New South Wales Court of Criminal Appeal CITATION : Regina v Crawley [2003] NSWCCA 149 HEARING DATE(S) : 26 May 2003 JUDGMENT DATE : 26 May 2003 JUDGMENT OF : James J at 1; Smart AJ at 2 DECISION : (1) Leave to appeal against sentence granted (2) Appeal allowed. Sentence quashed (3) In lieu of the sentence imposed the applicant is sentenced to imprisonment for 8 years 9 months commencing on 7 July 2001 with a non-parole period of 5 years 9 months, expiring on 6 April 2007, on which day the applicant will become eligible for release on parole. CATCHWORDS : Very bad instance of detain for advantage - lack of due proportionality of sentences imposed upon principal co-offenders LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 CASES CITED : Postiglione v The Queen 1997 189 CLR 295 R v Steele NSWCCA 17 April 1997 PARTIES : Regina v Daryl Edward Crawley FILE NUMBER(S) : CCA 60101/03 COUNSEL : (A) R Burgess (C) D Howard SOLICITORS : (A) D J Humphries (C) S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1245 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 060101/03 JAMES J SMART AJ Monday, 26 May 2003 REGINA v DARYL EDWARD CRAWLEY JUDGMENT 1. JAMES J: The Court is in a position to give a decision. I will call upon Smart AJ to give the first judgment. 2. SMART AJ: Daryl Edward Crawley seeks leave to appeal against the asserted severity of a sentence of ten years' imprisonment with a non-parole period of six and a half years for the offence of detain for advantage. It was a particularly bad instance of this offence. The offence under the now repealed s.90A of the Crimes Act 1900 carries a maximum penalty of 20 years imprisonment. 3. The victim, CF, was a child of fifteen and as a result of injuries inflicted during the four days she was detained suffered the following injuries: multiple bruising to seventy five per cent of her face, multiple bruising and burn marks to her abdomen and chest, burn marks to her scalp and extensive burn damage to her hair, multiple and extensive bruising to her neck, burn marks to her pubic region. 4. In May 2001 the victim, RL, Rebecca Johnson, KB, a juvenile and the applicant were acquaintances living on the streets. On 14 May 2001 the four offenders took the victim to their squat in a derelict building in Ultimo. Apparently they believed that when the victim was arrested she had informed on Johnson, the oldest of the group. 5. When the four offenders arrived at the squat with the victim, Johnson threw her against the wall and hit and kicked her, sometimes in the head. The other three offenders watched as the applicant tied the victim to a chair and table with rope and cord, binding her across the stomach, legs and neck. At different times each offender held a knife, which belonged to Crawley, to the victim's throat, Johnson and the applicant threatening her with death as they did so. 6. Whilst the victim was still bound to the table, Johnson, using a cigarette lighter, lit spray from a deodorant can and directed it towards the victim's hair, which resulted in burns to her hair and scalp. 7. On the victim being subsequently untied, Johnson kicked her in the back and then hit and kicked her in the stomach. She also on at least one occasion kicked the victim in the head and, as a result, she fainted. The applicant complained that the judge did not include these latter matters in her summary of the facts. 8. Over the four days of the victim's detention, the applicant hit the victim to the head a couple of times and RL slapped her across the face a couple of times. Extensive bruising resulted. The victim was made to stand against a door and the applicant threw a knife at her between about thirty to fifty times. The knife did not hit the victim but stuck in the door above her head and her shoulders. On one occasion the knife fell down and hit the victim on the neck but did not pierce her skin. This exercise in quasi target practice was a terrifying experience, especially for a fifteen year old child. 9. During her detention, the only sustenance the victim received was a Macdonald's cheeseburger, a Coke and water. On one occasion, when all offenders were present, the applicant forced the victim to eat a cockroach and mouldy bread. On another occasion the victim was forced to drink urine from a Coke bottle. All offenders were present at the time. 10. On several occasions the victim was forced to insert into her vagina a forty to fifty centimetre snapped pole, using the sharp and broken end, a four to five centimetre diameter black torch, brought by the applicant, and an empty Coke bottle. The sexual assaults occurred on Tuesday night and during the day and night on both Wednesday and Thursday. The victim was naked and sitting on the cold floor. She was threatened with death if she did not penetrate herself. All offenders were present, watching and to some extent laughing. However, the victim stated that RL did not insist or influence her to perform these acts. 11. On Thursday 17 May 2001 the applicant tied the victim naked to a table with a rope. All offenders were present and at separate times each put burning cigarettes between the rope and the victim's skin and let the cigarettes burn. The victim was not allowed to move or blow the cigarettes out. She suffered burn marks, welts and blisters. Johnson, using a cigarette lighter, lit spray from a deodorant can and burnt the victim on the upper thighs, pubic hair, stomach and chest, resulting in marks and blisters. On one occasion, Johnson and KB put burning matches out on the victim's knuckles, causing burns and blisters to form on her knuckles. 12. On two separate occasions on Thursday night the applicant grabbed the victim, held her neck to the side and squeezed it so that she could not breathe. On the second occasion the victim passed out. This was particularly dangerous conduct. It took about three minutes for the applicant to revive the victim by performing chest compressions. She was then dragged to her feet by the neck and struck in the head by the applicant. 13. The victim was released on the morning of 18 May 2001 by another homeless youth and some friends. 14. The victim stated that RL, though present, played a lesser role than the other offenders and was not directly involved in the more serious assaults. 15. The victim became very weak during her detention. All offenders were present during the assaults and did nothing to render assistance to the victim. 16. The judge held that the objective gravity of the circumstances of the offence placed it in the worst case category. It was a very bad instance of the offence, which carries a maximum penalty of twenty years' imprisonment. It is a very serious offence. The judge recorded that she was sentencing the offenders on the basis of the statement of facts tendered without objection. She took the many other uncharged offences into account in considering the objective gravity of the detain for advantage offence, that being the basis on which the matter was put before the Court. 17. Absent medical reports, the judge proceeded on the basis that the victim would be likely to suffer physical and psychological consequences. The judge found that the applicant and Johnson were directly responsible for the binding and torturing and for the significant injuries occasioned to the victim, adding that the applicant's culpability was even greater than Johnson's. It is apparent that the judge drew that conclusion from her study and assessment of the facts. 18. Although Johnson was the one apparently most directly affected by the victim allegedly informing or cooperating with the police and was the first to assault the victim, the four offenders had taken the victim to their squat and the applicant had been primarily responsible for tying up the victim so she could be further assaulted and tortured, had thrown knives at her on about thirty to fifty occasions and had squeezed the victim's neck, as well as taking part in the other activities. 19. The applicant complained that the judge had omitted from her summary of the facts portions of the statement of facts which alluded to some of the criminal conduct of Johnson. I have already mentioned one instance. Others relied on were the absence of reference to her involvement in lighting fires on the knuckles of the victim and in a shoplifting escapade where the victim was forced to shoplift, the applicant apparently not being involved in that matter. 20. It was submitted on behalf of the applicant that no meaningful distinction could be drawn between the culpability of the applicant and Johnson. It was submitted that while their acts were different it was a joint enterprise and that it was artificial to seek to make the distinction which the judge had drawn. I am unable to agree with this submission. It was open to the judge to find that the applicant's culpability was greater than that of Johnson. I would reject the applicant's arguments to the contrary. 21. The applicant was born on 17 June 1981 and was thus aged nineteen years eleven months at the time of the offence. His record consisted of some minor criminal offences and was not of appreciable consequence. He had never served a custodial sentence. He did not give evidence but the pre-sentence report outlined his history. He was one of about eight or nine children. His father died when he was aged three. His de facto stepfather subjected him to physical and sexual abuse. The Department of Community Services had been involved with the applicant since he was four years old. He was eventually removed from the family home permanently at age twelve years and made a State ward. He was placed in a succession of foster homes where he claimed he was also subjected to sexual abuse. He said that he only lasted about one month at each of these placements as he was out of control. 22. The applicant has apparently experienced great difficulty in coping with his mother's death in 1993. She was his only source of emotional support for many years. 23. In 1996 he took up residence at St Saviour's Adolescent Unit, Goulburn. He remained there until he reached eighteen years of age, when he ceased to be a State ward. This was not a trouble-free time. Eventually he left the unit to reside with an older man but left after an alleged argument with him and travelled to Sydney. He said that he resided in the streets and in squats for six months prior to the offence. The pre-sentence report continues: "[The applicant] remains without a fixed place of abode and...he does not know where he will reside when released. He appears to have no community based support other than St Saviour's. He admits that he incapable of looking after himself." 24. The applicant was expelled from school when aged fourteen. He was in year 9. He was in receipt of a disability pension prior to entering into custody. That report states: "It has been identified that Mr Crawley suffers from an intellectual disability, attention deficit disorder and asthma. Information also indicates that he has recurring depression and suicidal ideation which he claims is ongoing. It has been confirmed that there has been at least one serious attempt at suicide, although Mr Crawley relates several such episodes. A psychiatric report in 1994 described him as 'a veritable walking textbook of disorders of childhood'. Mr Crawley admits also that he has unresolved anger management problems with a low frustration tolerance level. He acknowledges that he gets angry easily and is afraid of snapping, which could result in serious harm inflicted on others if he is provoked in certain circumstances." 25. The report concluded: "Mr Crawley presents with an intellectual disability and limited social skills. It appears that he has suffered from a particularly disadvantaged upbringing which has involved both physical and sexual abuse. That may have influenced the development of the depression, suicidal ideation and at risk behaviour, particularly in relation to sexual practices that seems to punctuate his social history. Mr Crawley's lack of support within the community, his inappropriate choice of associates and his ability to be easily influenced by them, possible mental health issues and a propensity for drug and alcohol use does not inspire confidence in his ability to positively respond to future intervention. This perception has been reinforced by the experiences of the numerous agencies previously involved in assisting him." 26. Miss K Barrier, psychologist, saw the appellant in gaol on 12 June 2002 for two hours. She noted that he was housed in the Developmentally Disabled Unit at Long Bay. She found him to be of limited intellectual capacity and to be very concrete in his thinking. She recorded that he had attempted to improve his basic literacy and numeracy skills since coming into custody. His composite IQ score of seventy is in the lowest two per cent of the general population. Miss Barrier concluded "Daryl's limited intellectual capacity compounds his situation in several ways. It makes it far more difficult for him to deal with psychological and emotional issues which require the development and utilisation of abstract concepts. He also finds it difficult to think through alternatives and consequences of behaviour which may have relevance to the offences in question. … At the time of these offences Daryl reports significant involvement in the use of heroin and cannabis. His use of these substances doubtless had negative impact on what was already limited judgment and impulse control. As a further example of this young man's very concrete and limited thinking, he could offer few insights into his behaviour at the time of these offences, or the effects of this offence on the victim. The enthusiasm he displayed about other programs he is undertaking in custody however does demonstrate a willingness to learn and Daryl could benefit from programs in sex education, anger management and conflict resolution. Because learning does not come easily to people operating at the intellectual level Daryl functions at, treatment would need to be at a very practical and behavioural level. He would also benefit from ongoing professional attention to his past involvement with drugs. On Daryl's release he will require close supervision and monitoring by the Probation and Parole Service." 27. I have not overlooked some of the other reports which were made some years ago. 28. The judge accepted that in the case of the applicant, Johnson and RL general deterrence should be given less weight because of their considerable difficulties. However, she held that personal deterrence and the need for the protection of the public had increased importance, especially for the applicant and Johnson. The judge took into account that each of the applicant, Johnson and RL entered pleas of guilty at the first available opportunity and that each was entitled to a discount accordingly. She found little evidence of genuine remorse by any of the three offenders. She assessed the applicant's prospects of rehabilitation as guarded. She correctly found that special circumstances existed in respect of each offender because of intellectual impairment, early childhood abuse and the need for a longer period of supervision than the usual ratio would provide. Her sentences reflected the different levels of culpability of the three offenders and their respective subjective circumstances. 29. The applicant relies on two grounds of appeal, namely lack of parity of the sentence imposed upon him when compared with those imposed on the other offenders and that the sentence imposed on him was manifestly excessive. The applicant submitted that he had a justifiable sense of grievance when considering the sentence imposed on the co-offenders, in particular Johnson. 30. The applicant complained that the judge had not explained why she held that the applicant's culpability was greater than that of Johnson and that there was little to distinguish between the respective roles of the applicant and Johnson. I do not agree. The reasons for such a distinction appear from the judge's narration of the facts. As earlier explained, there was material from which the judge could conclude that the applicant bore a greater measure of culpability. 31. It was submitted that there was little to distinguish the subjective cases of the applicant and Johnson. She was born on 17 October 1979 and was aged twenty one years seven months at the time of the offence. She has a lengthier list of minor criminal offences than the applicant and has served two short custodial sentences. She also has had a disadvantaged background, including physical and sexual abuse by her father. She was made a State ward and has spent periods in foster care and a group home. She spent five months in a juvenile detention centre. She now shares a good relationship with her mother and an aunt. Both are prepared to offer accommodation and support on her release. Her mother visits her in gaol. 32. The Probation and Parole officer concluded: "Miss Johnson impressed as a young woman with a history of abuse and neglect. She has had limited stability and security in her life, resulting in an individual who leads a transient lifestyle without any support or structure at all in her life. According to the psychologist's assessment she does function in the lower part of the mildly developmentally delayed range and is vulnerable to forming inappropriate relationships which may explain why she feels comfortable living on the streets. It is also considered that her disability has placed her at risk of being exploited by more sophisticated people. Her behaviour in gaol suggests that she becomes angry and aggressive when confronted with a situation she does not like or cannot handle. She does appear to comprehend the seriousness of her offending behaviour and realises that she will have to accept the consequences of her actions. The offender has expressed a desire to make changes to her lifestyle but given her lack of social and academic skills and limited support in the community, she may find it difficult to adapt to a more acceptable way of life." 33. That officer also reported that Miss Johnson was housed in the non-association wing at Mulawa, where inmates are contained in individual cells and do not associate with other offenders. That information may have been correct when the report was prepared in June 2002. It was not correct at the time of sentence on 18 October 2002. The affidavit of Steve Chang, senior assistant superintendent, Mulawa Correctional Centre, of 23 May 2003 states that at the time of sentence Miss Johnson was held in the special management area protection (SMAP) at Mulawa after she submitted a request for protection, indicating threats had been made against her. SMAP inmates are housed in a particular area of the gaol but can associate freely with each other within that area. Mr Chang's affidavit further states: "Miss Johnson's access to educational programs is affected by her SMAP placement because she cannot mix with inmates undertaking educational courses in the main body of the Mulawa. However, some educational courses are taught in the SMAP wing and Miss Johnson may enrol in distance education courses. Her visiting rights and security classification are not affected by her SMAP placement. SMAP placement is made by way of managing the good order of the correctional centre and ensuring the protection of inmates. It is not punitive. The commission of correctional centre offences by an inmate has no impact upon a decision by a delegate to make a protective custody direction or to accede to an inmate's request for protective custody unless the commission of those offences by the inmate has placed the inmate in danger." 34. The judge did not have the benefit of Mr Chang's affidavit or the information it contains. She said that Johnson was being held in the non-association wing of Mulawa, apparently because of her disruptive and aggressive behaviour. Because the information given to the judge was incomplete and incorrect at the time of sentencing, the judge proceeded on a basis that was partly incorrect. It is not clear from the judge's reasons how much weight she attached to the custodial conditions of Johnson being harsher than those of the applicant. This was no doubt due to it seeming to the judge that the Johnson's custodial conditions resulted from her own behaviour. In determining the sentences of the applicant and Johnson the judge placed most weight on their levels of culpability. 35. The affidavit of Miss CA Ridge of 23 May 2003 annexes a fax from Junee Correctional Centre that the applicant is currently a SMAP inmate. 36. The report of Dr A Gilandis concludes that Johnson suffers from mild intellectual retardation. Her educational achievements were within the mentally retarded range. Her reading, spelling and maths skills were at middle primary school level. She suffers from an antisocial personal disorder. Dr Gilandis regarded Johnson's prognosis as guarded and wrote that she required a structural environment with close supervision to control her behaviour problems and their consequences. She could also benefit by drug rehabilitation. She wished to work with the geriatric population as a nurses' aide and was capable of doing so. 37. The judge regarded Johnson's rehabilitation prospects as guarded. 38. Johnson had two major advantages over the applicant. She had some family support and accommodation to which she could go on her release and that was with mature family members. 39. While it was correct of the judge to say that the prospects of both the applicant and Johnson were guarded, it does seem that the prospects of rehabilitation of Johnson were slightly better than those of the applicant. 40. In essence, the critical question is whether the sentence imposed upon the applicant lacks due proportion compared with that imposed upon Johnson. There is no other basis on which this Court could intervene. The applicant's offence was a grave one. Accepting that the applicant's measure of culpability was greater than that of Johnson, nevertheless the difference in their head sentences of three years exceeds the difference in culpability between them; nor does the difference in subjective features justify such a difference. Further there is no sufficient warrant for a non-parole period of six and a half years for the applicant and four years for Johnson. The judge was faced with difficult sentencing problems but the difference in the sentences does reflect a lack of due proportionality. (See Postiglione v The Queen 1997 189 CLR 295 at 301-302.) The applicant's sentence needs adjustment. 41. The applicant also relied on the lesser sentences imposed on RL and KB and in regard to those sentences the applicant particularly pressed the argument of lack of due proportionality. RL played a much lesser role. She was unable to stand up to her co-offenders. She had a favourable subjective case. She was born on 18 February 1983. She had no criminal convictions. At pages 8-10 of her remarks upon sentence, the judge set out in detail her reasons for sentencing RL to three years' imprisonment, to be served by way of periodic detention with a non-parole period of two years. Her prospects of rehabilitation were assessed as reasonable. The judge's reasons for taking this course do not reflect error. RL's case was very different from that of the applicant. 42. KB was aged seventeen years nine months at the time of the offence and was dealt with as a juvenile. The judge assessed the role of KB as more serious than that of RL. KB was sentenced to a 12 months' control order with a non-parole period of 8 months, erroneously stated by the judge as 10 months, with a recommendation that he be released after 6 months. KB was significantly younger than the applicant and Johnson. The judge recognised that the sentence imposed upon KB was not completely irrelevant. It was apparent that the role he played was very much less than that played by either the applicant or Johnson. The Crown pointed out that the maximum penalty which could be imposed by the magistrate was two years. The magistrate had regard to the special principles relating to the exercise of criminal jurisdiction in the Children's Court pursuant to s 6 of the Children (Criminal Proceedings) Act 1987. The magistrate also found that KB was the only juvenile involved, there was no evidence that KB inflicted any of the physical injuries or sexual injuries upon the victim, KB himself was threatened, KB had no criminal antecedents and pleaded guilty, KB had to some degree a disadvantaged upbringing and there was now some family support for him and he had employment available to him. 43. I interpolate that a slightly different version of the facts was placed before the magistrate. 44. The complaint of lack of proportionality or parity based on the sentences imposed upon RL and KB fails. 45. The Crown placed reliance upon these remarks of Simpson J in R v Steele NSW CCA 17.4.97: "An appearance of injustice is not confined to the perception of the more harshly treated offender and may just as easily result from too lenient a sentence as from a sentence comparably too heavy as was held to be the case in Diamond . The frequently cited passage from the judgment of Mason J (in Lowe) is not authority for the proposition that in any case where such disparity is shown a Court of Criminal Appeal must reduce a co-offender's sentence to one which is inadequate. It is authority for the proposition that in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co-offender the appellate court has a discretion to do so (see Diamond pages 5-7)." 46. While the sentence imposed upon Johnson was in the circumstances a lenient one and it was at or close to the bottom of the permissible range, it could not fairly be said that it was an inadequate sentence. 47. In support of the ground that the sentence imposed was manifestly excessive, the applicant placed reliance on the statistics supplied by the Judicial Commission to support the contention that this sentence fell outside the range. Both the head sentence and the non-parole period were at the top of the range of sentences imposed for the subject offence. Despite the applicant's intellectual disability, age and subjective features, this case warranted such a sentence. It was an exceedingly bad crime. 48. I return to the issue of due proportionality or parity. When the cases of the two principal co-offenders are compared, a sentence exceeding eight years nine months for the applicant offends the principle of due proportionality and a non-parole period exceeding five years nine months offends that principle also. In re-sentencing, I have taken into account the further evidence adduced at the hearing of the appeal and that includes the affidavits of the applicant, Miss Ridge and Mr Chang. 49. I propose the following orders: (1) Leave to appeal against sentence granted. (2) Appeal allowed. Sentence quashed. (3) In lieu of the sentence imposed, the applicant is sentenced to imprisonment for eight years nine months, commencing on 7 July 2001 with a non-parole period of five years nine months, expiring on 6 April 2007, on which day the applicant will become eligible for release on parole. 50. I would be grateful if counsel would check the maths. 51. HOWARD: We agree with that, your Honour. 52. BURGESS: It appears to be correct, your Honour. 53. JAMES J: I agree with the judgment which has been given by Smart AJ and I agree with the orders proposed by his Honour.. 54. The orders of the Court will be as proposed by Smart AJ. ********** Last Modified: 05/30/2003 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.