R v Kilmartin

[2003] QCA 471

SUPREME COURT OF QUEENSLAND

CITATION:	R v Kilmartin [2003] QCA 471
PARTIES:	R v KILMARTIN, Dale Anthony (applicant)
FILE NO/S:	CA No 175 of 2003 DC No 217 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING  COURT:	District Court at Ipswich
DELIVERED EX	29 October 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2003
JUDGES:	McMurdo P, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction abandoned Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – PURPOSE OF SENTENCE – DETERRENCE - where applicant convicted of four counts of deprivation of liberty and several property offences – where applicant sentenced to an effective sentence of six years imprisonment with recommendation for post prison community based release order after serving 2 ½ years of sentence - whether sentence manifestly excessive in all the circumstances
R v Willersdorf [2001] QCA 193; CA No 333 of 2000, 3 May 2001, considered
COUNSEL:	K M McGinness for the applicant L J Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant was convicted after a five day
trial held on 22 May 2003 in the District Court at Ipswich of

four counts of deprivation of liberty, two counts of armed
robbery, one count of unlawful use of a motor vehicle, four
counts of demanding property with menaces and one count of
fraud. The offences occurred between 1 February and 3
February 2002. He was sentenced to five years' imprisonment
for the counts of armed robbery and to lesser concurrent
sentences for the offences of deprivation of liberty and
unlawful use of a motor vehicle. He was sentenced to a
further 12 months' imprisonment for the counts of demanding
property with menaces and fraud, this sentence to be served
cumulatively. Sixty days spent in presentence custody was
deemed to be time already served under the sentence. The
applicant was recommended to post-community based release
after serving two and a half years of his sentence. In making
that recommendation the learned sentencing Judge took into
account the further 99 days or about three months the
applicant had spent in presentence custody which could not be
subject to a declaration under s 161 of the Penalties and
Sentences Act 1992 Queensland. All this means the
effective sentence imposed is one of six years' imprisonment

with a recommendation for parole after two and a half years.

The applicant was 32 at sentence and 31 when he committed the consideration are as follows. The complainants Westhead and Howie, who were about 26 and 27 years old, worked as cleaners. On their way to work, some time after midnight, they stopped at the Biala Clinic to obtain some needles to inject amphetamine. The applicant, who did not know the complainants, approached them when they were in Westhead's car and asked them to help him "do a job" to earn some money. The complainants said they were not interested, but the applicant persuaded them to give him a lift. They were rewarded with the applicant then pointing a knife at the back of their necks and threatening their lives and the lives of their families and girlfriends. The applicant added emphasis to the threats by obtaining their personal details from their wallets and telephones. He told them to drive him around various points in Brisbane before finally dropping them at their workplace. He then drove off in Westhead's car after arranging to collect them at the end of their shift. He demanded the complainants give him valuables including their wallets and licences. He removed money from their wallets, and although he later returned them, he kept the money.

offences. He has some relatively old minor criminal history
for drug offences and dishonesty for which he was fined. He
had not prior convictions for violence.

When the complainants arrived at work, they immediately rang them to meet him outside.

members of their family and girlfriends, telling them to leave
their homes at once because they were in danger. Westhead
also reluctantly spoke to his supervisor about what had
occurred after she noticed he was upset, nervous and teary.
She contacted her superior, who in turn, contacted police.

They left work early and accompanied the applicant to where he had parked Westhead's motor vehicle. The applicant again caused Westhead to drive him around. Police, having been notified by Westhead's employer, pulled over the vehicle and although they noticed that Westhead appeared to be upset and nervous, they could find no knife or weapon, and noticed that Howie was laughing with the applicant. Police searched the car and let the three occupants leave in it, not being persuaded that there was coercion, weapons, or duress involved. The complainants said they did not tell police that they had been threatened by the applicant because they were terrified by his earlier threats. This explanation was obviously accepted by the jury verdict and by her Honour in sentencing.

The applicant became more aggressive after the police search and renewed his threats to kill the complainants or their loved ones if they did not comply with this request. He coerced them to drive to the Transit Centre and obtained a bag from a locker. He told them the bag contained firearms and made Westhead carry it. During the drive around that ensued, the applicant demanded Westhead give him his mobile phone, and again, Westhead complied out of fear. Over the next two days, the applicant forced the complainants to drive him around the wider Brisbane area demanding they get amounts of money for him to buy drugs for his drug addiction. He forced Westhead to take items from the unit he shared with his girlfriend at Ipswich to pawn for money for drugs. A toaster was pawned at Cash Converters, Ipswich, for $20, and Westhead took a video recorder belonging to his girlfriend out of fear that he would be injured if he did not comply. The applicant forced Westhead to use his key card to obtain petrol, although the applicant well knew Westhead had no money left in his bank account at that time.

He next demanded that Westhead give his key card to the applicant's girlfriend to try to purchase cigarettes at a service station, and again, Westhead complied out of fear. The complainants remained with the applicant over the two day period, driving around at his request, even when Westhead was obviously dangerously tired.

Throughout that time, the applicant made continual threats and abused the complainants. At one point, he threw a phone at Westhead cutting him above his eye. On another occasion, he punched Westhead to the back of the head, and threw a packet of biscuits at him. It seems the applicant was driven by a desire to obtain money to purchase amphetamines and was at times, in an amphetamine induced rage.

During their ordeal, there were episodes where the complainants smoked cannabis, used amphetamines and drank alcohol with the applicant. At one point, Howie was allowed to return to his home, but Westhead remained in the applicant's presence throughout the two day period. The applicant stayed with Westhead in his home and controlled his movements and actions, even dictating when and where Westhead should sleep.

Both complainants were traumatised by the offences, especially Westhead. The learned primary Judge, who had the advantage of seeing the complainants give evidence, noted that Westhead's

distress was obvious both during the ordeal, and again, during
his testimony at trial. The applicant showed no remorse and
both complainants were subjected to a rigorous cross-
examination during the trial. The defence case was that this
was not an episode of coercion, but a voluntary, enjoyable,
drug-hazed extended romp for all involved.

In sentencing, the learned primary Judge noted that the charges brought did not really disclose adequately the extent of the criminality of the applicant's actions. Her Honour observed that the complainants were very scared of the applicant, and that Westhead, in particular, seemed terrified of him. Her Honour noted the applicant's lack of significant criminal history, but determined that the seriousness of the offences, his maturity at the time that they were committed, and his lack of remorse, required the significant penalty imposed.

Those observations were apposite. Although the applicant does not have a significant criminal history, nor does he have the benefit of mitigating factors such as immaturity, remorse and cooperation with the administration of justice. It seems that these offences were committed by him in an amphetamine-induced haze, sometimes flaring up into rages of violence.

Unsurprisingly, the numerous cases to which we have been referred by counsel are not truly comparable to the bizarre set of circumstances here. Conduct of this sort undoubtedly warrants a salutary penalty to deter this applicant and others who would behave in such a manner. The applicant abused the complainants over a lengthy and extended period. The complainants were vulnerable because of their own drug use and marginal behaviour. The applicant knew they would be reluctant, in those circumstances, to seek help from the police, and he further exploited this by threatening, not only them, but those close to them. Her Honour observed that the complainants were physically smaller than the applicant.

Perhaps the closest comparable sentence to which we have been which he pleaded guilty at the conclusion of the trial, and the penalty on those offences was ordered to be served concurrently. He had some limited previous criminal history, including offences of dishonesty and breaches of domestic violence. He too showed no remorse in his conduct at the trial. The sentence of four years' imprisonment imposed in that case, which involved facts less serious than the lengthy and persistent episode of violence and terror inflicted here, does not establish that the sentence in this instance is manifestly excessive.

referred is R v Willersdorf [2001] QCA 183; CA No 333 of 2000;
3 May 2001. The applicant there was found guilty of
deprivation of liberty, robbery with personal violence, two
counts of wilful damage, and one count of stealing. He was
found not guilty of charges of aggravated indecent assault,
rape and indecent assault. He was sentenced to four years'
imprisonment, a sentence found not to be manifestly excessive.

Counsel have also referred in some detail to the case of R v El Masri [2003] QCA 52; CA No 360 of 2002; 19 February 2003, where the offender was 22 years old and had a difficult

background having migrated from Lebanon. El Masri pleaded
guilty albeit late. The penalty of five years imprisonment
imposed on El Masri was found not to be manifestly excessive
and the Court noted that a penalty of six to seven years could
have been imposed before discounting for the mitigating
circumstances which applied in that case but do not apply
here. The offences committed by El Masri involved two
episodes against one complainant. Although the facts of those
episodes were perhaps more serious than any individual offence
here, they were not committed over such a lengthy period and
against two direct victims and indirectly many other victims
close to the complainants. The sentence imposed on El Masri
does not indicate that the sentence imposed here upon a mature
offender, who did not cooperate with the administration of

justice, is manifestly excessive.

It follows that I would refuse the application for leave to
appeal against sentence.
WILLIAMS JA: I agree.

MACKENZIE J: I agree.

THE PRESIDENT: That is the order of the Court.