Lansdell v The Queen
[2003] TASSC 146
•22 December 2003
[2003] TASSC 146
CITATION: Lansdell v R [2003] TASSC 146
PARTIES: LANSDELL, Peter Charles
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 27/2003
DELIVERED ON: 22 December 2003
DELIVERED AT: Hobart
HEARING DATE/S: 3 November 2003
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – Particular offences – Offences against the person – Generally – Eight counts of assault and one count of stealing – Sentence of three years six months' imprisonment – No eligibility for parole for two years three months – Whether manifestly excessive.
Aust Dig Criminal Law [1015]
REPRESENTATION:
Counsel:
Appellant: M Daly
Respondent: M A Stoddart
Solicitors:
Appellant: Fitzgerald and Browne
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 146
Number of paragraphs: 38
Serial No 146/2003
File No CCA 27/2003
PETER CHARLES LANSDELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
EVANS J
22 December 2003
Orders of the Court
Appeal upheld.
Order disqualifying the appellant from driving for a period of 18 months following his release from prison, quashed.
Sentence otherwise confirmed.
Serial No 146/2003
File No CCA 27/2003
PETER CHARLES LANSDELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
22 December 2003
I agree with the reasons for judgment of Evans J, including his Honour's conclusion that the appeal should fail, except that the order of disqualification from driving should be quashed.
File No CCA 27/2003
PETER CHARLES LANSDELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
22 December 2003
The appellant was sentenced to a term of imprisonment for 3½ years following his conviction on eight counts of assault and one of stealing. The crimes were committed during two episodes of violence occurring in January and March 2002, directed at his estranged partner.
The appellant had lived in a relationship with K for some 2½ years. The relationship was turbulent, involving arguments, discord over money and gambling, threats of violence and separations. In December 2001, K went to Queensland to spend Christmas with her daughter. On her return and following further discord, she informed the appellant that she wished to separate for at least a three month period. The appellant reacted aggressively, causing K to be afeared for her safety. On the evening of 15 January, K, having told the appellant that he was to leave her house, went to bed on her own, telling the appellant to sleep on a mattress on the lounge room floor. She was awakened some time before 7am to find the appellant sitting on her bed and watching her. After some 15 minutes, he assaulted her, without warning, by grabbing her throat and blocking her mouth with his other hand. Unable to breathe, K struggled and forced his hand from her mouth. During that initial struggle, and despite K's entreaties, the appellant repeatedly said "Who's in control now?" During the ensuing five hours, K was subjected to acts of violence, threats and a series of humiliations. Those events were summaries by the learned trial judge in his sentencing comments in the following terms:
"Soon after that, he made her sit up, took a pair of stockings, and committed the third assault by tying her hands behind her back and pushing her back onto the bed.
Subsequently he made her move to the lounge room with her hands still tied, and remain there while he read the morning paper. Thereafter he removed the stockings and assaulted her a fourth time by binding her hands and wrists together behind her back with packaging tape, pushing her down, sealing her mouth with packaging tape, and winding packaging tape around her head and shoulders. A few minutes later, with all the packaging tape still in place, he assaulted her a fifth time using a rope, by placing a noose around her neck and tying the rope to a cabinet. He did this in such a way that the noose would tighten if she tried to move away from the cabinet. He then went to the bedroom, opened her handbag, and stole from it about $230, two credit cards, and her car keys. He then left the house and drove off in her car."
He left his terrified victim, still in her nightdress, bound, gagged, and with her head in a noose, which would tighten upon her movement. Eventually K manoeuvred herself to a window and was able to attract the attention of a passer-by. Police had to break into the dwelling to rescue her.
The appellant was convicted of five acts of assault. He had pleaded to only two of those crimes, namely those of immobilising his victim.
K did not see the appellant again until 22 March, the day of the second episode. Unbeknown to her until after the second incident, the appellant had lived, for some days at least, under the floorboards of K's home. He had cut secret holes in those floorboards which enabled him to spy on his former partner. That conduct constitutes an aggravating matter, both because it colours the second episode with cold premeditation and made more intense the ongoing trauma suffered by the victim.
On 22 March, the appellant ambushed K as she was entering her motor vehicle parked near a nursing home. He put a knife to her throat and said, "scream and I'll slit your throat". There followed a series of struggles during the drive to an isolated country areas as K attempted to escape whilst the vehicle was moving. She was injured during the course of those struggles. Eventually she was able to open the door and jump from the still moving vehicle. The appellant stopped the vehicle, opened its boot, and attempted to place K inside. His conduct was seen by a passing motorist who stopped, causing the offender to abandon his victim and escape.
K was 56 years of age. She had been injured and traumatised during the two episodes. She has suffered from a post-traumatic stress disorder. She remains significantly affected.
The appellant, aged 57, has previously been to prison, although the learned sentencing judge regarded his previous convictions has having little import.
Basis of appeal
The grounds of appeal state:
"1The learned sentencing judge erred in law in that he imposed a sentence which was manifestly excessive in all the circumstances.
2The learned sentencing judge erred in failing to give any or any sufficient weight to the appellant's pleas of guilty on counts 3, 5 and 8 and making the concession in relation to count 9 that he was actually guilty of stealing.
3That the learned sentencing judge erred in finding that
Bizarrely, he had cut secret holes in the floorboards, which could have been used to spy on his former partner, or even to invade her home, had she returned to live there
and in so finding, the learned sentencing judge made an error which vitiated the exercise of his sentencing discretion.
4The learned sentencing judge erred in determining that caution required a longer non-parole period in this case.
5The learned sentencing judge failed to give the appellant any opportunity to make submissions as to why he should not be disqualified from holding or obtaining a driver's licence."
I do not accept that the sentence of imprisonment is manifestly excessive. The conduct was vicious, life-threatening and an exercise in retribution and domination. It was prolonged and the second episode, at least, required cold premeditation. The harm caused was and remains significant. The act of secreting and spying is an aggravating factor. He was not entitled to the benefit of a plea and his cross-examination in person of the complainant at trial exacerbated her trauma. Psychiatric examination of the appellant discloses no "features of a psychiatric illness such as mood or psychiatric disorder". Whilst the learned sentencing judge accepted that as of the date of sentence the appellant sincerely regretted his conduct, there was no suggestion of remorse following the first episode.
There were two prolonged episodes of violence inflicted some nine weeks apart on a helpless former partner. Each of those episodes warranted a significant sentence of imprisonment. Combined, they permitted a penalty of 3½ years' imprisonment.
The appellant was not entitled to the benefit of his three pleas of guilty. They were no more than an acceptance of the inevitable and did nothing to ameliorate the stress caused to the victim.
The appellant was acquitted of the count alleging the crime of stalking contrary to the Criminal Code, s192. The verdict reflects no more than that the jury were not satisfied beyond reasonable doubt as to all of the ingredients of the crime. That the appellant had secreted himself beneath K's home and had cut holes in the floor was clearly proven. He did not give evidence at trial. The learned sentencing judge was entitled to regard the unconvicted conduct as an aggravating factor in the determination of penalty.
I do not believe that the deprivation of licence was necessary. That sanction ought be reserved for crimes or offences which directly relate to the use of a motor vehicle, (Barwick v Taws [2003] TASSC 83). However it was within the discretion of the learned sentencing judge and I would not interfere. Nevertheless, I would join in the order relevant to this ground of appeal proposed by my brother Evans J.
File No CCA 27/2003
PETER CHARLES LANSDELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
22 December 2003
Following the conviction of the appellant on eight counts of assault and one count of stealing, he was sentenced to three years six months' imprisonment and an order was made that he not be eligible for parole until he had served two years and three months of that sentence. He was also disqualified from driving for a period of 18 months following his release from prison.
The appellant appeals against the sentence on the following grounds:
"1The learned sentencing judge erred in law in that he imposed a sentence which was manifestly excessive in all the circumstances.
2The learned sentencing judge erred in failing to give any or any sufficient weight to the appellant's pleas of guilty on counts 3, 5 and 8 and making the concession in relation to count 9 that he was actually guilty of stealing.
3That the learned sentencing judge erred in finding that
Bizarrely, he had cut secret holes in the floorboards, which could have been used to spy on his former partner, or even to invade her home, had she returned to live there
and in so finding, the learned sentencing judge made an error which vitiated the exercise of his sentencing discretion.
4The learned sentencing judge erred in determining that caution required a longer non-parole period in this case.
5The learned sentencing judge failed to give the appellant any opportunity to make submissions as to why he should not be disqualified from holding or obtaining a driver's licence."
The appellant is a man of 57 years of age. Prior to the commission of the crimes, the appellant had co-habited with the victim of his crimes for about two years.
The appellant's convictions arise from two separate series of events. The first five assaults and the crime of stealing were all committed on the morning of 16 January 2002. As to the circumstances of these crimes, the learned sentencing judge said:
"On the night of the 15th of January 2002 she (the victim) told him (the appellant) that she needed a break and that she wanted him to live elsewhere for three months. He was bitterly disappointed. She let him spend the night in the house, but not in her room. Early the next morning he entered her bedroom, uninvited, before she was fully awake and after a time, assaulted her by grabbing her around the neck with one hand and placing the other hand over her mouth (Count 1). She had trouble breathing. She managed to remove his hand from her mouth. She pleaded with him not to hurt her. She was lying on her bed. He was sitting beside her. He assaulted her a second time by grabbing her left arm, forcing it under his left leg, grabbing her right arm and holding it above her head (Count 2). She was unable to move. He asked repeatedly 'Who’s in control now?'. Soon after that he made her sit up, took a pair of stockings and committed the third assault by tying her hands behind her back and pushing her back onto the bed (Count 3). Subsequently, he made her move to the loungeroom, with her hands still tied, and remain there while he read the morning paper. Thereafter, he removed the stockings and assaulted her a fourth time by binding her hands and wrists together behind her back with packaging tape, pushing her down, sealing her mouth with packaging tape and winding packaging tape around her head and shoulders (Count 5). A few minutes later, with all the packaging tape still in place, he assaulted her a fifth time using a rope, by placing a noose around her neck and tying the rope to a cabinet (Count 8). He did this in such a way that the noose would tighten if she tried to move away from the cabinet. He then went to the bedroom, opened her handbag and stole from it about two hundred and thirty dollars, two credit cards and her car keys (Count 9). He then left the house and drove off in her car.
His victim was fifty six years old. He left her in her night-dress, bound, gagged and with her head in a noose that would tighten if she tried to move towards a window or door. Just before leaving he said words to the effect of, 'You want to pray to have a heart attack because when I get back to finish with you, you’d wish you’d had a heart attack.' She was in fear of her life. Eventually she managed to get to a window and attract the attention of a passer-by, who stopped a passing taxi and got the driver to phone the police. A police officer had to break a window to rescue her. She did not see or hear from the prisoner for the next nine weeks."
The remaining three assaults were committed on the morning of 22 March 2002. As to these crimes, the learned sentencing judge said:
"On the 22nd of March, after visiting her elderly mother in a nursing home, she (the victim) was about to get into her car to drive away when the prisoner (the appellant) suddenly appeared, took hold of her shoulder, put a knife to her throat and said, 'Scream and I’ll slit your fucking throat.' That was the first of the assaults on that day. Having deprived his victim of her liberty, he forced her at knife point to get into a car that he had hired, and drove off. As he drove away she managed to seize the knife by the blade and throw it out of a window. She tried very repeatedly to open the front passenger door, but the prisoner responded by repeatedly pushing her down under the dashboard, thereby assaulting her again. As a result, her head collided with the gear stick, at least once, resulting in a bruise near her eye. He drove to Molesworth, and was driving along a country road there when she managed to open the door and jump out of the moving car. The prisoner stopped, opened the boot, picked her up and said, 'You’re going in the boot.' That amounted to another assault. Passing motorists saw what was happening and stopped their cars. The prisoner abandoned his victim, drove off, was later found by the police and has been in custody ever since. His victim had again been in fear of her life. She had lost some of her clothing and suffered minor injuries. I have no doubt that the prisoner intended to take her somewhere and cause her either physical or emotional harm."
The learned sentencing judge made the following further comments before imposing sentence on the appellant:
"The victim of these cruel and savage assaults has been so affected by them that she’s been unable to return to live in her house, even though the prisoner has been in custody for about a year. He caused her to fear for her life on two occasions. The psychological effects of his conduct have been so bad that his victim is continuing to have counselling.
The prisoner is fifty seven years old. He has no prior convictions involving violence. He was sent to prison for crimes of dishonesty several times in the 1960’s and again in 1975. I think I should treat those old convictions as significant only in relation to the stealing charge. He pleaded guilty to three of the assault charges: those involving the tying of his victim’s hands with stockings, binding and gagging her with packaging tape and tying her to the cabinet with her head in a noose. At the start of the trial he conceded that he was also guilty of the stealing charge.
I accept that he now sincerely regrets the crimes of which he has been found guilty or pleaded guilty. Because he maintained his pleas of not guilty to the first two assault charges, and to the charges concerning the 22nd of March 2002, his three pleas of guilty and his admissions concerning the stealing charge, did little to save court time or to facilitate the administration of justice. No doubt, the prisoner was under considerable emotional stress when he committed the first series of assaults, the morning he was asked to move out of his partner’s home. But the second series of assaults was committed when he had had nine weeks to come to his senses. For some days during that intervening period he had lived under the floorboards of his victim’s house. Bizarrely, he had cut secret holes in the floorboards which could have been used to spy on his former partner, or even to invade her home had she returned to live there. However, a psychiatrist has expressed the opinion that there is no significant psychiatric illness accounting for the prisoner’s actions. The prisoner had a stable work history until 1996 when he was the victim of a serious assault, resulting in head injuries and post traumatic stress disorder. He has been a disability pensioner ever since. His crimes were out of character. He has been seeing a psychologist at the Prison, and apparently now evinces remorse and some understanding of his motivations and the unacceptability of what he did. He has made arrangements to work in the Prison’s Tailor Shop when he could have remained idle. He has been concerned about bringing embarrassment to his family.
Clearly, these crimes call for a substantial prison sentence and a much longer one than would ordinarily be imposed for multiple counts of assault. I could order that the prisoner be eligible for parole after he has served as little as half of his sentence, but I think caution requires a longer non parole period in this case. It became very clear to me during the trial that rightly or wrongly, the prisoner is still very upset about many aspects of his former partner’s conduct towards him, and I think her safety must be given a high priority."
Manifestly excessive
Whilst grounds 2 and 3 assert specific errors on the part of the learned sentencing judge, counsel for the appellant acknowledged that these errors could not be substantiated; instead, he contended that the matters covered by these grounds bore on the issue of whether the sentence was manifestly excessive.
The appellant pleaded guilty to three of the assault charges that arose from the first episode, they being: count 3, tying the victim's hands with stockings; count 5, binding and gagging her with packaging tape; and count 8, tying her to the cabinet with her head in a noose. In the course of opening his defence at the outset of the trial, the appellant also conceded his guilt on the stealing charge which arose from the first episode. In arguing that the sentence was manifestly excessive, counsel for the appellant submitted that insufficient weight had been given to the mitigatory effect of these acknowledgments of guilt. The acknowledgments were expressly referred to by the learned sentencing judge, he correctly observed that "they did little to save the court time or to facilitate the administration of justice". In my view, very little mitigatory effect should have been afforded to them. There was some independent corroborative evidence in relation to each of the charges to which the appellant acknowledged guilt. There was good reason, besides remorse, for the appellant to acknowledge his guilt. Counsel for the appellant accepted that the Crown case on these charges was strong. The acknowledgments only went a modest way towards recognising the culpability of the appellant's conduct referable to the first episode; more significantly, they did not save the victim from a harrowing and lengthy cross-examination in relation to that episode.
In support of the manifestly excessive ground, counsel for the appellant in substance submitted that the learned sentencing judge had given too much weight to his finding that, bizarrely, the appellant had cut secret holes in the floor of the victim's home which could have been used to spy on her, or even to invade her home had she returned to live there. I am not satisfied that the learned sentencing judge placed any undue significance on this matter. It was relevant to the circumstances of the offences as it was an illustration of the appellant's obsessive interest in the victim during the period between the first and second episodes. The learned sentencing judge's finding was consistent with the victim's evidence of the discovery of the holes. The inference that the holes could have been used in the way postulated by the learned sentencing judge was plainly open, and derived some support from a statement the appellant made to the court during the course of the hearing to the effect that for nine days of the relevant period, he had slept under the victim's home.
Counsel for the appellant identified a number of matters referable to the appellant and his crimes which, counsel contended, warranted a lesser sentence than that imposed. All but two of the matters had been raised before the learned sentencing judge and were expressly and appropriately dealt with by him. The other two matters are:
· counsel for the appellant's contention that any jealous preoccupation evidenced by the appellant's prior behaviour towards the victim was not present at the time of the sentencing; and
· a statement by the appellant in the course of the sentencing hearing that he was no cause for concern to any person.
These matters go to the issue of the appellant's continuing animus towards the victim. That issue was addressed by the learned sentencing judge when he stipulated a parole eligibility period. In that context, the learned sentencing judge said:
"I could order that the prisoner be eligible for parole after he has served as little as half of his sentence, but I think caution requires a longer non parole period in this case. It became very clear to me during the trial that rightly or wrongly, the prisoner is still very upset about many aspects of his former partner’s conduct towards him, and I think her safety must be given a high priority."
Counsel for the appellant did not challenge the learned sentencing judge's finding that the appellant was still very upset about many aspects of the victim's conduct; but submitted that, in the light of other findings made by the learned sentencing judge, the finding was not a basis for concern about the appellant's future conduct. The findings on which counsel relied were his Honour's acceptance that the crime was out of character and his Honour's recognition that the appellant exhibited some understanding of his motives and the unacceptability of his conduct. I reject counsel's submission that because of these findings, there was no basis for concern about the appellant's future conduct. Having read the appellant's cross-examination of the victim, I am in no doubt that his level of animosity towards her was good cause for concern about his future behaviour towards her, and the appellant's statement to the contrary provided no sufficient basis for discounting that concern. I reject counsel's submission that by the time of the sentencing hearing the appellant's former jealous preoccupation with the victim was no longer present and was not a cause for concern.
The appellant's crimes arose from two prolonged episodes of misconduct which occurred nine weeks apart. The first episode began at about 7am and the victim was not able to effect her release until shortly prior to mid-day. At the conclusion of the assaults which took place during the initial part of this period, she was bound and gagged and a noose was placed around her neck. She was left to wait in that state, with the appellant's threat hanging over her that when he returned he would finish her. She remained in that highly stressful situation for several hours before relief arrived.
Whilst the first episode can be explained, in part, on the appellant's immediate emotional response to the shock of being confronted with his partner's desire to end their relationship, that explanation provides little justification for the second episode which occurred nine weeks later. By that time, there had been ample opportunity for the appellant to control his emotions and recognise how appalling his conduct during the first episode had been. Instead, he embarked on what must have been a premeditated plan to abduct the victim as she visited her mother at a New Norfolk nursing home. He forced the victim into his motor vehicle by threatening to slit her throat with a knife, which he produced, and drove her away. In the course of that journey, he told her he wanted her to drop the charges made against him in relation to the first episode. The extent of the fear generated in her by his conduct is demonstrated by her willingness to roll from his slowly moving car in order to escape. Exposing her to that hazardous exercise apparently did not bring about any reduction in the appellant's animosity towards her. He reacted by trying to force her into the boot of his vehicle and only desisted when others arrived at the scene.
In the course of both of these episodes, the victim feared for her life, and had good reason to do so. In consequence, at the time of the sentencing hearing, she remained too frightened to return to her home and she continued to need psychological counselling.
The series of crimes involved in each episode was serious and when viewed in combination, I am unpersuaded that a global sentence of three years six months' imprisonment was manifestly excessive.
Parole eligibility
Ground 4 of the appeal challenges the parole eligibility period fixed by the learned sentencing judge on the ground that he erred in determining that caution required a longer non-parole period in this case.
I have already explained why I consider that the learned sentencing judge rightly concluded that the appellant was a continuing risk to the victim.
Prior to amendments made to the Sentencing Act 1997, s17, by the Sentencing Amendment Act 2002, which came into effect on 1 October 2002, in the absence of a contrary order, a prisoner who had served six months of a sentence became eligible to apply for parole after serving one half of the sentence. The amendments reversed that situation, a prisoner is now only eligible to apply for parole if the court expressly makes an order to that effect.
The power to fix a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate the punishment of a prisoner in favour of his or her rehabilitation through conditional freedom once the prisoner has served the minimum time that the judge determines justice requires that the prisoner must serve having regard to all the circumstances; Power v R (1974) 131 CLR 623 at 629 and Carr & Ors v R [2002] TASSC 60 at par96.
As the appellant had no prior convictions for a crime involving violence and his commission of the crimes for which he was being sentenced was out of character, there was reason for the learned sentencing judge to conclude that it was appropriate to benefit the appellant by fixing a parole eligibility period. A circumstance relevant to the length of that period was his Honour's assessment that caution required him to fix a non-parole period in excess of one-half of the period of the sentence as it had become clear to him during the trial that the prisoner was still very upset about many aspects of the victim's conduct towards him and her safety must be given high priority.
On the date when the appellant was sentenced, he had already served a few days more than twelve months of his sentence. The shortest parole eligibility period which the learned sentencing judge could have fixed was 21 months, a period which could have allowed the appellant to apply for parole within nine months of the date upon which he was sentenced. In my view, it was entirely appropriate for the learned sentencing judge to consider that period to be too short and settle upon the period of 27 months that he selected.
Driving licence disqualification
The learned sentencing judge ordered that the appellant be disqualified from driving for a period of 18 months from his release from prison. In the course of the submissions on sentence, no mention was made of the possibility that the appellant's licence could be disqualified. Pursuant to the Sentencing Act 1997, s55, it was open to the learned sentencing judge to disqualify the appellant from obtaining or holding a driver's licence, as the second episode of the appellant's offences arose from his use of a motor vehicle. The appellant was unrepresented. In these circumstances, before an order was made disqualifying the appellant from holding or obtaining a driver's licence, he should have been informed that the court had the power to make such an order and asked if he had anything to say about that subject; Wyngaarden v Samuels (1973) 4 SASR 420, Cooling v Steel (1971) 2 SASR 249 at 251 and Haase v White 84/1984. The failure to adopt this course in the circumstances of this case involves a miscarriage of justice and accordingly the order disqualifying the appellant from driving should be quashed. Counsel for the respondent did not contend otherwise.
Conclusion
I would dismiss the appeal against the term of imprisonment imposed on the appellant and the parole eligibility period fixed referable to that sentence. I would allow the appeal against the order disqualifying the appellant from driving and would quash that order.
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