R v Presta

COUNSEL : M. Grogan (Crown) W.G. Roser (Appellant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Appellant) CATCHWORDS : Criminal Law and Procedure - Kidnapping and Aggravated Sexual Assault - Multiple Victims - Sadism - Sentence LEGISLATION CITED : Crimes Act 1900 s90A; s439(2) CASES CITED: R v Row 89 A Crim R 467 DECISION : Appeal dismissed

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by O'Reilly DCJ. 2 The appellant appeared before his Honour, committed for sentence following pleas of guilty to five counts of kidnapping and 21 counts of aggravated sexual assault. As well, his Honour was asked to take into account on a Form 1 a further ten offences of a variety of kinds. The principal charges involved five victims. The offences on the Form 1 involved two further victims, one of an assault occasioning actual bodily harm and another of homosexual intercourse without consent with a victim aged fifteen years. 3 The learned sentencing judge imposed sentences as follows: Upon the kidnapping counts, Fixed concurrent terms of fourteen years penal servitude, and upon all of the aggravated sexual assault counts Fixed terms of fourteen years and three months with the exception of one count, number 25, upon which his Honour imposed a total sentence of nineteen years penal servitude, divided into a Minimum Term of fourteen years three months with an Additional Term of four years nine months. It follows that the effective order for custody was that the appellant would have a Fixed or Minimum term of fourteen years three months with an Additional Term of nine months as I have indicated. 4 It is appropriate in this appeal to make some preliminary observations. The first is that this application has been directed pursuant to s 6AA of the Criminal Appeal Act to be heard by a bench consisting of two judges. Such direction is given where the appeal is not likely to require the resolution of a disputed issue of general principle. In my view, although some matters have been raised, for the reasons to which I will come it is not necessary for this court to resolve any such issue. 5 The second preliminary observation I would make relates to the first argument advanced on behalf of the appellant which was couched in terms asserting that his Honour erred in ascertaining the facts upon which the appellant was to be sentenced. An examination of the transcript shows that what happened was that at the hearing before the learned primary judge there was tendered a document containing the facts alleged against the appellant in respect of the charges. That document was admitted without objection but there was some discussion about a dispute said to be raised about parts of it. His Honour adverted to this and had been handed a document which was entitled Proposed Agreed Facts, and as is obvious from an examination of that document, it appears that the appellant was wishing to challenge some facts in relation to two of the kidnapping charges, but the document itself did not challenge the criminal activity which was documented as having taken place in the appellant's home. 6 His Honour referred to this matter of dispute and asked the representative of the appellant whether or not anything really turned upon this matter. He was told by the appellant's legal representative that the matter had been raised particularly in the light of an anticipation that his Honour may have certain victim impact statements put before him. It appears that was not the case. From reading the exchange between counsel and the judge it was agreed that the minor variations sought to be made by the proposed agreed facts document were such that they were acknowledged to be of very little consequence at all. 7 Accordingly I am of the view that no error has been demonstrated in his Honour's drawing upon the document tendered without objection for the purpose of findings of fact and expressed in his remarks on sentence. Still less am I of the view that any error has been demonstrated by his Honour in the asserted failure to find facts upon which the applicant was to be sentenced. 8 The facts upon which the applicant was to be sentenced were set out in some detail in his Honour's remarks. It has to be observed that the conduct of the appellant was the subject of video recordings which he had caused to be made while these events were going on. The evidence showed that when first approached by the police the appellant feigned ignorance of the focus of police interest, however as a result of a search these videos were located and he confessed to facts pointing towards his guilt. It can be observed that the videos, once in police hands, provided, certainly in relation to the counts of aggravated sexual assault, most powerful and overwhelming evidence of the appellant's guilt. 9 I propose to relate again some of the facts upon which the charges brought against the appellant were based. I acknowledge the careful recitation of these by the primary judge in his remarks on sentence nevertheless, as the initial submission on behalf of the appellant involved a concession that the objective facts of the offences were serious, it is appropriate to repeat some of those facts in order to demonstrate just how serious they were. 10 The set of charges relating to the first victim were based upon these facts: 11 On Friday 28 March 1997, at about 10.30pm, a fifteen year old boy was walking home from a party and passed near the entrance to some sporting grounds. The appellant was standing near his motor car in the area. He went to some nearby bushes and watched the victim. He said something to him in order to attract his attention whereupon the appellant reached into his jacket pocket and produced what appeared to be a handgun. He pointed it at the victim and said, "Shut up and come with me". He covered the victim's eyes and made a movement with the gun pressed against the victim's stomach. He was forced into the car and then driven to the appellant's home. Some type of clothing was placed over the victim's head, removed and another jacket placed over his head. It should be borne in mind that these things were happening to a fifteen year old boy. Once inside the house the appellant led the victim to a room where he was tied to a bed and a pillow placed above his head. The victim's arms and legs were spreadeagled across the bed and he was given five or six tablets with an alcoholic drink to wash them down. The victim told the police he passed in and out of consciousness from this point of time. That was, to a limited extent, fortunate. 12 What happened after that involved sadism of the worst kind. The appellant struck the victim with a belt. He forced him to fellate him, lick his anus, he put his hand into the anus, he put a bottle into the same orifice. He had anal intercourse with the victim and inserted a baton into the victim's anus. At some stage the victim was then taken back to the motor car, driven away and then thrown out, where he was located unconscious by a passer-by. A video of the activity which I have sketched was found amongst the appellant's possessions with a label indicating that the video contained "X-files 2, Emu Hunting". 13 The second victim was a seventeen year old youth who at about 9.30pm on 21 April 1997 was walking home from a party. The appellant offered him a lift in his car and the victim made the error of accepting. A hand gun was produced and the victim was told to get on to the floor of the car or he would have his brains blown out. A jacket was placed over the victim's head and they proceeded to the appellant's house. 14 Again this victim was led to a bedroom where he was placed on a bed and had his eyes taped. This victim was forced to perform fellatio upon the appellant and after a period of time the appellant urinated into his mouth. The appellant then fellated the victim and he ejaculated into the victim's mouth. Later this victim was crying and the appellant spread his buttocks and placed his penis into the anus and performed anal intercourse. When the victim commenced to scream a baton was placed into the anus. The appellant whipped him with a leather belt. He inserted his hand into the anus. Later the appellant forced the victim to lick his own anus, following which the appellant placed his hand into the victim's anus. Later the appellant burnt the victim with a cigarette and forced the victim again to fellate him. 15 The victim said that he fell asleep, which would be equivalent in my view to loss of consciousness, and the next thing he remembered was that he woke up in a parkland. A video of all this activity was found amongst the appellant's belongings entitled "X-files 3, Adam raped". 16 The third victim was a 22 year old young man who was grabbed from behind whilst he was running in the early hours of Sunday morning, 12 May. When he was grabbed from behind and fell, he thought what was a gun was put to his head. That head was covered with some sort of clothing and he was forced into a vehicle where his eyes were taped and his hands were handcuffed behind his body. There followed a series of offences not dissimilar to those in relation to the first and second victims. It appears that this victim was a member of the Australian Army, and the video recording found amongst the appellant's belongings was entitled "X-files, one Army boy". 17 The fourth victim was an 18 year old youth who was waiting at a bus stop shortly before 11pm on 29 October 1997. The bus stop was in the suburb of Claymore. Again the appellant adopted what I might describe as his routine modus operandi. The appellant produced a handgun forcing the victim into a vehicle and took him to his home where a series of actions took place, again not dissimilar to those which I have related concerning the first and second victims. This video tape evidencing the criminal conduct of the appellant was entitled "Clay shooting, 18 points". As I indicated, the victim had been standing at a bus stop in the suburb of Claymore. 18 Next I turn to the fifth victim. Again this was a boy aged 15 years who, in the early hours of Sunday morning 2 November 1997, was walking home from a party. The victim approached the appellant's vehicle which had stopped nearby. He saw the pistol and fearing for his safety got into the car. His head was covered and again he was taken to the appellant's premises. He was there given a number of tablets to swallow and placed in a bedroom. Again a number of sadistic sexual actions took place which it is not necessary to elaborate. This 15 year old boy was also burnt as a result of a cigarette being put out upon his shoulder, and the appellant made him swallow the cigarette butt. In this case the appellant directed the victim "to lick him all the way from top to bottom, all the way to the toes". 19 It might also be observed that during the course of his offences against this victim the appellant threatened to circumcise the victim with a pair of scissors. At some stage after the offences which I have mentioned, and many others took place, the victim was located semi-conscious in the Macquarie Fields area. Having been found he was taken to hospital. A video of the appellant's crimes was later found entitled "Two all Beef Patties on a M'fields bun". 20 It is against the background of those facts that a number of submissions have been made to this court. I have already made reference to the asserted error by the primary judge in ascertaining the facts upon which the appellant was to be sentenced. It should be observed that even if one were to hypothesise that his Honour should have given some weight to the two implied differences relating to the issue of the offences of kidnapping, they would, on any assessment, pale into insignificance in the light of the overall criminality in the appellant's conduct. 21 The second argument advanced on behalf of the appellant asserted that his Honour erred in the determination of the maximum sentence for the offence, and as a subsidiary matter, it was argued that there had been some duplication in his Honour's application of his findings in relation to injury. For this purpose it suffices to look at s 90A of the Crimes Act. S 90A provides: "Whosoever leads takes or entices away or detains a person with intent to hold him or her for ransom or for any other advantage to any person shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years."

22 It was argued that the maximum penalty for the offence was fourteen years escalating in the event that injury was caused. It is plain that the statute is not so structured, and indeed the structure of that particular provision has been the subject of comment in this court in R v Row , 89 A Crim R at 467, where the former Chief Judge at Common Law, Hunt J said: "The intention of s 90A is clear. It is to offer an inducement to the kidnapper to refrain from killing the victim in order to destroy the evidence, or from inflicting substantial injury upon the victim, by offering a lower maximum sentence where no such injury has occurred. The form in which the section is expressed clearly places the onus upon the accused to satisfy the judge that the victim was liberated without having sustained such injury; it does not require the Crown to eliminate any reasonable possibility that such injury was sustained. It is not a matter of aggravation but of mitigation."

23 Insofar as the learned primary judge found there was injury to the victims in this case, it was argued that the evidence of injury had been used for two purposes, one in relation to the specification of the maximum penalty under s 90A, and the second as a factor in proof of the element of aggravation in the counts of aggravated sexual assault. That submission in my view mis-states and mis-apprehends the purpose of the section. The absence of injury is a matter which is available for proof by the accused person in order to reduce the maximum penalty otherwise applicable. But there is no duplication where there is injury in fact if that matter of injury which is proved is used in order to demonstrate a circumstance of aggravation in order to elevate the sexual assault into the more serious category. 24 The next matter argued was that it was alleged that his Honour erred in not giving any, or giving insufficient weight to the plea of guilty of the applicant. It is plain that once the investigating police were in possession of the videos they had a case against the appellant which it is difficult to imagine could be contradicted in any significant manner. It is true that the videos did not provide evidence of the kidnappings themselves but it is almost fanciful to imagine that given the circumstances of what occurred to each of the victims there can be any realistic suggestion that their version of arrival at the appellant's premises would be rejected. 25 In any event, as has been pointed out, the appellant was appearing before his Honour on some 26 counts to all of which he had pleaded guilty. It was a matter for his Honour to determine how much weight he would give to such pleas, given particularly the virtually incontrovertible evidence provided by the videos. It is not surprising that his Honour felt that the plea of guilty as such was not a matter in the circumstances of great weight. 26 It is argued that his Honour fell into error in failing to comply with the requirements of s 439(2) of the Crimes Act which requires: "A court which does not, as a result of this section, reduce the sentence that it passes on a person who pleaded guilty to an offence, must state that fact and its reasons for not reducing the sentence when passing sentence." 27 His Honour said that the matter was not of great weight. It was contended that it was not possible precisely to determine whether by his remarks his Honour was giving the appellant some weight or none at all. The ordinary use of language suggests the former. However, if it be postulated that there was error in failing to express his reasons beyond what he said, for reasons to which I will come it is not a matter of consequence for the disposal of this appeal. 28 The next proposition argued was that his Honour erred in not giving sufficient weight to the circumstances that the appellant will, as is likely, serve his sentence in protective custody. His Honour was not unaware of that likelihood and made explicit reference to it in his remarks on sentence. I can reach no other conclusion than that his Honour's reference to it means that he had it well in mind in his assessment of the appropriate sentence for the appellant and I would not sustain that argument. 29 The next proposition advanced on behalf of the appellant was that his Honour erred in not taking into account on the matter of sentence the consent of the applicant to the forfeiture of his house. It would appear that pursuant to the Confiscation of Proceeds of Crime Act the appropriate authority had made application for forfeiture of the house. In terms of the statute it was manifestly clear that in every case of the counts that I have mentioned it was the very location used in the commission of the crimes. It is true that it is apparent that the appellant consented to the making of an order, but it is well nigh impossible to conceptualize any sustainable basis upon which he could resist. Nevertheless it was argued that it was a matter which his Honour could have taken into account in a slightly oblique fashion in the sense of confirming some contrition on the part of the appellant adding to the contrition which might be inferred from the plea of guilty which, amongst other things, has been pointed out by counsel for the appellant relieved the victims of the undoubtedly onerous prospect of having to give evidence and relive their experiences as they related them. 30 There was some exchange between the bench and counsel about whether the forfeiture of the house could be described as penal in nature or whether as the Crown contended in its written submissions, the matter is a separate issue entirely to the sentence which is imposed by the court. Apart from its availability as some evidence of contrition, I would favour the Crown's submission but it is not necessary in this appeal for that argument to be resolved. As I have indicated the approach to the disposal of this appeal is a matter to which I will finally turn. 31 Next, it was said that his Honour erred in not giving sufficient weight to the fact that the appellant himself had been sexually assaulted as a young person. There was some material before his Honour which included a relation of history by the appellant of his own background. There was psychiatric opinion from Dr Lucas about the appellant. Nevertheless in my view no error was demonstrated in his Honour not finding that there was some relationship between the assault claimed to have occurred against the appellant himself and the commission of these offences. The authorities are clear that in an appropriate case such might be given some weight, but as I have said, I do not perceive any error by his Honour on the evidence before me in this case. 32 It was argued that his Honour ought to have found special circumstances pursuant to s 5(2) of the Sentencing Act and by implication so divided the minimum and additional term components of sentence so as to enable the appellant to be potentially on parole for a longer portion of the overall sentence. In my view there is simply no error manifest in his Honour's finding that there were no special circumstances so as to provoke such an order. 33 It was penultimately said that his Honour erred in not taking into account the rehabilitation of the appellant. Rehabilitation is always a factor to be looked at when one comes to the question of sentence. Nevertheless his Honour had before him the material concerning the appellant, the material manifesting not only the objective seriousness of the offences, but the background of the prisoner who stood before him to be sentenced. I am unable to perceive that his Honour made any error in balancing the respective factors that he was required to take into account. 34 Finally, it was said that the sentence itself was manifestly excessive. This brings me to the basis upon which I am of the opinion that this appeal can be dealt with. It should not be overlooked that the jurisdiction of this court is in statutory terms. When dealing with a matter concerning sentence, the court's jurisdiction is enlivened if it is of the opinion some other sentence, whether more of less severe is warranted in law and should have been passed. In my view the sentences imposed in the District Court were entirely appropriate to the overall circumstances of the crime and the offender. 35 I am not persuaded any other sentence should have been imposed and I propose that the application for leave to appeal be granted but the appeal be dismissed. 36 GREG JAMES J: I agree with what has been said by his Honour the presiding judge in his reasons and with the result proposed for this appeal. For myself I would merely add that these crimes were in totality appalling. Many might think that the sentence passed by the learned trial judge was lenient, and indeed very lenient. I see no basis upon which the challenge made here could have succeeded. 37 GROVE J: The orders of the court therefore will be as I proposed. **********

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