R v Spiers

[2008] NSWCCA 107

New South Wales
Court of Criminal Appeal

CITATION:	REGINA v Phillip Ronald SPIERS [2008] NSWCCA 107
HEARING DATE(S):	12 March 2008
JUDGMENT DATE:	23 May 2008
JUDGMENT OF:	Giles JA at 1; Adams J at 49; Latham J at 52
DECISION:	(1) Appeal allowed. (2) Set aside the sentences imposed in the District Court and in lieu thereof sentence the respondent – (a) for the kidnapping offence, imprisonment for a non-parole period of 6 years 9 months commencing on 29 October 2007 and a further term of 2 years 3 months; (b) for the offence of administering a stupefying drug, to imprisonment for a non-parole period of 7 years 6 months commencing on 29 January 2008 and a further term of 2 years 6 months; (c) for the offence of aggravated sexual assault, to imprisonment for a non-parole period of 8 years commencing on 29 October 2008 and a further term of 3 years. The overall sentence is a non-parole period of 9 years and a total sentence of 12 years. The earliest date of eligibility for parole is 28 October 2016.
CATCHWORDS:	Sentencing - Crown appeal - kidnapping, administering stupefying drug and aggravated sexual assault - whether sentence manifestly inadequate - failure fully to assess objective criminality - regard to remorse and concern about apprehension - failure sufficiently to recognise general deterrence - insufficient increase for Form 1 offences - in any event manifestly inadequate - offender resentenced.
CASES CITED:	Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; R v Cage [2006] NSWCCA 304; R v Hathaway [2005] NSWCCA 368; R v Johnson (CCA, 16 May 1997, unreported); R v Reyes [2005] NSWCCA 218; R v Shorten [2005] NSWCCA 106,
PARTIES:	The Crown - Appellant Phillip Ronald Spiers - Respondent
FILE NUMBER(S):	CCA 2007/5240
COUNSEL:	D Arnott SC - Applicant P Byrne SC - Respondent
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions - Applicant Greg Murray - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 06/31/0417
LOWER COURT JUDICIAL OFFICER:	Berman DCJ
LOWER COURT DATE OF DECISION:	31 October 2007 (Sentence)

CCA 2007/5240
DC 06/31/0417

GILES JA
ADAMS J
LATHAM J

Friday 23 May 2008

Regina v Phillip Ronald SPIERS

Judgment

1 GILES JA: This is a Crown appeal against sentences imposed in the District Court, on the ground that the sentences are manifestly inadequate.

2 The respondent was charged with three offences alleged to have been committed on 2 October 1997. The first was that he “did take away [the complainant] with intent to hold her for advantage”, an offence under s 90A of the Crimes Act 1900 (since repealed). The second was that he “did unlawfully administer to [the complainant] a stupefying drug, namely Panadeine Forte with intent to enable [him] to commit an indictable offence, namely, sexual intercourse without consent”, an offence under s 38 of the Crimes Act. The third was that he “did have sexual intercourse with [the complainant] without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence [he] did threaten to occasion actual bodily harm to [the complainant] by means of an offensive weapon, namely a knife”, an offence under s 61J(1) of the Crimes Act.

3 I will refer to the offences by their short descriptions of kidnapping, administering a stupefying drug and aggravated sexual assault. The respondent pleaded guilty to the three offences, and asked that a further four offences on a Form 1 be taken into account in his sentencing for the offence of administering a stupefying drug. The further four offences were, by their short descriptions, one offence of aggravated robbery, two offences of obtaining a benefit by deception and one offence of assault.

4 The maximum penalty for the kidnapping offence was 20 years imprisonment or, if it was proved to the satisfaction of the judge that the person detained was thereafter liberated without having sustained any substantial injury, 14 years imprisonment. The maximum penalty for the offence of administering a stupefying drug was 25 years imprisonment. The maximum penalty for the offence of aggravated sexual assault was 20 years imprisonment.

5 The respondent was sentenced -

(a) for the kidnapping offence, to imprisonment for 6 years commencing on 29 October 2007 by way of a non-parole period of 4 years and a further term of 2 years;

(b) for the offence of administering a stupefying drug, to imprisonment for 6 years commencing on 29 October 2008 by way of a non-parole period of 4 years and a further term of 2 years; and

(c) for the offence of aggravated sexual assault, to imprisonment for 6 years commencing on 29 October 2009 by way of a non-parole period of 4 years and a further term of 2 years.

6 The overall sentence was imprisonment for a non-parole period of 6 years and a further term of 2 years.

The offences

7 In October 1997 the respondent was aged 32, a married man with two small children. The complainant was aged 18, living with her parents and working as a check-out operator at a supermarket.

8 The respondent approached the complainant when she parked her car to go to work at about 10.15 am. He produced a knife, took her car keys, opened the boot of the car and pushed her so that she fell into it. The complainant begged him “Don’t do this to me”, but he said “If you do what I tell you, you won’t get hurt”. He shut the lid of the boot down, locking the complainant inside.

9 The respondent drove the car to an isolated location. He opened the boot, and told the complainant “I have to tape you up ‘cause you screamed”. The complainant promised not to scream, but he bound her arms and legs with duct tape and also placed the tape over her eyes and mouth. At some point before binding her legs he removed her underpants and pushed the skirt she was wearing up to her waist.

10 Before binding the complainant’s mouth the respondent put tablets into it, saying “These will help you sleep, so you won’t remember as much and it won’t hurt”. The complainant asked what the tablets were, and the respondent said that they were Panadeine, Panadeine Forte, or a similar name. The complainant asked for something to drink, and some liquid was tipped into her mouth which the respondent said was scotch or whisky. The respondent said, “I’m not going to hurt you; I just want to have sex ‘cause I have problems with girls”.

11 The boot was closed, and the respondent drove the car to his home and into its garage. It was a hot day, and the complainant was affected by the heat and the tablets and alcohol. She was terrified of what had occurred and what was about to occur, and the agreed statement of facts recorded that she “felt paralysed by fear, so great was her terror”.

12 Inside the garage the respondent removed the tape from the complainant’s mouth. He asked her if she had a boyfriend and said, “Kiss me like I’m your boyfriend”. He forced his mouth onto hers and pushed his tongue inside her mouth; the complainant did not resist as she was terrified of being hurt if she did not do as he said. The respondent then pushed his penis into her mouth and pushed it in and out for a few seconds.

13 The respondent lifted the complainant out of the boot and placed her on the floor. Hoping to deter him, the complainant said that she had her periods. The respondent said that he did not care, and removed the tampon from her vagina. He pushed his penis inside her vagina and moved it in and out for a minute or so, then turned her onto her stomach and reinserted his penis into her vagina from behind and ejaculated.

14 The respondent then obtained a liquid, which smelt like methylated spirits, and used it to wipe down the complainant’s body and flush out her vagina. He told her that he had wiped down her car as well and that the police would never catch him.

15 The respondent then demanded the telephone number of the complainant’s mother and the PIN numbers for the complainant’s ATM cards. They were told to him or he obtained them from the complainant’s purse. He removed the Bankcard from the purse. He took a gold bangle and gold bracelet from the complainant’s arm and her watch from the other arm, and other items from her car. The jewellery had a value of $1,670.

16 The respondent taped the complainant’s mouth again, replaced her in the boot of the car, and drove to another location. There he removed most of her clothes and shut the boot again. He left the complainant semi-naked and still bound and gagged in the boot of the car.

17 At about 12.30 pm the respondent rang the complainant’s mother and told her that the complainant had not turned up to work that morning. This caused her mother considerable anguish, and the family began to search for the complainant or her car. The police were involved and they too began to search.

18 At about 2.30 pm the complainant’s mother received another telephone call from the respondent, in which he told her where the car was to be found. The car was found, and the complainant was taken to hospital. She had sustained a number of bruises and grazes, her genitalia were swollen, inflamed and tender, and on testing alcohol, paracetamol, morphine and codeine were present in her blood from the drink and drug which had been administered. She was exhausted and extremely distressed and frightened.

19 That evening the respondent again telephoned the complainant’s home. The call was answered by the complainant’s aunt, who was asked “Did you find [the complainant] yet?” The aunt said ”yes”, and the respondent hung up.

20 On the next day, 3 October 1997, a call was answered by the complainant’s father. The caller said “I’m the person responsible for [the complainant]. She’s got no worries; I’ve got no diseases except a mental one. I’m going to return [the complainant’s] property. I’ll post it or let you know where to find it.” None of the stolen property was recovered. The agreed statement of facts did not specifically state that the respondent was the caller, but from the inclusion of this in the agreed statement he must have been.

21 On the afternoon of 2 October 1997, and again on 3 October 1997, the respondent attempted a number of transactions withdrawing money from the complainant’s bank account. Two were successful, in a total amount of $800.

22 The principal offences will be evident from this account. Taking the jewellery and other items constituted the Form 1 offence of aggravated robbery, the withdrawals constituted the two offences of obtaining a benefit by deception, and the use of the methylated spirits constituted the offence of assault.

Events thereafter

23 Police investigations were unable to identify the offender at this time. In 1998 another man was arrested and charged, essentially on the basis of coincidence and tendency evidence, but the prosecution was terminated by the Director of Public Prosecutions.

24 In April 2005 a woman who had been in a relationship with the respondent provided information to the police, and in September 2005 she provided to them a stud earring worn by the respondent which enabled a DNA comparison with material in the complainant’s car. The respondent was arrested in December 2005.

25 The information provided to the police included that the respondent had said to the girlfriend, as the reason for declining to be filmed for advertisements relating to his work, that he “did something a long time ago that I’m not proud of and I don’t want to be put in the position that I could be recognised”. The girlfriend didn’t know what to think, and over the following weeks asked questions of the respondent from time to time. Some weeks later, when asked what he had done, the respondent said “I raped a girl from Maitland”. When asked why he had done it, the respondent told the girlfriend that he had been bitten by a funnel web spider and had been having headaches at the time and was a very angry person. The respondent spoke of of what he had done, including that he had taken the girl back to his garage, that he had tied the girl up and blindfolded her, and that “I had her in a ‘doggy’ position … so she wouldn’t be constantly looking at my face and remember it and recognise me”. In answer to one of the girlfriend’s questions, the respondent said that he was under the impression that the girl was actually enjoying what he was doing to her because she was pushing back onto his penis while he was having intercourse with her. At a later time, when the girlfriend asked whether police might have his DNA, he replied, “I washed her out with metho”.

26 In the summary in the agreed statement of facts -

“Over the weeks, the offender told [the girlfriend] that, after returning the girl to Maitland, he had ‘phoned her father and told him where she was and that she was not hurt. He said that he had kept some of her jewellery and her keycard. He said that he had made a deal with the girl that if she didn’t tell the police he would send her things back, but had thrown her things in a public garbage bin after seeing an identikit picture in a newspaper that looked like him, and realising that she had gone to police. The offender told [the girlfriend] that he had subsequently grown a beard and moustache and attempted to alter his appearance.
In one conversation, [the girlfriend] asked the offender how he would feel if he was walking down a street wondering if the person who had passed him or was about to pass him was the one who raped him. The offender replied that the girl didn’t have to worry about that because the police had charged some bloke with his crime and he had gotten away with it.”

The respondent’s apprehension

27 When arrested the respondent said to the police, “You have got the right person”, and that “it was this body that did it but it was not this person. I’d been very sick”. He gave the explanation that he had been bitten by a funnel web spider and had been suffering from headaches, and “I just hated the world and why I lashed out in the way I did, [I] don’t know”. He said that he was sorry for what he did, that he would have “come and seen you guys before this” but for his two children, and -

“What I did to her was wrong, and I am saying this of my free will. I just don’t know why it happened. It is not the kind of person I am. It’s never been the kind of person I was. I’ve been struggling with this ever since. I can’t imagine what she goes through. I hope that, you know, she’s gotten through it and she’s gotten the help she needed. I wish to God I could explain to myself let alone anyone else why. I can’t explain, you know …

28 In the record of interview the respondent admitted some of what had occurred according to the complainant, but denied recollection of matters such as drugging the complainant, forcing her to consume alcohol, using a knife, binding her with duct tape, forcing her to fellate him and robbing her. He gave details of the spider bite and going to hospital and of the headaches and treatment by taking Panadeine Forte, and said that his incomplete memory of what happened was like a heap of short movies and that it was like watching a movie of himself; he had thought at one stage that he had just had a weird dream or a nightmare but when he saw it in the papers “I thought well it is for real”. The thrust of what he said was that the dream-like events were attributable to the spider bite and headaches.

The remarks on sentence

29 The sentencing judge gave an account of the offences. He declined to find that the respondent was acting in a confused state, and said that he was “acting very rationally indeed” and that there was no evidence from those close to the respondent that he was particularly angry at the time. He referred at some length to hospital records and expert evidence concerning the spider bite and headaches and the respondent’s condition in September-October 1997 and any connection with the offences. He was not satisfied that there was any connection, finding that the respondent “did not commit these offences because he was bitten by a spider; he did not commit these offences because he was suffering from viral meningitis; he committed these offences because he wanted to have sex”.

30 The judge nonetheless accepted that what he described as “these most serious offences” were “very much out of character” for the respondent, and that -

“He appears to have been, in every other aspect, a man of good character, a hard worker, a family man and a loving and caring father who doted on his children. His current wife and his former wife both said that he had never been violent towards them and, indeed, because of his father’s violence the offender was himself very much against violence.”

31 The judge said it was apparent that the offences were well planned, having been committed when the respondent’s wife and children were not home and with prior obtaining of a knife, a glove and duct tape. He said that the respondent “was waiting for a woman so that he could kidnap, drug and rape her”.

32 The judge dealt at some length with the kidnapping offence. He was satisfied that the physical injuries suffered by the complainant were substantial; thus the maximum penalty was imprisonment for 20 years. He referred to the time for which the complainant was detained, the very great terror she would have felt, the respondent’s purpose of having sexual intercourse (with a reminder to himself not to double count with the other offences) and the distress caused to the complainant’s family. Having earlier described the offence as “a most serious example of a most serious offence”, he found that objectively it was “one of the most serious examples of such an offence it is possible to imagine”.

33 It is appropriate to set out the judge’s remarks thereafter -

“There is no doubt about the maximum penalty for the next offence I have to consider, that of administering a stupefying substance with intent to commit an indictable offence, that is 25 years imprisonment. The offender’s purpose seems to have been twofold, not only to facilitate the commission of his ultimate intention but also to reduce the chances that he would be detected. Thus [the complainant] recalls the offender telling her that he was giving her the drugs ‘so you won’t remember as much’.
The gravity of offences such as these is not only that the offender has rendered [the complainant] unable to resist and made it harder for her to identify him, but also there must be due recognition of the fact that the offender appears to have completely disregarded any possible consequences from [the complainant] of having been forced to take large quantities of drugs which had not been prescribed for her.
Of course this offence is the one which has matters on a Form 1 attached to it. One of those matters, aggravated robbery, is a most serious offence in its own right but the fact that the offender committed other offences, including one the following day, is important in assessing his overall criminality because of its relevance to the offender’s attitude to what he had done. This is not a case where the offender, having kidnapped, tied up, drugged and raped a young woman, immediately felt sorry for what he had done. Instead he took the opportunity of taking as much money as he could from her bank accounts. Nor did he seem to care that she may place sentimental value on the items of jewellery he had taken. Despite telling [the complainant’s father] that the property would be returned, that never happened.
So now we come to the offence of aggravated sexual assault, an offence carrying a maximum penalty of 20 years imprisonment. This was an offence of penile vaginal intercourse in which the offender ejaculated and again being careful not to double count, was committed by the offender in circumstances where the complainant was helpless to resist.

As will be obvious from what I have said so far, there is a great deal of overlap between the three offences, with elements of one offence being aggravating features of another, but there is only one course of conduct here, albeit a lengthy and seriously criminal one.
I am satisfied that the offender is remorseful for what he has done. The offender admitted from the outset to police that they had the right person and pleaded guilty at an early stage recognising that by doing so the complainant would be spared the prospect of having to give evidence at trial. The plea of guilty is not only evidence of remorse, but has a significant utilitarian benefit which should be reflected in the appropriate discount from the sentence I would have imposed. In order to reflect the utilitarian benefit of the offender’s pleas of guilty, I will impose a sentence which is approximately 25 per cent less than it would otherwise have been.
An important factor of course in this case concerns the fact that these offences were committed almost exactly ten years ago. This is not a case where the offender has spent every day since then in fear of the knock on the door. He clearly thought, and he told [the girlfriend], that he had got away with it. But on the other hand, there was evidence to suggest that, at various times in the offender’s life, he had been troubled by what he had done and the prospect that eventually this day would come.
The delay has also enabled the offender to demonstrate that these offences are most unlikely to be repeated. The fact that there has been nothing of this nature in the last ten years suggests, not only that there are good prospects for rehabilitation but that rehabilitation has already been achieved.
Mr Rosser asks that I find special circumstances in this case. I will do so only for the purpose of ensuring that the statutory ration [sic] remains for the overall sentence which necessarily involves partial accumulation. It is important to remember that not only must the head sentence reflect the objective gravity of an offender’s conduct, but so must the non parole period. The effective non-parole period I will shortly announce is the least which I consider properly reflects the gravity of the offender’s conduct.”

Consideration

34 There are four particular matters of concern in the sentencing of the respondent.

35 First, while the judge expressly assessed the kidnapping offence as objectively very serious, he did not overtly assess the objective criminality of the other offences. He did refer to the offences globally as most serious offences, in relation to the offence of administering a stupefying drug to “the gravity of offences such as these” and to the respondent’s course of conduct being a seriously criminal one, and I do not suggest that he treated the offences of administering a stupefying drug and aggravated sexual assault lightly. But assessment of the objective criminality of an offender’s conduct is fundamental to arriving at the proper sentence, providing a measure against the maximum penalty prescribed by the legislature and a basis for consideration of the offender’s subjective circumstances and prospects of rehabilitation: see R v Cage [2006] NSWCCA 304 at [17] and cases there cited. In the absence of clear attention to the objective seriousness of the offences other than the kidnapping offence, what were serious offences may not have been fully treated as such.

36 Secondly, while the judge was satisfied that the respondent was remorseful for what he had done, regard to the events after commission of the offences rather qualifies the remorse at the time of sentencing. The respondent was not proud of what he had done, but his view of what he had done was such that he was able to tell the girlfriend that he thought the complainant was enjoying it. He took care lest he be recognised, and his reply when the girlfriend asked how he would feel if he was walking down a street wondering if the person who had passed him or was about to pass him was the one who raped him was quite heartless towards the complainant. Further, true remorse for what he had done was hardly consistent with telling the girlfriend that “because the police had charged some bloke with his crime [and] he had gotten away with it”. Similar qualification must come from the respondent’s position that his conduct was attributable to the spider bite and headaches, which the judge did not accept; and the respondent was able to tell the girlfriend things which he told the police he could not remember. Remorse voiced upon apprehension, but without full acknowledgment of the offence, is less than true contrition for offending.

37 Thirdly, and linked with what I have last said, in his reference to the delay of ten years during which, although not in fear of a knock on the door, the respondent had been troubled by what he had done and the prospect “that eventually this day would come”, the judge appears to have regarded being troubled during the period of delay as a matter in favour of the respondent. That is not so. As was said of delay in R v Hathaway [2005] NSWCCA 368 at [43] -

“ … it is only the suspense or uncertainty which follows the intervention by the authorities, including … arrest which is relevant. … Where an offender remains silent hoping that the offences will not be discovered a reduced sentence is for this reason inappropriate: see R v Webster [2005] NSWCCA 110”.

38 To the same effect see R v Shorten [2005] NSWCCA 106 at [19] per James J, Hislop and Hall JJ agreeing -

“It is well settled that the only state of suspense or uncertainty which will be relevant is any state of suspense or uncertainty experienced by the offender after he has been arrested or after it has been indicated to him by some person in authority that he is likely to be prosecuted for the offence. Any suspense or uncertainty on the part of an offender as to whether his committing of the offence will ever be detected is not to be taken into account. See Kay [ R v Kay [2004] NSWCCA 130] especially at paras (30) to (33) and R v Law (Queensland Court of Appeal) (1995) 84 A Crim R 142 at 145 per curiam.”

39 The fourth matter is deterrence. While the delay enabled the judge to conclude that it was unlikely that the respondent would re-offend, that was perhaps not properly regarded as rehabilitation: see R v Johnson (CCA, 16 May 1997, unreported). More to the point, while the judge was entitled to consider that personal deterrence was not a sentencing consideration, at that point in his remarks he did not refer to general deterrence.

40 At the commencement of the remarks the judge observed that it was for the courts -

“ … to react appropriately to offences of this kind, not only to deter others who might be tempted to give in to their lustful desires by dragging a woman off the street and raping her, but also to mark in a very concrete way the right of women to be free to live in safety.”

41 But he did not return to general deterrence when considering the sentences to be imposed, an omission given point by the specific attention to the respondent’s rehabilitation. It should have been emphasised, and may have been insufficiently recognised. Particularly is that so in the case of the offence of administering a stupefying drug, for which general deterrence has been said to be of importance: R v Reyes [2005] NSWCCA 218 at [81].

42 To these matters may be added that the sentence for the offence of administering a stupefying drug called for marked increase in the penalty in taking into account the matters on the Form 1. The judge recognised that the aggravated robbery was a most serious offence in its own right, and that taking as much money as he could from the complainant’s bank accounts was important in assessing the respondent’s overall criminality. It was, because it had little to do with wanting to have sex, and the commission of the offences extended into the next day. Accepting that the judge could feel it unnecessary to give greater weight to personal deterrence, it remained that the community was entitled to extract retribution for these serious offences: Attorney General’s Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR146 at [42]. The sentence of a non-parole period of 4 years and a further term of 2 years, when the maximum penalty for the offence of administering a stupefying drug was 25 years imprisonment, is remarkably lenient for the principal offence and does not suggest a marked increase to take account of the offences on the Form 1.

43 These matters provide the explanation, it seems to me, for sentences which were indeed manifestly inadequate. The judge correctly took care to guard against double counting, but even so each of the offences was objectively one of serious criminality. The respondent’s subjective circumstances, including remorse albeit qualified in the way I have described, were in his favour, but could not soften the seriousness of the offences and the need for general deterrence to an extent justifying the sentences imposed; all the more so when the offences on the Form 1 were to be taken into account in sentencing for the offence of administering a stupefying drug. Notwithstanding the overlap between the offences in that the purpose of the kidnapping and the administration of the drug were the sexual gratification, the offences were distinct and the totality of the objective criminality was not met by the sentences.

44 In my opinion, from the combined effect of the matters to which I have referred but in any event because the sentences were so inadequate that there must have been an error in the exercise of the sentencing discretion, this Court should intervene. I so conclude with full appreciation of the restraint applicable to Crown appeals, see for example Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [62] per Kirby J.

Resentencing

45 I agree with the trial judge’s finding that the kidnapping offence was objectively very serious. While the judge found that the complainant suffered substantial injury, when care is taken to avoid double counting her injuries upon liberation were at a low level. Even bearing that in mind, a significant increase in the sentence imposed by the trial judge is required. The offence of administering a stupefying drug was also objectively serious, in particular from the nature of the intended indictable offence and the lack of concern for the effect the combination of the drug, the alcohol and the conditions of containment might have on the complainant. The offence of aggravated sexual assault was a particularly serious offence.

46 I proceed on the basis that personal deterrence is not called for, and that there is the qualified remorse which I have earlier described. General deterrence is an important consideration. In my opinion the sentence imposed for the kidnapping offence, with care taken not to double count for the sexual assault and administration of the drug, after an approximately 25 per cent discount should be 9 years imprisonment. With like discount, the sentence imposed for the offence of administering a stupefying drug, taking into account the offences on the Form 1, should be 10 years imprisonment, and the sentence imposed for the offence of aggravated sexual assault should be11 years imprisonment.

47 There should be some accumulation to mark the distinct nature of the offences, and as the judge did I find special circumstances in the accumulation and adjust to bring about the statutory ratio for the overall sentence. I have exercised the restraint appropriate to re-sentencing on a Crown appeal the sentences and overall sentence imposed at trial would properly have been greater.

Orders

48 I propose the orders -

1. Appeal allowed.

2. Set aside the sentences imposed in the District Court and in lieu thereof sentence the respondent –


(a) for the kidnapping offence, imprisonment for a non-parole period of 6 years 9 months commencing on 29 October 2007 and a further term of 2 years 3 months;

(b) for the offence of administering a stupefying drug, to imprisonment for a non-parole period of 7 years 6 months commencing on 29 January 2008 and a further term of 2 years 6 months;

(c) for the offence of aggravated sexual assault, to imprisonment for a non-parole period of 8 years commencing on 29 October 2008 and a further term of 3 years.


The overall sentence is a non-parole period of 9 years and a total sentence of 12 years.

The earliest date of eligibility for parole is 28 October 2016.

49 ADAMS J: I agree with the conclusion of Giles JA that the sentences imposed in respect of the kidnapping and the sexual assault offences were unduly lenient and such as to require the intervention of this Court and with his Honour’s reasons for reaching that conclusion. I also agree with the overall sentence proposed by his Honour.

50 However, I am unable to agree with the proposed sentence for the stupefying drug offence. In my view this offence, though certainly serious, is very much less serious than either the kidnapping or the sexual assault charge. I note that the maximum term of imprisonment for each of the latter charges is 20 years, whilst that for the former is 25 years but this is of no use in comparing in this particular case the relative seriousness of the sexual assault and the kidnapping offences with that of administering the drug. The seriousness of that offence pales in comparison with brutal and sustained attack on the victim’s personal integrity and the cold-blooded deliberately induced terror inflicted by the circumstances of the kidnapping and the nature of the sexual assault.

51 It is difficult to assess the criminality of administering the Panadeine Forte and the alcohol separately from the circumstances of the kidnapping and detention of which it formed an inextricable a part. However, I regretfully differ from my colleagues in thinking that – even taking the Form 1 offence into account – the sentence for stupefying drug count could appropriately approach those applicable to the other offences. Accordingly, I would dismiss the appeal against the sentence imposed for administering the stupefying drug. This consequence reflects my attempt to separate this offence from the other offences under consideration and necessitates, in my view, extending the accumulation periods proposed by Giles JA to achieve the same ultimate result, since otherwise the effective sentence would fail to reflect the seriousness of the respondent’s overall criminality. As I am in the minority, however, it is not necessary for me to descend into this level of detail.

52 LATHAM J: I agree with Giles JA.

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