolar disorder. He will have to confront that if he is to come to a stronger rehabilitation position.

Character 63. Hall is a twenty-six year old man with a partner of some time. In my view his partner is a modifying and good influence upon him. Nonetheless he is a wilful man. Probation and Parole describe him, after four years connection to the service, as having an unsatisfactory history. He also notes he has been dismissed from three residential facilities with a stated refusal by them to reconsider his admission; see the report of February 09.

64. The May 09 reports that a senior supervising officer said that at times Hall is perceived within the custodial system as "manipulative". The same officer in fairness does note his performance in custody has improved in recent months. The February report notes five institutional misconduct matters including failure to comply with correctional routine, unlawful reception of an article, fail urine test, unlawful use of phone, and possessing a drug implement.

65. While the offender has shown some willingness to do courses, his work history outside custody is weak. He appears to lack self-discipline. He has been before courts before, in 2001 for a mid-range PCA, in 2003 for possessing implements to enter a conveyance, take and drive conveyance, and a cutting weapon, drive manner dangerous, and goods in custody. I note that on that occasion, he was not at court. Ultimately he received a suspended sentence on one of these matters as best I can tell, on appeal from the District Court. I note again the lack of self-discipline, in respect of them he was called up for a breach of the bond, including a failure to comply with Probation and Parole. He was sentenced to imprisonment. There appears to have been a second call-up resulting in full-time custody and parole.

66. There were further motor vehicle matters in 2005 for which he received six months imprisonment. There was also a malicious damage charge and an offensive language. In 2008 after this offence but some demonstration of his attitude to drugs, there was a conviction for bringing a syringe into a place of detention. That may be a second counting of the disciplinary offence I earlier referred to, I am unable to say.

Attitude to Offence 67. In his evidence he claimed contrition. In his letter to the court he explains his involvement thus: "At one stage Rachel and I had a big argument" - and this is where the victim comes in - "she contacted Mark Eynon who was her client and drug supplier. He came and picked her up to get her from the hotel and away from me. Rachel was gone for about five hours then returned by herself. She was in an hysterical state, claiming that she had been raped, assaulted and robbed. She was crying uncontrollably and said that Mark Eynon had raped her. I was upset by this as I had grown a fondness for Rachel. I asked her if she wanted to call the police and she said 'No, it has happened before' and she would be okay. About a week later me, Rachel and my other co-offenders were at a house in Penrith where Mark Eynon contacted Rachel and said he wanted to meet up. Mark arrived and myself and CH approached him. I only wanted to confront Mark about what Rachel said he'd done. An argument ensued and I assaulted Mark as did CH. We walked him inside to apologise to Rachel. At no time whatsoever did I plan to detain Mark as I only wanted to confront him about the rape. Also at this time I had been using ice uncontrollably and had been awake for about five days. I hardly knew what I was doing. At one stage I even left to score drugs and returned and consumed them in front of him. After seeing Mark was still there, we decided to drive him home. We got back to his place, he opened up, we briefly entered then left. It was all over the place. I did not know what I was doing, I was extremely intoxicated by the ice and was in a terrible mental state".

68. It would be apparent from my judgment that there is much that has been written in that account that I regard as inaccurate or indeed untrue, and I regard it as a minimisation attempt by him of his criminality. It is hard to accept the proposition that one is sorry for an offence if the offence that the judge is considering or the court is considering, is so substantially different from the offence that the offender claims to have been involved in. It would appear there is still a lack of clear thinking by Hall as to his real position, as to whether the prosecution case against him is overstated or exaggerated, or if not, whether he really does understand the enormity of his anti-social act that he, with others, orchestrated.

Rehabilitation Prospects 69. Unless and until Mr Hall becomes fair dinkum about dealing with his drug abuse, and if he has them, mental health issues, his rehabilitation prospects are at best, clouded.

70. His past record indicates ill self discipline and a lack of respect for the law. However to date it has not shown any criminal interest in crimes of violence. He appears to have strong support from his girlfriend, who I note is not a drug user, and his own family. There are positives in his rehabilitation indicators. His recent performance in prison, his past education achievements, are consistent with a capacity for self discipline and should be seen as positive. His courses in prison, which I should say the duration of which are measured in hours rather than days or weeks, is also a small positive indicator.

71. While there are some positive indicators, such as his period of employment, they stand overwhelmed by his deeply entrenched drug abuse and his unwillingness to seriously confront it.

Rachel Ersman- Family Background and Relationships 72. She is a twenty-year-old woman with no children. She was an only child. Her parents separated when she was eight months old. She never knew and has had no contact with her biological father, although in recent times she has begun to search for him. There are three step-siblings with whom she is in regular contact. During the period that she was on bail I note that she was living or residing with her parents.

73. She had, however, left home at the age of twelve and ended up living on the streets. During her earlier life she moved three or four times to various Sydney suburbs. At the age of twelve she was told her stepfather was not her biological father, the consequence was that she was devastated. Her mother claims the home was drug and violence free. Ersman in fact was motivated to leave the home because she became aware of the real status of her stepfather.

74. She has the support of a recent boyfriend, Antonus, with whom she lived for some five months prior to returning to prison. There was an earlier relationship of two-and-a-half years. That relationship broke up shortly after she had an abortion.

Education, Employment and Skills 75. During her primary school years Ersman attended Westmead, Narwee, Peakhurst and Smithfield primary schools. She began at Westfield Sports High School which must mean that there are some sporting talents, although they have not been aired in evidence before me. She ran away from home. She left high school in Year 7.

76. In 2008 she began to attend TAFE doing literacy, numeracy, computer and office skills courses. Whilst in custody she is doing communication and job seeking skills courses. She had obtained her Occupational Health and Safety Certificate. She earned money in her teenage years through prostitution. She was cared for at some level, and she says reasonably so, by the brothel owners. She claims Hall and CH procured private clients for her and she in return supplied them with drugs.

Drugs and Alcohol 77. Ersman claims no issue with alcohol but has a long and entrenched drug history. Aged twelve she was introduced to cannabis and was quickly smoking up to twenty cones daily, a dangerous level. At that level the potential for serious impact upon mental health is great if not huge. She moved on to ecstasy, amphetamines and crystal methamphetamine. She was spending $150 to $200 daily on her drug needs. While associating with Hall and CH she says the money she spent on drugs tripled. During the Supreme Court bail period she made a genuine attempt to stop using. She attended counselling at Pathways. There was a relapse she says as she became involved with old associates and she ultimately returned to custody. She claims drug freedom since returning to custody. She is willing to do full-time rehabilitation. She has been accepted by Odyssey House for induction into the full-time rehabilitation program. It is a twelve months program. The induction period is six weeks. It requires close monitoring of clients for drug use, particularly through urine analysis twice weekly.

General Health 78. Rachael Ersman reported to Anna Robilliard, well known forensic psychologist, that she had undergone health checks in custody and all her results had been clear. She was treated for epilepsy as a child. Her last fit occurred when she was aged nine. She has been off any medication for epilepsy since she left home.

Mental Health 79. She has been assessed by Anna Robilliard as at a below average intelligence level, but Ms Robilliard observes that may well be because of early leaving school and lack of mental stimulation. Robilliard thinks she is more likely to fall within the average range. While there are mental health issues there do not appear to be any anti-social or any other disorders or diagnosed conditions.

Character 80. She is to be assessed as a twenty-one-year-old woman who left home aged twelve, fell into a lifestyle of prostitution and dependency upon pimps and drugs. Her opportunity for intellectual and moral stimulation was limited in the extreme. She had, given her lifestyle, avoided trouble pretty much with the law. There are two appearances before the Children's Court in 2006, convictions for assault on each occasion and one before the Local Court for possession of prohibited drugs.

Attitude to the Offence 81. She told Probation and Parole the offence was all over fifty dollars that she had not been paid. She told Anna Robilliard, Eynon had paid her the fifty dollars which was less than the amount he generally paid her. When she asked him for more he said that was all the money he had. Ersman told Robilliard that she probably did not make a big issue of it although she later told Hall and CH.

82. Ersman concedes that on 3 November she arranged to meet Eynon knowing that Hall and CH intended asking for money and that she was shocked when they proceeded to assault him at the residence. She says she was "as high as a kite". As with Hall's account I reject this account. It is inconsistent within itself. It is inconsistent with Hall's account, although that account was not evidence against her. It is also inconsistent with Eynon's account, although that is not in evidence against her. However, there was nothing said by her to Eynon at the time that is consistent with the Sunday intercourse being a "work job". As I pointed out when I read the facts, the idea of sex appears to come from her. Nor does her account allow for the fifty dollars of cannabis that she was apparently gifted. I regard this account as self serving and minimising her role.

83. Again I should note Anna Robilliard recalls her as profoundly self critical, upset for not ringing the police or assisting Eynon. In evidence and to Robilliard she says she wants to make a face-to-face apology to Eynon. She acknowledges to Probation and Parole she "played a part" in arranging the meeting.

Rehabilitation Prospects 84. Ersman has indicated a willingness to undertake full-time rehabilitation. Her family have been supportive while she has been in prison. Antonus is also supportive of her undertaking full-time rehabilitation and is supportive of her. In my view she should be given an opportunity to enter full-time rehabilitation, particularly with the motivation, and I intend to make that motivation crystal clear, of the full-time custody being held over her head.

Ian Johnson - Family Background and Relationships 85. Johnson is a twenty-five-year-old single man from a disruptive past. He comes from a disruptive family environment. To date he has declined to open up to anyone in authority the real details of his family life. He did, however, strike up a relationship with Rodney Hall, initially in a work environment. Rodney Hall is a mechanic. Johnson's father had just died. Johnson as I say was working in a panel beating shop and Rodney Hall offered him a bed at the home. Johnson apparently to Rodney Hall at least spoke well of his own father. He came to regard Rodney Hall, as I said earlier, as a surrogate father. That appears to be right. Rodney Hall has been willing to accept and he takes calls from Johnson daily. Clearly he is an important person in Johnson's life. Other than Rodney Hall it is likely Johnson is socially isolated. There do not appear to be any significant others. Timothy Hall was, but Johnson now regards that contact as unhelpful to him and seems to be disavowing him.

Education, Background and Employment 86. Johnson left school aged fourteen, commencing work in various unskilled labouring areas. He completed his certification in smash repairs. He has an employment history, mainly of short term jobs, but appears to leave them over pay disputes. He has been on Youth Assistance between jobs and was receiving it prior to his incarceration. He has worked hard whilst in custody at the metal workshop, having completed an anger management course and three general literacy programs.

Drugs and Alcohol 87. At the time of his offending he was abusing drugs. He reports current sporadic use of cannabis and amphetamines. Again he was not forthcoming in giving information regarding the extent and nature of his drug use.

General Health 88. As best one can tell there are no serious ailments that would impede his rehabilitation progress.

Mental Health Issues 89. There is no mental health profile before the court. What is clear though is that he does experience anxiety, perhaps even to a disabling level. He has difficulty also in confiding even to professionals. In my view he would benefit from counselling, addressing his social anxiety and perhaps related self image issues.

Character 90. He is a twenty-five-year-old single man, socially insecure, anxious, although with a reasonable study and work ethic. He has some court history, 2005 unlicensed driving and possess prohibited drugs, 2007 drug charges and being carried unlawfully in a conveyance. He was dealt with in 2008. There were larceny charges before the Children's Court in 1999, malicious damage in 2002 and other driving offences in 2006. There were also further drug charges that occurred after the offence I am dealing with. They would be the 2008 charges. Their only relevance go to his prospects of rehabilitation in respect of drug use. Whilst in custody he has been well regarded by supervising officials who note a willingness to work and his efficiency are said to be his strong points.

Attitude to Offence 91. Although he ran a trial he now says he was in the wrong place at the wrong time. He made a mistake in remaining at the premises and he has learnt from that mistake. Whilst in custody he has been subject to no institutional charges and been actively employed. As I say he has completed an anger management course.

92. Johnson is taciturn, meaning he does not speak much, keeps very much to himself on the privacy issues. Probation and Parole observe that they have been unable to engage him in discussion of the offence, contributing factors to it or possible areas where he could be supported. They found him guarded when they tried to explore family, education, employment, drug and alcohol issues. Rehabilitation can best come through dialogue or discussion between counsellor on the one hand and the client on the other. That avenue in this case appears to have limited prospects of success whilst ever Johnson remains suspicious or embarrassed or anxious or otherwise uncooperative. On the other hand his custodial conduct demonstrates a willingness to work hard and get ahead. But given his range of issues I still think he needs professional help. I would regard him as a good prospect for rehabilitation, particularly if he would be willing to verbally confront with a counsellor issues from his past and his drug use.

Plea status 93. Hall was committed for trial, I stand to be corrected here, it is my understanding he was committed for trial, his plea was entered before the District Court. In those circumstances a fifteen per cent discount will be allowed to him.

94. Ersman was committed for sentence, her plea was entered before the Local Court. In her case I would, if giving a sentence, have given a twenty-five per cent discount.

Deterrence 95. This is a case in which deterrence, both personal and general, is required. Not so much personal deterrence in respect of the violence, but personal deterrence in respect of the drug use which is in part responsible for the violence. In my view it is unlikely that any of the offenders will get into a violent offence as serious as this again unless they remain drug abusers.

96. I have mentioned that the maximum penalty for a principal offence which is the detainment is one of twenty-five years with a standard non-parole period of five years. In my view in respect of Johnson who ran his trial on that issue his criminal liability falls below a mid-range. My reasons for saying that are that he was not the instigator, nor the formulator of the idea of the break and enter. He was not the first to enter. He did not stand next to Eynon as Eynon was forced to unlock the door. He remained for some short time in the motor vehicle. He is not attributed with being the person who carried any booty from the house. And as I say his level of involvement was that of a foot soldier.

97. In respect of the other two offenders, their involvement, and I can also include Johnson in this, occurred as the final stages of a detention. That may well be a factor that would aggravate it. There was no damage to property in the course of the break-in. The will of Eynon had already been well and truly overcome and it was simply a case of taking advantage of it at this time rather than actually breaking his will for the purpose or overcoming his will for the purpose of making a break and enter.

98. The booty that was taken was a digital camera. It was not clear to me on the evidence whether it has been returned and I think I must have assumed that it has not been. There was no ransacking of the house and the female member of Eynon's family that he was staying with, his mother, was not present at the time of the intrusion. In fact my understanding of the evidence is the only person present during that break and enter was Eynon himself. In those circumstances I would also find the objective criminality, although coming much closer to a mid-point by the other two, does not reach that. I note, however, that because of the pleas of guilty I am not compelled to apply the standard non-parole period, although it does take some aspect in the sentencing.

Parity 99. I regard Hall's criminality as being greater than that of Ersman's or Johnson's. He is the moving force behind the detention and the moving force behind various acts of violence that occurred during the detention and the moving force behind the movement to the car and ultimately the moving force in the decision to break and enter the premises where Eynon lived.

Ersman is responsible for supplying false information to Hall in respect of the sexual encounter with Eynon. While it is speculative, it is likely she did so because of inquiries made by him as to what had occurred between Eynon and herself. In other words, I do not find that it was she who initiated the conversation, but rather that she who gave the account as a response of inquiries.

I cannot rule out the possibility that there were some pressures that she felt in speaking to Hall, not so much a physical force but rather of some disapproval or some sense that he may disapprove of her having had intercourse with somebody else, consensual and free intercourse with somebody else on the basis, one, that she believed that she was fond of him and interested in him as a prospect and secondly, that she was giving to him, at least in kind, that is, by drugs, some of the benefits of her work. So that she may have felt in that sense some pressure to be untruthful to him.

I have concluded she also played a part in luring Eynon into a trap. That would be consistent with the untruthful account she gave. I accept she did not foresee the degree of violence or humiliation that would come to Eynon at the hands of the trio or quartet at some of the time. Nonetheless, she did nothing to stop it and her presence was support for the offenders and an added source of disappointment and humiliation for Eynon.

As to Johnson, he played the role of the foot solider and is entitled to be regarded as the least culpable.

So that when considering the issues of parity I also have to consider the roles of each of the offenders. A sentence I would have imposed on Hall but for his plea of guilty and taking into account the five matters on the Form 1 is a sentence of five years imprisonment, an overall sentence of five years imprisonment. If I apply a fifteen per cent discount to that it becomes an overall sentence of four years and three months imprisonment.

Special Circumstances 105. I can indicate that I find special circumstances. Those special circumstances in the case of each of them would be their youth or their relative youth, their need for rehabilitation, particularly drug rehabilitation, which in my view cannot be achieved in the artificial environment of a single sex environment or authoritarianism such as prison but rather in the cut and thrust of a community environment. It is in the community that they must learn to handle themselves, not in a prison.

106. I am not going to sentence Ersman to a sentence of imprisonment at this time but I want her to know what it would have been or what it may become. Taking into account the three matters on the schedule I would have said an overall sentence of four and a half years imprisonment. When reduced by twenty-five per cent, that becomes three years and four months. I would have divided that into two periods of twenty months each, one year and eight months. On the other hand, I intend to give her bail to go to rehab. Should she fail, she can be in no doubt what will be there for her. In the event that she is successful at rehabilitation, which will take her some eighteen months, I will suspend the twenty months that I would have given her as a parole period as a suspended sentence.

Johnson 107. In respect of the offence of detain I would have set an overall sentence of three years. In respect of the break enter and steal I would have set a sentence overall of fifteen months. I have found special circumstances and the sentence that I will impose will be one of two years for the detain and ten months for the break and enter. Mr Crown I need to know the dates from which these sentences are to date from.

Mr CROWN: Date of arrest 7 November 2007 and he's been in custody since that time your Honour.

HIS HONOUR: Mr Hall, in respect of the offence that you on 3 November 2007 and elsewhere in the state of New South Wales did detain Mark Eynon without his consent with the intention of obtaining an advantage under circumstances of special aggravation, namely, that you were in the company of CH and Ian Johnson and immediately before the time of the detention, actual bodily harm was occasioned to Mark Eynon, You are sentenced to a total sentence of two years and three months. That sentence will date from 7 November 2007 and will expire on 16 February 2010. I set an additional term of two years to expire on 6 February 2012. Your first eligible date for release will be 6 February next year. I don't know what that is, another seven or eight months to go. I cannot guarantee you will be released on that date because you will have to impress the Parole Board. It is their decision not mine, do you understand? They will not release you if they think there is a likelihood that you will re-offend or that you have not got up to the mark on drug abuse or whatever, you are still perhaps committing offences in custody. All I can do I give you the date. The only person who can get it is you. Do you understand that? Ms Ersman I will come to you in a minute.

108. Mr Johnson, the jury found you guilty and I convict you of the offence that you on or about 3 November at Penrith and elsewhere did detain Mark Eynon without his consent with the intention of obtaining an advantage in circumstances of special aggravation, namely, being in the company of Timothy Lee Hall and CH and that immediately before or at the time of the detention actual bodily harm was occasioned to him.

109. In respect of that offence, you are sentenced to a non-parole period of two years to date from 4 December 2007 and to expire on 6 November 2009. Your balance of term will expire on 6 November 2010. I have a power in your case, because your sentence is three years or less, to order your release on that date and I do so. I order you be released on 3rd December 2009. That means provided there is no other matter holding you. In respect of the other matter that the jury found you guilty of, I convict you of the same, on 4 November at Glenmore Park, breaking and entering a dwelling house at Busaria Crescent, Glenmore Park and in that dwelling house committing a serious indictable offence, namely, stealing a Kodak digital camera which was the property of Mark Eynon in circumstances of aggravation, namely, that you were in the company of Mr Hall. In respect of that offence I sentence you a non-parole period of ten months to expire on 3 October 2008. You have already served that sentence by the way. And I set a balance of term to expire on 3 March 2009. That also appears to be expired. So there will be nothing, at least in my court, holding you beyond 4 December 2009. Is there any other matter? Mr CROWN: Just in relation to Mr Johnson your Honour, there is a related matter which--

HIS HONOUR: The 166 matter, is it? Pursuant to s 166 of the Crimes (Sentencing Procedure) Act in respect of this charge that is currently before the Local Court of without the consent of Mark Eynon taking and driving his blue Commodore Holden Sedan between 3 November and 4 December at Penrith, you are convicted and sentenced to six months imprisonment to date from 4 December 2007 and expire on 3 June 2008. It's done.

HIS HONOUR: Ms Ersman has been accepted into Odyssey House. I understand that she wants to go there, is that right? (Thereafter s. 11 conditional Bail was granted to the offender Ersman)

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