DPP v Saltmarsh
[2013] VSCA 290
•18 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0097
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DARREN WAYNE SALTMARSH | Respondent |
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| JUDGES | MAXWELL P, PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 8 October 2013 |
| DATE OF JUDGMENT | 18 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 290 |
| JUDGMENT APPEALED FROM | DPP v Saltmarsh [2013] VSC 204 (King J) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Kidnapping, attempted murder, false imprisonment, robbery, theft and extortion with threat to kill – Sentence of 9 years 6 months’ imprisonment with non-parole period of 7 years – Convicted after trial on kidnapping and attempted murder charges – Whether sentence manifestly inadequate – Whether relevant that offending characterised as ‘bizarre’ – Appeal allowed – Respondent resentenced to 12 years’ imprisonment with non-parole period of 9 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J R Champion SC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Ms C A Boston | C D Traill Lawyers |
MAXWELL P
PRIEST JA
COGHLAN JA:
Introduction
At about 9.35am on 20 October 2011, the respondent started digging a grave in the backyard of premises he was occupying in Pakenham. He stopped digging at 10.54am. Shortly afterwards, he took GA — a young woman whom he had kidnapped for ransom on 18 October 2011 — from inside the house to the gravesite. GA had a beanie over her head (which the respondent had put there to serve as a blindfold), and her hands were tied in front of her. The respondent pushed GA into the grave. She was seconds away from being murdered by the respondent when police, who had been observing these events from a concealed vantage point, entered the yard with guns drawn, rescued GA (whom they observed to be kneeling in the grave) and arrested the respondent. The respondent’s conduct was, on the hearing of this appeal, aptly described as chilling.
Following his arrest, the respondent was charged with a number of offences. Eventually, an indictment was filed in the Supreme Court containing counts of kidnapping[1] (charge 1); false imprisonment[2] (charge 2); making a threat to kill[3] (charge 3); robbery[4] (charge 4); theft[5] (charge 5); extortion with threat to kill[6] (charge 6); and attempted murder[7] (charge 7).
[1]Crimes Act 1958, s 63A. The maximum penalty is 25 years’ imprisonment.
[2]A common law offence, for which the maximum penalty is 10 years’ imprisonment: Crimes Act 1958 (Vic), s 320.
[3]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[4]Ibid s 75. The maximum penalty is 15 years’ imprisonment.
[5]Ibid s 74. The maximum penalty is 10 years’ imprisonment.
[6]Ibid s 27. The maximum penalty is 15 years’ imprisonment.
[7]An offence pursuant to common law and Crimes Act 1958 (Vic), s 321M, for which the maximum penalty is 25 years’ imprisonment: Crimes Act 1958 (Vic), s 321P.
The respondent pleaded guilty to charges 2, 4, 5 and 6, but not guilty to charges 1, 3 and 7. An acquittal was directed on charge 3 (threat to kill); and on 18 March 2013 the jury convicted him of charges 1 (kidnapping) and 7 (attempted murder).
On 3 May 2013 the trial judge sentenced the respondent to imprisonment for 5 years on the charge of kidnapping (charge 1); 3 years on the false imprisonment (charge 2); 2 years on the robbery (charge 4); 3 months on the theft (charge 5); 3 years on the extortion (charge 6); and 8 years and 6 months on the attempted murder (charge 7). One year of the sentence on charge 6 (extortion) was ordered to be served cumulatively on charge 7 (attempted murder),[8] thus producing a total effective sentence of 9 years and 6 months’ imprisonment, upon which the judge fixed a non-parole period of 7 years.[9]
[8]By virtue of s 16(1) of the Sentencing Act 1991 (Vic) all other sentences were to be served concurrently.
[9]Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), the judge declared that but for the pleas of guilty, she would have imposed the following sentences: charge 2 – 4 years’ imprisonment; charge 4 – 2 years’ imprisonment; charge 5 – 4 months’ imprisonment; and charge 6 – 4 years’ imprisonment. She would have ordered 2 years of the sentence on charge 6 to be served cumulatively with the sentence on charge 7.
Grounds of appeal
By a Notice of Appeal dated 31 May 2013, the Director of Public Prosecutions appeals against the sentence pursuant to s 287 of the Criminal Procedure Act 2009.
There are four grounds of appeal. The first and second grounds — supported by particulars — allege respectively that the individual sentences on charges 1, 2, 6 and 7, and the total effective sentence and non-parole period, are manifestly inadequate. Ground 3 alleges — again supported by particulars — that the sentencing judge erred in ‘failing to cumulate any of the sentences imposed on charges 1, 2, 4 and 5 upon each other and upon charge 7’. The fourth ground alleges that the sentencing judge erred in finding that the offending was ‘bizarre’, ‘in holding that the planning was virtually non-existent’, and ‘in holding that the respondent was never likely to succeed in obtaining ransom money’. We think that, properly characterised, grounds 3 and 4 are in reality particulars of a complaint of manifest inadequacy (and are to be treated as such).
For reasons that follow, we would allow the appeal and resentence the respondent to a total effective sentence of 12 years’ imprisonment with a non-parole period of 9 years.
The applicable principles
The principles which guide the Court when a complaint is advanced of manifest inadequacy are well understood, but we should repeat certain aspects of them.
In Dinsdale, Gleeson CJ and Hayne J observed:[10]
[10]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (emphasis added). See also DPP v Werry [2012] VSCA 208, [52]–[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion. …
Kirby J (with whom Gaudron and Gummow JJ agreed) said:[11]
The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute.[12] An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question.[13] Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen,[14] this Court remarked that:
‘a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.’
The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence.[15] … Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.[16] As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.[17]
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly.[18] In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.[19]
The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct ‘idiosyncratic views’[20] of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate.
[11]Ibid 339–40 [57]–[60] (emphasis added).
[12]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, 322 [72]; 160 ALR 588, 609.
[13]Fleming v The Queen (1998) 197 CLR 250, 258-260 [17]–[21]; cf Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297–8 (Glass JA).
[14](1999) 195 CLR 665, 671–672 [15].
[15]See eg R v Tait (1979) 24 ALR 473, 476; Allpass (1993) 72 A Crim R 561, 562; R v Clarke [1996] 2 VR 520, 522.
[16]Cf House v The King (1936) 55 CLR 499, 504-5.
[17]House v The King (1936) 55 CLR 499, 505; Cranssen v The King (1936) 55 CLR 509, 519–520; Harris v The Queen (1954) 90 CLR 652, 655.
[18]House v The King (1936) 55 CLR 499, 505.
[19]Valentini and Garvie (1980) 2 A Crim R 170, 174; Davey (1980) 2 A Crim R 254, 259–261.
[20]Cf R v Osenkowski (1982) 30 SASR 212, 213 (King CJ);cf R v P (1992) 39 FCR 276, 285.
Thus the Court cannot intervene simply because the members of the Court would have, if sentencing at first instance, imposed different sentences. In the present context, the Court may only intervene if it is ‘plainly apparent’ that the sentence is inadequate, as being ‘manifestly … too short’.
As the High Court recently repeated, sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence.[21] An appellate court’s power can only be engaged if the court is satisfied that the sentencing judge’s discretion miscarried because in the result the judge imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards.[22]
[21]Bugmy v The Queen [2013] HCA 37, [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[22]Ibid. See also Munda v WA [2013] HCA 38, [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
In our opinion, when proper regard is had to the circumstances of the respondent and of this particular set of offending, the individual sentences on each of charges 1, 2, 6 and 7 are manifestly too short, as are the total effective sentence and non-parole period. They are so inadequate as to demonstrate error in point of principle.
The factual background
The respondent had no prior and no subsequent convictions. At the time of the offending he was aged 35 years, and resided with his mother and sister in the family home, which was located in a south eastern suburb of Melbourne.
GA was a young female student residing in Australia on a student visa. She wanted to qualify for permanent residency. Her sister, GR, resided overseas.
In 2010 the respondent married a woman, Roxanne, whom he met on an internet dating site and who resided in the Philippines. The respondent, having married her in the Philippines, sought to bring Roxanne to Australia on a spousal visa, but the application was refused.
GA and the respondent met on an internet dating site in 2011. They exchanged telephone numbers. The respondent telephoned GA often, and after a short time they met in late September or early October. Over coffee, GA said that she hoped that her course would help her to obtain permanent residency. The respondent asked GA about her background and the income of family members. He told GA of a friend of his who, for a fee, had been involved in bogus marriages with women from overseas so as to enable them to be granted permanent residency. GA told the respondent that she would not be interested in such an arrangement. After the first meeting, at the instigation of the respondent, the two continued in contact via telephone calls or text messages. The issue of arranged marriage was raised from time to time, but GA maintained that she was not interested.
It seems that from 17 October 2011 the respondent had formed a plan, described by the sentencing judge as ‘quite bizarre’, to kidnap GA and hold her for ransom. The judge described the plan as bizarre, ‘because [the respondent’s] planning was virtually non-existent and [the respondent was] never likely to succeed in obtaining money in this manner’. (As we earlier observed, these findings are the subject of the fourth ground of appeal.)
At that time, the respondent’s father had gone overseas on a holiday, and the respondent had arranged to stay in his father’s house in Pakenham, telling his family that he would thus be closer to the part-time nightshift work he was locally engaged in.
On Tuesday 18 October the respondent telephoned GA while she was at work. He told her a false story about a friend of his who worked for the Immigration Department and was about to visit her country. The friend, he told her, could help GA with her application for permanent residence. Despite some reluctance, GA agreed to meet the respondent. GA was seen on CCTV footage waiting on the corner of Flinders and Swanston Streets, Melbourne, when the respondent arrived in his Chrysler sedan shortly after 6.47pm. The respondent told GA that they would go and see his friend and he would then drive her home. GA got into the respondent’s car and he drove to his father’s residence in Pakenham. During the trip GA was concerned about the distance and the time the trip was taking, but the respondent explained that away. He again asked GA about the prospect of a sham marriage, but GA indicated she was not interested and that her father would never permit such a thing. The respondent asked further questions again about GA’s family background. These circumstances found the kidnapping (charge 1), upon which the jury found the respondent guilty. The jury’s verdict must mean that at the time the respondent picked GA up in his car at 6.47pm, he had by that time determined that he was going to hold GA for ransom.
Upon arriving at his father’s residence, the respondent drove straight into the garage and closed the door. He went into the house with GA through a door in the garage. As soon as they were inside, the respondent grabbed GA around the neck, held a knife to her throat, told her that she had been kidnapped and that he needed $20,000 from her. He tied GA’s hands behind her back and bound her legs with sticky tape. The respondent then searched GA’s handbag, finding her ATM card and credit cards. He forced her to tell him her PIN number and her Net Banking access details. The respondent then picked GA up bodily and carried her into the study so that he could use the computer. Using the computer he transferred three amounts of money from GA’s savings and credit card accounts to her ATM card, giving that account a balance of $812.33. Apart from a time when GA was driven around in the boot of the respondent’s car, GA for the most part remained on a couch in the study until the respondent led her from the house to the grave. The false imprisonment (charge 2), to which the respondent pleaded guilty, is constituted by holding GA in the house until she was rescued by the police; and the robbery (charge 4), to which he also pleaded guilty, is constituted by the removal of her credit, ATM and key cards.
On the night that he kidnapped GA, the respondent told her that he owed money for gambling and that he would be killed if he did not pay. He told her that if he died so would she. The respondent threatened to throw GA in the river or bury her. He told her that if she yelled out she would be hurt.
During the time that he held her imprisoned, the respondent made several calls to GA’s family in her country of origin. The first of those calls occurred shortly after 8.00pm, soon after they had arrived at Pakenham. The respondent made GA use her own mobile telephone to call her mother overseas and ask her to have her sister deposit $2,000 into GA’s bank account. Her mother was very busy and told her she should call her sister directly. She did so, but used the respondent’s telephone. (By this time, the respondent had taken his captive’s telephone from her. The telephone was never found again. It was not in the premises when they were searched after GA was rescued and it was not amongst her property which was also searched by the police.) At 8.28pm GA telephoned her sister GR overseas and asked her to deposit $2,000 into her account. She said that she would tell her the reasons later, and gave her the necessary bank details to enable the transfer to occur.
The theft (charge 5), to which the respondent pleaded guilty, occurred on 18 October 2011. It involved the sum of $800, and in its commission the respondent was acting together with his mother, Pamela Saltmarsh. The respondent called his mother and she came to the house at Pakenham shortly afterwards. She did not come inside. The respondent went outside through the garage door to meet up with her, and gave her the stolen ATM card together with the PIN number. His mother went to the Narre Warren newsagency ATM and withdrew the sum of $800 which the respondent had transferred to that ATM card’s account. She placed $400 of that money into the respondent’s bank account, which was an account that his wife could access in the Philippines, to assist her with general living and with some problems that she was encountering. The respondent’s mother kept the other $400. She called him and told him, ‘It worked out’.
Subsequently GA made another call to her sister overseas asking that the money be sent as soon as possible. Her sister, GR, took steps to have the money transferred, but it became apparent that it was difficult to send money from her country to Australia. This last call made by GA was on 19 October 2011. The respondent, being upset with the lack of progress on the transfer of funds, determined that he would speak to GA’s sister himself. At 1.43pm on 19 October 2011 he called GR and demanded $20,000 from her in exchange for GA’s life. She agreed to pay, but asked for time.
The respondent made several calls that day. One occurred whilst GR was with her local police making a complaint about the respondent’s extortion demands. GA had also called a friend in Australia, who had already received some contact from GA’s family members overseas. She told her friend that she needed $1,000 straight away and that then she would be able to ‘come out of there’. GA’s friend became concerned and he went to the police in Melbourne to report what had occurred.
On 19 October at 7.42pm the respondent again telephoned GR. He put GA on the telephone first. He then took the phone from her and again made demands for money with threats relating to GA’s life. The conversations that the respondent had with GR are the basis of the charge of extortion (charge 6), to which the respondent pleaded guilty.
The respondent kept checking the internet to see whether money had been transferred into GA’s account. Later that night the respondent untied GA’s legs, walked her with her hands tied in front of her (he having untied them from behind her back and retied them in front of her), and placed her in the boot of his car. He then drove to an ATM in Keysborough. GA, while in the boot of the car, vomited repeatedly. The respondent had told her when he put her in the boot that, if there was money in the account, he would drop her at a train station and she could go home.
After the respondent checked the account and there was no money in it from GA’s friend, the respondent returned with GA in the boot of his car to the Pakenham premises, and the respondent placed GA on the couch in the study. The respondent again tied her legs. He asked GA to call her friend again. She did so and spoke to him initially in their language. That made the respondent angry and he made GA speak in English. The respondent continued to monitor GA’s accounts on the internet. She remained on the couch where she vomited a number of times into a bucket which was by the couch. GA awoke on the couch on Thursday 20 October 2011 to the respondent’s complaining that there was no money paid into her accounts.
What the respondent did next was described by the sentencing judge as ‘extraordinary’. The respondent began to dig the grave. He commenced at 9.35am, but stopped about 10.03am, when he went inside and returned wearing gum boots, gloves and a beanie, and continued digging. At 10.17am, the respondent laid down next to the grave measuring its length. He then went back into the garage, and then returned again and dug some more. The respondent then got into the hole and lay face down, and performed push-ups to measure the hole’s depth.
Once he had completed the grave, the respondent went back to the study and untied GA’s legs. He left her hands bound. She expressed fear that she was going to be placed in the boot again, but the respondent told her that he was just going to give her some air. He put a beanie over her face as a blindfold led her out to the backyard. GA asked the respondent what he was doing as he led her towards the grave. He then pushed or placed his victim into the grave.
While these events were unfolding, members of the Victoria Police surveillance team were in the backyard of the premises behind the respondent’s house. All of the activity in the rear of the premises was recorded. The jury viewed it. Unsurprisingly, the police became very concerned as the respondent brought GA into the rear yard and placed her in the grave. They ran to the rear of the fence. One officer stood on the back of another officer to look over the fence and point his gun and yell at the respondent. When police climbed the fence they observed GA on her knees in the grave with her hands bound in front of her. The respondent was standing on the mound of dirt that he had dug. In his right hand, with the blade resting on the ground, was the shovel. Police called, out ‘police don’t move’, whilst pointing their guns at the respondent. He was made to drop the shovel and lie on the ground. Police searched the respondent. During the search he looked over at GA and said, ‘She owes me money’ (this, of course, being untrue). GA was helped from the grave and was taken to hospital.
In his interview with the police the respondent told them that GA had been a willing participant in his actions. He told them that she had instigated the contact and that back at the house they had sat and discussed ways to get money. The respondent said that the kidnapping was a pretence, that GA knew what was happening and was in agreement with it, and it was all to get money from her family. The respondent told the police that GA had voluntarily ridden in the boot of the car when the respondent went to check her bank account. With respect to the attempted murder charge, the respondent said that he and GA had been racking their brains to come up with a way to make the kidnapping look legitimate, and the respondent came up with the idea of taking a picture of GA demonstrating that she had been kidnapped. He told police that he had dug the grave with the intention of placing GA in it and taking a photograph. The respondent said that he was going to get a camera after he had put her in the grave. A thorough police search was, however, unable to locate any camera in the premises.
The respondent’s defence at trial was that GA was a willing participant and had been discussing a sham marriage with the respondent until a very short time after they arrived back at your premises in Pakenham. That was the defence to the kidnapping. As to the attempted murder it was argued that at no point was the respondent going to do anything other than take a photograph of GA in the grave. By its verdicts, the jury must be taken to have rejected both of those lines of defence.
There were two victim impact statements, one from GA and another from her sister. As the sentencing judge said, ‘[b]oth are very restrained documents, in keeping with the nature of the evidence and the manner in which both of these women gave their evidence’. The judge observed that there is no doubt that it must have been terrifying for GA to be placed in the grave believing that she was to be killed, only to have police officers jump the fence with guns drawn. GA’s sister had pressure placed upon her that if she was unable to come up with the money then her sister would die. The sentencing judge observed of GA that ‘[s]he is a very strong and brave young woman to go through this ordeal, to stand up in court and give her evidence and still be restrained and dignified in her victim impact statement’. The judge went on to ‘commend her and her entire family for the way they have dealt with this entire ordeal’, and said that she would ‘take into account her comments and the comments of her sister as to the impact this has had upon them’.
The sentences on charges 1, 2, 6 and 7 are manifestly inadequate
Kidnapping for ransom, which was the subject of the first charge, thankfully is not a prevalent offence. Nonetheless, the seriousness with which it is viewed may be judged by its maximum penalty, 25 years’ imprisonment.
Despite having pleaded not guilty, and thus failing to attract the amelioration of sentence that would have resulted from a guilty plea, the respondent was sentenced to a mere five years’ imprisonment on this charge. In the circumstances, this sentence is manifestly inadequate.
Acknowledging the truism that the sentence imposed in any case must depend on its own facts, in recent years sentences on individual counts of kidnapping have attracted sentences greater than the sentence of five years imposed in this case. Thus, in Director of Public Prosecutions v Ramos[23] two offenders who had pleaded guilty had their sentences on charges of kidnapping increased following a Crown appeal to nine and a half and eight and a half years’ imprisonment respectively; in R v Vodopic[24] a female offender failed in a bid to have a sentence of 10 years’ imprisonment following a guilty plea set aside as being manifestly excessive; in Hills v The Queen[25] an individual sentence of six years’ imprisonment imposed on a female offender following a contested trial was unsuccessfully challenged on appeal; and in Buchwald v The Queen[26] a sentence of seven and a half years’ imprisonment following conviction at trial was not interfered with on an appeal by the offender. Recognising, as we do, that the sentences passed in other cases cannot be extrapolated too far, in our opinion the sentences passed in the four cases we have set out lend support for the view that the sentence for kidnapping passed in this case is so inadequate as to show error in point of principle.
[23][2003] VSCA 215.
[24][2003] VSCA 172.
[25][2011] VSCA 364.
[26][2011] VSCA 445.
It seems likely, as the Director submitted, that the sentence on the charge of kidnapping reflected the sentencing judge’s finding that the respondent ‘had formed some quite bizarre plan to kidnap and hold [GA] to ransom’, the plan being ‘bizarre’ because the respondent’s ‘planning was virtually non-existent and [he was] never likely to succeed in obtaining money in this manner’. To say that the plan to kidnap the unfortunate victim was bizarre is to say no more than it was odd or strange. With respect, however, the fact that the offending is odd or strange does not reduce its objective gravity. Moreover, the circumstances show that, although the plan to kidnap GA might have been attended by aspects which made it unlikely to succeed, nevertheless a degree of planning was involved. By the time he picked GA up on 18 October 2011, the respondent had formed a scheme to hold GA against her will in order to obtain money from her family. He had occupied his father’s premises with a view to carrying his scheme in to action. The fact that the plan might not have been likely to succeed seems to us to be of no relevance.
We are also of the view that the sentence of three years’ imprisonment on charge 2, false imprisonment, is, despite the plea of guilty, manifestly inadequate. It was a serious example of the offence. GA was held captive for three days, during which period she was bound and subjected to gratuitous threats of violence. She was frightened for her safety. At one point — presumably so that she could not escape — she was bundled into the boot of the respondent’s car while he drove to an automatic teller machine. The experience made her ill. Although it is always possible to imagine worse cases, this was a bad example of the offence which resulted in a prolonged period during which the victim was held frightened against her will. In our opinion, the sentence of three years’ imprisonment on this charge does not reflect the seriousness of the offending. The sentence passed is manifestly too short.
The same should be said, in our opinion, of the sentence on the charge of extortion, charge 6. Three years’ imprisonment represents one fifth of the statutory maximum. Although, as the sentencing judge observed, the respondent might not have been a ‘criminal mastermind’, he nevertheless demonstrated a degree of persistence and determination in his attempt to extort money from GA’s sister. This was a serious example of the offence of extortion. Despite the respondent’s plea of guilty, its seriousness was not, in our view, sufficiently reflected in the sentence passed. The sentence on the charge of extortion is manifestly inadequate.
Attempted murder is a crime that can be committed in an almost infinite variety of ways. Often, but not always, it will involve the infliction of serious injury. In this case, the sentencing judge said that ‘despite the amateurish quality of all of this, [the respondent was], according to the verdict of the jury, only seconds away from killing [GA]’. As we have said, it is apt to describe the circumstances of the offence as chilling. Whatever other epithets might be used to describe the overall offending (‘bizarre’, ‘amateurish’, ‘not a well thought out offence’ and ‘never likely to succeed’) and the respondent (incompetent and ‘not a criminal mastermind’), the unassailable fact is that the respondent had dug a grave for his victim. He had taken time to measure its dimensions. His apparent resolve to kill GA had not diminished while he did so. He was seconds from killing her in cold blood. Thus this was not, for example, as are so many cases of attempted murder, a crime borne of a spontaneous impulse to kill brought on by perceived provocation.
There was some discussion on the appeal of the respondent’s motive. The Director claimed that the respondent’s motive was to kill and bury GA to conceal his earlier crimes. Counsel for the respondent complained that to raise this as a motive was to put a new case. It seems, however, that the trial judge had dealt with the question of motive in just these terms when charging the jury.[27] In any case, to our mind it does not much matter whether the respondent’s ultimate motive was to conceal his other crimes. It cannot be gainsaid that this was a case where the respondent coldly and calculatedly had determined that he was going to dispose of his innocent victim, she having done nothing to bring about that fate other than to befriend the respondent. One must be careful to avoid an emotional response to a crime such as this, but the attempted murder in this case was a despicable crime, unmitigated by any skerrick of remorse. The sentence of eight and a half years’ imprisonment on this charge is not a reflection of the offence’s truly shocking nature. It is, in our opinion, manifestly inadequate.
[27]A memorandum provided by the appellant following oral argument demonstrated that this was so.
The total effective sentence and non-parole period are manifestly inadequate
We are also of the opinion that the total effective sentence and non-parole period are manifestly inadequate.[28] The source of the inadequacy probably dwells in the inadequate sentences passed on several of the charges, coupled with the failure to order sufficient cumulation on the sentences between charges.
[28]We should acknowledge that there are differing views as to the correct approach to the imposition of individual sentences where the appellate court comes to the view that the total effective sentence and non-parole period are manifestly inadequate. In our view, however, the better approach is for the sentencing judge to pass proportionate individual sentences, and to make appropriate orders so as to effect total or partial cumulation or concurrency. A court should, in our opinion, avoid imposing individual sentences which are artificially inadequate in order to accommodate totality: see R v Lomax [1998] 1 VR 551; DPP v Grabovac [1998] 1 VR 664.
To understand why we have concluded that the sentences are manifestly inadequate, it is necessary to refer to various matters that the sentencing judge took into account. Thus she noted that the respondent was 35 years of age at the time he committed the offences, and 37 years of age when sentenced. He had no prior or subsequent offences. The respondent had left high school part way through year 11 because he could not cope academically. Since leaving school he had worked in unskilled warehouse employment. Caring for his wife — with whom he has ‘a strong on going relationship’ — and providing money to her in the Philippines appeared to be the motivation behind the respondent’s ‘apparent desperate need to obtain money’. Character references described the respondent as ‘a hard worker and a generous friend’, and as ‘a kind and respectful man’ to whom violence ‘seemed entirely foreign’. A clinical psychologist found traits consistent with pathological gambling, and assessed the respondent ‘as having an IQ within a low average range’. The psychologist also found that the respondent exhibited no anti-social or psychopathic traits and said that, apart from the present offences, ‘there appeared to be no examples of [him] exploiting others or engaging in the self-interested violation of others’ rights in the past’. During his time in gaol, the judge noted, the respondent had taken courses in English and mathematics, and had taken care of a long term prisoner with serious mental health issues.
The sentencing judge also observed that the respondent ‘had not thought this through’, was ‘not a criminal mastermind’ and did not ‘really think like a criminal or think through, or think about consequences’.
Prospects of rehabilitation were, so the judge found, ‘reasonable’. The judge acknowledged that ‘these remain very serious offences’. She took into account ‘many factors’ when determining sentence, including the respondent’s limited pleas of guilty, and remorse, ‘limited though it is by [his] plea of not guilty to certain of the offences’. The judge also took account of the ‘lack of prior criminal history’ and prospects of rehabilitation (including family and community support), ‘whilst also taking into account the seriousness of the offending, the need for general and specific deterrence, denunciation, just punishment and the impact of these crimes upon the victim’.
Balancing all of these factors, and paying due regard to the seriousness of the respondent’s offending, in our opinion it simply was not open to the judge to pass the total effective sentence and the non-parole that she did. In our view, the sentence passed significantly undervalued the seriousness of the overall offending, whilst giving too much weight to the limited circumstances going in mitigation. The resulting sentence is so inadequate, in that it is so far outside the range of those open in the proper exercise of the sentencing discretion, as to demonstrate error in point of principle. We would, as we have said, allow the appeal accordingly, and resentence the respondent in the manner hereafter set out.
The respondent’s submissions
Put at the forefront of the respondent’s arguments was the submission that the appeal should be dismissed in the exercise of the Court’s residual discretion.[29] It was contended by counsel for the respondent that an exercise of the residual discretion to dismiss the appeal was principally warranted by two factors.
[29]DPP v Karazisis (2010) 31 VR 634, 657–8 [100]–[104]; Green v The Queen (2011) 244 CLR 462, 479–80 [43]; DPP v Werry [2012] VSCA 208, [60]; Bugmy v The Queen [2013] HCA 37, [24], [48]; Munda v WA [2013] HCA 38, [72].
First, counsel made reference to delay. It seems to us, however, that there was nothing so unusual or inordinate in the delay in this case that a favourable exercise of the residual discretion to dismiss the appeal would be attracted. Indeed, any delay in finalising the case seems to us to be unremarkable. The respondent was arrested in October 2011 and was tried in March 2013. He was sentenced on 3 May 2013, and a Notice of Appeal was filed on 31 May 2013. The appeal was heard on 8 October 2013. Undoubtedly, the matter would have been finalised much earlier if the respondent had not chosen (as was his right) to contest the charges upon which he was found guilty, but the length of time that it took to take the matter from initial charges to verdicts was, in context, not significant.
Secondly, and possibly overlapping the first branch of the respondent’s submission on the exercise of residual discretion, it was said that the respondent had already been imprisoned for two years. The respondent, it was submitted, ‘has made significant progress in his rehabilitation in the two years he has already spent in prison’. This is not a factor, however, that bears on the exercise of the residual discretion. The cases indicate that service of a sentence prior to a Crown appeal being heard — so that a person who did not receive a gaol sentence will be incarcerated, or a person who has been released from prison will be returned to it — might, depending on all the circumstances, be a factor enlivening the favourable exercise of discretion.[30] That is not this case. Hence the only way in which the respondent’s progress towards rehabilitation in the two years since his arrest might be taken into account is in the synthesis of all relevant factors upon re-sentence. We have taken it into account in that fashion in determining the sentence to be passed.
[30]R v Smallacombe (Unreported, Court of Criminal Appeal, 28 October 1993); DPP v Wilson (2000) 1 VR 481, 488 [18]; DPP v Higgs (2010) 28 VR 101, 109–10 [37].
Although, as we have observed, the respondent put the exercise of the residual discretion to the fore, he also relied upon the various factors identified by the trial judge as going in mitigation, including his age, good character, diligent work record and low risk of re-offending. The respondent’s counsel ultimately contended that the sentence passed — in all its component parts and overall — was within range. As we have already made plain, we do not agree.
Conclusion
We have concluded that the individual sentences on charges 1, 2, 6 and 7 are manifestly inadequate. The sentences on those charges should be set aside, and we would impose the following sentences:
·charge 1, kidnapping, 6 years and 6 months’ imprisonment;
·charge 2, false imprisonment, 4 years and 6 months’ imprisonment;
·charge 6, extortion with threat to kill, 4 years and 6 months’ imprisonment; and
·charge 7, attempted murder, 10 years’ imprisonment.
Having arrived at proportionate individual sentences on each count, it is necessary to make such allowances for cumulation and concurrency as between the individual sentences as are necessary to avoid imposing a crushing sentence. We consider that the circumstances of false imprisonment, and of the charges of robbery and theft committed whilst GA was falsely imprisoned, are part and parcel of the overall circumstances of the kidnapping. Complete concurrency between the sentences on those counts is justified. The extortion, charge 6, had a separate victim, GR. Moderate cumulation to give recognition of that fact is warranted. We would not regard the kidnapping or other offences, however, as being part of the attempted murder in this case (or vice-versa), so that complete concurrency is not justified.
Paying due heed to the principle of totality, we would select the sentence on charge 7, attempted murder, as the base sentence, and would order 18 months of the sentence on charge 1, kidnapping, and 6 months of the sentence on charge 6, extortion, be served cumulatively on the sentence on charge 7 and with each other. We would confirm respectively the sentences of 2 years’ imprisonment on charge 4, robbery, and 3 months’ imprisonment on charge 5, theft, and all other orders made by the sentencing judge.[31] The total effective sentence that we would impose is thus 12 years’ imprisonment. Having regard to the circumstances of the offences and of the respondent, and giving due weight to aggravating and mitigating features, in our opinion the minimum period that the respondent should be required to serve in confinement before the possibility of conditional release on parole is 9 years.
[31]Including, if necessary, the declaration pursuant to s 6AAA of the Sentencing Act 1991 that, but for the pleas of guilty, she would have imposed sentences of 2 years and 6 months imprisonment on the charge of robbery, and 4 months’ imprisonment on the charge of theft.
Performing, as best we are able, the somewhat artificial exercise required by s 6AAA of the Sentencing Act 1991, we declare that but for the pleas of guilty on charge 2, false imprisonment, and charge 6, extortion, we would have imposed a sentence of 6 years’ imprisonment on each of those charges. We would also make a declaration for pre-sentence detention of 729 days.
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