R v Newell

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0207 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60056/04

BELL J HOWIE J HISLOP J

FRIDAY 11 JUNE 2004 R v DAVID NEWELL Judgment 1 BELL J: I agree with Howie J. 2 HOWIE J: On 1 August 2003 the applicant was arraigned before the District Court on an indictment containing two counts. The first count alleged that he did on 4 March 2003 detain [the victim], without her consent, with the intention of obtaining an advantage, and at the time of the commission of the offence, actual bodily harm was occasioned to her. That is an offence contrary to s 86(2)(b) of the Crimes Act and carries a maximum penalty of 20 years imprisonment. The second count on the indictment was that he did, on the same date, possess a prohibited weapon, namely, a side handled baton. This offence is contrary to s 7(1) of the Weapons Prohibition Act, and carries a maximum penalty of 14 years imprisonment. 3 The applicant pleaded guilty to both charges. He had previously pleaded guilty before the Local Court and was committed for sentence, but there were defects in the committal document that had to be cured by the presentation of an indictment. On 13 August 2003 the applicant was sentenced by Freeman DCJ to a term of imprisonment of 8 years with a non-parole period of 5 year for the first count, and a fixed term of 18 months for the second count to be served concurrently with the sentence for the first count. The sentences dated from 4 March 2003 and the applicant is eligible for release to parole on 3 March 2011 4 The applicant relies upon the following three grounds:

Ground 1: His Honour erred in calculating the discount to be given to the Applicant at 20%

Ground 2: His Honour erred in assessing the criminality of the Applicant at the middle range of seriousness of offences contemplated by section 86(2)(b) of the Crimes Act

Ground 3: His Honour's sentence of the Applicant, in respect of both sentences, was manifestly excessive

Facts 5 There was an agreed statement of facts tendered before the sentencing judge that can be summarised as follows. On the day of the offence, the applicant was driving home from voluntary work when he saw the victim hitchhiking on Scenic Highway, Kincumber. At some stage after he stopped and picked her up, the victim asked the applicant whether he wanted to purchase any drugs from her. She also offered to perform oral sex on him. After obtaining money from an ATM, the applicant drove to a location where he stopped the vehicle and consumed several beers and two small pieces of paper, which he believed to be LSD and that he had purchased from the victim for fifty dollars. The victim then proceeded to perform oral sex on the applicant, for which he paid a further fifty dollars. This was followed by consensual sexual intercourse. 6 The victim then asked the applicant for more money, at which point the applicant, in his words, "lost it … just had a brain explosion". The response of the applicant was such that it caused the victim to alight from the vehicle and start to run away. The applicant chased her and grabbed her by the hair, but lost his grip. She fled and he pursued her. This time he succeeding in taking hold of her and dragged her back to the vehicle. There he tied her wrists together using plastic cable ties and rope. 7 The victim again attempted to escape, but the applicant re-captured her and then bound her ankles and wound rope tightly around her breast and neck. He then laid her on the rear seat of his vehicle and covered her with a tarpaulin. He threaten her that "if you speak I'll fucken stab ya". He then proceeded to drive the vehicle in a direction away from his home. 8 A short time later the vehicle came to a stop due to a mechanical fault and the applicant phoned for a towing company. He threatened the victim not to move and pointed a chainsaw file at her. He tied electrical tape around her head and through her mouth to prevent her from speaking. The tape was pulled so tightly that it cut into her mouth on either side. He also used rope to tie her head to the bottom of the rear seat to prevent her from lifting her head. When the tow truck arrived, the applicant turned up the volume of his car radio so that the victim's screams would not be heard. 9 The applicant's vehicle was then towed to a paddock on his property. The applicant went inside and consumed some more beer. He then removed the victim from the vehicle and placed her into a wheelbarrow, which he covered with a tarpaulin. He then wheeled her away from his house towards bushland. He removed her from the barrow and tied one end of a piece of rope around her neck and attached the other end to a log. He left the victim in this position and returned to his house, saying that he would return in 20 minutes. 10 The victim managed to secure her release by untying the rope binding her legs and that around her neck attached to the log. She began to run away, but the applicant was at that time returning from the house and caught her, dragging her back through the bushes. He retied her to a tree before again leaving her. 11 The victim made a further, this time successful, attempt to escape. She made her way through bushland to a road where she was able to flag down passing motorists. She still had ties around her wrists and tape around her neck and face. These were removed by members of the public while they waited for police. 12 The victim suffered severe swelling to her hands. She had cuts and abrasions over most of her body, particularly to her arms and legs. 13 Police searched the applicant's home on 4 March 2003 and they located a side handled baton. The applicant was contacted by telephone and asked to attend the police station, which he did. After being interviewed he was arrested and charged with a number of offences. 14 During the course of the interview the applicant admitted to police that he had tied up the victim after she asked for more money, but he said he had no idea why he did this. He told police that, while he was trying to tie her up, the victim was yelling, crying and screaming. When the applicant arrived at the property, his vehicle being towed there, his partner was at the house and he had spoken to her on the phone when the vehicle broke down. He removed the victim into the bush so that she could not be heard yelling and screaming at the house. He told police that he did not know what he intended to do with the victim but he tied her up so that she could not go anywhere. The applicant admitted to police that at one stage he tried to force his underpants and socks into the victim's mouth. He also admitted that the victim asked him whether she was going to die and he said, "No".

The sentencing proceedings 15 The applicant gave evidence before the sentencing judge. He stated that he had not planned to do anything with the victim. He said that, after she had performed fellatio on him, they had sexual intercourse, and it was then that she asked him for more money. He became angry and confused. He said that while she was tied up to the tree on his property, he obtained a can of insect repellent, so that she would not be bitten by mosquitoes. 16 The applicant was aged 32 at the date of sentence. He had been in a long-term relationship with a woman and they lived in a farmhouse on a property owned by his father. He had one child aged 7 years to his partner and she had a child from another relationship aged 16 years and who lived with them. That relationship had ceased by the time of sentencing, with his partner expressing the view that they would not be reconciled. 17 The applicant's background was unremarkable and he has caring and supportive parents. He has been mostly in steady employment and is regarded as a reliable employee. He has a minor criminal record of little relevance other than that in November 2001 he was fined for a number of offences relating to his unauthorised possession of an unregistered firearm. The applicant admitted in evidence that he had "a problem" with alcohol, drugs and pornography. 18 There was in evidence a pre-sentence report, but some of the observations and opinions of the officer were disputed. His Honour rejected one sentence on the basis that the officer did not have the expertise to make the finding contained in it. The officer was required to give evidence and was cross-examined at length as to certain factual matters and findings that he had set out in his report. In particular, the officer's view as to the lack of contrition shown by the applicant was hotly contested. 19 In that regard the applicant gave evidence, through leading questions, that it was difficult for him "to tell people how you feel inside" and that it had always been that way. He was asked about trouble that he had sleeping after the offence because he was "going over the incident and wondering how the girl felt". He had formed the view that "during the incident she would have been terrified and she would have been, her and her family would have been traumatised afterwards". When he considered these things, he felt "pretty bad". 20 The applicant's former partner gave evidence, through leading questions, that the applicant had an inability "to effectively communicate what he's feeling inside". She believed that he had "feelings of intense grief…..but he keeps it to himself". She said that he had never physically abused her or the children, and that generally he would walk away from arguments. 21 There was also in evidence a psychiatric report prepared for the sentencing proceedings. There is little in that report of relevance. The applicant told the psychiatrist that he did not experience sexual arousal during the offence nor were his actions consistent with any sexual fantasy experienced by him. His parents told the psychiatrist that they believed the offence was out of character. The psychiatrist opined that the applicant had a history of alcohol abuse but no other pre-existing psychiatric condition.

Ground 1 Discount for plea and contrition 22 The first ground complains of the discount awarded for the plea of guilty. His Honour said during the course of his remarks:

Clearly the prisoner is entitled to the benefit of a discount because of the early stage at which his pleas were entered. Not only do his pleas have the standard utilitarian value, I think it must have been seen as having the very distinct advantage of avoiding putting his victim through the trauma of the trial. I have no doubt that a trial would have been especially traumatic and unpleasant for the victim. However, his Honour went on to note that he had seen "little in the way of appropriate contrition or remorse". His Honour referred to answers in the record of interview and statements in the psychiatric report, but concluded that "there was no volunteering, nor indeed any eliciting of any regret or concern for the girl". 23 In respect of the probation officer's opinion, his Honour stated

The presentence report specifically makes the point that there is little in the way of concern for the girl. Consequently there were a number of attempts made in the cross-examination of [the officer] to point him as being biased, having lost objectivity and so on. In my view those attempts were not successful.

His Honour referred to the evidence given by the applicant and noted that the contrition "came very late, was in [a] mannered way of delivery and did not, to me, sound like [a] convincing expression of genuine remorse and contrition". 24 His Honour then stated:

Nonetheless it has been said (sic), and taking into account the additional value to the utilitarian (sic), I have determined that a twenty per cent discount from the sentence I originally regard as appropriate should be applied. 25 Leaving aside the question of the appropriate discount for the utilitarian value of the plea, I do not believe that any error is shown in his Honour's assessment of the contrition, if any, shown by the applicant. This is a question of fact, and this Court would only interfere if his Honour's finding was not open on the evidence or was inconsistent with the evidence. I am far from satisfied that this is the case. The suggestion made in written submissions filed on behalf of the applicant that his Honour should have found contrition in the fact that the applicant did not seek bail pending the outcome of the sentencing is untenable. 26 Significance is also placed upon the asserted fact that the admissions to the police had assisted the Crown case and, without them, the prosecution would have been met with difficulty "not the least of which would have been the credibility of the victim herself". In light of the state in which the victim was found and the objects located at the scene and in the applicant's motor vehicle, in my view the Crown case would have been overwhelming. 27 In any event, a finding of contrition may lead to a discount in the sentence but it does not have to do so in any specific amount, either in connection with a plea or as a discrete matter. Contrition is so bound up with other factors involved in the synthesis that resolves into an appropriate sentence that I have difficulty seeing how it could ever be the subject of a particular discount without double counting. For example, contrition is so fundamental to an assessment of the rehabilitative prospects of the offender and a determination of the likelihood of further offending that I do not understand how those matters could be taken into account without also taking into account that the offender was contrite. So much was recognised in R v Thomson and Houlton (2000) 49 NSWLR 383 at [116]. 28 There is perhaps more merit in the complaint that his Honour allowed only a discount of 20 per cent for the utilitarian value of the plea in a case where the applicant pleaded guilty in the Local Court, and made admissions to police. In R v Hanslow [2004] NSWCCA 163 at [27], also an application for leave to appeal from a sentence imposed by Judge Freeman, I commented on the fact that his Honour had granted a discount of only 20 per cent for the utilitarian value of the plea in a case which clearly called for the maximum discount available and expressed concern that his Honour was not exercising the discretion appropriately. But in the present case his Honour was, with respect, entitled to determine that the appropriate discount was 20 per cent, otherwise the guideline in Thomson and Houlton is converted into a rule; see R v Newman [2004] NSWCCA 113. 29 I am unpersuaded that the ground has been made out. Certainly the applicant' contention that there should have been a quantifiable discount for plea and contrition of 30 per cent is without foundation.

Ground 2 The seriousness of the offence 30 The next ground of appeal is that his Honour erred in determining that the offence fell towards the middle range of seriousness for an offence of this nature and thus a starting point of 10 years before applying the discount for the plea was too high. The applicant's solicitor urged on this Court, as he did to his Honour, that the offence was at the lower range of the scale of seriousness. Once more the determination of the seriousness of an offence is, generally, a matter of fact finding and within the discretionary judgment of the sentencing judge. But I would make the same assessment that his Honour made: it was an offence of at least middle range seriousness. It was a matter for his Honour how that finding translated into a particular starting sentence. 31 The applicant's solicitor sought to argue from the terms of the section and the second reading speech that in some way the finding of the judge was inconsistent with the intention of Parliament in re-drafting the provisions relating to kidnapping with the repeal of s 90A. The argument is, as I understand it, that because the advantage sought to be obtained was not ransom, the offence must be considered to be less serious than if it were and, therefore, could not merit a sentence within the middle range for an offence of its kind. That argument is, in my opinion, completely without merit. I do not believe that there is any purpose to be served in considering the second reading speech when assessing the seriousness of a particular instance of an offence against the maximum penalty prescribed. 32 The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence. In particular, simply because the section makes reference to one specific type of advantage, that is ransom, it does not follow that the presence or absence of that particular type of advantage is decisive in a determination of the seriousness of the particular offence before the court. In any event, I am not persuaded that, before an offence can come within the most serious category of an offence falling within the scope of the section, the detention must be for the purpose of ransom. 33 In the present case the offender was unwilling or unable to express the intention with which he acted or the advantage he sought to achieve by detaining the victim. Of course he pleaded guilty and, thereby, accepted that he did act with the intention of obtaining an advantage. It is clear beyond doubt that he detained the victim intending to obtain an advantage for himself whatever that advantage might have been. Even if, at the time of her escape, the offender had not determined what benefit or advantage he was ultimately to obtain from the victim's captivity, that fact does not seem to me to be a matter of mitigation or to detract from the seriousness of his course of conduct toward the victim. 34 During the course of his remarks, after noting that he must avoid double counting for the injuries suffered by the victim, Judge Freeman stated:

The girl was badly scratched, suffered the abrasion which I have recounted but apparently suffered no broken bones or other more significantly threatening injury. She was kept bound, with ties and tape cutting into her mouth……She was dragged to and frow. She was covered, threatened and later carried by barrow into the bush. Her expectations must have been that worse was to follow with the possibility if not the probability of a fatal outcome. Her ordeal went on for four hours. I do not think this is an example which can be said to fall towards the lower end of the range of offences of this nature. 35 The submission was made in written submissions but not pursued at the hearing that, in the absence of specific evidence, the court could not take into account the effect of the detention on the victim and what "expectation" she may have formed about what the offender intended to do to her or the purpose of her detention. It was argued that the court should be cautious when drawing a conclusion about the effect of the detention on this particular victim because she was a hitchhiker who offered to sell the applicant sex and drugs. I frankly do not understand that submission. It is not surprising that it was abandoned. It would offend commonsense to suggest that a victim, who was bound, gagged, threatened with being stabbed and finally tied to a tree in bushland by a stranger who pursued her every time she sought to escape, would not be in terror of her kidnapper and what he might do to her. It is not fanciful to find that the victim would in such a situation contemplate the worst, whatever criticism might be made of her character or reputation. 36 The applicant seeks to rely upon the fact that, although the victim was only 15 years old, he though she was 18 or 19. I do not believe the fact that the applicant believed that the victim was older than she was is of any significance in evaluating his culpability for his conduct toward her. 37 While it may be accepted that the victim did not receive any serious injury, it does not follow that the offence was not one falling within at least the middle range of seriousness having regard to all the objective circumstances of the offence. Had the injuries been more serious, the sentence would have approached nearer the maximum sentence for the offence. The offence carried a maximum sentence of imprisonment for 20 years and the whole of the applicant's conduct and the consequences for the victim had to be considered when determining how serious the offence was as against the maximum sentence prescribed. 38 This ground is not made out. It was well within his Honour's discretion to consider that the offence was one warranting a starting sentence of 10 years before discounting the sentence by reason of the plea of guilty.

Ground 3 A manifestly excessive sentence 39 It was submitted that his Honour made a number of errors that, in combination, caused his discretion to miscarry such that this court should intervene. 40 The first contention is that his Honour failed to place sufficient weight on the fact that the applicant ingested a prohibited drug sold to him by the victim. I do not understand it to be a mitigating fact that a person commits an offence as a result of the effects of a prohibited drug taken voluntarily by the person. In some cases, where, for example, the person knows the effect that the drug or alcohol is likely to have upon his behaviour, it may be an aggravating feature of the offence. It may be a matter of mitigation that the person commits an offence that is out of character by reason of the effect of intoxication, but this is not generally so where the substance taken is known by the offender to be a prohibited drug: R v Coleman (1990) 47 A Crim R 306 at 327. The obvious difference to the approach between the effects of alcohol and a prohibited drug is that the ingestion of the latter is itself illegal because of the deleterious effect of it on a person's mental state and behaviour. 41 The applicant's solicitor seems to find some significance in the fact that the victim sold the applicant the drug that may have affected him. I am quite unable to see the relevance of that fact at all. The applicant voluntarily decided to buy the drug and obtained money for that purpose and to pay for the victim's sexual favours. He no doubt took the drug for the effect it would have on him and he took the risk of the consequences of his actions as a result. If that consequence was that he acted in any abnormally aggressive manner and over-reacted to the victim's request for more money, so be it. In my view the resultant conduct was so serious that there was no mitigation in the fact that it might have been caused by the effect of what he believed to be an illegal drug upon him. Also the fact that serious criminal conduct may have elements of the bizarre or extraordinary about it does not make it any less liable to be punished for what it is. 42 In any event, his Honour treated the taking of the drug as being neutral as he was not satisfied that it had any effect upon the applicant or at least that it gave rise to his criminal conduct. That was the most favourable finding that the applicant could receive. 43 The Court has been referred to statistical information, notwithstanding that the applicant's solicitor appreciates its limited value. Statistical information may have value in an appropriate case to indicate a range of sentences for offences where there is a predictable similarity in the conduct amounting to the offence. I doubt that offences under s 86 will be sufficiently homogenous that a reference to statistics alone will be of much assistance. But even if a range could be established, it does not follow that a sentence for a particular offence or offender has to fall within that range. It is merely a sounding board upon which a particular sentence may be judged. In this case there is nothing in the material that makes this particular sentence ring untrue. 44 The applicant has relied upon a decision of this Court in R v Anforth [2003] NSWCCA 222. That was a Crown appeal following the imposition of a suspended sentence. The Court allowed the Crown appeal and substituted a full-time custodial sentence. I see nothing in that decision that suggests that the sentence imposed upon the applicant was excessive: there is simply no point in a comparison of the facts and circumstances of the offences and offenders between the two cases. 45 Finally, it is submitted that the sentence for the offence relating to the baton was excessive in the absence of any evidence that it was to be used for an unlawful purpose. Three observations can be made about that submission. An offence relating to prohibited weapons and firearms is itself serious notwithstanding that the weapon may not have been possessed with the intention of carrying out a crime. What this Court has said with regards to the policy relating to firearms offences applies equally to offences involving prohibited weapons capable of causing serious injury. See R v Cromarty [2004] NSWCCA 54 and R v Tolley [2004] NSWCCA 165. The applicant had previously been convicted for offences involving firearms. The sentence for that offence was made concurrent to the sentence on the first count even though it was an unrelated offence and arguably should have been met with a sentence that was at least partly cumulative to the sentence for the first count. 46 There was in my view no error in the exercise of Judge Freeman's discretion warranting the intervention of this Court and the sentences were not manifestly excessive. I would grant leave to appeal but dismiss the appeal. 47 HISLOP J: I agree with Howie J **********

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