R v Jackson - [2007] SASC 332

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JACKSON
[2007] SASC 332
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice David)
17 September 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - KIDNAPPING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant pleaded guilty to aggravated kidnapping, contrary to s 39 of the Criminal Law Consolidation Act 1935 - sentenced to imprisonment for four years with a non-parole period of 18 months - sentence suspended upon appellant entering into a bond - whether sentence manifestly excessive - appeal allowed - sentence reduced to imprisonment for two years with a non-parole period of 12 months, suspended upon entering into a bond.
Criminal Law Consolidation Act 1935 (SA) s 39, referred to.
R v Lam & Parker [2006] SASC 278; Griffiths v R (1977) 137 CLR 293, considered.

R v JACKSON
[2007] SASC 332
Court of Criminal Appeal: Sulan, White and David JJ

SULAN J: Samantha Gaylle Jackson pleaded guilty to aggravated kidnapping, contrary to s 39 of the Criminal Law Consolidation Act 1935, between 13 October 2006 and 16 October 2006 at Port Augusta. She unlawfully detained BJP (“the complainant”), who was under the age of 18 years, with the intention of committing an indictable offence against her. The circumstances of aggravation were that she threatened to use a knife at the time of committing the offence. The maximum penalty for aggravated kidnapping is imprisonment for 25 years.
The appellant was sentenced to imprisonment for four years, with a non‑parole period of 18 months. The sentence was suspended upon the appellant entering into a bond in the sum of $500, to be of good behaviour for three years and for two of those years to be under the supervision of a Community Corrections Officer and obey all lawful directions of that officer as to psychiatric counselling and to attend programs relating to drug and alcohol abuse. It was a further condition of the bond that the appellant not contact the complainant.
The appellant appeals against that sentence on the ground that it is manifestly excessive.
Background
The appellant was raised in a dysfunctional home. Her father was an alcoholic. The appellant had a strained relationship with her mother. The relationship of her parents was both physically and verbally abusive. Her parents separated when she was 16 years of age. She suffered sexual abuse at the hands of her mother’s new partners. She had been abusing alcohol and marijuana since she was 14 years of age. She fell pregnant at the age of 16 years.
When she was 17 years of age, she became involved in prostitution and developed a relationship with a Mr Jackson. They were married and she has two children by him. She and Mr Jackson moved to Port Augusta. The relationship was unsatisfactory, as he physically abused her. During that time, she attempted self‑harm and was admitted to Glenside Hospital.
Mr Jackson paid her little attention. The appellant believed that he was involved in relationships with other young women, including the complainant, who was 17 years of age at the time.
Some time prior to this offence, Mr Jackson was imprisoned. The appellant discovered that young women, including the complainant, were visiting him in gaol. The appellant was using drugs. She became obsessed about the complainant visiting Mr Jackson. She was concerned to find out about his relationship with her.
The complainant said that she and the appellant had been seeing each other regularly. She thought that they were friends. This changed when she received a text message from the appellant which said, “What the hell are you playing at bitch?” She telephoned the appellant because she was not aware why the appellant may have suddenly turned against her. The appellant was very angry, and told the complainant that she needed to come around so that the appellant could speak with her.
The complainant visited Mr Jackson in gaol. He later telephoned her and said that the appellant was very upset. He told the complainant that she should go and see the appellant. The appellant had developed a friendship with a 14 year-old girl, M. M was at the appellant’s house when the appellant spoke to the complainant on the telephone. After the conversation, the appellant was very upset. M calmed the appellant down. M phoned the complainant and told her that the appellant had calmed down and wanted to talk to her. She suggested to the complainant that she should come over and talk to the appellant. Eventually, the complainant went to the appellant’s home at Taylor Court with a friend, C.
When they arrived, M and another young person, D, were at the house. The appellant asked the complainant to come to the bedroom so that they could speak. During the conversation, the appellant accused the complainant of trying to take her family. She talked about suicide. She took a knife from her bag and flicked it towards the complainant. She accused the complainant of being her husband’s mistress and girlfriend, and accused her of trying to break up the family unit. She continually threatened the complainant, and said that she was going to scar her face. She would not permit the complainant to leave. She sat at the bedroom door. She had a knife in each of her hands. She threatened the complainant. She searched the complainant’s bag and took a number of items from it.
During the time that the appellant and the complainant were in the bedroom, C was in another room. M and D left the house but returned later that evening.
The appellant told M that she and the others were not to let the complainant leave. She said to the complainant that if she moved or went for the door, she would stab her, slit her throat, or kill her. She said that, if the complainant told the police, she would come and find her and kill her dog and then her. Over a number of hours she verbally abused the complainant.
Eventually, after about seven hours, the appellant allowed the complainant to leave. During that time, the complainant had been refused anything to eat or drink.
In her Victim Impact Statement, the complainant stated that she is not sleeping well, that she does not want to go out, and she is no longer as sociable as she was prior to the incident.
The appellant has no prior convictions. The sentencing Judge had the benefit of a psychiatric report from Dr Raeside, who considered that she has a borderline personality disorder, with associated feelings of chronic depression resulting in her having difficulty in establishing satisfying relationships with other people. He described her as having an adjustment disorder with depressed moods and numerous other stressors in her life. He considered that she required ongoing psychological assistance to assist her with her depression and her drug dependence. At the time Dr Raeside spoke to the appellant, she had ceased using drugs. She was pregnant. Counsel for the appellant informed the Court that the appellant had recently given birth to a child.
A pre-sentence report was also tendered which confirmed that the appellant had come from a dysfunctional home in which there had been abuse, violence and substance abuse. The appellant commenced using cannabis, which had been provided by her mother, when she was 12 years of age. She has a strained relationship with her mother and little contact with her father.
Mr Jackson, is currently imprisoned. They now have three children. The appellant said that during their marriage Mr Jackson had been repeatedly unfaithful to her. This was a major reason for her offending.
The appellant admitted that she had threatened and intimidated the complainant. She said her sole motivation for committing the offence was to speak to the complainant and to scare her. She said that she was affected by drugs throughout. She resented the complainant because of the complainant’s relationship with her husband.
The sentence
The sentencing Judge took into account the appellant’s dysfunctional background. He accepted that the offending took place in the background which I have earlier described. He had regard to the report of Dr Raeside. He accepted that the appellant required ongoing psychological support. He noted that she was about to give birth to a child. He accepted that the appellant was responding well to supervision.
The sentencing Judge considered general deterrence to be an important factor in determining the sentence. He said:
And others must realise that they face gaol if they commit this type of offence. So, one of the factors I am required to take into account, quite apart from anything involving you, is called “general deterrence” and indeed the effect upon your victim in the current case.
He imposed a sentence of imprisonment for four years, with a non-parole period of eighteen months and directed that the sentence be suspended upon the appellant entering into a bond on the conditions I have mentioned.
The appeal
Counsel for the appellant submits that the starting point for the head sentence was too high. The sentencing Judge indicated that he had allowed a 25 per cent reduction of the head sentence on account of the plea of guilty. The starting point, therefore, was imprisonment for five years and four months.
Counsel submits that this offending was at the lowest end of the scale of offending for kidnapping. The complainant went to the premises voluntarily, there was no attempt to remove her from the premises, no blindfolds or restraints were used, she was not subjected to physical violence, although she was subjected to threats. There was no demand for a ransom. Friends of the complainant were at the house during the time that she was restrained. The appellant permitted the complainant to speak to others whilst she was being held against her will.
Counsel for the DPP submits that the complainant was very young, that she was held against her will for several hours, and that there were threats of violence. She was subjected to verbal abuse and not permitted food or water during the period of her detention. She was threatened with reprisal if she made a complaint to the police.
The offence of kidnapping is a serious offence. Those who commit the offence will usually face lengthy periods of imprisonment. Nevertheless, the offence can be committed in many and varied circumstances. On the one hand, a person can be kidnapped, held for ransom, subjected to violence and traumatised. A victim can be held for long periods away from their home, deprived of food and water and in fear of their life. In those circumstances, penalties for the offence will be severe. It is not an offence where it is possible or appropriate to lay down principles for the guidance of courts having the duty of sentencing convicted persons.[1]
[1] R v Lam & Parker [2006] SASC 278; Griffiths v R (1977) 137 CLR 293, 310.
This was a case at the lower end of the scale. The complainant, although very young, was perceived by the appellant to have been in a relationship with the appellant’s husband. There was justification in the appellant thinking that there was a relationship. The complainant went to the appellant’s home, knowing that the appellant was angry about the perceived relationship.
There was no justification for the appellant holding the complainant as she did, and refusing to permit her to leave the house. The offence was aggravated by the appellant threatening the complainant with knives, and refusing to give the complainant food or water. The complainant was held against her will for approximately seven hours. The experience was frightening.
On the other hand, no actual violence was done. The appellant eventually released the complainant. During the time that the complainant was held at the appellant’s premises, other young people were able to speak to her. She was not held in isolation.
The appellant is a first offender. She was suffering from a severe psychological disorder at the time.
Although general deterrence is an important factor when considering the appropriate sentence for this offending, in the circumstances of this case a commencing point of five years and four months was manifestly excessive. I consider a sentence of imprisonment for two years is appropriate for this offending, having regard to a reduction of 25 per cent for the plea of guilty. I would reduce the non-parole period to imprisonment for 12 months.
There is good reason to suspend the sentence. However, having regard to the appellant’s response to supervision and that she has not previously offended, I would reduce the period of the bond to one year and nine months, which is effectively two years, as she has been under supervision at the date of this judgment for about three months. I would not vary the conditions of the bond.
I would allow the appeal and reduce the head sentence to imprisonment for two years, with a non-parole period of 12 months, suspended upon the appellant entering into a bond for a period of one year and nine months upon the same conditions as imposed by the sentencing Judge.
WHITE J: I agree that the appeal should be allowed and that the orders proposed by Sulan J should be made. I agree with the reasons of Sulan J.
DAVID J: I agree that the appeal should be allowed. I agree with the reasons of Sulan J and with the orders he proposes.