Regina v Russell Geoffrey Francis [2002] NSWCCA 51

New South Wales Court of Criminal Appeal

CITATION : Regina v Russell Geoffrey Francis [2002] NSWCCA 51 revised - 12/03/2002 FILE NUMBER(S) : CCA 60744/01 HEARING DATE(S) : 6 March 2002 JUDGMENT DATE : 8 March 2002

PARTIES : Regina Russell Geoffrey Francis JUDGMENT OF : Stein JA at 1; O'Keefe J at 24; Buddin J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0024 LOWER COURT JUDICIAL Coolahan DCJ OFFICER :

COUNSEL : D M L Woodburne (Crown Prosecutor) C B Craigie SC (Respondent) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - detaining for advantage and causing injury - Crimes Act 1900, s 90A - sentence manifestly inadequate - discretion to re-sentence - ND Crimes Act 1900 (NSW) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) CASES CITED: Power v The Queen (1973) 131 CLR 623 R v Simpson [2001] NSWCCA 534 DECISION : 1. Appeal allowed; sentences quashed. 2. In lieu thereof, the respondent sentenced to 4 years imprisonment on each offence, to be served concurrently. The sentence is to commence on 24 August 2001 and to expire on 23 August 2005. Non-parole period fixed for 2 years to expire on 23 August 2003.

IN THE COURT OF CRIMINAL APPEAL 60744/01

STEIN JA O'KEEFE J BUDDIN J

Friday, 8 March 2002 REGINA v Russell Geoffrey FRANCIS Judgment 1 STEIN JA: This is a Crown appeal under s 5D of the Criminal Appeal Act 1912 against sentences imposed on the respondent, Russell Geoffrey Francis, by Coolahan DCJ on 28 August 2001. 2 On the morning of the trial, 12 June 2001, the respondent pleaded guilty to two offences of detaining for advantage and causing injury in contravention of s 90A of the Crimes Act 1900. The charges concerned events occurring over the night and morning of 31 August and 1 September 2000. The two victims were a Mr Jeffrey Schott and Mr Andrew Tyler. There were two co-offenders, Jamie Forrester and Tiffany Brockman. 3 The sentencing of the respondent was completed on 28 August 2001 when the respondent was convicted and sentenced to concurrent terms of imprisonment for 3 years from 24 August 2001, to expire 23 August 2004. His Honour found special circumstances and set a non-parole period of 12 months to date from 24 August 2001 and expire on 23 August 2002. 4 One of the co-offenders, Tiffany Brockman, had pleaded guilty on 13 June 2001. She was sentenced by his Honour to imprisonment for 2 years with respect to each count, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act upon condition that she enter bonds to be of good behaviour for the period of the sentences. The respondent conceded that there was no question of parity between him and Brockman. 5 On 12 June 2001, the day fixed for trial, the accused Forrester failed to appear and a bench warrant was issued. The respondent, Francis, pleaded guilty. 6 With regard to the sentencing of the respondent his Honour accepted a statement of facts tendered by the prosecution. However, he added that: … the full extent of the horror of the ordeal suffered by Schott and Tyler can only be gained by a perusal of their statements. It is obvious that, over a period of many hours, they were subjected to significant assaults at the hands of both Forrester and this offender (Francis) and that they feared for their lives. As I said, upon being assaulted by this offender, Tyler urinated in his pants. This was out of fear. On frequent occasions during the course of the ordeal Schott cried, also out of fear. 7 The victim Tyler's statement indicates as follows: - his increasing anxiety as he saw the doors locked; - his utter fear as he witnessed the violence perpetrated on Schott and then suffered by himself such that he urinated in his pants as the respondent punched and elbowed him; - his pain and fear during his "interrogation", as he was hit with the baseball bat, and sheer terror at the realisation that he did not know what was to become of him; - the threats that he was going to be thrown off a cliff or drowned, made all the more real by being taken to places where that could be achieved; - his fear and belief that he was going to die, as he was dragged from the car and handcuffed, and then told to dig his own grave; - his pain and fear during the further interrogation and continued physical assaults; - the further vicious assault by the respondent who gave him his asthma puffer and then kicked him to the centre of the chest knocking him straight to the ground such that he couldn't breathe and then vomited on the ground; - the continued threats to kill and violence perpetrated upon their return to Forrester's house; - the continuing fear felt by him after his release, such that upon his return to his own house he showered holding on to a meat cleaver and a big knife and then sought the help and advice of his father, ultimately staying in a motel even after the matter had been reported to police; - the physical injuries suffered including two black eyes, numerous lumps and bruises on his forehead and back of head, bruised rib and bruised lung, scratches to his neck, bruised wrist; - his real fear that he was going to be murdered. 8 The victim Schott's statement indicates that: - after being punched in the nose by Forrester he saw the respondent hit Tyler's head a number of times with his right fist and left elbow; - he saw the respondent give Forrester the baseball bat, which Forrester then used to hit Tyler in the face; - the respondent punched him to the right eye; - his extreme fear during the interrogation and their confinement; - the respondent dragged Tyler from the car and later kicked Tyler to the chest causing him to collapse, vomit and gasp for air; - he was petrified of the respondent and Forrester; - he was too fearful to stay at his home after the assaults; - he suffered a broken nose, laceration, bruising, soreness and swelling to his face, neck and back. 9 His Honour found that while Forrester had the prime interest in detaining the victims, the respondent was prepared to very actively and violently assist Forrester in the commission of the offences. Further, the respondent's drug dependence played a significant part in his participation in the offences. Francis was prepared to go along with Forrester or assist him in a very real way and engaged in prolonged gratuitous violence, some of which even Forrester did not encourage. While the offence by the respondent was not premeditated, the respondent became actively involved in the offences over many hours. Further, where there was any discrepancy between the victims' statements and the respondent, the former were to be preferred. 10 His Honour said that the respondent willingly participated in a 'reign of terror' that the victims endured over many hours. While the involvement of the respondent was not as significant as that of Forrester, it was 'certainly close to it'.