[2018] ACTCA 57

APPEAL - CRIMINAL LAW - Crown appeal against sentence - unlawful confinement - demands accompanied by threats - trafficking in a controlled drug other than cannabis - unlawful possession of stolen property - possessing cannabis - whether sentence for unlawful confinement was manifestly inadequate - co-offenders - parity principle - general deterrence for vigilante justice - sentence for unlawful confinement manifestly inadequate - appeal allowed - offender resentenced

Crimes Act 1900 (ACT), ss 32, 34

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33

Drugs of Dependence Act 1989 (ACT), s 171(1)(b)

Supreme Court Act 1933 (ACT), s 37E(2)(a)

Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638

CMB v A-G (NSW) [2015] HCA 9; 256 CLR 346

DPP v Dalgleish [2017] HCA 41; 91 ALJR 1063

Green v The Queen [2011] HCA 49; 244 CLR 462

Hili v The Queen [2010] HCA 45; 242 CLR 520

Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Naqvi v The Queen [2017] ACTCA 52

Ndovlu v The Queen [2018] ACTCA 33

R v Avery [2018] ACTSC 64

R v Barlow [2017] ACTSC 90

R v Chatfield [2012] ACTCA 32

R v Duffy [2014] ACTCA 53; 297 FLR 359

R v Froome [2018] ACTSC 152

R v KB [2017] ACTSC 344

R v Le Clair R v Yeboah [2016] ACTSC 126

R v Lee [2017] ACTCA 30

R v Musolino [2018] ACTSC 3

R v Ndovlu [2017] ACTSC 244

R v Sharp [2018] ACTSC 286

R v Speechley [2012] NSWCCA 130; 221 A Crim R 175

Singh v The Queen [2015] ACTCA 65

Citation: [2018] ACTSC 64

1. The appellant has appealed against one of the sentences (the sentence for unlawful confinement) and the resulting total sentence imposed by Justice Elkaim (the sentencing judge) on 13 March 2018: R v Avery [2018] ACTSC 64; on the ground that the individual sentence was manifestly inadequate and, in consequence, the total sentence was manifestly inadequate.

2. The sentencing judge imposed the following sentences:

Unlawful confinement (Crimes Act 1900 (ACT), s 34)

Demands accompanied by threats (Crimes Act, s 32)

Trafficking in a controlled drug other than cannabis (Criminal Code 2002 (ACT), s 603(7))

Maximum penalty: 10 years imprisonment and/or a fine

Unlawful possession of stolen property (Criminal Code, s 324)

Maximum penalty: six months imprisonment and/or a fine

Possess cannabis (Drugs of Dependence Act 1989 (ACT), s 171(1)(b))

3. The total sentence of 16 months imprisonment commenced on 4 May 2017 and ended on 3 September 2018. The sentencing judge fixed a non-parole period of 12 months (75 per cent of the head sentence), ending on 3 May 2018. The offender was released on parole on 16 May 2018 and completed his sentence prior to the hearing of the appeal.

4. The sentencing judge allowed a discount of approximately 35 per cent and the Crown did not appeal against the discount. Based upon this level of discount, the starting point for the sentence for unlawful confinement was 18 months imprisonment.

5. The appeal is pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT). On such an appeal, the Court of Appeal has the power to increase or decrease the sentence or substitute a different sentence.

6. On a Crown appeal, such as the present, the relevant principles were recently reiterated by this Court in R v Lee [2017] ACTCA 30 at [53]- [57]. The principles reflected in the authorities discussed therein may be summarised as follows:

(a) Although s 37E of the Supreme Court Act permits an appeal to the Court of Appeal from any order of the Supreme Court, courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly.

(b) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.

(c) Examples of the occasions for the bringing of a Crown appeal are:

• (i) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
• (ii) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;
• (iii) to enable the courts to establish and maintain adequate standards of punishment for crime;
• (iv) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected;
• (v) to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that public confidence in the administration of justice can be maintained; and
• (vi) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.

(d) The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.

(e) In resentencing after a successful Crown appeal, the Court is bound to consider the matters set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) and impose a sentence that was appropriate in the first place.

7. In essence, the Crown argues that the sentence imposed for the offence of unlawful confinement falls outside the acceptable range for such offending, is wholly disproportionate to the objective seriousness of the offending and failed to achieve the relevant sentencing purposes.

8. At about 8:15pm on 9 April 2017, the respondent and co-offenders forced the victim into a car and drove him to the respondent's house. At the instruction of the respondent, the victim was duct taped to a chair. The respondent began to interrogate the victim about missing drugs and money. Each time that the victim's response was deemed to be unsatisfactory, the respondent or a co-offender struck the victim to the head. Others who were present giggled and made comments about taking the victim to "the Brindies" (the Brindabella Range, a remote bush area). The victim feared for his life.

9. At one point, a co-offender, Cameron Sharp, placed a baseball bat at the front of the victim's neck and pulled it backwards with such force that the victim, who was still tied to the chair, was lifted off the ground for about 20 seconds and could not breathe during that time.

10. The respondent pushed the end of the blade of a pair of scissors into the victim's neck, piercing his skin.

11. When the victim continued to deny any knowledge of the missing drugs or money, the respondent struck the victim to the temple, rendering him unconscious for an unknown period.

12. One of the co-offenders untied the victim and told him to go to the bathroom and clean himself up. When the victim returned, he was grabbed from behind and a towel was placed over his head. His head was tilted backwards and water was poured over his face. Over a period of several minutes, this occurred eight times. On each occasion, the victim was held down and struggled to breathe.

13. The respondent demanded that the victim return the following day with papers to his car and the sum of $3000 (this conduct was the subject of the offence of making demands accompanied by threats).

14. At 11:25pm, Mr Sharp, returned the victim to his residence.

15. Following the offences, the victim had significant bruising and swelling to his face and body.

16. On 4 May 2017, police executed a search warrant at the respondent's house. They located 101 'MDMA' tablets, 154.6g of cannabis and $785. The drugs were the subject of the charges of trafficking in a controlled drug and possession of cannabis. The money was the subject of the charge of possession of property reasonably suspected of being stolen.

17. Three co-offenders were sentenced in relation to the events giving rise to the charges against the respondent of unlawful confinement and making demands with threats.

18. On 29 January 2018, the sentencing judge sentenced the co-offender, Kyle Musolino, for aiding and abetting the offence of unlawful confinement to nine months imprisonment (after an approximate 20 per cent discount): R v Musolino [2018] ACTSC 3. This reflected a starting point of 11 months imprisonment for the aiding and abetting the unlawful confinement.

19. On 29 May 2018, the sentencing judge sentenced the co-offender, Zachary Froome, to seven months and 10 days imprisonment on a charge of unlawful confinement and the same sentence upon a charge of making demands accompanied by threats. The sentences incorporated a 35 per cent discount: R v Froome [2018] ACTSC 152, which reflected a starting point of just over 11 months.

20. On 17 October 2018, the co-offender, Mr Sharp, received a sentence of 15 months imprisonment with a non-parole period of 10 months imprisonment. The sentence imposed on the unlawful confinement charge was 14 months and the same sentence was imposed upon the charge of making demands with threats. The sentences were cumulative as to one month. The sentences incorporated a discount of 12 per cent on account of the plea of guilty reflecting a starting point of 16 months imprisonment: R v Sharp [2018] ACTSC 286.

21. These sentences were not the subject of the Crown appeal, although the Crown contended on this appeal that they were manifestly inadequate.

Sentencing judge's assessment of objective seriousness

22. The sentencing judge at [20] assessed the offences against the victim as "objectively serious", stating:

It is also important that I take into account the nature of the offences, particularly the unlawful confinement offence. This was, no doubt, a terrifying experience for the victim. Extreme violence was used, including implements like scissors and elements of torture such as placing of the towel over the victim's head. At one stage, the victim feared for his life. The offences against the victim are objectively serious.

23. Other circumstances relevant to a consideration of the objective seriousness of the offence were not referred to by the sentencing judge, although his Honour was obviously aware of them. They were:

(a) The respondent was the instigator of the offence and played a key role (earlier, he had threatened to send people around to the victim's house, the confinement occurred in the respondent's house, the respondent directed other offenders to tie the victim to the chair, the respondent commenced the interrogation of the victim).

(b) The offence was committed in the company of six other people (contributing to the victim's feelings of helplessness).

(c) The purpose of the offence (it was a vigilante type offence motivated by the desire to retaliate for alleged misconduct of the victim).

(d) The length of the confinement (about three hours).

(e) The level of physical restraint (for most of the time the victim was either tied to a chair or held down).

(f) The fact of premeditation (earlier in the day, the respondent had threatened to send people to the victim's house).

(g) The repeated physical assaults that were perpetrated on the victim (repeated beating eventually rendering the victim unconscious, some of the assaults including the rendering of the victim unconscious being perpetrated by the respondent himself).

(h) The use of weapons (scissors and a baseball bat, and the fact that the respondent himself used the scissors).

(i) The humiliation of the victim (offenders giggling while he was being threatened and beaten).

(j) The fact that the victim sustained actual bodily harm (significant bruising).

24. This is not a matter where the discrete criminal acts occurring within the unlawful confinement (including the numerous, significant assaults) were the subject of separate charges, and that conduct should be reflected in the sentence for the unlawful confinement offence: cf Singh v The Queen [2015] ACTCA 65 at [113]; Naqvi v The Queen [2017] ACTCA 52 at [29].

25. The offence of unlawful confinement was an extremely serious offence of its type.

26. The sentencing judge outlined the relevant subjective circumstances at [4]-[9] as follows:

The offender was born in 1982 in Canberra. He is one of three children and is very close to his siblings. He is also very close to his mother. He has little to no relationship with his father.

The offender has completed Year 12 and has obtained qualifications in powder coating and concreting. He also has a security licence. His history of employment was curtailed in 2014, following a shoulder injury. The offender has been reliant upon pain medication and received compensation payments until his claim was finalised. His dependence on medication may have played a part in his later use of illicit drugs.

It is of particular concern that the offender has previously been associated with an Outlaw Motorcycle Gang. He has said that he has disassociated himself from all known members. I hope that this is an accurate statement.

The offender has two children from a previous relationship. Prior to going into custody, he maintained regular contact with them.

The offender's use of cannabis is longstanding. Unfortunately, he started using harder drugs in 2017. He seems to have been able to stay away from drugs while in prison.

The offender has some mental health issues which were previously undiagnosed and untreated. He has received some treatment while in custody.

27. The respondent had a negligible criminal history, a single conviction for driving while suspended and a common assault which was dealt with without conviction.

28. The appropriate penalty must be assessed against the maximum available penalty of 10 years imprisonment: DPP v Dalgleish [2017] HCA 41; 91 ALJR 1063 at [10]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].

29. Sentencing purposes are set out in s 7 of the Crimes (Sentencing) Act. In relation to vigilante style offences, general deterrence is always a prominent sentencing purpose: R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [110]; R v KB [2017] ACTSC 344 at [49]. As Burns J observed in R v Le Clair; R v Yeboah [2016] ACTSC 126 at [62]:

People who engage in the drug trade cannot expect to live in their own subculture where they mete out punishment for failure to perform deals made in this illicit trade according to their respective strength. The drug trade is pernicious in itself but also because it encourages a separate culture of punishment, and often violent punishment, for the perceived failure to perform agreements made in the course of the trade.

30. It is relevant to have regard to comparable cases as a yardstick against which to compare a proposed (or actual) sentence. In R v Duffy [2014] ACTCA 53; 297 FLR 359 at [92], this Court observed that:

Comparable cases from the relevant jurisdiction are of most interest because, even where the maximum available penalties in different jurisdictions are the same, "unifying principles" may be expressed slightly differently and sentencing patterns may differ between jurisdictions. Further, a sentencing pattern that is disclosed by comparable cases from the relevant jurisdiction is not determinative because consistency in sentencing is not demonstrated by, and does not require, numerical equivalence: [Hili v The Queen [2010] HCA 45; 242 CLR 520].

31. In Singh, this Court surveyed comparable cases about unlawful confinement where violence was present, noting that they usually attract a sentence of between two and five years' imprisonment, with the high sentences being reserved for matters involving a high level of violence causing physical injury or threatening to cause injury or death, and where the offender had a significant criminal history: Singh at [108].

32. In Singh, the complainant was unlawfully confined by the appellant for a period of about one and a half hours. The complainant had earlier been abducted and taken to an apartment where she was then unlawfully confined by the appellant. During that period, the offender engaged in sexual intercourse with the victim without her consent on three occasions. Those offences were charged separately. The Court of Appeal allowed an appeal against the severity of the sentence imposed for this offence and sentenced the offender to four years imprisonment. The three counts of sexual intercourse without consent committed during the confinement attracted sentences of five years, five years and six years, respectively.

33. In Le Clair, the confinement occurred in the context of a drug deal gone wrong. The two offenders attended the victim's house, held a knife against the victim's throat and forced him into a car at knife point. While in the car, they threatened him with serious injury. The victim temporarily escaped and was then recaptured. The confinement continued across the New South Wales border where he was ultimately abandoned. Relevant features were that the offenders had not insignificant criminal histories, the confinement lasted a couple of hours, weapons were used, the victim feared for his life, and the offence involved vigilante justice. However, there was no premeditation and limited acts of physical violence. The starting point for the sentences were three years and nine months and three years and three months, respectively. The offenders appealed but this Court saw no error in relation to the sentences: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19.

34. In R v Ndovlu [2017] ACTSC 244, the offender held a rival drug dealer at gunpoint for 20 minutes in his car and told him to drive the vehicle. The offender made threats to kill the victim and struck the victim's head numerous times with the end of a gun. The motive for the offence was vigilante justice, there was some physical violence, there was a degree of premeditation and the confinement involved the use of a weapon. On the other hand, the offender was 21 years old with no prior convictions. The starting point for the sentence was four years imprisonment. On appeal, the sentence was upheld: Ndovlu v The Queen [2018] ACTCA 33. At [22], the Court noted:

We do not accept the submission that the circumstances in the case of Le Clair v The Queen were objectively more serious than the present. Although the circumstances involved the use of a knife held to the victim's throat and threats of very serious bodily harm, they did not involve an immediate apprehension of death.

35. In R v Barlow [2017] ACTSC 90, the unlawful confinement arose out of a dispute about property stored at the victim's premises. The offender drove the victim against the victim's will to a unit in Wanniassa. The victim was tied to a stool and electrical tape was placed around his head and eyes. At some point while the victim was restrained, the offender kicked the victim in the face. Ultimately, the victim was released at a location near his home. The acts of physical violence were charged separately and the offender was sentenced on the basis that the victim was significantly frightened but did not fear for his life. The starting point for the sentence for unlawful confinement was four years imprisonment.

36. On a Crown appeal against sentence, if the sentence is to be increased, the Crown must not only identify appellable error but must also negate any reason why the residual discretion not to interfere should be exercised: CMB v A-G (NSW) [2015] HCA 9; 256 CLR 346 at [34]- [35]. It is important to note that this is a hurdle for the Crown to overcome rather than a matter for the respondent to persuade the Court of: CMB at [36].

37. The respondent submitted that the Court should exercise its residual discretion and decline to intervene. The respondent identified two matters. First, the respondent has served the sentence imposed by the sentencing judge. The 12 month non-parole period ended on 3 May 2018 and the respondent was granted parole on 16 May 2018. The total sentence expired on 3 September 2018. Second, the respondent contended that a significant increase in sentence would disturb the parity between the offender's sentence and those imposed upon the co-offenders. In Green v The Queen [2011] HCA 49; 244 CLR 462 at [40], the majority observed:

Having regard to the purpose of Crown appeals, the Court in such a case may decide not to intervene so as not to disturb parity between the sentence appealed from and that imposed on the co-offender.

38. Notwithstanding the submissions of the respondent, we consider that the Crown has surmounted the hurdle of negating any reason why the residual discretion not to interfere should be exercised. Having regard to the gravity of the offending conduct and the extent of the departure from current sentencing practice, we consider that notwithstanding the offender has completed his sentence we should intervene to correct error and resentence the respondent.

39. Having regard to the maximum penalty and the sentencing patterns of the Court in relation to offences of unlawful confinement, the starting point for the sentence for the offence of unlawful confinement was manifestly inadequate. The appropriate starting point was a sentence of four years imprisonment. Applying the discount of 35 per cent gives a sentence of 31 months (two years and seven months).

40. Notwithstanding that the Crown has surmounted the hurdles necessary for the Court to resentence the respondent, the two matters raised by the respondent are matters which, in different ways, must be taken into account.

41. Regard must be had to the sentences imposed upon the respondent's co-offenders in determining the sentence imposed. The sentences imposed upon the respondent's co-offenders were undoubtedly lenient ones. It is unnecessary to determine the Crown's contention that they were manifestly inadequate. The fact is that those sentences were imposed and were not the subject of any appeal. In those circumstances, although it is necessary to resentence the respondent in a manner which appropriately reflects the objective seriousness of the unlawful confinement, the sentences imposed upon the co-offenders provide a basis for the early suspension of the sentences imposed upon the respondent.

42. While it is not open to the Court to take into account the presumed anxiety and distress of the respondent upon a resentencing: Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 at [28]; R v Chatfield [2012] ACTCA 32 at [71]- [73], it is open to take into account the fact that the offender has successfully completed his sentence and that there is no evidence of any further offending conduct in the period since.

43. Having regard to the nature of a Crown appeal and the fact that there was no challenge to the magnitude of the other sentences imposed or the limited extent to which they were cumulative upon the sentence for the unlawful confinement, those other sentences and the relationship between them will not be disturbed. However, we should not be taken as approving the degree of concurrency allowed. The sentences for making demands accompanied by threats, unlawful possession of stolen property and possession of cannabis were made wholly concurrent with the sentence for unlawful confinement. The making of the demands with threats added to the overall gravity of the offending conduct. The two drug related charges involved additional offending which were not closely related to the other offending conduct. In our view, subject only to questions of totality, the sentences for those offences ought to have involved some degree of cumulation upon the sentence for unlawful confinement. However, having regard to the limited nature of the Crown appeal, it is not appropriate to disturb the relationship between the sentences.

44. The total sentence of imprisonment will therefore be two years and 11 months. The period of full-time imprisonment required to be served will be 12 months and 13 days - the period in fact served. Having regard to the fact that the period of full-time imprisonment has already been served, it is appropriate to suspend the balance of the sentences rather than set a non-parole period. This means that the sentences for unlawful confinement and trafficking in a controlled drug other than cannabis will be suspended from 16 May 2018.

2. The sentences imposed by the Court on 13 March 2018 are set aside and the offender is resentenced as follows:

(i) For the offence of unlawful confinement (CC2017/4989), the offender is sentenced to two years and seven months imprisonment commencing on 4 September 2017 and ending on 3 April 2020.

(ii) The sentence for the offence of unlawful confinement (CC2017/4989) is suspended on 16 May 2018 upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period from 16 May 2018 until 3 April 2020.

(iii) For the offence of trafficking in a controlled drug other than cannabis (CC2017/4991), the offender is sentenced to nine months imprisonment commencing on 4 November 2017 and ending on 3 August 2018.

(iv) The sentence for the offence of trafficking in a controlled drug other than cannabis (CC2017/4991) is suspended on 16 May 2018 upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act for the period from 16 May 2018 until 3 August 2018.

(v) For the offence of demands accompanied by threats (CC2017/12545), the offender is sentenced to 12 months imprisonment commencing on 4 May 2017 and ending on 3 May 2018.

(vi) For the offence of unlawful possession of stolen property (CC2017/4993), the offender is sentenced to three months imprisonment commencing on 4 May 2017 and ending on 3 August 2017.

(vii) For the offence of possessing cannabis (CC2017/12480), the offender is sentenced to three months imprisonment commencing on 4 May 2017 and ending on 3 August 2017.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.