New South Wales Court of Criminal Appeal CITATION : Regina v Anforth [2003] NSWCCA 222 HEARING DATE(S) : 6 August 2003 JUDGMENT DATE : 12 August 2003 JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2; Adams J at 55 DECISION : (i) Crown appeal is allowed. The respondent is to be re-sentenced; (ii) On each count the respondent is sentenced to imprisonment for two years, commencing 12 August 2003 and expiring 11 August 2005, with a non-parole period of ten months. The first date on which the respondent is eligible for release on parole is 11 June 2004. I would direct that the respondent be released on parole at the expiration of the non-parole period, 11 June 2004. CATCHWORDS : Crown appeal - aggravated kidnapping - subjective circumstances - remarks on sentence - characterisation of role of respondent - respondent's purpose in participation - pleas of guilty - assistance to authorities - reduction in sentence - value of assistance - s44(2) Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s12, S44(2) CASES CITED : R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 PARTIES : Crown - Appellant Wayne Stuart Anforth - Respondent FILE NUMBER(S) : CCA 60136/03 COUNSEL : M Grogan - Crown P Doyle - Respondent SOLICITORS : SE O'Connor DJ Humphreys - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0381 FILE NUMBER(S) : LOWER COURT Herron ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60136/03 WOOD CJ at CL SIMPSON J ADAMS J Tuesday 12 August 2003 REGINA v Wayne ANFORTH Judgment 1 WOOD CJ at CL: I have read in draft the reasons of Simpson J. I agree with those reasons and the proposed orders. I would however add that, but for the published offer of assistance, the demonstrated post offence rehabilitation, and the principle of double jeopardy, I would have considered the appropriate sentence to have been considerably greater than that now imposed. Additionally I observe that the objective criminality of the present applicant was considerably less than that of his co-offenders and as a consequence the sentence substituted on appeal can have only limited relevance in relation to parity, if and when those co-offenders stand to be sentenced for the very serious offences which they are alleged to have committed. 2 SIMPSON J: This is a Crown appeal against the asserted leniency of sentences imposed upon the respondent in the District Court at Newcastle on 21 March 2003 following his pleas of guilty to two counts of aggravated kidnapping, each committed on 26 January 2002. By s86(2)(a) of the Crimes Act 1900, each charge carries a maximum penalty of imprisonment for twenty years. On each count the respondent was sentenced to imprisonment for two years, the sentences to be wholly suspended pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999, on condition that the respondent entered a bond to be of good behaviour for the whole of term. 3 From the material put before the sentencing judge it is not easy to discern precisely what role the respondent played in what was, on any view, a horrific escapade on the part of the respondent and two co-offenders. It is best to recount the whole of the circumstances before attempting to identify the extent of the respondent's participation. 4 The victims of the two offences were Shane Tattersall and Aimee Henderson. The co-offenders were Anthony Williams and Gregory Suckling. 5 Late in November 2001, while living in the central-west of NSW, the victims formed an association. Both were users of amphetamines. The respondent at times supplied them with drugs. Williams was also a supplier of amphetamines. 6 In an attempt to overcome their drug dependency, the victims left the central-west and moved to Karuah, where Henderson's parents lived. 7 Prior to doing so, Tattersall borrowed a mobile telephone from the respondent. He did not return it. This angered the respondent. The telephone contained recorded numbers, which he needed, both for his occupation (of truck driver) and for personal use. The respondent made some attempts to contact Tattersall but was unsuccessful. 8 Tattersall also fell out with Williams. It may be that this was over money owing in relation to the supply of drugs or some other reason. The reason does not matter. 9 As a result of the antipathy, on 24 January 2002, Williams and the respondent travelled in the respondent's utility to Karuah. There they met Suckling. They located the victims. They surveilled the house for at least twenty-four hours. During the morning of 26 January, when Henderson's parents left the house, Williams and Suckling entered it. The respondent appears to have waited outside, holding a baseball bat which he had taken from his utility. Williams was armed with a knife and Suckling with a double-barrelled shotgun. Suckling pointed the gun at Tattersall's head and said: "I've been following you around for weeks, hope you've had a nice life, I should just blow you away now." 10 Tattersall was, not surprisingly, in fear of his life. Williams demanded $10,000 from Tattersall. Suckling took the keys to the victims' car. Williams and Suckling took the two victims to the front of the car, where the respondent was waiting, still holding the baseball bat. Whilst holding it in a threatening way the respondent ordered the victims to get into the car. Tattersall was placed in the front seat and Henderson in the back seat directly behind him. Suckling produced a pair of handcuffs which he gave to the respondent and ordered him to put them on the victims. The respondent hesitated and queried the need to do so and was again ordered by Suckling to comply. He did so, handcuffing the two victims together. He was inexperienced in the use of handcuffs and secured them so tightly as to interfere with Tattersall's circulation. 11 All three offenders then travelled, with the handcuffed victims, to an address in Medowie, which, on the evidence is a town in the Hunter Valley area. They enlisted the aid of an acquaintance of Suckling's, Patrick Geary, to remove the handcuffs. This he did by using an angle-grinder. Both victims suffered burns to their arms as a result of the use of the angle-grinder. Thereafter both victims remained outside the premises for about an hour under the supervision of the respondent who was still in possession of the baseball bat. At this point the respondent appears to have departed and returned to his home in the central-west. 12 The victims were then taken to the central coast, to Albury where they remained overnight in premises occupied by acquaintances of Suckling, to Melbourne, and finally to a house in Geelong. It does not appear that the respondent accompanied the co-offenders and the victims on this part of the excursion. Further atrocities were committed, but, as these did not involve the respondent and were committed in another state, it is not necessary to detail them. So far as appears from the evidence, the respondent's participation came to an end shortly after the removal of the handcuffs. 13 The respondent was interviewed by police at the Dubbo police station on 19 February 2002. The interview was electronically recorded. He gave significantly false information during the course of this interview. He told police that he lent Tattersall a mobile telephone which had not been returned and that there was a good deal of animosity towards him from Tattersall, which, he said, he did not understand. Significantly, he denied having been at Karuah on Australia Day, but said that he had seen the victims at Karuah on an unspecified date. He said that Williams had contacted him to tell him that he had located the victims and that they agreed to travel together, in the respondent's utility, to Karuah where they had met Suckling. He said that they then travelled to the address where the victims were living but that, as the issue between himself and Tattersall was relatively minor, he remained in the car while the other two confronted the victims. He said that they then travelled to another house. He expressly denied that the victims had been "detained in any way" or that they were restrained by handcuffs. He also denied having fitted the handcuffs to the victims. He did, however, admit that he had been in possession of a baseball bat but said that it was on the floor of the car and he was not holding it. He said he had the baseball bat because Tattersall had a tendency to become violent, and he did not know Williams or Suckling well enough to rely on them to protect him from any violence on the part of Tattersall. He denied having seen a knife or a shotgun; he denied any knowledge of an angle-grinder. He had earlier acknowledged that he knew, or assumed, that Williams intended to confront Tattersall, although he said he did not know what that was about. 14 On 28 October 2002 the respondent made a statement at the Gilgandra Police Station. On this occasion he admitted that Suckling had handed him the handcuffs, had ordered the respondent to put them on the victims, and that he had done so, he said, because he felt threatened by Suckling's behaviour. He also acknowledged that the handcuffs had been removed by the use of an angle-grinder. 15 On 19 March 2003 the respondent made another statement to police. He recounted a remark made by Williams, during the trip to Karuah, which made it quite clear to him that Williams was intent upon inflicting significant violence upon Tattersall. He admitted that, when he alighted from the car at the Karuah address, he had taken the baseball bat from the utility with him, and said again that he did this for his own protection because of Tattersall's violent nature. He again acknowledged that he had been given the handcuffs and had himself put them on the victims. In relation to the interview of 19 February 2002, he said that he had told police "a very basic story of what had happened", but that on 28 October he had made a statement providing a little more detail. "A very basic story of what had happened" is a generous description of what the respondent had said during the course of the interview, in which, effectively, he denied much of the role that he had played. subjective circumstances 16 The respondent gave evidence in the sentencing proceedings. He was born on 21 January 1973 and was just twenty-nine years of age at the time of the offences. He was born in Dubbo and had lived most of his life in Gilgandra. He was employed as a truck driver and was in a relationship with Bronwyn Zell, with whom he had a child who was nine months old at the time of sentencing. He said that his purpose in travelling to Karuah was to retrieve the mobile phone and he admitted that from the conversation with Williams, he thought there might have been "a little bit of violence" involved in the encounter. 17 Of considerable significance, the respondent expressed his willingness to give evidence for the Crown in the prosecution of Williams, which was due to commence the following week. He expressed his regret for his involvement, particularly because of the impact upon his family, and he said that he felt "deeply sorry" for his actions towards the victims. 18 The respondent has been before the courts on a number of occasions since 1990. In that year he was convicted of driving whilst there was present in his blood more than the prescribed concentration of alcohol (low range), and possession of methylamphetamine; in 1992 he was convicted of possession and administration of prohibited drugs; in 1993 of possession of an unlicensed firearm, and possession of a loaded firearm in a public place; and in 1994 of custody of an offensive implement, and later, offensive language. In his evidence he explained the firearm offences as having occurred when he had been shooting kangaroos and had the gun in his motor vehicle. 19 The respondent's fiancée (sometimes referred to as his wife), Bronwyn Zell, also gave evidence. She said that the respondent was a good husband and father and that he had found it difficult, after being charged, to return to work. 20 The respondent was arrested on 9 February 2002 and was initially refused bail. He remained in custody until 25 February when he was granted conditional bail. Ms Zell said that this experience frightened him. She was confident that he would not be involved in criminal activity of this kind again. 21 Also before the sentencing judge were a number of testimonials, principally from citizens of Gilgandra. These spoke with one voice of the respondent's good character and of the high regard in which he is held locally. Included in the testimonials was one from the company with whom he was employed, confirming that, notwithstanding the charges, he continued to have a long-term future with the company. the remarks on sentence 22 The sentencing judge found that the respondent was: "a very minor actor" in the enterprise. He described the respondent as "naïve", and observed that he was of a very slight build. He referred to a passage in a statement made by Henderson, which he regarded as "somewhat important". In this passage Henderson said that the baseball bat was handed to the respondent by Suckling, and that Suckling told the respondent, when he felt like it, to "cave her head in". She said that the respondent did not use the baseball bat. The sentencing judge accepted that, in handcuffing the victims, the respondent was acting "at the behest of" the co-offender. The judge found as a fact that the bat was handed to the respondent by one or other of what he described as "the two principals". 23 The judge repeated that the respondent was "rather diminutive in stature", "a rather naïve person" and concluded that he was "of modest education". He considered Ms Zell to be "a completely respectable young woman" and that, despite the respondent's use of drugs, he lived "a respectable life in the country". Notwithstanding the criminal history to which I have referred and the respondent's association with illegal drugs, the sentencing judge considered that the respondent could, for practical purposes, be described as a person of good character and that it was out of character for him to resort to or participate in the violence which was perpetrated against the victims. 24 The judge concluded that the respondent was entitled to a reduction in his sentences by reason of his pleas of guilty, and by reason of his cooperation in the prosecution of Williams. 25 He expressed the view that, having regard to the respondent's previous good character, and before the deductions to which he was entitled, a sentence in the order of two and a half to three years' imprisonment would have been appropriate; that, applying the appropriate reductions would result in a term of eighteen months' full-time imprisonment. He then described the case as "unusual", not calling for a sentence of full-time custody and determined to suspend the sentence. He accepted that Williams "importuned" the respondent to take him (Williams) to Karuah, that Williams' purpose was to extract money from Tattersall as a result of drug dealing, and that the respondent's purpose was to collect his mobile phone. He then imposed the sentences to which I have referred. the Crown appeal 26 On behalf of the Crown it was asserted that the sentences are manifestly inadequate. The Crown took issue with a number of findings of fact made (whether explicitly or implicitly) by the sentencing judge. It will be necessary to deal with each of these in turn. (i) the characterisation of the role played by the respondent 27 The sentencing judge described the role played by the respondent as very minor and considered that the "main actors" were Williams and Suckling. On behalf of the Crown it was accepted that, by comparison with Williams and Suckling, the respondent's role was relatively minor. However, the Crown argued, the sentencing judge failed to have proper regard to what the respondent actually did. Firstly, the Crown submitted, the respondent was a principal in the commission of two very serious offences. This cannot be doubted. Secondly, the Crown pointed to the evidence concerning what the respondent did. He equipped himself with a baseball bat. He (however reluctantly) handcuffed the victims, in circumstances where it appears that no key was available (there is no evidence to suggest that the respondent was aware of the absence of a key). He stood guard over the victims after the handcuffs had been released. He accompanied Williams and Suckling, knowing that violence was at least possible, and, indeed, probable. He must have been aware of the presence of the shotgun. 28 Particular issue was taken with the sentencing judge's acceptance that the baseball bat had been handed to the respondent by Suckling. In reaching this conclusion the judge relied upon a sentence contained in Henderson's statement. That was: "Greg [Suckling] pushed me into the back of the car and told Wayne [the respondent] not to be scared of me as I was only a girl. Greg handed Wayne a silver-handled baseball bat ." 29 In accepting that statement, his Honour referred to evidence of Ms Zell that the respondent on occasions kept a baseball bat in the vehicle, but he did not mention a passage in the respondent's statement of 19 March 2003 in which he said: "I cannot remember the exact words, but the gist of it was that Greg had found out where Shane was living and that he would take us there. I got a baseball bat out from behind the seat of my ute to take with me. I did this because Shane is an aggressive sort of bloke and bigger than me. If there was going to be a confrontation I wanted to have something there for my own protection. We left my ute at the service station and got into Greg's maroon early nineties Fairlane." 30 The two pieces of evidence are not entirely inconsistent. It may well be that at the scene Suckling handed the respondent the baseball bat; but it is quite clear that the respondent had ensured that the bat was present, and that he did so because he anticipated violence. 31 In my opinion the Crown has established that the sentencing judge approached this piece of evidence in a manner unduly favourable to the respondent. (ii) the respondent's purpose in his participation 32 The sentencing judge accepted that the respondent was not party to the intention of Williams (and, probably, Suckling) to extract money from Tattersall, and that his purpose was to retrieve the mobile phone. In part, the Crown takes issue with this finding because there is no mention of that as the respondent's purpose in an agreed statement of facts. In some circumstances this may be a persuasive matter, but I do not find it so in the present. The agreed statement of facts is hardly a masterpiece of the draftsperson's art and focuses wholly upon the activities of Williams and Suckling, including their activities after the respondent withdrew from the enterprise. The absence of any reference to the mobile phone in that document does not persuade me that the judge's finding of fact was wrong. 33 Moreover, the material put before the judge included not only the agreed statement of facts, but the supporting statements on which the statement of facts was based. It would not be right to ignore the contents of those statements, including the statements of the respondent. 34 In his statement of 19 March 2003 the respondent said that Williams had initially wanted to borrow his utility to enable him to go to Karuah but that the respondent was reluctant to lend it to him because it was unreliable and so he offered to drive Williams to Karuah himself. He thought it would be a good opportunity to get back his mobile telephone. 35 Also in his evidence the respondent said the reason for his travelling to Karuah was to retrieve the telephone. At the same time he was well aware of the possibility of violence. He was well aware of Williams' purpose in the excursion. Although the position is not clear cut, I do not think it could be said to be an error on the part of the sentencing judge to find that the respondent's purpose was centred upon retrieving his mobile phone. (iii) the finding that the respondent was naïve and that his conduct was out of character 36 In attacking these findings of fact the Crown pointed again to the detail of the respondent's participation, his awareness of the possibility of violence, and his taking steps to protect himself by the possession of the baseball bat. 37 There really was very little in the documentary material to justify the conclusion that the respondent was naïve. However, it may well be that the sentencing judge reached that view as a result of observing the respondent as he gave his evidence. Such an impression is not lightly to be contradicted by this Court. I could not conclude that this finding of fact was erroneous. A challenge was also made to the conclusion that the conduct was out of character, it being suggested that there was no apparent basis for that finding. I would reject this. The written testimonials were quite powerful and all made precisely that suggestion. On behalf of the Crown it was not suggested that the respondent's criminal record contradicted the finding, and I would be hesitant to find that it did. In my opinion it was open to the judge to make that finding. (iv) that the respondent was a person of prior good character 38 The judge observed that the prosecution "has been charitable enough to concede that in fact this man is otherwise of good character". He did not classify the prior convictions as "really serious". Notwithstanding his recognition that the respondent had "had resort to drugs", he held that the respondent could, for practical purposes, be described as a person of good character. To say that the respondent had "had resort to drugs", when the evidence suggests that the respondent had, in fact, dealt in drugs, is, in my view, rather generous to the respondent. 39 However, I would not be prepared to hold that such a finding was not open. In any event, during the sentencing proceedings, the Crown Prosecutor accepted that, prior to these events, the respondent was a person of good character. I would reject the challenge to this finding. 40 The Crown suggested that other errors infected the sentencing process. These were asserted to be an over-emphasis on the respondent's personal circumstances, the absence of any reasons for suspending the sentence, an asserted wrong approach in determining that the sentence should be suspended before determining its length, under-emphasis on the seriousness of the offence, excessive weight given to the assistance to authorities, the absence of any mention of general deterrence, and the failure to consider partial accumulation of sentences for the two offences. 41 I think there is substance in the contention that the judge firstly decided that non-custodial sentences would be sufficient to meet the circumstances of the case, and then determined the sentences, and that this was an erroneous approach. The absence of reasons for suspending the sentences is not, in my view, an error in itself, but adds weight to the inference that an erroneous approach was taken. Counsel for the respondent suggested that a passage in the transcript (wrongly attributed to the judge, but plainly said by counsel for the Crown) should be interpreted as a concession that full-time custody was not essential. This arose in the context of a discussion of sentencing options. The Crown Prosecutor had referred to authority to the effect that it would only be in an exceptional case that a sentence of full-time custody would not be imposed. The judge himself asked about a suspended sentence, to which the Crown Prosecutor responded: "… the appropriate sentence is one of full-time custody, and then that would have to be scaled down depending on the assessment of … evidence that he's willing to give against the co-accused." 42 I do not read this as a concession that something less than full-time custody would be adequate to meet the circumstances of this case. The "scaling down" referred to is a reduction in the term of the sentence, not the manner in which it is to be served. 43 I think also there is substance in the contention that inadequate weight was given to the seriousness of the offences and excessive weight was given to the respondent's personal circumstances. I consider it also significant that no mention was made of the principle of general deterrence and that that, in this case, suggests that the matter was overlooked. 44 The final matter referred to by the Crown concerned the reduction in sentences by reason of the combined effects of the pleas of guilty and assistance to authorities in the prosecution of Williams. 45 The judge said that, apart from those matters, sentences in the order of two and a half to three years would have been imposed. This, if he had been imposing a full-time term of imprisonment, he would have reduced to in the order of 18 months. That suggests a combined discount of up to 50%. 46 The respondent was clearly entitled to a discount by reason of the pleas of guilty, and this could be taken to have been within the range specified in R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and therefore up to 25%. He was not, in my opinion, entitled to the maximum discount for assistance. His willingness to give evidence was far from insignificant, given the plainly violent and dangerous nature of the co-offenders. But the value of his assistance was limited, and at the time of sentencing (which was on the eve of Williams' trial) the Crown had not decided whether or not it would take advantage of his willingness. There were good reasons for this. The respondent had not been consistent in what he had told police and this would have provided a fertile source of cross-examination. However, there is no doubt that he was entitled to some reduction for that reason. 47 As it happened, so this Court was told, the respondent was not called upon to give evidence against Williams. That is because Williams pleaded guilty. That circumstance does not affect the respondent's entitlement to a reduction: it is entirely possible that Williams' decision to plead guilty was brought about, at least in part, by the respondent's willingness to give evidence. 48 In my opinion the Crown has established that, in a number of respects, a wrong approach was taken to the sentencing of the respondent. Even without the specific errors identified, in my opinion, non-custodial sentences, for offences as serious as these, were manifestly inadequate. The respondent's subjective case was not so overwhelming as to displace the need to demonstrate the community's abhorrence of offences of the violent and sadistic nature of these. 49 Counsel for the respondent urged that this is a case warranting the application of the residual discretion this Court retains to decline to interfere with an inadequate sentence. I do not agree. The offences were serious, and there are no grounds for the exercise of the discretion. In my opinion the Crown appeal should be allowed and the respondent re-sentenced. 50 Counsel for the respondent then sought the opportunity to place before the Court material justifying the imposition of sentences to be served by way of periodic detention. The respondent was assessed as suitable for such an order, and the Court was told that vacancies exist at a suitable centre. 51 However, I am of the view that the circumstances do not justify the making of such an order. In my opinion the only sentences that are appropriate are of full-time custody. In fixing the sentences that are appropriate, I bear in mind the circumstance that I propose that the respondent be re-sentenced following a successful Crown appeal, and that any such sentences should be at the lower end of the scale of the level otherwise appropriate. 52 This will be the respondent's first sentence to be served in full-time custody. By reason of his expressed willingness to give evidence against Williams, it will, presumably, be necessary that it be served in protective custody. For these reasons, I would find that special circumstances within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act 1999 exist warranting a reduction in the non-parole period at the expense of the parole period. 53 I have concluded that, before the application of the discount to which the respondent is entitled, a head sentence of imprisonment for three years is appropriate for each offence. I would discount that by one third, giving a head sentence of two years. I propose a non-parole period of ten months. Each sentence should commence today, 12 August 2003, and expire on 11 August 2005. I would direct that the respondent be released on parole at the expiration of the non-parole period, 11 June 2004. 54 The orders I propose are: (i) Crown appeal is allowed. The respondent is to be re-sentenced. (ii) On each count the respondent is sentenced to imprisonment for two years, commencing 12 August 2003 and expiring 11 August 2005, with a non-parole period of ten months. The first date on which the respondent is eligible for release on parole is 11 June 2004. I would direct that the respondent be released on parole at the expiration of the non-parole period, 11 June 2004. 55 ADAMS J: I agree with Simpson J and Wood CJ at CL. ********** Last Modified: 08/28/2003 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.