New South Wales Court of Criminal Appeal CITATION : Regina v Herceg [2001] NSWCCA 242 FILE NUMBER(S) : CCA 60848/01 HEARING DATE(S) : 25/06/01 JUDGMENT DATE : 25 June 2001 PARTIES : Regina v Damir Herceg JUDGMENT OF : Barr J at 31; Howie J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/41/0216 LOWER COURT JUDICIAL Moore DCJ OFFICER : COUNSEL : G.E. Smith - Crown P.J.D. Hamill - Applicant SOLICITORS : S.E. O'Connor - Crown Nyman Gibson & Co. - Applicant CATCHWORDS : Criminal Law - Sentence - determination of maximum penalty under s90A Crimes Act - meaning of "substantial injury" - question of parity with co-offenders LEGISLATION CITED : Crimes Act 1900 - ss 59, 90A Crimes (Sentencing Procedure) Act 1999 - s 23, 44 R v Diamond (NSWCCA, 18 February 1993) CASES CITED: R v Hopper (NSWCCA, 19 November 1998) R v Rowe (1996) 89 A Crim R 467 DECISION : Leave to appeal granted, appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60848/01 BARR J HOWIE J MONDAY 25 JUNE 2001 REGINA V DAMIR HERCEG JUDGMENT 1 HOWIE J: This is an application for leave to appeal against a sentence imposed upon the applicant by his Honour Judge Moore following the applicant pleading guilty to an indictment containing four counts: two offences of detaining a person to advantage contrary to s 90A of the Crimes Act and two counts of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act. In relation to the two offences of detaining the applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years and the sentence was to date from 14 December 2000. In respect of each of the assault offences the applicant was sentenced to a fixed term of 2 years to commence from the date of sentence 14 December 2000. The applicant will be eligible for release to parole on 13 December 2002. 2 The principal ground of appeal is that the applicant has a justifiable sense of grievance by reason of the sentences imposed upon persons who were co-offenders in the offences for which the applicant was sentenced. There is a second ground that Judge Moore failed to determine what was the maximum penalty to which the applicant was liable in respect of the two detaining offences under s 90A because his Honour failed to make a finding in respect of the injuries suffered by the victims of those two offences. 3 Because of the nature of the grounds of appeal it is unnecessary to detail the facts. There was no dispute as to the factual basis upon which the sentencing judge was to determine the appropriate sentences to be imposed upon the applicant. The incident upon which the four charges against the applicant took place in the afternoon of 28 January 1998. The offences arose from a belief on the part of the applicant and others that two persons, one a 15-year-old girl named Belinda Burgess and the other a young man named Paul Gallina, had stolen money from premises in Wollongong known as the Cripps World Street Club. This was a place where young persons would congregate to socialise. The applicant was the President of this Club, his co-offender Shaw the Vice-President and the third co-offender, Boardman, was described by his Honour as the Sergeant at Arms. There was a fourth offender but he was dealt with in the Children's Court and no reliance is placed upon the sentence imposed upon him in support of this application. 4 Ms Burgess went to the club premises on the day in question because she had heard rumours that she had stolen money from the Club and she wished to sort the matter out. Shortly after she arrived at the premises, Shaw put the allegation to her and when she denied it he slapped her. Boardman also questioned her and, in the course of doing so, struck her to the face with the back of his hand cutting the inside of her mouth. When she tried to leave the premises, Shaw threw her to the ground and punched her causing her nose to bleed. She was put in such fear that she wet herself. She was taken into a bedroom in the premises and tied to a chair. She was left alone in that room secured by her hands and ankles. At one stage Boardman carried her into another room where the applicant threatened her. 5 In the meantime Paul Gallina was found by Boardman and another person in the streets of Wollongong and taken back to the Club. When he entered the premises, he was struck to the forehead and knocked to the ground. It is not clear who it was that assaulted Mr Gallina on this occasion. As a result of that attack, he received a wound to the forehead that bled profusely. While he was on the ground, a person, who Judge Moore found to be the applicant, kicked him. 6 The applicant then began interrogating Mr Gallina about the theft and when an answer was deemed to be unsatisfactory by the applicant, Gallina was struck with a hammer to the left forearm. He was also on one occasion hit in the mouth with the handle of the hammer. The applicant and Shaw then told Mr Gallina to take a shower and clean himself up. The applicant then turned his attention once more to Ms Burgess. He made threats to her and punched her to the head causing bruising. 7 After Mr Gallina was forced to clean the blood off the floor and walls of the room where he and Ms Burgess had been assaulted, the two were allowed to leave the premises after being threatened that they had to return the missing money on pain of further punishment. After they had obtained treatment for their injuries, Mr Gallina and Ms Burgess took their complaints to the police who then attended the Club premises with a search warrant and obtained evidence in support of the allegations. 8 The indictment to which the applicant pleaded guilty contained a count of detaining and a count of assault occasioning actual bodily harm in respect of each of Ms Burgess and Mr Gallina. 9 Boardman pleaded guilty to one count of detaining under s 90A and one count of assault occasioning actual bodily harm both of which related to Ms Burgess. He was not indicted for an offence against Mr Gallina. In addition Boardman faced sentence for two unrelated matters; one a charge of assault occasioning actual bodily harm that arose while Boardman was on bail for the offences against Ms Burgess. He was also sentenced for another charge of assault occasioning actual bodily harm following his failure to comply with a Community Service Order that had been earlier imposed upon him. 10 On the same day as the applicant was sentenced, Boardman was sentenced by Judge Moore to 3½ years imprisonment with a non-parole period of 1 year 3 months in respect of the offence under s 90A and a fixed term of 1 year 3 months in relation to the assault occasioning actual bodily harm offence against Ms Burgess. He was also sentenced to a concurrent fixed term of 1 year 3 months for the offence of break enter and steal that occurred after the offence against Ms Burgess and a similar sentence for the offence arising from the breach of the Community Service order. 11 The co-offender Shaw was sentenced in the Wollongong District Court on 14 May 1999 by Judge Phelan on the same charges as those for which the applicant was sentenced. In respect of the two charges under s 90A he was sentenced to a minimum term of 9 months and an additional term of 2 years. In addition his Honour took into account when sentencing Shaw an offence of possession of 0.1 gram of amphetamine on a Form 1 under the provisions of s 23 of the Crimes (Sentencing Procedure) Act 1999. In respect of the two assault occasioning actual bodily harm charges Shaw was sentenced to a fixed term of 9 months concurrent with the other offences. 12 On behalf of the applicant it is submitted that having regard to the sentences imposed upon both Boardman and Shaw the applicant had a justifiable sense of grievance as a result of the undue disparity between their sentences and those imposed upon him. It is not suggested that otherwise the sentences imposed upon the applicant were in any way excessive. 13 When sentencing the applicant Judge Moore had before him the sentencing remarks of Judge Phelan in respect of the co-offender Shaw. In sentencing Shaw, Judge Phelan gave him a discount on the basis that Shaw had undertaken to give evidence against the applicant and Boardman. Judge Phelan indicated that, by reason of his cooperation, his Honour had "gone close to giving him the full Cartwright concession". By that remark it is assumed that his Honour must have meant a discount of about 50 per cent. 14 It was submitted on behalf of the applicant that, in light of the fact that Shaw was to be sentenced for the very same offences for which the applicant was to be sentenced and the additional matter on the Form 1, the sentences imposed upon Shaw could not have been justified by the discount given for the assistance to the authorities. It was submitted that, even if Judge Phelan had given a discount in the order of 50 per cent, which it is said was unwarranted by the assistance offered by Shaw, the disparity between the overall sentence imposed on Shaw and that imposed on the applicant exceeded such a discount. 15 In my view there is no merit in this argument. Mr Hamill, on behalf of the applicant, relied upon the fact that Shaw had an additional matter in respect of which he was to be sentenced that being the matter on the Form 1. In my opinion that matter was of such little consequence as compared with the offences upon which Shaw had been indicted that it would not have sufficiently affected the totality of the criminality before Judge Phelan to have required a longer sentence to be imposed than that which was otherwise required by the offences to which Shaw had pleaded guilty. 16 Judge Phelan made a finding that Shaw was less criminally involved in the attacks upon Ms Burgess and Mr Gallina than was the applicant. In particular his Honour was satisfied that Shaw was not responsible for the injuries inflicted upon Mr Gallina by the hammer. Although it has been suggested on behalf of the applicant that it was in error for Judge Phelan to determine that Shaw was, as a result, seriously involved in what was in effect a common enterprise. In my view he was entitled to come to that view and sentence Shaw accordingly. There is, I believe, a difference in culpability, although it may be only slight, between the person who actually inflicts the injuries and the person who simply stands by watching even in a joint enterprise case. 17 There are other matters which in my view both in respect of the objective seriousness of the offences for which Shaw and the applicant were to be sentenced and in respect of the subjective matters applicable to Shaw, which permitted a less severe sentence to be imposed on him than on the applicant even disregarding the assistance offered by Shaw. These include the fact that, although Shaw initially denied involvement in the offences, he later, after pleading guilty, admitted his involvement in an interview with the police. The only acknowledgment of his responsibility made by the applicant was the pleas of guilty. In the applicant's pre-sentence report he maintained that he was not guilty of either of the offences under s 90A or of assaulting Mr Gallina. 18 In any event, without coming to a final view on the matter, it is very likely that the sentence imposed by Judge Phelan, particularly so far as the non-parole period is concerned, was inadequate. This is a further reason why this Court should not reduce the sentence of the applicant because of the sentence imposed upon Shaw: R v Diamond (NSWCCA, 18 February 1993); R v Hopper (NSWCCA, 19 November 1998). 19 In relation to Boardman the most significant matter distinguishing him from the applicant, is that Boardman was to be sentenced by Judge Moore for offences only against Ms Burgess and not against Mr Gallina. There was clearly a very marked difference in the criminality for which the applicant was to be sentenced from that in relation to Boardman arising from the offences committed on 28 January 1999. In particular the injuries inflicted upon Mr Gallina were significant and Judge Moore was entitled to form the view that the applicant was responsible for those injuries either directly or on the basis of the joint criminal enterprise in which he was involved with Shaw. Judge Moore had to sentence Boardman on the basis that he was not involved in any offence against Mr Gallina. 20 True it is that Judge Moore had to sentence Boardman in respect of two other matters unrelated to the offences occurring at the Club premises. But if there is any error in Judge Moore's sentencing of Boardman, it is that the sentences for those offences were made concurrent with the offences committed against Ms Burgess. Normally it would be expected that an unrelated serious offence would result in a cumulative sentence. But that practice is not immutable. In my view, even if such an error existed, it could not avail the applicant. 21 In any event, it was open to Judge Moore to determine, as he did, that the offences committed by Boardman against Ms Burgess were so serious that the other two offences, having regard to the circumstances in which they occurred, were such that no additional punishment should be inflicted on the applicant by reason of those offences. 22 In my view there is no basis upon which the applicant can justifiably feel aggrieved by the sentence that Boardman received for the kidnapping and assault against Ms Burgess. Whether or not he is aggrieved by the fact that Boardman received no further punishment for the other offences is irrelevant in the circumstances of this case. In my view this ground of appeal fails. 23 I turn now to the second ground of appeal, which, in my opinion, is also without merit. Section 90A provides that the maximum penalty for an offence under that section is 20 years imprisonment or, if it is proved that the person detained was "thereafter liberated without having sustained any substantial injury" imprisonment for 14 years. A "substantial injury" is one which is "more than minor or slight but need not be of a serious kind which would constitute it being grievous bodily harm": Rowe (1996) 89 A Crim R 467. 24 The applicant is correct in his contention that Judge Moore did not, in expressed terms, determine the question as to whether the lower sentence specified under s 90A applied in light of the injuries suffered by Ms Burgess and Mr Gallina as he should have done. The applicant's submission is to the effect that, as his Honour failed to determine the question of whether the victims were liberated without having suffered substantial injuries and, therefore, having failed to indicate what maximum sentence applied, the sentencing exercise miscarried. 25 In my view the short answer to that submission, in relation to whether this Court should interfere in the sentencing exercise carried out by Judge Moore, is that even if this Court upheld the ground, no lesser sentence than that imposed by Judge Moore would be warranted and ought to have been imposed. Even if it were accepted, for the sake of argument, that the applicable maximum penalty was 14 years in respect of each of the s 90A offences, the applicant had to be sentenced for two offences under that section and two offences under s 59 which both carried a maximum penalty of 5 years. Although the offences inflicted upon the two victims were part of the same course of criminal conduct, they were quite separate and distinct. As I have already indicated Ms Burgess went to the club on her own volition, but Mr Gallina was brought to the Club so that he could be detained, threatened and assaulted. 26 There was little in mitigation of the objective circumstances of the offences committed by the applicant. He was aged 43 years and had a criminal record which included his being sentenced to imprisonment for offences of dishonesty in 1976. True it was that he was entitled to the benefit of the fact that he had committed no offences of any significant seriousness since his release from that sentence. However, he had shown no remorse for the offences despite his plea of guilty. He was extremely fortunate in my view to have a finding made that there were special circumstances. His Honour found that the applicant had been fully reformed and the probation report indicated that no assistance could be provided by supervision from that service. This finding is confirmed by the material placed before this Court as to the applicant's progress in custody. There was in my view no need at all for a longer period of parole than that which would follow from the application of s 44 of the Act and no other special circumstance justifying any reduction in the non-parole period let alone a reduction as great as one year. 27 In my view, having regard to the totality of the criminality arising from the offences committed on 28 January, a total sentence of 4 years with a non-parole period of 2 years was lenient if the maximum penalty for the offences under s 90A was 14 years imprisonment and was verging on the inadequate if the maximum penalty is considered to be 20 years. This is particularly so in respect of the non-parole period which in my view was unjustifiably and overly reduced from that which was otherwise appropriate. If I were to re-sentence the applicant on the basis that the maximum penalty should be 14 years, I would impose a total term as lengthy as that imposed by Judge Moore but I would not find that special circumstances existed and, therefore, a longer non-parole period would be specified. 28 However, even if it were accepted that the sentencing exercise before Judge Moore miscarried by his Honour's failure to indicate the maximum penalty prescribed, if I were to re-sentence the applicant I would not be satisfied that the victims were not liberated without having suffered substantial injuries. In Rowe at 472, when considering the meaning of "substantial injury" for the purposes of s 90A, Hunt CJ at CL said: "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 physical injury. Be that as it may, an assault which produces minor physical consequences may well become substantial where the circumstances in which it was inflicted (as here) greatly affect its seriousness." 29 The fact that the medical practitioner was of the view that the injuries were "not of a serious nature" does not require the sentencing court to find that the injuries were not substantial. Judge Moore found that although the injuries were not serious, that each of the two victims was submitted to a terrifying experience. The injuries to Ms Burgess were inflicted in circumstances that so terrified her that she was unable to control her bladder. I am not persuaded that there would have been no residual psychiatric condition resulting from the infliction of the injuries notwithstanding some suggestion to the contrary in the remarks of sentence of Shaw by Judge Phelan. There was no doubt that the applicant intended as part of the criminal enterprise in which he was engaged to secure the return of the money, that the victims be terrorised. In my view having regard to the nature of the injuries and the manner in which they were inflicted, I would not be satisfied that either of the victims were released without substantial injuries having been inflicted and, therefore, in my view the appropriate maximum penalty was 20 years imprisonment in each case. 30 I propose that the application for leave to appeal be granted but the appeal be dismissed. 31 BARR J: I agree. The orders of the court are those proposed by Justice Howie. ************ 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.