R v De Gruchy
[2006] VSCA 10
•9 February 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 17 of 2005
| THE QUEEN |
| v. |
| JUSTIN JOHN DE GRUCHY |
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JUDGES: | CHARLES and VINCENT, JJ.A. and MANDIE, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2006 | |
DATE OF JUDGMENT: | 9 February 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 10 | |
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Criminal law – Sentence – Parity between co-offenders – Whether sentencing judge erred in finding that the appellant was the principal offender – Whether sentencing judge erred in finding that the appellant’s co-offenders were fearful or intimidated by him - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr T. Kassimatis | Victoria Legal Aid |
CHARLES, J.A.:
I will invite Vincent, J.A. to give the first judgment.
VINCENT, J.A.:
The appellant pleaded guilty in the County Court at Melbourne, on 10 September 2004, to one count of kidnapping (count 1), one count of assault (count 2), one count of causing injury intentionally (count 3) and three counts of indecent assault (counts 4, 5 and 6). After a plea in mitigation of penalty, he was, on 31 January 2005, convicted on each count and sentenced to the following terms of imprisonment:
On count 1 - five years;
On count 2 - three years;
On count 3 - 12 months;
On count 4 - 12 months;
On count 5 - 18 months;
On count 6 - 18 months.
The sentencing judge directed that one year and six months of the sentence imposed on count 2, six months of that imposed on count 3, six months of that imposed on count 4, one year of that imposed on count 5 and one year of that imposed on count 6, be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of nine years and six months, in respect of which a non-parole period of seven years was fixed.
Having been granted leave to do so, the appellant now appeals against the individual sentences, the total effective sentence and the non-parole period fixed on the grounds that:
1. The learned judge erred in making findings that -
(a)the appellant was "far and away the principal offender in the commission of these crimes";
(b)"your [the appellant's] co-offenders were fearful of you and intimidated by you".
It is further alleged that the principle of parity of treatment of co-offenders was breached in the appellant's case. Two further grounds set out in the appellant's full statement of grounds were not pursued and need not be addressed.
The Background
The victim of the offences, M, was a 28-year-old prostitute who worked mainly in the St Kilda area. It was there that she met the appellant, who was a frequent visitor to the area. On a number of occasions he drove her to his residence in Tullamarine, where she would sometimes stay for a number of days. On one of these occasions the appellant gave her an illicit drug known as "Ice" which she used for a short period before reverting to the taking of amphetamines which she preferred.
At the time of the offences the appellant was 34 years old and living in a rented unit. Residing with him at that time were two other females, Christine Hammond and a 15-year-old girl who, by reason of her youth, I will refer to as "R". The appellant was unemployed, but it appears that he would work from time to time as a truck driver.
Christine Hammond was 38 years of age at the time, and she had moved into the appellant's home approximately two weeks earlier. She too had met him while she was working as a prostitute in St Kilda and he was providing her with the drug "Ice", in a claimed attempt to wean her off the heroin to which she was addicted.
R had met the appellant a number of months before the offences and shortly afterwards moved into his home. She was unemployed at the time of their commission.
On Monday 23 June 2003, the victim and a friend were walking along Grey Street, St Kilda. The appellant, Hammond and R were in a motor car being driven by the appellant when he saw M. He stopped the car and ran up behind her. He grabbed her shoulder and hair and said, "Where is my money?" M was unsure as to what money he was referring, but assumed that he wanted payment for drugs that he had given her when she had earlier stayed with him. She responded that she did not have any money at that time, but that she would be paid on the following day. The appellant then said that that was not satisfactory and that she was going with him. Maintaining his grip on her hair, he then pushed her towards the rear passenger side of his car. Hammond unlocked the door and M was forced inside. The appellant then slammed the door and told R to keep her hand on the door knob so that M could not escape. He then drove to his home at Tullamarine. In the course of the journey, the appellant told M that because she owed money to him he would be making an example of her. His two companions made statements to the effect that "We have something in store for you", and laughed between themselves.
On arrival at the appellant's home, M was taken into the lounge room. At around this time another person, David Gribbins, attended at the premises to purchase drugs. He was in the kitchen when he was told by one of the group that there was going to be a "show". After making his purchase he left. While he was present, however, both R and Hammond watched the victim and Hammond said to her, "You're fucked now."
After he had gone, the appellant and the two female offenders directed M to go into the bathroom. As she stood up to do so, the appellant told her to take off her clothes. She asked whether she could retain her underwear but was directed to undress completely. She complied with this direction and went to the bathroom. The appellant then instructed her to sit on the floor. Again, perforce, she complied. The appellant and his two companions began verbally abusing her, calling her, among other things, a slut and a whore. R then approached M and kicked her in the ribs. The appellant directed Hammond to get a chain. Hammond left and returned with the item. R tied one end of it around a sink support. The appellant then told R to get some electrical tape. When she returned with it, he used it to secure the chain around M's neck. M was then left in the bathroom in this state for a number of hours.
During this period, another person, Adam Coates, attended at the premises to purchase drugs. Whilst there he was told by the appellant that a girl had stolen his phone and that she was in the bathroom. Coates was then shown M, sitting naked on the edge of the bath, crying and shivering. The appellant said to him, "This is the bitch that stole my phone," and said that he would deal with the matter in his own way. Coates then left. When he returned a number of hours later to make a further purchase, the appellant informed him that the girl was still in the bathroom and directed Coates to get "a suck on the dick". Coates, who was fearful and intimidated by the appellant, went into the bathroom with him. The appellant ordered M to "look after him, because if you don't the girls will kick the fuck out of you". He then left the room and Coates began talking to M. After a short interval, the appellant knocked on the door and called out to enquire whether M had complied with his direction. Each of them fearing what would happen if it did not take place, M performed oral sex on Coates, who then left.
Later that night, the appellant entered the bathroom and took the chain from M's neck. With R and Hammond standing in the doorway, he directed her to get into the shower and ordered her to turn on the cold water tap. It should be remembered at this point that these events occurred in June, and at night. It is reasonable to anticipate that the conditions would have been extremely cold indeed. The victim was forced to remain in the shower, with cold water running, for approximately 15 minutes. As this was happening, the women stood around making derogatory comments about her body.
After M was permitted to leave the shower, the appellant told his female companions to get a rolling pin. R returned and gave a wooden rolling pin to him. He then left the bathroom but returned a short time later. He had placed a number of condoms over the end of the rolling pin and gave it to the victim, ordering her to insert it into her vagina. She refused to do so, and all three commenced to yell at her. The appellant told her that if she did not comply he would insert it himself, and that it would be a lot harder for her. She still refused, and R approached her and kicked her in the face, making contact with her eye. She then said to M, "Do it, bitch." Fearing more violence, M inserted the rolling pin into her vagina. At one stage the appellant used his mobile telephone to take a number of photographs of her with the rolling pin in this position, saying that he would have them enlarged and placed along Grey Street, St Kilda. She was also subsequently forced to insert the rolling pin into her anus.
After these occurrences, Hammond directed M to remove the condoms from the rolling pin and put them inside her vagina. M said that she wanted to put them in the rubbish bin, but was told by Hammond, "Either you do it yourself or I will be doing it for you." Again M complied.
Following these events, M was ordered to get back on to the floor. The chain was replaced around her neck and her wrists were bound together with tape. All three then left the bathroom, but returned with the two females carrying a dog bowl, a can of dog food and dog biscuits which they placed on the floor. They then directed M to eat. When she refused, R kicked her in the ribs and stomped on her back, saying, "Start eating, you fuckin' dog." M, accepting that she was in a helpless situation, began to eat the dog food. Finally, when she could eat no more, she said that she felt like vomiting, but was told that if she did so her face would be rubbed in it. She was then left alone on the bathroom floor for a number of hours. However, from time to time R would enter the room to check on her.
M finally fell asleep and when she awoke noticed that it was daylight. She managed to free her wrists from the tape and remove the chain from her neck and finally escaped through a bathroom window.
The Grounds
Mr Kassimatis, who appeared on behalf of the appellant, advised the Court that the central proposition being presented was that there was unjustified disparity between the effective sentence imposed on his client for his part in these events and that handed down by his Honour upon the co-offender Hammond. He pointed out in this context that the evidence indicated that Hammond was not merely an active but an enthusiastic participant in what took place, and the acceptance by the prosecution at the appellant's plea hearing that, on some of the counts, he fell to be sentenced as an aider and abettor to offences committed by his co-offenders. The errors of fact asserted in ground 1 contributed, Mr Kassimatis said, to his Honour’s view of the relative situations of the appellant and Hammond and thereby to the extent of the disparity of treatment, which is the subject of complaint.
I now turn to address those asserted errors. Whilst it was accepted on behalf of the appellant that he was the primary offender on this night, that he held a grievance against M, initiated her kidnapping and had a serious role in what subsequently transpired, there could be no doubt that Hammond and R were active and enthusiastic participants. In those circumstances, Mr Kassimatis submitted, his Honour had erroneously determined that the appellant was "far and away the principal offender in what was essentially a joint criminal enterprise".
In my opinion, there is nothing in this complaint. It is apparent that the appellant initiated, directed and, to a very large extent, controlled everything that transpired. It was he who decided to kidnap M, ordered her to remove her clothes, had her chained naked in the bathroom for hours, directed her to stand in the shower for about 15 minutes with the cold water running, forced her to engage in oral sex with Coates, and was responsible for the insertion of a rolling pin into her vagina and anus. Whatever may have been the motivations of his companions in participating in these activities, and accepting that they devised their own ways of tormenting and humiliating M, to which he was effectively an aider and abettor, the inference is irresistible that nothing took place without the approval of the appellant and in furtherance of his objectives. He was, as the sentencing judge found, "far and away the principal offender". A clear distinction had to be made between the appellant and his confederates on this basis alone.
Next, Mr Kassimatis argued that the sentencing judge fell into error in his finding that "Your co-offenders were fearful of you and intimidated by you". This assertion had been made on behalf of Hammond in submissions advanced in her plea, and was, understandably, challenged from the outset by the prosecution. His Honour stated more than once in the course of the appellant's hearing that he recognised that he could not take into account what had been said in that proceeding, or his findings of fact in Hammond's case, on this aspect. It is clear that there was no evidence before him to support any such finding in the appellant's case. Whether or not the co-offenders participated because they were fearful of the appellant, or for some other reason, would only assume significance in terms of his culpability, if there existed some basis for concluding that he had employed his superior position to secure their co-operation, or, at least, for perceiving that they were being complicit as a consequence of their fear of him. Nothing of that kind was ever suggested, and there is nothing in his Honour's sentencing remarks that can be seen to raise the reasonable possibility that he treated the motivations of the appellant's co-offenders for participating as anything more than background circumstances explaining their involvement in what, without exaggeration, could reasonably be described as the appalling abuse of the victim. It certainly does not arise inferentially from the sentences imposed that his Honour regarded his view of the motivation for the co-offenders' involvement in these offences as an aggravating factor when determining the appropriate sentences to be handed down upon the appellant. Indeed, he made it quite clear in the course of the hearing that he was aware that it would be wrong for him to do so.
The co-offender Hammond was sentenced by the same judge, as I have indicated, on 17 September 2004, to imprisonment for 27 months with a non-parole period of nine months. I mentioned that R, who was a juvenile, appeared before the Children's Court and no comparison can usefully be made between her position and sentencing disposition and that of the appellant. Hammond pleaded guilty to one count of false imprisonment, one count of assault, one count of intentionally causing injury and three counts of indecent assault. She had one prior conviction for loitering for prostitution in a public place. She had been co-operative with the police from an early stage and had indicated preparedness to give evidence against the appellant, if necessary. There were a number of other matters of background and mitigatory circumstances that also differentiated her position from that of the appellant.
When regard is had to:
(a) the different roles played;
(b) the substantial difference in the maximum penalty applicable to the offence of kidnapping for which the appellant fell to be sentenced (25 years' imprisonment) and that applicable to the offence of false imprisonment (10 years' imprisonment);
(c) the differences in the criminal histories of the appellant and Hammond; and
(d) that Hammond was able to rely on the mitigating factors of co- operation, a plea of guilty and preparedness to give evidence against the appellant, additional to personal factors relating to their individual backgrounds and circumstances,
it is clear that, in the circumstances, substantially different sentences were called for.
I consider that Hammond was indeed fortunate to be dealt with as leniently as she was, however it must not be forgotten that the factual foundation upon which she was sentenced by his Honour differed in at least one other important respect from that of the appellant. She had claimed that her preparedness to become involved in the offences arose from her fear of the appellant. Although, as I understand the prosecution's stance, that claim was not accepted in its entirety, it was not disputed that the intimidatory personality of the appellant may not have been a factor in her decision to participate. This consideration was taken into account by the sentencing judge and impacted upon the disposition in her case.
His Honour appreciated that there had to be a substantial discrimination between these offenders, and I understand his remarks which suggested that there was no need for parity of treatment, to mean only that he formed the view that there were very different considerations applicable to them and that different sentences were required.
Consequently, I have formed the view that there is no substance in the complaint which has been advanced in this appeal and I consider that it should be dismissed.
CHARLES, J.A.:
I agree that the appeal should be dismissed for the reasons given by Vincent, J.A.
MANDIE, A.J.A.:
I also agree.
CHARLES, J.A.:
The order is that the appeal is dismissed.
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