Regina v Smallbon

[2002] NSWCCA 37

CITATION:	Regina v Smallbon [2002] NSWCCA 37
FILE NUMBER(S):	CCA 60772/1999
HEARING DATE(S):	13/02/02
JUDGMENT DATE:	14 March 2002
PARTIES :	Regina Jonathan Andrew Smallbon
JUDGMENT OF:	Hidden J at 1; Buddin J at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/2195; 98/21/2196; 98/21/2194
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL :	Mr PJP Power - Crown Mr H Dhanji - Applicant
SOLICITORS:	SE O'Connor - Crown DJ Humphreys - Applicant
CATCHWORDS:	CRIMINAL LAW: Application for leave to appeal against sentence: charges of kidnapping and related charges of sexual assault arising from the abduction of two young men: effective total sentence (Sentencing Act 1989) of 8 years (mt 5 years).
LEGISLATION CITED:	Sentencing Act 1989 Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999
CASES CITED:	R v Engert (1995) 84 A Crim R 67 R v Pyrda [2001] NSW CCA 230 R v Simpson [2001] NSW CCA 534
DECISION:	See paragraph 21.

60772/1999
HIDDEN J
BUDDIN J
Thursday, 14 March, 2002

REGINA v Jonathan Andrew SMALLBON

JUDGMENT

1 HIDDEN J: The applicant, Jonathan Andrew Smallbon, pleaded guilty in the District Court to an indictment containing eleven counts, the charges arising from two separate incidents. The matter was dealt with in 1999, when the Sentencing Act, 1989 was still in force. Each incident gave rise to a charge of kidnapping (s 90A of the Crimes Act), and on each of those charges the learned sentencing judge sentenced the applicant to concurrent terms of imprisonment for eight years, comprising a minimum term of five years and an additional term of three years. Those sentences were to date from the day on which he was arrested as a result of the second incident. On the other nine charges, he was sentenced to fixed terms of imprisonment, which were concurrent amongst themselves and wholly concurrent with the five year minimum term. Accordingly, the effective sentence for the applicant’s crimes was imprisonment for eight years, with a minimum term of five years and an additional term of three years. He seeks leave to appeal against sentence.

The Facts

2 The facts are serious indeed. The first incident gave rise to the first five counts on the indictment, which were as follows:

1. Kidnapping,
2 & 3. Indecent assault (s 61L of the Crimes Act ),
4. Commit act of indecency with a person under sixteen years
(s 61N(2) of the Crimes Act ),
5. Assault occasioning actual bodily harm (s 59 of the Crimes Act )

3 In his remarks on sentence, his Honour summarised the facts giving rise to those charges as follows:

I will deal shortly with the objective facts which commence on the afternoon of Thursday 2 July 1998. The victim … a sixteen year old boy, was collecting donations on behalf of the Arthritis Foundation. He approached the house where the prisoner lived at Heckenberg. The prisoner made some donation and he called the boy … back. He looked at his identification and said he would like to make a further donation. When the boy came to the doorway, the prisoner took hold of him by the shoulder and held a knife to his throat and pulled him inside the house. Those facts are the foundation for the first count of the indictment.
The boy … was then taken by the prisoner to a bedroom where he was put into a wardrobe for a short while. The prisoner then came back and led him out of the house and into the prisoner’s car. He drove the car to a destination where he bought cannabis leaf. He smoked a cannabis joint. He handed another one to the victim who had two or three puffs and then gave it back. Whilst in the car, the prisoner placed his hand down the trousers of the victim and began masturbating him. Those facts form the basis of the second count.
These events commenced, I think, some time in the afternoon and continued. The prisoner showed the knife again to the victim on some occasions. The prisoner took the victim back to the prisoner’s home, forced him into the prisoner’s bed where he put his hand down the trousers of (the victim) and began rubbing his penis. That latter event forming the basis of the third count.
He demanded that the victim masturbate the prisoner and the victim complied. That event is the basis of the fourth count. He made the victim get on the floor on his hands and knees where he tied his hands with wire behind his back. The prisoner put his arm around (the victim’s) neck in what has been described as a choker hold. He applied pressure to the victim’s neck. When finally released, the victim collapsed to the floor gasping for air. That event is the basis of the fifth count. The prisoner then said to him, “Don’t worry I was watching your face, I wasn’t going to kill you.” There was further discussion with the victim. He told him, in effect, he would need to formulate a suitable excuse for his aunt of being out all night and he was allowed to go. He went home and reported these events to his aunt and the police were notified.

4 The victim was medically examined four or five days later, and his Honour concluded that he had not sustained any substantial injury, within the meaning of s 90A of the Crimes Act, so that the charge of kidnapping carried a maximum sentence of fourteen years imprisonment.

5 The applicant was arrested on 3 July 1998 and was refused bail. He remained in custody until he was granted bail by a judge of this Court on 15 September 1998. On 28 September, only thirteen days later, the second incident occurred. As his Honour put it, “he virtually did the same thing all over again.” That incident gave rise to the remaining six counts in the indictment:

6. Kidnapping,
7 & 8 Aggravated incident assault, (s 61N(1) of the Crimes Act ),
9. Assault occasioning actual bodily harm,
10. Aggravated indecent assault,
11. Assault occasioning actual bodily harm.

6 His Honour summarised the facts giving rise to these charges as follows:

On this occasion he encountered a young boy, aged fourteen, who was pushing his bicycle. He was conscious of the fact that he was being watched by the prisoner from a stationary vehicle and a little while later the prisoner drove past him and then spoke to him about his bicycle. As the fourteen year old went on his way, he felt something sharp to his back and the prisoner said to him, “This is a kidnapping, don’t try to make any noise.” He then forced the boy into his car. At that time pressing a knife against his back and threatening him with death if he did not comply. Those latter events form the basis of the sixth count.
Thereafter, he drove about and stopped the vehicle. He forced (the victim) into the boot, went back to his home, got money, apparently he bought petrol. Later he allowed the victim out of the boot of the car and into the front seat. He told the victim to remove his trousers. When he did so, the prisoner began stroking his penis. That indecent assault is the basis of the seventh count.
Then the prisoner removed his own trousers and directed the victim … to masturbate him. He complied. The prisoner then put his own trousers back on and drove to another street. He produced a small knife and ran the side of the blade over the victim’s face saying, “Which way do you want to be killed, the hard way or the easy way?” The fourteen year old replied, “The easy way”. The victim was then forced to remove his jeans again and the prisoner rubbed his body, including his penis. That indecent assault forms the basis of the eighth count.
He was forced back into the boot of the car and then later he was told to smoke a joint of cannabis and if he coughed he would be struck. He did cough and the prisoner punched him to the side of the head then put his arm around his neck in the same sort of choker hold, occasionally reducing the pressure and allowing him to breathe. That assault forms the basis of the ninth count.
Thereafter, he forced the victim to masturbate the prisoner. That is the basis of the tenth count.
The last count of the indictment relates to the prisoner forcing the victim’s arm behind his back and again placing him into a choker hold which he held on to for quite some time. When he released that hold he punched the boy twice or three times to the head. He passed the knife to the boy saying, “Now your fingerprints are on the knife, I could kill you now.”

7 What then happened is remarkable and, for the purpose of sentence, significant. The applicant decided to take the victim to a police station and to surrender himself. He drove to a car-park near the Green Valley Police Station, where he allowed the boy out of the car so that he could report the matter to police. He remained in the car-park until he was arrested. In the course of an electronically recorded interview, he said that he had taken the victim to the police station because he feared that he might have killed him if he had not done so. Again, his Honour noted that this victim had been liberated without sustaining any substantial injury, so that the kidnapping charge attracted the maximum sentence of fourteen years imprisonment.

8 As I have said, the applicant’s behaviour on both occasions disclosed criminality of a high order. In addition, the gravity of the offences on the second occasion is aggravated by the fact that he was then on bail in respect of the charges arising from the first.

Subjective Case

9 The applicant’s subjective case, like the facts of the offences, merits his Honour’s description as “highly unusual, to say the least”. He was twenty two years old at the time of the offences. He has no previous convictions. He was brought up in New Zealand and came to this country, where his father has resided for some years, in 1995. He has an older half-brother and a younger sister. His teenage years were severely disturbed. It is unnecessary to examine that part of his background in any detail. It is sufficient to say that his parents separated when he was fourteen years old, and the family appears to have fallen apart thereafter. His relationship with both parents was compromised.

10 He left school in Year 9. From the age of sixteen he took to the excessive use of alcohol and marijuana. He was sexually abused by an older man, with whom he had come in contact through his interest in CB radio. He was involved in some bizarre incidents with a friend of his own age which I find it unnecessary to describe, except to say that on one occasion his friend initiated sexual contact with him. He attempted suicide three times, as a result of which he came under the care of psychiatric services at a hospital in Christchurch.

11 In April 1999 the applicant was examined by the well known forensic psychiatrist, Dr William Lucas. He found that the applicant was unable to explain the offences “except in terms of depression and feelings of hatred towards men.” The doctor noted that, on the history supplied to him, the applicant was unemployed at the time, was abusing alcohol and cannabis, was lonely and was lacking in social skills. He did not diagnose any major psychiatric illness, but concluded that the applicant was suffering “from a depressive disorder of some type” at the relevant time.

12 Fortunately, the applicant had the benefit of counselling in custody by Mr Geoffrey Ballard, psychologist. A new light was thrown upon his crimes when, after months of counselling, he revealed to Mr Ballard that he was homosexual. He could not be open about his sexual orientation with his family and friends, as he had been brought up to believe that it was wrong. This led to years of loneliness and unhappiness. To Mr Ballard he described his offences as “a cry for help”. Although he admitted that he wanted to experiment sexually with men, he acknowledged that his primary motivation was to release his pent up anger. Mr Ballard saw the offences as the product “of a disturbed personality suffering from problems associated with gender identity, abuse and grief.” The applicant, he said, had directed his aggression and violence against a male society with which he wanted desperately to connect but which, at the same time, he hated.

13 In a most helpful report, Mr Ballard observed:

Mr Small has been, and is, a disturbed and confused young man. For a long time he has fought against his sexual orientation and gender identity. He has a sense of shame, guilt and low self esteem, living his life in isolation. Gender disorder has resulted in anger and aggression leading to criminal offences. From an early age he has attempted suicide, common in youths like Mr. Smallbon. Drug abuse allowed him to escape the reality of his life for a time. He has wanted help but has never been able to bring himself to ask for it until now when he took the risk of disclosing to me. He has experienced a very tortured life.

14 Mr Ballard also noted that, because of his personality and as the result of threats and harassment, the applicant was on strict protection. This required him to be kept in isolation and severely restricted his opportunity for exercise. In addition, his Honour found that it was likely to cause difficulties in his having visits and having access to health professionals such as Mr Ballard. His Honour observed that his minimum term would be served “in very harsh conditions indeed”.

15 Mr Ballard concluded that the applicant “needs long-term individual psychotherapy to develop a strong identity.” He stressed the need for a lengthy period of supervision in the community “so that his rehabilitation and risk of re-offending can be closely monitored.” He thought that the applicant had begun to take responsibility for his actions and was “asking for the help that he needs to turn around his life.” He considered that, with that help, his risk of re-offending was “quite low”.

16 After the applicant disclosed his homosexuality to Mr Ballard, Dr Lucas reconsidered the matter and provided a further report. His view of the applicant’s prognosis was similar to that of Mr Ballard. Like Mr Ballard, however, he noted that opportunity for the treatment he needs may be limited in prison, adding that the Department of Corrective Services should be aware that the applicant requires special consideration. His Honour considered the question whether the applicant would be a danger to the community in the future but concluded that, after serving the custodial component of his sentence and with appropriate treatment and supervision, he would be unlikely to re-offend. It was the need for prolonged supervision upon his release which led his Honour to find special circumstances.

The application

17 Counsel for the applicant, Mr Dhanji, challenged both the effective total sentence and the minimum term. He submitted that the sentence of eight years is manifestly excessive, given the exceptional subjective circumstances to which I have referred. In particular, he argued that his Honour should have given less weight to considerations of deterrence in accordance with the principles relating to the sentencing of mentally disordered people summarised by Gleeson CJ in R v Engert (1995) 84 A Crim R 67.

18 It is clear from the remarks on sentence that his Honour was conscious of all matters favourable to the applicant, including his pleas of guilty, his remorse and the significance of his having surrendered the second victim and himself to police. His Honour spoke of the need for personal and general deterrence and it is true that he did not refer to the principles expounded in Engert. In fairness, it does not appear that his attention was directed to that line of authority. (Neither Mr Dhanji nor the Crown prosecutor before us had appeared in the District Court.) However, subject to one matter to which I shall return, I cannot see that the application of those principles, together with a proper recognition of the applicant’s subjective case generally, could have led to an effective sentence any less than that which his Honour imposed. Indeed, in the circumstances, the applicant is fortunate that his Honour chose to make all the sentences concurrent.

19 That said, the one matter which does concern me is that his Honour made no express allowance for the period the applicant spent in custody following his arrest for the offences the subject of the first incident. As I have said, he was in custody from 3 July to 15 September 1998, a period of about two and half months. This Court has recently restated the importance of recognising periods of presentence custody in passing sentence, either by backdating the sentence or by reducing it appropriately: R v Pyrda [2001] NSW CCA 230, per Howie J at pars 9-11. I think that the practical course in this case is to reduce the effective sentence of eight years by three months.

20 It follows that there should be some adjustment of the effective minimum term. However, I am persuaded that the minimum term should be reduced in any event. As I have said, his Honour found special circumstances in the applicant’s need for prolonged supervision on his release but, in my view, there are two other matters which should also have been taken into account in determining the length of the minimum term. One is the applicant’s prospect of serving the custodial component of his sentence in strict protection. The other is the reservation expressed by both Mr Ballard and Doctor Lucas about the capacity of the prison system to afford the applicant the treatment and counselling which he requires. There is no doubt that these are matters capable of amounting to special circumstances: cf R v Simpson [2001] NSWCCA 534. I would reduce the effective minimum term by nine months. In my view, the resultant minimum term would still be adequate to reflect the applicant’s criminality.

21 I would grant leave to appeal and allow the appeal. I would quash the sentences on the two kidnapping charges (counts 1 and 6). The sentence I would propose on each of those counts should now be couched in terms of the current legislation, the Crimes (Sentencing Procedure) Act, 1999. On each count I would sentence the applicant to imprisonment for seven years and nine months to commence on 28 September 1998, with a non-parole period of four years and three months. I would confirm the sentences on the other counts. The applicant would be eligible for release on parole on 28 December, 2002.

22 BUDDIN J: I agree.

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