R v Vodopic [2003] VSCA 172

3 The appellant admitted one prior conviction which was of no significance for current purposes.

4 Leave to appeal was granted by a judge of the Court on 9 May 2003.

5 The circumstances of the offences are set out in detail in the remarks on sentencing by the learned sentencing judge. It is not necessary in those circumstances to deal at length with the facts in this case.

6 The offending conduct occurred on 16 and 17 May 2000 at which time the appellant was aged 37 years. By way of background, in 1999 and 2000 the appellant and her husband, Joseph Vodopic, were engaged in a number of ambitious business ventures. The appellant incorporated companies to pursue what she claimed to be a business in international commodities trading, specifically the trading in oil. In addition she conducted a retail clothing business. The appellant gained investment funds from a Dr Robson to finance the importation of oil. These and related transactions are the subject of separate fraud charges on which the appellant, having pleaded not guilty, is awaiting trial in the County Court. I will say no more about those matters.

7 It is sufficient for present purposes to say that the appellant found herself indebted to Dr Robson in a sum in excess of $400,000 and he was pressing for payment. The appellant was desperate for money to pay this debt, and Dr Robson had security over the matrimonial home which was in the name of Joseph Vodopic.

8 As the learned sentencing judge found, the appellant had made the acquaintance of many successful business people, one of whom was Dean Reilly who ran a business with one Peter Floyd. The appellant knew Reilly to be a wealthy man. In May 2000 the appellant was faced with financial ruin and decided on a scheme to kidnap Reilly to extort money from him. The appellant enlisted the assistance of her daughters Jessica and Stephanie by initially asking them to obtain heroin which the appellant said was to be used to cause a man to make a phone call against his will and to transfer money to the appellant. The daughters, one of whom was aged about 19 years and the other in her early 20's, failed in that task and the appellant herself later obtained heroin.

9 The appellant told her daughters that Reilly owed the appellant $1m. On or about 14 May the appellant was observed preparing a document in the name of Reilly in which it recorded that he agreed to sign over the sum of $3m. to the appellant from his bank account.

10 Using devious means to gain his mobile phone number the appellant arranged a meeting with Reilly, purportedly to hand to him a birthday present to be given by the appellant to his partner. On the evening of 15 May the appellant enlisted her husband and daughter Stephanie in a scheme to kidnap Reilly. The appellant told them that she had to do so in order to recover a bad debt of $3m. which, it was suggested, was due and payable to two criminals. Those same criminals, she said, had threatened her life and that of her family if she did not make payment to them.

11 On 16 May, at about 9 a.m., the appellant, her husband and her daughter Stephanie drove together and collected Reilly at premises at Mitcham. In the car was equipment to tie Reilly and also a length of timber. When Reilly entered the car it was driven to a location behind a building where Reilly was assaulted by Joseph Vodopic. As this was happening the appellant attempted to inject Reilly with heroin but he kicked the syringe out of the appellant's hand. The appellant then tried to strike him with the piece of timber. The wild attempts by Reilly to escape the car led the appellant to change plans as to where he was to be taken and he was driven, instead, to the home of the parents of Joseph Vodopic.

12 Initially, the appellant pretended to Reilly that she was attempting to recover a debt of $3m. which he owed to criminals and that she had been forced by their threats to recover that sum. Later the appellant suggested that the debt was owed by Reilly's partner, Floyd.

13 Reilly was taken into the in-laws' house where the appellant enlisted Jessica to engage in various ruses to impress Reilly that she was dealing with criminals. Whilst at that house Reilly was again assaulted by the appellant's husband, who was armed with a stereo speaker and who responded to the appellant's demand that he should knock Reilly unconscious. When Reilly resisted this assault the appellant, her daughter Stephanie and also Joseph Vodopic's parents joined in to attack Reilly. The elderly parents, it seems, responded to what they thought was an attack on the appellant and her husband by Reilly. He was struck to the head and body with a variety of dangerous and heavy items, his eyes were gouged and finally his legs were tied together and his mouth and eyes taped. Attempts were made to drug him by making him drink a glass of water containing Mogodon, but he did not swallow the liquid.

14 Reilly believed he was going to be killed. At one point the elder male placed a plastic garbage bag over Reilly's head, but he managed to rip it away.

15 In a lull in this frenetic activity the appellant's mother-in-law and daughter Stephanie dressed the wounds suffered by Reilly. The appellant then drafted a letter of indemnity for Reilly to sign in which he was to agree not to contact police or report what had happened. He signed this seven-page note. At this time the appellant engaged in a number of pretence phone calls for Reilly's benefit, in which the appellant purported to speak to criminals. She told Reilly that his partner, Floyd, was in the company of the criminals she had been speaking to and had said that Reilly was to pay the partner's debt. The appellant had in fact been in contact with Reilly's partner but only to offer explanations why Reilly had not been at work or at home.

16 Reilly said he would sign a transfer of $3m. in order to secure his safety but would not pay the alleged debt. The appellant then drafted documents directed to Reilly's bank manager and to the appellant's own solicitor and had Reilly speak to the bank staff to authorise the transfer of $3m. in bank bills. He feared he would be killed once this was done. The appellant phoned her solicitor and sought legal advice about whether Reilly could sign a document waiving any criminal proceedings against the appellant.

17 The documents the appellant had drafted to effect the transfer of funds were so crude as to not be acted on by the bank, the manager having been in contact with Floyd, who told the bank officers not to transfer the funds. Throughout this episode the appellant offered explanations to Reilly for the events which had transpired and made fake telephone calls to maintain a pretence that the appellant was under threat from others.

18 On the second day of his detention Reilly, who was injured, asked to be taken to hospital and the appellant agreed. She and her husband at this time were in tears, which was the first time Reilly began to believe that he might not be killed. He was in fact driven to hospital. He had suffered lacerations to his head and face and on many parts of his body, and his eye was bruised where an attempt had been made to gouge his eye during the earlier struggle. His victim impact statement shows the profound impact these events have had on his mental wellbeing and lifestyle.

20 There were three grounds of appeal in the application for leave to appeal but only two are now pursued:

1. That the learned sentencing judge failed to give any or any proper weight to the appellant's "significant personality dysfunction";
2. That the learned sentencing judge erred in refusing to find that the appellant was remorseful.

Ground 3 was abandoned at the outset of the hearing.

21 The complaint in ground 2 relates to his Honour's sentencing remarks in which the learned sentencing judge referred to submissions made by counsel for the appellant concerning a report of psychiatrist Dr Barry-Walsh and said this:

"it is submitted by Mr Langslow that given what Dr Barry-Walsh described as a significant personality dysfunction I should regard you as having a lessened degree of culpability for this offence. However, it is not suggested that you did not know either what you were doing or the wrongness of it. A personality dysfunction may explain why you embarked upon this course of conduct but can have little impact upon the seriousness of the crime itself."

22 On the appeal, counsel submitted that in these remarks his Honour was in error in that he failed to take into account a relevant factor that ought to have ameliorated the sentence to be imposed, because that disorder or dysfunction not only reduced the seriousness of the appellant's conduct by reducing the extent of her moral culpability but also moderated the weight that needed to be given to factors of general and specific deterrence.

23 The opinion expressed by Dr Barry-Walsh was expressed in a written report the terms of which were very guarded. He commented that the history given to him was contradictory and unsatisfactory, that the appellant gave rationalised explanations that exculpated her from any guilt and provided a history which was notable for its superficiality. Dr Barry-Walsh expressly found no evidence of psychiatric disturbance, delusional thinking or psychotic illness.

24 Having first said that her complaints of sexual abuse as a child depended entirely on her own account and noting the uncertainties of her history, Dr Barry-Walsh said that that history as recounted by her was "suggestive of significant personality dysfunction". He said that although speculative and assuming that a number of matters she reported were true, her view of herself as a victim might provide some legitimacy to the proposition that she was a person who lived her life by manufacturing her own reality. Thus, he said, if the events in her history as described were true, it was plausible that she might be able to deceive herself as to the reality of her situation, her intentions and the actions of herself and others. In a sentence which was much relied on by counsel, Dr Barry-Walsh then said "this may account for the poorly judged nature of her actions and her improbable explanations for her conduct".

25 Dr Barry-Walsh concluded his report by saying that there was no major psychiatric illness and the likelihood was that "her presentation reflects in a general manner significant personality dysfunction". He added, however, that he could provide "little in the way of psychiatric or psychological explanation for her predicament and current situation".

26 Mr Ginsbourg, counsel for the appellant, submitted that that material demonstrated that the moral culpability of the appellant was lessened and in turn made her case inappropriate for the application of general deterrence.

27 As Mr Kayser, counsel for the respondent, pointed out in his submission, even assuming the judge accepted that the appellant did indeed have such a personality dysfunction there was a singular lack of evidence as to what, if any, bearing that had on the offences committed. It is true that if serious psychiatric illness was a factor in the commission of offences, it would lessen the moral culpability of an offender and make the case an inappropriate one to apply the factor of general deterrence: see R. v. Tsiaras[1] and R. v. Anderson[2]. There was no evidence, however, that this case fell within that category, either as a psychiatric illness, at all, or in terms of the severity of illness (if it was to be described as such).

28 Even if the personality dysfunction identified here was to be regarded as a psychiatric illness, which had not been established, it falls far short of the kind of illness discussed in Tsiaras. If it is to be regarded as ameliorating the need for general deterrence, then the symptoms and consequences of such disorder must be clearly explained and related to the offending conduct so as to explain how that disorder bore upon the moral culpability of the appellant in committing the offences: see R. v. Yaldiz[3]. In this case there was simply no evidence, and thus no reason for the judge to conclude that the personality disorder was a relevant factor reducing the seriousness of the offences and the moral culpability of the appellant in her participation therein.

29 It is no doubt correct, as Mr Ginsbourg said, that the learned sentencing judge did accept that the appellant had a significant personality disorder. However, the state of the evidence was such that he was quite justified to conclude, as he did, that whilst the disorder might explain why she engaged in this conduct, it had little impact on the seriousness of the offences. In my opinion, the disorder was likely to have been taken into account by the judge when he fixed what was a relatively low non-parole period. As to the fixing of the head sentence, in my opinion no error has been shown in his Honour's treatment of this matter.

30 I turn then to ground 1, a complaint that the sentences were manifestly excessive.

31 The sentence on kidnapping was certainly stern, and it is the head sentence on that count on which complaint is made under this ground. All sentences were made wholly concurrent. Mr Ginsbourg emphasised that there had been pleas of guilty and that the sentence will be served in a protection or management unit. That is so by virtue of the fact that in 1992 the appellant had given evidence against her former husband, Noel Faure, who faced a murder charge. That fact is known to prison inmates and imprisonment poses a risk to her safety. The judge expressly took that into account, having heard evidence of the difficulties she faced in prison and the deprivations he suffered by virtue of her status. He noted too that despite her own difficulties the appellant had nonetheless helped other inmates. His Honour noted many mitigating personal factors in the appellant's background.

32 Counsel noted, too, that the appellant had only one minor prior conviction.

33 Ground 3 which complains of his Honour's treatment of remorse has been abandoned. Nothing in the report of Dr Barry-Walsh suggested that remorse existed, indeed the contrary, as she continued to protest her innocence. That had also been the approach she adopted in her lengthy police interview. Not only did she deny being the person who devised this whole bizarre scheme, she denied that she had been aware that a kidnapping was planned and denied that even when she was present she understood that that was what was taking place. She denied being party to any violence and denied the allegations made by the victim. The appellant pleaded not guilty until the very last moment, as the trial was about to commence.

34 In my view, apart from the plea of guilty, which his Honour treated as a mitigating factor, there was no basis at all on which allowance for remorse could be given.

35 Counsel submitted that the offences had unusual elements to them. They were poorly planned and executed; the victim was released after about 30 hours; his injuries were not severe. It was submitted that the offence is not prevalent and a lengthy sentence was not warranted on account of general deterrence. He referred the Court to sentencing statistics for offences against s.63A and submitted that since the penalty had been increased to 25 years, of the 53 instances of sentencing, in no case was a sentence of 10 years exceeded and few approached that length. Sentencing statistics are of general but limited assistance as many of the cases to which we were referred were instances where kidnapping was but one of a number of counts, and each case must be looked at in the light of its own circumstances.

36 Although no complaint of parity is made, I note that the appellant's husband, Joseph Vodopic, was sentenced to 5½ years' imprisonment on one count of kidnapping and 1½ years' imprisonment on a count of intentionally causing serious injury, of which sentence six months was made cumulative on the first count. Of his total effective sentence of six years' imprisonment he was ordered to serve three years before being eligible for parole. Not only had he pleaded guilty at an early stage, he offered to give evidence against the appellant and thus was eligible for significant discounts in sentence and the judge held that his role was significantly less than that of the appellant.

37 The maximum penalty for this offence reflects its seriousness. When introduced in 1960 to supplement common law kidnapping it was an offence designed to deal with a particularly insidious form of the offence, one where a person was kidnapped with the intention of extorting money or gaining an advantage thereby. It may be thought that the special gravity of the offence has been overshadowed somewhat by virtue of the fact that the penalty for common law kidnapping has now also been increased to 25 years. The history of the offence is discussed in R. v. Nguyen & Tran[4] and I will not discuss it further.

38 In my view, notwithstanding the fact that the same sentence exists for the common law offence, the offence created by s.63A remains extremely serious, and is bound to require the application of principles of general deterrence. If the offence is not prevalent then the community is indeed fortunate, and to ensure that it remains a rare offence substantial sentences of imprisonment must generally be imposed on offenders.

39 Amateurish or not in its execution, this was a serious attempt to extract a very large sum of money by placing a man in terror for his life. The appellant enlisted her children and husband to engage in very serious criminal conduct. The somewhat unplanned and bizarre events that followed the initial abduction gained that character in large part because the resistance of the victim to being drugged meant that the original plan had to be abandoned, and a new plan to be improvised. The victim in this case was terrorised over some 30 hours, assaulted and threatened with stupefaction by the administration of drugs. He understandably believed he was likely to be killed. The fact that none of the participants were disguised was cause for more concern on his part about his fate, not less.

40 In all of the circumstances I am not persuaded that the sentences imposed have been shown to be manifestly excessive.

41 I conclude that neither of the grounds has been made out and the appeal should be dismissed.

44 The formal order of the Court is that the appeal is dismissed.

[1] [1996] VicRp 26; [1996] 1 V.R. 398.

[2] [1981] VicRp 17; [1981] V.R. 155.

[3] [1998] 2 V.R. 376, at 383.

[4] [1998] 4 V.R. 394.