AA v Regina

[2009] NSWCCA 109

New South Wales
Court of Criminal Appeal

CITATION:	AA v Regina [2009] NSWCCA 109
HEARING DATE(S):	10 February 2009
JUDGMENT DATE:	15 April 2009
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Adams J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Sentence appeal - several offences committed in the course of abduction - relationship of offences - avoidance of double punishment - need for precision.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 s15 Crimes (Sentencing Procedure) Act 1999 s 54A(2)
CATEGORY:	Principal judgment
CASES CITED:	Brooks v R [2006] NSWCCA 169 CM v Regina [2008] NSWCCA 195 Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 R v AEM & Ors [2002] NSWCCA 58 R v Jones [2003] NSWCCA 54
PARTIES:	AA (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/00014578006
COUNSEL:	J A Girdham (Crown) C Smith (Applicant)
SOLICITORS:	S Kavanagh (Crown) S E O'Connor (Applicant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/21/3210
LOWER COURT JUDICIAL OFFICER:	Sides QC DCJ
LOWER COURT DATE OF DECISION:	27 March 2008

2007/00014578

McCLELLAN CJ at CL
JAMES J
ADAMS J

15 April 2009

AA v Regina

Judgment

1 McCLELLAN CJ at CL: In this matter I have had the benefit of reading the judgment of Adams J in draft. Like his Honour I can discern no error in the sentencing judge’s remarks. Although the effective sentence was significant the offences involving sexual penetration justified the finding as to their level of seriousness made by the sentencing judge. The overall sentence was not beyond the appropriate range.

2 I agree with the orders proposed by Adams J.

3 JAMES J: I agree with Adams J.

4 ADAMS J: AA was convicted on 7 December 2007 of four offences arising out of his abduction of a young woman, AB, at Bonnyrigg on 14 May 2006. At the time AA was a few months short of his seventeenth birthday and his victim was thirty-two years of age. The four offences were –

(i) two offences of aggravated sexual intercourse without consent, the circumstance of aggravation being the use of a knife to threaten infliction of actual bodily harm (counts 1 and 2), each carrying a maximum penalty of twenty years’ imprisonment and a standard non-parole period of ten years (s 61J(1) of the Crimes Act 1900);
(ii) armed carjacking (count 3) carrying a maximum penalty of fourteen years’ imprisonment and a standard non-parole period of five years (s 154C(2) of the Crimes Act 1900);
(iii) detaining the victim with intent to obtain an advantage (count 4) carrying a maximum penalty of fourteen years’ imprisonment (s 86(1)(b); and
(iv) larceny (on a Form 1 schedule) of a pension card and $75 from the victim’s wallet.

5 The sentences imposed were as follows –

count 3 – four years and six months’ imprisonment commencing 6 March 2007 with a non-parole period of two years expiring on 5 March 2009;
count 4 – five years and six months’ imprisonment commencing on 6 September 2007 with a non-parole period of three years and six months expiring on 5 March 2011;
count 1 – eight years’ imprisonment commencing on 6 March 2009 with a non-parole period of five years expiring on 5 March 2012; and
count 2 – Taking into account the Form 1 matter, ten years’ imprisonment commencing on 6 March 2010 with a non-parole period of six years expiring on 5 March 2016.

6 The sentences were ordered to be served by the applicant as a juvenile until he reached the age of twenty-one years. The effective sentence was one of thirteen years with a non-parole period of nine years.

7 The applicant seeks leave to appeal from the severity of these sentences. Although, at first, it was sought to argue that the sentencing judge’s taking into account of prior serious offences committed by the applicant was an error having regard to the terms of s 15 of the Children (Criminal Proceedings) Act 1987, at the hearing of the appeal the Court was informed by Mr Smith of counsel for the applicant that this ground was no longer pressed. It is therefore unnecessary to say anything about it.

8 The applicant submitted, however, that although there was no error in respect of the particular sentence imposed for each offence, the effect of the accumulation was to produce an overall sentence that was manifestly excessive.

The facts

9 These were not in dispute. The following account is taken from that given by the sentencing judge in his Honour’s reasons. At about 7.30 pm on 14 May 2006 the victim drove her family’s car to a service station near Cabramatta. Having returned to the car and got into the driver’s seat, the applicant flung open the front passenger door and leapt into the car. The victim screamed and attempted to fend him off. She then felt a sharp pain to her right palm and saw that he had a knife with a serrated edge. The applicant slid between the seats and sat in the back seat behind the victim, told her not to look at him and to drive. He pressed the knife against the back of her neck. The victim started the car and, as it drove into the street, the applicant placed the knife against the front of the victim’s throat. Already in a distressed state, she cried even more. As the victim drove the applicant asked her some questions about her nationality and age. She told him that she was thirty-two years old and had two sons. As they drove, the applicant fondled her left breast and then moving one hand to the top of her pants, attempted to place it inside. She refused to comply with his request to undo her pants. The applicant responded by threatening to cut her throat. He directed her to enter a particular road and again told her not to look at him. He fondled her breast again and when she protested he indicated that she should be quiet. He then placed his hand inside her pants and, after fondling the outside of her vagina, inserted his finger. The victim then drove along a number of streets at the applicant’s direction eventually stopping the car in a cul-de-sac at Bonnyrigg. He told her to switch off the engine and fondled the victim’s breasts once more. He unclipped the seatbelt and told the victim to come into the back seat, repeating the demand and when the victim again refused, placing the knife against her throat, pressing it hard onto her skin, grabbing the back of her hair, pulling her head against the headrest. The victim moved sideways towards the gap between the seats but the applicant pulled her into the back seat, removed her pants and underpants and began to fondle her genital area. He inserted three fingers into the victim’s vagina causing her to become even more emotionally distraught and she began to cry loudly. The applicant told her that she was “a big girl” and not to report him to police. His hand movements became more aggressive as he digitally penetrated her. The applicant then pushed the victim’s legs open, inserted his penis into her vagina, ejaculated after a short time and then withdrew. During this episode the victim was crying loudly and the applicant placed his hand over her mouth in an attempt to stop the noise. He used one of the victim’s socks to wipe himself and the victim’s genital area. At his direction she got dressed and as she was doing so, he searched her wallet, eventually removing a pension card and $75. At the applicant’s direction the victim drove for a short distance before getting into the passenger’s seat when the applicant occupied the driver’s seat and drove the car out of the cul-de-sac. As he was driving out he told the victim that the last person who dobbed him in had been shot and, if she did so, he would send his friends around. After driving a short distance, the victim got out of the car at the applicant’s direction and he then drove off in the vehicle.

10 The victim then ran to a nearby home, crying and shaking uncontrollably. The entire episode had taken something like twenty or thirty minutes and was obviously extremely terrifying, in addition to the gross attack upon her personal integrity constituted by the sexual interference.

11 During the usual examination following complaints of this kind, vaginal swabs were taken and, in September 2006, the Division of Analytical Laboratories recovered semen from the swab and a sample of DNA. Following the applicant’s arrest for unrelated matters at the end of 2006, his DNA was matched to that recovered from the swab and he was arrested on 24 January 2007. On 28 March 2007, pursuant to orders made in the Children’s Court, a buccal swab was obtained from the applicant and the earlier DNA findings confirmed. After being served with the report setting out these results the applicant pleaded guilty.

Subjective features

12 As I have already mentioned, the applicant, who was eighteen years of age at the date of sentence, committed the offences when he was something over sixteen and a half years old. Subject to a matter which I will come to shortly, there is no evidence that he is immature for his age. The applicant’s mother is an Aborigine and, though his father is not, the applicant identifies with the Aboriginal community. He has siblings who are both older and younger than he is. His Honour noted that, tragically, when the applicant was aged four, he saw his father commit suicide by a shotgun wound to the head. Prior to this he had seen incidents of domestic violence between his parents. His mother then commenced another relationship and moved to the South Coast of New South Wales where the applicant lived until he was twelve years of age, when he moved to Cabramatta to live with an aunt. Six months later, just a few months short of his thirteenth birthday, he committed a series of serious offences comprising attempted armed robbery, sexual intercourse without consent, indecent assault, armed robbery and hindering the discovery of evidence concerning a serious indictable offence. On 25 July 2003 the victim had left her shop and entered her car in a nearby car park. As she was sitting in her car the applicant opened the car door and used a 50 cm long stick to force her head down onto the middle console and grabbed her handbag containing a large amount of cash and three mobile phones with which he then fled. Another robbery was committed on 28 July 2003, in company with his 33-year-old uncle, on the owners of a convenience store at Canley Heights. During the robbery the applicant digitally penetrated one of the owners and indecently assaulted the other. The offence in respect of which the applicant was convicted of hindering the discovery of evidence was a murder committed by his uncle on 1 August 2003, essentially as I understand it, by disposing of property stolen in the commission of that crime. The applicant was sentenced for these offences on 20 August 2004 when a two-year control order with fifteen months’ non-parole was imposed. He was released to parole on 17 November 2004. He had not responded well to supervision whilst on parole and it was extended by one month. The Juvenile Justice Report stated that the applicant had “displayed an ongoing resistance to speaking about his offending behaviour and indeed other significant issues that are impacting on his level of functioning, including his anger management”.

13 After he was discharged from the detention centre the applicant lived with his grandmother then an aunt, then he moved between various members of his extended family, at the time of his arrest on 6 December 2006, living with his mother at Claymore. He has been in custody since the date of his arrest. The applicant had been suspended from school on several occasions because of aggressive behaviour and had not been enrolled in school by the time he went into custody in 2004. Whist at the detention centre he attended school and, after his discharge, he enrolled in a number of educational programmes but had ceased participation by the time of his arrest on 6 December 2006. As a positive sign, whilst in custody he completed his school certificate by distance education. It seems that the applicant had been abusing marijuana on a daily basis at a level that adversely affected his functioning, having told Dr Lennings (to whose evidence I will come shortly) that he had been doing this from the age of fourteen, had been using ice from the age of sixteen and regularly used ecstasy from about seventeen years of age. He had also been abusing alcohol from the age of fifteen. It seems accepted that he suffers from ADHD and that this may have been a significant factor in his difficulties at school. Otherwise there is no evidence of any mental illness. Although he does not suffer from an intellectual disability, the applicant’s cognitive functioning is at the bottom 5 percent of the population.

14 The applicant was seen, as I have mentioned, by Dr Lennings, a psychologist, for the purpose of preparing a report to be tendered on sentence. Having regard to the limited ground of complaint about the sentence, it is not necessary to deal with this report in detail. The principal significance of the report was, as it happened, what it disclosed about the applicant’s lack of understanding of the seriousness of his offences and his inability to express any remorse. He told Dr Lennings that he regretted what he did and, when asked to explain, said, he “regretted what he did because he could be out there having a good life instead of being here”. When Dr Lennings asked him to try to reflect upon the victim’s situation, the applicant said that he thought that she must be going through some bad things but did not know how she felt because it had never happened to him or anyone he knew. The doctor commented, “To that extent he appears to be unable to form a sense of the other which would allow him to experience true remorse” and added –

“My observation of [the applicant] is that his inability to feel remorse is in part a function of his developmental level. He is clearly a young man of low cognitive function and has also been exposed to a reasonably difficult childhood and as such it seems he has been unable to progress through the developmental stages necessary to gain perspective taking ability, which is a prerequisite for the feeling of remorse. I assume that with appropriate life experiences and also treatment he would eventually be capable of developing victim empathy.”

15 In discussing the offences with Dr Lennings the applicant attributed his conduct to the fact that he was “going crazy on drugs and his mind wasn’t there”, which Dr Lennings understood as his “effectively saying he felt he was unable to control the behaviours that he engaged in”. The sentencing judge was sceptical, for good reasons, of the extent of drug effect claimed by the applicant, thinking that it was exaggerated in an attempt to reduce his culpability.

The sentencing judge’s conclusions

16 These need only to be briefly mentioned since they were not the subject of controversy in the appeal. His Honour concluded that the applicant entered the victim’s car with the intention of abducting her and forcing her to engage in sexual activity. He concluded that the offences covered by count 1 (the digital offences) fell in the upper end of the midrange of offences created by the section and count 2 (penile penetration and ejaculation) was slightly more serious and fell just within “the upper range of seriousness”. These references to the range of seriousness seem to reflect a view of the interpretation of the phrase “middle of the range of objective seriousness” as it is found in s 54A(2) of the Crimes (Sentencing Procedure) Act 1999. There was no debate in the appeal about the appropriateness of such an analysis and I do not wish to say anything more about it, except that, in accepting his Honour’s conclusions as to the appropriate sentences, which necessarily involve an acceptance of his Honour’s view in a general sense about their objective seriousness, I do not wish to be taken to agree that s 54A(2) should be considered in this way. So far as count 3 is concerned, (the aggravated carjacking) this occurred as his Honour said, in the context of the detention and concluded that it fell just below the midrange of such offences.

17 Dealing with the detention (count 4), the sentencing judge noted that “it covered a period of somewhere between approximately 20 and 30 minutes” and observed, quite rightly, that the “entire ordeal was terrifying for the victim” and, implicitly, that the purpose of the detention was to sexually assault the victim. He concluded that the offence was premeditated and fell “in the lower end of the upper range of seriousness of offences” of its kind. It is clear that the sentence reflected his Honour’s view of the criminality of the detention, considered as commencing when the victim was first abducted and ending when she was eventually released.

18 His Honour also concluded that all of the offences must be dealt with according to law.

19 The sentencing judge noted that, when sentencing an offender who is a young person, greater weight is placed on rehabilitation than on deterrence. Having regard especially to the applicant’s prior history of sexual offending in circumstances of violence, as well as the grave criminality of the circumstances involved in the present case, his Honour rightly concluded that personal deterrence must be a significant feature of the applicant’s sentences.

20 His Honour referred to the JIRS’ statistics in relation to the applicant’s crimes and a number of cases involving young persons that had been considered by the Court of Criminal Appeal. It is unnecessary for present purposes to discuss all of that material but I deal later on with the decisions to which counsel for the applicant made specific reference.

21 It is not suggested that the sentencing judge committed any error in consideration of either the objective or subjective circumstances, including the adverse influence of his uncle and his low level of cognitive understanding. His Honour accepted Dr Lennings’ view that the applicant’s inability to have insight into his offences derived from developmental issues and there is some prospect that he would improve in this respect by his initial incarceration in a detention centre rather than in an adult prison. Another problem with adult prison is, as his Honour noted, his uncle and other younger relatives serving sentences for sexual offences committed with that uncle are in prison. In the main, these reasons persuaded his Honour that the applicant should serve his sentences as a juvenile offender until 4 November 2010, when he turns twenty-one.

The submissions on appeal

22 It was submitted by Mr Smith of counsel for the applicant that there were clear features of the case that pointed towards the need for concurrence or only a limited degree of accumulation. These factors were: there was one episode of criminality; the acts were committed over a distinct period of time; the offensive weapon, the knife, was an element of counts 1, 2 and 3; the applicant entered the victim’s car intending to commit sexual offences; and count 3 was not premeditated and was committed spontaneously.

23 It was submitted that even if it were appropriate to accumulate the sentences for counts 1 and 2 upon that for count 3, this should not have been so long a period and, at all events, a period of significantly less than one year. The applicant pointed to the overall effective sentence as one of thirteen years with a non-parole period of nine years was imposed upon an offender who was still only sixteen at the date of the commission of the crimes.

24 Counsel for the applicant referred to a number of decisions of this Court, some of which were also discussed by the sentencing judge, which indicated, he submitted, that the overall sentence was excessive: R v Jones [2003] NSWCCA 54; Brooks v R [2006] NSWCCA 169; R v AEM & Ors [2002] NSWCCA 58; and CM v Regina [2008] NSWCCA 195.

25 In Jones, a total effective sentence of eleven years with a non-parole period of six years was imposed on an offender aged seventeen years and seven months, who abducted a nineteen year old victim whilst using a broken bottle, ejaculated into her mouth, then digitally penetrated her, pushed his penis against her vaginal and anal region although without penetration, pulled her from the car and, pushing her against the backdoor, attempting again to enter her but failing to do so. The offender then threw the victim onto the ground, pushed her onto her back and had forced penile/vaginal intercourse. She suffered cuts to her back from gravel from the ground. Two persons drove up and realized that something was wrong. The offender threatened to kill the victim when one attempted to assist her. Eventually, the victim broke free. She had attempted to do so on an earlier occasion but the offender caught her and repeatedly punched her with his fists and she suffered a fractured nose and other injuries to her face. The Crown appealed to this Court. The Court concluded that the sentence had not been shown to be manifestly inadequate although it was the least sentence that could properly have been imposed. Despite the leniency of the non-parole period it was not found to be manifestly inadequate. There were some favourable subjective features, in particular, there were no relevant prior offences, the offender appeared to be genuinely remorseful and there were real prospects for rehabilitation. The standard non-parole period was not relevant having regard to the date of the offence. The mere finding by this Court that a sentence is not manifestly inadequate does not, of course, mean that a heavier sentence, even a significantly heavier sentence, would have been inappropriately harsh.

26 In Brooks, the offender, aged eighteen years, whilst on parole, had broken into the victim’s home while she was alone and asleep in her bed. She was aged eighty-two years. He held a spanner to her throat, digitally penetrated her vagina and inserted his penis into her vagina a number of times. The sexual assaults continued with the offender attempting to put his penis in the victim’s mouth, licking the victim’s genital area, inserting his tongue into her vagina several times and then again having penile intercourse with her. The entire episode continued for well over thirty minutes. He then demanded money, which was handed over, and took food and alcohol with him when he left the premises. The offender was on parole for control orders made in the District Court for two counts of aggravated robbery. He had also committed other offences of breaking, entering and stealing. The learned sentencing judge characterised the offences as falling into the worst category, although she did not impose the maximum sentence in respect of any of them. The sentencing judge was not persuaded that the offender was remorseful and she was also pessimistic about the prospects of rehabilitation. These findings were not disturbed on appeal. The applicant appealed from the total effective sentence of seventeen years with a non-parole period of thirteen years. The standard non-parole period then applied to the aggravated sexual assault. In the result, the appeal was upheld and this Court substituted an overall sentence of imprisonment of fourteen years with a non-parole period of ten years and six months.

27 In AEM, a Crown appeal, this Court increased the sentences imposed on three offenders, AEM, KEM and MM. In respect of AEM the total effective sentence imposed was thirteen years with a non-parole period of nine years, in respect of KEM fourteen years with a non-parole period of ten years and in respect of MM, thirteen years with a non-parole period of ten years. The offences were of “the most degrading kind” committed by each of the offenders on two female victims aged sixteen who were forcibly detained in a house over an extensive period. AEM was aged almost nineteen and a half years, KEM almost seventeen years and MM sixteen years and three months at the time of the commission of the offences. The standard non-parole period did not apply at this time. It is important to note that, as the sentences were imposed following a successful Crown appeal, they must be regarded as being towards the bottom of the appropriate range. This at all events is self-evident from the sentences themselves.

28 In CM, the offender, aged fifteen, having armed himself with a length of wood, struck the victim to the head a number of times, demanded sex and then sexually assaulted her, inviting two other nearby males to have sexual intercourse with her. Fortunately, they declined. The victim escaped from the unit where she was detained, but was caught by the offender and forcibly detained for a number of hours during which she was taunted, threatened and assaulted. Eventually, two visitors to the unit assisted her to leave. Psychological evidence suggested that, because the offender was sexually excited by the sadism involved in the offences, there was a high risk of future offending for offences relating to sex and violence. An appeal by the offender from his sentence of ten years and six months with a non-parole period of six years and six months was dismissed as not being manifestly excessive.

29 As it seems to me, although in a broad sense, a pattern of sentencing can be discerned from these cases, they are too few and the circumstances are so widely different that it cannot be said that they demonstrate that the overall sentence imposed on the applicant is manifestly excessive, although I think it fair to acknowledge that it was towards the top of the appropriate range.

Double punishment

30 As I have previously mentioned, the sentencing judge imposed, in respect of the detention offence, a sentence that took into account the total period of detention. In discussing counts 1 and 2, his Honour observed that the applicant “entered the victim’s car with the intention of abducting her and forcing her to engage in sexual activity”. His Honour then moved on to deal with count 3, saying, “Again [a reference to counts 1 and 2, with which he had just dealt], it occurred in the context of the detention” (emphasis added). (I should mention that there is some difficulty in accepting that the carjacking offence commenced when the applicant first entered the car, since it does not seem that at this point he either drove it or intended to drive it, as s 154C requires. Strictly, as it seems to me, the offence of carjacking was committed when the applicant formed the intention to drive, though he had “taken” the vehicle when he entered it. The sentencing judge considered – and there was certainly evidence to support this conclusion – that it was sometime during the detention that this intention was formed, hence his Honour’s reference to the “context of the detention”).

31 As is clear from the factual narrative, the sexual offences necessarily involved a period of detention whilst they were perpetrated.

32 In Pearce v The Queen (1998) 194 CLR 610 at 623; 103 A Crim R 372 at 382, McHugh, Hayne and Callinan JJ said -

“[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

33 As their Honours made clear, even complete concurrency does not adequately deal with this problem since a concurrent sentence is nevertheless the imposition of a punishment for that crime. Here, the sentence on count 4 commenced six months after the sentence imposed on count 3 and the latter sentence was otherwise completely subsumed by the sentence on count 4. However, the sentence on count 1, being the aggravated sexual assault constituted by the digital penetration commenced at the end of the non-parole period for count 3 (armed carjacking) and one and a half years after the commencement of the sentence for count 4.

34 The sentencing judge referred to the requirement to consider each offence separately, commenting, “Particularly in the context of counts 1, 2 and 3, this requires the Court to engage in the somewhat artificial exercise since those offences were committed whilst the victim was detained”. Whether this was a reference the need to avoid double punishment as distinct from the more conventional need to sentence for each offence and make adjustments for totality by the mode of accumulation I have found it difficult to decide. The main reasons for concluding that this was not an advertence to the problem of double punishment are: firstly that his Honour does not refer to the issue as such, which because of the evident difficulty of the task, would have been almost inevitable); and, secondly, that in dealing with the detention offence, his Honour referred to the “entire ordeal…[being] terrifying for the victim” (emphasis added), which was certainly true but described the criminality of the detention in terms of all that had happened to her rather than in terms of the fact of the detention and the applicant’s criminal purpose. This description of the overall criminality would have been entirely apt, but it was his Honour’s description of the criminality involved in the detention offence, count 4.

35 In the circumstances here it was both conceptually and practically possible to sentence for the sexual offences insofar as they comprised gross interferences with the victim’s personal integrity and sentence separately for the detention that was ongoing whilst those interferences were inflicted. As I have said, the fundamental elements of the offence are the detention combined with the purpose, here to sexually assault the victim. The sexual assaults are additional criminal acts requiring additional punishment. It is obvious that, had the applicant desisted (say, after protest) from sexual interference, his overall criminality must have been considerably less than that which actually resulted. If the sexual assaults are not punished separately, there will be no motive for a kidnapper to desist from fulfilling the criminal purpose for which the detention was committed. Accordingly, it was possible for the applicant to have been punished for the detention (which of course would have comprehended the purpose of detention) and separately punished for the sexual assaults which he committed – to use the sentencing judge’s language – “whilst the victim was detained”.

36 On the other hand, his Honour made a number of references to the overlapping of the other offences with that of detention and the sentence which was imposed for the detention (five years six months with a non-parole period of three years and six months) does not reflect the seriousness of the sexual offences and is quite explicable by the incidents of a kidnapping associated with the use of a knife and frightening acts of non-sexual violence and detention for a period of twenty to thirty minutes associated with non-sexual violence and threats for the purpose of sexual assaulting the person detained. In short, if the judge had double punished, the sentence for the detention must have been very much greater.

37 The same analysis in respect of the carjacking offence leads to the same conclusion. Again there are some apparently inconsistent expressions in the judgement as to the extent of criminality of this offence and suggestive of both separation and of double counting, but the sentence for that offence is entirely explicable by reference to the incidents of that offence alone.

38 Lastly, the sentencing judge’s specific reference to Pearce, at the centre of which was the discussion of the problem of double punishment, together with his references to overlapping, indicates that his Honour was indeed alive to the issue despite his not referring to it in terms.

39 Accordingly, I have concluded that the sentence for kidnapping did not include punishment for the other offences committed by the applicant. Moreover, it seems to me that the sentences for the other offences do not cover criminality that his Honour took into account in sentencing for the detention offence.

Conclusion

40 The specific matters that were submitted by Mr Smith to demonstrate that the overall sentence was excessive having regard to the criminality involved in the episode, and which I summarised above, are all legitimate considerations when measuring the overall sentence against the totality of the criminality. However, it seems to me that the sentencing judge took all of them appropriately into account. Counsel does not point to any express error and, in the end, submitted that error is implicit because of the ultimate sentencing outcome. In my view that outcome does not bespeak any error.

41 Accordingly, I propose that leave to appeal should be granted and the appeal dismissed.

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