R v Walker
[2000] VSCA 117
•19 June 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 143 of 1999
| THE QUEEN |
| v |
| PAUL LESLIE WALKER |
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JUDGES: | ORMISTON, PHILLIPS and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 June 2000 | |
DATE OF JUDGMENT: | 19 June 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 117 | |
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CRIMINAL LAW – Sentencing – Kidnapping of 17 year old girl – Detention for 36 hours in bizarre circumstances – No coherent explanation provided – Six years’ imprisonment not excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr P.F. Tehan, Q.C. and Mr C. Pearson | Mulcahy Mendelson & Round |
ORMISTON, J.A.:
I will ask Phillips, J.A. to deliver the first judgment.
PHILLIPS, J.A.:
The applicant, who was born on 8 March 1963, was 35 years of age at the time of the offences with which he was charged by police on 4 October 1998. At the committal mention on 29 January 1999 the applicant pleaded guilty to the indictable offences of kidnapping, trafficking in a drug of dependence and recklessly causing serious injury. The matter was set down for plea in the County Court on 16 April 1999, the applicant remaining in custody in the meantime. A presentment was duly filed with three counts: count 1, kidnapping one to whom I shall refer as simply "Nicole" between 2 and 3 October 1998; count 2, recklessly causing Nicole serious injury on 2 October 1998; and count 3, trafficking in a drug of dependence (namely cannabis L) on or about 3 October 1998. The maximum penalty for kidnapping is 25 years' imprisonment, for recklessly causing serious injury 15 years' imprisonment and for trafficking in a drug of dependence 15 years' imprisonment and/or a fine of $100,000.
On 16 April the applicant pleaded guilty in the County Court to all three counts on the presentment and admitted 42 previous convictions from 13 court appearances. These previous convictions were not, however, for offences involving violence: they were offences in connection with the driving of a motor vehicle, for possession or use of a drug of dependence and failing to answer bail. The Crown did not formally open the case against the applicant, but there was discussion between counsel and the presiding judge about the circumstances of the offending. His Honour then adjourned the proceedings to obtain a psychiatric report.
On 16 June 1999, when the matter was re-listed, a psychiatric report from Dr Lester Walton dated 9 June 1999 was tendered and a plea in mitigation was made by counsel on behalf of the applicant. The applicant called his mother and his wife of some 13 years to give oral evidence and tendered, among other things, a psychological report from one Elizabeth Warren, together with certificates of the applicant's completion in prison of a number of rehabilitative programs dealing with drugs and alcohol in particular. There was also evidence from the applicant's erstwhile employer that he was willing to re-employ the applicant on suitable assurances being given that the applicant would stay drug and alcohol free. The employer had dismissed the applicant on 21 April 1998 for "unacceptable behaviour". For the Crown, a victim impact statement from Nicole was tendered and, after further discussion, the proceedings were adjourned for sentence to 18 June 1999.
On 18 June the applicant was sentenced to six years' imprisonment for the kidnapping, six months' imprisonment for the serious injury and six months for trafficking in a drug of dependence. This last was to be cumulative on the first, making a total effective sentence of six years and six months' imprisonment, of which the applicant was directed to serve a minimum term of four years and six months before being eligible for release on parole. A declaration was made of 258 days spent in custody to be reckoned as time already served under the sentence.
On 30 June last the applicant gave notice that he would be seeking leave to appeal against conviction and leave to appeal against sentence. This morning the first was abandoned by leave and the applicant proceeded only with the second.
The circumstances of the offending are set out in considerable detail in the sentencing judge's comprehensive reasons for sentence. What is involved is a substantial and continuing saga which commenced on Thursday 1 October 1998 and continued until the following Saturday. At about 7 p.m. on the Thursday, Nicole, who I might say was only 17 years old, was, on her own account, "at home on my own feeling bored", and so she decided to ring the applicant, who and whose wife she regarded as her friends. Nicole stated that she saw them nearly every day and the applicant's daughter sometimes came and stayed with her. The applicant's wife collected Nicole and drove her to the applicant's house, where they all had some drinks. At about 9 p.m. the applicant and Nicole left and drove to a friend's house in Sunshine, avowedly to collect some paint but, in the view of the judge, to collect some cannabis. Be that as it may, Nicole took the decision to stay the night at the applicant's place and at about 12.30 a.m. left with the applicant to go back to her house to collect clothes and pyjamas. Meanwhile a girlfriend of Nicole's had arrived to stay the night at Nicole's house and so, telling her friend that she would be back shortly, Nicole returned to the applicant's house "for half an hour to have a few more drinks". So much is only the context for what followed.
At about 2 a.m. on Friday 2 October, Nicole asked the applicant to take her home. He drove out through the backyard of the house into a paddock where he stopped, got out of the car and went to the boot. After summoning Nicole, he grabbed her, pushed her to the ground and jumped on top of her, sitting on her stomach, legs astride. He then tried to tie her hands with a belt or some such, saying, "I'm going to put you in the boot. Brad annoyed a few people when he was out and now he's inside you have to send him a message." Brad was Nicole's boyfriend who had recently gone to prison. The applicant said in his interview that Brad had been dealing in drugs.
Thus far, Nicole thought the applicant was not really serious, but, when he threatened for a second time to put her in the boot of the car, she started pulling away and resisting. The applicant then punched her in the face with his right clenched fist, hitting her on the right eye. Apparently that blow caused a black eye, and it is that (it appears from the discussion before the judge below) which is the subject of the count of recklessly causing serious injury. Somewhat curiously the applicant said at about the same time, "Don't let me hurt you."
By this time, according to Nicole, she had begun to be really frightened. She described herself as "petrified"; she just "freaked out". She started crying and pleading with the applicant not to put her in the boot. He then said, "Don't, you're making me feel bad. I don't want to do this, you're a good friend but I need the money." He pulled her to him and gave her a cuddle, as if to reassure her. He then said, "I can't back out of it even if I wanted to, I've already been given $500." According to Nicole, he spoke of getting another "$1,000 when they had finished with me". The applicant told Nicole that "they aren't going to hurt you" and when she doubted this, he assured her that he would stay with her. Apparently, they then sat talking for a while, the applicant saying, "Brad has got something of Skinny's or had done something to Skinny, I'm not sure what they wanted, but they wanted to sit you down and talk to you about where it was."
Despite his earlier attempts to do so, the applicant did not then tie Nicole up. Instead he put her in the passenger side of the car, still crying, scared and upset, according to her. The applicant drove the car into his backyard and took Nicole into the garage, closing the lift-up door behind them. With Nicole sitting on a chair, the applicant tied her up with her arms behind her back. He put rope around her wrists quite tightly "so I couldn't get out of it" and then blindfolded and gagged her. He then walked her out of the garage and helped her down a metal ladder into a hole in the ground. The applicant said that he would not leave her long, he was just going to telephone; but acting on his directions, Nicole sat down, with her legs up against her chest. She said the hole was very small, like a little box. The applicant then put what felt to her like a doona over her, but he took it off when she complained it was too hot. He left a light with her, although as she was blindfolded it is hard to see what comfort this could have been. After quitting the hole the applicant then "put something over the hole" which "sounded like it was concrete or something like that because it was very heavy and you could hear it scrape". Not surprisingly Nicole was crying again and, as she put it, "I was just really scared because I didn't know what was going to happen". She then heard the car start up and drive off.
About ten minutes later, Nicole heard the car come back. The applicant came to the hole and lifted the lid a little bit and said that he would be returning in a couple of minutes. Nicole pleaded with him to take her out because she was scared but the applicant put the lid back on and walked away. A short time later he came and gave her a cigarette. After the cigarette, the applicant "put some sort of bag, it felt like material, it was tight, around my face". Then he lifted her out of the hole and while she was standing there, suddenly, as she put it -
"I got smacked across the back of my head near my neck. It felt like someone's arm, not an object. I was hit fairly hard, but not that hard. I screamed and dropped to the ground and just laid there. I pretended I was unconscious so I wouldn't get hurt any more. I was so scared."
Then, as Nicole recalls it, someone picked her up. She was scooped up by someone placing arms under her back and legs and she was put in the boot of a car, and covered with two doonas. She heard the boot closed. At that stage she started to panic because she felt she could not breathe, having the gag in her mouth and the doonas over her and the bag. Terrified, she thought she was going to suffocate and die. Some time later she tried to struggle out of her bonds and she loosened them enough to pull the doonas off and the bag. She also pulled the gag down and pushed the blindfold up and searched the boot for some sort of boot release. That proving unsuccessful, she noticed that it was becoming daylight and she recognised that she was in the boot of her boyfriend's car. That car had been left at the applicant's place when Brad went to prison.
Once she was able to see, Nicole managed to untie her hands. She then started ripping aside the back seat to see if she could struggle into the car, but again was unsuccessful. Apparently the applicant found her and put rocks along the back seat to prevent her escaping, but after he left she continued with her efforts to get into the back seat. Again the applicant returned, and although Nicole crawled into the back seat, the applicant tied her up again, hands and feet. Again he left and again she managed to untie herself. Upon his return the applicant took her from the car and, putting a white bed sheet over her, walked her again to the hole. She could then see that it was like a concrete drain, with steel bars on the side as steps. The hole was behind the garage. The applicant put her back in the hole, shortly returning with food and drink. Nicole thought that by then it was about the middle of the day. He promised to release her at about 4 or 5 p.m., which she thought hopeful.
However, after some more hours in the hole, Nicole noticed it getting dark and again started to get frightened. She started screaming for help. After a while she fell asleep, but when she woke, it started to rain. The rain increased, and some of the water started coming into the hole through a drain. (According to the applicant in his interview, Nicole was indeed in a stormwater drain.) Nicole started yelling and screaming, thinking that she would drown. She turned the light off lest she get electrocuted, but she became soaking wet. She described herself as wet and shivering. She then checked the water level and when she found the water was not rising, she calmed down a bit. Indeed, she managed to drink some of the drain water by scooping it up.
By this time it was quite dark. The applicant had come back a couple of times and had checked on his victim, moving the lid a fraction. Nicole pleaded with him each time he returned: she asked him for a doona because she was saturated, but he did not answer. She was left in the hole, this time for the whole night. She said she did not sleep at all; just sat there in the dark, freezing and frightened.
By the time daylight came, the rain had stopped but Nicole was by then soaking wet. After some three or four hours of daylight, the applicant returned and said that Nicole would be able to go home at about 10.30, but the applicant said that he had to go to vote in the meantime. The applicant said that Nicole could be taken out of the hole provided he could blindfold her and gag her, to which she agreed readily enough so long as he would not put her in the boot of the car again. After leaving for some ten minutes or so, the applicant returned once more, took the lid off the hole, blindfolded Nicole and gagged her. He then took her to the garage.
When in the garage, Nicole was tied up so that she was spreadeagled on the ground. The applicant went and got her a drink and untied one of her arms so that she could drink it. He also brought her dry clothes to replace her wet ones. The applicant then stayed with Nicole in the garage, talking. He said: "Remember, I've got nothing to do with this. I've got a wife and kids that I will lose over this shit." Nicole was left in the garage, her hands untied but not her legs. She did not try to untie her legs because (she was later to say) she did not want to make the applicant angry. She was still very frightened.
Some time after noon, the applicant returned once more to the garage, telling Nicole this time that after he had gone to vote he would come back and take her home. When he returned he devised a means of her leaving the garage without his wife or children seeing her, telling her that he would meet her in a nearby street and drive her home. That is indeed what happened. As soon as she arrived home, Nicole telephoned her sister and subsequently went to the local police station where she reported the matter. On examination, she was found to have moderate bruising all over her body, rope burns to her wrists and ankles and a purple/black bruise around the left eye. On the Sunday, the applicant was arrested, interviewed and charged. In his interview, the applicant made admissions and stated that the reason for his kidnapping Nicole was so that he could steal money and cannabis from her. During his interview the applicant admitted selling two grams of cannabis to a young man living nearby for $40. This was the subject of count 3, trafficking in a drug of dependence.
Substantially, what I have recounted comes from the learned judge's sentencing remarks which, in turn, were based upon the statement made by Nicole to the police. The judge accepted Nicole's version of events notwithstanding "significant differences" between the applicant's account to the police and Nicole's, and that is not now challenged. Nicole's version of events was suitably summed up when she said, towards the end of her statement:
"This whole thing was incredible. I was absolutely scared and terrified. At times I thought I was going to be bashed, raped, drowned, suffocated, electrocuted and be killed. From the time that Paul [the applicant] assaulted me at the paddock until the end I was held against my will. I did not want to be there, I just wanted to go home. I don't know why Paul did what he did."
As the judge was moved to comment, "Neither, it seems, does anybody else".
This is one of the difficulties of this case: the lack of any real motive. I have already mentioned that in the course of his treatment of Nicole, the applicant allegedly said that he was acting for others, that he was being paid by them and so on. This was rejected by the judge, who said: "Needless to say there were no people paying you $1,500 to do anything", and so much appears to have been accepted by applicant's counsel on the plea. In his interview the applicant said that he kidnapped Nicole in order to steal money and cannabis from her. On the plea applicant's counsel said that this was not the real motive for the offences: it was submitted that the applicant targeted Nicole because he believed that she had supplied his younger daughter with cannabis. That, it appears, is what the applicant told the psychiatrist, Dr Walton. But, on the plea, the applicant did not himself give evidence; nor, it seems, did the applicant say as much to Nicole when he held her during the whole ordeal; nor, as the judge commented, did the applicant make mention of his belief about Nicole supplying drugs to his daughter when he was interrogated by the police. The judge concluded that "the part it played in what [the applicant] did is therefore questionable at best".
In the course of his interview with the police, the applicant claimed that he was "probably more out of it and more unaware of what I was doing than I realised"; that essentially "I just wanted a bit of extra money so I basically just wanted her dope off her and the money off her"; and that "I didn't want to hurt her in any way". During his interview he said:
"I mean it sounds stupid I mean the whole time it was just like a joke you know in a way. I mean a joke, a sick wrong joke".
Again:
"It should never have happened. I mean I just wanted her dope and her money to start with. I mean I never should have kept her and all that there and I don't know I can't explain any of it at the moment."
It was because the applicant's conduct was so bizarre and in the view of the judge his explanation "hardly less so" that his Honour called for a pre-sentence report from Dr Walton. The psychiatric opinion was that, although not driven by any psychotic process, the applicant's conduct reflected "an odd expression of this man's then anger, depression and general distress". Dr Walton's opinion, which the judge quoted, was as follows:
"Overall this man's prognosis is far from uncomplicatedly favourable. He needs to further address his longstanding problems with alcohol and drug abuse and he requires further psychiatric treatment. In terms of his personality, Mr Walker could not be described as a robust individual in terms of dealing with life's exigencies. In my opinion there is a continuing risk of recidivism."
Unfortunately, Dr Walton was not given the victim's statement or the record of interview. The long ordeal to which she was subjected was scarcely described in his report which said very simply:
" He [the applicant] tied up the victim and placed her in his back shed. I understand she was detained some 32 hours or so."
The psychologist who was retained by the applicant put the applicant's conduct down to the fact that he was "disinhibited and lacked judgment through excessive use of alcohol and amphetamines plus being two days without sleep". The applicant suffered, Ms Warren said, from three contributory clinical factors: anxiety, depression and anger. She also described his progress in prison as "almost as much progress as it is probably possible to make in gaol". It was put on behalf of the applicant to the sentencing judge that he was a long-term drug addict and alcoholic and shortly before this episode had relapsed after a period of abstinence - a relapse that had caused his dismissal from employment, which only made matters worse. On the day of the kidnapping the applicant had taken, it was said, alcohol, amphetamines and marijuana. Coupled with the lack of sleep in the preceding 48 hours, that combination, it was contended, caused him to behave as he did "and in a manner out of character".
The judge did not accept Ms Warren's "optimism". Speaking to the applicant, his Honour said he was by no means "convinced that you do not represent a continuing risk to others, particularly if you again revert to drugs". The judge accepted as a mitigating circumstance that the victim was prepared, after she had been given her freedom, to wait and allow the applicant to drive her home; he accepted too that the plea of guilty and the time at which it was made indicated remorse, remorse expressed as early as Saturday 3 October. The judge also accepted that the applicant's mother remained supportive and that his erstwhile employer was prepared to re-employ him if he mended his ways and remained sober and drug-free. Nevertheless his Honour concluded that there was a real need for specific deterrence and for general deterrence. The judge accepted that the injury inflicted was at the lowest end of the scale of serious injury and that the trafficking was at the lower end of the scale. But the kidnapping, said the judge, was very serious.
It is difficult, I think, to be critical of the judge's sentence on count 1. The maximum term of imprisonment for kidnapping is 25 years, as I have said, and the applicant was sentenced to serve six years in prison. On behalf of the applicant it was contended by Mr Tehan today that the sentence of six years was manifestly excessive, particularly having regard to two factors: the early plea of guilty, which saved his victim any further distress and the State the cost of a committal hearing as well as a trial, and the applicant's very good prospects of rehabilitation, Mr Tehan stressing Ms Warren's statement that the applicant had made "almost as much progress as it is probably possible to make in gaol", progress which, Mr Tehan said, had continued over the twelve months that had elapsed since sentencing. He pointed particularly to the applicant's having become literate, thereby overcoming a life-long disadvantage, and his determination not to allow drugs and alcohol to overtake his life again. He had his employer's support and his family's.
All this no doubt is very commendable and the applicant is to be applauded for the efforts he has made, and no doubt is making, towards rehabilitation. The difficulty is that this is a very serious instance of a crime which attracts a maximum penalty of 25 years' imprisonment, and, despite the factors relied upon by Mr Tehan, I cannot say that six years was outside the range of sentences properly open in the exercise of the sentencing discretion; indeed I think it entirely appropriate. As Mr Coghlan said, the judge took into account in his very careful sentencing remarks all that he should, and if he was guarded about the prospects of rehabilitation he was justified in that by Dr Walton's concluding remarks.
As for count 2, it was common ground before us that any sentence imposed on that count was properly made wholly concurrent with the sentence on count 1, and Mr Tehan addressed no separate or other argument in that regard.
As for count 3, the circumstances of the trafficking are by no means clear from the material available. What is clear is that the amount sold by the applicant was very small (only two grams), it was sold for $40, and of this the applicant may have returned $20 to Nicole before releasing her, he having spent $20 on petrol. As the judge remarked during the plea, in ordinary circumstances one might expect such offending to attract a non-custodial sentence. The applicant had previous convictions, it is true, for possessing and for use of a drug of dependence, but during argument this morning Mr Coghlan very fairly announced that the Crown would not be seeking to support the judge's sentence of six months' imprisonment on count 3. As mooted then, I agree that, in the very peculiar circumstances of this case, a fine of $250 is all that is called for on count 3. In saying that, I do not overlook the provisions of s.63 of the Sentencing Act.
In the result, I think that we should allow this application for leave to appeal against sentence in order to set aside the sentence on count 3 which the Crown does not seek to sustain. In lieu I would impose on count 3 a fine of $250. I would confirm the sentences of six years' imprisonment on count 1 and of six months' imprisonment on count 2. The total effective sentence would then be six years, and I would order that the applicant serve a period of four years before being eligible for parole. On my calculation the number of days to be reckoned as served under these sentences is 625 if reckoned until this day.
ORMISTON, J.A.:
I agree.
CALLAWAY, J.A.:
I also agree. I desire to add that the reasons given by Phillips, J.A. in relation to the sentence imposed on count 1 reflect the way in which Mr Tehan argued that branch of his case.
ORMISTON, J.A.:
The orders of the Court will be as follows:
The application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and is allowed in part.
The sentence imposed on count 3 is set aside and in lieu a fine of $250 is imposed. The sentences imposed below on counts 1 and 2 are confirmed. The total effective sentence is therefore a period of six years' imprisonment. It is ordered that the applicant serve a period of four years' imprisonment before becoming eligible for parole.
It is declared that 625 days shall be reckoned as already served of these sentences and it is directed that this be recorded in the records of the Court accordingly.
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