Director of Public Prosecutions v Roe
[2019] VCC 1560
•30 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01421
Indictment No. C1711284B
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID ROE |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2019 | |
DATE OF SENTENCE: | 30 September 2019 | |
CASE MAY BE CITED AS: | DPP v Roe | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1560 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Kidnapping – False imprisonment – Common law assault – Took victim to bank to unfreeze account – Intentionally assisted in committing physical assault – False imprisonment lasted 45½ hours – Victim tied to chair and deprived of food and water – Lesser role than co-offender but actively participated and played significant role – High moral culpability – Did not derive financial benefit – Aboriginal and Torres Strait Islander origin – Supportive family – Drug abuse – Extensive prior offences involving violence – Total effective sentence of 7 years 28 days’ imprisonment - 5 years’ non-parole period
Legislation Cited: Crimes Act 1958 s. 63A, s. 320, s. 323, s. 324 – Sentencing Act 1991, s. 3(1), s. 5(4)
Cases Cited:Ulutui V The Queen (2014) 41 VR 676 – Smith v The Queen (2014) 245 A Crim R 331 – Nguyen v The Queen (2010) 208 A Crim R 464 – R v Miller [1995] 2 VR 348 – R v Rankin [2001] VSCA 158 – Young v The Queen [2015] VSCA 265 – Hanna v The Queen [2014] VSCA 187 – The Queen v Phuc [2000] VSC 296 – R v Lacey [2006] VSCA 4 – Muldrock v The Queen (2011) 244 CLR 120 – DPP v Terrick (2009) 24 VR 457 – R v Fuller-Cust (2002) 6 VR 496 – Bugmy v The Queen (1990) 169 CLR 525 – DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 428 – Hills v The Queen [2011] VSCA 364 – Cini v The Queen [2013] VSCA 115 – Hanna v The Queen [2014] VSCA 187 – Elmaghraby v The Queen [2016] VSCA 326 – DPP v Hudgson [2016] VSCA 254
Sentence: Total effective sentence of 7 years 28 days’ imprisonment with a non-parole period of 5 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J J S Jassar | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr D N McGlone Ms N Jayasuriya | Leanne Warren & Associates |
HIS HONOUR:
1 David Roe, you have been found guilty by a jury of one charge of kidnapping (Charge 1),[1] one charge of false imprisonment (Charge 2),[2] and two charges of common law assault (Charges 3 & 6).[3]
[1] Contrary to Crimes Act 1958 s 63A.
[2] Contrary to common law.
[3] Contrary to common law.
2 The maximum penalty for kidnapping is 25 years’ imprisonment.[4] The maximum penalty for false imprisonment is 10 years’ imprisonment,[5] and the maximum penalty for common law assault is 5 years’ imprisonment.[6]
[4] Pursuant to Crimes Act 1958 s 63A.
[5] Pursuant to Crimes Act 1958 s 320.
[6] Pursuant to Crimes Act 1958 s 320.
The facts
3 For the purposes of sentencing you, I accept the evidence of your victim, Muditha Ganehiarachchi, who I find was an honest and reliable witness and whose version of events I find must have been accepted by the jury.
4 Ganehiarachchi, who was aged 23 at the time of the offences, arrived in Australia from his birth place, Sri Lanka, on 23 February 2016.
5 On or around 3 March 2017, Ganehiarachchi met your co-accused, Nalaka Wijeratne, at a party in Dandenong. Wijeratne represented to Ganehiarachchi that he was a financial adviser who could procure a loan of $26,000 for Ganehiarachchi to purchase a car. Ganehiarachchi was deceived by Wijeratne and provided him with his bank account and other personal details. A Commonwealth Bank of Australia (‘CBA’) loan was approved on 3 April 2017 and the funds were paid into Ganehiarachchi’s bank account.
6 Wijeratne apparently owed money to another co-accused, Suncica Brajic-Bejdic. $19,960 of the proceeds of the loan were fraudulently transferred by Wijeratne into a bank account in the name of Brajic-Bejdic’s husband, Mario Bejdic, in repayment of his loan to Brajic-Bejdic.
7 On 3 April 2017, when Ganehiarachchi became aware of the unauthorised transfer of his funds, he contacted the bank, with the result that both his and Bejdic’s accounts were frozen. When Brajic-Bejdic became aware that Bejdic’s account was frozen and the funds could not be accessed by her, this set in train a series of events which gives rise to the charges of kidnapping, false imprisonment and common law assault. For the purposes of sentencing you I entirely accept Mr Ganehiarachchi’s version of events.
8 Between 6 April 2017 and 17 April 2017, Wijeratne and Brajic-Bejdic made a number of efforts to get Ganehiarachchi to unfreeze the account so the sum of $19,960 could be withdrawn by Brajic-Bejdic. Ganehiarachchi refused to cooperate. In consequence, Wijeratne, together with Brajic-Bejdic, planned and executed the kidnapping of Ganehiarachchi so as to force him to unfreeze the account so Brajic-Bejdic could access the funds.
9 The prosecution case at trial was that you were closely associated with Wijeratne and Brajic-Bejdic in March 2017. The Crown alleged, and I accept, that you were aware of the circumstances giving rise to the freezing of the loan funds and you knowingly participated in the kidnapping of Ganehiarachchi on 17 April 2017 in company with Wijeratne and Brajic-Bejdic.
10 On 17 April 2017, at about 7.30pm, Wijeratne called Ganehiarachchi and told him he was outside his house and asked him to come outside. Ganehiarachchi complied and, as he approached Wijeratne, who was standing near his motor vehicle, you and your co-accused, Brajic-Bejdic, suddenly appeared. Wijeratne produced a 20 centimetre long steak knife from his right hand jacket pocket, pressed it against the front of Ganehiarachchi’s throat and ‘threatened [him] to get into the car’. You pushed Ganehiarachchi and told him to ‘Get into the car’.
11 You pushed Ganehiarachchi into the rear seat of the vehicle, got in beside him and covered his head with the jacket he was wearing thereby covering his eyes. You took Ganehiarachchi’s wallet and mobile phone. You are not charged with any offences relating to the removal of these items, this is simply put as being part of the facts surrounding the kidnapping. Ganehiarachchi was required to keep his head bent down on his knees during the car trip.
12 Wijeratne got into the driver’s seat and Brajic-Bejdic got into the front passenger seat and Wijeratne drove off. Once in the car, Wijeratne told Ganehiarachchi to ‘activate the account’. Brajic-Bejdic told Ganehiarachchi he was to stay the night at her house and tomorrow morning he had to go to the bank and ‘activate’ the account. The trip to Brajic-Bejdic’s house lasted about 30 to 45 minutes. These facts give rise to Charge 1 – kidnapping.[7]
[7] As to kidnapping being a continuing offence see Ulutui V The Queen (2014) 41 VR 676, 696–697 [86]–[92] (Redlich JA, Neave and Tate JJA agreeing).
13 The prosecution case in respect of Charge 1 is that you and your two co-accused took away Ganehiarachchi from his home by force and detained him for the purpose of Wijeratne and Brajic-Bejdic obtaining access to the $19,960 which had been fraudulently transferred by Wijeratne into Bejdic’s bank account.
14 The car driven by Wijeratne travelled to Brajic-Bejdic’s house at 2B Andrew Road, St Albans, where she lived with her husband and her mother, Anna Bejdic. You and Wijeratne were also staying in that house at the time.
15 With his face still covered, Ganehiarachchi was taken by force into a bedroom of the house where his wrists and ankles were tied to a chair with a white electrical extension cord. Another power cord was tied around Ganehiarachchi’s neck and secured to the cord around his wrists. Understandably, he was unable to move. Once he was trussed up in this fashion, his jacket was finally removed from his head, at which point you and Wijeratne were in the room. These facts give rise to the commencement of the false imprisonment charge (Charge 2), which is a continuing offence.
16 After about ten minutes, Brajic-Bejdic entered the room wearing a ‘scary-looking’ red mask and hit Ganehiarachchi once with a metal vacuum cleaner pole on the left arm towards his shoulder, which caused him pain. He was told to go to the bank and get the money. You were holding him whilst he was stuck. You are charged with common law assault (Charge 3) on the basis that you intentionally assisted Brajic-Bejdic in committing this offence.[8]
[8] See Crimes Act 1958, s323 and s324.
17 According to Ganehiarachchi’s evidence at trial, Wijeratne left the room prior to this offence being committed and, accordingly, at the close of the prosecution case he was discharged by direction and a verdict of not guilty was entered on the court record.
18 Brajic-Bejdic left the room and Wijeratne re-entered the room with the knife, held it to Ganehiarachchi’s throat and demanded Ganehiarachchi activate Bejdic’s account. Ganehiarachchi told Wijeratne he would give him the money. All of this time Ganehiarachchi was ‘so frightened’.
19 You had left the room by this stage. Following this incident, Ganehiarachchi was left alone in the room which was dimly lit. The door was left partially open.
20 Some time later, when you had returned to the room, Ganehiarachchi tried to wriggle free, but you saw this and informed Brajic-Bejdic. She returned to the room wearing the same ‘scary’ red mask and asked Ganehiarachchi whether he was trying to escape. When he said ‘No’, she hit him three or four times on the left leg below the knee with the vacuum cleaner pole. While this was occurring you were holding him tightly by the shoulder. These facts give rise to the second charge of common law assault (Charge 6) on the basis that you intentionally assisted Brajic-Bejdic in committing this offence.[9]
[9] See Crimes Act 1958, s323 and s324.
21 Eventually Ganehiarachchi fell asleep. At that time you were in the room sleeping on the floor, in effect securing Ganehiarachchi so that he could not escape. According to Ganehiarachchi, he was given no food or water, he was not taken to the bathroom or toilet and he was in pain and very scared.
22 The next day, when Wijeratne approached Ganehiarachchi, he agreed to go to a bank branch and unfreeze Bejdic’s bank account. For this purpose the three of you took him to the Watergardens Shopping Centre branch of the CBA. During the car trip his head was again covered with his jacket so he could not see. Ganehiarachchi said he was frightened.
23 Wijeratne and Ganehiarachchi entered the bank and made arrangements with a customer service officer to have the Ganehiarachchi and Bejdic accounts unfrozen and a form was completed and signed by Ganehiarachchi for that purpose. He was told it would take 24 hours to unfreeze the accounts. Ganehiarachchi and the three of you then returned to the car and went back to the Andrew Road address.
24 Ganehiarachchi was given a glass of water and a biscuit and Wijeratne told him that he was to remain at the house for a further 24 hours to ensure that the accounts were unfrozen. Ganehiarachchi was kept in the living room for about half an hour and was then returned to the bedroom where he had previously been imprisoned. He was tied up again in similar fashion but without the neck tie. He was kept alone in the room all day on 18 April.
25 The next morning, 19 April 2017, Wijeratne telephoned the bank to check whether the money was available and he was told by a bank employee that more was needed to be done to release the funds and Ganehiarachchi would have to attend the bank branch for that purpose.
26 All three of you again took Ganehiarachchi to the shopping centre where Wijeratne and Ganehiarachchi again entered the bank. A customer service officer put Ganehiarachchi on the phone to a person at the Commonwealth Bank’s Security Department. Ganehiarachchi was asked by a CBA security officer if he wanted to cancel the investigation and free the funds, to which Ganehiarachchi said ‘Yes’. The CBA security officer said that the account would be unlocked and that the funds would be available for withdrawal in about 15 minutes’ time.
27 After about 15 minutes, Brajic-Bejdic went to an ATM at the shopping centre and withdrew some money. You were then driven to a number of ATMs where Brajic-Bejdic withdrew almost the entire amount of $19,960 from the account.
28 Following these events, you and your co-offenders drove Ganehiarachchi back to the Andrew Road address, where he went into the living room for a short time. He then got into a different vehicle and Wijeratne alone drove him to the South Yarra railway station, where he was finally released at about 5.00pm. Wijeratne returned Ganehiarachchi’s wallet and phone to him at this time and Ganehiarachchi then went home.
29 The false imprisonment charge is a continuing offence committed over a period of some 45½ hours between about 7.30pm on 17 April 2017 and about 5.00pm on 19 April 2017. This covers the period from when Ganehiarachchi was first forced into the room at 2B Andrew Road, St Albans until he was eventually released at the South Yarra railway station.
30 After receiving advice from some friends and a relative, Ganehiarachchi reported these offences to police on or about 12 May 2017.
31 Upon your arrest in the Northern Territory in July 2018, you refused to participate in a record of interview with Victoria Police.
Offence seriousness
32 Kidnapping is a very serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum sentence in the criminal calendar.[10] The maximum penalty ‘shows unambiguously how seriously the community, through the Parliament, views this conduct’.[11]
[10] See Smith v The Queen (2014) 245 A Crim R 331, 346 [84], 350 [109] (Whelan JA, Neave JA agreeing).
[11] Nguyen v The Queen (2010) 208 A Crim R 464, 468 [18] (Maxwell P and Buchanan JA agreeing).
33 Moreover, in my opinion, this is a serious example of kidnapping. Ganehiarachchi was lured from his home, where he had the right to feel safe, and he was bundled into a motor vehicle at knifepoint. You secured him in the back seat of that motor vehicle and pulled his coat over his head, thereby depriving him of his vision.
34 I accept the Crown’s characterisation of the present instance of kidnapping:
[It] is of the more serious kind, with a planned abduction of the victim from his home by the offender in the company of two others with the motive of intimidation in order to extract money that was rightfully the victim’s.[12]
[12] See DPP’s ‘Further Plea and Sentencing Submissions’ dated 13 May 2019 [28].
35 The circumstances of the abduction were intimidating, with Wijeratne producing a knife and with Ganehiarachchi being forced and pushed into the back-seat of the car by you. You then covered Ganehiarachchi’s head with a jacket and removed his mobile phone and wallet from his pocket and gave them to Wijeratne. Ganehiarachchi was driven to an unknown destination. You continued to participate in the abduction in these intimidating circumstances.
36 Moreover, this must have been a truly terrifying ordeal for Ganehiarachchi. I note that no victim impact statement has been tendered in this matter. Nonetheless, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences from the evidence regarding the likely impact of an offence upon the victim.[13]
[13] R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Rankin [2001] VSCA 158 [9]–[10] (Winneke P, Vincent JA and O’Bryan AJA agreeing).
37 The false imprisonment, lasting as it did some 45½ hours, is also a serious example of that offence. For much of that time Ganehiarachchi was tied to a chair and deprived of food and water. The duration of the false imprisonment and the conditions Ganehiarachchi was kept under places this conduct at the serious end for offending of this kind.
38 Ganehiarachchi was abducted on the evening of the 17 April and then detained in a room, his ankles, legs and neck tied to a chair by electrical extension cord overnight and he was not given food or water. He was then conveyed in the company of you and your co-offenders in a car to the bank the next day and returned to the same room and tied up again, for another night. He was then taken on a second trip to the bank on 19 April by all three of you. Ganehiarachchi was therefore detained for an extended period of two nights and three days. He was physically restrained and deprived of his liberty and intimidated. Ganehiarachchi was physically assaulted and you were a willing participant in this prolonged, intimidating and objectively terrifying ordeal involving his physical restraint and the deprivation of his liberty.
39 Moreover, the common law assaults, while far less serious crimes, are not trifling offences.
40 While it is accepted that you were not the mastermind behind the kidnapping operation, you were well-aware that Ganehiarachchi was abducted in intimidating circumstances and that he was held for over two days, tied up and left in a room. You were an active, willing and key participant in this offending.
41 In Young v The Queen the Victorian Court of Appeal opined:[14]
As Priest JA[15] pointed out in Hanna v The Queen,[16] kidnapping, which often culminates in an ensuing period of false imprisonment, often attracts sentences of imprisonment in ‘double figures’. Indeed, ‘sentences of imprisonment exceeding seven years, to a shade under 10 years, are not uncommon generally for kidnapping and associated offending’.[17]
[14] [2015] VSCA 265 [79] (Osborn, Beach and McLeish JJA).
[15] With whom Maxwell P and Neave JA agreed.
[16] [2014] VSCA 187.
[17] Ibid [88]. See also The Queen v Phuc [2000] VSC 296 [17] (Vincent J).
42 I am very mindful of the need to not impose double punishment on you as a consequence of the overlapping nature of the offences. As Vincent JA opined in R v Lacey:
It is, of course, well recognised that although it is sometimes extremely difficult to separate the bases of punishment in situations where a number of offences are committed within the ambit of a single incident or enterprise, the sentencing judge must endeavour to do so and address the issue of possible overlapping by moderating the individual sentences and the making of orders for concurrency.[18]
[18][2006] VSCA 4 [24] (Vincent JA, Callaway and Chernov JJA agreeing).
43 Overall, I consider this to be very grave offending and your moral culpability is high. Clearly, denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these serious offences.
Personal circumstances
44 You are presently aged 33 years and were 30 at the time of committing these offences. You are of Aboriginal and Torres Strait Islander origin. You were born in Darwin, being the youngest in a sibship of five. Your mother was from the Yarwu Nation of Western Australia and your father is from the Warumunga Nation from Tennant Creek in the Northern Territory.
45 You have a loving and supportive family and have not suffered the profound depravation which is so often the case. I note that during the plea hearing your sister, Andrea Roe, and your nephew were present via video link from Darwin.
46 Your father has worked with the Northern Land Council for much of his life, excluding a time when he was carer for your mother. He currently holds a senior administrative position. Your sister works as a prison officer at the Darwin Correctional Centre.
47 You attended Tiwi and Nakara schools, but dropped out at the end of year 8 or year 9. You have had short periods of employment as a stevedore. You have not worked since 2012.
48 You have engaged in substance abuse, principally methamphetamine (Ice), for much of your life. You have also abused alcohol and drugs from the age of 13. You commenced using amphetamine when you were aged 15, and methylamphetamine when you were aged 18.
49 Your mother contracted ovarian cancer in 2014 while you were serving a sentence of imprisonment. Because of your sister’s employment at the Darwin Correctional Centre, you were required to serve your sentence in Alice Springs. Your mother would visit you in prison in Alice Springs, but kept her illness hidden from you.
50 You were eventually transferred to Darwin on compassionate grounds to enable you to attend your mother’s funeral. Apparently, your grief concerning your mother’s death remains an ongoing problem for you.
51 Following your release from prison, you returned to drug abuse and were later charged with possession of a quantity of a dangerous drug less than the trafficable quantity. You pleaded guilty and were sentenced to 28 days’ imprisonment.
52 Upon your release from that sentence, you did not turn to your family for support but formed a relationship with a woman by the name of Sarah Delelos, who was originally from Brisbane. It was at about this time that you met Mario Bejdic.
53 You left the Northern Territory and travelled with Ms Delelos to Melbourne where, through your association with Bejdic, the two of you were able to obtain accommodation at the Andrew Street house, the location of the false imprisonment of Ganehiarachchi.
54 Following the present offences, you travelled to Brisbane to join Ms Delelos. You were abusing methylamphetamine throughout this period and eventually returned to Darwin where, once again, you committed further offences and received another term of imprisonment.
55 As part of your release from prison, you were referred to the Barkly Region Alcohol and Drug Abuse Advisory Group (BRADAAG) based in Tennant Creek. This proved to be a very positive experience for you and appears to be the first significant engagement you have had towards your rehabilitation.
56 According to your counsel, you engaged with the BRADAAG in three significant ways. Firstly, in a psychological report dated 26 April 2019, Dr Aaron Cunningham notes that it was during this time of drug rehabilitation that you began to address the self-destructive spiral of drug abuse that your mother’s death precipitated.
57 Secondly, you responded well and the rehabilitation manager at BRADAAG states:
David was [an] extremely well behaved client, participated in all programs that we had to offer at the time he was in BRADAAG. He even went on a program for men at the gym.
58 Thirdly, during your period in Tennant Creek, you reconnected with your father and other family members. Moves were instigated towards your initiation into your father’s nation, and you were tutored by an uncle in the ways of your culture. As a result, you began to experience a sense of connection and belonging to something greater than yourself.
59 You left the BRADAAG program upon being extradited to Melbourne to face the present charges.
60 You told Dr Cunningham that upon your release from prison you plan to return to your father’s family in the Northern Territory or your mother’s family in Broome.
61 You have an extensive prior criminal history dating back to an appearance in the Broome Court of Petty Sessions in March 2005 for disorderly conduct. Since then, you have had 14 court appearances, mostly in the Darwin Court of Summary Jurisdiction, and one appearance in the Darwin Supreme Court.
62 Your prior offending involves a large number of offences involving violence, including 12 charges of aggravated assault. There are also 11 charges of failing to comply with restraining orders and engaging in conduct that contravenes domestic violence orders. There is a prior conviction for demanding with menaces, recklessly engaging in serious harm and making a threat to kill a person. There is also a prior conviction in relation to assault with a weapon, for which you received 20 months’ imprisonment with a non-parole period of 18 months. There are also a number of drug-related offences, some dishonesty offences and a number of driving offences. Also of concern are a number of offences involving breaches of firearms legislation.
63 All in all, this is a significant prior criminal history with a number of concerning features in relation to your propensity to violence, which of course is highly relevant in your present circumstances. It means that I must give weight to specific deterrence and protection of the community in sentencing you for these serious crimes.
64 I have had regard to the confidential psychological assessment prepared by Dr Aaron Cunningham.[19] Dr Cunningham notes that you have had one significant relationship in your life with a woman named Angelina, with whom you co-habited intermittently from the age of 21 until your early thirties. You have two children, Eddie aged 13, and Ivy aged 7. You also have another daughter from another relationship, Iyla aged 5, who lives in Darwin. Angelina, Eddie and Ivy live in Queensland, but you have not seen your children for some time and you are having difficulty coping with the disconnection from your children.
[19] Exhibit R2.
65 You recognise that through your regular and serious offending and imprisonment you have let your children down.
66 So far as your drug abuse is concerned, Dr Cunningham notes that you were recently abusing up to 2 grams of methylamphetamine per day in the community, and that you used methylamphetamine to cope with the stresses of life. He opined that your recent escalation in drug abuse was connected with your inability to cope with grief over your mother’s death. Dr Cunningham also opined that absence of a relationship with your children presents an additional trigger for your drug abuse.
67 Dr Cunningham administered the Wechsler Adult Intelligence Scale IV in order to assess your full scale IQ. This was assessed as 79 within a range of 75-83. This means that you scored better than 8 per cent compared with your age peers. Dr Cunningham opined that this indicates impairment in your verbal reasoning and comprehension. He said that you would struggle to communicate your thoughts and emotions and manage verbally-based conflict. Dr Cunningham also noted your limited insight into your emotional state.
68 Dr Cunningham did not diagnose you as suffering from any mental illness or other condition which would engage Verdins’ principles. Moreover, your counsel did not submit that the level of your intellectual functioning was of an order that would engage the principles in Muldrock v The Queen.[20]
[20] (2011) 244 CLR 120.
69 It is likely that your offending conduct was committed against a background of significant abuse of methylamphetamine, which of course is not a mitigating circumstance.
70 I have had regard to the letter from Mr Ron Miliado, the Residential Rehabilitation Manager at BRADAAG, dated 23 April 2019.[21] He notes that during the three weeks you were at that facility you were an extremely well-behaved client and participated in all programs.
[21] Exhibit R3.
71 I have also had regard to the contents of the letter written by your three sisters and brother. They are all gainfully employed, law abiding, and well-respected people.[22] They observe that whilst you have tried to become a productive member of society, your addiction to Ice has always ‘dragged you back in’ and ‘unfortunately the people that are associated with this drug and his so-called circle of friends are his life now’. Your siblings observe: ‘David has lost his connection to everything, his family, his country and his responsibilities as a father, as an uncle, as a brother and as a son’. They continue:
The only time the family feels safe for David and sometimes ourselves is when David is incarcerated, this is because we know he is no longer running around for weeks on end under the influence of Ice.
[22] Exhibit R4.
72 While on remand, you have been very active in pursuing every course that has been made available to you. You have completed 12 educational and vocational courses, thereby building on the work that you commenced at BRADAAG. You have continued to engage in your cultural heritage and you are currently enrolled in a number of courses directed towards exploring your cultural roots and also indigenous art. I have had regard to the certificates of completion of an Aboriginal Men’s Cultural Healing Program[23] and your prisoner education summary report, together with the attached statements of results. It is clear that you have undergone a number of educational courses whilst in custody.
[23] Exhibit R5.
73 In light of your appalling prior criminal history and your addiction to Ice, despite the efforts you have made, I can only adopt a very guarded approach to your prospects of rehabilitation. Whilst you are presumably free of drugs whilst in custody, your propensity to return to your old ways upon your release from custody means that your ultimate prospects for rehabilitation are very much dependent on your ability to refrain from the abuse of illicit drugs.
74 I was told by your counsel that your involvement in the present offences occurred following the death of your mother and at a time when you were dislocated from your family and your traditional culture, which had been exacerbated by your renewed drug abuse.
75 So far as your role in the offending conduct is concerned, I accept that you played a lesser role than Wijeratne. However, you played a significant role both in the kidnapping and the false imprisonment offences. You were in effect the custodian of Ganehiarachchi from the time of the kidnapping until shortly before his release. However, I accept that you did not derive any financial benefit from committing the offences.
Mitigating circumstances
76 There is little by way of mitigating circumstances present in your case. I accept that there has been some delay in bringing these matters to trial and finality, which is no fault of yours. You have had these matters hanging over your head for some time, and I take that delay into account in your favour.
77 I also take into account your aboriginality. I have had regard to the principles laid down in DPP v Terrick[24] to the extent they apply in your case, and I have taken account of the matters set out in the judgment of Eames JA in R v Fuller-Cust.[25] In this regard, I note your counsel’s candid concession that the principles espoused by the High Court in Bugmy v The Queen[26] do not apply in sentencing you because you have not suffered the effects of ‘profound depravation’.
[24] (2009) 24 VR 457.
[25] (2002) 6 VR 496, 520–524 [78]–[92].
[26] (1990) 169 CLR 525.
78 However, your counsel submitted that your aboriginality was relevant in two ways. First, you have no family or cultural connection to Victoria and therefore you are somewhat isolated in prison, which will add to the burden of your imprisonment. I accept that this is so and I take this into account in your favour.
79 Secondly, your counsel referred me to Dr Cunningham’s observation regarding the need to factor in your cultural background in determining the best way to ultimately deal with your rehabilitation. This no doubt will be a matter for the Adult Parole Board when you are eventually released on parole. In this regard, your counsel sought a shorter than usual parole period to enable your return to the Northern Territory where your rehabilitation could better be facilitated. However, in light of the seriousness of your offending conduct, your extensive prior criminal history, and your problematic prospects of rehabilitation, I am unable to accede to this submission.
Application of sentencing principles
80 I have had regard to current sentencing practice in relation to the offences of kidnapping, false imprisonment and common law assault in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[27] It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute these offences and the myriad of personal circumstances pertaining to individual offenders.[28] Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.[29]
[27] DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 428.
[28] So far as kidnapping is concerned see eg Smith v The Queen (2014) 245 A Crim R 331, 346–347 [86] (Whelan JA, Neave JA agreeing).
[29] I have been assisted in particular by Hills v The Queen [2011] VSCA 364; Cini v The Queen [2013] VSCA 115; Hanna v The Queen [2014] VSCA 187; Smith v The Queen (2014) 245 A Crim R 331, 350 [112] (Whelan Ja, Neave JA agreeing; Young v The Queen [2015] VSCA 265 and Elmaghraby v The Queen [2016] VSCA 326.
81 So far as parity is concerned, I have had regard to the sentences imposed on your co-offender, Suncica Brajic-Bejdic, by his Honour Judge Meredith on 29 November 2018.[30] On the charge of kidnapping, she received a sentence of three years’ imprisonment. On the charge of false imprisonment, she received a sentence of two years’ imprisonment, and on a charge of knowingly deal with proceeds of crime, she received a sentence of nine months’ imprisonment. With orders for cumulation she received a total effective sentence of four years’ imprisonment and a non-parole period of two years was fixed. His Honour’s section 6AAA declaration was five years and three months’ imprisonment, with a non-parole period of three years.
[30] [2018] VCC 2021.
82 Her situation is entirely different from yours. She was aged 21 at the time of the offending and she was aged 23 at the time of sentence. She had no prior convictions or findings of guilt and no subsequent or outstanding matters. She therefore fell to be sentenced as a youthful first offender.
83 She also pleaded guilty, albeit at a relatively late stage in the proceedings. Nonetheless, his Honour gave her a significant discount for the utilitarian benefit of the plea and he found there was some degree of remorse evident in her case.
84 Importantly, she was sentenced on the basis that she was not aware that Wijeratne had a knife or that he intended to use it on Ganehiarachchi. His Honour also noted that she was not a party to the use of a weapon or, somewhat surprisingly, assaulting Ganehiarachchi. Of course, this is not the case in this hearing, where it is alleged that she assaulted Ganehiarachchi on two separate occasions, but she was sentenced on a basis which is different from the basis on which you fall to be sentenced.
85 His Honour also accepted that she played a lesser role in the kidnapping and false imprisonment to the roles played by you and Wijeratne. Apparently, her pleas were based on her complicity with you and Wijeratne, rather than on her liability as a principal in respect of the offences. The form of complicity accepted by the Crown was assisting the two of you to commit your offences. On her plea, the prosecution accepted that she had a lesser role in the offending as she was acting at the direction of Wijeratne in carrying out the plan to kidnap and falsely imprison Ganehiarachchi.
86 She was also sentenced on the basis that she was vulnerable at the time of her offending and she was socially isolated. Her husband was in custody in the Northern Territory and she had no family in Australia. His Honour also took into account the fact that her visa to remain in this country had been cancelled and the principles in relation to the effect of deportation in sentencing applied to her.
87 His Honour took the view that she had ‘positive’ prospects of rehabilitation and noted the general primacy of youth as a sentencing consideration and the need to foster Brajic-Bejdic’s rehabilitation as a youthful offender. His Honour held that her ‘comparative youth and lack of criminal history is a highly relevant sentencing consideration’.
88 Whilst there are a number of significant distinguishing features from your situation, notably Brajic-Bejdic’s youthfulness, lack of prior criminal history, vulnerability, lesser role and plea of guilty, I must be careful not to impose unfairly disparate sentences on you. Accordingly, to the extent that Brajic-Bejdic’s sentences are of assistance to me, I have had regard to them.
89 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of these offences, your culpability for them and your personal circumstances.
90 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
91 General deterrence is a very important sentencing consideration particularly for the kidnapping and false imprisonment offences. Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community need be given some real weight. Moreover, I can only adopt a guarded approach to your prospects of rehabilitation, which will depend on you remaining drug-free on your release from custody. Hopefully, you can be reunited with your father and be integrated into his tribe.
92 The totality principle is also relevant given the number of offences for which you fall to be sentenced and their overlapping nature.
93 Kidnapping is a Category 2 offence for the purposes of s 5(2H) of the Sentencing Act 1991.[31] Accordingly, on Charge 1, I must impose a sentence of imprisonment to be immediately served unless I find there are ‘substantial and compelling circumstances’ that justify not making an order under Division 2 of Part 3 of that Act (that is not a combined sentence of imprisonment with a community correction order). Despite your counsel’s somewhat bold submissions,[32] I cannot find such circumstances exist in your case.[33]
[31] See Sentencing Act 1991, s. 3(1) definition of category 2 offence paragraph (d).
[32] Further Plea Submissions, dated 8 May 2019, [2]–[17] (Ex R7).
[33] See DPP v Hudgson [2016] VSCA 254 [112]; Gul v The Queen [2017] VSCA 153; Re Ceylan [2018] VSC 361 [43]–[46] (Beach JA).
94 In any event, sentences of imprisonment to be immediately served are the only sentences for all the offences before me that I consider would appropriately achieve the purposes for which these sentences are imposed.[34] I entirely reject your counsel’s submission that a sentence of imprisonment combined with a lengthy community correction order is open to me in the proper exercise of my sentencing discretion in your case.
[34] See Sentencing Act 1991, s. 5(4).
95 Moreover, for the reasons previously stated, I am of the view that no departure from a ‘usual’ non-parole period is justified in your case.
Stand up Mr Roe:
On the charge of kidnapping (Charge 1) you are convicted and sentenced to imprisonment for 6 years.
On the charge of false imprisonment (Charge 2) you are convicted and sentenced to imprisonment for 3 years.
On the charge of common law assault (Charge 3) you are convicted and sentenced to imprisonment for 30 days.
On the charge of common law assault (Charge 6) you are convicted and sentenced to imprisonment for 30 days.
I order that 1 year of the sentence imposed on Charge 2, 14 days of the sentence imposed on Charge 3 and 14 days of the sentence imposed on Charge 6 be served cumulatively with the sentence imposed on Charge 1 and on each other, making a total effective sentence of 7 years and 28 days’ imprisonment.
I order that you serve a minimum of 5 years’ imprisonment before becoming eligible for parole.
I declare 461 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
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