Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: De Wet v R [2015] NSWCCA 23 Hearing dates: 25 February 2015 Decision date: 11 March 2015 Before: Hoeben CJ at CL at [1]; Harrison J at [2]; R A Hulme J at [30]. Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – kidnapping committed in company – grievous bodily harm – consideration and practical effect given to s3A of the Crimes Sentencing Procedure Act 1999 by trial judge – sentences are not unreasonable or plainly unjust Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedures) Act 1999 Cases Cited: Dinsdale v the Queen (2000) 175 ALR 315 Franklin v R [2013] NSWCCA 122 Hili v The Queen [2010] HCA 45 at [59] House v The King [1936] HCA 40; (1936) 55 CLR 499 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Morgan (1993) 70 A Crim R 368 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Simon Peter De Wet (Applicant) Crown (Respondent) Representation: Counsel: B Hancock (Applicant) JA Girdham SC (Respondent) Solicitors: Brock Partners (Applicant) Solicitor of Public Prosecutions (Respondent) File Number(s): 2012/252124 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 30 April 2014 Before: Conlon DCJ File Number(s): 2012/252124 Judgment 1. HOEBEN CJ at CL: I agree with Harrison J. 2. HARRISON J: The applicant was sentenced by his Honour Conlon DCJ in the District Court of New South Wales on 30 April 2014 as follows: 1. On a count of specially aggravated detain for advantage, to a fixed term of imprisonment of 4 years commencing on 13 August 2012 and expiring on 12 August 2016. This is an offence contrary to s 86(3) of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment. 2. On a count of inflict grievous bodily harm with intent, to imprisonment for 9 years commencing on 13 August 2013 and expiring on 12 August 2022 with a non-parole period of 6 years expiring on 12 August 2019. This is an offence contrary to s 33(1)(b) of the Crimes Act and carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. 1. The applicant was therefore sentenced to a total effective head sentence of 10 years imprisonment commencing on 13 August 2012 and expiring on 12 August 2022, with a non-parole period of 7 years expiring on 12 August 2019. 2. The applicant pleaded guilty to both counts. He received a discount for the utilitarian value of that plea in the order of 10 percent. The applicant contends that the sentences imposed were attended by error and are liable to be set aside as manifestly excessive. He seeks leave to appeal and has raised three grounds of appeal as follows: 1. The learned sentencing judge erred in not assessing the objective seriousness of each offence separately. 2. The learned sentencing judge erred in accumulating the sentences. 3. The sentence on the second count is manifestly excessive. Background 1. The circumstances that give rise to the offences were described in detail by his Honour in his sentencing remarks. The applicant's contentions necessarily draw heavily upon his Honour's consideration and treatment of these facts and the relationship between the two offences. Some detail is therefore important. Those events included the following significant matters: "In the months of June and July 2012 the offender Simon De Wet had a grievance against the victim, Timothy Mansfield. During those months Mr De Wet and his associates made attempts to find Mansfield and Mansfield then went into hiding actively avoiding Mr De Wet. During July 2012 De Wet was living at the house of Matthew and Nicole Dennison at an address in Bellambi. Police lawfully installed a covert listening device at that property. On 20 July 2012 the listening device recorded De Wet raging against an associate of his named Harley Anton about his inability to find the victim and his desire to hurt him. Amongst other things De Wet said, 'You want to know how I treat people who piss me off, I fucking hurt cunts mate'. He told Anton to find the victim. He said that if he could not hurt the victim he would hurt Anton. Anton indicated that he thought the victim would be at his mother's house, that is the victim's mother's house. Police were also lawfully intercepting De Wet's phone as well as the phones of some of his associates including the co-offender Joel Ropiha. On 24 July 2012 a conversation between De Wet and Ropiha was recorded in which De Wet asked Ropiha, 'When are you going to fucking come down here man, I want to fucking rip this kid up'. He said, 'There'll be nothing left for the Juggernaut when he comes down here' (Juggernaut is Joel Ropiha's nickname). Ropiha replied, 'Just give me, listen bro just give me one more night mate all right'. On 25 July 2012 Ropiha met up with De Wet at the address in Bellambi, also present were the co-offenders Brody Allen, William Dalton Moana and Kristy Roth and another uncharged male offender. There was a discussion about attacking Mansfield much of this being recorded on the listening device. Amongst other things De Wet said to Ropiha, 'Can you smash someone's door in before you go'. He told Ropiha, 'Get a machete and chop the furniture out the front'. Ropiha asked whether Timmy (the victim) would be there and De Wet said, 'There would be a good chance he'd be upstairs'. De Wet said, 'Just bash him and see you later. Just smash all the windows and trash the furniture'. He said to Brody Allen, 'Oh yeah um rubber gloves please Brod, latex will do, just double up, we are just throwing stuff we don't want fingerprints on'. Ropiha said he did not want to go because Mansfield might not be there. De Wet said, 'Well don't go, I'll send Dalton and Brody'. Dalton is the co-offender William Dalton Moana. Moana said, 'I don't want to go either'. Kristy Roth then volunteered to phone the victim whom she knew and find out where he was. Then she offered to go to his mother's house and see if he was there, she said, 'I'll just go up to the door his mum loves me'. De Wet agreed so Roth rode a bicycle down to the victim's mother's house which was also in Bellambi. There she went inside and spoke to the victim and his mother. She asked the victim what he was doing that night and he indicated that he was not going out. As she left the house Roth left the front door ajar in order to facilitate entry into the house by the others. Roth returned to De Wet and the others and told him that Mansfield was home and that he was staying in. She told them that she had left the door open for them. She also told them that there was money in the drawers of the house and an ounce of pot. De Wet said, 'Don't worry they are going to get things out of him, more than money and they are going to bring him'. Brody Allen then drove Ropiha, Moana and the other male offender to the victim's mother's house. Allen remained in the car. The others found the front door open and barged inside. They all wore jumpers with hoods drawn over their heads. They yelled out, 'Who's Tim'. The victim looked out from his room and said, 'I'm Tim'. Ropiha punched the victim in the face and said, 'Let's go'. He and the others then took the victim back to Brody Allen's car and Allen drove them to an area near the Bellambi swimming pool. De Wet was in phone contact with Brody Allen, he sent Allen a message which said, 'Make him eat something disgusting, maybe break his teeth, step on his face'. Ropiha, Moana and the other male offender walked Mansfield to the bottom of some stairs near the pools and told him to sit. A couple of minutes later Simon De Wet came walking down the stairs from behind Mansfield. De Wet said to Mansfield, 'Holy shit it's you hey, where have you been'. He stood in front of Mansfield and punched him in the face. Ropiha then kicked Mansfield in the face, stood on his face with his foot applying strong pressure. Mansfield felt immediate pain and felt blood running down his face. His eye swelled to the point where he could not see out of it. De Wet, Ropiha and the other male offender then repeatedly kicked and punched Mansfield who was on the ground while Moana stood by ready to assist. The beating went on for what felt to the victim 'like forever'. At one stage during the assault De Wet picked Mansfield up by the throat restricting his breathing and held him in the air. Then when Mansfield thought that he was going to be choked De Wet dropped him and he fell to the ground on to his hands and his knees. De Wet resumed kicking and punching Mansfield in the ribs and back. One of the others said, 'He is fucked, he's fucked'. They dragged him over to some grass and De Wet and Ropiha continued to beat him, this went on for some time. They rolled Mansfield onto his back and De Wet and Ropiha started pushing their heels into his chest causing considerable pain and making it hard to breathe. The victim was then rolled back onto his hands and his knees and he started crawling up the grass hill. The offenders kicked him some more times then De Wet jumped onto Mansfield's back and bit him on the top of his right ear. The bite avulsed a piece of skin and cartilage from the top of the victim's ear. De Wet spat the piece of ear on the ground and he and the co-offenders left. Mansfield had a friend who lived nearby so he ran to that friend's house. Mansfield's mother had called triple-0 as soon as the men had kidnapped him from their house earlier and when Mansfield turned up at his friend's house after the attack the friend got in contact with Mansfield's mother and so the police located him. He was taken to hospital where he was found to have a nasal bone fracture, bruising and significant swelling of his face and body, multiple abrasions and the bite injury to his ear. Although the piece of ear was later found it was not reattached. Photos of the injury to the ear and of the avulsed ear portion are contained within exhibit A. Police found the avulsed piece of ear later that night. It was swabbed and a DNA profile was obtained. That DNA profile matched the DNA profile of the offender De Wet. The listening device was still operating in Matthew Dennison's home and later in the night after the offences, De Wet was recorded gloating to Matthew Dennison. Amongst other things he said, 'I'm feeling pretty good for the night Matty', Matty asked, 'What's that', De Wet told him, 'Timmy didn't get set up, he wouldn't … so we went and kidnapped the cunt, we abducted him, we didn't abduct him we repossessed him because he's fucking our bitch.' The next morning the same listening device recorded De Wet speaking to a female talking about Timmy, he said, 'Yeah you don't see things like that every day, you know what I mean, when was the last time, Tyson Holyfield 2.' …" Subjective case 1. The applicant was born in December 1976 in South Africa and came to Australia in 1991. He was 37 years of age when sentenced. He has what was conceded to be an unfortunate criminal record, including offences of violence, dishonesty, drugs, resisting police, offensive language, trespass, property damage, driving offences and deal with the proceeds of crime. He was previously imprisoned for violence offences. 2. The applicant informed Joan Horsell, a senior community corrections officer, who prepared a pre-sentence report dated 13 February 2014, that he was under the influence of illicit drugs when the offences were committed. He agreed that his drug use was not an excuse for his actions and that he "knew what he was doing at the time." He said that he became angry when the victim did not repay a loan and appeared to be mocking him. He was adamant that he did not plan to kidnap the victim and he was at a loss to explain his actions when he bit off his ear. However, the agreed facts include a statement by the applicant that he hurt people who "pissed him off." Ms Horsell also observed that the applicant was recorded apparently gloating about having kidnapped the victim and to have emulated an infamous incident in professional boxing by biting off part of the victim's ear. He told Ms Horsell that he was, however, ashamed of his behaviour and accepted that he needed to take full responsibility for his actions. 3. Dr Scott Clark, a consultant psychiatrist, prepared a report for sentencing purposes. His opinion for presently relevant purposes was as follows: "In the 6 months prior to his arrest in July 2012, Mr De Wet had worsening mood, paranoid thinking, and auditory hallucinations. These occurred in the context of increasing and heavy use of stimulants including crystal methamphetamine and benzodiazepines. The symptoms, their duration, and history of drug use provided by Mr De Wet is consistent with a diagnosis of Substance Induced Psychotic Disorder and possibly Substance Induced Mood Disorder. Mr De Wet described experiencing psychotic symptoms including hallucinations and paranoid ideas around the time of the incident, and in the presence of psychosis judgement is often impaired and reality-testing compromised. Both psychosis and instability of mood can contribute to irritability and aggressiveness. Although I did not have access to the Justice Health treatment notes, there is evidence indicating Mr De Wet was clinically assessed and prescribed psychopharmacological treatment shortly after incarceration, and continues on medication to the present time. Mr De Wet's pattern of drug use is consistent with Amphetamine and Anxiolytic Dependence, and I would consider the possibility of alcohol misuse. These conditions were reportedly present at the time of the offence." Ground 1 1. The applicant's principal case is that his Honour's assessment of the objective seriousness of the offences failed adequately or properly to distinguish between the two offences in that he regarded the facts globally without considering each offence separately or individually. This ground relied upon what was said in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45] as follows: "[45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 1. The applicant contended that his Honour ought first to have assessed the objective seriousness of each offence in order to "fix an appropriate sentence". In circumstances where separate sentences are imposed for discrete offences, the principle of totality is offended where the antecedent step of assessing objective seriousness is not separately undertaken or identified. 2. The Crown contended that his Honour made no such error. He set out the agreed facts, dealt with objective seriousness and concluded that the facts could not support the suggestion that the applicant suddenly lost control when confronting the victim. He wanted the victim found and hurt. His Honour found that there was considerable planning involved including locating the victim and despatching co-offenders to capture him. His Honour found that the applicant was the ringleader. The attack upon the victim was described by his Honour as vicious. It involved more than one assailant and was sustained and brutal. The victim was repeatedly punched and kicked, was unable to defend himself and was hopelessly outnumbered. His Honour found that the attack involved gratuitous cruelty, including the continuation of the beating after the victim was obviously spent and biting off a portion of his ear. The applicant did this last act after jumping on the victim's back which his Honour described as both sickening and an act of savagery. The applicant was callously boasting after the event of what he had done, reflecting his "sheer callousness". 3. His Honour referred to Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 47 and continued as follows: "Of course one could envisage a similar offence involving the victim remaining captive for a longer period of time and possibly suffering worse injuries or indeed where weapons were used. However the fact remains in the present case that the victim had absolutely no chance of escape and he had done absolutely nothing to warrant the savage beating meted out to him by this offender…Objectively this is an example of extremely serious offending conduct." 1. I am unable to agree that his Honour fell into error in the way for which the applicant contends. The kidnapping offence was a preliminary and essential step toward the commission of the infliction of grievous bodily harm. It is unambiguously clear from his Honour's recitation of the facts and from his description of the seriousness of the offences that he is speaking about each separately and individually, even though naturally enough in sequence and as part of a continuous act of criminality. The applicant's contentions are in my view to a great extent unrealistic when taken in the scheme of a consideration of his Honour's sentencing remarks in particular or the way in which a sentencing judge ought to expose his or her reasoning about the seriousness of an offence or offences in general. There are cases in which sentencing tribunals fall foul of the requirements enunciated in Pearce. This is not one of them. Moreover, his Honour expressly contemplated the requirements of s 3A of the Crimes (Sentencing Procedure) Act 1999 and in my view gave practical effect to the purposes set out in that provision. 2. This ground of appeal should be dismissed Ground 2 1. The sentences were accumulated by one year. His Honour specifically took account of what was said by Hoeben CJ at CL in Franklin v R [2013] NSWCCA 122 in these terms: "[44] There is no rule that sentences for offences committed on the same day, or as part of the same criminal enterprise, should be served concurrently. A sentence should not be "concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct" (R v Jarrold (Howie J at [56]). The question to be asked is whether the criminality of the offence can be encompassed in the criminality of the other offence (Cahyadi v R). If not, the sentence should be at least partially cumulative, otherwise there is a risk that the sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the offences can be regarded as part of a single episode of criminality (Cahyadi v R at [27])." 1. The applicant submitted that his Honour should have commenced both sentences upon the same date. I disagree. Not only do I consider that his Honour was correct to accumulate the sentences in the way that he did, he would arguably have fallen into error to have done otherwise. 2. The two offences were committed on the same day. The first was the practical and operational foundation for the second. Even though the two offences could be described as all part of the one course of criminal activity, in my opinion the discrete planning and execution of the kidnapping offence, effected with the assistance of others, whom the applicant recruited and instructed, in a scheme to track down the victim and take him to a secure location to be beaten out of sight of rescuers, is demonstration enough of the independent nature of this offence. It was deserving of punishment all by itself, which the applicant's contention, if accepted, would have wholly avoided. 3. The touchstone of the criminality in the kidnapping offence is the unlawful deprivation of liberty. It was specially aggravated by reason of the fact that it was committed in company. Bodily harm was also caused to the victim. In contrast, there is no independent element of detention in the second offence. It consisted of the vicious, intentional and prolonged infliction of grievous bodily harm. It was a serious and wholly separate offence. 4. No aspect of the manner in which his Honour structured the sentences reveals error. This is not a case where the objective criminality of one offence comprises all those facts that go to make up the other offence. The sentence for neither offence in this case can be said to comprehend or reflect the criminality of the other: see, for example, R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52]. 5. This ground of appeal should be dismissed. Ground 3 1. The Crown acknowledged in this Court that his Honour's sentences were capable of being described as harsh, stern or heavy. That concession is uncontroversial. Correspondingly, the applicant's offences are capable of being described as vicious, sustained and brutal. His Honour so described them. The victim was punched and kicked during a beating that seemed to him to last "forever". At one stage the applicant picked up the victim by the throat, thereby restricting his breathing, and held him in the air. When the victim thought that he was going to choke, he was dropped so that he fell to his hands and knees, and the kicking resumed. This continued even notwithstanding that the victim was apparently completely at the applicant's mercy. In that condition his ear was bitten off. 2. The burden of the applicant's submissions with respect to this ground is that the sentences are in effect statistically anomalous having regard to figures published by the Judicial Commission of New South Wales. That submission was developed by emphasising that the grievous bodily harm, which is the subject of the second offence, was, or at least should be, limited to the loss of the victim's ear and perhaps also the victim's fractured nose. The other injuries sustained by the victim could not have been sufficient to qualify as grievous bodily harm. He contended in the circumstances that the ear and nose injuries were not at the most serious end of the spectrum, even taking into account the permanent disfigurement resulting from the ear injury. He contended that, after allowing for a discount of around 10 percent for the plea of guilty, a starting point of somewhere around 10 years must have been selected, and that such a sentence was disproportionate to the seriousness of the relevantly inflicted injuries. 3. In order to succeed under this ground the applicant must demonstrate that the sentence of 9 years with a non-parole period of 6 years was "unreasonable or plainly unjust": Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. It is not enough to show that the sentencing judge could have taken a different course or that the appellate judges would have done so: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. 4. The relevant question on appeal is whether the sentence is within a proper range. It is not a question of whether other sentences can be said to be more or less lenient by undertaking a detailed analysis of other cases, as there is often a wide range of differences in objective and subjective circumstances to which a sentencing judge may have attached particular weight: R v Morgan (1993) 70 A Crim R 368. 5. Appellate intervention on a ground that a sentence is "manifestly excessive" is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases. Intervention is warranted where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle even though it is not apparent from the sentencing judge's statement of reasons, or where the sentence imposed is so far outside the range available that there must have been error: Hili v The Queen [2010] HCA 45 at [59] citing Dinsdale v the Queen (2000) 175 ALR 315. In Hili at 303, the High Court said: "A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that the range is the correct range, nor that the upper or lower limits to the range are the correct upper and lower limits." 1. In this case it is not correct to isolate the physical injuries that constitute the grievous bodily harm as if to suggest that no other acts committed by the applicant have relevance if they were not shown to be directly causative of those injuries. The element of intent that is central to this offence can be seen to subsist in the sheer length and ferocity of the beating out of which the injuries have sprung. The evidence does not reveal that the victim's nose was fractured because of a kick or a punch, or indeed some other aspect of the prolonged physical attack, but that does not mean that these actions are not central to a proper assessment of the seriousness of the offence. 2. In my opinion, the sentence imposed was entirely warranted on the agreed facts. His Honour did not fail in some way to apply proper principle. The sentences are not to my mind unreasonable or plainly unjust. 3. I would also dismiss this ground of appeal. Conclusion and orders 1. I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. 1. R A HULME J: I agree with Harrison J. ************* 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. Decision last updated: 11 March 2015