New South Wales District Court CITATION: R v Philip Ronald SPIERS [2007] NSWDC 218 HEARING DATE(S): 29 October 2007 JUDGMENT DATE: 31 October 2007 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: See paragraphs [55] [56] [57] & [58] CATCHWORDS: Criminal Law - Sentence - Kidnapping - Cause injury to victim - Substantial harm - Unlawfully administer stupefying drug with intent - Aggravated sexual assault LEGISLATION CITED: Crimes Act Evidence Act CASES CITED: R v Rowe (1996) 89 A Crim R 467 R v Collett unreported NSWCCA 7.6.1979 PARTIES: Crown Philip Ronald Spiers FILE NUMBER(S): 06/31/0417 COUNSEL: H. Wilson (Crown) P Rosser QC (Offender) SOLICITORS: NSW DPP Greg Murray SENTENCE 1 In any civilised society women must be able to go about their daily business free from the risk that they will be kidnapped and violated by a man intent on having sex with them. Many women, like the complainant in this case, are unable to fight back against a stronger man who has planned and prepared his crime well. What makes crimes such as those I am about to describe particularly frightening is that, realistically, there is nothing that a woman can do to avoid it, short of never being in public alone, a clearly unrealistic alternative. 2 One thing which can be done however is for the Courts to react appropriately to offences of this kind, not only to deter others who might be tempted to give in to their lustful desires by dragging a woman off the street and raping her, but also to mark in a very concrete way the right of women to be free to live their lives in safety. 3 What happened to a young woman I will call Ms S happened a long time ago but I have no doubt that the offences have had, and will continue to have, an enormous impact on her life. 4 Ms S worked as a check out operator at a supermarket in Maitland. One day she went to work and, as she always did, parked her car in the Council car park near to her place of employment. On the 2nd of October 1997 there was a man waiting for her. He wasn't waiting for her in particular but was waiting for a woman so that he could kidnap, drug and rape her. Unfortunately for Ms S it was she who was chosen. 5 She drove into the car park at about 10.15 am. The offender had been waiting for an appropriate victim for more than an hour by this time. She got out of her car and was approached by the offender. He had a rubber glove on his right hand and was carrying a black sports bag. He asked Ms S the time and when she replied, he presented a knife towards her saying "if you do what I tell you, you won't get hurt". She begged him, saying "don't do this to me" but the offender simply grabbed her car keys from her hand and opened the boot of the car. He then forced her into the boot before locking it and driving Ms S away. 6 This was the beginning of a terrifying, violent, and lengthy period in which she was held captive by the offender. 7 Ms S was aware that the car was travelling for some time. In fact the offender drove to an isolated location until he stopped the car for the purposes of doing things to Ms S which would make her more compliant with what he had planned. He first began to tie Ms S using yellow duct tape, wrapping it around her forearms, ankles and lower legs. He also put the tape over her eyes. He forced some tablets into Ms S's mouth saying, "these will help you sleep so you won't remember as much and it won't hurt". He also provided her with alcohol to drink. He then gagged her with duct tape preventing her from opening her lips or calling for help. The offender explained what he was doing. He said, "I'm not going to hurt you; I just want to have sex 'cause I have problems with girls". 8 The boot was again closed and Ms S was again trapped inside. The offender took Ms S to the garage of the home where he lived with his wife and children, they being out at the time. It was a hot day and Ms S became increasingly groggy from the effects of the tablets and alcohol she had been forced to consume. She was also very hot and sweaty in the boot and not surprisingly very terrified at what had occurred and what was about to occur. 9 Once they got to the offender's garage the offender opened the boot of the car. The statement of facts records that at this stage Ms S "felt paralysed by fear, so great was her terror". Unfortunately mere words such as these cannot convey adequately I am sure just what it was Ms S was feeling. 10 The offender removed the tape from Ms S' mouth asked her if she had a boyfriend and said "kiss me like I'm your boyfriend". He then forced his mouth onto hers and pushed his tongue inside her mouth. He then put his penis in Ms S' mouth before placing her on her side on the floor of the garage. At this stage Ms S' legs and arms were still bound and her eyes were still taped over so that she could not see. She knew full well what was going to happen but in order to discourage the offender she told him that she was menstruating. The offender replied that he did not care and simply removed a tampon from Ms S' vagina. 11 Ms S has difficulty recalling precisely what it was that occurred because of the effects of the alcohol and drugs upon her but she realised that at some stage the offender had removed her underpants and that her long skirt was bunched up around her waist. She recalls that the offender pushed his penis inside Ms S' vagina and moved it in and out for a minute or so before pulling it out. The offender then turned Ms S onto her stomach and reinserted his penis into her vagina from behind. It seems that the offender ejaculated. He then had the presence of mind to do something which was both disgustingly degrading and intended to minimise the chance that his identity would be revealed. He got a liquid, something like methylated spirits, and he used it to wipe down Ms S' body and flush out her vagina. Clearly the offender was minimising the chances that he would leave behind anything which could identify him. 12 Later on when the offender was arrested suggestions were made that at the time he was acting in a confused state. The activity I have just described suggests, quite to the contrary, that the offender was acting very rationally indeed. 13 At this stage the offender demanded to know Ms S' mother's telephone number as well as the pin numbers for her ATM cards. He stole jewellery from her and then reapplied the tape across her mouth. He then put her back into the boot of her car, bound and gagged, and drove off. He took the car to the Esplanade at Lorn, a quiet street near to the bridge over the Hunter River. There he abandoned both Ms S and her car. She was left trapped in the boot of her car drugged and tied up on a hot day, and it would turn out to be something in the order of 2 hours before she was eventually freed. 14 Ms S' mother got a telephone call from the offender at 12.30 pm, the offender told her that her daughter had not turned up to work that morning. As might be expected this caused Ms S's mother considerable anguish. She told her husband what had occurred. Ms S' boyfriend was there as well and they began a fruitless search for Ms S or her car. Police were involved and they too began to search. Ms S' mother returned home in distress and at about 2.30 pm got another telephone call from the offender. In this call he finally told her where Ms S' car was. Whilst Ms S' mother called the police her aunt telephoned her husband and asked him to go to Lorn. He found Ms S' car, telephoned police, and opened the boot. There he found Ms S bound, drugged and almost completely naked. He thought she was dead. Ms S was taken by ambulance to the John Hunter Hospital where she was examined by a doctor. She had a number of injuries which are set out in both the statement of facts and in a certificate under s177 of the Evidence Act signed by Dr Cheryn Palmer. I will return to those injuries later. 15 That same night between 7.30 and 8.00 pm the offender again phoned Ms S' home telephone. Her aunt answered the call and heard the offender ask, "did you find Emma yet". It is easy to overlook the significance of that call. Apart from one telephone call made about 2.30 earlier that afternoon the offender had made no other steps in the intervening 5 hours or so to ensure Ms S' release from the position that he had put her in. 16 The offender not only took property from Ms S' person and her car but over the next few days withdrew substantial sums of money from her bank accounts. 17 Forensic analysis of Ms S' blood determined the presence of alcohol, paracetamol, morphine and codeine. The level of codeine in Ms S' blood was high and well outside the therapeutic range suggesting that she had ingested a very large dose. 18 About 2 weeks after she was abducted and raped Ms S made what would later turn out to be a very significant discovery. She saw what appeared to be blood in 2 areas of her car and so she took the car to Maitland police station where samples of that blood were taken. Her presence of mind ultimately led to proof that it was the offender who was responsible for committing these terrible offences. 19 Police investigations in an attempt to identify the identity of the person who had abducted and raped Ms S were unsuccessful. In 1998 a man by the name of David Andrade was arrested and charged with these offences. His arrest received a great deal of publicity in the Maitland area but, fortunately, the prosecution of him for these offences was terminated by the Director of Public Prosecutions. It looked therefore as though the case would never be solved. 20 That was until police received information from a woman then living with the offender, Ms Sarannah Hawkins. They both worked for a company called Regal Motors. In late 2004 that company planned a series of television advertisements and the offender was asked to participate in those advertisements. This would have meant that his face would be shown on television in the Newcastle area. He refused to participate in those advertisements. He explained to Ms Hawkins "I don't want my face on local television. I did something a long time ago that I'm not proud of and I don't want to be put in a position that I could be recognised". 21 Some weeks later Ms Hawkins asked the offender what it was that he had done in the past and he told her "I raped a girl from Maitland". He then gave Ms Hawkins some information about what he remembered doing, which suggested that he had a reasonably good memory of the events. He also told her that he had the impression that his victim actually enjoyed what he was doing to her. When asked why he had done it he told Ms Hawkins that he had been bitten by a funnel-web spider and was having headaches at the time and was an angry person. It is worth noting at this stage that there is no evidence from any person close to him at the time that he was particularly angry around the time he committed this offence. Indeed the evidence from his former wife was to the contrary. The offender also told Ms Hawkins what he had done with the methylated spirits: to be precise he said, "I washed her out with metho". When she asked him whether he was worried about being caught he told Ms Hawkins that he didn't have to worry about that because the police had charged some bloke with his crime and he had therefore gotten away with it. 22 In September 2005 Ms Hawkins gave to police an item which had on it the offender's DNA. Forensic scientists were thus able to compare the offender's DNA with that removed from the blood stained carpet of Mr S' car way back in October 1997. They proved to be identical and so it was the offender was arrested on 14 December 2005 at his place of employment. He was taken to Newcastle police station where he said, "I don't know what to say or how to say whatever but, yes, you have got the right person". The offender again repeated his explanation that he had been bitten by a funnel-web spider whilst walking through knee length grass. 23 Hospital records show that the offender was admitted to Bulahdelah Hospital on 20 September 1997 and it was thought that he had possibly suffered a spider bite. He was treated with antivenin and other drugs and transferred to Newcastle Hospital. He was discharged shortly thereafter with hospital notes quoting the offender saying that he felt normal. 24 Dr Geoffrey Isbister, a Clinical Toxicologist with expertise in the effects of spider bites, has reviewed the material and has concluded that his medical presentation on 20 September 1997 was not consistent with either a bite from a funnel-web or red back spider. He also goes onto state, without challenge from the accused, that there are no reported incidents in the medical literature to suggest that a funnel-web spider bite can be responsible for extreme depression, ongoing agitation, anger and hatred. 25 So it is perhaps unlikely that the offender's condition when he was at Bulahdelah hospital on 20 September 1997 was in fact due to being bitten by a spider. In any case he returned again to hospital shortly after being discharged complaining of headache and sensitivity to light. No abnormality was detected but he was diagnosed with possibly suffering from a viral illness with meningeal irritation, he was discharged 4 days later after his symptoms resolved. Although the offender claims that he was unwell following discharge from hospital he didn't consult his general practioner until 16 September 1998 almost a year later. 26 The offender is now 41 years of age and, most importantly, has no relevant criminal history. The evidence established that these most serious offences were very much out of character for him. He appears to have been in every other respect a man of good character, a hard worker, a family man and a loving and caring father who doted on his children. His current wife and his former wife both said that he had never been violent towards him and indeed because of his father's violence, the offender was himself very much against violence. 27 It is truly remarkable that a man such as this offender committed such terrible and serious crimes and has committed no other crime of any similar nature since then. 28 In those circumstances it is natural to look for an explanation. As I have mentioned the offender seems to focus on his belief that he was bitten by a spider shortly before he committed these offences but whether he was bitten by a spider or suffering viral meningitis there is still no reasonable explanation for his behaviour apart from the one he offered to the complainant before he raped her, namely when he said "I just want to have sex". 29 Mr Rosser who appeared for the offender pressed upon me a finding that there was a connection between whatever illness the offender was suffering in September 1997 and his offences in early October. He relies in particular on the following passage in a report from Dr Westmore: "the brain is… a very complex organ and medical practioners and related scientists still do not fully understand how the brain works. I am of the opinion that on the balance of probability this man's acute brain syndrome played some role in the genesis of his offending behaviour. The absence of any subsequent or previous behaviour of such an extreme nature or that type supports that proposition and on balance I do not think that he has an anti-social personality disorder. Such a personality disorder might be associated with the offending behaviour but again one would expect the other evidence of that personality type and that does not appear to be the case with Mr Spiers". 30 I do not accept Dr Westmore's conclusion that his medical state in September 1997 "played some role in the genesis of his offending behaviour". I will explain why. The primary reason is the absence of any evidence at all suggesting that there has ever been a connection, apart from the one postulated as probable by Dr Westmore, between spider bites or viral meningitis and terribly violent crimes such as this one. There is no evidence put before me to suggest that spider bites or viral meningitis can pre-dispose a person to commit sexual offences, or indeed to commit any offences at all. One might have expected, with viral meningitis and bites from spiders being common enough, that if there was a connection between such events and criminal behaviour it would have been identified before now. 31 Dr Westmore's' opinion is, as he fairly recognises, based on the proposition that this offender did something which was quite unusual for him and to look for an explanation for that. The only possible explanation according to Dr Westmore is what he describes as "acute brain syndrome" but in the absence of any explanation as to how it is that such a syndrome leads to offending behaviour such as this and in the absence of recorded examples in the medical literature Dr Westmore's opinion cannot be accepted. What Dr Westmore has done is to look for an explanation for this offender acting out of character and hit upon the most likely medical explanation. What he ignores is that people do act out of character on occasions without there being any medical cause at all. Mr Rosser says that it is too big a coincidence for the admission to hospital and the offending to be unrelated but this is flawed reasoning. There is a natural human tendency to seek connections in events where in truth there is no connection between them. This natural human tendency is especially prominent where what is sought to be explained is aberrant behaviour. The mere fact that 2 events are temporally related to each other does not establish that one caused the other. 32 So I will sentence the offender on the basis that his admission to hospital on the 20th and 22nd of September 1997, and the condition he was in at that time, does not explain these offences. The offender didn't commit these offences because he was bitten by a spider, he didn't commit these offences because he was suffering from viral meningitis, he committed these offences because he wanted to have sex. 33 It is quite apparent that these offences were well planned. The offender was not at work being at home on sick leave. He took advantage of an opportunity which presented itself when his wife and children were not home. He obtained a knife, a glove, and duct tape all for the purposes of putting into effect his plan. 34 The offender pleaded guilty to 3 offences. They are kidnapping, using a stupefying drug with intent to commit an indictable offence and aggravated sexual assault. When I sentence him for the second of those matters he asks that I take into account 4 matters on a form 1 each arising as a result of the commission of the offences on the indictment those matters are; obtain benefit by deception, aggravated robbery, obtain benefit by deception and assault. 35 There is one important matter that I have to resolve. It concerns the maximum penalty for the kidnapping offence. That is either 14 years or 20 years imprisonment depending on whether it has been shown to me by the accused on the balance of probabilities that Ms S was released without suffering substantial injury. During the course of submissions various issues were raised, in particular whether psychological injury was sufficient or whether the rape itself could amount to an injury. It would be entirely consistent with the policy behind the differential penalty for a kidnapping offence for both psychologic injury and the rape itself to be sufficient to justify the higher penalty. After all the policy reason was that kidnappers should be encouraged to release their victims unharmed and it is difficult in the extreme to say that Ms S, who was violently raped by the offender, was not harmed by that experience. 36 However I need not resolve those matters because I am satisfied that physical injuries suffered by Ms S were substantial. When examined by a doctor after being taken to hospital the following abnormalities were detected. · Her face, especially cheeks and chin, were reddened but not tender · Her left nipple was inflamed, reddened and tender · She had superficial grazes on both elbows · Her right forearm had a linear red mark encircling her forearm · On her left forearm there were 2 linear red marks · She had multiple superficial linear grazes over her back and upper left buttock · She was bruised on her left buttock too · She had superficial grazing to both knees · On her right lower leg she had a linear red graze · And on her left lower leg she had a blood stippled graze · Her external genitalia was swollen, inflamed and tender with the labia being particularly swollen. 37 Whilst perhaps those injuries that I have immediately just referred to would not, individually, amount to substantial injury when taken together I am satisfied that they do accurately fit that description. I make this finding based on my consideration of the injuries and my understanding of what the Court of Criminal Appeal has said about the meaning of substantial injury in R v Rowe (1996) A Crim R 467. In that case Hunt CJ at CL said (at 472): "The physical injuries which the complainant suffered were minor, but an injury caused to a woman by violence inflicted during or associated with sexual intercourse without consent, and particularly when the woman is being detained against her will, is capable of amounting to serious injury within the meaning of s 90A. It was submitted that "injury", in the context of the Crimes Act, must be a physical injury. Be that as it may, assault which produces minor physical consequences may well become substantial where the circumstances in which it was inflicted (as here) greatly affect its seriousness". 38 The maximum penalty for the kidnapping offence is thus 20 years imprisonment. 39 Having identified the maximum penalty it's now appropriate to address some of the particular features of the offender's conduct which make his kidnapping offence a most serious example of a most serious offence. 40 In R v Collett Unreported CCA 7 June 1979 the Court set out 4 factors which were important in assessing sentence for kidnapping offences. The first concerns the length of time which the victim is detained. In this case it appears to have been something in the order of 4 hours between the time Ms S was taken and the time she was released. This is not a case where she was detained for a matter of only minutes. 41 The next matter suggested in Collett concerns the extent of the fear or terror which was occasioned and what happened to the victim whilst she was held captive. Of course I have to be careful here not to double count because what happened to Ms S is the subject of separate offences. With that qualification it is important to remember the very great terror that Ms S would have felt and the degrading way in which she was treated. It is difficult to imagine how she must have felt being bound and locked in the boot of a car knowing that once the car came to a stop she was going to be raped. 42 The third matter suggested in Collett is the purpose of the detention. Again this is an area where I have to be careful not to double count because all this was done by the offender so that he could have sex with Ms S against her will. 43 The fourth matter suggested in Collett is whether there are other persons who underwent fear or anguish as a result of their knowledge that Ms S had been held captive. In this case that consideration is relevant. The victim's family was made aware at about noon that she was missing and it was not until 2.30 or thereabouts that they learnt what had happened to her, and in particular that she was alive. 44 Objectively this offence of kidnapping is one of the most serious examples of such an offence it is possible to imagine. 45 There is no doubt about the maximum penalty for the next offence I have to consider, that of administering a stupefying substance with intent to commit an indictable offence, that is 25 years imprisonment. The offender's purpose seems to have been twofold, not only to facilitate the commission of his ultimate intention but also to reduce the chance that he would be detected. Thus Ms S recalls the offender telling her that he was giving her the drugs "so you won't remember as much". 46 The gravity of offences such as these is not only that the offender has rendered Ms S unable to resist and made it harder for her to identify him but also there must be due recognition of the fact that the offender appears to have disregarded completely any possible consequences for Ms S of having been forced to take large quantities of drugs which had not been prescribed for her. 47 Of course this offence is the one which has matters on a form 1 attached to it. One of those matters, aggravated robbery, is a most serious offence in its own right but the fact that the offender committed other offences, including one the following day, is important in assessing his overall criminality because of its relevance to the offender's attitude to what he had done. This is not a case where the offender, having kidnapped, tied up, drugged and raped a young woman immediately felt sorry for what he had done. Instead he took the opportunity of taking as much money as he could from her bank accounts. Nor did he seem to care that she may place sentimental value on the items of jewellery he had taken. Despite telling Ms S' father that that property would be returned that never happened. 48 So now we come to the offence of aggravated sexual assault, an offence carrying a maximum penalty of 20 years imprisonment. This was an offence of penile vaginal intercourse in which the offender ejaculated and, again being careful not to double count was committed by the offender in circumstances where the complainant was helpless to resist. 49 As will be obvious from what I have said so far there is a great deal of overlap between the 3 offences with elements of one offence being aggravating features of another but there is only one course of conduct here, albeit a lengthy and seriously criminal one. 50 I am satisfied that the offender is remorseful for what he has done. The offender admitted from the outset to police that they had the right person and pleaded guilty at an early stage recognising that by doing so the complainant would be spared the prospect of having to give evidence at a trial. The plea of guilty is not only evidence of remorse, but has a significant utilitarian benefit which should be reflected in the appropriate discount from the sentence I would have otherwise imposed. In order to reflect the utilitarian benefit of the offender's pleas of guilty I will impose a sentence which is approximately 25% less than it would otherwise have been. 51 An important factor of course in this case concerns the fact that these offences were committed almost exactly 10 years ago. This is not a case where the offender has spent every day since then in fear of the knock on the door. He clearly thought as he told Ms Hawkins, that he had got away with it. But on the other hand there was evidence to suggest that at various times in the offender's life he had been troubled by what he had done and the prospect that eventually this day would come. 52 The delay has also enabled the offender to demonstrate that these offences are most unlikely to be repeated. The fact that there has been nothing of this nature in the last 10 years suggest not only that there are good prospects for rehabilitation but that rehabilitation has already been achieved. 53 Mr Rosser asks that I find special circumstances in this case. I will do so only for the purpose of ensuring that the statutory ratio remains for the overall sentence which necessarily involves partial accumulation. It is important to remember that not only must the head sentence reflect the objective gravity of an offender's conduct but so must the non-parole period. The effective non-parole period I will shortly announce is the least which I consider properly reflects the gravity of the offender's conduct. 54 The offender is sentenced to imprisonment as follows: 55 For the offence of kidnapping the offender is sentenced to imprisonment. I set a non-parole period for 4 years to date from the 29th of October 2007 and a head sentence of 6 years. 56 For the offence of administering a stupefying drug with intent to commit an indictable offence taking into account the form 1 matters the offender is sentenced to imprisonment. I set a non-parole period of 4 years and set a head sentence of 6 years to date from the 29th of October 2008. 57 For the offence of aggravated sexual intercourse without consent, the offender is sentenced to imprisonment. I set a non-parole period of 4 years to commence on the 29th of October 2009 and a head sentence of 6 years. 58 Thus the overall sentence is one of consisting of a non-parole period of 6 years and a head sentence of 8 years. The non-parole period will expire on the 28th of October 2013 on which day the offender is eligible to be released to parole. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.