R v Flentjar

[2008] NSWSC 771

CITATION:	R v Flentjar [2008] NSWSC 771
HEARING DATE(S):	25/06/2008, 26/06/2008
JUDGMENT DATE :	26 July 2008
JUDGMENT OF:	Buddin J
DECISION:	For the offence of detaining Gregory Hosa in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a total term of imprisonment of 8 years 6 months consisting of a non-parole period of 5 years 6 months with the balance of the term being 3 years. Each term will commence on 26 April 2006. The total term will expire on 25 October 2014 and the non-parole period will expire on 25 October 2011. For the offence of detaining Kathryn McKay in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a total term of imprisonment of 8 years 6 months consisting of a non-parole period of 5 years 6 months with the balance of the term being 3 years. Each term will commence on 26 October 2007. The total term will expire on 25 April 2016 and the non-parole period will expire on 25 April 2013 on which date the offender will be eligible for release on parole. The total effective sentence is thus one of 10 years imprisonment with a total effective non-parole period of 7 years.
CATCHWORDS:	Specially aggravated form of kidnapping - two victims - accumulation - pleas of guilty - assistance to authorities - parity
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Collett (unreported, 7 June 1979, NSWCCA) R v Falls [2004] NSWCCA 335 R v Markarian (2005) 228 CLR 357 R v Newell [2004] NSWCCA 183 R v Simpson (2001) 53 NSWLR 704 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Turner [2004] NSWCCA 340
PARTIES:	Regina Andrew Wayne Flentjar
FILE NUMBER(S):	SC 2007/1225
COUNSEL:	P Leask (Crown) J. Stratton SC/P Pearsall (Offender)
SOLICITORS:	Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSWACT) Ltd (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 25 JULY 2008

2007/1225 – REGINA v ANDREW WAYNE FLENTJAR

REMARKS ON SENTENCE

HIS HONOUR :

Introduction

1 Andrew Wayne Flentjar (whom I shall refer to as the offender) stands for sentence following his pleas of guilty in respect of two offences each of which is an instance of what the legislature describes as the specially aggravated form of kidnapping. The first offence alleges that the offender on 28 January 2006 at Nowra “being in company, did detain Gregory Hosa without his consent with intent to obtain an advantage and at the time of the detention actual bodily harm was occasioned to Gregory Hosa”. The second offence is in identical terms except that the victim on this occasion was Gregory Hosa’s wife, Kathryn McKay. The offence in question attracts a maximum penalty of 25 years imprisonment. The legislature has not specified a standard non-parole period in relation to the offence.

2 The offender entered the pleas of guilty during the course of his trial at which he was also charged with the murders of Gregory Hosa and Kathryn McKay. Because the offender was found not guilty of those charges by the jury, I can have no regard to those offences when imposing sentence upon him.

3 I have already referred to the fact that the offences to which the offender pleaded guilty were committed “in company”. Indeed, a second person, Kim Leanne Snibson, originally stood trial with the offender. However, after the trial had been in progress for several days, Ms Snibson entered pleas of guilty to all four charges alleged against her, that is the murders of the deceased couple as well as the specially aggravated form of kidnapping of each of them. The sentence proceedings in respect of Ms Snibson were adjourned to abide the outcome of the offender’s trial. As matters have transpired, it has become necessary for the offender to be sentenced before the sentence proceedings in respect of Ms Snibson can commence.

4 A further co-offender, Stacey Lea-Caton, had earlier pleaded guilty to the same four offences with which Ms Snibson and the offender were charged. In respect of those offences, Mr Lea-Caton was sentenced to an effective overall head sentence of 22 years imprisonment with an effective non-parole period of 16½ years. His sentences were discounted by a figure of 40% to reflect his pleas of guilty and his undertaking to assist the authorities. That undertaking consisted of a promise to give evidence at the trial of Ms Snibson and the offender. Mr Lea-Caton gave evidence at the trial and thus honoured that undertaking.

5 At the outset of the trial, the offender entered pleas of guilty to the statutory alternative of detaining for advantage whilst in company, an offence which carries a maximum penalty of 20 years imprisonment. It was only the element of “actual bodily harm” which was put in issue. So far as those counts were concerned, the only matter which appeared to be in dispute was the question concerning whom, as between Mr Lea-Caton and the offender, had struck a blow to the head of Mr Hosa with a piece of wood. Indeed, as will become apparent, that matter still remains in issue.

6 However, in the wake of the change of pleas by Ms Snibson and before addresses had commenced, the Crown indicated that the sole basis upon which it would seek to establish the offender’s liability for murder was as an “aider and abettor”. The effect of that indication was that the Crown did not seek to rely upon an alternative basis of liability, known as “constructive murder” or “felony-murder”, which it had foreshadowed in its opening address.

7 In any event, the critical issue which the Crown had to establish in order to prove its case on murder, was the presence of the offender at the time the fatal acts were inflicted upon the deceased couple. The Crown case at trial, relying as it did for that purpose solely upon the evidence of Stacey Lea-Caton, was that those acts were each administered by Ms Snibson.

8 Following the Crown’s indication as to the revised manner in which it intended to present its case to the jury, the offender then entered pleas of guilty to the offences to which I referred earlier. It can be inferred that the offender was by then no longer in jeopardy that the offences to which he pleaded guilty could be used as the foundational crimes for the purposes of the “felony murder” rule. In light of the chronology of events to which I have just referred, it is common ground as I understand it, that I should treat the offender’s pleas of guilty as having been entered at the outset of the trial.

Background

9 Since the offender pleaded guilty there is, subject to the matter to which I having already adverted, no real dispute about the facts. Much of what follows is taken from the evidence given at the offender’s trial by Stacey Lea-Caton for which, it is to be observed, there is considerable support in other parts of the evidence. In any event, the offender confirmed in large measure the version of events given by Stacey Lea-Caton when he gave evidence during the course of the sentence proceedings. Where it has been necessary to do so, I have also referred to the evidence given by the offender.

10 The deceased couple, Mr Hosa and his wife, Ms McKay lived at Champagne Shires which is located at 133 Albatross Road, Nowra. Ms Snibson knew the deceased couple because, for a time, she had agisted horses on their property.

11 Ms Snibson lived for a number of years in premises at 14 Calymea Street, Nowra with her husband, Paul, and their two daughters. Ms Snibson also knew the offender who resided with his de facto wife, Darlene Cowen, at 97 Kalandar Street, Nowra. Her daughter, whom I shall refer to as S., was best friends with one of Ms Snibson’s daughters, whom I shall refer to as C.

12 Ms Snibson also knew Stacey Lea-Caton whom she had met when he was residing in a caravan at the back of his sister’s place at 12 Calymea Street. Those premises were owned by Sheree Lillia and her husband, Peter. They lived there with their children. Their house was of course next door to Ms Snibson’s place. In due course Stacey Lea-Caton and Kim Snibson became friends and began socialising together. About 18 months before the fatal incident, Ms Snibson approached Stacey Lea-Caton and asked him to do her a favour. She requested his assistance in tying up two people and getting them to “sign over property”, which was apparently a reference to their house. She told him that they had drugged her and raped her and that they had video-taped the incident. That was the reason, it was explained to Lea-Caton, why Ms Snibson wanted him to do her the favour. Joshua Gowers, a friend of Lea-Caton, was also present during this conversation and he gave evidence to similar effect. It seems that Stacey Lea-Caton also informed the Lillias of the approach which Ms Snibson had made to him.

13 During the offender’s trial, Ms Cowen gave evidence that some months prior to 28 January 2006, Ms Snibson informed her, in the offender’s presence, that C. had been sexually assaulted by people who used to babysit her and that the incident had been video-taped. Ms Snibson, she said, wanted assistance from her and her husband to threaten those people. During the sentence proceedings, the offender said that Ms Snibson had indicated to him that she wanted his assistance to scare the people so that they would return the tape. The offender said that when he suggested to Ms Snibson that she should go to the police, she had replied that “they would do nothing about it”. It can be inferred that the offender was motivated to get involved because of his step-daughter’s friendship with Ms Snibson’s daughter. It also appears that he genuinely believed that he was assisting in bringing to justice two persons who, to his mind, were child molesters. Although there is not a shred of evidence to suggest that the tape ever existed, the offender nevertheless believed, and indeed continued to believe for some considerable period of time, that it did.

14 In due course the Snibson marriage broke down and in December 2005 Paul Snibson moved out of the marital home. He went with the children to live in Wodonga. Ms Snibson also moved out. It was in those circumstances that Ms Snibson offered to rent their house to Stacey Lea-Caton. He had moved into the premises only days before the deceased couple were murdered.

15 On the morning of 28 January 2006 Ms Snibson drove from Wodonga to Nowra with her two daughters. She dropped C. off at the home of the offender. Arrangements had been made earlier in the week that C. and her mother would stay there. Ms Snibson then drove to 14 Calymea Street where she met up with Stacey Lea-Caton. She was seen there at about 3 pm by Lea-Caton’s niece, Simone Lillia. Ms Snibson informed Stacey Lea-Caton that the plan involving the attack upon the couple was to take place that day. She then briefly left the house, before returning shortly thereafter with the offender. The offender gave evidence that it was only that afternoon that Ms Snibson also told him that she wanted him to assist her in “getting back at these people”. Before setting off with Ms Snibson, the offender said that he changed into black clothing. He also took with him a black beanie in which he had “cut two eyes out to make a balaclava”. The offender and Lea-Caton, who were strangers to each other, met for the first time at the house in Calymea Street when the offender arrived there with Ms Snibson. Neither Lea-Caton nor the offender was acquainted at the time with the deceased couple.

16 Telephone records reveal that Ms Snibson called Mr Hosa’s mobile telephone number at 4.59 pm. A short time later Mr Hosa arrived at 14 Calymea Street in his Hilux 4WD. He was alone. Lea-Caton said that he was set upon as he entered the premises and that the offender struck a blow to the victim’s head with a piece of wood. The blow caused a cut above his eye which then bled. He said that Mr Hosa was then tackled and wrestled to the ground by the offender and Ms Snibson. He said that the victim was then “hog-tied”. That entailed his legs being pulled up behind his back so that his feet and hands were bound closely together using a piece of rope. According to Lea-Caton, when Mr Hosa asked why he was being assaulted, he was informed by the offender that it was “for touching kids”. A sock was stuffed into his mouth and tape was applied to his face. Once bound and gagged, he was dragged into the bathroom of the house where he was then left.

17 According to the same telephone records, Ms Snibson rang Ms McKay at 5.26 pm. Lea-Caton gave evidence that he overheard Ms Snibson tell her that she needed to come to the premises in order to settle her husband down. He also said that Ms Snibson told him that, as Ms McKay knew that her husband had gone to the premises, she would be able to inform the police of that fact. Shortly after that call, Ms McKay arrived at the premises in her Magna sedan. According to Lea-Caton, she too was set upon by the offender and Ms Snibson when she entered the house. She was forced to the floor and then “hog-tied” in the same fashion as her husband had been. A sock was stuffed in her mouth and her face was bound with tape. She was left in the kitchen.

18 The offender gave his version of those events. The most significant point of departure from the version given by Lea-Caton lay in his assertion that it had been Lea-Caton, and not him, who had set upon and struck Mr Hosa. So far as his role was concerned, the offender maintained that he had only lent on the victim whilst the other two restrained him. He said that they had then tied him up before putting him in the bathroom.

19 The offender gave evidence that following the detention of Mr Hosa he had asked Ms Snibson to take him home. He said that she said that “I can’t…there’s another person coming. You don’t have to do anything. You just got to wait.” He gave evidence that he reluctantly agreed to do so. He maintained however that he had played only a very minor role in restraining Ms McKay when she arrived at the premises. He said that the other two had been responsible for tying her up. He also said that Ms Snibson had been very concerned that Lea-Caton’s blow to Mr Hosa had caused him to bleed. Presumably that was because it would leave traces of blood behind in the house.

20 The offender said that after Ms McKay had been tied up, Ms Snibson then agreed to drive him home. He said that he drove her vehicle to Champagne Shires so that Ms Snibson could return Ms McKay’s car to those premises. He said that he then got into Ms Snibson’s vehicle for the remainder of the trip back to his place. There is support for this aspect of his account in other parts of the evidence. Gary Edwards and his son, Kory, gave evidence of having observed Ms Snibson and the offender, at the relevant time, driving out of Champagne Shires in Ms Snibson’s car. Mr Edwards and his son then followed them as they drove to the intersection of the Princes Highway and Kalander Street. They then saw them heading from the intersection towards the offender’s house which is only a short distance away.

21 Lea-Caton gave evidence that, after Ms Snibson and the offender left 14 Calymea Street, he was left to guard the two victims. Lea-Caton said that it was his understanding that Ms Snibson had gone to obtain cleaning products. At about 5.55 pm, Ms Snibson was filmed by a security camera purchasing bleach and domestos from a Caltex service station at South Nowra. Other evidence established that Ms Snibson borrowed $10 from Ms Cowen in order to make those purchases. Lea-Caton said that whilst Ms Snibson and the offender were away, a period of time which he estimated to be about half an hour, Mr Hosa tried to break free. He said that he responded by tying him up more securely. He also admitted to having punched Mr Hosa in the head.

22 Stacey Lea-Caton gave evidence that Ms Snibson and the offender then returned to the premises with two 44 gallon drums. He then detailed how each of the victims were then killed and their bodies transported in the drums to Tomerong State Forest where the drums were set alight. He described how Mr Hosa’s vehicle was driven to Braidwood Road where it too was set alight. I mention these facts simply to provide some context to what occurred following the offences in which the offender was involved but I re-iterate that I cannot take into account, when sentencing the offender, the fact that the deceased couple were murdered.

23 Later that evening, Stacey Lea-Caton went next door and spoke to his sister and her husband about the events which had unfolded that day. After discussing the matter with them, he decided to go to Nowra Police Station in order to report the incident. It was then very early in the investigation and he was released after initially speaking to police. However, some time later that morning, after they had had an opportunity to make some preliminary enquiries, police requested that he return to the police station. Lea-Caton was then re-interviewed and following that second interview, was charged with the murders of the deceased couple. In due course, police located both the burnt out vehicle and the drums.

24 Although the offender acknowledged by his pleas of guilty that he had participated in the detention of the deceased couple, he denied that he had been present at the time when they were murdered. At trial he relied upon the fact that he told police, upon his arrest, that he had not killed anyone. He also relied upon covert recordings of his private conversations, which had been intercepted by a lawfully authorised listening device, to support his case that he had played no part in killing the deceased.

25 The following passages from those conversations provide some insight into his state of mind at the time. He is recorded as saying -

Yeah…I felt a little bit responsible for what happened to these people (ind) but I didn’t kill them.
…but they are rock spiders.
…
I didn’t mind fuckin putting them on the ground and holding them down while they tied them up, cause they were rock spiders but I said that that’s…(ind)..take me home. I didn’t want to know.
…
My idea was they were going to fucken threaten em and like fucken you blokes better take this tape to the police that’s what I thought was gonna happen…
..get them to admit it. Something like that but I didn’t want no bar of it

26 The offender gave evidence that after being dropped off by Ms Snibson, he remained at home for the rest of the night except for two quick trips, one next door to visit his neighbour, and one across the road to purchase drinks at the East Nowra shops.

27 The offender gave evidence that when Ms Snibson returned to the premises some time later that evening she told him that “one person died by accident so we had to kill the other one”. He said that she had also asked him to burn what he said looked “like a brief, it was A4 paper…and it was professionally printed”. He said that following that request, he had soaked the papers in petrol and then set them alight in an incinerator in his backyard. He said that Ms Cowen, at his request, had purchased the petrol from a service station which is located directly across the road from his house. CCTV footage from the service station confirmed that Ms Cowen had indeed purchased petrol from those premises that evening. The offender gave evidence that Ms Snibson requested, and was provided with, a change of clothes.

28 The offender gave evidence that Ms Snibson left his premises early the following morning after telling him that Stacey Lea-Caton had handed himself into police. Shortly thereafter Ms Snibson was arrested when she arrived at the Calymea Street premises. She declined to be interviewed by police.

29 The offender said that later that day Ms Snibson’s solicitor arrived at his home and informed him that Ms Snibson was “in trouble for murder”. The offender gave evidence that when he saw a newsflash about the discovery of the bodies in the barrels, he then became concerned about two drum lids which he had found in his driveway earlier that day. The offender contacted police and informed them that the two drums lids had been left at his premises by Ms Snibson. He then provided police with a statement in which he denied any knowledge of the offences which had been committed. Indeed he claimed not to have left his house on the day in question. He continued to maintain that position when interviewed by police on 7 February and again on 9 February 2006. He acknowledged, whilst giving evidence, that he had lied to police and said that he had done so out of fear of being implicated in these offences. A DNA profile, consistent with the profile of Ms McKay, was located upon a handbag which was found in the bedroom which the offender shared with Ms Cowen. That discovery was made during the course of a search warrant which was executed on their premises on 6 February. The offender however denied knowing anything about the handbag being in the house.

Subjective features

30 The offender was born on 29 November 1974 and is now aged 33. He was 31 at the time of the offences. The offender gave evidence that he was born in Canberra but that he moved to Nowra when he was about 12. His mother is an Aboriginal and the offender is identified as belonging to that race as well. He left school after completing the School Certificate because his then girlfriend fell pregnant with their first child. They then had two more children before separating when the offender was 20. As I understand the situation, the offender’s mother has custody of those children, although he has frequent access to them.

31 The offender has been in a relationship for the last eleven years with Ms Cowen. They have a son together and his partner’s daughter, S., also lives with them. Ms Cowen gave evidence during the trial in which she described the offender as being a good father. She and others have also described him as not having any violent tendencies. The offender retains the strong support of his partner, his mother and other family members. The offender gave evidence that a promising football career was cut short by an injury to his shoulder, a problem which has continued to plague him. He suffers from epilepsy for which he takes medication. He obtained an apprenticeship as a mechanic and began working at an early age. He also obtained a bobcat licence and for nearly all of his adult life, he has been in employment. At the time of his arrest, the offender was employed as a foreman in a firm called Timbercrete Products. A director of that business has provided a reference in which he speaks in very positive terms about the offender’s qualities as an employee.

32 I have received a number of other testimonials which attest to the offender’s good character and the positive influence that he has had upon the lives of others. Apart from a conviction in 2000 for an offence of mid range PCA, and some minor traffic matters in 2006, he has no criminal record of any kind. I accept that, apart from these offences, the offender has been a hard working and productive member of the community.

33 The evidence reveals that at the time of these offences, the offender had developed a significant dependency upon alcohol. He described himself as having been on a “downward spiral” and said that, as a consequence, he was “glad” that he had been arrested. He admitted that he had been consuming considerable amounts of alcohol even though he was taking pain relief medication at the time for a back injury. The offender gave evidence that between them he and his partner had consumed a bottle of vodka, as well as about two dozen bottles of beer, on the day that these offences were committed.

34 The offender gave evidence that whilst he has been in custody he has been working, mainly in the prison laundry. He has attained various certificates, which is an indication that he has been seeking to improve his level of skills so that he may secure worthwhile employment when he is eventually released from custody. The offender gave evidence that he has not attracted any disciplinary charges. In light of that evidence, I am satisfied that whilst he has been in custody, the offender has conducted himself in a fashion which augurs well for his overall rehabilitation.

Relevant sentencing factors

35 In determining the appropriate sentences for the offender, I must take into consideration the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also have regard to the various aggravating factors which are set out in s 21A of the Act. I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3) of the Act. I will make specific reference to those matters which I regard as being of particular relevance to the sentencing exercise. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element of the offence or if it is an “inherent characteristic” of the offence charged.

36 In assessing the gravity of the offences under consideration, I have had regard to those factors which have been identified in the authorities as bearing upon the objective seriousness of offences of this kind: R v Collett (unreported, 7 June 1979, NSWCCA); R v Newell [2004] NSWCCA 183 and R v Falls [2004] NSWCCA 335. It is true that the period of time during which the offender was actually involved in this enterprise lasted for only about 45 minutes. In the scheme of things, that is perhaps not a terribly long period of time. Nevertheless, it is to be observed that the offence is, of its nature, a continuing one. Clearly enough, it continued well after the offender left the premises. A moment’s reflection on the offender’s part would have enabled him to realise that there was every prospect that, following his departure, the victims were going to be exposed to much more extensive harm than they had already suffered. In fact, it was those very concerns which the offender maintained in his evidence had prompted him to persuade Ms Snibson to drive him home. By walking away from the situation, the offender effectively decided not to provide any assistance to the victims and his decision to do so highlights the real gravamen of his offending conduct.

37 Although the offender was not the major player, his role was nonetheless an important one. His mere presence, alongside others, was essential in ensuring that the resistance of the victims was overcome. I cannot however have regard to the fact that the offences were committed in company as an aggravating factor because that is an element of each of the offences. Although there is no evidence that the offender played any part in planning these offences, there is nonetheless a measure of premeditation on his part insofar as each of the victims was lured to the premises in circumstances in which the offender knew that they were to be tied up and restrained. It is also to be borne in mind that the offender did not know either of the victims and accordingly he had no reason, other than what he said he had been told by Ms Snibson, to bear them any ill-will. Furthermore, he made no endeavour to ascertain whether what he had been told contained any truth whatsoever. In any event, although what Ms Snibson told him may explain why he was motivated to participate in these crimes, it can in no way operate to reduce their gravity. By no measure can the law countenance this kind of vigilante style behaviour.

38 Integral to the offences, involving as they did the restraint of each of the victims in the manner in which I have described, was the infliction of a not insignificant measure of violence upon the victims. Each of them would undoubtedly have experienced very severe discomfiture simply by reason of the manner in which they were tied up. That discomfiture however would have paled into significance when compared to the very real sense of anguish that they each would undoubtedly have experienced. Each of them would have been in a state of high anxiety, for what turned out to be a not inconsiderable period of time, wondering what fate lay in store for them. They were also each utterly defenceless and totally at the mercy of their captors, a matter which was readily apparent to the offender. As I have said it was the offender’s callous disregard for the welfare of the victims which marks out his criminality because in the final analysis he had no hesitation in putting his own interests ahead of theirs. In all the circumstances, Mr Stratton SC, who appears on behalf of the offender, realistically concedes that these are serious examples of offences of this kind.

39 There are however a number of mitigating factors upon which the offender is entitled to rely. His pleas of guilty are to be weighed in his favour: see s 21A(3)(k) and s 22 of the Act. I referred at the outset to the circumstances in which he entered his pleas. Mr Stratton contended that although the pleas were entered at a late stage, they still had some utilitarian value such as to entitle him to a discount, albeit one of relatively modest proportions, in accordance with the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383.

40 I am prepared to allow a further small reduction of sentence to the offender on account of the contrition that he expressed in his evidence: s 21A(3)(i). It must be said that his evidence in that respect stands in stark contrast to the attitude which he displayed at the time when his conversations were being intercepted by investigating police. Nevertheless, the offender demonstrated in his evidence that he has now developed some insight into his offending behaviour and a determination to change his ways. That change of attitude is manifest in his promise to assist the authorities, a factor which also entitles him to some amelioration of the otherwise appropriate sentence: s21A(3)(m) of the Act. To that end, the offender has signed an undertaking to give evidence. The Crown informed me that it proposes to call him as a witness in the sentencing proceedings involving Ms Snibson in which, I have been advised, there will be a significant challenge to various aspects of the Crown case. In particular, the Crown will rely upon the evidence which the offender can give concerning the events which took place once Ms Snibson returned to his house after the murders had been committed. The account which he gave of those events appears, on its face, to be plausible. Indeed some aspects of it, such as his evidence concerning the bonfire which he lit in the backyard, is supported by other evidence. The offender is also, as the Crown acknowledged, able to give evidence as to the circumstances in which he was recruited into this enterprise by Ms Snibson. The significance of that evidence is said to arise from the fact that, on the Crown case, she is the principal offender.

41 In assessing the extent of any discount which is to be extended to the offender on this basis, I have had regard to the various factors which are identified in s 23(2) of the Act. It is clear that the assistance should properly be characterised as falling at the lower end of the range. Given the time at which it has been provided, I must inevitably exercise due caution in assessing its “truthfulness, completeness and reliability”. I observe that it is common ground that an overall combined figure of 20%, for the pleas of guilty and the promise of assistance, would represent the upper limit of any discount that could be extended to the offender. I am prepared to proceed upon that basis although I am mindful that I must also give effect to the requirement which appears in s 23(3) of the Act. In light of those considerations, I specify that I will allow a discount of 10% for the assistance which the offender has promised to give.

42 It is conceded on behalf of the offender that there must be a measure of accumulation to reflect the fact that he committed two separate offences involving two different victims. Nevertheless it is appropriate, in determining the extent of the accumulation, to have regard to the fact that the offences occurred fairly close together in time and that they occurred during the course of what was one episode of criminality.

43 It was urged upon me that I should have regard to considerations of parity. In each instance I imposed a fixed term of five years imprisonment upon Stacey Lea-Caton for the kidnapping offences. Although I will endeavour to maintain a “due proportion” between the sentences which I imposed upon Lea-Caton for those offences and the sentences which I intend to impose upon the offender, that exercise is not without its difficulties. In respect of Lea-Caton, I found that the kidnapping offences provided the context in which the murders were committed. For that reason I ordered that each of those sentences should run concurrently with the sentences imposed for each of the murders. Those sentences were also of course, being interconnected, subject to considerations of totality.

44 Nor is it easy to directly compare the relative levels of culpability for the kidnapping offences so far as the offender and Lea-Caton are concerned. Nevertheless, it was urged upon me that Lea-Caton’s role in relation to the kidnapping offences was more extensive than that played by the offender. In particular, attention was drawn to the fact that he remained guarding the victims for a period of time after the offender had left and during which time, on his own admission, he struck Mr Hosa. So much may be accepted, but I do not regard that feature of the case as giving rise to any significant difference in their roles particularly as it is to be recalled that Lea-Caton was actually living in the premises at the time and may not have had the same avenues for escaping from them as did the offender.

45 I should indicate that I am not prepared, in any event, to uncritically accept everything that the offender said in his evidence. I am inclined to the view that he sought to downplay his role. For example, as I have observed, the offender suggested in his evidence that he had played almost no part in the detention of Ms McKay. However, as the Crown demonstrated in cross-examination, that assertion was at odds with what he is recorded as saying about that aspect of the matter in the listening device material.

46 Whilst I am not prepared to accept to the requisite standard, that it was the offender, as opposed to Lea-Caton, who struck the initial blow to Mr Hosa, it does not seem to me that that significantly reduces his criminality: R v Turner [2004] NSWCCA 340. His pleas of guilty recognise that actual bodily harm was occasioned to each of the victims during the course of the enterprise to which he had agreed to be a party. The fact that he disguised himself during the course of the criminal enterprise, serves to demonstrate that he anticipated that it was going to involve some measure of interference with their well-being. The possibility that some form of violence would be inflicted upon them must also have been within his contemplation right from the outset. He must also have envisaged that the victims may well have put up resistance such as to require the application of a degree of force in order to subdue them. Moreover, even on his version of events, the offender had some awareness that Lea-Caton was in possession of an implement that could be, and indeed was used, as a weapon.

47 There are also various factors which distinguish the subjective cases which were advanced on behalf of the two offenders. In Lea-Caton’s favour is the fact that his sentences were significantly reduced to reflect his pleas of guilty and his assistance to the authorities. His culpability for having committed the offences was also reduced to some extent because of his diminished capacity, by reason of his frontal lobe condition, to make rational choices about his conduct. Although the offender is entitled to a discount for his pleas of guilty and for his assistance to the authorities, it is common ground that those factors cannot be afforded anything like the same significance as they assumed in the case of Lea-Caton. Furthermore, unlike Lea-Caton the offender will not, I was informed, be going into protective custody. On the other hand, unlike Lea-Caton, the offender is entitled to a finding of prior good character. He has a good work record and does not have a criminal record of any significance. Not only does Lea-Caton have an extensive criminal record, but it contains a number of offences of violence. Although it was submitted that as between the two of them the offender presented a more powerful subjective case, I am inclined to the view, if anything, that the matters advanced on behalf of Lea-Caton tilt the balance slightly in his favour.

48 I am prepared to accede to a submission that I should make a finding of “special circumstances”. That will have the effect of varying, in respect of each offence, the normal statutory proportion between the head sentence and the non-parole period. I will do so because the offender is likely to require a longer than normal period in which to adjust to life in the community after his release from what is his first custodial sentence. He will need particular assistance in achieving his professed objective of curbing his excessive consumption of alcohol, something which, as I have said, was a feature of his life prior to the commission of these offences. Nevertheless, the effective overall non-parole period which I intend to impose represents the minimum period of time which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704.

49 Although I have considered a number of other sentences which have been imposed for offences of the same kind as those committed by the offender, I have found them to be of no great assistance particularly as the circumstances of the present case are almost unique. For similar reasons I have been unable to derive a great deal of assistance from the statistics maintained by the Judicial Commission. In that context, see also R v Newell (supra) at para 43. Nevertheless, I note that they reveal that of the 36 offenders who received custodial sentences for this offence in the period between December 2001 and September 2007, head sentences ranging from 18 months to 12 years and non-parole periods ranging from 6 months to 8 years were imposed.

50 Mr Stratton submitted that “for the individual counts, a non-parole period in the order of 5 years would be appropriate”. That is of course the same effective sentence which was imposed upon Lea-Caton. He also recognised, as I have said, that some degree of accumulation was then required. The Crown submitted that a non-parole period “could not fall below [a] total period of 7 years for [these] offences”. It can thus be seen that there is little difference between the parties in terms of what they contend is the appropriate overall sentence which ought to be imposed. In the final analysis however, I must exercise my own sentencing discretion having had proper regard to the relevant sentencing principles to which I have referred and having considered the salient features of the present case: see R v Markarian (2005) 228 CLR 357.

51 As the offender has been in custody since his arrest on 26 April 2006, it is appropriate to order that the sentences shall commence from that date.

Orders

52 For the offence of detaining Gregory Hosa in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a total term of imprisonment of 8 years 6 months consisting of a non-parole period of 5 years 6 months with the balance of the term being 3 years. Each term will commence on 26 April 2006. The total term will expire on 25 October 2014 and the non-parole period will expire on 25 October 2011.

53 For the offence of detaining Kathryn McKay in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a total term of imprisonment of 8 years 6 months consisting of a non-parole period of 5 years 6 months with the balance of the term being 3 years. Each term will commence on 26 October 2007. The total term will expire on 25 April 2016 and the non-parole period will expire on 25 April 2013 on which date the offender will be eligible for release on parole.

54 The total effective sentence is thus one of 10 years imprisonment with a total effective non-parole period of 7 years.

**********