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[2003] NSWCCA 161
appellant. Crown appeals allowed; sentences imposed at first instance quashed. Re-sentencing orders: Hendradinata — imprisonment 5 years (22 May 2002–21 May 2007) with non-parole period 3 years (22 May...
Three men were convicted of detaining a young man for advantage (kidnap/detention for extortion) and, for two of them, causing grievous bodily harm with intent. The District Court imposed relatively short prison terms. The Crown appealed those sentences as manifestly inadequate. The Court of Criminal Appeal found the conduct to be of high culpability — prolonged detention, repeated assaults, serious injury and organised extortion — and held that the original sentences were disproportionately lenient. The Court allowed the Crown appeals, quashed the sentences and re-sentenced the offenders to substantially longer terms, explaining its approach with reference to objective seriousness, the need for denunciation and deterrence, and the principles of totality and proportionality, while noting constraints on appellate re-sentencing.
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2 cited instruments linked from this judgment.
Three co-offenders, Paul Hendradinata, Bruce Sunandar Rossi and Ronny Antaredjo, were tried jointly by jury in the District Court on charges arising from an incident in August 2000 in which an Indonesian national, Ghandi Sidik, was lured to an apartment and detained for some four days while being repeatedly assaulted and threatened in attempts to extort money from him and his family. The indictment charged all three with detention for advantage (contravening section 90A of the Crimes Act 1900 (NSW), since repealed) and charged Rossi and Antaredjo additionally with maliciously inflicting grievous bodily harm with intent (s33). The jury convicted each of the respondents as charged. Judge Dodd sentenced them in August 2002. Hendradinata received 4 years with a non-parole period of 18 months. Rossi and Antaredjo received effectively 4.5 years with effective non-parole periods of 2 years because a 12-month sentence on the s33 offence was partially concurrent with the 4-year kidnap sentence (see [1]-[6], [38]).
The Crown appealed under s5D of the Criminal Appeal Act 1912 (NSW) on the ground the sentences were manifestly inadequate. The Court of Criminal Appeal (Sully J delivering the reasons; Santow JA and Buddin J agreeing) allowed the Crown appeals, quashed the sentences and re-sentenced the respondents to substantially longer terms: Hendradinata to 5 years with a 3 year non-parole period; Rossi and Antaredjo re-sentenced on count 1 and count 2 each to five-year terms with three-year non-parole periods, arranged so as to produce effective outcomes reflecting partial cumulation (orders set out in [46]).
Central to the Court's reasoning was the objective assessment of the criminality of the enterprise. Sully J described the scheme as "one of very high criminal culpability" and emphasised that the victim was "systematically, and throughout some four days, humiliated, terrorised and physically abused with resulting serious bodily injury; and all in aid of persistent attempts to extort money" ([10]). That factual characterisation underpinned the conclusion that the sentences were manifestly inadequate.
The Court applied core sentencing principles as follows:
Objective seriousness is the proper starting point for sentence. The Court rejected the primary Judge's characterisation that the respondents' culpability lay at the "lower, medium end" of the range, finding instead that a fair assessment put the objective seriousness at about the midpoint of the statutory scale for the offences in question (see [16]-[17], [45(1)-(2)]).
Denunciation and deterrence were central considerations. The Court emphasised that courts must denounce such violent conduct forthrightly and impose commensurate punishment to deter repetition ([11]).
The appellate court recognised constraints on re-sentencing: double jeopardy concerns and the need for circumspection in interfering with sentences previously imposed, particularly given the offenders' youth and prospects of rehabilitation. The Court nevertheless found "clear and convincing cause" for intervention on the Crown appeal because the original outcomes were disproportionately lenient ([42]-[44]).
Totality and proportionality principles were applied to structure cumulative sentences. For Rossi and Antaredjo (multiple counts), the Court considered partial cumulation appropriate to reflect overall criminality and produced an effective sentence accordingly ([45(3)]).
The combination of these reasons led the Court to increase the sentences, while moderating the first-instance sentence indicators to account for the restraints proper to appellate re-sentencing ([44]-[46]).
Before this decision, established sentencing principles applied: the court must start from objective seriousness, account for subjective factors, apply totality and proportionality, and exercise caution when re-sentencing after a successful Crown appeal (the Pearce principle). The Court cited Pearce v The Queen (194 CLR 610) as an authority for restraints on appellate intervention and for the need for circumspection ([39], citing Sir John Barry as approved in Pearce).
After this decision, the ruling reinforces several points in the NSW appellate sentencing landscape:
It affirms the willingness of the Court to intervene on Crown appeals where sentences are demonstrably and manifestly inadequate by reference to objective criminality, even if that requires increasing sentences imposed at first instance, subject to the restraints of Pearce.
It demonstrates how the Court will calibrate the increase: the judges set out a considered "first instance" proper sentence (here about 6 years for the principal offences) and then moderated that to arrive at appropriate re-sentencing orders consistent with appellate restraint ([45]-[46]).
It illustrates the Court's expectation that prolonged, organised, violent detention and extortion will attract sentences at or above the mid-point of the statutory scale and that relatively short non-parole periods will be treated skeptically as potentially inadequate ([40]-[41]).
This decision thus stands as a clear appellate example of intervention where sentencing outcomes were judged to under-represent objective culpability.
Selected passages with paragraph references follow, with plain-English translation.
Paragraph [10]: "The enterprise was... one of very high criminal culpability...", Translation: The Court regarded the whole scheme as very serious; the defendants played significant roles in repeatedly humiliating, terrorising and injuring a completely innocent victim over several days in order to extract money.
Paragraph [11]: "It is... the plain duty of any Court... to denounce it forthrightly...", Translation: The Court must condemn such conduct strongly and impose substantial punishment to deter others.
Paragraph [12] (quoting Reg v Brown): "Society is entitled... Cruelty is uncivilised.", Translation: The Court drew on an authority emphasising that society must resist and punish violent cruelty.
Paragraph [40]: "The head sentences... were 20 per cent of the statutory maximum... Sentences of that degree of lenience... cannot... be responsibly sustained.", Translation: The Court compared the sentences imposed with the legal maximums and found them far too low given the seriousness of the offences; they were not acceptable.
Paragraphs [44]-[46]: The Court's approach to re-sentencing, Translation: While the Court must be careful not to punish twice or upset rehabilitation prospects unnecessarily, it nonetheless may impose higher sentences on re-sentencing where the first-instance sentences are plainly inadequate, and must do so in a proportionate manner, applying totality.
This decision is directly engaged where:
Offences involve prolonged detention of a victim for advantage or extortion, combined with repeated physical violence and resulting serious bodily injury (fractures, extensive bruising), and organised attempts to extract money over a number of days ([7], [10]-[19]).
The trial judge imposes sentences that, when compared to statutory maxima and the objective criminality, are significantly low (for example, head sentences representing a small fraction of the maximum and short non-parole periods) such that the sentence appears manifestly inadequate ([40]-[41]).
There are multiple counts arising from the same criminal enterprise where totality and proportionality issues make structuring of cumulative sentences necessary ([45(3)]).
Crown appeals under s5D challenging adequacy of sentence are brought and clear and convincing cause can be demonstrated ([42]).
In such fact patterns, appellate courts will scrutinise the objective gravity and may increase sentences notwithstanding considerations of youth or rehabilitation, provided Pearce restraints and proportionality are observed.
This judgment itself is an appellate decision applying settled principles rather than announcing novel law. It explicitly cites and applies authority (for example Pearce and Reg v Brown) and demonstrates the methodology an appellate court will adopt when assessing manifest inadequacy: articulate the objective seriousness, quantify an appropriate first-instance starting point, then moderate for appellate restraint when re-sentencing ([45]-[46]). Later NSW sentencing decisions have treated this kind of reasoning as a model for addressing Crown appeals against lenient sentences where there is prolonged, organised violence and clear indicators that first-instance sentences understated objective seriousness.
Practitioners should expect courts to follow the method in this decision: (1) evaluate objective gravity; (2) articulate a reasonable first-instance sentence for that objective gravity; (3) weigh subjective factors and Pearce restraints; (4) adjust to a re-sentencing outcome that achieves denunciation and proportionality without unnecessary overreach. The case is therefore useful precedent for Crown prosecutors and appellate courts in similar circumstances.
The judgment resolves the specific sentencing disparity here, but leaves open or highlights several practical questions:
Quantification of "mid-point" and calibration: the Court opined that objective seriousness here was about the midpoint of the statutory scale and suggested first-instance head sentences of about six years for each principal offence. How to translate that qualitative assessment into consistent numeric starting points across varying factual matrices remains a matter of judicial fact-sensitivity rather than a bright-line rule ([16]-[17], [45(1)-(2)]).
The weight to be given to subjective mitigating material (youth, prospects of rehabilitation, special circumstances, immigration consequences): the Court accepted the availability of such factors but regarded them insufficient to outweigh the need for substantial punishment. How future courts will balance these factors in borderline cases is fact-dependent and remains an area for careful articulation in sentencing remarks ([20]-[22], [34]).
Re-sentencing restraint design: the Court moderated the "proper at first instance" sentence to produce a re-sentenced outcome (e.g. first-instance suggested 6 years, re-sentenced to 5 or effective 6 with partial cumulation). The precise margin by which appellate courts should moderate nominal first-instance starting points on re-sentencing remains discretionary; lower courts and litigants will continue to litigate the appropriate degree of moderation ([44]-[46]).
Interplay with statutory maximums and subsequent legislative change: the s90A offence was noted as since repealed; the ongoing effect of changes to statutory maxima and new legislative frameworks for related offences may alter comparative analysis in future cases.
In sum, Regina v Hendradinata; Regina v Rossi; Regina v Antaredjo is an instructive appellate exposition on intervening in manifestly inadequate sentences where the objective criminality involves prolonged, organised violence and extortion. The decision affirms established principles while illustrating their concrete application, and it provides a clear model for Crown appeals seeking higher sentences in similar fact patterns.
CITATION : Regina v Paul Hendradinata; Regina v Bruce Sunandar Rossi; Regina v Ronny Antaredjo [2003] NSWCCA 161 HEARING DATE(S) : 13 June 2003 JUDGMENT DATE : 27 June 2003
JUDGMENT OF : Santow JA at 1; Sully J at 2; Buddin J at 47 DECISION : In each case Crown appeal allowed and sentences passed at first instance quashed; Respondent Hendradinata re-sentenced to imprisonment for 5 years commencong on 22 May 2002 and expiring on 21 May 2007, with a non-parole period of 3 years commencing on 22 May 2002 and expiring on 21 May 2005; Respondent Rossi - on Count 1 - re-sentenced to imprisonment for 5 years commencing on 26 May 2002 and expiring on 25 May 2007, with a non-parole period of 3 years commencing on 26 May 2002 and expiring on 25 May 2005; On Count 2 - re-sentenced to imprisonment for 5 years commencing on 26 May 2003 and expiring on 25 May 2008, with a non-parole period of 3 years commencing on 26 May 2003 and expiring on 25 May 2006; Responent Antaredjo - on Count 1 - re-sentenced to imprisonment for 5 years commencing on 11 May 2002 and expiring on 10 May 2007, with a non-parole period of 3 years commencing on 11 May 2002 and expiring on 10 May 2005; On Count 2 - re-sentenced to imprisonment for 5 years commencing on 11 May 2003 and expiring on 10 May 2008, with a non-parole period of 3 years commencing on 11 May 2003 and expiring on 10 May 2006
LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) CASES CITED : Reg v Brown & ors (1994) 1 AC 212 at 237 Pearce v The Queen (1998) 194 CLR 610 at 622(39) Regina PARTIES : Paul Hendradinata Bruce Sunandar Rossi Ronny Antaredjo FILE NUMBER(S) : CCA 60449/02; 60450/02; 60451/02 P. Power SC - Crown COUNSEL : E. L. Fuller SC - Hendradinata H. K. Dhanji - Rossi P. M. Strickland - Antaredjo S. E. O'Connor - Crown SOLICITORS : Brock Partners - Hendradinata D. J. Humphreys - Rossi D. J. Humphreys - Antaredjo
LOWER COURT District Court JURISDICTION : LOWER COURT 95/11/1986 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL 60449/03 60450/03 60451/03
SANTOW JA SULLY J BUDDIN J
27 June 2003 REGINA v PAUL HENDRADINATA REGINA v BRUCE SUNANDAR ROSSI REGINA v RONNY ANTAREDJO Judgment 1 SANTOW JA: I agree with Sully J. 2 SULLY J:
Before the Court are three Crown appeals brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW) . The respondents to the appeals are three co-offenders who, between 13 and 31 May 2002, stood trial jointly in the Sydney District Court before his Honour Judge Dodd and a jury. 3 The respondents were so tried upon an indictment containing two counts. Count 1 charged the respondents jointly with having detained one Ghandi Sidik for advantage to them. Such an offence contravened section 90A, since repealed, of the Crimes Act 1900 (NSW). Because Mr. Sidik, while so detained, sustained substantial injury, the respondents were liable upon conviction to a statutory maximum penalty of imprisonment for 20 years. 4 Count 2 charged the respondents Rossi and Antaredjo jointly with having maliciously inflicted grievous bodily harm on Mr. Sidik with intent to do grievous bodily harm to him. Such an offence contravenes section 33 of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. 5 The jury found each of the respondents guilty as charged. Judge Dodd sentenced them on 16 August 2002. In that connection:
[1] the respondent Hendradinata was sentenced to imprisonment for 4 years with a non-parole period 1-1/2 years;
[2] the respondents Rossi and Antaredjo received the same sentences, but with slight variations in dating because of variations in pre-sentence custody. For the section 90A offence, each was sentenced to imprisonment for 4 years with a non-parole period of 1-1/2 years. For the section 33 offence, each was sentenced to imprisonment for 12 months with a non-parole period of 6 months. The sentences were made partially concurrent in a way that produced an effective head sentence of 4-1/2 years with an effective non-parole period of 2 years. 6 The present Crown appeals challenge as manifestly inadequate all of the said sentences.
The Relevant Facts 7 These are set out clearly and comprehensively in the following extracts from the written submissions put in by the Crown: "5. In summary, on Friday 11 August 2000 the victim was lured to a unit in the Hordern Towers in the Sydney CBD where he was detained by the current respondents, together with Kwet Tjong, Chi Sho and Steven Ongko and another man identified as the 'long-haired Singaporean' ('the others'). He was severely beaten, kicked, punched, hit with a baseball bat, and as a consequence he suffered extensive bruising, contusions and a fractured leg. The victim was also threatened with various weapons, including a gun and a sword. The victim was detained for four days at the unit and at another unit in Chatswood. He continued to be threatened and beaten. Money was taken from his bank account using his debit card. Various other attempts were made to obtain significant amounts of money, including an attempt to sell the victim's car. 6. His Honour found that another offender, Tjong, who fled the country, orchestrated this enterprise. It would appear that Tjong was marginally more involved in the actual violence than were the respondents. However, all three respondents played significant and active roles in the detention and terrorising of the victim throughout the four days and were present when the others assaulted the victim. The jury rejected their defences of duress at the hands of Tjong. His Honour also specifically rejected "duress" as an issue on sentence: it was clear that each of thee respondents had opportunities to withdraw from the enterprise and alert the authorities but failed to do so. 7. To fully appreciate the seriousness of this offence it is necessary to provide some detail of the events that occurred in August 2000. The victim was an Indonesian national who arrived in Australia in June 1997 on a study visa. Shortly after his arrival, the victim became acquainted with four of the co-offenders. Some time in mid-July 2000, the victim sold his car and used the money he received ($17,000) as a deposit for another car, a 1992 Lexus coupe, which he intended to purchase from his friend. The victim later changed his mind and began attempting to sell the Lexus to some other friends. A co-offender, Steven Ongko, knew the victim and asked to inspect the Lexus. The victim made an arrangement to meet Ongko on 11 August 2000. 8. At about 1:00 pm on that day, the victim arrived at the Century Towers apartments, driving a silver BMW sedan that he had borrowed from a friend. The victim had left the Lexus at his house in Raleigh Park, Kensington. Standing outside Century Towers the victim saw Ongko and two other males who the victim had not seen before. Ongko indicated the two males were his cousins and introduced them as Bruce Rossi and Calvin. All three males got into the victim's car and the victim began driving to Kensington. At this time, Rossi said that he had forgotten his back-pack and asked the victim to drive to Hordern Towers apartments at 393 Pitt Street so that he could pick it up. The victim drove into the Hordern Towers apartment car-park and parked on level 7. The victim and the three males exited the car and got into the car-park lift, supposedly to go and pay for the car-park ticket. Instead, ROSSI pushed the lift button for level 28. 9. When they reached level 28, the victim and the three co-offenders exited the lift. Rossi walked up to and knocked on the door of apartment 2812. At this time, the door to apartment 2810, directly across the hall-way from 2812, opened and the co-offender Tjong walked out. Tjong directed everyone into apartment 2810. The victim walked in and saw Hendradinata and Antaredjo already inside. 10. Tjong told the others to remove the victim's clothing. Instead, as he did not want the co-offenders touching him, the victim removed all of his own clothing except his underpants. Rossi took the victim's wallet from his jeans and gave it to Tjong. Also in the victim's jeans were the keys to the silver BMW belonging to a friend of the victim, Johan, as well as the keys to the Lexus. Rossi and Antaredjo then searched the victim to check he was not wearing a listening device. Tjong then left and returned a short time later with Sho and another. 11. Tjong instructed the victim to put his clothes back on and sit on the floor of he living room, and the victim complied. Tjong told everyone in the room to: "beat up" the victim and the victim saw all the co-offenders, except Hendradinata and Ongko come over to him and start punching and kicking him. The victim put his arms around his hed to defend himself but was struck to all parts of his body, including his head. 12. Tjong told the others to stop. Tjong then took the victim's four key cards from his wallet, gave the victim a piece of paper and told the victim to write down the PIN numbers for the four cards. The victim wrote down the PIN numbers for two of the cards, said he could not remember the number for the third account, and indicated that the fourth card was for an old account, since closed. Tjong asked the victim why he could not remember his PIN number for the third account. When the victim said that he did not know why he could not remember, Sho produced a baseball bat and used it to hit the victim in the rib cage area on the right side of his body. When the victim raised his forearm to protect himself, Sho continued to strike the victim with the bat approximately five more times. 13. Tjong then instructed Antaredjo and Sho to go to the ATM with two of the victim's key cards. The victim saw them leave the apartment. Bank records indicate that ATM withdrawals for $660.00 and $80.00 were made from two of the victim's accounts on the day. An ATM camera captured Antaredjo making one of the withdrawals. 14. At some stage during the afternoon the victim was given a piece of paper and told by Tjong to write an IOU stating (falsely) that he owed Hendradinata $50,000. The victim and Hendradinata signed the IOU. All the respondents were present in the room at this time. 15. Throughout the afternoon the victim was beaten repeatedly. At different times, the victim stated Sho, Tjong, Rossi ……… used the baseball bat to strike the victim to the body and legs. As a result of being beaten, the victim suffered a fracture of his left fibula as well as multiple abrasions and bruising to his face, back, arms, and legs. 16. In between being struck, the victim was asked repeatedly for the PIN number to his third bank account. The victim was also asked where the remainder of his money was kept. Later, Tjong told the victim to call his parents in Indonesia to ask them for money. The victim wrote down the number of his parents in Indonesia but no call was ever made. At some stage the victim saw a small silver pistol produced by one of the offenders although he is not sure by whom. During the repeated demands for his money, the victim was pistol-whipped by Tjong and the 'long-haired Singaporean'. Later that night the respondents drove the victim to an apartment in Chatswood. Sho remained at the Hordern Towers apartment. 17. The victim went to sleep and awoke early on Saturday morning. Rossi and Antaredjo remained in the apartment and throughout the day stood watch over the victim. Later that night the victim was taken to a restaurant in Crows Nest where the respondents had dinner. After the meal, Sho accompanied the victim and other respondents back to the apartment in Chatswood. Upon returning to the apartment, the victim went to sleep and woke up on Sunday morning. During the day, the respondent and Sho stood watch over him. In the evening, the victim again went to sleep. 18. Whilst the victim was being detained at the apartment in Chatswood, on Saturday and Sunday attempts were made to sell the victim's Lexus and obtain the $17,000 that the victim had given as deposit to his friend, Kim Sukarti. After Sukarti informed police that the victim had been kidnapped, police commenced intercepting telephone calls between Tjong and Sukarti. During these calls, Tjong allegedly threatened to harm the victim if Sukarti did not hand over the $17,000 deposit or provide the registration papers for the Lexus so that it could be sold. On 13 August 2000, police lawfully intercepted several calls from Tjong to Sukarti, the former using a mobile service registered in Sho's name. 19. After being woken close to midnight on Sunday, 13 August 2000, the victim was taken down to the car park by the respondents and Sho and driven from Chatswood back to the Hordern Towers apartments in the CBD. The victim was again taken to room 2810. Inside the apartment the victim saw Hendradinata who told the victim to again ring his parents in Indonesia to ask them for money. No call was ever made and the victim went to sleep, waking at about 7.00 am. At about mid-day on Monday 14 August 2000, the victim was taken from the apartment down to where a car belonging to Hendradinata was parked in Pitt Street. The victim was instructed to sit in the back seat and was driven a short way down Pitt Street before police, who had been conducting surveillance outside the Hordern Tower apartments, stopped the car and arrested the respondents and Sho."
The Objective Gravity of the Offences 8 It is necessary to delineate with precision what individual role was taken by each of the respondents in the overall criminal enterprise that has been described in the immediately preceding section of this judgment. · The role of the respondent Hendradinata
This can be summarised as follows: · This respondent knew the victim since 1999. · He checked the victim's wallet. Tjong made the victim sign an IOU to Hendradinata, which Hendradinata signed and stamped. · The respondent took the victim's vehicle to a dealership in an attempt to get money. · He drove the victim in his vehicle to the Chatswood unit after the victim had been threatened with a gun. · Hendradinata located a metal stick that Tjong used to further threaten the victim. · He also drove the group to a restaurant in North Sydney and back to the CBD unit. He was present at the CBD unit on the Monday. · Hendradinata checked the engine numbers on the BMW and provided advice about checking the authenticity of the vehicle. He was delegated the important task of going with the victim to get the BMW registration papers. · He was driving the car when the police apprehended the offenders.
· The role of the respondent Rossi · His Honour found it was Rossi who lured the victim to the CBD unit with a false story. · He checked the wallet of the victim and searched him. · He was present for the sword threat and assisted by holding the victim down. · He retrieved the baseball bat and held it over the victim. · He was present when the victim was beaten with the bat and pistol-whipped. · Rossi encouraged the victim to give his PIN number over and said that Tjong was not afraid to kill him. · He subsequently bound and gagged the victim. He was in the vehicle that went to Chatswood and guarded the victim there. · Rossi was present in the CBD (Hordern Towers) unit on August 12 2000 and was present in the vehicle that was apprehended by the police. · Rossi was involved in the ongoing assault of the victim on 11 August 2000. · The role of the respondent Antaredjo · This respondent checked the victim's wallet and found the key cards. He then used these cards to withdraw money at the ATM. · He was also found to have kicked and punched the victim, this amounting to the malicious infliction of grievous bodily harm with intent. · The respondent was also present during the threat with the sword, the beating with the bat, and during the pistol-whipping. · He assisted in the binding and gagging of the victim when Tjong wanted to torture the victim. · He went in the vehicle with the victim to Chatswood and maintained a gun throughout the journey. He also guarded the victim when at Chatswood. · Antaredjo was present in the CBD (Hordern Towers) unit on Augusut 12 2000 and was present in the vehicle that was apprehended by police. · Antaredjo was involved in the ongoing assault of the victim on 11 August 2000. · Comments and Conclusions 9 The respective individual roles of the three respondents having been thus delineated, it is appropriate to step back and to take a synoptic view of the criminal enterprise in which the respondents played their respective parts. 10 It must be said at once, in my opinion, that the enterprise was, from first to last, one of very high criminal culpability. The victim was a young man who is not suggested to have done anything whatsoever to bring about the various abuses and indignities that the three respondents helped to heap upon him. He was systematically, and throughout some four days, humiliated, terrorised and physically abused with resulting serious bodily injury; and all in aid of persistent attempts to extort money from him and from his family. 11 It does no useful service to the principled administration of criminal justice to mince words about such conduct. Such conduct flouts both public order and the essential human dignity of the particular victim; and anyone who plays a significant role in such conduct has no just grievance if a very severe view is taken of his objective criminality. It is, in my opinion, the plain duty of any Court which is called upon to deal with such conduct to denounce it forthrightly and to deter its repetition, both by the particular offenders and by other potential offenders, by backing up forthright denunciation with condign punishment. 12 The relevant principles are stated, if I may respectfully say so, with clarity and resolve in the closing sentences of the speech of Lord Templeman in Reg v Brown & ors (1994) 1 AC 212 at 237: "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised." 13 It is the fact that his Lordship was speaking in the context of a case in which the pleasure took the form of aberrant sexual gratification. I can see, however, no convincing distinction of principle between that sort of gratification and the sort of gratification that is obtained by extortion, or by ruthlessly attempted extortion, where a significant aspect of what is being done is, precisely, "the infliction of pain". 14 The learned primary Judge, in his Honour's remarks on sentence, makes two comments which attracted substantial argument at the hearing of the present appeals. 15 His Honour says: "I am satisfied that although each of you played a significant role in the detention of Sidik for advantage that you did not play a main role in the case of any of you." and "In my view, your roles in the commission of this offence place your criminal culpability at the lower, medium end of the range of seriousness for these offences." 16 As to the first of those comments, I respectfully agree with his Honour's assessment, but with the important proviso that the playing of a significant role in an outrageous episode of criminal violence calls for a correspondingly significant punishment, notwithstanding that some other participant might well be found to deserve an even higher level of sentence. 17 As to his Honour's second comment, I am not clear about what the remarks, as transcribed, are intended precisely to convey. If, as I suspect is the fair construction of what is actually recorded, his Honour was saying that the criminal culpability of each respondent was, looking only at objective criminality, at the lower to medium end of the statutory range of sentence, then I would respectfully disagree with that assessment. It is trite that the correct point of departure in any sentencing exercise is a fair assessment of the objective seriousness of the offending behaviour. In my opinion, such a fair assessment of the offending behaviour of each of the present respondents puts that behaviour, in terms of its objective seriousness, at about the mathematical mid-point of the relevant statutory scale of sentence.
The Relevant Subjective Considerations · The respondent Hendradinata 18 This respondent was born on 16 January 1980. He was aged, therefore, some 20-1/2 years at the time of his offending. He is aged now 23 years and some 5 months. 19 The following extracts from the remarks on sentence give a fair overview of this respondent's subjective profile: "You were born in Indonesia. You speak English quite well. You are the eldest of three children. Your mother and step-father live between Sydney and Hong Kong. Your natural father separated from your mother when you were quite young. You see him when you holiday in Indonesia. You came to Australia in 1995 to further your education. You obtained your Higher School Certificate in Australia. You went on to a business college and then Charles Sturt University to study business management. You have obtained a degree in business studies but you have no actual work experience. You indicated to the author of the pre-sentence report that you do not use alcohol or drugs and I accept that. The author of the pre-sentence report expresses the opinion that you appear to be a quiet and rather ingenuous young man who apparently lacks some direction and motivation. However, you are an intelligent young man. I also have the benefit in your case of a report of a clinical psychologist, W. John Taylor, the report being dated 1 July 2002. I have taken into account all of the contents of that report although I do not intend to refer in detail to it. Mr. Taylor indicates that you have a stable but immature personality to some extent. Your personality profile does not suggest that you have any anti-social or aggressive characteristics and Mr. Taylor expresses the view that you have quite a strong possibility of being able to live a stable and productive life in the future once you've been able to gain an appropriate level of maturity. Mr. Taylor has carried out an analysis of your potential for recidivism and that apparently suggests that this is very low. He notes that any time spent in custody will be difficult for you and perhaps more difficult than for the average inmate. I have letters from your mother and your step-father and I have taken all the matters raised in those letters into account." 20 The learned sentencing Judge gave consideration to the perceived likely consequences that would be entailed, so far as concerns the immigration status of the respondent and his family were the respondent to be sentenced to a period of imprisonment greater than 12 months. It is not necessary to traverse the entirety of the material that was placed before his Honour in that connection. It suffices to note that his Honour, having indicated that he was proposing to pass a sentence of a longer duration than 12 months, made the following very strong observations: "………………I should indicate my view on the basis of the material before me including the evidence at trial concerning your role in the commission of this crime, and the matters put before me on sentence and in particular those matters referred to in the pre-sentence report and the report of Mr. Taylor that it is extremely unlikely that you will ever re-offend. In my view if you were allowed to remain in Australia there is no significant risk that you would engage in further criminal conduct or harass, molest, intimidate or stalk another person in Australia, vilify any segment of the Australian community or incite discord in the Australian community or in a segment of that community or represent a danger to the Australian community or to any segment of that community in any way. In my view the prospects of your being a productive member of Australian society following your release from prison are high, particularly if you make use of your undoubted intelligence, the education you already have and if you avail yourself of the opportunity to rehabilitate using the assistance and supervision of the Parole Service upon your release." 21 The conclusions drawn by his Honour from the reports and other materials placed before him in connection with sentence seem to me to have been open to his Honour. 22 His Honour found special circumstances upon bases which need not now be detailed. Suffice it to say that, in my respectful opinion, his Honour's finding of special circumstances was amply open on the material before him. · The respondent Rossi 23 This respondent was born on 16 May 1982. He was aged, therefore, a little over 18 years at the time of his offending. He is now aged a little more than 21 years. 24 It is, once again, convenient to note some of the findings of the learned primary Judge. They are: "You are of Indonesian background. Apparently raised in a stable family environment, you have been described by your mother as affable and compliant but overly willing to assist your many friends in any way and excessively loyal towards those friends. Your mother thought that you did not seem to realise the seriousness of your involvement but she believes that you now regret your actions. I am prepared to accept that expression of regret although made at a relatively late stage. You obtained your Higher School Certificate in 1999. You have taken several TAFE courses, principally in tourism and management but also in marketing, but you failed to complete all of those courses. You have had various part time jobs from the age of thirteen or fourteen and since leaving school you have had various part time work, mainly as a shop assistant. You have asserted, and I accept, that you have never used illicit drugs or alcohol. The author of the pre-sentence report expresses the opinion, which I accept, that you appear to have genuinely lived a reasonable and responsible way and that the only known area of concern is your choice of some of your associates. The author of the pre-sentence report indicates that this appears to be an issue which you are aware of and which has caused you to reflect on your future. The author of the pre-sentence report indicates that this problem of choice of associate seems to be the main factor relevant to your offending behaviour but he also indicates that you appear to have learned a salutary lesson from the impact of your current time in custody. Although you have indicated that you do not consider that you are in need of any professional intervention as you do not believe that you have any significant problem areas in your life, apart from acknowledging that you need to be more circumspect with regard to your friends in the future, I nevertheless intend to impose a non parole period which will give you the opportunity to consult with and receive the assistance of the Parole Service should that in fact be of any assistance to you upon your release from prison." 25 It will be observed that his Honour made repeated reference to a pre-sentence report. His Honour does not take up in any particular way one particular feature of that report, which is expressed as follows: " Attitude to Offences: Mr. Rossi failed to accept any responsibility for his offending behaviour. He stated that he maintains his innocence of the offences for which he has been convicted. He commented that he is 'guilty of being there, I am not happy with the part that I have taken, I should have alerted the police earlier of the problem at hand'. He claimed that only one of the co-offenders is known to him and described him as his closest friend of many years standing. Mr. Rossi claimed that he and this co-offender were "pulled" into their involvement in the offences because of a third party. Requested to identify any problem areas relative to his offending behaviour, Mr. Rossi advise that with hindsight it was not wise for him to associate with certain people. He commented that he will not be repeating this error of judgment in the future." 26 This respondent gave brief evidence at the sentencing hearing. The first paragraph of the statement which I have quoted above was put to him by his own counsel, and he was asked whether he maintained that expressed position. He responded: "Yes, that's correct". 27 I have to say that I find this material troubling. It seems to me to show an attitude that is, I think it fair to say, common in substance to all three of the present respondents. That attitude is one that does not seem to accept that there was, in a real and substantial sense, any moral responsibility on the offender's part for what was done by him in particular to the unfortunate Mr. Sidik. I realise that there is no set form of expression of proper remorse; but I think that a Court is entitled to look for something in the way of a frank and credible acknowledgement that what was done both by the particular offender, and by others with the implicit acceptance of the particular offender, went far beyond a more or less adventitious misfortune from the offender's own point of view; and was positively and seriously wrong, both as a significant breach of the criminal law, and as a significant failure in personal, social and moral responsibility. 28 I think that it should be kept in mind in that context that each respondent pleaded simply not guilty to the charge(s) presented respectively against him in the indictment. Each respondent appears to have run at trial, as, of course, he was entitled to do, a defence in the nature of a defence of duress. In other words, each respondent asserted at trial a legal entitlement simply to walk away scot-free from his individual participation in the overall criminal enterprise. The jury rejected, plainly, any such defence; as did his Honour in his findings made independently and in connection with sentence. 29 These considerations make both unattractive and troubling what seems to me to be the continuing, and broadly common, position of each of the three present respondents, that it was all, really, the fault of Tjong, (also know as Apiau); and that it was, really, bad luck that he was caught up, helplessly, in the enterprise. I am far from convinced that any one of the respondents is truly remorseful in what I have earlier suggested to be the relevant sense for present purposes. 30 Save for this one, but in my opinion significant consideration, I would accept his Honour's findings as having been open on the evidence. His Honour found, and it was in my respectful opinion open to his Honour to find, both very good prospects of rehabilitation, and special circumstances. · The respondent Antaredjo 31 This respondent was born on 10 April 1981. He was aged, therefore, a little more than 19 years of the time of his offending. He is now aged 22 years and some 2 months. 32 This respondent's general subjective profile was found as follows by his Honour: "You were born in Jakarta, Indonesia and came to Australia with your family when you were about twelve. Your parents had separated and divorced prior to that. You have little memory of your father and you regard your step-father as your father. Apparently the family atmosphere has been good. Your mother regards you as a good person but has been concerned about your choice of friends. You have a girl-friend who has visited you in custody. You attended high school in this country and obtained your School Certificate. You sat for your Higher School Certificate but apparently failed to obtain it. Your English is apparently reasonable but the author of the pre-sentence report takes the view that you may have some difficulty in comprehension. After you left school at eighteen you worked as an attendant in an electronic entertainment arcade. You worked in a fast food outlet. You've said that ultimately you would like to work as a counsellor, helping people. You have reported to the author of the pre-sentence report, and I accept, that you do not use drugs or drink alcohol. 33 In the case of this respondent, also, his Honour found good prospects of rehabilitation, and special circumstances. 34 What I have said earlier herein about the topic of remorse is as broadly applicable to the case of this respondent as to the cases of his two co-offenders. 35 The cases are not, of course, precisely on all fours. In the case of the present respondent there was an apparently willing acceptance of a suggestion, made by the probation officer who prepared the pre-sentence report, of "offender conferencing", a potentially useful, albeit somewhat unhappily expressed, notion that I infer to mean a conference in person between offender and victim. The respondent confirmed this readiness in some comparatively brief evidence given by him at the sentencing hearing. 36 As against that, and immediately preceding the section of the pre-sentence report dealing with the prospect of a one-on-one conference between the respondent and the victim, there is a paragraph of the pre-sentence report reading as follows: " Factors Relating to Offending The offender said that he was introduced to the offence by an acquaintance and then took part in the attack on the victim under duress. He said that he believes the ring-leader is a criminal who issued threats against him and his family which were reinforced by showing him a gun. Mr. Antaredjo said that he felt scared and took the threats seriously. He added that he still regards this man as being capable of carrying out threats against him and his family." 37 Save for a concern as to genuine remorse in the relevant sense, I do not see any justification for differing from his Honour's essential findings upon this respondent's particular subjective features.
The Balancing of the Relevant Objective and Subjective Factors: has Error, whether Latent or Patent, been Demonstrated? 38 The terms of the sentences which were passed respectively upon the present respondents have been noted earlier herein. The following facts are immediately apparent:
[1] His Honour sentenced each respondent in connection with the kidnap offence upon the basis that each respondent should be sentenced identically, save only for necessary variations, as earlier herein explained, in the dating of the individual sentences.
In my respectful opinion no error is demonstrated in this approach.
[2] His Honour sentenced, similarly, each of the respondents Rossi and Antaredjo in respect of the malicious and intentional inflicting of grievous bodily harm.
In my respectful opinion no error is demonstrated in this approach.
[3] The minimum time actually to be served for the one offence of kidnap is, in the case of the respondent Hendradinata, 18 months. The minimum term actually to be served by each of the respondents Rossi and Antaredjo for an offence of kidnap and an associated offence of maliciously and intentionally inflicting grievous bodily harm, is 2 years.
[4] The maximum time that might have to be served by the respondent Hendradinata, should he be refused parole, is 4 years. The comparable term for each of the respondents Rossi and Antaredjo is, having regard to the practical effect of the partial cumulation of sentences, 4-1/2 years. 39 In my opinion both the head sentences and the accompanying non-parole periods are, with respect, manifestly inadequate to the circumstances of each of the individual cases of the three respondents. In reaching that conclusion I have had very much in mind some observations made by Sir John Barry, a sometime Judge of the Supreme Court of Victoria, in a lecture given by him in 1969 on the subject of: "The Courts and Criminal Punishment". Those observations of Sir John were cited with approval by McHugh, Hayne and Callinan JJ in their joint judgment in Pearce v The Queen (1998) 194 CLR 610 at 622(39). The propositions advanced by Sir John Barry are these: "Dr. Leon Radzinowicz has rightly observed that the criminal law is fundamentally 'but a social instrument wielded under the authority of the State to secure collective and individual protection against crime'. It is a social instrument whose character is determined by its practical purposes and its practical limitations. It has to employ methods which are, in important respects, rough and ready, and in the nature of things it cannot take fully into account mere individual limitations and the philosophical considerations involved in the theory of moral, as distinct from legal, responsibility. It must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime." 40 In my opinion the learned primary Judge was in error in his assessment of a just sentence for each respondent. In my opinion the objective criminality was, in each case, of such a magnitude that, even with due allowance made for subjective factors, the sentences passed were plainly inadequate. The head sentences passed uniformly upon the three respondents for the offence of kidnap were 20 per cent of the statutory maximum. The head sentence passed uniformly upon the respondents Rossi and Antaredjo for the very serious offence of maliciously and intentionally inflicting grievous bodily harm was 12 months measured against a statutory maximum 25 times as great. Sentences of that degree of lenience cannot be, in my respectful opinion, responsibly sustained. 41 The same is, in my opinion, even more the case when the respective non-parole periods are considered with a proper discernment as to their practical effect. Effective imprisonment for 18 months in one case, and for 2 years in each of the other two cases, is in my respectful opinion so disproportionately lenient that those outcomes, too, cannot be responsibly sustained. 42 In my opinion clear and convincing cause has been shown for the intervention of this Court. 43 The cases of the present respondents are not, in my opinion, cases where some technical, or hyper-refined, or borderline error has been demonstrated, so as to raise in a real and substantial sense the need to look closely at the undoubted power of this Court to decline, as a matter of residual discretion, to intervene in the particular cases.
Re-sentencing by this Court 44 It is trite that this Court, in now re-sentencing, must proceed with a proper circumspection. The consideration of double jeopardy is a real one, and must be given more than mere formal acknowledgement. Even more important is the need to avoid a degree of intervention that disrupts needlessly and insensitively the apparent prospects for rehabilitation of three comparatively young offenders. 45 I would approach the re-sentencing of the present respondents by the following process of reasoning:
[1] A proper sentence at first instance for the kidnap, the extended detention, and the substantial injury while unlawfully detained, of Mr. Sidik was, in my opinion, a head sentence in the order of 6 years, with a non-parole period in the order of 3-1/2 - 4 years.
[2] A proper sentence at first instance for the section 33 offence, and looking at that sentence as a discrete sentence fixed according to the principles established by the decision in Pearce , was in my opinion a head sentence in the order of 6 years and a non-parole period in the order of 4 years.
[3] A proper application of the principles of totality and of proportionality would have justified, in the cases of the respondents Rossi and Antaredjo, a partial cumulation structured so as to produce an effective head sentence in the order of 7-1/2 years and an effective non-parole period in the order of 5 years.
[4] The restraints proper to re-sentencing in the wake of a successful Crown appeal would be properly accommodated, in my opinion, if the respondent Hendradinata were re-sentenced to a head sentence of 5 years with a non-parole period of 3 years; and if each of the respondents Rossi and Antaredjo were re-sentenced so as to produce an effective head sentence of 6 years and an effective non-parole period of 4 years. 46 To the foregoing ends, I would favour the making of orders:
[1] That in each case the Crown appeal be allowed and that each of the sentences passed at first instance be quashed.
[2] That the respondent Hendradinata be re-sentenced to imprisonment for 5 years commencing on 22 May 2002 and expiring on 21 May 2007, with a non-parole period of 3 years commencing on 22 May 2002 and expiring on 21 May 2005.
[3] That the respondent Rossi be re-sentenced as follows: · On count 1: to imprisonment for 5 years commencing on 26 May 2002 and expiring on 25 May 2007 with a non-parole period of 3 years commencing on 26 May 2002 and expiring on 25 May 2005. · On count 2: to imprisonment for 5 years commencing on 26 May 2003 and expiring on 25 May 2008 with a non-parole period of 3 years commencing on 26 May 2003 and expiring on 25 May 2006
[4] That the respondent Antaredjo be re-sentenced as follows: · On count 1: to imprisonment for 5 years commencing on 11 May 2002 and expiring on 10 May 2007 with a non-parole period of 3 years commencing on 11 May 2002 and expiring on 10 May 2005. · On count 2: to imprisonment for 5 years commencing on 11 May 2003 and expiring on 10 May 2008 with a non parole period of 3 years commencing on 11 May 2003 and expiring on 10 May 2006. · 47 BUDDIN J: I agree with Sully J. **********
Last Modified: 07/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
(1998) 194 CLR 610
Crown appeals allowed; sentences imposed at first instance quashed. Re-sentencing orders: Hendradinata — imprisonment 5 years (22 May 2002–21 May 2007) with non-parole period 3 years (22 May 2002–21 May 2005). Rossi — Count 1: imprisonment 5 years (26 May 2002–25 May 2007) non-parole 3 years (26 May 2002–25 May 2005); Count 2: imprisonment 5 years (26 May 2003–25 May 2008) non-parole 3 years (26 May 2003–25 May 2006). Antaredjo — Count 1: imprisonment 5 years (11 May 2002–10 May 2007) non-parole 3 years (11 May 2002–10 May 2005); Count 2: imprisonment 5 years (11 May 2003–10 May 2008) non-parole 3 years (11 May 2003–10 May 2006) (see [46]).