Director of Public Prosecutions v McDowell
[2023] VCC 443
•22nd March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-23-00239
Indictment No. N11212205
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
PAUL McDOWELL
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22nd March 2023 | |
DATE OF SENTENCE: | 22nd March 2023 | |
CASE MAY BE CITED AS: | DPP v McDowell | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 443 | |
REASONS FOR SENTENCE
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Catchwords: Kidnap; (Common Law) Summary offences; unlicensed driving; dangerous driving and unauthorised storage of explosive. 33 years of age at sentence. Kidnap of intimate partner. Brief. Early Plea; Worboyes v The Queen [2021] VSCA 169. Disadvantage; Bugmy v The Queen [2013] HCA 37; 249 CLR 571 COVID-19 increased burden. Sizeable criminal history
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Coulson | Office of Public Prosecutions |
| For the Accused | Ms M. Shanahan | Slades & Parsons Criminal Law |
HIS HONOUR:
1 Paul McDowell, you have pleaded guilty to a single charge of common law kidnapping. That charge is the one charge on the indictment. You have also pleaded guilty to three related summary offences being a charge of unlicensed driving, one charge of dangerous driving and a charge of unauthorised storage of explosives. That sounds like a dramatic offence, that last one; it related to a single flare.
2 You are now 33 years of age and have a lengthy criminal and driving history.
3 You have been in custody since your arrest on 15 June 2022 with only a small period of that time referrable to another sentence. That was the one-month sentence imposed on 14 December 2022 in the Magistrates' Court. That sentence lapsed on 4 January as your counsel told me there was some allowance being made for emergency management days arising from the impact upon prisoners of the COVID-19 virus.
4 Kidnapping is punishable by a 25-year maximum prison term. The summary sets out the much smaller maximum terms for the driving offences. The explosives charge is punishable by a maximum fine of 100 penalty units.
5 Kidnapping is what is described in the Sentencing Act 1991 as a Category 2 offence and a custodial disposition is required unless one of the exceptions in s5(2H) of the Act applies. Your counsel, Ms Shanahan, was explicit in submitting that none of those exceptions arise in this case. I agree and so I will not spend any further time discussing those complicated legislative provisions. It follows that a prison term is required here and not one in combination with a community corrections order.
Facts
6 There is an amended agreed summary of prosecution opening for the plea that 16 March 2023. It was marked as Exhibit A on the plea. It was read aloud earlier this morning by the prosecutor. Because it is agreed, there is no utility in setting out the full sentencing facts in my reasons. I will sentence pursuant to that agreed summary as well as the footage that was taken from the petrol station and the restaurant, and the various photographs set out in the depositional materials including still images from that footage. I will still say something briefly as to the facts.
7 You were in what is described as an on again/off again intimate relationship with your victim, Ms Naomi Milner. She was 38 years of age at the time of the offending on 27 May 2022. You had been staying together at your mother’s address in Carnegie but had been excluded from that address on 25 May courtesy of a Family Violence Intervention Order that had been taken out. The incident on that day led to the two assault charges which were dealt with on 14 December of last year, where you received that one-month sentence which I have already mentioned in these reasons.
8 Having been excluded then from your mother’s property, you needed somewhere to stay and on the 25 May, you and Ms Milner stayed at the house of one of Ms Milner’s friends out in Bulleen, and the next night was spent at a Motel in Box Hill. Your behaviour had become erratic.
9 On the morning of 27 May you were driving Ms Milner’s black Holden sedan. She was a passenger in that car. You were unlicensed. You should not have been driving at all of course. You stopped at a petrol station on Whitehorse Road, Balwyn. She got out whilst you were in the store and she walked quickly away from the scene. She was plainly trying to leave the scene, that is to leave your company. You noticed her departure, you yelled out some menacing words. 'You’re not leaving me, you fucking slut, I’ll kill you' or words to that effect. The precise words are not important. They were menacing. They provide only the context. I am of course not dealing with you for the threat to kill and I make that very plain.
10 You went to the vehicle and you then drove after her. The footage shows that. Your victim saw that you were pursuing her and she started to run East along the footpath on Whitehorse Road. You then mounted the kerb and were driving along the footpath and the nature strip on the wrong side of Whitehorse Road and at one point you returned onto the road driving in the wrong direction towards oncoming traffic. Your victim doubled back and you did a U-Turn and you followed her again. She doubled back again, no doubt in a further endeavour to avoid you. She did not succeed. You stopped the car in her vicinity, exited the car and ran after her. You grabbed her and pushed her back towards the car. You then shoved her into her car and you drove off. It was about 10.23 AM. Witnesses had observed this event and either during or after, rang 000. One man who had been working at a restaurant had actually left the safety of the restaurant and pretty bravely tried to intervene but was told by you to back off. That was Mr Tuminello.
11 Now it is plain that the kidnap was of relatively short duration. By 10.44 you were using your phone to call a taxi. There was an earlier call made by you to Ms Milner's phone at about 10.38, so it is accepted that by then, she was out of your custody.
12 Given the nature of what had been seen and reported to them, the police, attended very swiftly and investigated what on the face of it appeared to be an abduction. They obtained a variety of CCTV footage.
13 They attended the Bulleen address where Ms Milner had stayed a few nights before and spoke to her at about 4.15 pm on the same day. She refused to make a statement. She did not want any repercussions. The summary sets out the course of the investigation and the extent of the evidence against you.
14
You were arrested on 15 June 2022 in a converted garage at your mother’s address out in Glen Huntly. You were interviewed on that day and you made no admissions. You predominantly exercised your right to make a
no-comment interview but you did get a bit excitable at times and told police they 'had nothing'. That is in no way a matter in aggravation. I make that pretty plain. You were of course quite wrong. They had a lot of evidence, whatever Ms Milner’s attitude, given the footage available to them. You were remanded in custody.
15 The summary sets out the chronology of the matter before the Court. The matter has been delayed a few times with a committal listed on 17 November not proceeding because you had sacked your legal team. On the 8 December relisting of the committal, the matter again did not proceed as you refused to remain in the audio-video suite.
So much then for what is only a brief summary of the agreed summary in this matter which is marked as Exhibit A. I will sentence pursuant to that more complete document supplemented of course by the CCTV footage, the stills and the other photographs within the depositional material.
Impact
16 Your victim plainly would not co-operate with the police. She would not sign a witness statement and she maintained that stance. That was her choice. She has chosen also, for whatever reason, not to prepare a victim impact statement. Again, that is her choice. So I have no material from her and it is not open for me to find any lasting or long-term impact here arising from the crime committed upon her. Plainly, however, this was an unpleasant event. I am sure that is a significant understatement. The footage and the agreed summary spell out how unpleasant this event was. Your own counsel conceded that Ms Milner would have suffered a terrifying ordeal at your hands. She was plainly doing everything in her power to get away from you and for good reason. It was also witnessed by a variety of other people who were just going about their business out in Whitehorse Road or in the vicinity on the day. They certainly will not forget this incident in a hurry. Seeing the car up on the footpath brought to the mind of at least one of those civilian witnesses the terrible incident that occurred in Bourke Street some years ago. Crimes such as these have impact when observed, even by those who were not direct victims.
Plea in Mitigation
17 Your counsel, Ms Shanahan, relied upon an excellent outline of plea submissions dated 20 March 2023 as well as a psychological report from Ms Kennedy and a letter from the co-ordinator of the ReLink reintegration program.
18 She made submissions as to your personal background. She touched upon your relationship and your drug history as well as your long history before the courts.
19 She conceded the serious nature of the kidnapping offence and the sentencing purposes which had to be reflected in a case such as this. She made submissions though about the absence of some features of aggravation that sometimes do exist. She argued that you had some prospects of rehabilitation and she placed before me a couple of decision of Judges of this Court, not as comparable cases in terms of the sentences imposed, but rather as illustrating why I should conclude that this example of kidnapping fell at a relatively low level.
20 In a very impressive plea, Ms Shanahan relied chiefly upon the following matters:
· Your early guilty plea in the midst of the global pandemic;
· The presence of some remorse;
· Your disadvantaged background (Bugmy); and
· The impact of COVID-19 upon your custodial experience.
21
As I indicated a bit earlier, she conceded that prison was the only option open here and in fact she conceded the inevitability of a head sentence with a
non-parole period. It was a sensible concession to make. Indeed, as I am sure you appreciated as a result of comments I passed in the course of the plea, the plea was conducted very sensibly and the written outline was of a very high standard. Indeed I have been assisted by each counsel in the way this case has been presented. Your counsel argued that you would be in need of support upon your release, whenever that was, and that I ought make allowance for the possibility at least of a decent period on parole, not that I have any control over whether or not you will be admitted to parole. That will be a matter between you and the Adult Parole Board.
Prosecution
22 The prosecution had prepared some written submissions, which were marked as Exhibit B. They were in no way controversial. So there was no extravagance on either side of the Bar table in this case. There was little need for the prosecutor to make further submissions which is very often the position when a plea has been sensibly conducted. The prosecution did not accept that Ms Milner had been spared the experience of giving evidence as of course she was not a witness. The case was proceeding irrespective of her involvement given the very clear nature of the footage which blind Freddie would know disclosed a kidnap. The Director was calling for a head sentence and a non-parole period. Well, so much had already been readily conceded in the plea by your own counsel and that concession was sensibly made.
Background
23 Before dealing with the various submissions, I will turn briefly to your background.
24 I am going to do it briefly as I have no reason not to accept what I have been told about your family background. It is set out in some detail in the written submissions and in the expert report and there is no utility in my just repeating it all back to you now. You know your background.
25 You were born on 22 July 1989 and so you are 33 years of age.
26 You are the eldest of two children born to your parents who separated when you were four. As I understand it, you had three half siblings on your mother’s side. You and your siblings were removed from the family home by the Department of Human Services, as they were then known. That occurred when you were six and arose in a setting where there was some violence and drug use present within the home. You remained in foster care for two years and there was some serious abuse in that period, which I see no need to further describe. You were placed then to your father but had a pretty uneasy relationship with him owing to his temperament. You did at least feel cared for by your grandmother whom you really considered to be your mother. You left home at the age of 14. You had fragmented schooling and you have mainly worked in low skill jobs but you have not worked consistently for some years now.
27 Drug use has been very problematic for many years with a variety of drugs including ice. Drug use started at a very young age.
28 You have a 14-year-old daughter and your most recent intimate relationship was with the victim of this offence. You have been working as a billet in custody and have been engaged with ReLink integration from November of last year.
29 You have an extensive criminal history. There is no point my setting it all out. It speaks for itself. It includes dishonesty and property offences and some matters of violence. There are some assaults, some threats, as well as an affray and a prior conviction for recklessly causing serious injury, though that was some years back.
30 You have breached many court orders and you continue to offend. Indeed prison has seemingly not deterred you in the past. It has been imposed in recent times either alone or in combination with a community corrections order. Many community corrections orders have had conditions focusing on your rehabilitation. You have not stayed out of trouble. You have grown quite used to prison. That is a bit of a worry. There is a discussion of that in your dealings with Ms Kennedy.
31 You do not fall to be sentenced a second time for any of that past offending. I want you to understand that very clearly. That extensive history before the courts does not aggravate the offending I am dealing with. I have to pass proportionate sentences for the crimes you have committed. You received those other sentences for those other crimes and have served them. I do though, as I am sure you appreciate, have to make judgements about your risk of reoffence and your prospects of rehabilitation, as well as considering the extent of the need to deter you from future offending, as well as protecting the community from you. Your counsel describes the criminal history in her written document as ‘serious and entrenched recidivism’. She is right. It is. The subsequent matters are subsequent in the sense that the assaults were committed before the offending I am dealing with but were dealt with by a court on a later date and as I have indicated, they occurred in relation to family members and led to the intervention order being taken out. I am told that nothing else is outstanding.
Guilty
32 I turn then to consider the matters that have been raised on your behalf by Ms Shanahan. The first of those matters I turn to is your guilty plea. You have pleaded guilty at an early stage. You have taken that early responsibility for your offending.
33 I really see no need to set out the full listing chronology. The agreed summary does that. As a result of your plea, the time, cost and effort of a committal in the lower court or a trial up in this court has actually been avoided. Witnesses have not been required to give evidence at all. There were some witnesses who were in attendance on the two occasions when the contested committal was listed and they included the service station attendant, Ms Milner’s friend who you had stayed the night with on 25 May and the restaurant employee who tried to intervene. On one occasion, as I have said, you sacked your legal team. On the other, you were unrepresented and refused to stay in the audio-visual room and so the committal was adjourned on each occasion. That was a bit unfortunate. It is accepted that yours is not a plea at the very earliest occasion but I do accept that it is still an early plea and one that spared the available witnesses the experience of giving evidence. Now, Ms Milner was not a witness. She never was. She had refused to make a statement and she could not have been called in such a setting, so I do not accept that she has been ‘spared the experience’ and that this is a matter of great weight in my task. I refer to paragraph 36 and 37 of the defence outline. She had spared herself that experience by declining to sign a statement. I would be confident though that notwithstanding that, she would feel some relief that the matter has now been finalised. You, by pleading guilty, have brought the matter to an end.
34 You have facilitated the course of justice. Your guilty plea is worthy of extra weight for the reasons set out in the Court of Appeal decision of Worboyes.[1] A large backlog of cases has developed in the course of the global pandemic over the last couple of years. Your case has not been one of them. It settled swiftly enough.
[1]Worboyes v The Queen [2021] VSCA 169
35 You get the heightened benefit of pleading guilty amidst the global pandemic. So I take these various matters into account in mitigation.
Remorse
36 There is mention in the expert report of some simplistic regret or remorse. I also have your early guilty plea. I am prepared to find the existence of some remorse here and I take that into account in your favour.
Bugmy
37 I have mentioned your background. You did not have much of a start in life, that much is pretty obvious. It was far from being an ideal background. Your counsel’s written submissions hinted at reliance on the principles from the well-known decision of Bugmy[2] without actually naming that case. She rectified that in the running and made it plain that she was relying upon those principles.
[2]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
38 I need no convincing that yours was an unenviable background. I do take it into account in the way contemplated by your counsel pursuant to these principles in Bugmy.
39 An offender's circumstances and their experience during their childhood and their formative years must be considered in the sentencing process. It is well recognised that the effect of social disadvantage does not just diminish with time. A background of significant disadvantage is likely to have profound and lasting consequences. I am sure it has here. You were exposed to dysfunction and to drug use and abuse, all at a very young age. You had fragmented education and, it seems to me, the absence of good role models. In your case I have little doubt that it explains to a degree the faltering trajectory of your life. Ms Kennedy, the expert, expresses an opinion as to the existence of some of the disorders that she diagnoses and says that the genesis for them lies in that grossly dysfunctional background.
40 Now, disadvantage does not attract the same weight in every case or in the same manner. Sometimes it might lead to a very substantial reduction in moral culpability and also a very sizeable reduction in the weight to be given to general and specific deterrence. That was really not the way the matter was being pressed before me in this case.
41 Sometimes it might be enough to take into account in a general way without any of these very sizeable reductions, and that is really what your counsel was asking me to do here. I do take into account your background in a mitigatory fashion in the way urged upon me by your counsel. I give full weight to your background in the way that phrase is employed in those cases to which I have referred.
Rehabilitation
42 I turn then to your prospects of rehabilitation. Your counsel submitted that you had some prospects of rehabilitation. She could really put it no higher than that and recognised the obvious difficulties presented by your lengthy past history before the courts. Let me make it very clear to you, there is no harm to you in your counsel being restrained and sensible in her submissions to a court. What is the point in making extravagant claims as to your future prospects? There is no purpose in doing that.
43 I have to be realistic in my assessment. You have had long‑term issues with a variety of drugs and that casts a shadow over the future. That background of disadvantage which I have taken into account is not just miraculously going to disappear overnight. It is your background. You have had no consistent employment for some years. You have not taken the many chances that have been offered to you by the courts over the years. Non-custodial sentences which have been designed to avoid exposure to prison have not succeeded, and even prison has seemingly not deterred you when it has been imposed. You are not some silly teenager obviously. You are a mature man. You do not have youth on your side. You do not have much by way of support in the community. You have again engaged with ReLink. That is a positive but of course it guarantees you nothing. The letter from the coordinator makes plain that you are actually reflecting on your life and trying to consider the ways of remaining drug and offence free in the future. That is a positive. Of course it is. You have engaged with them before and yet here you are again back in custody. I note however that on that last occasion, there was a decent gap before offending, much longer than on earlier occasions. Plainly then it is a positive that you are and have been engaging with that organisation. There is at least a plan and there is at least some support that will be available. You are considering strategies to avoid winding up back where you are now in prison. The challenges which lie ahead in terms of your safe management are mentioned in the expert report of Ms Kennedy. So too your treatment needs. In a way, prison is something you are quite comfortable with and I said earlier, that is a bit of a worry, this notion of institutionalisation.
44 I will not write you off and say that you have no prospects of rehabilitation at all. That is not the position. I can however only be guarded as to your future prospects. I do find that there are at least some prospects of rehabilitation. As comfortable as prison has become for you, you do at least recognise some of the negatives of being held in prison such as losing the day-to-day in person contact with your daughter and with your mother who has been, it would seem, unwell. You will need to take some determined steps to abstain from illegal drug use. If you do, well, things could only look up for you. Your prospects of rehabilitation would improve very significantly indeed. If you do not, then you will have almost no future prospects of rehabilitation at all. The expert talks of the sad state of people in their mid-40s looking back upon a wasted life. Well, you need to try to alter the trajectory of your life. If you do not take determined steps, you will be one of those people. I hope that you are not. I do accept your counsel’s submissions that there are some prospects of rehabilitation in this case. You surely could not be enjoying the life that you have been leading over the last decade or so.
COVID-19
45 I turn to the issue of COVID-19 and its impact upon you, a prisoner, held in the course of the global pandemic. I raised this matter towards the end of the plea. As a general proposition, I do accept that the COVID-19 virus and the response to it by those who run the prisons has increased a prisoner's burden of imprisonment. I am sure prison has been a more stressful environment in the time that you have been there.
46 No doubt there has been worry about catching the virus in such a setting as that, where, unlike someone out in the community, there is no level of autonomy or control over one's movements. There have been some lockdowns and I was told that they have affected you. If locked down, you would not have personal visits available in that time frame. There have been staffing issues as well which no doubt have an impact upon prisoners. There would probably also have been the suspension of the full range of courses and programs, at least for some of the time in which you have been held, and I note that you have been held continuously since June 2022. Having said all of that though, on the COVID-19 front, things looked up last year both in the community and also in a prison setting. Personal visits resumed from about March of last year.
47 As to what lies ahead in the future on the pandemic front for prisoners, well that is quite impossible for me to know. I am not free to speculate or guess about that. Those whose job it is to run the prisons will be able to reflect on the actual impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any actual increased burden in your case by way of conferring emergency management days in relation to the sentence that I will shortly impose. In fact, they did that it would seem in relation to the one-month term imposed in December of last year. In relation to the sentence I am about to impose, I cannot know if that will take place or not and I certainly cannot proceed on the assumption that it will. To take that into account in advance in that way would involve me contemplating a future executive action and that is prohibited.
48 It is though, not unreasonable, for me to think that prisoners may yet have some issues thrown up by COVID-19 in the coming handful of months. I suspect lockdowns will still occur in a prison setting from time to time and these things obviously have impacts upon prisoners. I take into account the increased burden posed by the response to COVID-19 in the manner that I have described.
Expert report
49 I take into account also the report of Ms Kennedy and I do so in the manner contemplated by your counsel. I do not see any need to quote slabs from that report. Your counsel has very explicitly on more than one occasion this morning stated that she is not in any way relying upon that report as enlivening any of the principles from the well-known case of Verdins. I act on that submission. That is not to say the report is unimportant. It has a decent coverage of your unhappy background. It spells out some of the challenges that you present in terms of community protection. It speaks also of your treatment needs. The report is also relied upon as going to the Bugmy consideration and I have spoken of that already. The disorders spoken of have their genesis in the grossly dysfunctional childhood that is described by Ms Kennedy. You are, it seems to me at least, a damaged individual, damaged by things that were completely outside your control and you have been left with what is described by the expert as a crushingly low self-esteem and poor coping skills as a result. These were not matters of your choosing and it seems to me they should excite some moderation in my sentencing task as I have earlier described when dealing with the Bugmy principles.
General
50 I turn now then to some general matters. I am required to take into account a large range of matters including the maximum penalties and the nature, gravity and the impact of any crimes committed by you.
51 It is conceded by your counsel that the kidnapping was an inherently serious offence. Your victim was your intimate partner trying her best to leave your company on the day of the offence.
52 Your counsel placed before me two sentencing decisions of Judges of this court to illustrate what she said was the proper characterisation of your offending as falling towards the lower level of objective seriousness. (Batterbee 2022 VCC 2047; Daniher 2020 VCC 945). I accept that there was no great planning here. This crime just reeks of spontaneous conduct probably under the influence of drugs and driven by her attempt to leave the scene. Being drug affected is not a matter in mitigation. It was a nasty incident for Ms Milner to be caught up in and for anyone else to witness. I do accept that many features of aggravation are lacking here such as threatened or actual use of weapons or any direct application of force such as to injure. There was no context of other criminality such as a drug or other debt nor any group involvement. Nor anything sinister lurking in the background in terms of kidnapping for a particular purpose, for instance for some sexual purposes. This was spontaneous, unsophisticated offending occurring in the moment. In addition it was plainly a quite brief period where she was kidnapped. It was still serious as is conceded.
53 This all occurring in a public place in broad daylight is hardly mitigatory. As I said this morning though, this example of kidnapping is a mile removed from the most serious examples of this offence and I do accept that it sits at a relatively low level of objective seriousness. That statement should not be misunderstood nor your counsel's submissions in this respect. Kidnapping is an inherently serious offence. It has a maximum penalty of 25 years' imprisonment. It is a Category 2 offence. It is just that this example of the offence is, as far as I am concerned, far removed from the serious examples often placed before the Court, with cases involving planned armed group activity with a criminal context and sometimes extravagant violence and lengthy detention. I am not dealing with such a crime here. The dangerous driving was pretty outrageous conduct on a main road in daylight hours committed by a man with a pretty horrible driving record but it was relatively swift and no other vehicles were actually struck. As I say, you have relevant prior convictions for dangerous driving. You were unlicensed and have a great number of relevant prior convictions for that offence. The other offence relating to the flare was scarcely mentioned ‘in dispatches’ and for good reason. It is hardly worth describing and it pales into insignificance here.
54 I am required to consider a number of purposes of sentencing and one of those that is often overlooked is rehabilitation. I must and do pay regard to your prospects of rehabilitation. As I have said, I can only be guarded as to your prospects into the future but I do hope you can alter your life for the better and in my judgment it is not some forlorn or illusory hope. It is not too late for you.
55 I am required to punish you justly and proportionately for your crimes.
56 I must also denounce your conduct and I do. The kidnap was pretty dreadful conduct targeting your intimate partner.
57 I must pay appropriate weight to specific deterrence, and by that term, I am referring to the need to deter you from offending in the future. That is of obvious importance in this case. Courts have tried to deter you with very little success. I must try again.
58 General deterrence is also of importance. This court must send a message loud and clear to others in the community who may consider offending in the way that you did. They must be deterred.
59 I must also pay adequate regard to community protection. Ms Kennedy speaks of the many challenges in terms of your safe management in the community in the future. Plainly there is a tangible risk of future offending.
60 I must pay regard to current sentencing practices. That is not a single controlling factor. There is no Sentencing Snapshot available from the Sentencing Advisory Council in relation to the offence of kidnap but I have looked at the online statistics for this offence, for sentences imposed from July 2016 to June 2021. Statistics have obvious limitations. I am not exercising a mathematical discretion here. Rather I am exercising a sentencing discretion and all the many things which might explain a particular sentence are omitted from bare statistical data.
61 I have also looked at the overview of kidnap cases from the Judicial College of Victoria Sentencing Manual. So other instances of sentences imposed in this Court or on appeal to the Court of Appeal. I have looked and read those two decisions that Ms Shanahan referred to though I note again, she was not placing those before me as comparable cases. Indeed, I note in each case that a combination type sentence was imposed. Your counsel is not for one moment suggesting that such a course is open here and plainly she is correct.
62 I am sentencing you for your crimes. No amount of looking at other examples of other sentences imposed in other cases or the statistics that I have mentioned can ever provide the answer to my sentencing task. Other cases are not precedents and statistics have inherent limitations. Nor is there any such thing as one correct sentence in this case or any other.
Totality
63 I am required to take into account the principle of totality of sentence. I have taken a last look at the effect of the sentences imposed by the Court to ensure that it is commensurate with your overall criminality. There is of course a tight temporal connection between the offending here. The two driving offences occurred in the same period. The car was used to engage in the kidnap. In applying the principle of totality, I also have regard to the time that you spent in relation to the other sentence imposed late last year.
64 Prison is always a disposition of last resort. Your counsel correctly concedes that a prison term with a non-parole period is the only option open here.
65 I will not get you to stand up in the circumstances. I will have you remain seated.
Sentence
Disposal order
66 Now, there is a disposal order that is sought. There is no objection taken to the making of this order. It is an application brought pursuant to s78 of the Confiscations Act in relation to the flare. It is unopposed. I am satisfied that the conditions for the making of the order are made out and pursuant to s78(1) of the Confiscations Act, I forfeit to the State the property referred to in the schedule and I direct that it be managed and controlled in the manner contemplated by that signed order.
67 On the Indictment charge of kidnapping, you are convicted and sentenced to 2 years 2 months' imprisonment. That will be the base sentence.
Related summary offences
68 On the charge of dangerous driving and the unlicensed driving, I believe an aggregate sentence is both open and appropriate. On those two offences I convict and sentence you to 4 months' imprisonment.
69 On the summary charge relating to the flare you are convicted and fined $100.
Cumulation
70 I direct that one month of the aggregate sentence imposed on the driving offences is to be served cumulatively, that is on top of the base sentence.
Total Effective Sentence
71 This results in a total effective sentence then of 27 months or 2 years 3 months imprisonment.
72 I am required by law to fix a non-parole period. I can make no assumptions as to whether or not you will be released on parole. As I have said earlier, that will be entirely in the hands of the Adult Parole Board. I guess it is between you and them, and I must not even consider that eventuality. I do accept that there is a need for structure upon your ultimate release, whenever that is. I will make my reasons available to the Adult Parole Board.
Non-Parole Period
73 I fix a period of 14 months during which you will not be eligible for release on parole.
Section 18
74 You have been in custody already for a period of 259 days and you get credit for that period. You have already served that period under this sentence and that s18 declaration is entered into the records of the Court.
6AAA
75 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty, I would have sent you to prison for 4 years. I would have fixed a non‑parole period of 2½ years and that declaration under s6AAA of the Sentencing Act is also to be entered into the records of the Court.
License order re dangerous driving
76 On the summary offence of dangerous driving, I am required to make an order disqualifying you from driving. All licences are cancelled and you are disqualified from driving in this State for a period of six months. I am going to make that effective from today's date.
77 Let me just see if there are any other matters I need to deal with. Any other matters from either of your perspectives?
78 COUNSEL: No, Your Honour.
79 HIS HONOUR: No. All right. So that completes the matter.
80 Now, we have probably got the – you are not going to do it I think in this sort of setting, Ms Shanahan, but we have got this link for a little - well, we have got about 10 minutes once I leave the Bench; if you want to utilise the link for that period, you can.
81 MS SHANAHAN: Your Honour, I can simply indicate to Mr McDowell that there is a conference booked with him tomorrow morning so I will take him through it then.
82 HIS HONOUR: Well, Mr McDowell, you have heard that then. There is a conference that is booked in tomorrow. No doubt you will have discussions about what has taken place here today and your rights in relation to the sentence that I have imposed, but I am sure you are following that it is a 27-month term with a non-parole period of 14 months and you have already served the 259 days of that sentence.
83 So you will be seen by your legal team tomorrow and they can discuss your rights in relation to this. So that is as far as we need take it then at this stage.
84 Nothing else from either of you?
85 COUNSEL: No, Your Honour.
86 HIS HONOUR: That completes the matter then, Mr McDowell, and we will disconnect the link at this stage, all right?
87 I will revise those remarks and get them to the parties once they are revised. I will do it pretty swiftly once they are back from VGRS.
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