Bentley v The State of Western Australia
[2007] WASCA 38
•19 FEBRUARY 2007
BENTLEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 38
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 38 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:4/2003 | 16 OCTOBER 2006 | |
| Coram: | STEYTLER P WHEELER JA BUSS JA | 18/02/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER JOHN BENTLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(2) Sentencing Act 1995 (WA) |
Case References: | R v Roberts [2003] WASCA 203 The State of Western Australia v Turaga [2006] WASCA 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BENTLEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 38 CORAM : STEYTLER P
- WHEELER JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
File No : INS 55 of 2002, INS 55B of 2002
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 31(2)
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr K B Bates
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Roberts [2003] WASCA 203
The State of Western Australia v Turaga [2006] WASCA 199
(Page 3)
1 STEYTLER P: I agree with Wheeler JA.
WHEELER JA:
The appeals generally
2 The appellant appeals his sentences in respect of two groups of offences, both committed in March of 2001. The offences were all very grave, and the sentences imposed were very lengthy. He will not be eligible for release at any time in the near future.
3 It is nevertheless a matter of regret that it has taken so long to bring these matters to hearing. In part, that was because priority was given to the appellant's appeal against conviction for one set of offences. In that appeal, he represented himself. In part, the delay was caused by a regrettable inability of those solicitors formerly acting for the appellant - not those whose names now appear on the record - to comply with requests from the Court, or to make proper inquiries, or to formulate intelligible submissions. In part, it was caused by the need to investigate what occurred at a hearing for which no transcript was available.
The June 2000 offences
4 A series of offences, which were committed in June of 2000, preceded those the subject of the current appeal. The facts briefly were as follows.
5 The complainant was 16 years of age at the time, and a virgin. She and the appellant knew each other, as she would baby sit sometimes for his de facto spouse. She was a user of amphetamines. At some time in June 2000 the appellant arranged with her that he would get her some drugs. She bought paraphernalia associated with the injection of drugs. He injected her with 40 units of a mixture of white powder and water.
6 The complainant lost control of her muscles and went into a stupor. When she awoke she was bound with "handy ties", so that her arms and legs were fastened. The appellant was sexually penetrating her, with his penis in her vagina. She struggled, but was unable to move, and indicated that she did not want him there. He nevertheless then penetrated her mouth with his penis, and ejaculated. He dressed her and rebound her arms behind her back. He forced her to swallow what she believed to be cold or flu tablets and two slimming tablets, and to smoke some marijuana. He then drove her home. The threat which he made to her was to the effect that if she told anybody about what had happened he
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- would do the same again. He told her she would "pay" if anybody found out, and that he knew where she lived so she could not go and hide.
7 In relation to those acts, the appellant was convicted after trial of one count of deprivation of liberty, two counts of sexual penetration without consent and one count of threat with intent to prevent the doing of a lawful act.
8 His personal circumstances at the date of sentencing were that he was 39 years of age and had an extensive criminal record, with convictions ranging geographically from Cairns to Perth. There were not at that time any offences of a sexual nature on his record, but his record included a number of violent offences, including assault, burglary, and drug-related offending. There had been a number of unhappy events in his earlier life, which I describe later.
9 The appellant was sentenced in the District Court on 17 May 2002 to 8 years' imprisonment in respect of each of the sexual penetrations, 4 years in relation to the deprivation of liberty, and 2 years in relation to the threat. The sentences in relation to the sexual penetrations were concurrent with each other, but were cumulative upon the sentences for threat and deprivation of liberty, which were concurrent with each other. The total effective sentence was therefore one of 12 years' imprisonment, which was backdated to a date in January 2002 to take account of 120 days the appellant was thought to have spent in custody awaiting trial. (In fact, the total number of days was 291, a matter not disclosed until the appellant later came to be sentenced for the offences the subject of these appeals.) Although he considered the appellant a "marginal candidate" for parole, the learned sentencing Judge made a parole eligibility order.
The 2001 offences – need to resentence
10 In relation to the groups of offences the subject of these appeals, it is conceded by the State that it is necessary for this Court to resentence the appellant. There are two reasons for that concession. The first is that it is conceded that when the appellant came to be sentenced in respect of those offences in this Court, in November 2002, the learned sentencing Judge was under a misapprehension, in a number of respects, about the effect of the way in which he then structured the sentences. The second arises from a further psychiatric report, obtained subsequent to November 2002, which is significantly different from the material before his Honour.
11 No transcript of the final portion of the sentencing was able to be located, so that the reason why the sentence was structured as it was is
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- unclear. Although his Honour has made a report to this Court pursuant to s 40(1)(h) of the Criminal Appeals Act 2004 (WA) ("the Act"), he quite properly points out that there is an element of reconstruction in that report. The State prosecutor advises that his recollection is generally similar to that of his Honour, although perhaps somewhat less clear. The appellant represented himself at his sentencing in respect of these offences, and is unable to add any useful information.
12 However, it is reasonably clear that when his Honour declined to order that the appellant be eligible for parole, he did so on the understanding that the way in which he structured the sentences would mean that the appellant would be able to take advantage of the order for eligibility for parole which had been made in respect of the offences for which he was earlier sentenced in the District Court. Later calculations reveal that assumption to be incorrect. In addition, although the State conceded that these sentences should be only partially cumulative upon those imposed in the District Court, in part for totality reasons and in part to take account of the 171 days the appellant had spent in custody, which had not been taken into account when he was sentenced in the District Court, the practical effect of the order is that there is only 1 year of concurrency between the time the appellant will be in custody in relation to these offences, and the time prior to his becoming eligible for parole in relation to the District Court sentences. That is unlikely to have been his Honour's intention.
13 In that connection, I would observe for the sake of completeness, that it is not of course proper for courts in Western Australia, which have no authority to set minimum terms, to mould their head sentences with an eye to a particular length of non-parole period. However, it is open to a sentencing court to have regard to the effect which the operation of the Sentencing Act1995 (WA) has upon the sentence it imposes where the effect of the operation of that Act may be to negate, or to significantly alter, the effect of an order made by the sentencing court, or by another sentencing court: see R v Roberts [2003] WASCA 203 at [2] and [14]. It was right of his Honour to consider whether the sentence which he imposed would permit the appellant to take advantage of the order for parole eligibility made in the District Court, and it is therefore appropriate for this Court to have regard to the fact that his Honour's conclusion in that respect was mistaken.
14 In addition, at the time at which the appellant was sentenced in this Court, his Honour had before him a psychological report which pointed to a medium to high risk of reoffence, and a psychiatrist's report which was
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- to the effect that the appellant did not have any major treatable mental illness and that he scored in the "high risk category" for reoffending. The history of the appellant's subsequent treatment, however, is such as to suggest that he was, at least at the time of these offences, suffering from a psychiatric disorder which contributed to some degree to his offending, and for which he is now being treated with, apparently, a degree of success.
15 The State conceded that it was open to this Court, pursuant to s 31(2) of the Act to receive that further psychiatric report. In addition, this Court heard evidence both from the maker of the original psychiatric report and from the psychiatrist who had subsequently treated the appellant. This material suggests that the appellant's moral culpability was less than it would have appeared to the learned sentencing Judge. It also has the effect that, although protection of the community is still a very important consideration, it is not a consideration which looms as large as it must have for the learned sentencing Judge.
16 I should add that the submission on behalf of the appellant is that the total sentence imposed on the appellant was excessive, even for the circumstances as they appeared to his Honour at that time. It is not, however, necessary to consider that submission, since the factors to which I have referred make it clear that it is necessary to resentence the appellant.
17 The Court canvassed with counsel for the appellant the question of whether it was appropriate for this Court, having heard from the psychiatrists, to resentence the appellant, or whether it was preferable to remit the question of sentencing to his Honour for further consideration. The Court pointed out that if the appellant were resentenced by his Honour, there would be an opportunity for the appellant to appeal to this Court in the event that he considered that the sentence imposed as a result of that process was wrong. However, since we had had the benefit of hearing the evidence of the psychiatrists, the appellant's counsel submitted that it would be preferable for us to resentence the appellant.
The 2001 offences - facts
18 Both of the two series of offences were, as will shortly appear, among the most serious examples of offending of their kind. The offences of which the appellant was convicted after trial in this Court consisted of one count of armed robbery, one of unlawful detention, seven of sexual penetration without consent in circumstances of aggravation, and one of
(Page 7)
- burglary. He was acquitted of one count of sexual penetration (count 7). The facts out of which those convictions arose were as follows.
19 The appellant was on bail at the time, charged with the offences committed in June 2000. He followed a young woman from her place of work in Bunbury to her home. He called out to her as she was walking up the stairs of her house in the mid afternoon, asking if he could use her telephone to call a taxi. She said that she would call a taxi for him and he should wait outside. However, he followed her in. She called a taxi and the appellant asked for a drink and made some small talk. He moved towards the door as if to leave but then produced some mobile telephones from his backpack, asking if she wished to buy one.
20 While crouched down over the backpack, he produced a large hunting knife, held it up to her, and asked for money. At knife point, he took the young woman to the kitchen where she obtained $25 from her purse and gave it to him. He asked for more, and asked whether she had a credit card. She did, but said there was nothing worth having in the balance. Then again, at knife point, he forced her into the hallway of the house. She was frightened and crying.
21 Throughout the remainder of the afternoon, the appellant subjected the complainant to a series of sexual assaults, involving sexual penetration with his penis of her mouth and her vagina, cunnilingus and fellatio. Throughout the period the knife was conspicuous, and he referred to it on more than one occasion, indicating that it would be used if she tried to run away. At one stage, he pulled her hair out of its bun, and combed the knife through her hair. It is not surprising that she was in genuine fear for her life. He demanded that she engage in conduct which he considered was sexually attractive, including making her dress up in clothing he selected and making her assume what he thought were sexually attractive postures.
22 Having completed that series of assaults, the appellant allowed the complainant to go into the bathroom and shower while he rummaged around the house, leaving beer bottles in various places (some partially consumed) and stealing the complainant's watch and other property. It appears that his intention was to cover his trail by pretending that he and the complainant had been drinking together and had then engaged in consensual sexual intercourse. That was the case which he put to the jury, which was rejected. The entire series of events took more than two hours.
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23 Very shortly afterwards, on the same afternoon, the appellant committed a series of offences which resulted in an indictment alleging one count of unlawful detention, two of armed robbery and two of stealing. To those offences he pleaded guilty, but he did so only after his conviction in relation to the offences just described, and following a preliminary hearing at which the complainant gave evidence. It was, therefore, a very late plea. The circumstances of those offences were as follows.
24 At about 5 pm, the complainant, who was 17 years of age, walked to her car which was parked in a hospital car bay in Bunbury. The appellant was apparently on a bicycle and was at the time offering for sale mobile phones, which he took from his backpack, to young women who were parked nearby. Seeing the complainant, he followed her to her car and made some inquiry about the location of a street. He rummaged again in his backpack and produced a hunting knife 20 cm in length, of which approximately half was blade. It had a sharp edge. He held the knife at the young woman's leg, over her skirt, and pressed it against her. Pushing harder on the knife, he forced her into the passenger side of the car. He got into the driver's side, but was prevented from starting it by an immobiliser. He forced the complainant to help him disconnect the immobiliser and drove off, with the complainant in the car.
25 While the appellant initially made some reassuring comments to the young complainant about letting her go, he retained the knife at all times between his legs. He questioned her at some length and demanded money from her. She was only able to give him about $6 in cash. Eventually he forced her to disclose that her pay may have been credited to her bank account recently. He inquired whether there was anyone at her home, and she said that her mother's male friend may be at home. He drove off around the southern districts of Bunbury and she suggested that he should stop at a bank at a shopping centre. She hoped thereby to make an escape, but he rejected that suggestion. He made her write out a bank account number and PIN on a piece of paper. She then suggested that they stop at an automatic teller machine or cash machine at a service station but he refused, indicating that there was a security camera there.
26 At a remote location, where there were no buildings, he stopped the vehicle and told her to get into the boot. She protested, pointing out that she might succumb to fumes. He got out and looked in the boot but did not proceed further with that demand.
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27 He took a stubby of Emu Bitter from his backpack and began to drink that and to share it with the young woman. His DNA was found later on the bottle located in the abandoned car. He produced some marijuana, began smoking it, and insisted that she also smoke. Presumably, he again had some idea of covering his tracks by being able to suggest later that whatever activity they had engaged in was some consensual social relationship. He then drove on, continuing to drink and smoke marijuana, and playing with the knife.
28 He said to the complainant that he had killed people, but not girls. He gave her the knife, but she handed it back to him, being too frightened to attempt to use it to assist her in an escape. He drove off in such a fast and erratic manner that the complainant believed she might be killed.
29 At one point, he dropped the knife and lost it temporarily within the car. He told the complainant to look for it and she took advantage of that opportunity to escape, disengaging her seat belt, opening the door, and getting out at a set of traffic lights. He grabbed her and there was a brief struggle. However, she got away, although she was scratched in the process. At some point after she made her escape, the appellant used her credit card at an automatic teller machine to withdraw $600 from her account by two instalments.
The appellant's personal circumstances
30 As I have noted earlier, the appellant had a lengthy record of offending in a number of States. He had apparently been one of eight children and had had a disturbed childhood, with incidents of family violence and parental alcoholism. He ran away from home at an early age and was ultimately made a ward of the State. He began to get into trouble at school. He spent much time in a boys' home where it appears that he was sexually abused, and he was later raped in prison at a relatively young age. He had a problem with binge drinking from the ages of 21 to approximately 35, often associated with offending and violence. A serious injury in 1999, involving fractures of the back and pelvis, required a course of strong painkillers and from there the appellant developed an addiction to illicit drugs. He became an habitual user of amphetamines and also a dealer.
31 I have already mentioned briefly the opinions of the consulting psychologist and of the psychiatrist, which were before his Honour the learned sentencing Judge.
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32 His Honour found that the plea of guilty was made at the last minute, and in the face of what would seem to be overpowering evidence of guilt, but that the appellant was nevertheless entitled to some credit for it. He considered that there were some indications of remorse, but that they were limited, and that the psychiatric and psychological assessments indicated that the appellant still did not accept his role in the unlawful conduct. His Honour also noted that the appellant had little in the way of regard for either the women concerned or women generally. He considered that it was unlikely that the appellant would be amenable to rehabilitation of any kind, whether supervised or not.
33 The new psychiatric assessment is summarised in the report of Dr Patchett, the Acting Director of the State Forensic Mental Health Service, dated 15 September 2005. It is relatively brief, and it is convenient to set out the relevant portion in full. It reads:
"Mr Bentley was first admitted to the Frankland Centre on 11 December 2002 on transfer from Casuarina Prison under Section 27 of the Prisons Act 1981 because of concerns about an underlying psychosis. He had been recently convicted of a number of serious offences and sentenced to thirty years imprisonment. On admission to the Frankland Centre he described a four-year history 'of coming to the realisation that I can switch on people, they all know I know, it is all a conspiracy'. He spoke of conspiracies in the legal system and the prison system but that it didn't bother him because he had also come to the realisation that he had special powers and special insights into people. He spoke of having inner clarity, of being spiritual and how important political figures and God himself were speaking their wisdom through him.
During the admission Mr Bentley also alluded to the presence of psychotic symptoms at the time of his offending. He spoke of having special powers of perception in being able to appreciate the sexual desires of those around him, of women in particular, and spoke of how he was 'called' by the female victim of a serious sexual assault by what appeared to be an auditory hallucination.
Mr Bentley was treated with the antipsychotic preparation olazapine in combination with a mood stabiliser sodium valproate and returned to Casuarina Prison where I have followed him up ever since. During the prison followup it has
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- become apparent that Mr Bentley was suffering from a very clear paranoid psychosis at the time of his offending, during his trial and even following conviction. It was apparent in the prison setting, and even in the early stages of admission to the Frankland Centre, that he was extremely suspicious and guarded concerning even those who were trying to help him, such that the full extent of his psychosis was never revealed.
Mr Bentley became unwell again and required transfer from prison to the Frankland Centre in April 2003. He presented with a major depressive illness and the diagnosis was refined to Schizoaffective disorder, current episode depressed. An antidepressant was added to his treatment regime and he was returned to prison in mid-May 2003. At that stage he retained residual ideas that he had special abilities to 'turn people on' and described a number of mystical beliefs but these were clearly attenuated from the height of his earlier psychotic experiences. With return to prison and ongoing followup, the psychotic phenomena have continued to abate such that he is now clear of delusional beliefs and experiences no more hallucinated abnormal experiences.
In summary I am of the view that Mr Bentley has suffered from a schizoaffective disorder that predated his offending and is currently well managed on a combination of antipsychotic and mood stablilising medication. It is my view that he was so guarded and suspicious at the time of his arrest, trial and conviction that he did not disclose an underlying psychosis, the content of which was never revealed to the court. It is possible that at the time of his trial if his psychosis had been more readily evident, his legal defence might have considered the possibility of a Section 27 Criminal Code Defence of Insanity."
34 Dr Patchett explained to the Court how it was that the appellant's mental illness had been undetected at his earlier psychiatric assessment. The "guarded" and suspicious nature of persons suffering such an illness may, in some phases of it, cause them to disclose information in such a limited way that it is not possible to assess them adequately. He explained in some detail the opportunity for observation of the appellant which he and his staff at the Frankland Centre had subsequently had, and the nature of the appellant's conduct and speech which led Dr Patchett to form the views set out above.
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35 He explained further that, in his view, the mental illness from which the appellant was suffering at the time of these offences may have contributed to them in two ways. There was some evidence for delusional beliefs and auditory hallucinations, which might have made it less likely that the appellant would fully appreciate that the complainants did not wish for, and were terrified by, the conduct in which he engaged. Further, Dr Patchett explained that the manic phase of the appellant's illness had, as one of its features, disinhibition, compared to a person of normal mental functioning, so that even if the appellant appreciated that what he was doing was wrong, it would have been more difficult for him than for a person of normal mental functioning to control his behaviour.
36 Dr Patchett also explained, however, that the mental illness was, in his view, by no means the whole of the explanation for the offences. As well as the mental illness, it was clear that the appellant was suffering from the effects of his substance abuse. I note that, to the extent that that was the case, voluntary substance abuse is not mitigating, although the fact that behaviour results from substance abuse may be a consideration relevant to the need for specific deterrence in circumstances where an offender subsequently takes steps to address that substance abuse.
37 Finally, Dr Patchett was clear that the appellant had an underlying personality disorder, had a long history of offending and is never likely to be a "very stable individual" in terms of his personality function. He will always be predisposed to offending, although not necessarily to sexual offending.
38 The diagnosis made by Dr Patchett led to the appellant being treated with medication for his personality disorder. The result of that treatment was described by Dr Patchett in these terms:
" … encouragingly, … one of those gratifying cases actually where he started to develop insight into his illness and wanted to know about it and sought to learn about it - read some literature about it. Yes, so a very very compliant and cooperative patient."
39 In particular, the behaviour which had seen the appellant initially classified as being an extreme risk of sexually predatory behaviour had, in Dr Patchett's opinion, ceased from the time of the appellant's admission in early 2003.
40 Dr Brett, the psychiatrist who initially assessed the appellant, had a further opportunity to assess him following Dr Patchett's report. Dr Brett
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- was of the view that the appellant had developed a functional psychiatric disorder, most likely schizoaffective disorder. However in Dr Brett's view it was extremely difficult to state when the disorder commenced, and he was not convinced, for reasons which he gave, that the appellant had been suffering from it at the time of these offences, or that it could be said with any confidence that the disorder had contributed to his offending. However, he conceded that it was possible that the appellant may have been suffering from psychotic symptoms which would have impaired his judgment. He noted the difficulty of diagnosis, given the existence of the underlying personality disorder and the substance abuse.
41 While I note and accept Dr Brett's reservations about the difficulty of diagnosis long after the event in circumstances such as the present, it seems to me, for the reasons given by Dr Patchett, that the probabilities are that the appellant's offending in this particular series of offences (which was, apart from the June 2000 offences, rather different from his "normal" type of offending) is likely to have been contributed to by the mental illness described by both psychiatrists, to some degree.
Appropriate sentences
42 Turning finally to resentence the appellant, I deal first with the series of offences committed earlier in the day - that is, the series involving the significant number of sexual assaults. His Honour the learned sentencing Judge grouped the sexual penetration offences into two different categories. Counts 3, 5, 6 and 8, which involved penetration of either the complainant's vagina or of her mouth with the appellant's penis, he plainly considered to be more serious, marking them with a heavier sentence. Counts 4, 9 and 10 were either digital penetration or cunnilingus. I would adopt that categorisation.
43 Appropriate standards of sentencing for offending involving a prolonged and degrading series of sexual attacks facilitated by the use of a weapon, were recently considered by this Court in the case of The State of Western Australia v Turaga [2006] WASCA 199. Applying the standards of sentencing discussed in that case, it seems to me that an appropriate sentence for each of counts 3, 5, 6 and 8 would be 4 years (equivalent to 6 years prior to the transitional provisions), while an appropriate sentence for each of counts 4, 9 and 10 would be 2 years and 4 months (3½ years prior to the transitional provisions).
44 While the unlawful detention of the complainant (count 2) was, generally, to facilitate the course of offending engaged in by the appellant, there was a significant period of detention; it included the initial detention
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- in the kitchen involving the obtaining of money and the discussion about the credit card, the detention during the sexual assaults, and then the further period during which the appellant rummaged through the house, when plainly the complainant was not able to regard herself as being able to escape. That period of detention I would mark with a sentence of 2 years' imprisonment.
45 The robbery and burglary offences (counts 1 and 11), while serious offences, pale into insignificance in the circumstances of this case, compared to the detention with the knife and the series of sexual assaults. I would impose a term of 1 year's imprisonment in relation to count 1 (robbery) and 6 months in relation to the burglary in count 11.
46 In order to appropriately mark the total criminality involved, it would in my view be appropriate to order that each of counts 3, 5, 6 and 8 be served concurrently with each other and that each of counts 4, 9 and 10 be served concurrently with each other, but that those two groups of sentences be cumulative. I would also, totality aside, have ordered that the sentence imposed in relation to count 2, the unlawful detention, be served cumulatively upon the other sentences. However, because in my view an appropriate sentence marking the overall criminality would be one of 7 years and 8 months, I would for that reason only reduce the sentence I would otherwise have imposed in respect of count 2 to one of 1 year and 4 months' imprisonment. Totality considerations lead me to the view that the sentences in respect of counts 1 and 11 should be concurrent with count 2. That total of 7 years and 8 months' imprisonment, would be equivalent to 11½ years prior to the transitional provisions.
47 I turn now to deal with the second series of offences, that involving the kidnapping of the complainant and driving her around for a considerable period in her own car, while threatening her with a knife. The unlawful detention of the complainant (count 2) appears to me to be the most significant feature of this series of offences. It is not entirely clear that the appellant had any particular plan in mind at the time that he kidnapped her, although as events transpired he committed the armed robbery and stealing offences. Because the significant feature of the offending was the very lengthy detention, during which the appellant decided what offences he would commit, and during which the complainant plainly feared for her life, the longest sentence imposed, in my view, should be that for count 2.
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48 I should note, in relation to this series of offences, I have taken into account the appellant's plea of guilty. As it was a late plea and was, as his Honour the learned sentencing Judge noted, apparently made in the face of overwhelming evidence and without any particular degree of remorse, I have allowed a discount of approximately 20 per cent for it.
49 In respect of the unlawful detention, I would impose a term of 4 years 8 months' imprisonment, equivalent to 7 years prior to the transitional provisions. In relation to counts 1 and 3 (the armed robberies) I would impose a term of 1 year's imprisonment and for counts 4 and 5 (the stealing offences) a term of 6 months' imprisonment. For totality reasons, I would order all of these terms to be served concurrently.
50 The total effective sentences in each case then would be 7 years 8 months in relation to the first series of offences and 4 years 8 months in relation to the second series. The sentences in respect of each series should be cumulative, giving a total of 12 years 4 months (18½ years prior to the transitional provisions). I stress that this sentence (and each of the individual sentences) takes account of the appellant's relatively severe mental illness and the appellant's apparent co-operation in his treatment as well as the other factors in each case. It should not be seen as representing an appropriate sentence for such a very serious course of offending in the usual case.
51 Turning to the question of when the sentences just imposed should commence, it is apparent that his Honour the learned sentencing Judge intended to make allowance for the 171 days overlooked in the District Court, as well as totality, in the order for partial cumulation which he made in respect of the term of imprisonment imposed in the District Court. However, as it now appears, the effect of his Honour's order was such that the sentences he imposed were to take effect only 12 months prior to the expiration of the non-parole period of the appellant's District Court sentence. I accept that, as the appellant's counsel submits, that is an inadequate allowance to make for both principles of totality and for the 171 days. I would therefore order that the sentences I have imposed take effect after the appellant has served 4 years of the term imposed in the District Court. The effect of that order would be that the sentences would take effect approximately 2 years prior to the appellant's earliest date for release upon parole under the District Court sentence.
52 Finally, turning to the question of parole, it is apparent that the appellant is presently compliant with requirements to take medication, and is developing some degree of insight into his mental illness. Even with
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- appropriate treatment of his mental illness, it appears that his substance abuse problems and underlying personality issues make him a marginal candidate for parole. However, it is important that he be encouraged to take what steps he can towards rehabilitation. I would therefore order that he be made eligible for parole. Whether he is in fact released upon parole will of course depend, in part, upon whether he continues to comply in relation to his medication, and what steps, if any, he takes to deal with his substance abuse and with the attitudes towards women and towards sexual offending which have been noted in the earlier psychiatric reports.
53 BUSS JA: I agree with Wheeler JA.
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