Regina v Russell Geoffrey Francis

[2002] NSWCCA 51

CITATION:	Regina v Russell Geoffrey Francis [2002] NSWCCA 51 revised - 12/03/2002
FILE NUMBER(S):	CCA 60744/01
HEARING DATE(S):	6 March 2002
JUDGMENT DATE:	8 March 2002
PARTIES :	Regina Russell Geoffrey Francis
JUDGMENT OF:	Stein JA at 1; O'Keefe J at 24; Buddin J at 25

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/31/0024
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

COUNSEL :	D M L Woodburne (Crown Prosecutor) C B Craigie SC (Respondent)
SOLICITORS:	S E O'Connor (Crown) D J Humphreys (Respondent)
CATCHWORDS:	CRIMINAL LAW - sentencing - detaining for advantage and causing injury - Crimes Act 1900, s 90A - sentence manifestly inadequate - discretion to re-sentence - ND
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
CASES CITED:	Power v The Queen (1973) 131 CLR 623 R v Simpson [2001] NSWCCA 534
DECISION:	1. Appeal allowed; sentences quashed. 2. In lieu thereof, the respondent sentenced to 4 years imprisonment on each offence, to be served concurrently. The sentence is to commence on 24 August 2001 and to expire on 23 August 2005. Non-parole period fixed for 2 years to expire on 23 August 2003.

60744/01

STEIN JA
O’KEEFE J
BUDDIN J

Friday, 8 March 2002
REGINA v Russell Geoffrey FRANCIS

Judgment

1 STEIN JA: This is a Crown appeal under s 5D of the Criminal Appeal Act 1912 against sentences imposed on the respondent, Russell Geoffrey Francis, by Coolahan DCJ on 28 August 2001.

2 On the morning of the trial, 12 June 2001, the respondent pleaded guilty to two offences of detaining for advantage and causing injury in contravention of s 90A of the Crimes Act 1900. The charges concerned events occurring over the night and morning of 31 August and 1 September 2000. The two victims were a Mr Jeffrey Schott and Mr Andrew Tyler. There were two co-offenders, Jamie Forrester and Tiffany Brockman.

3 The sentencing of the respondent was completed on 28 August 2001 when the respondent was convicted and sentenced to concurrent terms of imprisonment for 3 years from 24 August 2001, to expire 23 August 2004. His Honour found special circumstances and set a non-parole period of 12 months to date from 24 August 2001 and expire on 23 August 2002.

4 One of the co-offenders, Tiffany Brockman, had pleaded guilty on 13 June 2001. She was sentenced by his Honour to imprisonment for 2 years with respect to each count, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act upon condition that she enter bonds to be of good behaviour for the period of the sentences. The respondent conceded that there was no question of parity between him and Brockman.

5 On 12 June 2001, the day fixed for trial, the accused Forrester failed to appear and a bench warrant was issued. The respondent, Francis, pleaded guilty.

6 With regard to the sentencing of the respondent his Honour accepted a statement of facts tendered by the prosecution. However, he added that:

… the full extent of the horror of the ordeal suffered by Schott and Tyler can only be gained by a perusal of their statements. It is obvious that, over a period of many hours, they were subjected to significant assaults at the hands of both Forrester and this offender (Francis) and that they feared for their lives. As I said, upon being assaulted by this offender, Tyler urinated in his pants. This was out of fear. On frequent occasions during the course of the ordeal Schott cried, also out of fear.

7 The victim Tyler’s statement indicates as follows:

- his increasing anxiety as he saw the doors locked;
- his utter fear as he witnessed the violence perpetrated on Schott and then suffered by himself such that he urinated in his pants as the respondent punched and elbowed him;
- his pain and fear during his “interrogation”, as he was hit with the baseball bat, and sheer terror at the realisation that he did not know what was to become of him;
- the threats that he was going to be thrown off a cliff or drowned, made all the more real by being taken to places where that could be achieved;
- his fear and belief that he was going to die, as he was dragged from the car and handcuffed, and then told to dig his own grave;
- his pain and fear during the further interrogation and continued physical assaults;
- the further vicious assault by the respondent who gave him his asthma puffer and then kicked him to the centre of the chest knocking him straight to the ground such that he couldn’t breathe and then vomited on the ground;
- the continued threats to kill and violence perpetrated upon their return to Forrester’s house;
- the continuing fear felt by him after his release, such that upon his return to his own house he showered holding on to a meat cleaver and a big knife and then sought the help and advice of his father, ultimately staying in a motel even after the matter had been reported to police;
- the physical injuries suffered including two black eyes, numerous lumps and bruises on his forehead and back of head, bruised rib and bruised lung, scratches to his neck, bruised wrist;
- his real fear that he was going to be murdered.

8 The victim Schott’s statement indicates that:

- after being punched in the nose by Forrester he saw the respondent hit Tyler’s head a number of times with his right fist and left elbow;
- he saw the respondent give Forrester the baseball bat, which Forrester then used to hit Tyler in the face;
- the respondent punched him to the right eye;
- his extreme fear during the interrogation and their confinement;
- the respondent dragged Tyler from the car and later kicked Tyler to the chest causing him to collapse, vomit and gasp for air;
- he was petrified of the respondent and Forrester;
- he was too fearful to stay at his home after the assaults;
- he suffered a broken nose, laceration, bruising, soreness and swelling to his face, neck and back.

9 His Honour found that while Forrester had the prime interest in detaining the victims, the respondent was prepared to very actively and violently assist Forrester in the commission of the offences. Further, the respondent’s drug dependence played a significant part in his participation in the offences. Francis was prepared to go along with Forrester or assist him in a very real way and engaged in prolonged gratuitous violence, some of which even Forrester did not encourage. While the offence by the respondent was not premeditated, the respondent became actively involved in the offences over many hours. Further, where there was any discrepancy between the victims’ statements and the respondent, the former were to be preferred.

10 His Honour said that the respondent willingly participated in a ‘reign of terror’ that the victims endured over many hours. While the involvement of the respondent was not as significant as that of Forrester, it was ‘certainly close to it’.

11 The Crown contends that in stating that the pleas of guilty entered on the day of the trial ‘were timely’, his Honour took into account two irrelevant factors; threats by Forrester to the respondent and the respondent’s drug dependence. The Crown submits that while these factors may explain the late plea, they were irrelevant to a determination of the utilitarian value of the plea. This is because, whatever the respondent’s explanation was for waiting until the trial day to plead guilty, the prosecution was still required to prepare for trial, including the marshalling of witnesses.

12 The Crown further submits (and this is its primary submission) that the sentences imposes on the respondent were manifestly inadequate and that there was a failure to reflect the objective criminality involved in the offences when setting the non-parole period. It is submitted that the seriousness of the offences, as recognised by his Honour, did not translate into sentences which appropriately marked the seriousness of the respondent’s conduct, even acknowledging his subjective circumstances. Further, while it was within the judge’s discretion to find special circumstances and set a non-parole period of less than three-quarters of the term of the sentence, the non-parole period must itself appropriately reflect the seriousness of the offence, R v Simpson [2001] NSWCCA 534 at [63] per Spigelman CJ. The non-parole period of 12 months imposed by his Honour did not adequately or appropriately reflect the seriousness of the crimes.

13 Because I take the view that the sentences imposed by his Honour were manifestly inadequate, it is unnecessary to consider the Crown’s submission relating to the timing of the plea and its discount value. There is no doubt in my mind, that taking account of the facts before his Honour and his Honour’s findings, the objective gravity of the respondent’s criminality was very high indeed. The sentence, and in particular the non-parole period imposed, did not adequately or appropriately reflect the degree of seriousness of the offences. See Power v The Queen (1973) 131 CLR 623 at 628 and, with regard to the non-parole period, Simpson mentioned above.

14 The objective considerations include the maximum penalty for the offence, being 20 years; that there were two offences involving two victims; that the offences were committed in company thereby aggravating the offences; that the victims were fearful for their lives, Schott being reduced to tears and Tyler urinating in his pants and that the respondent brutally attacked Tyler at a time he requested his Ventolin and was having problems breathing.

15 I would endorse his Honour’s reference to the respondent willingly participating in a ‘reign of terror’ and that, although the respondent’s involvement was not as significant as that of Forrester, it was ‘certainly close to it’.

16 His Honour said that the offences were ‘extremely serious’. They were. However, his Honour did not appropriately mark the seriousness of the criminality involved, even giving full weight to the respondent’s subjective circumstances. The sentences imposed did not reflect the criminality of the respondent.

17 In my opinion, the sentence can truly be said to be a manifestly lenient one, both with respect to the head sentence and the non-parole period. There was no element of general deterrence. Undue weight was given to the respondent’s subjective circumstances at the cost of not imposing a sentence which the gravity of the offences called for.

18 Error having been found the court needs to consider its discretion to intervene and re-sentence.

19 It is the submission of Mr Craigie SC, on behalf of the respondent, that if error be found by the court, the court should not intervene. He argues that more than one-half of the non-parole period has been served. Reliance is placed upon affidavits of the respondent, sworn 19 and 27 February 2002 attesting to his continuing progress in rehabilitation. Mr Craigie points to his Honour’s findings about the central part that the respondent’s problems with drugs and alcohol played in the offences. If his term of imprisonment is extended, his rehabilitation may be set back. Further, reliance is placed on the respondent’s relative youth he is now just 24 years of age.

20 During the addresses by counsel, the court drew attention to the 10 week delay by the Director of Public Prosecutions in filing the Notice of Appeal. The respondent was sentenced on 28 August 2001 and the Notice of Appeal was filed on 5 November 2001. The only reason advanced for the delay was the non-availability of the Reasons on Sentence. Indeed, they were still not available on 5 November 2001 when the appeal was lodged. This is unsatisfactory and is a further discretionary factor which works in favour of the respondent. In a case of manifest inadequacy such as this, there was no need to wait for the delivery of the transcript on sentence.

21 Taking full account of the double jeopardy in which the respondent has been placed, as well as the not insignificant subjective factors relied on by the respondent, the extreme seriousness of the offences leads me to conclude that the intervention of the court is warranted. The sentences plainly do not adequately reflect the high degree of criminality involved.

22 In re-sentencing, all of the respondent’s subjective factors are taken into account, in addition to the aspect of double jeopardy and the recent evidence provided by the respondent. Special circumstances are found to exist as outlined by his Honour the sentencing judge.

23 I would propose that the appeal be allowed and the sentences be quashed. In lieu thereof, the respondent should be sentenced to 4 years imprisonment on each offence, to be served concurrently. The sentence is to commence on 24 August 2001 and to expire on 23 August 2005. I would fix a non-parole period of 2 years to expire on 23 August 2003.

24 O’KEEFE J: I agree with Stein JA.

25 BUDDIN J: I agree with Stein JA.