Smith v The Queen
[2014] VSCA 268
•27 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0044
| NATHAN SMITH |
| v |
| THE QUEEN |
---
| JUDGES: | NEAVE and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 August 2014 |
| DATE OF JUDGMENT: | 27 October 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 268 |
| JUDGMENT APPEALED FROM: | DPP v Smith (Unreported, County Court of Victoria, Judge Hampel, 19 February 2014) |
---
CRIMINAL LAW — Appeal — Sentence — Incitement to kidnap — Offender incited young girlfriend to kidnap female acquaintance with knife — Sexual motivation — Sadistic torture implements prepared — Head sentence 7 years with non-parole period of 5 years — Whether manifestly excessive — Potentially comparable cases involving incitement and sexually-motivated offending considered — Whether error in treatment of circumstances of offending — R v De Simoni (1981) 147 CLR 383 considered — Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr D A Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I have had the advantage of reading the draft reasons of Whelan JA. I agree with the orders he proposes for the reasons he gives.
WHELAN JA:
On 20 May 2013 the appellant, Nathan Smith, pleaded guilty to one count of incitement to kidnap and one count of failing to answer bail. For reasons I will address, the plea hearing was not held until 11 February 2014. On 19 February 2014 the following sentence was imposed on him:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Incitement to kidnap [Crimes Act 1958 s 321G(1)(c)] 25 years [Crimes Act 1958 ss 321I(1)(a) and 320] 7 years Base Summary charge Fail to answer bail [Bail Act 1977 s 30(1)] 12 months 3 months 3 months Total Effective Sentence: 7 years and 3 months’ imprisonment Non-Parole Period: 5 years Pre-sentence Detention Declared: 42 days 6AAA Statement: 10 years’ imprisonment with a non-parole period of 8 years Other orders:
· Forensic sample order
· Disposal order
On 4 June 2014 the appellant was given leave to appeal his sentence on two grounds. The first ground is that the sentence was manifestly excessive having regard to the plea of guilty; the appellant’s youth, personal background and antecedents; the delay; and current sentencing practices. The second ground is that the sentencing judge erred in her treatment of the circumstances of the offence.
The offence of incitement to kidnap was committed between 12 November 2010 and 16 November 2010. The person the appellant incited to undertake the kidnapping was his girlfriend and fiancé at the time, who the sentencing judge referred to by the pseudonym ‘Natalie’. The person she was incited to kidnap was a female acquaintance of theirs who worked at a fast food restaurant regularly visited by the appellant and his fiancé. The sentencing judge referred to her by the pseudonym ‘Erica’. I will use the same pseudonyms.
In order to understand the significance of the matters dealt with by the sentencing judge and the significance of the matters relied upon by the appellant in this appeal, it is necessary to review the relevant events before, during and after the offending.
Review of relevant events
In late 2009 the appellant, who was then 21 years old, began a relationship with Natalie, who was then 16. In January 2010 the appellant moved in to live with Natalie in her parents’ home.
Not long after moving in the appellant committed an offence of stalking. The circumstances were as follows. On 22 March 2010 the appellant, who had just turned 22 years of age, sent a number of text messages to a 12 year old girl. The appellant had never met this girl and later claimed that he had obtained her phone number from Facebook. It is unclear how the appellant obtained the girl’s phone number, but it was not from her Facebook profile because her number had never been listed there. In a series of text messages sent that day, the appellant used a false name and falsely said that he attended the girl’s school. He requested a picture of the girl in her underwear. The next day he sent a further series of messages to the girl and suggested a meeting alone in the baby change room of a shopping centre where he could see the girl in her underwear. The messages were discovered by the girl’s parents and, impersonating the girl, they made arrangements to meet the appellant at a bus stop. The appellant persisted in his text requests to see the girl in her underwear and suggested that that would happen in the baby change room. In one text the appellant said that he was 16 years old. When the appellant arrived at the designated meeting place family members of the girl were waiting. After an altercation, the police attended and took the appellant to a police station. The appellant was formally interviewed in relation to the matter on 15 July 2010 and was told that he would be summonsed.
In September 2010 the appellant and Natalie moved to Sunshine to live with the appellant’s grandfather. They began visiting a particular fast food restaurant on a regular basis and became acquainted with Erica, a young woman working in the restaurant.
In November 2010 the appellant and Natalie moved back to Geelong.
On Thursday 11 November 2010 the appellant appeared in the Magistrates’ Court at Geelong on a charge of stalking another person. This charge related to the text messages to the 12 year old girl to which I have referred. He was convicted and placed on a community based order for a period of 18 months. Amongst other things, he was required to attend the Geelong Community Corrections Centre by 4 pm on 15 November 2010 and was also required to undergo assessment and intervention as directed by a Community Corrections officer in consultation with the Sex Offender Program staff.
On Friday 12 November 2010 there was a discussion between the appellant and Natalie about kidnapping a female.
On Saturday 13 November 2010 there was another discussion between the appellant and Natalie about kidnapping a female. In the course of that discussion the appellant discussed activities which, it seems to me, can only be fairly described as torture using various implements and involving both the rape and the death of the victim. Later that night there was further discussion to the same effect which culminated in the appellant making a list of items in Natalie’s diary of the implements needed to carry out the kind of activities he had described. He explained the purpose of the various implements to Natalie.
The sentencing judge made a suppression order in relation to a schedule to her reasons of the items on that list which the appellant and Natalie subsequently bought and which the appellant modified. The order was made so as to avoid causing undue distress or embarrassment to a complainant or witness in a criminal proceeding involving a sexual offence or a family violence offence. In deference to that order I will not repeat the entries in the diary, save to say that the written words expressly refer to restraint and death, and that some of the items by their very nature if applied to a person would necessarily cause pain and serious injury.
At some point over the weekend of Saturday 13 November/Sunday 14 November the appellant discussed with Natalie raping and killing a prostitute.
On Sunday 14 November 2010 Natalie told her mother that the appellant wanted to rape and kill a female.
On Monday 15 November 2010 at 11 am Natalie and her mother reported at the local police station what was occurring. A police officer arranged for the matter to be referred to the Geelong Sexual Offence and Child Abuse Investigation Team.
That same day the appellant attended the Community Corrections office in Geelong in compliance with the community based order which had been made the previous Thursday.
Later that afternoon the appellant sent Natalie a text message arranging to meet her and telling her to rewrite the list that he had made and bring it with her. The two of them visited three retail outlets purchasing the items on the list and other items to be used in a similar way.
Upon returning home that day the appellant and Natalie went out to the shed. They told Natalie’s mother that they were making a slingshot to put on display in her room. The appellant manufactured a variety of implements which, it seems to me, can only fairly be described as sadistic implements of torture. Natalie told her mother what the appellant was in fact doing and showed the things which the appellant had made to her.
According to the Crown opening, the appellant ‘hid’ the items he had made in a cupboard on a shelf and when asked by Natalie’s mother what he had been welding in the garage he told her that it was the slingshot.
On Tuesday 16 November 2010 the appellant sent Natalie text messages from the fast food restaurant in West Sunshine telling her he was there, that Erica was working, and that Natalie should contact her and arrange to meet her. Natalie responded saying Erica could not talk when she was at work but that she would contact her when Erica had finished.
The opening on the plea set out what happened next:
At 9:54 am he sent [Natalie] a message that read:
’Ok when she is finished today message her about seeing her tomorrow. Only if you are comfortable doing it all to her though, including in her car with kfe.’
[Natalie’s] understanding was reference to “kfe” was a knife and that [the appellant] wanted [Natalie] to hold the knife to [Erica] and make her co-operate.
Later on Tuesday 16 November 2010 Natalie met police at her house. She showed them the messages and the items which had been made by the appellant. At 3:50 pm that day the police returned with a search warrant. They seized the items the appellant had made, the diary, various phones, sim cards, memory cards and the appellant’s laptop. Subsequent examination of the laptop revealed that it contained violent sexual images from the internet.
That night the appellant returned home and was told by Natalie that the police had been in attendance and had seized the items. Natalie told the appellant that she had told the police the truth in response to which the appellant became upset and abusive. He was asked to leave by Natalie’s mother and he did so.
Between that time and July 2011 police attempted to contact the appellant for the purpose of interviewing him. He acknowledged in a record of interview which was eventually conducted on 6 July 2011 that he either had not kept appointments or had not tried to contact the policeman trying to make appointments with him. I will return to the contents of the record of interview.
On 16 August 2011 a fresh community based order was imposed on the appellant at the Geelong Magistrates’ Court as a variation of the order which had been made on 11 November 2010. That earlier order had been breached, according to Corrections Victoria, because the appellant ‘absconded shortly after it commenced’. The appellant’s initial compliance with the new community based order appeared satisfactory but this deteriorated and he ceased all contact with the Community Correctional Services on 6 March 2012.
The appellant was initially charged with incitement to kidnap, incitement to rape and incitement to intentionally cause serious injury. Following a contested committal he was committed for trial. The matter was resolved on the first day of the trial. On 20 May 2013 the appellant was arraigned and pleaded guilty to the single charge of incitement to kidnap.
By a letter dated 30 May 2013 the appellant’s solicitors engaged the service of the consultant psychiatrist, Dr Danny Sullivan. Dr Sullivan saw the appellant on 23 August 2013 and prepared a report dated 16 September 2013 which was tendered on the plea. I will return to that report.
On 23 September 2013 the appellant failed to appear at the plea hearing before Judge Hampel. A warrant was issued for his arrest. The appellant had fled to Sydney.
On 8 January 2014 the warrant which had been issued for the appellant’s arrest was executed and the appellant was apprehended and held in custody until the plea hearing on 11 February 2014.
Elements of incitement to kidnap
When the appellant pleaded guilty to the charge of incitement to kidnap he admitted each of the elements of that offence.
To be guilty of incitement an offender must not only incite the commission of the crime but must also intend that the crime be committed. The offence incited was common law kidnap.
At common law, a kidnapping occurs when one person takes or carries away another, by force or fraud, without consent, and without lawful justification or excuse.[1] The maximum penalty for common law kidnapping is prescribed by s 320 of the Crimes Act 1958 as 25 years’ imprisonment. Section 321I(1) of the Crimes Act 1958 prescribes that the maximum penalty for incitement of another to commit an offence, where the penalty for the relevant offence is fixed by law, is the same as for the relevant offence.
[1]R v D [1984] AC 778 at 800–1 (Lord Brankdon of Oakbrook) cited with approval in Ulutui v The Queen [2014] VSCA 110 [87] (Redlich JA, Neave and Tate JJA agreeing); R v McEachran (2006) 15 VR 615, 633 [37] (Redlich JA with whom Callaway JA and Smith AJA agreed).
In the particular circumstances of this case the guilty plea was an admission by the appellant that he had incited Natalie to carry Erica away by force without her consent, and that his intention was that she should carry that out. The force which Natalie was incited to use included the use of a knife.
Record of interview 6 July 2011
A record of interview was conducted with the appellant on 6 July 2011. The matters I consider to be of particular relevance in that record of interview, and my conclusions in relation to them, are as follows.
At every opportunity the appellant suggested that the activities concerning the proposed kidnapping, and the production of the items in the shed to which I have referred, were undertaken either as a joint endeavour with Natalie or, indeed, at Natalie’s instigation. In fact, as is revealed by the chronology I have set out, Natalie had told her mother of what the appellant was saying and doing the day after he made the list in her diary. By the time Natalie and the appellant went shopping for the items which the appellant then modified in the shed, Natalie had already gone to the police.
The appellant consistently attempted to portray what had occurred as a joke. By his plea he has admitted that he intended the kidnapping to occur.
The appellant was prepared to accept that the messages concerned an abduction ‘possibly’ without consent or using force. By his plea he has admitted that the taking of Erica was to be without consent and that he intended force to be used.
He agreed the reference to ‘kfe’ was a reference to a knife. His explanations for what he had said about the knife were not credible. In any event, they are inconsistent with his plea.
The appellant acknowledged that some of the items he had made were intended for use upon a female, although he suggested that this would have been with consent. His suggestions concerning consent are also not credible.
There are a number of references in the record of interview to things the appellant is alleged to have suggested about children. These matters do not form part of the factual basis of the plea.[2]
[2]There is a brief reference to a child in the prosecution’s opening on the plea hearing. A document entitled ‘Brief Outline of Submissions to be made on behalf of Nathan Smith‘ dated 20 September 2013, tendered on the plea as Exhibit D1, contained the following statement:
[T]he plea is made on the basis that Mr Smith at no time had any desire to kidnap a child or engage in sexual activity with children.
This proposition was accepted by the prosecutor at the plea hearing.
Report of Dr Danny Sullivan
Dr Sullivan’s report sets out the appellant’s personal history and the explanation he gave for the offending, which reflected the explanations he had given in his record of interview. Dr Sullivan’s conclusions are important and I quote them in full:
Mr Smith provides an unremarkable account of his background, family, education and employment. He reported completing secondary school with a good TER score but his subsequent employment has been as an apprentice and as a driver.
Mr Smith has provided a minimising history. His statements to police indicate that he harboured ideas of sadistic sexual practices towards others. He sought to attribute these to his girlfriend at the time but I consider that the bland account he provides, does not explain his interest in abducting another person and inflicting pain upon them. I consider it disingenuous for Mr Smith to suggest that having abducted a woman they might then consent to having their nipple pierced or a “spike” inserted in their vagina.
Similarly Mr Smith has sought to attribute responsibility for such considerations to his then–girlfriend [Natalie], and to suggest that these ideas arose from their sex play and her interest in these themes. In the research literature and my clinical experience, such sadistic themes in women are extremely rare and generally arise in a compliant or submissive woman under the persuasion of a dominant male partner in situations or [sic] marked coercion or duress, or in significant mental disorder, generally gross personality disorder.
It is concerning that Mr Smith has prepared a list of items and engaged in behavioural preparation for the commission for an offence, by generating a range of items associated with sexual sadomasochism. Once more, Mr Smith’s attribution of the ideas to [Natalie] and his reportedly benign participation in the manufacture of these items is unconvincing.
Mr Smith does not appear to have any overt mental disorder. There is no indication of psychosis, mood disorder, cognitive impairment or other mental illness. Although he reported having left an apprenticeship after witnessing a death, he does not report core features of post-traumatic stress disorder (PTSD) and appears to have dealt with this event appropriately.
There is no indication that any mental disorder is associated with the alleged offending. There is insufficient information about Mr Smith’s personality but the nature of the offences and his presentation raises concerns about abnormal personality structure.
His prior conviction, the degree of sexualised preoccupation and the nature of these charges raises significant concerns about a diagnosis of paraphilia. Mr Smith is minimising and permits no frank discussion of his motivations or interests. The past charges raise concerns about diagnoses of paedophilic disorder although on the materials available to me I would regard this as a provisional rather than established diagnosis. However the current charges strongly suggest an underlying sexual sadism disorder. Interests in related pornography, preparation of materials for sexual purposes and a willingness to abduct a person would meet the criteria for the latter diagnosis, notwithstanding Mr Smith’s suggestion that he would seek consent for the infliction of sexualised pain.
Mr Smith should be assessed for the Sex Offender Program. In the absence of offence–specific treatment I would hold significant concern about the risk of future offending. Although his guardedness is understandable at this stage of proceedings, if he continues to minimise his offences after sentencing and on engagement in treatment, I would be concerned that treatment would have little impact upon future offending risk.
There is no indication that he requires any other treatment such as mental health referral or drug and alcohol treatment.[3]
[3]Italics in the original.
The plea hearing
Before turning to the sentencing reasons it is necessary to say something about the submissions that were made to the sentencing judge on the plea hearing.
Whilst counsel for the appellant disavowed any intention to blame Natalie, he spent some considerable time taking the judge through text messages sent by Natalie, which were set out in a 41 page document which he tendered. The submission was directed towards establishing the proposition that there was a mutual interest in ‘sexual fantasies’ and ‘unusual sexual practices’, including ‘sexual activity involving violence and enjoyment of watching others in pain’ and ‘sadomasochism’. Counsel for the appellant submitted that this had a ‘flavour of being a young … immature relationship’.
Counsel for the appellant referred to the fact that the guilty plea was a late one but submitted that the plea still had utility value, and the judge responded: ‘I accept that’. Subsequently the prosecutor also explicitly accepted the utilitarian value of the guilty plea whilst submitting that on the material there had been no remorse shown.
In relation to the circumstances of the offending the following interchange occurred between her Honour and counsel for the appellant:
HER HONOUR: … [C]an I say this, that at this stage leaving aside any agreement or non-meeting of minds between Crown and defence …[t]he material satisfies me of an incitement to kidnap for the purpose of sexual activity.
[COUNSEL]: Yes.
HER HONOUR: The material raises a high possibility, even a probability that there was an intention to engage in sexual activity whether [Erica] consented or not and to inflict pain and injury on her in the process, whether she consented or not.
[COUNSEL]: Yes.
In relation to guidance from other sentences, counsel for the appellant told her Honour that, having spent a lot of time on preparation, he was not able to find much that was of guidance in other cases. Counsel for the appellant conceded that the offending was serious.
In relation to delay, the prosecutor submitted that much of the delay was attributable to the conduct of the appellant in firstly avoiding contact with the police until July 2011, and then absconding after pleading guilty. The prosecutor also referred to delay ‘in the normal course’ where there is a contested committal and there is to be a trial. The prosecutor acknowledged the mitigating circumstance that there had been no further offending during the period of the delay.
In reply, counsel for the appellant dealt with delay in the following terms:
[COUNSEL]: … I didn’t press the delay point. I mean there is some delay there — I suppose – – –
HER HONOUR: [Prosecutor] has fairly conceded that you can get benefit from the fact that there are no subsequent offences and nothing pending.
[COUNSEL]: Yes, and that’s the way it’s put, your Honour, it doesn’t go any further than that.
Reasons for sentence
The sentencing judge set out the circumstances prior to the offence in some detail. I will not repeat that detail save to say that she referred to conversations in which the appellant spoke about ‘raping, torturing and killing’ an unidentified female and about ‘very specific and brutal acts of sexual torture’.[4]
[4]DPP v Smith (Unreported, County Court of Victoria, Judge Hampel, 19 February 2014) (‘Sentence’) [7].
In relation to the offence itself the sentencing judge said:
By then you had spelt out the role Natalie was to play. She was to contact Erica, arrange to meet her and then at knifepoint bring her to you, so you could then engage in sexual activity with her. It was clear from your discussions with Natalie that Erica’s consent was not a necessary part of the plan and that there was the potential for you to engage in sexual activity with Erica without her consent and the potential for you to use the weapons which had been purchased, modified or discussed.
There the planning stopped because Natalie, although apparently acquiescing in what you were saying and doing, had in fact told her mother and then the police what you were planning and the steps that you had taken to buy and construct the torture instruments.[5]
[5]Sentence [14]–[15].
The sentencing judge later said:
The prosecution case is put on the basis that you incited Natalie to pursue a course of conduct that would involve both you and Natalie kidnapping Erica. In particular, the case is put on the basis that you incited Natalie to take part in the kidnapping of Erica by having Natalie contact Erica by SMS and arrange for Erica to collect Natalie in her car, and for Natalie then to produce a knife and compel Erica to drive to meet you so that you could engage in sexual activity with her, possibly without her consent, and potentially use the weapons that you had made during that sexual activity. Whilst maintaining that your instructions were that there was no incitement to or intent to rape or to cause serious injury, your counsel confirmed that the basis of your plea of guilty was that which I have just set out.[6]
What her Honour said about the prosecution case was close to a verbatim repetition of a passage in the prosecution’s opening at the plea hearing. The confirmation referred to was I think a reference to the interchange during the plea which I quoted earlier.
[6]Sentence [23].
She then said:
I must and do sentence you for the charge of incitement to kidnap. But the matters that I have detailed are an essential part of the context in which the offending occurred and so relevant to the assessment of the seriousness of the offence of incitement to kidnap and the seriousness of your offending.[7]
[7]Sentence [24].
Later, after describing the appellant’s discussions and other dealings with Natalie in relation to the items purchased and modified, the sentencing judge said:
Whether you would have carried out these violent acts you had prepared the weapons and items for, or whether you would have raped Erica, we will never know. But they are the context in which the incitement of Natalie to kidnap her friend must be viewed.[8]
[8]Sentence [52].
The sentencing judge referred to the record of interview,[9] and to the charges initially made and the eventual plea.[10]
[9]Sentence [19]–[21].
[10]Sentence [22].
The sentencing judge referred to the account given to the police and to Dr Sullivan which she said ‘minimised the offending or sought to attribute much of the responsibility to Natalie’.[11] The sentencing judge went on to say:
Attributing blame, or much of it to Natalie, was also the thrust of [appellant’s counsel’s] submissions on the plea, that is despite the guilty plea that was entered and the basis on which it was entered.[12]
[11]Sentence [25].
[12]Sentence [25].
The sentencing judge gave reasons why she rejected the suggestion that responsibility should be attributed to Natalie. In particular, she set out the chronological sequence of events, highlighting Natalie’s report of the matter to her mother and their attendance at the police station before the items eventually modified in the shed had been purchased. The trial judge also relied upon Natalie’s age, which she mistakenly expressed to be 16 when she was by the time of the offending 17,[13] and upon Dr Sullivan’s conclusions.[14] Throughout the sentence Dr Sullivan’s conclusions were referred to and adopted by the sentencing judge.[15]
[13]Sentence [28].
[14]Sentence [29].
[15]Sentence [29]–[30], [36]–[37], [42], [44]–[45], [49].
The sentencing judge dealt with the victim impact statements briefly.[16]
[16]Sentence [31].
She dealt with the prior conviction for stalking at some length,[17] stating that there were four matters of concern. They were: the timing of the offence itself, of the court appearance, and of the attendance at Community Corrections immediately prior to the purchases of the items that were modified; the circumstances of the offence; the fact that the offence took place whilst he was in a relationship with Natalie; and the breach of the community based order.
[17]Sentence [32]–[37].
The sentencing judge set out the appellant’s personal background.[18] She observed that he comes from an unremarkable family background, that he was 22 at the time of offending and almost 26 at the time of sentence, and that he had formed a new relationship with a woman who had relocated to Sydney to be with him after he had absconded there. The sentencing judge observed that he had successfully completed year 12 and was ‘at least’ of average intelligence. He has a good work history.
[18]Sentence [38]–[43].
The sentencing judge dealt with the issue of delay, adopting the approach of both counsel during the plea.[19]
[19]Sentence [46]–[47].
The sentencing judge dealt with the offence of failing to answer bail.[20] There is no appeal on the sentence imposed for that offence.
[20]Sentence [48].
Reference was made to the failure to be assessed for sex offender treatment under the community based order and to the appellant’s now expressed preparedness to participate in sex offender treatment. The judge referred to the importance of denunciation, deterrence and protection of the community.[21] The sentencing judge suggested that in assessing the seriousness of the offence a relevant factor was that the appellant had sought to ‘inveigle a 16 year old girl’ into the kidnapping.[22] As indicated, Natalie was in fact 17 by the time of the offending.
[21]Sentence [50]–[51].
[22]Sentence [52].
On the charge of incitement to kidnap the sentencing judge imposed a sentence of 7 years’ imprisonment. A 3 months’ sentence imposed for failing to answer bail was cumulated to make a total effective sentence of 7 years 3 months. A non-parole period of 5 years was fixed. Her Honour made a declaration under s 6AAA of the Sentencing Act to the effect that but for the plea of guilty she would have imposed a total effective sentence of 10 years with a non-parole period of 8 years.
Submissions on the appeal
It was submitted on behalf of the appellant that the sentence imposed on the charge of incitement to kidnap was manifestly excessive.
Within that context, it was submitted that whilst the plea of guilty in this case was not indicative of remorse it did have significant utilitarian value. It was submitted that the failure of the sentencing judge to advert to the utilitarian value of the guilty plea in the course of what were described as her ‘extensive and thorough’ sentencing reasons suggests a failure to give appropriate weight to it. It was submitted that this failure to refer to the guilty plea’s utilitarian value was not saved by the s 6AAA declaration.
It was also submitted that the sentencing judge had not adverted at all in her reasons to the youthfulness of the appellant at the time of the offending. At the time of the offending he was 22. It was submitted that the judge did not appear to give this factor any weight.
In relation to delay, it was submitted that this had been a relevant factor which was not merely confined to the absence of offending during the period of the delay.
Reference was made to the appellant’s personal background and antecedents.
The appellant also made submissions on current sentencing practice which I will deal with separately.
In relation to the second ground of appeal, in the written submission filed on the appellant’s behalf complaint was made as to the trial judge’s characterisation of the submission made on the plea concerning the text messages emanating from Natalie to the effect that this had been another attempt by the appellant to minimise his conduct.
In oral submissions a more fundamental complaint was made concerning the way the sentencing judge had approached the circumstances of the offence. It was submitted that the judge had treated the ‘fantasies’ expressed in the conversations and text messages as if it had been proved beyond reasonable doubt that that was the appellant’s intention. It was submitted that the sentencing judge had been wrong to proceed on the basis that it had been established that the appellant had intended to carry out the ‘fantasies’ he had described.
It was also submitted that the sentencing judge’s conclusion that it was relevant to the seriousness of the offence that the appellant had ‘inveigled’, or as it was put in oral submissions, ‘corrupted’ a teenager, was inconsistent with the text messages Natalie had been sending at the time and was a conclusion which could not properly be drawn.
On behalf of the prosecution it was submitted that the sentencing judge had not gone beyond the material in the Crown’s plea opening and that the conclusions she had drawn in relation to the offending were fully warranted by the material before her.
It was submitted on behalf of the prosecution that there was no current sentencing practice which was relevant, but that the maximum penalty of 25 years’ imprisonment gives a good guide to the seriousness of the offence and that this was a serious example of this kind of offence. The prosecution submitted that the sentencing judge had properly taken into account all of the relevant matters.
In relation to the utilitarian value of the guilty plea and the issue of delay, reliance was placed upon what had occurred during the plea hearing. In respect of the former, reference was also made to the decisions of this Court in Sherna v R[23] and in Phillips v R.[24]
[23](2011) 32 VR 668.
[24](2012) 222 A Crim R 149.
In relation to youthfulness it was submitted that the sentencing judge was clearly aware of the appellant’s age at the relevant time. Citing Attorney-General v Clarke,[25] R v Gray[26] and R v Giakas,[27] counsel for the prosecution submitted that a sentencing judge was not required to expressly refer to each element that plays a part in the sentencing process.
[25](Unreported, Court of Criminal Appeal of Victoria, Gillard, Lush and Crockett JJ, 20 May 1975).
[26][1977] VR 225.
[27][1988] VR 973.
In reply, counsel for the appellant submitted that the Court could properly take account of the submissions made concerning delay on appeal notwithstanding what might have been submitted or conceded in the course of the plea hearing.
Current sentencing practice and comparable cases
There are no sentencing statistics for this offence and no prior sentence for this offence was identified by counsel.
In the appellant’s written case reliance was placed on a table of sentences for the offence of incitement to murder,[28] and on a table of sentences for incitement of other offences.[29] After the hearing, pursuant to leave, the applicant filed a table of Court of Appeal decisions in cases involving consideration of sentences for kidnapping.[30]
[28]R v Pratley [2013] VSC 298; R v Leak [2011] VSC 212; R v Koljatic-Bestel [2011] VSC 124; Natale v The Queen [2011] VSCA 28; R v Traycevska [2010] VSC 270; R v Withers [2009] VSCA 306; DPP v LW [2009] VSC 227; R v Maccia (2005) 125 A Crim R 88; R v Skura [2004] VSCA 53; R v Zhong (2003) 139 A Crim R 220; R v Gazdovic [2002] VSC 485; R v Massie [1999] 1 VR 542.
[29]R v Elias [2013] VSC 123 (cause serious injury); Driver v The Queen [2012] VSCA 242 (armed robbery); R v Grillo [2003] VSCA 143 (criminal damage); R v Sahin [2000] VSCA 145 (blackmail).
[30]Hanna v The Queen [2014] VSCA 187; DPP v Saltmarsh [2013] VSCA 290; Cini v The Queen [2013] VSCA 115; Contin v The Queen [2012] VSCA 247; Talbot v The Queen [2012] VSCA 118; Buchwaldv The Queen [2011] VSCA 445; Bui v The Queen [2011] VSCA 404; Hills v The Queen [2011] VSCA 364; Saenz v The Queen [2011] VSCA 154; Kanakaris v The Queen [2010] VSCA 120; R v Johnston [2008] VSCA 133; R v Rout [2008] VSCA 87; R v McEachran (2006) 15 VR 615; R v Nobile [2006] VSCA 211; R v Clarke [2006] VSCA 174; R v Alipek [2006] VSCA 66; R v Bisset [2005] VSCA 10; R v Zaydan [2004] VSCA 245; DPP v Ramos [2003] VSCA 215; R v Vodopic [2003] VSCA 172; R v Chimirri [2003] VSCA 45; R v Arico (No 2) [2002] VSCA 230; R v Truong (2002) 5 VR 1; R v Cunliffe [2000] VSCA 146; R v Walker [2000] VSCA 117; R v Nguyen [1998] 4 VR 394; R v Lowe [1997] 2 VR 465; R v Denyer [1995] 1 VR 186; R v Wells [1995] VSC 35.
On the appeal hearing and in a written response to the table of Court of Appeal decisions the prosecution submitted that as no sentences for this particular offence had been identified, there was no current sentencing practice which was relevant. In that respect the prosecution relied on passages quoted from DPP v CPD[31] and Ashdown v The Queen.[32]
[31](2009) 22 VR 533, 552 [77]–[78].
[32](2011) 37 VR 341, 400 [174]. At the hearing the prosecution also referred the Court to Buchwald v The Queen without submitting that it was comparable: [2011] VSCA 445. In Buchwald, the offender kidnapped his girlfriend for 10 days in an attempt to get her to marry him in the course of which the offender assaulted his girlfriend and tied her up. On the count of kidnapping, the offender was sentenced to seven years and six months’ imprisonment.
In my view the prosecution’s submission was overly rigid, and the passages relied upon do not preclude consideration of sentences for relevantly similar offending even if the offence committed is not the same.
I have considered the tables upon which the appellant relies and the sentences referred to in those tables.
In respect of the incitement to murder cases cited by the appellant those in which the offender pleaded guilty and received a custodial sentence are of more potential relevance.[33] Those sentences range between five years and six months, and seven years. By pleading guilty to incitement to murder an accused admits an intention that the murder be committed. In this case the relevant intention admitted by the plea does not go beyond the taking of Erica by force. Murder is the most serious offence known to the law, but kidnapping is also a very serious offence, as the maximum penalty of 25 years’ imprisonment reveals. The context of the offending here was very serious.
[33]R v Withers [2009] VSCA 306 (7y x 2); Natale v The Queen [2011] VSCA 28 (7y x 2); R v Leak [2011] VSC 212 (6y and 3y); R v Traycevska [2010] VSC 270 (5.5y and 5y); R v Gazdovic [2002] VSC 485 (5.5y x 2).
The other cases of incitement to commit offences relied upon by the appellant are of little assistance.
As to the table of kidnapping sentences, the assistance to be gained from them is also limited. The range of sentences is very wide, reflecting the very wide range of offending conduct with which they are concerned. The sentences range from 1.5 to 15 years’ imprisonment. There is often other more serious offending conduct involved as a result of which little direct consideration is given to the kidnapping itself.
Of the many cases referred to, only one — Saenz v The Queen (‘Saenz’) — seemed to me to be sufficiently comparable to be of any real assistance.[34] In Saenz, a man without prior convictions was convicted at trial on one count of attempted kidnapping of a 14 year old girl. In the attempt, the man grabbed the victim by the arm before she escaped. He then pursued her in his car. He was sentenced to six years’ imprisonment with a non-parole period of three years and nine months. Leave to appeal conviction and sentence was refused. There was no manifest excess ground.
[34][2011] VSCA 154.
I have also reviewed a number of sentences, in addition to those referred to by the applicant, handed down in recent years for what might be called sexually motivated offending involving kidnapping,[35] attempted rape,[36] abduction or detention with intent to sexually penetrate,[37] assault with intent to rape[38] and false imprisonment.[39] Again, the assistance to be gained is very limited. Often the relevant offence is subsumed by more serious related offending. In the case of abduction, assault with intent to rape and false imprisonment, the offences are not only different but have a maximum penalty of 10 years’ imprisonment, significantly below the maximum for this offence.
[35]Hewson v The Queen [2011] VSCA 57; R v De Gruchy [2006] VSCA 10.
[36]R v Dinsley [2013] VSC 631; Tamamovich v The Queen [2011] VSCA 330; Balassis v The Queen [2010] VSCA 296; R v Hakeem [2009] VSCA 131; DPP v McCloy [2006] VSCA 99.
[37]Pilgrim v The Queen [2014] VSCA 191; El Waly v The Queen [2012] VSCA 184; Singh v The Queen [2011] VSCA 317; DPP v Dowie [2009] VSCA 154; R v Davies [2005] VSCA 90.
[38]Leeder v The Queen [2010] VSCA 98; R v Bourke (2009) 21 VR 471; R v Minaoui [2004] VSCA 126; R v Nikolaidis [2003] VSCA 191.
[39]Roberts v The Queen [2012] VSCA 313; Bavage v The Queen [2012] VSCA 149; Bowen v The Queen [2011] VSCA 37; R v Welsh [2005] VSCA 285; R v Vivona [2005] VSCA 205.
Analysis – ground 2 – error in treatment of the circumstances of the offence
In relation to the written submission made on the appeal concerning Natalie’s text messages, having reviewed them myself, it seems to me that there was little of substance in what was put on the appellant’s behalf at the plea hearing. But more importantly, what was put on the plea did reflect the way the appellant had characterised what had occurred to both the police and Dr Sullivan. It seems to me that there was no error by the sentencing judge in making an observation to that effect.
The sentencing judge was in error when she said that Natalie was 16 at the time of the offending. She was 17. The sentencing judge was nevertheless correct to say that on the material before her the appellant had ‘inveigled’ Natalie into this scheme. Given Natalie’s conduct in reporting the matter to her mother and the police, the suggestion that she was a willing participant in the actual scheme (as opposed to fantasies) was untenable. The error as to Natalie’s age was not material.
The submissions made orally that the sentencing judge had wrongly proceeded on the basis that the appellant’s ‘fantasies’ had been his intention was based upon the principle that a sentencing judge cannot reach a conclusion on a controversial factual matter adverse to the offender unless that matter is established beyond reasonable doubt.[40]
[40]R v Storey [1998] 1 VR 359; Formosa v The Queen (2012) 36 VR 679.
In my opinion the sentencing judge did not make a finding that the appellant intended to engage in sexual activity without Erica’s consent and intended to use the objects he had acquired and modified to inflict pain and injury upon her. What she did find was that expressed intentions to that effect were a part of the discussions the appellant had with Natalie during the planning process,[41] as opened on the plea by the prosecution,[42] and were an essential part of the context in which the charged offence, incitement to kidnap, had occurred.[43] The sentencing judge expressed herself to be conscious of the need to sentence only for that charged offence.[44]
[41]Sentence [14]–[15].
[42]Sentence [23].
[43]Sentence [24], [52].
[44]Sentence [24].
The sentencing judge did not go beyond what was in the prosecution’s opening in relation to these matters. She had put the substance of them to the appellant’s counsel during the plea and he had accepted what she put to him.
The material before the sentencing judge warranted the relevant conclusions she reached and which she set out in her sentencing reasons. In this respect I refer in particular to the chronology of events I have earlier set out and to the parts of the record of interview to which I have referred.
I do not consider that there was an error by the sentencing judge in her factual conclusions. I do not interpret what she said as a positive finding that the appellant intended to carry out what he had said. But the fact that he had said those things and made those preparations was established and was relevant to a description of the planning process, and was an essential part of the context of the offence, as the sentencing judge said.
Although it was not put in this way, I have also considered whether anything the sentencing judge said infringed the principles addressed in R v De Simoni (‘De Simoni’).[45]
[45](1981) 147 CLR 383.
In De Simoni, Gibbs CJ said that a sentencing judge ‘cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence’.[46] He also said:
[W]here the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.[47]
[46]Ibid 389.
[47]Ibid 392.
In my view the sentencing judge rightly took into account what was said and done by the appellant in the planning process. This is the context in which the offending occurred and is relevant to how serious it was.
The sentencing judge would have been wrong to treat the possibility that other offences might have been committed after the kidnapping as a relevant matter. The interchange with counsel during the plea may have been interpreted that way. But in her sentencing remarks the judge made it clear that she was confining herself to the offence charged without ignoring the context in which that offence occurred.
I do not consider that the sentencing judge strayed into an approach whereby the appellant was to be sentenced for a crime of which he was not charged, and which he might have committed had the kidnapping gone ahead.
As I indicated, De Simoni was not the basis upon which this ground was argued on the appellant’s behalf on the appeal.
I would reject ground 2.
Analysis – ground 1 – manifest excess
The matter focused upon on the appeal was the manifest excess ground. Consistently with well-established authority,[48] the submissions made concerning whether adequate weight had been given to the utilitarian value of the guilty plea, youthfulness, and delay, were all treated by the appellant’s counsel as particulars of the ground that the sentence was manifestly excessive.
[48]See, eg, R v Giles [1999] VSCA 208 [13].
The issues of delay and the utilitarian value of the guilty plea were expressly dealt with during the course of the plea hearing. Counsel and the judge appear to have been of one mind in relation to their significance. The utilitarian value of the guilty plea was accepted. The judge dealt with delay in her reasons in terms which reflected what both counsel had put to her, and which I consider to be correct in the circumstances of this case.
As to youthfulness, the sentencing judge demonstrated that she was well aware of the appellant’s age. The fact that he was aged 22 at the time of the offending was almost the first matter to which she referred when recounting the circumstances of the offence,[49] and was the first matter she referred to when dealing with his background and personal circumstances.[50]
[49]Sentence [2].
[50]Sentence [38].
The appellant was youthful at the time the offences were committed. In assessing the nature and gravity of the crime and the offender’s moral culpability the relevant point in time to assess the ‘youthfulness’ of the offender is the date of offending.[51] Otherwise, the age of the offender at the time of sentence is the relevant time.[52]
[51]R v Boland (2007) 17 VR 300, 304 [16] cited with approval and applied in R v Miller [2011] VSCA 143 [67]–[77].
[52]R v Mills [1998] 4 VR 235, 241.
In this case, the mitigating effect of the appellant’s youth at the time of the offending had to be diminished by the seriousness of the offending conduct, his refusal or inability to accept responsibility for it, and the circumstances concerning the prior conviction.[53] These are all matters addressed by the sentencing judge.
[53]See, generally, R v Mills [1998] 4 VR 235 and Azzopardi v The Queen (2011) 35 VR 43.
I do not consider that the sentencing judge overlooked or failed to address any relevant matter concerning the offender’s age. She might have referred to it expressly as a mitigating factor (subject to the other considerations I have set out). I do not consider that she was bound to do so.
The maximum penalty for this offence reveals its seriousness. Apart from life imprisonment, it is the highest maximum provided for. The circumstances of this particular offence are unusual, disturbing, and concerning.
The offender’s attitude to the offending as revealed by his record of interview and what he told Dr Sullivan exacerbates that concern. The sentencing judge’s conclusion that the appellant’s prospects for rehabilitation must be seen as ‘guarded’[54] was a more favourable one to the appellant than that which might have been reached based upon Dr Sullivan’s report. Dr Sullivan’s report reveals that there are grounds for significant concern in relation to the effectiveness of intervention and the prospect of further offending.
[54]Sentence [49].
The fact that the offending occurred not long after the stalking offence was committed (the circumstances of which were themselves concerning), that the offending occurred very shortly after he had been placed on a community based order for that offence on conditions requiring assessment for sex offender treatment, and that it occurred immediately after attending the Community Corrections office as required under that order, also exacerbates the concern.
The comparable cases, such as they are, suggest to me that a sentence of 7 years’ imprisonment is at the top of what might be considered the range but that it is not outside it.
The ground of manifest excess can only succeed if it is shown that the sentence was ‘wholly outside the range of sentencing options available’.[55] The ground is stringent and difficult to make good.[56]
[55]Clarkson v The Queen [2011] 32 VR 361, 384 [89].
[56]Ayol v The Queen [2014] VSCA 151 [30].
Given the unusual and concerning circumstances of this offending, in my view the appellant has failed to establish that the sentence imposed was wholly outside the range of sentencing options available.
The appeal should be dismissed.
---
3
73
0