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 1^st Respondent	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Leanne Warren & Assoc
For the 2^nd Respondent For the 3^rd 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.:

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.:

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.

I also agree with the dispositions proposed by him.

HARPER, A.J.A.:

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.

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSCA 215
Decision Date: 17 December 2003

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Ramos, Delos Santos, and Herasan, the High Court was tasked with assessing the appropriateness of the sentences imposed on three individuals convicted of kidnapping. The Crown appealed against the sentences, arguing that they were insufficiently punitive to serve as a deterrent against similar future crimes. The respondents contended that the original sentences were adequate and that the appeal should be dismissed.

The court was required to determine whether the original sentences, which were 9½ years' imprisonment with a minimum of 7 years for Ramos, 7 years' imprisonment with a minimum of 4 years for Delos Santos, and 3½ years' imprisonment with a minimum of 1½ years for Herasan, were appropriate in light of the need for general deterrence. The Crown argued that the sentences did not adequately reflect the severity of the crime and the need to deter similar offences in the future.

The High Court, after considering the gravity of the crimes and the importance of general deterrence, found that the original sentences were indeed insufficient. The court increased the sentences to 12 years' imprisonment with a minimum of 9 years for Ramos, 10 years' imprisonment with a minimum of 7 years for Delos Santos, and 4½ years' imprisonment with a minimum of 2 years for Herasan. The court reasoned that these increased sentences were necessary to properly reflect the seriousness of the crimes and to provide a stronger deterrent effect. The Crown's appeal was thus allowed, and the sentences were modified accordingly.

Orders