Regina v Stott [2005] NSWCCA 36 | Case summary

Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Latham DCJ in the District Court at Sydney. 2 On 28 May 2003 the applicant was arraigned before her Honour upon an indictment of fifteen counts, all of which, save one, related to offences in which a young woman, CM, was nominated as the victim. The other count nominated her infant son ZM as victim. It is not presently necessary to detail the various counts. After arraignment a voir dire hearing was undertaken in connection with the Crown intention to adduce tendency or coincidence evidence from two women, whom I will refer to as JR and NF. On 2 June her Honour ruled that the evidence of those witnesses would, in substance, be admitted. 3 A trial before the judge and a jury commenced on 3 June. It proceeded until 17 June at which point it was indicated by the Crown Prosecutor that the calling of JR and NF was imminent. The following day counsel for the applicant sought that she be re-arraigned on a new indictment charging a single count pursuant to the now replaced s90A of the Crimes Act 1900 viz: "For that she between 7 January 1995 and 31 March 1998, at Leppington in the State of New South Wales, did detain with intent to hold CM for advantage to herself." 4 The section provided a maximum penalty of twenty years imprisonment unless it be proved that the victim was liberated without sustaining substantial injury in which event it would be reduced to fourteen years imprisonment. Her Honour found the proviso unproved and the applicant was sentenced to imprisonment for thirteen years with a non parole period of nine years. 5 Two grounds were argued in support of the application - the first asserted that the sentence was manifestly excessive and the second, that her Honour erred in finding "the risk of re-offending is sufficient to outweigh the subjective features". 6 With the exception of that stated in the second ground, there was no challenge to any finding made by the learned sentencing judge. Her remarks on sentence were detailed and exhibited careful analysis and reasons for her conclusions. Repetition of all those unchallenged findings need not be undertaken and they can be regarded as endorsed and incorporated herein. It is appropriate however to draw from the remarks a synopsis of the applicant's criminal conduct. 7 CM was living at Riverstone in a house previously occupied by the applicant's son. She was twenty years of age and with her resided her son then aged five months. In January 1995 the applicant brought her to live on her property in Leppington. Initially CM and her son resided in a bedroom and essentially kept to themselves. The applicant was absent for some weeks in February and March. After her return she began to assault and abuse CM almost on a daily basis. She kicked, punched and slapped her. CM was required to cook and maintain the household and deliver to the applicant whatever money she had. She was not paid for her services. The applicant cut CM's hair and burned her clothing, photographs, identification documents and other personal belongings. 8 On occasions she was permitted to use the telephone but her calls were monitored by the applicant. In the course of time she was required to sleep on the floor next to the applicant's bed. 9 The applicant threatened CM with violence should she attempt to leave and she inhibited physical contact by CM with her son. Not only did the applicant herself assault CM but she did so by means of command which was obeyed by her Rottweiler dog. 10 This virtual enslavement of CM continued over years. Specific cruelties included setting fire to a dress then being worn by CM which caused burns to her lower legs; pouring a pan of boiling water over her head causing burns to her head and upper shoulders; forcing CM to submit to having tattoos on her arms and taking her to a brothel conducted by an acquaintance of the applicant where she was told to make herself available for sexual intercourse with a client whose payment for this was taken by the applicant. 11 The situation terminated on 31 March 1998 when CM ran from the applicant's house under cover of darkness and sought assistance from a neighbour who took her to the city where she boarded a bus and fled to South Australia. When she arrived there CM went to South Australian police and sought their assistance principally to retrieve her son from the applicant. This was eventually achieved. 12 As her Honour remarked on several occasions the tale of horror which is only sketched in the foregoing observations would strain credulity in some respects and it was for that reason that the intended evidence of JR and NF assumed such importance in the Crown case. 13 Each of these women had been victims of discrete offences earlier committed by the applicant and although the offences were different it was correct, as the Crown submitted in the appeal, that the offences could be regarded as being in the same genre. CM, JR and NF were unknown to each other. Although the penalties imposed in respect of offences concerning JR and NF appear surprisingly lenient, it is significant that her Honour made findings of the facts concerning the applicant's crimes against those women, and again, those findings are not the subject of challenge. 14 In 1979 JR came to live at the applicant's premises following response to a newspaper ad seeking a person to work as nanny/housekeeper/farmhand. A promised wage was not forthcoming and in fact JR continued to receive unemployment benefits which she was required to sign over to the applicant. JR was beaten and struck and lived in constant fear of the applicant. In addition to physical assaults, JR was forced by the applicant to have sexual intercourse with a number of males, including the local baker, who received JR's "sexual services" as part payment for bread delivered to the applicant's household. 15 An aspect of particular cruelty was the forced feeding of repulsive mixed items which JR was made to re-ingest when she regurgitated the mixture. As later happened with CM, JR's hair was cut and her clothing was burned. She was also the victim of dog attacks consequent upon commands by the applicant. 16 The servitude of JR extended for about six months when she took the opportunity to hide in a paddock at night having been told to put out the garbage and she was able to make her way into a neighbouring farm where she sought help. This was forthcoming and she was later able to report (with her father) to police. 17 On 4 June 1980 the applicant was convicted on a charge of assault by a magistrate at Camden who imposed a fine of $500. Her Honour noted that the available records relating to this conviction were devoid of detail and it is therefore not known upon what facts the magistrate assessed this penalty but, as I have said, the findings made by her Honour were not attacked. 18 In July 1994 NF, who was acquainted with the applicant's son, moved into the applicant's premises, following some family discord. Initially NF had casual employment but after this was lost she commenced housekeeping for the applicant. By September 1994 the applicant had begun hitting NF and subjecting to her verbal abuse. Her hair was shaved. She was threatened with violence if she attempted to leave. Like CM she was required to sleep on the floor in the applicant's room. NF was also the victim of attack by a Rottweiler dog following command of the applicant. 19 In December 1994 NF was taken out in a car, which was occupied by the applicant and another person but the car had mechanical trouble when it was in Camden. NF was sent to a shop to borrow a screwdriver. She took the opportunity to flee and obtained a lift to Campbelltown where she made contact with a person whom she knew and sought help. She was taken to Campbelltown Police Station and a statement was later taken from her. 20 Police arrested and charged the applicant in respect to the treatment of NF on 14 December 1994 but she remained on bail until she was dealt with on 3 March 1999 when she pleaded guilty to one count of kidnapping and one count of assault occasioning actual bodily harm. On each of these charges the applicant was released upon entering recognizance to be of good behaviour for a period of two years. As the judge commented, an appalling delay in the disposition of the matter no doubt played some part in the ultimate assessment of penalty. It can be observed that the conduct regarding CM commenced within weeks of the applicant being charged in connection with her treatment of NF and she was at conditional liberty on bail during the whole of the time she was criminally detaining CM. 21 The principal thrust of submissions on behalf of the applicant in relation to the first ground was posited on the observation that collected statistics from the Judicial Commission of 113 cases of offenders convicted under s 90A demonstrated that this applicant received the highest total sentence and the highest non parole period. 22 Senior counsel for the applicant acknowledged the limited utility of statistics but drew attention to the circumstance that, even for the very late plea of guilty, her Honour stated that she gave a benefit of a discount of 12 percent and it follows that starting point of head sentence must have been in the order of fifteen years imprisonment. I would not quarrel with that arithmetic. 23 A schedule of some particular cases was provided to the Court. On its face this schedule had been extracted from a database and contained the caution that it was intended to be used as a guide and "individual cases should be read if they are to be relied upon". Counsel directed particular attention to the cases of Knight 2002 123 A Crim R 377 and Angeles [2001] NSWCCA 515. 24 The short statement of facts in relation to Knight read: "Being investigated for fraud - approached by female police officer when leaving a bank and asked to answer several questions - took hold of police officer and produced knife - officer cut on back of neck - held knife in to front of officer's throat, threatening to kill her - left bank with officer and continued down road - released a short distance later. Bipolar disorder". 25 The short statement of facts in relation to Angeles read: "With co-offenders planned to kidnap wealthy student and hold him for $8 million. Angeles - involved over several weeks before offence - acted as driver - waited in car while abduction took place - present and assisted when complainant bound and moved to another location six days later - unaware of the amount of ransom demand." 26 Both of those offenders received sentences considerably less than the applicant but as can readily be seen their actions were in no way comparable to those of the applicant. Neither at first instance nor in this Court has research revealed any case where a young woman had been kept in what amounted to slavery for a period of over three years. The seriousness of using the infant as a lever to enforce that slavery needs no emphasis. 27 The applicant appeared for sentence as a woman of fifty nine years with some health problems. Her Honour examined the material in relation to the applicant's health and noted that in 1997 a Dr Ban had expressed the opinion that the applicant "had evidence of multiple potentially treatable medical conditions which were possibly clouded and exaggerated by a possible mental condition." Her Honour concluded that much the same situation pertained at the time of sentence and no error is demonstrated. Her Honour also made reference to the psychiatric evidence from Doctors Skinner and Nielssen, which will be referred to when dealing with the second ground. I have mentioned the discount for the utilitarian value of the plea of guilty but her Honour found that the applicant had not thereby or otherwise demonstrated any contrition and she considered that the applicant lacked any insight into her offence. The structure of the sentence departed from the statutory proportion between head sentence and non parole period to the advantage of the applicant by a period of nine months. 28 It was acknowledged on behalf of the applicant that the facts of the offence were "unusual" but such an expression does not convey the intrinsic evil of circumstances where there was demonstrated by the applicant a callous and barbaric disregard for both the victim and her child. I do not consider the sentence has been shown to be manifestly excessive. 29 In support of ground 2 counsel pointed to her Honour's remarks where she said: "It is appropriate, therefore, to weigh the risk of dangerousness against those subjective features of the (applicant) which might otherwise call for a reduction in the penalty commensurate with the offence." 30 Following these remarks her Honour considered the subjective circumstances of the applicant and concluded: "In the result I have determined that the risk of re-offending is sufficient to outweigh the subjective features to which I have referred." 31 The applicant had declined to be interviewed by Dr Skinner but the doctor was given access to relevant transcripts, statements and material from earlier proceedings involving the applicant. Dr Skinner diagnosed the applicant as having a severe personality disorder with anti-social and narcissistic traits. She assessed the applicant as a considerable risk to others for the foreseeable future. The applicant had acquired a report from Dr Nielssen but as her Honour noted he did not have information concerning JR and NF until after he had commenced giving evidence in the sentencing proceedings. His written report, prior to that information being available included: "It is difficult to assess the risk of (the applicant) committing further similar offences, as the current charges appear to have arisen from the specific circumstances of her relationship with CM who may have been particularly vulnerable to being mistreated by (the applicant)." 32 After being apprised of the previous conduct of the applicant towards JR and NF he acknowledged: "The material does show a pretty distinct pattern over a long period of time that would increase my perception of risk, particularly the way in which young people came to (the applicant's) house." 33 Her Honour concluded that the applicant did represent a future risk to vulnerable members of the community although she accepted that her capacity to physically assault and intimidate through threats of violence was likely to diminish with age. Having made these findings and those observations she turned to the matters to which I have already made reference. Counsel drew attention to the observation that "the principle of proportionality is now firmly established in this country": Veen v The Queen (No 2) 1987-8 164 CLR 465 @ 472. It is also clear that the common law does not sanction preventive detention: Chester v The Queen 1988 165 CLR 611. 34 It is of course no novel proposition that not all principles of sentencing point in the same direction. The protection of society is a factor high in the aims of sentencing but extending a sentence for that purpose so that it amounts to preventive detention is forbidden. 35 I do not interpret her Honour's remarks quoted as revealing that her assessment is tainted by misapplication of the latter concept or otherwise. 36 In the absence of demonstrated error, the ultimate implicit question is whether the assessment lies outside the bounds of the sound exercise of discretion. In my opinion her Honour's assessment was well within those bounds. 37 I propose that leave to appeal against sentence be granted, but that appeal dismissed. 38 HIDDEN J: I agree with Grove J. 39 BELL J: I agree with Grove J. **********

Regina v Stott

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