DPP v Ramos, Delos Santos & Herasan

[2003] VSCA 215

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 126 of 2003
No. 127 of 2003
No. 128 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

v.

ABELARDO RAMOS

REGINALD DELOS SANTOS

BELAL HERASAN

First Respondent

Second Respondent

Third Respondent

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JUDGES:	BUCHANAN and VINCENT, JJ.A., and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2003
DATE OF JUDGMENT:	17 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 215

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Criminal Law – Sentence – Crown appeal – Kidnapping – Need for general deterrence – Sentences increased from 9½ years' imprisonment with a minimum of 7 years to 12 years' imprisonment with a minimum of 9 years;  7 years' imprisonment with a minimum of 4 years to 10 years' imprisonment with a minimum of 7 years;  and 3½ years' imprisonment with a minimum of 1½ years to 4½ years' imprisonment with a minimum of 2 years.

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(i)

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Coghlan, Q.C., D.P.P. with Ms K. Judd	K. Robertson, Solicitor for Public Prosecutions
For the 1st Respondent	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Leanne Warren & Assoc
For the 2nd Respondent For the 3rd Respondent	Mr D.J. Ross, Q.C. with Mr D.A. Dann Mr P.F. Tehan, Q.C. With Mr D. Glynn	Maitland- Smith & Assoc Hale & Wakeling

(ii)

BUCHANAN, J.A.:

1. I agree with Harper, A.J.A. that these appeals should be allowed and the respondents re-sentenced as  his Honour proposes.

VINCENT, J.A.:

1. I agree that, as Harper, A.J.A. has pointed out, the sentences imposed in the case of each of the respondents failed to reflect the degree of seriousness of the conduct involved and were inadequate to the extent that the intervention of this Court is required.

1. I also agree with the dispositions proposed by him.

HARPER, A.J.A.:

1. At about 7.00 a.m. on Sunday 14 July 2002, three young men arrived outside a suburban home in June Street, Highett.  The occupiers were Mr Ali Hnaien, his wife (Ms Deborah Bick) and their daughter Samara.  Staying with them overnight was the son (Angus Bick) of Ms Bick’s twin brother.  Samara was then a few weeks short of her fifth birthday.  Angus was a mere 18 months old.

1. Some 10 or 15 minutes after their arrival, the three young men observed Mr Hnaien departing for work.  In the justified belief that no other adult male remained inside, two of them pulled balaclavas over their heads.  They then entered the house, equipped with a pair of handcuffs and a supply of electrical tape.  Each was also armed with a kitchen knife.  One wore gloves.  Having entered, they terrorized not only Ms Bick but also Samara and Angus.  But worse was to come.  The intruders, together with their companion who had remained in their car, then kidnapped the young girl.  Later that day, one of them twice telephoned Mr Hnaien.  The kidnappers informed him, both by a recorded message (which he received the next day) and directly during a telephone conversation, that unless he paid them a

ransom of $110,000, his daughter would be murdered by being sliced into pieces.

1. Fortunately, kidnapping of this kind is rare in Victoria.  Indeed, the prosecutor informed the learned sentencing judge that the database maintained by the appellant does not contain a single instance of any other case in which "there is a planned invasion of a home to kidnap a young child and followed by a ransom demand."  It is as well that this is so.  No civilised society can tolerate the criminality in which the respondents engaged that day.  Consistently with their duty to administer justice according to law, the courts must play their part in ensuring - so far as they can - that it never re-occurs.

1. For their part, the kidnappers are entitled to an acknowledgment that they released the infant girl, physically unharmed, about 15 hours after forcibly removing her from her home.  They demanded, but failed to receive, a ransom.  At their committal hearing on 12 December 2002, each pleaded guilty to each of the charges for which, as a result of their crimes, they were later sentenced.  This too must be taken into account in their favour.  So must their youth.  The learned sentencing judge did so.  Indeed, the Director of Public Prosecutions submits that his Honour was unduly lenient.  He submits in addition that, as a result, the sentence imposed on each offender on each count is manifestly inadequate;  as, in each case, is the total effective sentence and the non-parole period.  The Director has appealed to this Court accordingly.  In order properly to consider each appeal, the facts, and the submissions of all the parties, must be examined more fully.

1. Abelardo Ramos (to whom, when he is not identified by name, I shall refer as "the first respondent") was born on 11 August 1980.  At the time of these offences he was, therefore, 21 years and 11 months old.  He is the only one of the three respondents who has any previous history of offending;  and even then, no conviction was recorded.  Belal Herasan (to whom I shall likewise refer as "the second respondent") was born on 10 March 1983.  It follows that on 14 July 2002, he was 19 years and four months old.  The third respondent, Reginald Delos Santos, is a cousin of the first respondent.  He was born on 8 October 1976.  His age at the date of the kidnapping was, accordingly, 25 years and nine months.

1. Ali Hnaien, the father of the kidnapped child, had about a year before the kidnapping succeeded the second respondent as the food and beverage manager of the Victoria Hotel in Little Collins Street, Melbourne.  He had also, as that manager, dismissed the first respondent not only from his position as a junior chef, but also from his employment, at the Hotel itself.  Each of Ramos and Herasan therefore had a motive for seeking revenge, although the second respondent was merely demoted, not sacked.  The learned sentencing judge nevertheless held that revenge was a factor in the decision to kidnap Mr Hnaien’s daughter.  Despite some evidence to the contrary, especially in the first respondent’s record of interview with the police, his Honour had ample reason to so conclude.

1. It is, it seems to me, appropriate to examine the material on this point, because the relationship between the respondents and Mr Hnaien may explain in part the ferocity which accompanied the formers’ raid on the latter’s home.  Any such examination must begin with Ramos’ record of interview with the police.  In this, he sought to distance himself from the notion that he acted out of spite.  Indeed, he initially maintained that he was not dismissed from his position in the kitchen of the Victoria Hotel;  rather (he claimed) he left of his own accord "because it was too much pressure".  Nor was any attempt made by the first respondent during the course of that interview to link Mr Hnaien with the former’s loss of employment.  On the contrary, Ramos answered "No" when asked by the police whether he "had any problems with Ali at all";  and he went on shortly thereafter to described Mr Hnaien as "just the boss of the front of the house, doesn't have nothing to do with me really".  At another point in the record of interview, Ramos told the police that "we [that is, the first and second respondents] kidnapped [the infant girl] because we were both in debt and … needed money."  When it was put to him by the police that "you were actually dismissed from your job" by Mr Hnaien the first respondent replied:

"No, that's false because it wasn't Ali that dismissed me.  Well … it was a chef, Michael, he called me in the morning …  He said 'look, you been dismissed'."

1. There is much to suggest that what the first respondent here describes as false is in fact true.  According to the "Summary of Evidence" prepared by the Solicitor for Public Prosecutions for the purposes of this appeal, Mr Hnaien "recorded that he had fired Adel (Ramos) a chef with no qualifications who was a disaster".  To the extent that this indicates a motive for revenge, it received at least partial support from the second respondent.  During the course of his record of interview, Herasan told the police that he "heard" that Mr Hnaien had "sacked [Ramos] for no reason" and that the former "used to always pick on him".  He went on to speak of his own relationship with Samara’s father.  He answered "That's right" to the question "So when Ali [Hnaien] came [as food and beverage supervisor to the Victoria Hotel] you got demoted?"  And when he was asked how the kidnapping came about, he replied "Just going to teach Ali a lesson …  That's what I said."  The second respondent then described Mr Hnaien as "one of the most arrogant people" and as "cruel to everyone".  He continued:

"No, there's not a person there who'll say Ali's a good person."

1. Other evidence is even more indicative of the first and second respondents' antipathy towards Mr Hnaien.  They jointly decided that they would threaten Mr Hnaien, although the particular form these threats might take was not discussed.  It was then the first respondent who during the period of Samara’s captivity spoke or attempted to speak twice on 14 July to Mr Hnaien about his daughter.  The language used by Ramos on each occasion is in my opinion significant.  These are the words of a man consumed by his desire to maximise the suffering of the father.  At 7.49 a.m., a message was left on Mr Hnaien’s message-bank service.  Ramos was the caller.  He said:

"I have your daughter.  We will hurt her if you don't do what we say.  Now we're gonna call you later, around one, one o'clock later today.  And we'll give you orders.  You make one fucked phone call to the cops, your daughter's dead.  You make one move, calling your friends or anyone, we will kill your daughter.  And I can fuckin' guarantee it, 'cos you owe us big time, mate.  And I will fuck you off for life for what you fuckin' did to us.  You'll fuckin' pay.  Our orders will be made later on."

1. The second call was taken by Mr Hnaien at the time that it was made.  The conversation was recorded.  As transcribed, it reads as follows:

"Hnaien:        Hello.

Ramos:       Hello, Mister Hnaien.

Hnaien:       Hello?

Ramos:       Mister Hnaien?

Hnaien:       Yeah.

Ramos:       How are you my friend?

Hnaien:       I'm good, how are you?

Ramos:       Good.  You know we have your daughter?

Hnaien:       No.  Where is my daughter?

Ramos:       (No audible reply).

Hnaien:       Pl – Please?

Ramos:       (inaudible).

Hnaien:       Ask – Ask whatever you like.

Ramos:       Uh, (inaudible) my friend.

Hnaien:       Yeah.

Ramos:You might not remember me, but you fucked up my life once.

Hnaien:       Yeah?

Ramos:Now you're gonna pay for it.  You're gonna compescate [sic] first.

Hnaien:Uh, what?

Ramos:Now you know –

Hnaien:Uh –

Ramos:You know what it feels like to lose your fuckin' daughter.  You know what it feels like.  What it – be killed.  And I swear I'll fuckin' kill her.  You understand me?

Hnaien:Yeah, yeah, but – Yeah, but you tell me what you want.  Tell me what you want.

Ramos:You understand I – how much I hate you.  I hate everything that you have.  All this life.

Hnaien:Pls – please.

Ramos:You cause so much –

Hnaien:Please.

Ramos:Trouble for me.

Hnaien:Pl – please.  N-N-No –

Ramos:I ransom notes demanded – listen to me.

Hnaien:I listen to you.

Ramos:A ransom is demanded of hundred and ten thousand dollars.

Hnaien:H – How much?

Ramos:A hundred and ten thousand dollars.

Hnaien:I'll give you a hundred and ten thousand, I – I can't afford hundred and ten thousand.

Ramos:You have that money, I know you fuckin' have that money.

Hnaien:I swear to God, I – If – If I got hundred and t-ten thousand, I will give it to you.

Ramos:I'm sorry, my friend.  That's the demands.  And if you don’t' follow them, we'll fuck (inaudible).  I'll f-

Hnaien:Yeah, but – I – I have to –

Ramos:I will give you enough time.  I will call you again.  I will –

Hnaien:I –

Ramos:Fuck up your daughter and I will slice her into pieces if you don't fuckin' follow my demands.

Hnaien:I’ll follow your demands –

Ramos:I tell you.  Do you understand what I'm saying?

Ramos:I will call you again.

Hnaien:I'll follow your demands.  I –" [End of conversation].

1. Whatever the motives of the kidnappers, neither Ramos nor Herasan is prepared to accept sole responsibility for the original idea.  According to Ramos, Herasan was the instigator.  When the police put to the second respondent that this was the case, however, he replied that the two came up with it together.  He then answered "I can’t remember" to the question "Who first thought of it?"

1. At all events, both men joined in what was in some respects an extraordinarily inept attempt to execute a major crime.  That it succeeded to the extent that it did is in no way attributable to their planning skills.  The truth seems to be that neither was capable of conceiving the way events would be likely to unfold.  Their preparation was, as a result, perfunctory.  Herasan acquired balaclavas and handcuffs from the Victoria Market.  Ramos provided a knife for each of them and gloves for himself.  He also contributed electrical tape.  Herasan, because he remained as an employee of the Victoria Hotel, was in a position to find out on what Sundays Mr Hnaien was rostered for duty.  It was he who to that extent selected Sunday 14 July 2002 as the date on which the kidnapping would take place.  He also made the arrangements which allowed the kidnappers to hold Samara at an address in Flemington while negotiations for payment of the ransom continued.  It was Ramos who, having received from Herasan the relevant information, borrowed a car from a friend and contacted the third respondent on the night  of Saturday 13 July.  He thus brought Delos Santos into the endeavour, although without them telling him that a kidnapping was involved.  This information was not passed on until the journey to June Street had begun.

1. That was as sophisticated as the planning ever got.  Neither Ramos nor Herasan appears to have had any comprehension of the suffering they were about to occasion to their proposed victims.  Moreover, each seems to have thought that a ransom had only to be demanded and it would shortly thereafter be paid.  The child would then be returned to her parents.  Consistently with this, there is no evidence that either respondent gave any thought either to the mechanics of the receipt of the ransom or to the fact that a kidnapping, especially one involving a mother and her very young daughter, might create intense media and public interest.  Asked what his intentions were on the morning of the kidnapping, Ramos said:

"Just take her [Samara] from the house and we just get paid after a couple of hours."

In answer to requests, put to the second respondent in his interview with the police, to tell (first) how the kidnapping "came about" and (secondly) how it was planned, Herasan replied:

"Just going to teach Ali a lesson …  The plan was to kidnap her … just … to see how he feels when he loses a child for one day …  The plan was to see if the little girl was there … Keep her for one day, just threaten Ali and give her back, that’s it."

1. The threats were made.  The day passed.  On the assumption that Herasan told the police the truth about the day’s plans, preparations for Samara’s return ought by the evening of Sunday 14 July to have been well in hand.  Perhaps they were;  probably they were not.  Certainly, a degree of unreality prevailed.  The general idea had been to leave Samara at a police station.  The 6.00 p.m. Channel 9 television news jolted the kidnappers into a sudden appreciation of their notoriety.  Herasan said in his record of interview that when he saw the news he "freaked out".  He and the first respondent were thus (according to the record of interview) "encouraged … to take her back, which we were going to do anyway".  The plan to go to, or indeed anywhere near, a police station was abandoned.  It took some time to work out where Samara should be taken instead.  At approximately 9.45 p.m., she was discovered at the Liberty Service Station at the corner of George Street and Victoria Parade, Fitzroy.  She carried a piece of cardboard with her address written on one side.  Ramos took a final opportunity to express his cruelty.  He wrote on the other side:  "We will be back!"

1. It was an evocative message.  The details as set out below are taken in part from Ms Bick’s two statements to the police, and in part from the respondents’ several records of interview.  The two balaclava-clad men entered the house in June Street after the front door had been opened by Samara.  They did not take the opportunity, thus offered, of capturing the young girl there and then but moved past Samara and into the house.  There, Ms Bick was going about the routine tasks of a Sunday morning when she was suddenly confronted by two masked intruders.  Not surprisingly, she had no idea what was happening;  but she described it as frightening in the extreme.  Clarification of the visitors’ intentions was not assisted by the fact that both were yelling.  Ramos moved behind her.  He placed his gloved hand over her mouth, and his knife at her throat.  He said "I don’t want to hurt you but if you scream I’ll kill you."  He then pushed her into a kneeling position.  She managed to free her mouth for long enough to tell Samara to take Angus into the back room.  Samara obeyed.  The second respondent placed the handcuffs on Ms Bick’s right wrist as she struggled to free herself from both her assailants.  Ramos said "I’m really serious.  If you don’t shut up, I’ll kill you."  Herasan unsuccessfully attempted to fix the handcuffs to a chair, then to the stereo cabinet.  He and Ramos then decided to resort to the back room.  They pushed and dragged her to it.  There, an anchor point for the handcuffs was found.  It was a child’s cot.  Next, the first and second respondent employed the electrical tape as a gag.  In the presence of the children as spectators, they placed several layers of tape across Ms Bick’s mouth and partially across one eye.  The children screamed.  The intruders then left the room.  They were carrying Samara as they went.  They took her to the third respondent, who was waiting in the car.  They drove away.

1. While handcuffed to the cot, Ms Bick managed with her tongue to force the tape down to her chin.  The problem of the handcuffs, and how to calm a distressed Angus, remained.  The sequence of events is not entirely clear from the statements she made to the police, but it seems that she first banged the chain of the handcuffs against some metal clips on the cot.  The force of the blows caused scarring to her wrists, but the chain remained intact.  She then resorted to her feet.  Initially, she succeeded only in cutting both of them (to the extent that much blood was lost and one foot became so severely infected that by the second week following these events she was unable to walk).  Then, as she recounts in the second of her police statements, she "actually used [her] right foot to bend the metal rod on the cot to break free".  During her struggles with Ramos in particular, who was the respondent who initially seized her and who thereafter held her until absconding with Samara, she suffered a bruised stomach, a soft tissue injury to the back, and soreness to her neck and arms.  This, together with the scarring of the wrists, remained in evidence at least until the following October, when her victim impact statement was prepared.

1. The chain of the handcuffs being broken, but with the handcuffs themselves presumably still on her wrists, Ms Bick was able to comfort Angus.  She could not comfort herself.  Samara’s fate remained unknown.  But Ms Bick had no idea where, or even if, the intruders had gone.  Investigation was hazardous.  It was quite possible that the men remained in the house.  If so, she reasoned, any attempt to escape would also be hazardous.  Indeed, it might end in her death, or that of Samara – perhaps even that of Angus – or of all three.  She had to do something, but her options were very limited.  She opened the door of the room.  She was greeted by silence.  She concluded, however, that an attempt to investigate carried even greater risk than an attempt to escape.  She described her dilemma in her second statement to the police:

"My first statement outlined my safety fears at that stage and after not hearing Samara’s voice I decided to get out the window.  I still thought they were in the main bedroom and they would kill all three of us.  That was one of the greatest pains, having to make that decision, and I was thinking am I making the right one?  I remember thinking that if we were killed then no one would know until 3.00 or 4.00, when Ali came home.  I felt that it was imperative to get out…  and notify the police."

1. In her victim impact statement, Ms Bick described her fear at this point (I refer to the effect of what she wrote) as being almost overwhelming.  But the imperative of escape remained.  The window did not offer an  easy route to safety.  It could not be fully opened.  Nor could either the glass or the restraining chain be broken – certainly not without alerting any intruders who remained in the house.  With difficulty, however, Ms Bick managed to escape from the house and with Angus on her shoulders, surmounted a fence, or perhaps two, before reaching her neighbour's house.  For some time, she attempted to attract the neighbour's attention.  Eventually, she succeeded.  The police were contacted.  When they arrived, they searched for Samara.  She had gone.

1. Samara had been taken to a house in Flemington.  This was occupied by a friend of the second respondent.  The friend is not implicated in the incident.  According to Samara’s kidnappers, the balance of the day was spent largely by playing with her, showing her videos, and by shopping for her.  In short, they maintained, they treated her as if she were their own child – which, by their own lights, they may have done.  I accept that they did not seek to harm her.

1. There is nevertheless compelling evidence that she has suffered and will suffer severely as a result of her experience on 14 July last year.  So have her parents. Ali Hnaien’s relationships with his wife and daughter have become (at least for the present) difficult, if only because Samara’s capacity for insight is necessarily limited, and because each parent experiences periods of difficulty in adjusting to the new reality which the kidnapping has imposed upon them. Ms Bick has suffered the pain of knowing that, for some time, her daughter lost faith in her capacity to protect her from harm.  Both mother and daughter are liable to experience attacks of panic when everyday events remind them of their trauma. Ms Bick then re-experiences what she says is "Indescribable, incomprehensible … pain and anguish".

1. These are evocative expressions.  A court must not allow their use to distract it from a dispassionate evaluation of the appropriate punishment of those responsible for the deeds which lie behind them.  At the same time, one’s experience of life indicates that, given the same circumstances, any loving mother of a young child would suffer as Ms Bick says she has suffered.

1. A like point should also be made at a more general level.  I have in this judgment recounted in detail the events which immediately preceded Samara’s removal from her home.  I have also said something about the aftermath.  It is a story which cannot accurately be told unless the language employed in the telling captures the dramatic reality.  Such accuracy is important, because that reality must, in my opinion, be taken into account in the sentencing process. 

1. The learned sentencing judge did so.  Nevertheless, his Honour’s account of the entry into the house and its immediate aftermath occupied only 20 lines of the transcript of his sentencing remarks.  In my opinion, this was not sufficient to discharge the courts’ duty to give appropriate recognition of the interest which victims of crime have in the administration of justice.  His Honour’s words, as recorded in the transcript, were as follows:

"When you arrived at the Highett address at about 7.00 a.m. Mr Hnaien's car was at the premises.  You waited until you were satisfied that he had left.  You, Mr Ramos, and you, Mr Herasan, knocked on the front door.  You had your balaclavas on and were equipped with your handcuffs and knives.  Samara Hnaien, the victim of the kidnapping opened the door, and you pushed past her and subsequently confronted Ms Bick, Samara's mother.  You, Mr Ramos, struck at her, forced her to the ground, held a knife to her throat and threatened to kill her if she screamed.  You, Mr Herasan, were present and witnessed all this.  Ms Bick's mouth was secured with tape.  She was then forced by both of you into a spare room, where you shackled her to a cot with the handcuffs purchased some weeks before at the Victoria Market.  Samara, who had been sitting on a bed with her cousin, the 18 month old Angus, was snatched and removed.

Ms Bick eventually freed herself, and in so doing, incurred injury.  She went to a neighbour's home and summoned the police."

1. His Honour made no further reference to the harm occasioned to Ms Bick or to the family relationships which were and are a central part of her life and the lives of her husband and daughter.  In relation to Mr Hnaien, his Honour after reading the transcript of the first telephone call said, accurately:

"Nothing could be more starkly brutal, callous and terrifying than this, and it is put on your behalf that you love children."

1. After expressing himself as satisfied that each of the first and second respondents were resentful because they felt "dudded" by Mr Hnaien, his Honour referred to the consequences for Samara.  He said:

"Your revenge was to hatch the kidnapping.  So we have a situation where a small four year old girl is, for over 12 hours, in alien circumstances, with unknown captors and an inability to understand the reasons for her dislodgment from her normal and predictable routines in a close family home.  What more terror could any human being bring upon another?  The child had become a pawn in a strategy she did not and could not understand."

1. By s.5(2)(da) and (db) of the Sentencing Act 1991, a court must in sentencing an offender have regard to the personal circumstances of any victim of the offence and any injury, loss or damage resulting directly from the offence. The significance of those circumstances, and therefore the extent to which regard must be had to them, will of course depend upon the particular facts of each case. The kidnapping of a young child in circumstances accompanied by violence, and her then being held to ransom against the threat that she would be sliced to death, has clearly occasioned exquisite anguish to her parents. It is undoubtedly because kidnapping can have this effect that Parliament has prescribed 25 years’ imprisonment as the maximum penalty for the crime.

1. Each of the respondents was arrested on 9 August 2002.  Each was then charged with one count (count 1) of aggravated burglary, one count (count 2) of common assault and one count (count 4) of kidnapping.  Ramos and Herasan were, but Delos Santos was not, charged with threatening to kill (count 3).  Aggravated burglary carries a maximum penalty of 25 years' imprisonment;  common assault of five years' imprisonment;  kidnapping of 25 years' imprisonment;  and threatening to kill of 10 years' imprisonment.

1. On 24 March 2003, each respondent appeared in the County Court at Melbourne.  Each pleaded guilty to each charge which that respondent then faced on the presentment.  Ramos admitted nine previous convictions from one court appearance on 21 March 2000, in respect of which a non-conviction disposition was imposed.  At the conclusion of the hearing, the learned sentencing judge reserved each matter for further consideration.  On 9 April 2003 each respondent was sentenced.  On the count of aggravated burglary, Ramos was convicted and sentenced to 4 years' imprisonment.  On the count of common assault, he was convicted and sentenced to 3 years' imprisonment.  On the count of kidnapping, he was convicted and sentenced to 8½ years' imprisonment.  On the count of threatening to kill, he was convicted and sentenced to 5 years' imprisonment.  Twelve months of the last sentence was made cumulative on that imposed in relation to the offence of kidnapping.  Otherwise, the sentences were ordered to be served concurrently.  The effective term of imprisonment for Ramos were therefore 9½ years.  The learned sentencing judge fixed a minimum term of 7 years before that respondent would be eligible for parole. 

1. Herasan was similarly convicted.  On the count of aggravated burglary, he was sentenced to 4 years' imprisonment;  on the count of assault, 3 years;  on the count of kidnapping, 6½ years;  and on the count of threatening to kill, 4 years.  Six months of the last sentence was ordered to be served cumulatively on the kidnapping sentence.  All other sentences were to be served concurrently.  The result was an effective term of 7 years' imprisonment.  His Honour fixed a minimum term of 4 years before Herasan would become eligible for parole.

1. Delos Santos, having been convicted on each count faced by him, was sentenced to 2½ years' imprisonment on the count of aggravated burglary;  2 years on the count of common assault;  and 3 years on the count of kidnapping.  Six months of the sentence for aggravated burglary were ordered to be served cumulatively with the sentence on the count of kidnapping.  Otherwise, the sentences were to be served concurrently.  The result was an effective term of 3½ years' imprisonment;  his Honour set a non-parole period of 1½ years.  Two hundred and forty four days was reckoned as the time which each respondent had already spent in custody.

1. The appellant has provided particulars of what he alleges to be the manifest inadequacy of the sentence imposed in respect of each count, the total effective sentence and the non-parole period.  It is there asserted by the appellant that, in imposing the individual terms of imprisonment for each count, in making the orders with respect to cumulation as between those counts and in fixing the non-parole period, the learned sentencing judge:

(a)failed adequately to reflect the gravity of the offences generally and in this case in particular;

(b)failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c)failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(d)gave too much weight to factors going to mitigation ;  and

(e)ordered an insufficient degree of cumulation as between the sentences imposed on the individual counts.

1. In his submissions to this Court, the appellant argued that the nature of the offending was extremely serious, that the sentences imposed do not reflect the maximum penalties for kidnapping and aggravated burglary (25 years in each case), that the orders for cumulation do not reflect the seriousness of the offending and the ongoing nature of the criminal activity, and that the individual sentences and the total effective sentence failed in each case to reflect the special responsibility owed to child victims and the particular need for just punishment and general deterrence.  In relation to Delos Santos, the appellant submitted that, while his criminality was less than that of the other two respondents, the sentences imposed upon him failed to reflect the fact that he participated in the kidnapping of a young girl and had no concern for the consequences.

1. It was pointed out on behalf of Ramos that the appellant alleged no specific error in the exercise of his Honour's sentencing discretion.  Accordingly, it was incumbent upon the appellant (if the appeal were to succeed) to demonstrate such inadequacy in the sentences as pointed unequivocally to an error in point of principle:  R v Clarke[1].  In other words, the appellant must show more than that the sentences are arguably inadequate.  Here (it was submitted on behalf of Ramos) such inadequacy could not be shown.  Reliance was also placed upon the rarity of the crime.  It was also to be taken into account (so the submission continued) that Ramos had "desisted" and returned Samara uninjured (and no injury was ever intended), that the whole episode was haphazard, inept and amateurish, that the respondents had pleaded guilty at the earliest opportunity, that on and following his arrest Ramos had co-operated with the authorities, and that he had demonstrated repentance and remorse.  He is, moreover, even now only 23 years of age, is married with a two (or perhaps now three) year old son, migrated from the Philippines in November 1989, has tertiary qualifications and has worked as a chef.  It was submitted that the learned sentencing judge had properly taken the seriousness of the offending into account;  this, it was said, is plain from his Honour’s description of some of the activity attendant upon the events of 14 July as "starkly brutal, callous and terrifying".  Such conclusion, it was further argued, is supported by the fact that the judge found that the kidnapping was motivated by revenge against Mr Hnaien, with financial gain being a further motivating factor.  Taking all these considerations into account, the individual sentences passed upon Ramos, as well as the total term of his imprisonment, were (so the argument continued) well within the range of those properly open;  indeed, the total effective sentence and the non-parole period are "stern".

   [1][1996] 2 VR 520

1. The submissions put on behalf of Herasan also emphasise that, on the material presently before the Court, it is plain that the learned sentencing judge had proper regard to the seriousness of the offence, the impact of the offence on the victims (and particularly on Samara) and the importance not only of both general and specific deterrence but also of denunciation.  It was pointed out that the comment "We'll be back!" on the piece of cardboard given to Samara on her release was written not by Herasan but by Ramos.  Not only this, but Herasan (like Ramos) has co-operated with the authorities, has no prior convictions, has support within Melbourne's Afghan community and is only 20 years of age.  It was also put that, as ordered by the learned sentencing judge, the degree of cumulation between sentences was appropriate - especially given that at least some of the offences in question were "so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for concurrency":  R v O'Rourke[2].  Nor (it was argued) was there any special need in this case to order cumulation to address the seriousness of the offending and the ongoing nature of the criminal activity.  The duration of the kidnapping was a factor relevant to the sentence imposed on that count;  it was not relevant to the cumulation with the other offences.  It was therefore appropriate to allow total concurrency between Count 1 (the aggravated burglary count) and Count 4 (the kidnapping count).  The first was merely a means by which the second was accomplished, although it could permissibly be dealt with as an aggravating feature of the kidnapping.  Counts 2 (the common assault count) and 3 (the threat to kill count) were so closely connected in time, place and type as to indicate the appropriateness of total concurrency.  While it was appropriate to order some cumulation between the sentences on Counts 2 and 3 with those on Counts 1 and 4, the learned sentencing judge had given appropriate effect to this.  Having regard both to the factors to be taken into account on mitigation and to the principle of totality, his Honour had not fallen into error.

   [2][1997] 1 VR 246 at 253

1. It was likewise submitted on behalf of Herasan that the non-parole term, while low in relation to the head sentence, was a proper exercise by the judge of his sentencing discretion.  Indeed, no error had been shown such as to warrant the intervention of this Court.  Moreover, it was submitted, this Court should in the exercise of its discretion decline to interfere with that of the learned sentencing judge even if this Court be of the view that the sentences imposed were manifestly inadequate.  Reliance was placed on the following passage from the judgment of Eames JA in DPP v Leach[3]:

"In my view, the fact that Director’s appeals are now quite common should not detract from the continuing application of the principle that it is only in very clear and rare cases of manifest inadequacy or error that a Director’s appeal should be allowed.  It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be a decision which redounds very much to the benefit of the community."

[3][2003] VSCA 96 at [48]

1. The submission on behalf of Delos Santos emphasised the relatively minor role which that respondent played.  He knew nothing about the plans for the kidnapping until on his way to Highett.  The night before, Ramos had told him by telephone that "something was going on";  but was no more specific than that.  As then arranged, Ramos met Delos Santos at the latter's address in Sunbury at about 5.00 a.m. on 14 July.  It was during the course of that journey that the latter first learnt not only of the relevant plans, but also that his companions were equipped with balaclavas and knives.  He had neither.  He did drive the car as the offenders left Samara's home with her, and he did at the request of the others stop to allow them to make a telephone call from a public phone.  But all his relevant decisions were reached against the background of his relationship with Mr Ramos;  and none of them involved his entry into the house or his continuation with the enterprise once Ramos had returned Delos Santos to his home.  Accordingly, his role was not only much less than those of his companions, but he was (to quote the words of the learned sentencing judge) "little more than a suborned chauffeur".

1. It was put on behalf of all the respondents that each was, while in prison, in need of special protection.  Accordingly, imprisonment would impact upon each more harshly than upon other persons.  I accept that this is so;  and any re-sentencing by this Court will reflect that fact.

1. The question of general deterrence assumes a particular significance in this case.  This is so because kidnappings of the kind presently before the Court are rare.  I have already observed that it as well that this is so.  In my opinion, the clear duty of the Court  is to make it plain that crimes of this nature are abhorrent.  They as much as almost any crime, and more than most, offend against values which civilised communities regard as sacrosanct.

1. In my opinion this is a case in which the discretion of the learned sentencing judge has miscarried and in which the intervention of this Court is required.  Even after one has taken into account everything that has been said on behalf of each respondent, the sentencing disposition relevant to each was in my opinion manifestly inadequate.  Effective terms of imprisonment well below half the maximum cannot in the case of Ramos in particular be justified.  His youth, and that of the other respondents, is indeed an important consideration.  So is the fact of their early pleas.  Ramos’ prior convictions are not such as to tell against him in the present case.  I accept, too, that this Court should not devalue the right of a sentencing judge to act mercifully where (for example) an opportunity for reformation is open.  And of course the fact that the respondents face the prospect of being sentenced for a second time is also material.

1. Other considerations must also be taken into account.  In the case of Ramos, his leading role inside the house and in the telephone booth, together with his authorship of the "We’ll be back!" card places his criminality above that of both his fellow respondents.  He and Herasan share the responsibility for giving birth to the plan and then putting it into effect.  Delos Santos is significantly less culpable.  He nevertheless participated in a heinous crime.  Despite the Crown’s submissions to the contrary, I think that the evidence supports the conclusion that he had some concern for the consequences.  He ought to have had, and did have, some conception of how serious these were.  In these circumstances, his failure to do anything to avoid or ameliorate them is inexcusable.

1. In my opinion, Ramos should be sentenced to 5 years’ imprisonment on the charge of aggravated burglary, 3½ years’ imprisonment on the count of common assault, 6 years' imprisonment on the charge of threatening to kill, and 9½ years’ imprisonment on the count of kidnapping.  Two years of the sentence for threatening to kill and six months of the sentence for common assault should be served cumulatively with the sentence on the count of kidnapping.  Otherwise, the sentences should be served concurrently.  The result is a total effective sentence of 12 years' imprisonment.  I would fix a minimum term of 9 years before Ramos is eligible for parole.

1. I would sentence Herasan to 5 years' imprisonment on the count of aggravated burglary, 3½ years' imprisonment on the count of assault, 4½ years’ imprisonment on the count of threatening to kill, and 8½ years’ imprisonment on the count of kidnapping.  One year of the sentence on the count of threatening to kill and six months of the sentence for common assault should be served cumulatively with the sentence on the count of kidnapping.  Otherwise, the sentences should be served concurrently.  The result is an effective term of 10 years' imprisonment.  I would fix a minimum term of 7 years before Herasan becomes eligible for parole.

1. In the case of Delos Santos, I would alter the sentencing disposition of the learned sentencing judge in two respects only.  First, by increasing the sentence on the count of kidnapping from 3 years' imprisonment to 4 years' imprisonment;  and secondly by ordering that six months of the sentence for common assault should be served cumulatively with the sentence on the count of kidnapping.  Otherwise, the sentences should be served concurrently.  The result is an effective term of 4½ years' imprisonment.  I would fix a non-parole period of 2 years.

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