Bott v R [2012] NSWCCA 191

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bott v R [2012] NSWCCA 191 Hearing dates: 27 August 2012 Decision date: 31 August 2012 Before: Macfarlan JA Price J McCallum J Decision: 1. The extension of time to seek leave to appeal is granted. 2. Leave to appeal granted. 3. Appeal dismissed. Catchwords: Criminal Law - appeal against sentence - kidnapping - standover merchant - whether judge took irrelevant matters into account - whether judge sentenced for aggravated offence - whether error in assessment of prospects of rehabilitation - whether sentence manifestly excessive. Legislation Cited: Crimes Act 1900 s 86(1)(b), s 86(2) Crimes (Domestic and Personal Violence) Act 2007 s 13(1) Crimes (Sentencing Procedure) Act 1999 s 12, s 68, s 69 Cases Cited: Allen v R [2010] NSWCCA 47 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Category: Principal judgment Parties: Representation: Mr R Herps (Crown) Mr M Gleeson (applicant) Mr S. Kavanagh (Director of Public Prosecutions) Boss Cher Lawyers (applicant) File Number(s): 2009/230155 Decision under appeal Citation: R v Bott Before: Finnane QC DCJ File Number(s): 2009/230155

Judgment 1MACFARLAN JA: I agree with Price J. 2PRICE J: The applicant seeks leave to appeal against the sentence imposed upon him by Finnane DCJ (the judge) in the District Court at Sydney on 28 October 2011. He had pleaded guilty to a charge of kidnapping, pursuant to s 86(1)(b) Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment. An offence of intimidation pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 had been included on a Form 1 and was taken into account by the judge on sentence. This offence is punishable by imprisonment for 5 years or 50 penalty units, or both. 3The applicant was sentenced to a non-parole period of 12 months, commencing on 27 October 2011 and expiring on 26 October 2012 with a balance of term of 18 months expiring on 26 April 2014. The judge directed that the applicant be released to parole on the expiration of the non-parole period. 4The judge had discounted the sentence by twenty five per cent for the utilitarian value of the plea of guilty. 5The notice of appeal identifies three grounds: 1.The sentence imposed in all the circumstances was manifestly excessive. 2.The Learned judge erred in considering matters, which were improperly taken into account on passing sentence. 3.The Learned judge erred in his assessment of the applicant's prospects of rehabilitation. 6The applicant requires an extension of time in which to make an application for leave to appeal. After an adequate explanation was provided by the applicant for the delay, the Crown withdrew its opposition to an extension of time being granted. Facts 7The circumstances of the applicant's offending were the subject of a five page statement of facts. 8When the plea of guilty was entered before Knox DCJ on 3 May 2011, the statement of facts was tendered. The applicant's counsel informed Judge Knox that there was an issue "regarding one or two areas of the Crown's version" but there was no need to call evidence because they did not effect the applicant's plea: T 5 35-40. During the proceedings on sentence before the judge on 30 September 2011, the statement of facts was placed before his Honour and the applicant did not give evidence. The applicant does not complain in any ground of appeal that there was error in the judge's findings of fact. Background 9The background to the offending may be conveniently summarised. Michael Johns, the victim, was a finance and property broker. His business associate was Brenton Tong. In November 2007, Johns met Ibrahim Sengoz and Mark Garofali at Tong's office in Clarence Street, Sydney. Sengoz had previously borrowed $500,000 from Tong which was secured by a second mortgage on a three unit residential development at Terrigal. The National Australia Bank, the first mortgagee had repossessed the development and it was to be auctioned. At the meeting, Sengoz and Garofali proposed to purchase unit 3 in the development at the auction. Both Tong and Johns advised them against this course of action. 10Shortly after this meeting, Johns and Tong learned that Garofali had purchased the unit for $1.39 million at the auction. Garofali signed a mandate for Johns to act on his behalf to find a lender willing to lend him $1.3 or $1.4 million. 11Johns was unable to find a lender for Garofali. Sengoz and Garofali had also approached Tong to find them a lender, but he too had been unsuccessful. 12Garofali was unable to complete the purchase of the unit and his deposit of $139,000 was forfeited. 13At a meeting on 4 March 2008 at the Menzies Hotel, Johns learned that Garofali had borrowed $140,000 for the deposit on the unit from Sharon Coghlan and John Zammit. Garofali had agreed to repay this amount plus $60,000 interest. When the agreed amount was not repaid, a $10,000 late fee was added taking the total amount owed to $210,000. Garofali and Sengoz blamed Tong and Johns for the failure of the unit venture. They claimed that Tong had promised to source finance which he had not done, causing the deposit to be lost. Johns left the hotel before the meeting was concluded. Form 1 - intimidation s 13(1) Crimes (Domestic Violence) Act 14On 9 July 2008, Johns had a meeting with Zammit and Coghlan in the courtyard of the Soprano's Bistro at Surry Hills. The applicant was also in attendance. During the meeting, Zammit's attitude towards Johns became aggressive. Zammit asked the applicant, "What do we do in our world or business if somebody owes us money and doesn't pay?" The applicant responded, "In our world we get our money back...We go pick 'em up." The applicant said to Johns, "This is your problem now, you owe us the money." 15Both the applicant and Zammit said, "We want you to go and get Brenton " Fearing for his safety, Johns agreed to find Tong and bring him to Zammit at the Menzies Hotel. 16Johns had a Blackberry mobile phone, a black diary and two novels on the table in front of him. The applicant pushed these items towards Zammit, who took them and gave them to Coghlan, who kept them. The applicant said, "That's ours". Johns was told by one of the group that he could have his property back when he presented Tong. 17Johns described the applicant as aged in his mid 30's, 180cm tall, large muscular build, dark brown or black shoulder length hair tied back with a black plaited fabric headband. The offence of kidnapping s 86(1)(b) Crimes Act 18While Johns was attending a business meeting with Mr Romeo, a client, at the Woollahra Hotel on 16 July 2008, the applicant approached him and said, "You didn't come back last week. Why didn't you come back?" Johns replied, "It has got nothing to do with me. You took my shit, give it back." The applicant then said, "We want you to take us to Brenton or bring us to him. We have been to his address that Brenton has given us, but he doesn't live there. Brenton owes us money. Do you know who you are dealing with? This is the bikies money. We want you to go in the building in town in Clarence Street and hit the security button to get him to come down." 19Johns refused to do this and asked about the return of his property. The applicant said, "Yeah I've got it in my car outside." Johns asked for his property to be brought to him. The applicant said, "No you're going to come with us now." Johns refused to go to the applicant's car, however, eventually agreed if Mr Romeo would accompany him in order to retrieve his property. 20They then all left the hotel and walked along Moncur Street, Woollahra. Approximately 3-4 metres past the intersection of Moncur and Rush Streets, Johns decided to return to the hotel as he had became fearful of being too far from his vehicle. As he turned to walk back in the direction he had come from, the applicant tackled him. Johns asked Mr Romeo to call the police. As the applicant tried to drag Johns up Rush Street, Johns saw a second solidly built islander male, with short cropped hair, who he recognised from the meeting at Soprano's bistro, walking down Rush Street. Johns began to yell and scream and the second male took hold of the rear of his pants. As he was being carried up Rush Street, the applicant said, "You've coming with us". Johns was carried approximately 50 metres from Moncur Street to where his vehicle, a blue Subaru was parked in Rush Street. 21Upon reaching Johns' vehicle, the applicant and the other male put Johns down. The applicant twisted Johns' arm behind his back causing him to feel pain while the second male searched Johns' pockets for his car key. Johns told them that his car key was in his right pocket. After removing the key from Johns' jean pocket, the second male unlocked and opened the driver's side door of the vehicle. Johns continued to scream and struggled against the applicant's hold. 22Fearing serious injury if he was taken in the vehicle with the applicant and the other male, Johns kicked the driver's door shut. The applicant pulled Johns away from the door towards the front of the vehicle. As he did this, Johns kicked the front right guard of the vehicle leaving a dent in it and causing the car alarm to sound. The applicant and the other male ran across Rush Street and into Moncur Street. Johns dialled triple-0. 23Following investigations by police, the applicant was arrested on 15 October 2009. Subjective circumstances 24The applicant did not give evidence during the proceedings on sentence. A Probation and Parole Pre-Sentence Report was before the judge that disclosed that the applicant had migrated from Tavalu to Australia when he was 6 years old with his older sister and her husband who became his adoptive parents. He was born on 22 July 1965 and was 42 years old at the time of the commission of the offence. The applicant resided with his wife and three children in Sydney. Mr Watling, the author of the report noted that the applicant's wife believed that he had matured significantly in recent years and did not associate with negative peers from his past, which was re-iterated by the applicant's adoptive father. The applicant had told Mr Watling that he had become involved as a young man with a number of negative associates through his job as a security guard in the nightclub industry. He was at the time of the preparation of the report a part owner in a vehicle inspection company at Tempe. Mr Watling reported that he was a highly motivated, integral member of their team and had been involved in the business since September 2008. The applicant was also a project manager for a property development in Queensland on behalf of his adoptive father's family trust. 25The applicant told Mr Watling that prior to the commission of the offence, an associate borrowed approximately $25,000 from him and said that he could not pay him back until he received money owed to him from a third party. The applicant claimed that the offence came about whilst he was assisting his associate to get his money so that he in turn could be reimbursed. The applicant stated that in his business as a property developer, and in particular, among his associates in the same field, intimidation is a common form of collecting debt. He initially thought the offences to be of a minor nature, however, claimed that he now realised his involvement was a mistake and his actions were inappropriate. 26Mr Watling observed: "[the applicant] presented as a quiet, confident man who willingly related his personal and work history in detail. He appears to have been involved with a number of anti-social peers throughout his adult life that have influenced his attitude in relation to socially accepted behaviour and appropriate conflict management. The offender's attitude to the offences indicates that although his current behaviour demonstrates a law abiding lifestyle he would still benefit from clarification of criminal orientation through appropriate pro-social influences." 27The applicant's prior criminal history discloses convictions for offences of assault occasioning actual bodily harm and goods in custody (1986) malicious injury (1987), conspiracy to import a prohibited import (1998) and stalk/intimidate to cause fear (2006). He was sentenced for the conspiracy charge to imprisonment for 9 years with a non-parole period of 5 years 6 months. For the offence of stalk/intimidate, the applicant was placed on a s 9 good behaviour bond for 12 months on 7 March 2006 in the District Court at Lismore. 28Before considering the first ground of appeal that complains of manifest excess, it is appropriate to deal with the second and third grounds that raise complaints of discrete error. Ground 2: The Learned judge erred in considering matters, which were improperly taken into account on passing sentence. 29The applicant contends in written submissions that the judge placed too much emphasis on irrelevant matters in his sentencing remarks, which included an alleged breach of bail, association with an unlawful motorcycle gang and that the applicant was prepared to practice extreme violence on the victim. The consideration of irrelevant matters is said to have clouded the judge's mind, aggravating the offences before the court and ultimately ruling out the possibility of a non-custodial sentence. 30In his remarks on sentence, the judge noted that the applicant was granted bail following his arrest, but had gone to Fiji for a holiday in contravention of his bail and had returned (ROS at 3). The issue of the applicant's bail arose during the proceedings on sentence before the judge as the applicant's counsel in written submissions had mistakenly submitted that the applicant had been on stringent bail conditions since his arrest and had not breached them, thereby demonstrating an ability to comply with court orders and to conduct himself in a lawful manner. His Honour was further required to consider whether the applicant's bail was to be continued until sentence was pronounced. I am not persuaded that the judge's references to bail were anything more than a recitation of what had occurred since the date of the applicant's arrest. 31The focus of the applicant's complaint about the judge's reference to an unlawful motorcycle gang is the judge's remarks at (ROS 6): "As I have indicated from the facts the threats that formed part of the Form 1 are an essential background to this matter. If the victim took seriously those threats he would accept that this man, the offender, was a member of an outlaw motorbike gang, that that gang was owed the money and they would do considerable violence to get the money back. Now that may all have been lies but those words it appear were said." 32When the applicant confronted Johns at the Woollahra Hotel on 16 July 2008, he said: "Do you know who you are dealing with? This is the bikies money." Undoubtedly the applicant spoke these words to place Johns in fear and to add emphasis to his intimidating conduct during the meeting at Soprano's Bistro. His Honour's remarks were appositely made and do not disclose error. 33As to the complaint about the reference to violence, the judge did not say that the applicant was prepared to practise extreme violence on the victim. His Honour said (ROS at 7): "There is no evidence he was going to practise extreme violence on him. But there is certainly evidence that he and this other man were prepared to use violence for the purpose of achieving their ends. It is reasonable to suppose that he did this for the purpose of getting money for himself." 34The applicant used violence when he prevented Johns from returning to the hotel and dragged and carried him to his motor vehicle. The observations made by the judge were open to him and his Honour did not err. 35There were further matters advanced for the applicant in oral argument. The applicant submitted that he was incorrectly sentenced by the judge for the aggravated offence of kidnapping under s 86(2) whereas he had pleaded guilty to the basic offence under s 86(1)(b). The Court's attention was drawn to the commencement of the judge's remarks where he said (ROS 1): "The offender...comes before this Court charged with an offence under s 86(1)(b) of the Crimes Act namely that on 16 July 2008 whilst in the company of someone else he took Michael Johns without his consent with intent to obtain an advantage namely to gain access to Brendon (sic) Tong." (italics added) 36A factor of aggravation that brings an offence of kidnapping under s 86(2) is if the offence is committed in the company of another person: s 86(2)(a) Crimes Act. The maximum penalty for the aggravated offence is imprisonment for 20 years. 37Although in his introductory remarks the judge incorrectly referred to the applicant being before the court on a charge of an offence "whilst in company", he correctly identified the section under which the applicant was charged as being s 86(1)(b). When he turned to consider the appropriate sentence to be imposed, his Honour stated that the maximum penalty was 14 years imprisonment (ROS 5) and remarked that the applicant was not charged with "the aggravated form" of the offence (ROS 6). I am not persuaded that his Honour sentenced the applicant for the aggravated offence under s 86(2) Crimes Act. 38Another complaint was that by being placed on more stringent bail conditions, the applicant was given a reasonable expectation that a full time custodial sentence would not be imposed. There is no merit whatsoever in this argument. A grant of bail pending sentence does not give rise to any expectation of the sentence to be passed. The considerations that apply to the grant of bail are different to those that determine an appropriate sentence. 39I would reject Ground 2 of the appeal. Ground 3: The Learned judge erred in his assessment of the applicant's prospects of rehabilitation. 40The applicant contends that the judge was wrong to describe "rehabilitation as only a possibility". Mr Watling, the author of the Probation and Parole report, was said to have expressed the opinion that the applicant had good prospects for leading a law-abiding lifestyle and was suitable for a community service order. The applicant submits that the facts of the case did not allow for the judge's determination on rehabilitation to be made. 41During his sentencing remarks, the judge carefully considered the Probation and Parole report and the applicant's prior criminal history. His Honour referred to Mr Watling's observation quoted at [26] above, that although the applicant's current behaviour "demonstrates a law abiding lifestyle, he would still benefit from clarification of criminal orientation through appropriate pro-social influences" (ROS at 5). His Honour later said (ROS at 7): "The principles of sentencing require that I take into account prospects of rehabilitation, and I do, there are some." and (ROS at 7): "In my opinion offences of violence of this nature by people who have serious criminal offences in their record which suggests that rehabilitation is only a possibility require sentences of full time custody." 42The judge was entitled to be reticent about the applicant's prospects of rehabilitation. The applicant had not expressed any remorse for his offending and there was little evidence that he understood the seriousness of his conduct. The good behaviour bond for the offence of stalk/intimidate had expired in the year prior to the commission of the offence, but had not deterred the applicant from intimidating and detaining the victim. His Honour's approach to the applicant's prospects of rehabilitation was within the proper exercise of his sentencing discretion and I would reject Ground 3 of the appeal. Ground 1: The sentence imposed in all the circumstances was manifestly excessive. 43The applicant must show that the sentence was unreasonable or plainly unjust in order to make good his complaint that the sentence is manifestly excessive: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]. Intervention by this court is not warranted simply because it might have exercised the sentencing discretion in a manner different to the sentencing judge: Markarian at [28]; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [57]. 44It is contended for the applicant that the sentence imposed by the judge was manifestly excessive notwithstanding that the offence contrary to s 86(1)(b) Crimes Act called for a strong measure of deterrence. The applicant conceded that the victim would have been put in a position in which he may have feared for his personal safety. However, he argues that the victim was detained for "a mere five seconds" and did not receive any substantial injury. If any violence was used, it was minimal and there was no evidence to demonstrate that the applicant had suffered any substantial injury. Furthermore, the Probation and Parole report highlighted the strong subjective features of the applicant's case, which included family, gainful employment and detachment from his criminal peers. 45The applicant had asked the judge to suspend any custodial term that might be imposed and respectfully suggests to this Court that he be re-sentenced to a supervised suspended sentence of imprisonment. Another option that had been proposed to the judge was an intensive correction order. It is convenient to note that a court may only suspend a term of imprisonment or may impose an intensive correction order where the sentence is not more than 2 years imprisonment: ss 12; 68, 69 Crimes (Sentencing Procedure) Act 1999. 46In response, the Crown submitted that the applicant's presence at the Soprano's Bistro was to persuade the victim, by intimidation, to co-operate. When the victim failed to do so, he was kidnapped. The applicant was an enforcer, who was prepared to intimidate, use violence and kidnap to bring his principles' wishes. The kidnapping offence and the offence on the Form 1 were premeditated and the very type of conduct in which the applicant engaged emphasised the need for general deterrence. 47In Allen v R [2010] NSWCCA 47, Latham J (with whom McClellan CJ at CL and Schmidt J agreed) referred at [20] - [21] to the factors relevant to the assessment of the objective gravity of an offence contrary to s 86(1)(b) Crimes Act: "[20] The combination of factors relevant to an assessment of the objective gravity of an offence under s 86 of the Crimes Act were identified by this court in R v Collett & Robson (NSWCCA, unreported, 7 June 1979), per Roden J, as the duration of the detention, the extent of fear or terror occasioned, the manner of treatment and what is demanded of the victim by the offender, the purpose of the detention, and the extent (if any) to which third parties were subjected to ordeal or anguish by reason of fear for the welfare of the victim. [21] In R v Newell [2004] NSWCCA 183, Howie J (Bell and Hislop JJ agreeing) said: 32 'The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence.' This approach was reiterated by Howie J (Dunford J agreeing) in R v Falls [2004] NSWCCA 335." 48In my opinion, the applicant's submissions trivialise the seriousness of his offending. The judge recognised that the victim was unlawfully detained for a short time during which he was subjected to violence and feared for his safety, but correctly rhetorically asked, but for the victim's activation of the car alarm "who knows exactly how long he would have been held or what would have happened" (ROS at 7). The judge found that the victim was detained with the view "ultimately to getting access to [a] man whom they believed could be persuaded by force if necessary, to hand over money" (ROS at 6). 49Garofali owed $210,000 to Zammit and Coghlan and it was this amount that the applicant planned to extract from Tong after he had gained access to him by detaining the victim and placing him in fear. It seems that the advantage that the applicant sought to personally obtain by his violent and intimidating conduct was an amount of about $25,000. 50It is important to emphasise that a civil society cannot tolerate standover merchants who seek to recover money or obtain information from others by fear and violence. The applicant's lack of insight into the seriousness of his conduct and his understanding that intimidation is a common form of debt collection emphasise the importance of both specific and general deterrence in the sentence. 51Although this offence is not the most serious of its kind, a full time custodial sentence of more than 2 years was called for. The maximum penalty for the offence is 14 years imprisonment. The judge was entitled to increase the sentence by reason of the applicant's intimidating conduct at the Soprano's Bistro: (the Form 1 offence). 52The judge plainly took into account the applicant's subjective case which included his strong family support and favourable work history in moderating the length of the sentence. Notwithstanding not expressly making a finding of special circumstances, a non-parole period of 12 months was imposed, which is 40 per cent of the head sentence. 53The applicant has not shown that the sentence was unreasonable or plainly unjust. I would reject this ground of appeal. Orders 54Accordingly, I propose the following orders: 1. The extension of time to seek leave to appeal is granted. 2. Leave to appeal granted. 3. Appeal dismissed. 55McCALLUM J: I agree with Price J.