Regina v Drummond, Crook and Taranto

[2002] NSWCCA 413

CITATION:	Regina v Drummond, Crook & Taranto [2002] NSWCCA 413
FILE NUMBER(S):	CCA 60608/01; 60671/01; 60592/01
HEARING DATE(S):	9 October 2002
JUDGMENT DATE:	9 October 2002
PARTIES :	Regina Martin Lee Drummond Suzanna Louise Crook Graham John Taranto
JUDGMENT OF:	Sperling J at 39; Buddin J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0503
LOWER COURT JUDICIAL OFFICER :	Cooper DCJ

COUNSEL :	P Ingram (Crown) Drummond (In Person) Crook (In Person) TS Corish (Taranto)
SOLICITORS:	SE O'Connor (Crown) Alexanders Lawyers (Taranto)
CATCHWORDS:	Appeals against sentence - applicants convicted at trial of offence of detain with intent to hold for advantage. DRUMMOND - major role - on parole - lengthy criminal record - challenge to findings of fact - not manifestly excessive CROOK - significant role - favourable subjective features - challenge to findings of fact - not manifestly excessive TARANTO - lesser role - sentence reduced
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900
CASES CITED:	R v Elhalabi (2001) NSWCCA 516 R v McGourty [2002] NSWCCA 335 R v Moffitt (1990) 20 NSWLR 114 R v Richards (1981) 2 NSWLR 464
DECISION:	In respect of Martin Drummond: Grant leave to appeal. Appeal dismissed. In respect of Suzanna Crook: Grant leave to appeal. Appeal dismissed. In respect of Graham Taranto: Grant leave to appeal. Appeal allowed. Sentence imposed in District Court set aside. Sentence the applicant to imprisonment for three years to commence on 2 August 2001 and to expire on 1 August 2004 with a non-parole period of two years and three months to commence on 2 August 2001 and to expire on 1 November 2003 at which time the applicant will be released on parole.

60608/01
60671/01
60592/01

SPERLING J
BUDDIN J

9 October 2002

REGINA v MARTIN LEE DRUMMOND

REGINA v SUZANNA LOUISE CROOK

REGINA v GRAHAM JOHN TARANTO

Judgment

1 BUDDIN J: The applicants Martin Drummond, Suzanna Crook and Graham Taranto, together with Janice Taranto, were jointly tried upon an indictment which alleged that they each did detain Kathleen Dalton with intent to hold her for the advantage of Martin Lee Drummond. The applicants were each convicted by the jury whereas Ms Taranto was acquitted. Pursuant to s 90A of the Crimes Act 1900 (which was in force at the relevant time) the maximum penalty available for the offence was 20 years’ imprisonment. In the event that no substantial injury was occasioned to the victim then the maximum penalty was one of 14 years’ imprisonment. The Crown did not assert that there had been any substantial injury and the sentencing judge made it clear, in those circumstances, that he would proceed to sentence the applicants upon the basis that the lower maximum penalty was applicable.

2 The applicant Drummond was sentenced to imprisonment for four years and four months with a non-parole period of three years and three months to commence on 29 December 2000 which was the date upon which he was arrested and went into custody.

3 The applicant Crook was sentenced to four years’ imprisonment with a non-parole period of two years to commence on 28 August 2001 which was the date upon which she was remanded in custody following her conviction by the jury.

4 The applicant Taranto was sentenced to imprisonment for three years and eight months with a non-parole period of two years and nine months to commence on 2 August 2001. This date was selected to give effect to a period of pre-trial custody.

5 It is to be observed that the sentencing judge made a finding of “special circumstances” in favour of the applicant Crook. His Honour declined to make such a finding in respect of either of the other applicants. No substantial complaint is raised in this Court about that aspect of the matter.

6 The applicants were convicted after a trial which lasted for just over two weeks. Originally each applicant filed a Notice of Appeal against both conviction and sentence. Each now seeks leave to appeal against sentence only. None of the applicants has expressed any remorse or accepted responsibility for the offence in respect of which they were convicted. That fact simply disentitles them to any claim that the sentence might, on that basis, be discounted. The consequence is however that the sentencing judge was left to determine the relevant facts in accordance with the jury’s verdict.

7 The Crown case, it would appear, depended substantially upon the evidence of the victim, Ms Dalton. The evidence of Ms Dalton was accordingly of critical importance to the facts which the sentencing judge had to determine. In those circumstances the sentencing judge was at pains to point out the parts of her evidence which were corroborated by other evidence in the Crown case.

8 The events which gave rise to the offence occurred in an inner city brothel which had local council approval to enable it to operate. The applicant Drummond was the operator of the premises, the applicant Crook was his girlfriend and the applicant Taranto was at the premises as a labourer who was, by and large, assisting builders who were engaged in doing renovations. The victim, Ms Dalton was a sex worker who, from time to time, worked there.

9 On 18 December 2000 the victim telephoned the brothel and was advised that there was work available for her that day. She attended the premises and was offered amphetamines by the applicant Drummond which he and she then proceeded to consume by way of injecting it into their arms. Subsequently Ms Dalton visited the apartment which was occupied by Drummond and Crook. She was there offered some further amphetamines by Crook which she also consumed. She stayed overnight at the brothel and next morning she returned to the apartment occupied by Drummond and Crook. An argument developed between Crook and the victim whereupon Crook ordered her out of the premises.

10 The victim left and went to a nearby hotel. Between 9 am and 10 am she was telephoned at the hotel by Drummond and it was arranged that he would come and pick her up and return her to the brothel. Drummond arrived in a vehicle driven by the applicant Taranto. Drummond told the victim that he believed that his amphetamines had been stolen and that he wanted the victim to return to the premises to discuss the matter. Ms Dalton agreed to being taken back to the premises.

11 Upon her arrival at the premises, she was taken to an upstairs bedroom. Drummond accused her of stealing his amphetamines and informed her that she would not be leaving the premises until she had returned them. Crook ordered the victim to sit on the bed which she did. Drummond then slapped the victim across the face which made her “pretty scared.” Drummond left the room and was away for about fifteen minutes. During this time Crook told the victim to lie down. She kneed the victim in the back and slapped her round a little bit. Crook kept on asking for the return of the drugs and told the victim that she was really “in for it.”

12 When Drummond returned, he again slapped her and continued to demand the return of his drugs. When the victim said that she did not have them she was given a few more backhanders by Drummond in the presence of Crook.

13 Drummond again left the room. Upon his return on this occasion, he produced a small pistol which he pointed at the victim’s head. The victim was still sitting on the bed and Crook was at the foot of the bed. Drummond again said that the victim was not going to leave the premises until his drugs were returned. The victim’s mobile phone then rang. The call was from her boyfriend. Crook answered the phone and told him that the victim was out on “an escort” for a few hours.

14 Drummond finally left the premises at approximately 11 am. The victim however continued to be detained at the premises through the combined efforts of Crook and Taranto. At some stage during the morning the victim observed that no-one appeared to be around. She endeavoured to escape by going out onto the balcony and then climbing down a spiral staircase before eventually walking out into a back lane. However she was apprehended by Taranto and taken back into the house. Taranto told her that she should not have been “a silly girl and done something like that.” He said that Drummond was just “playing around” when he had produced the gun. She told him that she was scared and that she had not taken the amphetamines. Taranto nevertheless took her back into the bedroom and told her to sit back on the bed.

15 Crook then re-entered the room and handcuffed the victim to the head of the bed with a set of toy handcuffs which were part of the “stock in trade” of the business. The victim was made to lie down on the bed. She was kneed in the back and a mask was placed over her face.

16 Sometime later the victim was permitted to go to the toilet. Taranto escorted her to and from the toilet. Later still the victim was able to make good her escape by climbing out onto a flat roof, going to the edge of it, and then jumping on to the roof of a truck which was parked next door. She was injured in the course of making her escape. Whilst she was in the process of escaping, Taranto again pursued her and attempted unsuccessfully to catch up with her.

17 The victim escaped at about 2.15 pm. Drummond ‘s active participation lasted from about 10 am to 11 am. Thereafter his wish that she not be released until the amphetamines were returned, was actively carried out by Crook and to a lesser extent, by Taranto.

18 The sentencing judge assessed the criminality of the applicants Drummond and Crook to be equal in all respects but one. His Honour concluded that there was no evidence to show that Crook produced a firearm or was aware that Drummond would produce a firearm. Nor was there any evidence, His Honour found, to suggest that Crook was a party to or had acquiesced in that aspect of Drummond’s conduct.

19 The sentencing judge treated the criminality of the applicant Taranto as being “somewhat less than that of his two co-offenders.” His Honour explained in the following passage, which appears in the Remarks on Sentence, his reasons for reaching that conclusion. His Honour said:

I do regard the criminality of Taranto as somewhat less than that of his two co-offenders. In the course of doing his work around the house as a builder’s labourer, he was also assisting, particularly Ms Crook, as a guard to prevent Dalton’s escape. He caused her to return to the house on one occasion, and he attempted to stop her escaping on a second occasion. However his conduct lacks the violence and the threats that were exhibited by the other two co-offenders. Indeed even when he was bringing her back into the house he spoke to her in a quiet, almost reassuring manner, and this was something of a contrast to the language used by the co-offenders, and indeed I think it is a matter that can be used in his favour.

20 Nevertheless his Honour said that the applicant Taranto “did actively participate in the detention knowing its purpose” which he had earlier described.

21 The applicant Drummond was aged 36 at the time of the offence. He had a criminal record dating back to 1980 when he had been dealt with as a 15 year old for three offences of assault and rob. He had made regular appearances before the courts since that time and had been imprisoned on a number of occasions albeit usually in relation to matters of dishonesty. He nevertheless had several convictions for assault recorded against him. Of particular significance were sentences which had been imposed upon him in 1994 at the Parramatta District Court for two counts of sexual intercourse without consent, demand money with menaces and deemed supply of a prohibited drug. A further conviction for a serious drug offence at about the same time meant that the overall effective sentence which he was to serve was one of nine years’ imprisonment with a six year non-parole period. Moreover he was, as a consequence of those sentences, on parole at the time of the commission of the present offence. See R v Moffitt (1990) 20 NSWLR 114.

22 The applicant Drummond came to Australia from Ireland as a twelve month old baby. He left school having obtained the School Certificate. He had worked as a panelbeater and in restoring vintage cars. He was seriously injured in a car accident in 1991 and had, as a consequence, obtained a compensation payout. He invested that money into the brothel at which the offence occurred. After he went into custody the business had collapsed and the applicant relied upon that fact as representing a form of punishment which he had already suffered as a result of his involvement in this matter. The sentencing judge found however that the business was already in trouble at the time of the offence and that there was no guarantee that the investment would have provided him with a good return. Indeed the applicant already suspected at the time of the commission of this offence that his partner had been defrauding the business. The applicant also sought to rely upon the fact that at the time of his arrest, he had been riding a motorcycle which had crashed causing him to sustain serious injuries to his leg. His Honour noted however that the accident had occurred because he was endeavouring to elude police.

23 The applicant has acquired considerable knowledge of ceramics whilst in custody and hopes upon his release to marry and to go into business with the applicant Crook, with whom he was and remains in a relationship.

24 The applicant Crook was aged 29 at the time of the offence. She had no prior criminal record whatsoever. The sentencing judge regarded this as being a significant achievement in view of her troubled background. She had been adopted as a very young baby and had, she claimed, been subjected to physical and mental abuse at the hands of her adoptive family until she had left home at the age of 16. From then on she had fended for herself. She had worked in the hospitality industry and, from time to time, in a brothel. She had a five year old daughter who was in the care of her father. The sentencing judge made a finding of “special circumstances” because of her prior good record, her difficult background, the fact that she had a young child, and what his Honour described as, her “very real prospects of rehabilitation.”

25 The applicant Taranto was the oldest of the applicants at the time of the offences, he then being 42 years of age. He had a very extensive criminal record which dated back to 1974 when he had been placed on probation as a 15 year old. He had twice been committed to an institution as a juvenile for offences of dishonesty. Since becoming an adult he had been imprisoned on a regular basis and had spent a considerable number of years in custody with no apparent indication that his criminal activities have diminished with the passage of time. He had been returned to custody on at least two occasions when his parole had been revoked. Although in the main his prior convictions have been for matters of dishonesty and for driving offences, he had been convicted on three occasions for offences of common assault.

26 It was a matter of aggravation that he was on bail at the time of the commission of these offences having previously committed an offence of malicious wounding to which, in due course, he pleaded guilty. See R v Richards (1981) 2 NSWLR 464. He was subsequently sentenced in the Local Court to two separate terms of imprisonment for offences which were also committed whilst he was on bail awaiting trial for this matter. Those sentences were ordered to run concurrently with the sentence for the present matter and were wholly subsumed within it.

27 The applicant Taranto has also had a difficult life. He left school at an early age and although he is apparently of above average intelligence, he has acquired few life or vocational skills. The sentencing judge found that he was “easily led” and that he usually acts impulsively and in erratic ways. He is currently employed as the gaol electrician and enjoys the continuing support of his partner.

28 Neither the applicant Drummond nor the applicant Crook was represented before this Court. Nevertheless, in accordance with a direction from the Registrar, each prepared a set of written submissions in support of their respective applications. The court has had the opportunity of reading and considering those submissions which appear to encapsulate the arguments which the applicants wish to place before the court. Ms Crook took the opportunity to amplify her submissions orally. In considering those submissions, allowance has been made for the fact that, as I have said, each of them is unrepresented.

29 The applicant Drummond asserted in his written submissions that he accepted “full responsibility for everything that occurred on the premises at the time.” He then went on to contend that he did not hold the victim against her will or participate in any violence. He thereafter made reference to various other matters which make it abundantly clear that he does not in fact accept responsibility for his role in this offence. Nevertheless as I said earlier, he does not expose himself to any additional punishment for having contested the charge against him or for maintaining his innocence. A significant portion of his submissions were taken up with contesting issues of fact which had been determined against him initially by the jury, and in turn, by the sentencing judge. Those findings of fact were well open to his Honour upon the evidence and are not readily susceptible to review in this Court.

30 The applicant asserted, without any evidence to support it, that he has “turned the corner”. He also asserted that there were statistics in existence to support the proposition that the sentence which he received was well in excess of the range for an offence of this kind. It may be noted that no statistics of any kind were produced to support this assertion. He also contended that he had sustained the loss of his business in the wake of this offence and that he had suffered injuries during the course of his arrest. These matters were brought to the attention of the sentencing judge and in my view received appropriate consideration by him.

31 I can detect no error in either the approach which his Honour adopted or in the result at which he arrived. In my view it has not been demonstrated that the sentence which was imposed was manifestly excessive particularly when it is borne in mind that this was a most serious example of the offence of kidnapping. In those circumstances a salutary penalty was called for. See R v Elhalabi [2001] NSW CCA 516; R v McGourty [2002] NSW CCA 335.

32 The applicant Crook submitted that the sentencing judge erred in placing excessive weight upon the objective features of the offence and, in particular, upon the relative seriousness of the offence and her role in it. Furthermore the applicant contended that the sentencing judge erred in relying “solely on the evidence of the victim. It was proven throughout the proceedings that the victim’s allegations were uncorroborated and in some instances proven to be totally untrue.” The applicant also asserted that the “evidence given at trial, disproved any allegations of violence towards the victim.” Neither of these submissions can be accepted for reasons which I indicated when considering the application of Mr Drummond.

33 The applicant Crook also submitted that the sentencing judge had failed to give sufficient weight to factors which would mitigate the otherwise appropriate sentence. In particular she pointed to her lack of prior convictions, her favourable prospects for rehabilitation and the effects of her incarceration upon her five year old daughter. There can be no doubt that the applicant presented a powerful subjective case. Indeed as I pointed out earlier, the sentencing judge commented favourably upon the fact that she had overcome a difficult background without, until the commission of this offence, attracting the attention of the authorities.

34 However his Honour specifically referred to each of the matters to which the applicant has now made reference. Moreover his Honour indicated that he had given “ very careful consideration to the submission” that she should receive a sentence other than one entailing full-time custody. In the final analysis however his Honour concluded that that was the only appropriate sentence that could be imposed in view of the applicant’s very significant role in this offence. It was entirely open upon the evidence for the sentencing judge to conclude, as his Honour did, that the applicant was “an active and major participant in what was a very serious criminal act…instilling fear into the unfortunate victim.” I can detect no error in either the approach which his Honour adopted or in the result at which his Honour arrived. In my view it has not been demonstrated that the sentence which was imposed was manifestly excessive particularly since the applicant specifically acknowledged that the overall sentence was, as she put it, “within his Honour’s sentencing range.”

35 The applicant Taranto was represented by counsel during the hearing of this application. It was submitted on his behalf that the sentence which was imposed upon him was manifestly excessive when proper consideration was given to his role in this offence. Allied to this submission was a contention that this was particularly so when the sentence which was imposed upon him was compared with those which were imposed upon his co-offenders especially when, as it was put, their “significantly different roles” were taken into account. In other words it was submitted that rather greater differentiation should have been made between his sentence and those of his co-offenders.

36 The applicant’s role in this offence was clearly an important one. It may also be observed that the subjective features upon which the applicant was able to rely were not nearly as favourable as those presented by the applicant Crook. Notwithstanding those considerations, I am nevertheless of the view that the applicant Taranto has made good his submission. This applicant, unlike Mr Drummond and Ms Crook, was not a principal in the commission of the offence. He neither initiated the detention of Ms Dalton nor had any apparent personal interest in it. Of even greater significance, he did not inflict any violence upon the victim and of the various acts of violence that were committed, he was present on only one such occasion. In particular he was not present when the pistol was produced. It was also to his credit that he treated the victim with some measure of consideration.

37 Accordingly in relation to the applicant Taranto I have come to the view, pursuant to s 6(3) of the Criminal Appeal Act 1912, that “some other sentence is warranted in law….and should have been passed.”

38 I propose the following orders.

In respect of Martin Drummond:

1 Grant leave to appeal.

2 Appeal dismissed.

In respect of Suzanna Crook:

1 Grant leave to appeal.

2 Appeal dismissed.

In respect of Graham Taranto:

1 Grant leave to appeal.

2 Appeal allowed.

3 Sentence imposed in District Court set aside.

4 Sentence the applicant to imprisonment for three years to commence on 2 August 2001 and to expire on 1 August 2004 with a non-parole period of two years and three months to commence on 2 August 2001 and to expire on 1 November 2003 at which time the applicant will be released on parole.

39 SPERLING J: I agree with Buddin J. The order of the Court will be as proposed by him in relation to each of the three applications.

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