New South Wales District Court CITATION: R v Todd Richard AYERST [2007] NSWDC 235 HEARING DATE(S): 23 October 2007 JUDGMENT DATE: 23 October 2007 EX TEMPORE JUDGMENT DATE : 23 October 2007 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment with a non-parole period of eighteen months and a head sentence of three years. CATCHWORDS: Criminal Law - Sentence - Detain for advantage - Vulnerable person PARTIES: The Crown Todd Richard Ayerst FILE NUMBER(S): 07/31/0214 COUNSEL: H. Wilson - Crown T. Healey - Offender SOLICITORS: NSWDPP SENTENCE 1 HIS HONOUR: One morning Ida Schmidt left her home in Cessnock to go for her daily walk; this was early in the morning. She was entitled, of course, to go about her daily activities in safety but on this occasion, on 13 May 2007, she met up with the offender who had been out drinking all night. What the offender did was, I am satisfied, directly related to his substantial level of intoxication but in the circumstances of this case it is not much of a mitigating feature because, to his knowledge, in the past he had committed offences due to his excessive alcohol consumption. 2 The offender came up to Ms Schmidt and asked her the time. She said, "It's 6.30." The offender was acting strangely and Ms Schmidt became concerned. She thought he may have been drunk because he repeated the question, "I'm sorry but what is the time?" and his speech was indistinct. Ms Schmidt stepped onto the roadway but she was almost immediately grabbed by the offender. At this stage she did not realise that the person who grabbed her was the same person who had been asking her the time but she later learnt that it was the offender who was doing both these things. 3 The offender held her tightly and walked her towards a grassed footpath area. Beyond that was a cleared paddock area. It became apparent from later events that what the offender was doing was detaining Ms Schmidt because he wanted to rape her. 4 Somewhere along the grassed area Ms Schmidt lost her balance and she began to fall to the ground. The offender grabbed her by the hair and pulled her further away from the road. When Miss Schmidt landed on the ground she was dragged by the offender, who had hold of her hair. He dragged her about five or six metres before putting her against the trunk of a tree. Not unnaturally, Miss Schmidt was loudly screaming for help. The offender responded by putting his hand over her mouth and said, "Be quiet, I won't hurt you." 5 Miss Schmidt said that she was not extremely worried at this stage because she was close to the roadway and possible passers-by. No doubt her concerns escalated when the offender lifted her up from where she was and began walking with her, holding on to her arm, in the direction of a cleared paddock behind a rural fire service building. Clearly, what the offender wanted to do was to take Miss Schmidt to somewhere private where he could carry out his intention which, I repeat, was to rape Miss Schmidt. 6 He said to her, "Keep walking" and when she asked, "Where are we going to?" he said, "Don't worry, I won't hurt you." Their conversation continued with the offender saying, "I have no luck with the ladies", with Miss Schmidt, replying "I don't think so, I don't believe it." The offender expressed remorse for what he was doing for the first time. He said, "I should kill myself. What am I doing here? I should kill myself. What am I doing to my family?" 7 It is to be noted that there, there are no expressions of remorse for what he was doing to Miss Schmidt although they did come later. Miss Schmidt said, "Don't do it, it's not worth it; you're a young man." The offender asked for a cuddle. 8 As she was walking with the offender, Miss Schmidt was able to move away from him. She thought about running away but decided against it as she thought he would be able to catch her, given that she was seventy-one years of age and the offender was twenty-eight. Her concerns were probably correct. 9 All of a sudden the offender sat down on the ground. Miss Schmidt remained standing and noticed three people coming to her rescue. Those three people had seen Miss Schmidt was in trouble where she was being dragged by the hair. As they approached Miss Schmidt and the offender the offender remained seated on the ground. The offender curled up into a ball and yelled out, "I need help, I need help, I need help." As the three rescuers got to Miss Schmidt the offender said, "I need help, I need a flogging." 10 Police were called and whilst they were coming the offender said a number of other things expressing his remorse for what he was doing: "I need help, I need help, I need a good flogging. I can't believe this, I can't believe the things I have done." He said, "Kill me, kill me now. What have I done?" 11 One of the rescuers said, "What the fuck were you doing dragging her into the bush? You were going to fucking rape her, weren't you?" to which he replied, "Yes, what am I doing? I was going to rape her. I need help." He said, "Kill me, hit me, shoot me. I'm sick in the head and need help. If you don't kill me, I'll kill myself." He also said at one stage, "Charge me and throw away the key." 12 This is a most unusual offence in that the offender has voluntarily abandoned his most serious criminal activity. There is no suggestion in the facts that he only did so after becoming aware of the imminent approach of the three rescuers. I am satisfied and I will sentence Mr Ayerst on the basis that he himself realised the wrongfulness of his conduct and voluntarily abandoned it. Of course, however, the offence remains a very serious one. 13 Miss Schmidt was a vulnerable person. She was, as I have mentioned a couple of times, seventy-one years of age, on a street in the early hours of the morning. The offence was detaining Miss Schmidt, accompanied by actual violence, in particular that which occurred when the offender dragged Miss Schmidt some distance. There is no evidence of any significant harm being occasioned to Miss Schmidt but no doubt she was concerned at what might happen to her. 14 The offender has repeated in his evidence today his deep feelings of remorse. I am satisfied that they are genuine. I am satisfied that he is truly ashamed of what he did whilst he was intoxicated. 15 The offender is twenty-eight years of age. He has a problem with substance abuse. He began drinking at the age of thirteen, after he began associating with a friend whose parents owned a pub. He soon developed a pattern of binge drinking. That led to many blackouts and what Dr Neilson says are social complications in the form of criminal charges and the loss of friendships. 16 As well as his problems with alcohol, the offender has also a problem with drugs. He began smoking cannabis from the age of thirteen and abused amphetamine from the age of fifteen. He tried smoking heroin but soon gave that up. 17 The offender comes from a family who all support him. The offender has completed an apprenticeship as a sheet metal worker and has been working in the past. He was in the process of moving to Western Australia to take up employment there when the offence occurred. 18 He has a criminal history, as Dr Neilson adverted to but he has never served a sentence of imprisonment and there has not been any serious offence in his past, apart from a break, enter and steal for which he received a community service order and there is a significant gap between his last offence and today when he appears for sentence. 19 Not surprisingly, the offender is serving his sentence on protection. It is no longer assumed that a sentence served on protection automatically is associated with conditions of custody which are harsher than those in the general prison population, nor is it automatically assumed in every case that the entirety of an offender's sentence will be served on protection just because the offender is on protection at the time of sentence. But in this case I am satisfied that it is highly likely that the offender will serve the entirety of his sentence on protection and it is also highly likely that this will lead to harsher conditions of custody. I have, therefore, taken this matter into account in formulating the appropriate sentence. 20 Consistent with the offender's remorse, he pleaded guilty at the earliest opportunity and so I will discount the sentence I would have otherwise imposed by 25 per cent to reflect the utilitarian value of the plea. 21 It was submitted by Mr Healey that there are good prospects of rehabilitation and, indeed, that matter was conceded by the Crown. I cannot agree. Of course, there are some prospects of rehabilitation and, of course, there is a genuine desire on the part of the offender to never drink again and to never take drugs again but the experience of the courts is that the road ahead for people such as the offender is not an easy one, so although there are some prospects of rehabilitation I cannot say that they are good. 22 A similar thing needs to be said about the likelihood of the offender re-offending. In the past he has drunk to the extent that he has committed criminal offences. His prospects of re-offending depend very much on him abandoning and overcoming his substance abuse problems. 23 This is a case where there needs to be an element of personal deterrence. No doubt, the sentence I will shortly announce upon the offender will serve as a reminder to him in the event that he is tempted to consume alcohol in the future. He should remember that if he consumes alcohol and, as is quite likely, he then commits a criminal offence, he will go to gaol for a lengthy period of time. 24 This was an offence which was not planned and appears to have been highly opportunistic. Whether or not he was not fully aware of the consequences of his actions is difficult to say, although I will make that finding in the offender's favour. I make that finding because of the obvious level of the offender's intoxication. 25 It is a fundamental rule in sentencing that a sentence needs to reflect the objective gravity of an offender's conduct and that is a constraint on how lenient a judge can be in formulating the appropriate sentence and appropriate non-parole period. The sentence I choose must bear a reasonable relationship to the objective seriousness of the offender's conduct. I repeat, this was a very serious offence involving the kidnapping of a vulnerable victim so that the offender could in turn commit a very, very serious offence upon her. 26 The offender is sentenced to imprisonment. I set a non-parole period of eighteen months to date from 13 May 2007 and I set a head sentence of three years. The non-parole period will expire on 12 November 2008, on which day the offender is 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.