Tubb v The State of Western Australia - [2007] WASCA 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TUBB -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 106

CORAM: STEYTLER P
McLURE JA
MILLER AJA

HEARD: 17 MAY 2007

DELIVERED : 24 MAY 2007

FILE NO/S: CACR 118 of 2006

BETWEEN: DEREK JAMES TUBB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 544 of 2006

Catchwords:

Criminal law - Sentencing - Kidnapping - Whether sentence manifestly excessive - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms L D O'Connor

Solicitors:

Appellant: Ian Hope
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Ahmad v The Queen [2003] WASCA 234
Chan (1989) 38 A Crim R 337
Payne v The Queen (2002) 131 A Crim R 432
Peters v The Queen [2000] WASCA 28
R v von Pearson [2006] QCA 292
Ricciardello v The Queen [2001] WASCA 416

STEYTLER P: I agree with McLure JA.
McLURE JA: The appellant was convicted on his own plea of guilty of one count of kidnapping with intent to cause a detriment contrary to s 332 of the Criminal Code (WA) ("Code") and one count of assault occasioning bodily harm contrary to s 317(1) of the Code.
On 26 May 2006 the appellant was sentenced to a term of imprisonment of 5 years and 7 months for the offence of kidnapping and 2 years and 7 months for the offence of assault occasioning bodily harm. The learned sentencing Judge ordered that the sentences be served concurrently with the result that the total effective sentence is 5 years and 7 months. The appellant was made eligible for parole.
The appellant applies for leave to appeal against the sentence imposed for the offence of kidnapping on the sole ground that it is manifestly excessive.
The material facts are as follows. At about 7.15 pm on 22 November 2005 the complainant, a 19‑year old slightly built man, was led from the Court Hotel by a group of men, including the appellant, and taken to a house in East Perth. The sentencing Judge accepted that the appellant did not know that the complainant was taken from the hotel unwillingly. The appellant joined in punching the complainant on arrival at the house. The principal offender threatened the complainant with a 20 cm kitchen knife pushed up to his chest and the appellant produced a pocket knife which he offered to the principal offender.
At about 8 o'clock that evening the complainant was very tightly handcuffed by the appellant with his hands behind his back. The appellant and the principal offender dragged the complainant to the back shed where his legs and feet were bound with masking tape. He was gagged and a rag stuffed in his mouth, blindfolded and pushed onto a lounge with a box on him. The appellant kept watch outside the shed and when the complainant freed his feet and spat out the gag, the appellant punched him in the face.
Sometime later, the principal offender and the appellant dragged the complainant into the kitchen of the house. His hands had gone numb from the handcuffs and he begged them to loosen the cuffs but they declined. The appellant used his pocket knife to cut the complainant's shirt off, exposing visible chest injuries. The appellant dragged the complainant by the feet, still handcuffed, to the bathroom, where the

complainant was held under alternate cold and hot water in the bath tub. The hot water was not hot enough to burn him. The appellant used his foot to push the complainant under the cold water. The principal offender told the appellant "You have an hour. No blood" and at this stage the complainant feared for his life. On orders from the principal offender, the appellant later removed the masking tape and cuffed the complainant's hands in front of his body. The complainant was ordered to clean the bathroom and later that night in the lounge room a dog choker chain was put around his neck and on several occasions paper was put into the complainant's mouth and tape was used to hold it. The offenders purchased pizza and the complainant was kicked and forced to eat the crusts while crawling on the floor. The appellant bound the complainant's legs with masking tape and the complainant was handcuffed to the lounge and forced to sleep in that position that night.

During the following day the complainant's restraints were removed and he was allowed to move around the house but the door was padlocked. The appellant gave him water. The complainant was treated as a slave, made to clean the house and prepare the principal offender's dinner. He was handcuffed and taken outside when it was necessary to go to the toilet. During the evening he was handcuffed to the lounge. In the early morning on 24 November 2005 the complainant woke. Everyone else apart from the appellant was asleep. The appellant removed the complainant's handcuffs. Nothing was said and when the appellant fell asleep, the complainant escaped and notified police. In his video record of interview with police the appellant said he did not know why he removed the handcuffs or whether he wanted the complainant to escape.
The complainant's ordeal lasted approximately 35 hours and he suffered extensive cuts, abrasions, swelling, bruising and tenderness over his entire body.
The sentencing Judge found that the appellant was not the principal offender but was second in command. He followed orders and also acted independently at times. The appellant was arrested on 28 November 2005 and made significant admissions during a video record of interview with police. He subsequently made a fast track plea of guilty.
The appellant was aged 21 at the time of the offences. He was born in Tasmania, left school when he was 16 and worked as a graphic designer although was unemployed for some time preceding the offences. The appellant reported that he was using cannabis heavily at the time. The appellant had only been in Western Australia for a few weeks when he committed these offences. He has no prior criminal record in Western Australia but has a conviction in Victoria for possessing a controlled weapon without excuse. According to the psychiatric report, the appellant has no current diagnosed mental illness, although he was diagnosed with mild manic depression in 2004.
To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender (Chan (1989) 38 A Crim R 337 at 342). The maximum penalty for the offence of kidnapping with intent to cause a detriment is 20 years' imprisonment.
The appellant relies on four cases in support of the submission that the kidnapping sentence was outside the range customarily imposed, being Ahmad v The Queen [2003] WASCA 234, Payne v The Queen (2002) 131 A Crim R 432, Ricciardello v The Queen [2001] WASCA 416 and Peters v The Queen [2000] WASCA 28. The sentences in those cases were imposed before the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). For comparative purposes, I propose to convert the sentences imposed in those cases to post‑transitional sentences by reducing them by one third.
In Ahmad the appellant was convicted after trial on one count of aggravated burglary, six counts of deprivation of liberty, one count of kidnapping and one count of extortion. He received a total effective sentence of 8 years and 8 months. The highest individual sentence was 4 years and 8 months for each of the kidnapping and extortion offences. The offences were committed as part of a continuing transaction lasting approximately 18 hours. The appellant and his co‑offender, who were armed with a rifle and a hunting knife, broke into a house for the purpose of stealing property. The occupants of the house, a husband, wife and three children, were each bound at their ankles and hands. When it was apparent that the husband had money in a bank account, the wife was blindfolded and taken to the appellant's home and kept there under armed guard until the husband agreed to the appellant's demand that money be withdrawn from the account and paid to the offenders. After the offenders had received the money, the wife was left at a shopping centre. The appellant had a minor record of offending.
In Payne the appellant pleaded guilty to one count of kidnapping, two counts of threatening to kill and one count of extortion. He received a total effective sentence of 8 years' imprisonment. The highest individual sentence was 4 years for each of the kidnapping and extortion offences. All of the offences were committed as part of an attempt to extort $2 million from Burswood Resort Casino. The appellant threatened to detonate explosive devices unless a courier delivered the extortion money to him. An undercover police officer posed as the courier. The appellant threatened to shoot and kill the officer and ordered him to drive his vehicle to a specified location. Once at the location, the officer was forced to drink a liquid and ordered to remove his clothes. The appellant then left the scene but was intercepted shortly thereafter. The appellant had no prior convictions.
In Ricciardello the appellant was convicted after trial of one count of robbery with actual violence, one count of deprivation of liberty and one count of aggravated burglary. He received a total effective sentence of 5 years and 2 months' imprisonment. For the offence of deprivation of liberty he was sentenced to 3 years and 4 months' imprisonment. The maximum sentence for the offence of deprivation of liberty (s 333 of the Code) is 10 years. The maximum penalty for the offence of kidnapping is 20 years. The case is not comparable. Neither is the Queensland case to which the Court was referred (R v von Pearson [2006] QCA 292) because the maximum penalty for kidnapping in Queensland is 7 years.
In Peters, the appellant was charged with kidnapping, stealing a motor vehicle and robbery with a number of circumstances of aggravation. Those circumstances included pretending to be armed with offensive weapons and using actual personal violence. The complainant, a 72‑year old man, was sitting in his parked car when it was stolen by the appellant and his co‑offender who drove the complainant to an automatic teller machine from which the co‑offender stole $1000 from the complainant's account. The offending appears to have lasted for around three hours. The appellant entered an early guilty plea, voluntarily surrendered to police and had no significant prior record of offending. The appellant was sentenced to a total effective sentence of 6 years' imprisonment. The terms of the individual sentences is not made clear in the judgments.
The circumstances of the kidnapping offence in this case are at a higher level of seriousness than in Ahmad, Payne or Peters. That is primarily because of the very lengthy period of the complainant's confinement, the means used to secure his continued presence and the cruel and degrading treatment meted out to him during his detention. The circumstances of the offending are at such a comparatively high level of

seriousness as to justify the admittedly lengthy sentence imposed notwithstanding the appellant's youth and lack of any prior record. I am not persuaded that the penalty is manifestly excessive. Accordingly, the appeal must be dismissed.

MILLER AJA: I have read the reasons for judgment of McLure JA. I agree with those reasons and agree that the appeal should be dismissed.