Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sorensen v R [2016] NSWCCA 54 Hearing dates: 17 November 2015 Date of orders: 14 April 2016 Decision date: 14 April 2016 Before: Ward JA at [1]; Adams J at [147]; Bellew J at [148] Decision: 1. Grant an extension of time until 31 July 2015 to file the notice of appeal against conviction. 2. Appeal against conviction dismissed. 3. Grant leave to appeal against sentence. 4. Appeal against sentence allowed. 5. Sentences imposed by the primary judge are quashed. 6. In lieu thereof, Michael Christian Sorensen is sentenced to imprisonment for a term of 10 years commencing on 24 May 2013 and expiring on 23 May 2023, with a non-parole period of 7 years to expire on 23 May 2020. 7. The earliest date on which Mr Sorensen will be eligible for release on parole is 24 May 2020. Catchwords: CRIMINAL LAW – sentence appeal – assault and detain with intent to obtain advantage – whether sentencing judge erred in taking into account "vigilante nature" of offending as aggravating factor where punishment of victim is element of offence – whether sentence manifestly excessive CRIMINAL LAW – conviction appeal – whether verdict unreasonable or insupportable having regard to evidence Legislation Cited: Crimes Act 1900 (NSW), ss 59(2), 61M(1), 86(3), 95(1), 114(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Criminal Appeal Act 1912 (NSW), s 6(1) Cases Cited: Barlow v R [2008] NSWCCA 96; (2008) 184 A Crim R 187 Hanze v R [2006] NSWCCA 36 Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Morrison v R [2014] NSWCCA 199 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 R v Kelly [2005] NSWCCA 280; (2005) 155 A Crim R 499 R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 R v Swan [2006] NSWCCA 47 R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399 RLS v R [2012] NSWCCA 236 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Category: Principal judgment Parties: Michael Christian Sorensen (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel: DA Marr (Appellant) PG Ingram SC (Respondent) Solicitors: L D Lock (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/00108738 Publication restriction: Nil Decision under appeal Court or tribunal: District Court at Parramatta Jurisdiction: Criminal Date of Decision: 15 October 2015 Before: Craigie SC DCJ File Number(s): 2012/00108738 Judgment 1. WARD JA: On 15 October 2013, following a trial in the District Court at Parramatta, Michael Sorensen was found guilty by a jury of four offences relating to an assault on the complainant (Ms L). He was tried on a joint indictment with a co-accused, Timothy Hall. Mr Hall was also found guilty of the charges brought against him. 2. Count one on the indictment related to Mr Hall alone. Count two related to Mr Sorensen alone. The other three counts raised charges jointly against the two. The counts relevant to Mr Sorensen, on each of which he was convicted, may be summarised as follows: 1. being armed with a weapon (a baseball bat and a knife) with intent to commit an indictable offence, namely to assault Ms L, contrary to s 114(1)(a) of the Crimes Act 1900 (NSW) (count 2); 2. while in company with Mr Hall, indecent assault on Ms L contrary to s 61M(1) of the Crimes Act (count 3); 3. while in company with Mr Hall, assault occasioning actual bodily harm to Ms L, contrary to s 59(2) of the Crimes Act (count 4); and 4. while in company with Mr Hall, detaining Ms L with intent to obtain an advantage, namely "to obtain gratification by punishing and humiliating her", occasioning actual bodily harm, contrary to s 86(3) of the Crimes Act (count 5). 1. The maximum penalty for each of counts 2-4 was 7 years' imprisonment; for the offence the subject of count 5 it was 25 years' imprisonment. Mr Sorensen was sentenced to an aggregate sentence of 12 years' imprisonment commencing on 24 May 2013, with a non-parole period of 8 years expiring on 23 May 2021. The indicated sentences for Mr Sorensen were 3 years for being armed with intent to assault, 3 years for indecent assault in company (with an indicated non-parole period of 2 years and 3 months); 3 years and 3 months for assault occasioning actual bodily harm in company; and 10 years for the count of specially aggravated detain for advantage. It can be seen from the indicated sentences that there was a high degree of concurrency in the overall aggregate sentence. 2. Mr Hall, who was also sentenced in relation to an offence of supply amphetamine – the supply being to one or more of those present on the subject occasion – received the same aggregate sentence. His Honour noted that Mr Sorensen had a more serious record but the counter factor to that was that Mr Hall, who was younger, had had the initiating role and had engaged in concerted gratuitous and repeated brutality as well as supplying a prohibited drug. 3. By notice of appeal filed on 31 July 2015, Mr Sorensen raised one ground of appeal against conviction (an unreasonable verdict ground) and two grounds of appeal against sentence. During the course of argument in this Court, an application was made for leave to amend the grounds of appeal to include an additional ground of appeal against sentence. The Crown did not oppose the application and leave was given to amend the notice of appeal to include that additional ground. 4. The grounds of appeal, as amended, are as follows: (1) The jury verdict was unreasonable or cannot be supported, having regard to the evidence. (2) In sentencing the appellant the judge erred in finding the "quasi vigilante" nature of the offending an aggravating factor. (2A) In sentencing the appellant the learned judge erred in taking into account the vigilante nature of the offence as an aggravating factor because an element of the offence charged pursuant to s 86(3) of the Crimes Act was "to obtain gratification by punishing and humiliating" the complainant. (3) The sentence(s) imposed were manifestly excessive. Crown case at trial 1. By way of overview, the Crown's submissions summarised the case at trial broadly as follows. 2. On 5 April 2012, Ms L, with two other women (Raquel and Michelle), drove from Wollongong to the Pioneer Tavern in Penrith to meet Mr Hall (someone known to Raquel). (Neither Raquel or Michelle was called to give evidence at the trial.) When they left the Pioneer Tavern, they drove to a number of places including Mr Sorensen's house (where the assaults against Ms L occurred) and Mr Hall's house. (I interpose to note that Ms L gave evidence that at both those places she smoked some of the drug "ice" with Mr Hall.) 3. While the group was at Mr Hall's house, one or more of the women tried to steal some jewellery that belonged to Mr Hall's mother (Ms Turner). When they went back to Mr Sorensen's house, the other two women told Mr Hall that Ms L had stolen the jewellery. It was the Crown case that, as a result of that allegation, Ms L was hit, punched, forced to remove her clothes, touched around her breasts and her stomach, and told to lie on the floor and crawl around like a dog. Ms L gave evidence that a number of threats were made to her and that she feared for her life. She suffered a number of injuries. 4. At some point during the course of the assaults at Mr Sorensen's house the other two women left. In the morning, Ms L was forced to drive to Ms Turner's house where she was made to apologise for having stolen the jewellery. Mr Hall, Mr Sorensen and Ms L then went to a service station to put petrol in the car, at which point Ms L was able to make her escape. 5. The precise time line of the relevant events is not altogether clear. 6. Ms L gave evidence that she and the other two women left Wollongong at about 6pm on 4 April 2012; that it took around about 2 to 3 hours before they got to the Pioneer Tavern; and that they were still around the area of the Pioneer Tavern around 11-12 o'clock that night. After going to various places, including Mr Hall's house where the jewellery was taken, the group ended up at Mr Sorensen's house (for the second time that evening). Ms L's evidence (consistent with what, according to the doctor who later examined Ms L in hospital, she reported after her escape) was that she was first assaulted at about 2.30am/3am. The visit to Ms Turner's house was in the morning. There was some conflict in the evidence as to whether it was still dark when the three went to Ms Turner's house. Ms Turner placed the visit as being at about 6.30-7am in the morning, which is consistent with the evidence of a woman who lived in a granny flat at the property (Ms Marshall). A visit at around that time is also consistent with the time at which a bystander (Ms Maybury) assisted to jump start Ms L's car outside Ms Turner's house before the group went to the service station and with the time at which the group ended up at Werrington service station and Mr Sorensen and Mr Hall were arrested. 7. The events at the service station occurred at about 7.45am. Mr Sorensen was arrested at that time. Ms L was taken to Nepean Hospital. According to the hospital records she presented for examination at the hospital at about 8.24am on 5 April 2012. 8. Ultimately, in the course of sentencing, the trial judge found that the period of detention was for some hours from some indeterminate time after midnight and concluding sometime after daylight on the day the arrests were recorded by the police. Conviction appeal – ground 1 – unreasonable verdict 1. As noted above, the sole ground of appeal against conviction is that the jury's verdict was unreasonable and cannot be supported having regard to the evidence. 2. In SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 (at [14] and [21]), a majority of the High Court (French CJ, Gummow and Kiefel JJ, with Heydon and Crennan JJ dissenting), referring to the test set down in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 (at 493) and to what was said in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 (at [58]) as to the application of that test in the context of s 6(1) of the Criminal Appeal Act 1912 (NSW), confirmed that what is required where there is a challenge to conviction on an unreasonable verdict ground is that the appellate court make an independent assessment of the evidence both as to its sufficiency and quality in order to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which the appellant was charged. 3. In Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439 the plurality at 450 (Gaudron, McHugh and Gummow JJ) said, as to the test for determining whether a verdict is unsafe or unsatisfactory: In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that: "in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." The majority judges explained the application of the test as follows: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." Gaudron J agreed with the majority formulation of the test, as did Brennan J, although his Honour said that the question as to whether it was "open to the jury" to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was "upon the whole of the evidence ... bound to have a reasonable doubt" or whether "the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused". McHugh J said that the correct test for determining whether a verdict should be set aside on the ground that it was unreasonable was "whether a reasonable jury must have had a reasonable doubt about the accused's guilt". McHugh J did not adopt the "open to the jury" test because his Honour thought that such a test came "perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused" and would constitute "an unwarranted intrusion into the jury's right to determine the facts in a criminal trial". However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory. (references omitted) 1. In the present case, the principal witness for the Crown was, unsurprisingly, the complainant, Ms L, and it was accepted by the Crown in opening to the jury at the trial that unless the jury accepted Ms L's evidence beyond reasonable doubt the Crown case could not succeed. The trial judge also emphasised to the jury in summing up the caution that was required in that regard and there is no complaint as to the directions that were given by his Honour. 2. Evidence was also adduced from each of Ms Turner, Ms Marshall and Ms Maybury, as well as from various police officers and from Dr Samiha Anver, the intern who examined Ms L in the emergency department of the Nepean Hospital. 3. CCTV footage taken from the service station was shown to the jury. This Court was not asked to review that footage. It does not seem to be disputed that the footage showed, among other things, Mr Sorensen attempting to reverse Ms L's car rapidly away from the petrol bowsers after Ms L ran away from the car. In his remarks on sentence, the trial judge described the CCTV footage as being of a compelling nature, depicting both Ms L's state of "extreme distress" and "the desperately dangerous conduct of the two offenders". That conclusion is supported by a review of the police evidence, particularly that of Constable Connolly, who said that the car nearly ran him over and that he had leant in through the window and taken the keys out of the ignition. Constable Connolly described Ms L as crouching with her back to the petrol bowser crying hysterically. The Crown relied upon this evidence both as support for Ms L's allegations and as evidence of flight consistent with consciousness of guilt. (For Mr Sorensen it is noted that Mr Hall had drugs in the car and had been using ice and it was submitted that this was an alternative explanation for the flight that was inconsistent with guilt.) 4. A transcript of an electronically recorded police interview (ERISP) in which Mr Sorensen had participated was tendered in evidence (though only against him). In that interview he denied that he had intimidated or assaulted anyone. Neither of Mr Hall and Mr Sorensen, as was their right, gave evidence in their defence. 5. In essence, it is Mr Sorensen's contention on this appeal that, having regard to the demonstrated inaccuracies or falsities, admitted lies, and inconsistencies in the evidence given by Ms L, this Court would not be satisfied that it was open to a jury to conclude beyond reasonable doubt that he was guilty of the respective offences with which he was charged. 6. Addressing that submission requires a review of the whole of Ms L's evidence (which was, perhaps charitably, described by the trial judge at one stage, in the absence of the jury, as problematic), in light of the other evidence that was before the jury. Nevertheless, the particular aspects of Ms L's evidence to which Mr Sorensen points in this regard can be summarised as being: her evidence as to the reason that she drove from Wollongong to Penrith in the first place; her evidence as to the nature and severity of the assault and the injuries she sustained; and her evidence as to what transpired at Ms Turner's house shortly before Mr Hall and Mr Sorensen were arrested at the service station. General comments about Ms L's evidence 1. There are, of course, obvious limitations in reviewing transcripts of evidence without having the benefit of seeing the witnesses give their evidence in the witness box. Nevertheless, in SKA, the majority considered that "[t]he account given and the language used by witnesses, which are available by way of transcript, are usually sufficient for a review of evidence" ([31]). 2. From observations made by his Honour during the course of the trial, as recorded on the transcript, it appears that his Honour considered that at times Ms L had a tendency to talk fast (not always seeming to focus carefully on the questions being asked of her) and that occasionally she and Counsel were speaking over each other. This can be gleaned from various statements made by his Honour in the course of the trial as to the manner in which Ms L was giving her evidence: his Honour referring to the need for Ms L to slow down during the course of her examination in chief, suggesting that she just listen to the questions and think about them before answering and requesting that she not speak over Counsel. It was not always apparent to his Honour that Ms L understood the way in which questions put to her were phrased. 3. In the witness box, Ms L expanded in various respects on the content of her earlier statements (the three statements that were given by her to the police – the first on 5 April 2012; the second on 13 September 2012 and the third, shortly before the trial, in September 2013) – so, for example, her evidence that Mr Hall was upset at an earlier stage in the evening because she would not give him a "head job" and that when she was being kicked by Mr Hall she had thrown back at him the "ice" that she had been given (this last piece of evidence in the context of it being suggested to her that she was in possession of "ice" when at the service station – and that she was running from and attempting to hide from the police). Similarly, Mr Sorensen points out that it was not until her third statement that Ms L made any mention of the grabbing of her breast, referring to the fact that Dr Anver had recorded Ms L as having reported at the hospital that nothing of a sexual nature had occurred. 4. Ms L offered a range of explanations for changes in her statements or where she gave evidence of matters not in one or more of her statements, such as that she had not understood that she had to make a comprehensive statement at the time, or had only later recalled certain things, or that if she had given a full account of the evening her statement would have been much longer. Unfamiliarity with the legal process is one thing. However, the proffering of additional details for the first time in the course of her evidence at trial does raise an issue as to the reliability of that evidence. Ms L also explained inconsistencies as to matters such as who had done what to her by reference to her physical or emotional state at the relevant time. 5. On paper, some of Ms L's answers in cross-examination suggest that she became defensive and at times argumentative, such as when pressed on inconsistencies between her evidence and the statements she had given to police; for example, her response to the question how many times she was kicked, which was to the effect that if she knew she had to remember the number she would have counted ("one kick, two kick" etc.). On one occasion she refused to answer a question (relating to the status of her driver's licence at the time of the offence), which led the trial judge, in the absence of the jury, to caution her for contempt. On another occasion, she accused Counsel of being a liar in what appears to have been an emotional outburst at the suggestion put to her by him that she was a liar. She seems to have been offended at what she perceived to be the suggestion by Counsel for Mr Hall that she was a "packet slut" (a term she understood to describe a woman "that's hanging out for crack [and] will sleep with someone just for a packet"; a "packet" being half a "point" of the drug) and to have been at pains both to justify her drug usage (as her one "luxury") and to assert that "I've paid every cent, I've never had to rob anybody or anything like that for it [ice]". 6. Nevertheless, the manner in which Ms L gave evidence was something that the jury was best placed to assess, being able to observe exchanges of the above kind as they occurred and to form an opinion as to whether Ms L was being obstructive or evasive when she was giving her evidence and whether she appeared stressed or drug-affected (and how reliable her evidence was as a consequence). 7. On the second day of Ms L giving evidence, the manner in which she did so led the trial judge to query (in the absence of the jury) whether she might have been affected by some illicit substance (a question put to Ms L and denied by her). An adjournment was granted later that day after Ms L had said that she felt unwell and had expressed an inability to concentrate, saying there were moments when she just "shut down". The day before, in the course of the cross-examination by Counsel for Mr Sorensen, after being pressed on the inconsistencies as to her statements, Ms L had also requested a break, saying that she was getting a headache. Again, the jury was best placed to assess matters of this kind and it had the benefit of a summing up that drew to the jury's attention the various inconsistencies and matters on which the defence relied as establishing the unreliability of her evidence. 8. I will address the particular aspects of Ms L's evidence that Mr Sorensen, in written submissions, pointed to as demonstrating that the verdicts were unreasonable and not supported by the evidence under three headings: first, the evidence as to the nature and severity of Ms L's injuries; second, the inconsistencies between Ms L's evidence in the witness box and her earlier statements; and, third, the areas in which there is an apparent conflict between Ms L's evidence and that of other witnesses. Nature and severity of Ms L's injuries 1. Dr Anver gave evidence mainly by reference to a statement she had prepared from her contemporaneous hospital notes. Relevantly, however, she did have an independent recollection at the time she gave evidence of particular matters (such as the appearance of the bruising on Ms L's face, the shoe prints on her back, and some of the history she had recounted to her). 2. Her evidence was that Ms L presented in the emergency department at the Nepean Hospital at approximately 8.24am on 5 April 2012. Dr Anver was then an intern in her second placement at the hospital and she was the medical officer who examined Ms L. 3. Dr Anver's evidence was that Ms L had reported to her that: she had been involved in an assault at around 3am that morning; she had been hit repeatedly in the face, back of the head, ribs, stomach, back and legs; and the beating continued for a number of hours but she remained conscious at all times. She recorded that Ms L had complained of a nose bleed that had ceased by the time she presented to the hospital and that at the hospital she was complaining of a headache, face pain, pain in her left hand, soreness around her ribs and a burning sensation across her back that she attributed to an open flame being held close to her back. 4. Dr Anver gave evidence that there was bruising around both Ms L's eyes and her eyelids appeared swollen and purple coloured bilaterally. Dr Anver said that she actually remembered the appearance of that bruising and that it was quite visible. It extended over both her eyes as well as over the nasal bridge. She said the eyes were swollen as well. She could see the swelling clearly and said that it was apparent from a distance. She said that there appeared to be more swelling around the left eye in comparison with the right and that the left eye appeared "injected red", which she explained as being that the whole of the eye appeared a bit red consistent with trauma to the face causing minor bleeding in the eye. The redness was not visible from the same distance as the bruising to Ms L's face. 5. There was a small bruise on the back of Ms L's left hand, which was tender to touch, and a 6.7mm bruise to the back of her head on the left side, which was also tender to touch, with no break to the overlying skin. Her left cheek bone was tender to palpation. X-rays were taken which revealed that there was no evidence of acute bony injury in the facial bones or left hand. 6. Significantly, Dr Anver gave evidence that there were three shoe prints on Ms L's upper back, which was "mildly erythematous" (i.e. mildly pink in appearance). Dr Anver said that she could see the outline of three shoe prints. She said that, from recollection, it was the top half of the shoe in three different positions on half her back. She clarified this as saying that it was not just an outline; it was a pressure mark that had a shoe pattern to it. There were no burns visible on Ms L's back. 7. In cross-examination, Dr Anver agreed that Ms L had olive coloured skin and that the bruising around the eyes was just around the eyelids and just below the eye but did not accept that the colour of the bruising on Ms L's face and the type of swelling she saw could be explained by someone not having slept for a day or two and using the drug ice (a suggestion put to her by defence counsel). She accepted that the bruising and swelling to the face was consistent with Ms L having been struck one to three times in the face but said she could not say how many times Ms L had been struck. She agreed that the bruising to the face was consistent with her having been struck by a male and/or a female and was unable to say which. 8. As to the redness on the back, Dr Anver could not say how long it had been there but said that in the context of its appearance her assumption was that it would have been a short period of time. While she accepted that she was aware (at the time she examined her back) of the history recounted to her by Ms L, her explanation for the assumption that the redness of her back had only been there a short time seems to be found in her statement that it did not look like an infectious cause of redness and thus she assumed that it would not have been there for a very long period of time. She considered it unlikely to have occurred the day before and said that it looked more acute than having happened a couple of days ago. (For completeness, I note that she also accepted that a possible cause of the redness was rubbing of the back, but there is nothing to suggest that this was a likely alternative explanation for the redness and would not in any event explain the presence of the shoe prints or marks on her back.) Dr Anver confirmed that she saw no evidence of burning on Ms L's back, neck or body. 9. Dr Anver agreed that there was no record in her notes of Ms L having been hit with a hammer or baseball bat or of being threatened with a baseball bat or knife; and that there were no marks or imprints on her wrists consistent with having been handcuffed. A possible explanation for the former is Dr Anver's evidence that in the emergency department, the focus was on medical considerations, not on the history of what had happened. Her notes recorded that Ms L had denied any history of sexual assault but Dr Anver did recall her saying that she had been stripped naked and that she was crawling on the ground. 10. Dr Anver gave evidence as to the amnesic testing carried out at the hospital on Ms L to determine whether she had suffered a frank head injury or loss of memory or understanding. She agreed that within 25 minutes of being admitted to hospital Ms L's amnesic score was normal and that Ms L was discharged at about 3.12pm after amnesic testing had been carried out three times since her admission with normal results (evidence that belies Ms L's own evidence as to her state when she left the hospital and went to the police station to give her first statement). 11. Although Dr Anver had initially recorded in her notes that Ms L had lost consciousness, she said she had changed that to "lost vision" because she had clarified with Ms L that what she was referring to as a blackout was blackness of vision as opposed to loss of consciousness. 12. Dr Anver said there was nothing about Ms L's presentation that raised the possibility of the diagnosis of her being in a psychotic state. 13. Mr Sorensen concedes that the medical evidence was that Ms L suffered "some injuries" consistent with "some" of what she said had happened to her but submits (as his Honour accepted) that the minor nature of her injuries was generally inconsistent with what she said had happened. It is submitted for Mr Sorensen that most of the injuries were consistent with the fight that Ms L admitted having had that evening with Michelle. 14. Ms L's evidence of that fight was that it was a "fist fight" that occurred after Mr Hall had confronted her as to what she had taken from his house and had kicked her in the face and then in the belly. She said that Michelle was "smirking" at her. She could not estimate how many punches Michelle had thrown. She thought that some of the punches Michelle had thrown did connect with her but said "I couldn't say cause there was so much going on. I was sort of you know, angry, in pain, everything". She said that the fight with Michelle "wasn't that long" and that Mr Sorensen had grabbed her by the hair and threatened to pull her off the ground by her hair if she did not stop hitting Michelle. In cross-examination, Ms L denied that Michelle had punched her nose or in the face and said that she had "probably just [punched] around my arms, trying to block me as well and trying to punch me". She denied that Michelle had caused her nose to bleed. She said that she got a bleeding nose after Mr Hall "was kicking me constantly, while I was sitting naked on the floor". 15. It was not put to Ms L that Michelle (or Raquel for that matter) had stomped on or kicked her in the back. Nor was there any suggestion that the bruise to the back of Ms L's head was caused by any punches thrown by Michelle. 16. The Crown argues that Ms L's evidence as to her fight with Michelle did not provide an anodyne explanation for the presence of most of the main injuries referred to by Dr Anver. I agree. 17. It is impossible not to conclude that Ms L greatly exaggerated both the extent of the assault and the severity of her injuries in the aftermath of the assault. Had she been forcefully kicked and punched constantly for some hours (as she said), there would surely have been more significant bruising and swelling on her face and other areas of the body and likely some lacerations, if not worse injuries. Had her hair (or back) actually been burnt one might have expected some evidence of it (though I note that her evidence can in places be read as consistent with heat from a flame being applied near, but not actually to or on, her back, which would not necessarily leave a burn mark on the skin). Had she been as dizzy and unbalanced as she says she was when she left the hospital, it is difficult to accept that she would have been discharged when she was; but in any event, her evidence in this regard is inconsistent with her performance on the amnesic tests over the period from her admission through to her discharge from hospital. Had she been as incapacitated after the event as she said she was (i.e., incapable of leaving the house and having to hold onto the walls just to leave her bedroom) it is difficult to see how she could have been in a state to pass her driving test, as she did, a mere five days after she was discharged from the hospital. 18. However, exaggeration as to those matters does not gainsay that there was independent medical evidence that confirmed that Ms L had sustained injuries consistent with a violent assault. In particular, Dr Anver's evidence as to the outline of shoe prints on three different places on her back provides powerful support for Ms L's allegation that Mr Hall had stomped on her back. The redness of her back is consistent with that having happened. While Dr Anver accepted that the pressure marks in the shape of the top part of a shoe might have been made by a man or a woman and was unable to determine which, there was no suggestion that the fist fight with Michelle extended to Michelle stomping on Ms L's back. 19. It was open to the jury to accept Ms L's evidence as to the stomping on her back and hence to conclude beyond reasonable doubt that it was one of the men who left the shoe imprints on Ms L's back. Although there was some confusion in Ms L's evidence as to who was the "he" that she said had hit her with the hammer and was on her back, ultimately she was adamant that it was Mr Sorensen who had hit her with the hammer and applied heat to her back and Mr Hall who had stomped on her back. 20. I interpose also to note that Ms L's evidence as to Mr Sorensen standing with the baseball bat and knife and threatening to crack her over the head with the baseball bat is consistent with the presence of a baseball bat near the stairs in his house where a sample of her blood was found. Inconsistencies between Ms L's evidence and her earlier statements 1. In written submissions for Mr Sorensen it is submitted that Ms L admitted lying on oath about aspects of her evidence and that she admitted there were a number of "errors" in what was recorded in her initial police statement. The Crown takes issue with the suggestion that Ms L admitted that she had lied on her oath (as opposed to having admitted that she had lied in some parts of her police statements, as she did for example, in relation to that part of her second police statement in which she said until they got back in the car she thought the other women had put the rings back in the cupboard). Nevertheless, the Crown accepts that lies to the police may properly be taken into account in assessing Ms L's credibility. (The Crown also notes that there were various occasions in cross-examination where it was put to Ms L that she was lying and she denied this but nothing turns on these denials.) 2. As to the inconsistencies between Ms L's statements to the police and her evidence at the trial, the first was as to the nature of Ms L's acquaintance with the two women with whom she had driven to Penrith. In cross-examination, Ms L admitted that her statement to the police on 5 April 2012 that "I drove up to Sydney and met up with two friends, Raquel and Michelle. I don't know their last names" was untrue. Ms L accepted that she had driven up to Penrith with the two women; that she did know Raquel's last name; and that Raquel was her drug supplier. She had earlier (in her second statement) corrected the reference to Raquel being a friend. She said that Raquel was not a "friend" but someone she knew through others and said hello and goodbye to but little more. (I consider the import of this admitted lie in the context of the third matter to which Mr Sorensen points in this regard.) 3. Next, it is submitted that Ms L claimed falsely that the police took video footage of her at the hospital. (I note that this was one instance where, in the course of what seems to have been a lengthy justification for making the incorrect statement referred to at [52] above, Ms L volunteered something apparently not contained in any of her earlier statements.) Ultimately, however, little can be taken from the fact that, contrary to her evidence, there was no video footage taken of Ms L in the hospital, since there was evidence that a mobile phone or recording device had been used to take an audio recording of the interview in hospital and it is entirely possible that Ms L simply misunderstood the nature of the recording there being taken. 4. Next, Mr Sorensen points to the evidence given by Ms L that she drove to Sydney because she had just got her licence and wanted to take her car out on a long drive. (In the course of her first answer to that effect Ms L also added "and to help Raquel pick up Timmy [Mr Hall] and bring him down to Wollongong because she wanted to bring him down" and she was adamant that the main reason for the trip was to help Raquel.) 5. There are two points to note in relation to this aspect of the evidence. First, it was established through the production of the relevant records that Ms L did not obtain her provisional driver's licence until after the incident. Hence the claim that as at 4 April 2015 she had just got her licence was demonstrably incorrect. Ms L was cross-examined by Counsel for Mr Hall at some length both as to this issue and as to the fact that she had later undertaken a driving test, which she passed, on 10 April 2012, at a time when she claimed she was too traumatised to leave the house, was losing her balance and was not able to focus. Ms L's attempts to explain why it was that she had said she had just got her licence at a time when she had not yet passed her driver's licence test strain credulity to say the least (including that she was not referring in her evidence to her provisional driver's licence, that she had her learner's permit, and that she did not know that she had not passed an earlier driving test until she found out about this later in the mail). It also led to Ms L's seemingly defiant evidence as to her being comfortable driving to pick up Raquel (before the trip to Sydney) without a driver's licence. 6. The second point to note is that the statement that she had just got her driver's licence was made in the context of giving a reason for her drive to Sydney. Ms L was cross-examined again at some length as to the purpose of her drive to Sydney. Ms L at first denied that she drove the women to Penrith in the hope that she could score some drugs but later said that she was "hoping" that Raquel would give her a little bit of ice for the drive (this hope having been referred to in her second police statement of 13 September 2012). Cross-examination in this regard by Counsel for Mr Sorensen was directed to whether the only or principal reason Ms L drove to Sydney that night was to get some drugs – a proposition denied by Ms L, who maintained that the principal or main reason that she drove to Sydney that night was to take Raquel there to pick up Mr Hall. 7. Ms L's clearly incorrect claim to have driven to Sydney at a time when she had just got her driver's licence, and her admitted lies to the police as to the nature of her acquaintance with Raquel, are nevertheless explicable by what Ms L ultimately conceded in cross-examination, namely that she wanted to disassociate herself from any criminal activity. (Similarly, Ms L accepted in cross-examination that her statement to police that until she got into the car to leave Mr Hall's house she believed that the rings had been returned by the other women – inconsistent with her evidence that the women had stuffed the rings into her bra and that she left the house with them in her bra – was an untruth that she accepted in cross-examination was an attempt to disassociate herself from criminal activity.) 8. In any event, those inconsistencies and untruths to the police do not require a conclusion that Ms L was not be believed as to what she said had occurred later during the course of the early hours of 5 April 2012. It was open to the jury to believe Ms L on the essential aspects of her account of those events, particularly having regard to the medical evidence. 9. The next aspect of Ms L's evidence where there was some inconsistency with her earlier statements was as to who had done what to her at Mr Sorensen's house. It was put to her (though she disagreed) that in her first statement to police on 5 April 2012 she had said that "Tim jumped on my back, he hit my fingers with a hammer". Confusion seems to have then arisen because of the use of the word "he" in her statement, rather than naming the man in question. In the witness box she said that what she had meant was that Mr Sorensen had hit her hand with a hammer. Similarly, she said that the further statement in that first police statement that "he burnt my back with a butane lighter" was not a reference to Mr Hall. 10. In later cross-examination by Counsel for Mr Hall, Ms L at one stage agreed that the above references to "he" in her earlier statement were to Mr Hall but then accused Counsel of having misheard her and was adamant that it was Mr Sorensen who was burning her back and her hair and that Mr Hall was on her back stomping on her. A review of the transcript in this regard suggests to me that Ms L was confused when she was trying to explain what was meant in her initial police statement by "he" but overall she had identified Mr Sorensen as the person who had the hammer and was burning her back and Mr Hall as the person who had stood on her back. 11. There was also cross-examination by Counsel for Mr Sorensen as to the fact that in her earlier statements of 5 April 2012 and 13 September 2012, Ms L had not stated that Mr Sorensen had stood in front of the front door of the house holding a baseball bat and a knife. Ms L was asked to accept that the first time she told anyone that Mr Sorensen was holding a knife and a baseball bat was when she made her third statement on 24 September 2013. It is fair to say that there was scope for some confusion on the part of Ms L as to what it was that was being suggested to her had not appeared until her third statement. It was certainly something that the trial judge thought should be clarified (as it subsequently was). 12. It was then accepted by Counsel for Mr Sorensen that Ms L had said in her first statement that Mr Sorensen was holding a baseball bat; and that what was not in the earlier statements was that he was also holding a knife. Whatever the explanation for this, it does not preclude the jury accepting Ms L's evidence that Mr Sorensen had threatened her and concluding beyond reasonable doubt that he was part of the joint criminal activity with Mr Hall. While Counsel for Mr Sorensen notes that Ms L's evidence was that Mr Sorensen never touched her at any time with a baseball bat, Ms L's DNA was detected on the baseball bat (which was found near the blood stain below the stairs in Mr Sorensen's house) and there was evidence from a forensic police officer as to the possibility of secondary transference of DNA from a person to an object. 13. There was also an issue raised in cross-examination of Ms L as to her evidence that she had been tied with cable ties and then handcuffed. No cable ties were found at Mr Sorensen's house. Two sets of handcuffs were found in Mr Sorensen's bedroom. DNA extracted from swabs taken on the handcuffs originated from at least three individuals. The major component identified from the inside and outside had the same DNA profile as Mr Sorensen. Ms L's DNA was not detected on the handcuffs. 14. As to the absence of cable ties, that of itself is not sufficient to give rise to a reasonable doubt as to Mr Sorensen's guilt. Ms L could have been mistaken as to this; she might (as she clearly did on other matters relating to the injuries she had sustained) have been exaggerating. As to the handcuffs, the fact that they were not found in the car is not inconsistent with Ms L's evidence that they were removed in the car, since her evidence was also that the group had returned to the house when the car would not start at that point and therefore it is possible that the handcuffs were returned to the house at that stage. Ms L's evidence was that she did not know what had happened to them. As to the absence of DNA linked to Ms L's profile on the handcuffs, the forensic evidence was that there was other DNA on the handcuffs but it could not be identified. Dr Anver's evidence was that there were no marks on Ms L's wrists consistent with the use of handcuffs but it is unclear whether there would necessarily have been such marks if the handcuffs had been used only for a short period of time. 15. When the other medical evidence is taken into account, the possibilities raised by the evidence in relation to the lack of cable ties and the handcuffs are not such as to give rise to reasonable doubt as to the convictions. 16. Finally, there was some inconsistency in Ms L's accounts of how much of the drug "ice" she had consumed on the night and as to her habitual level of drug use based on Dr Anver's note of what she had told her at the hospital. 17. Ms L said she did not have any ice with her that night and that she had "a smoke of ice" with Mr Hall when she first arrived at Mr Sorensen's house. In her first police statement she said that she only had about "two puffs" there. She said that she had a "little smoke" with Mr Hall when they returned to Mr Hall's house after they had put some petrol in the car. She said that she had smoked "a couple of puffs" there. She accepted that nowhere in the first statement did she record that she had smoked any more ice after the two puffs at Mr Sorensen's house. 18. Dr Anver confirmed that the hospital notes recorded Ms L as having said that she usually smoked around five points of ice over two to three days. Ms L said in the witness box that that must have been an error and that she probably smoked that amount of ice over a fortnight. Dr Anver's evidence, as already noted, was that there was nothing in her presentation at the hospital to give rise to a diagnosis that she was psychotic. 19. Ms L's evidence was that she smoked about one and a half "points" over two or three days and that she was a "once a payday" user. She said she had been using ice for 15 years. She agreed that she had occasionally experienced her thinking becoming confused but said that was not all the time and that she did not have delusions or hallucinations. She admitted that she was a regular, not casual, user. There was some confusion in her answers as to whether she would describe herself as a heavy user of the drug. 20. The trial judge in summing up drew Ms L's admitted consumption of ice to the jury's attention as a significant issue to be considered going to the reliability of her evidence. His Honour suggested that the jury might want to consider whether they were comfortable to accept that she had only had a few puffs of the drug during the course of the evening and, further, whether they might want to consider whether or not Ms L's consumption of drugs had the potential to affect her conduct in some of the ways that had been suggested by the defence as being bizarre and inconsistent. No complaint was made as to the summing up in this regard. 21. In the circumstances, it was open to the jury to accept Ms L's evidence as to the relatively small quantity of ice she said she had consumed on the night (compared with the amount she said that she regularly consumed) and, notwithstanding her admitted drug use, to have concluded that her account of the events was reliable in light of the supporting medical evidence and their observations (from the CCTV footage) of the state she was in when she was at the service station. Conflict between Ms L's evidence and that of other witnesses 1. Mr Sorensen points in this regard to the evidence of Ms Turner, Ms Maybury and Ms Marshall. 2. Ms Turner gave evidence as to the events that occurred when Ms L came to her house with Mr Hall and Mr Sorensen. She says that Ms L apologised for stealing the jewellery and said she was on drugs and did not know why she had done it. Ms Turner gave evidence that she had "stern words" with Mr Hall and that she told Ms L never to come back to any of her houses. She says that she then made coffee and that Ms L had a couple of sips of the coffee. At some point the two men went to the backyard outside the house to look at Ms Turner's dogs (she being a dog breeder). Ms Turner said that Ms L said that she wanted to have a cigarette and that she escorted Ms L out of the front of the house and left her alone near her car for about 10 minutes before Mr Sorensen and Mr Hall joined her. (The relevance of this evidence goes to Ms L's claim that she was detained.) Ms Turner said that they had trouble starting the car and that she saw all three pushing the car. 3. Ms L denied that Ms Turner had made everyone a cup of coffee; denied that Mr Hall had asked his mother if he could take Mr Sorensen out to look at the dogs; and denied that she was left alone in the kitchen with Ms Turner having a cup of coffee. She also denied going outside to have a cigarette and being alone near her car outside Ms Turner's house for about 10 to 15 minutes. Her evidence was that Mr Sorensen was with her at all times when she was out the front of Ms Turner's house. 4. Ms Marshall's evidence supported that of Ms Turner in relation to the question whether the men had gone outside to look at the dogs. Ms Marshall said that Mr Hall had come to her with another man to look at the dogs and that she had accompanied them. On that version of events, Ms L must have been alone for some time with Ms Turner, whether or not she went outside the house to have a cigarette. On that point, Ms Marshall's evidence also provided some corroboration of Ms Turner's account. Ms Marshall did not see Ms L alone outside the house but she did give evidence that when she and the men came back inside after looking at the dogs Ms Turner told Mr Hall that Ms L was outside. There is therefore room for doubt as to whether Ms L's detention extended beyond the time at which, on both Ms Turner's and Ms Marshall's evidence, the men went outside to look at the dogs, but that does not mean that the jury could not have accepted as beyond reasonable doubt Ms L's evidence that she was detained up until that point. Again that could have been no more than an instance of exaggeration on Ms L's part. Moreover, in assessing whether there was a reasonable opportunity to escape from Ms Turner's house one must take into account Ms Turner's evidence that there were guard dogs in the front yard (which is why she said she had escorted Ms L from the house when Ms L wanted a cigarette). 5. Ms Turner gave evidence that Ms L had apologised for taking the jewellery. Ms L's evidence was that she did not recall apologising for taking the jewellery. What she did recall saying was put as follows: A. I did apologise to her at one stage when she was screaming at him [Mr Hall] saying, "That teaches you for dealing – having these drugs or whatever and with these girls", and I said to her, "I'm sorry he didn't realise, you know, he trusted us girls going into his house, he didn't know that we were going to steal anything at her house and I apologise for that", that's all I said but I don't remember – recall apologising or what you said. 1. Asked to say again what she had said, Ms L said: A. That I apologised – cause she was screaming at Tim, I told you that – I apologised for us three girls, he didn't realise that something was going to happen, he trusted me and the three girls to his house and that's what happened to the house, you know, like someone stole rings from the house. That's all I apologised for. 1. Mr Sorensen maintains that even if the apology was in those terms it would be bizarre for someone who had allegedly been bashed, humiliated and traumatised then to defend the offender. The Crown submits, to the contrary, that making an apology in those circumstances could be seen as consistent with Ms L having been intimidated and in fear of further beating. Moreover, just as it is suggested bizarre that Ms L would seek to defend her attacker, it is also somewhat bizarre that Ms Turner would sit down and have a cup of coffee with someone who she says she had just told never to come back to any of her houses again. 2. Obviously there are different interpretations one might make of the fact that Ms L apologised (on whatever terms the actual apology was made) to Ms Turner in relation to the taking of her jewellery. The apology alone does not give rise to reasonable doubt as to Mr Sorensen's conviction. 3. Finally, Ms Turner (who was called by the Crown and who it sought unsuccessfully to cross-examine as an unfavourable witness) gave evidence in cross-examination by the respective defence Counsel that Ms L did not appear upset or distressed and that Ms L did not appear to have any injuries. She said that Ms L looked "drug affected", which she explained in re-examination as being that: Ms L's eyes were glassy, she did not want to look Ms Turner in the face, she was "very stoned" and she looked like a person who was stoned. Ms Turner then went on to say that Ms L did not seem to be upset or nervous or fidgety and that when she spoke to her Ms L answered her "sort of with remorse… like, I'm in trouble, you know, I'm sorry I did that". 4. As the Crown points out, Ms Turner is the mother of Mr Hall. She was not, therefore, an independent witness in the sense of being a witness with no interest in the outcome of the trial. Her evidence that Ms L did not appear upset or distressed was, as the Crown submits, in stark contrast to the observations made only a short time later by police at the service station. Constable Connolly's evidence was that he heard a woman screaming "Help me, somebody help me", then saw Ms L running frantically and then crouched with her back to a petrol bowser. He observed her crying hysterically and sobbing as she attempted to speak. 5. Ms Turner's evidence that she did not observe any physical injuries (though I note she was seemingly able to observe that Ms L had "glassy eyes") is simply not credible having regard to the evidence of Dr Anver who examined Ms L in the emergency department of the hospital and who recalled that the bruising and swelling was quite visible. One might assume that if Ms Turner was observant enough to see that Ms L had "glassy eyes" she would also have noticed that one was red but this was not put to her. Given the discrepancy between Ms Turner's observations and those of Dr Anver and even allowing the bruising and swelling to have worsened between the time Ms L was at Ms Turner's house and when she was examined at the hospital, it was open to the jury to prefer the medical evidence as being more reliable than that of Ms Turner. It was also open to the jury to give limited weight to the evidence of Ms Turner as to the events of that morning at least where that evidence was not corroborated by other evidence. 6. Even if Ms L was not under the immediate constraint imposed by the presence of the men for a period while they were outside, that did not preclude the jury concluding beyond reasonable doubt that she had been assaulted and detained for the purpose of punishment and humiliation while at Mr Sorensen's house. 7. As to Ms Maybury, who (unlike Ms Turner and Ms Marshall) was independent of all of the people involved in the incident, she gave evidence that she had assisted to jump start the car with jumper leads provided by the men. She said that, when arriving at work that morning, she had noticed three people (two men and a woman) having difficulty with a car. She said that they were pushing the car trying to start it but, when pressed, could not recall whether each of them was pushing the car. She said that a man came over to ask for assistance and that when she was working with the jumper leads the woman (Ms L) was outside at the back of the car. Ms Maybury did not have any conversation with Ms L, did not see Ms L do anything while she was working with the jumper leads, and did not notice anything particular about Ms L. 8. Her evidence is consistent with the evidence of Ms Marshall that she saw the car being pushed outside Ms Turner's residence by a female and the two men. 9. Ms L's evidence was that she had helped to push the car by turning the steering wheel but this was prior to Ms Maybury being asked to assist. Ms L's evidence was that she was inside the car when Ms Maybury helped to start the car with the use of her battery and jumper leads. 10. The Crown points to the fact that Ms Maybury said she had not paid any particular attention to the three when she arrived at work and submits that in those circumstances the apparent conflict in the evidence as to whether Ms L was inside or outside the car might be the product of an incomplete recollection by Ms Maybury. Alternatively, the Crown submits that if Ms L had been outside the car she may not have raised any alarm for fear of what reprisals might be taken against her. The Crown submits that the tensions created by this aspect of the Crown case (and by the apparent conflict to which the evidence of Ms Marshall gave rise), whether resolved or not, were not sufficient to preclude a verdict of guilty against Mr Sorensen on each of the charges. I agree. Conclusion on ground 1 1. The Crown pointed to various aspects of the evidence as providing support for the jury verdicts on each count against Mr Sorensen; in particular, the evidence of each of Dr Anver and Constable Connolly but also the forensic evidence (namely that DNA extracted from a swab of blood taken from stairs on the carpet in the hallway of Mr Sorensen's house matched Ms L's DNA profile as did DNA extracted from swabs of blood taken from a silver baseball bat that was located near the stains in the hallway cupboard and the fact that various implements consistent with Ms L's complaints were found at the house, in her car, and on the offenders at the time of their arrest. 2. I have already referred to much of that evidence. As to the implements found at the time of the arrest, Mr Sorensen surrendered a knife (which Constable Connolly said was pushed down the front of his pants); when Mr Hall was searched a silver flip knife was found on him; and a knife was found in the footwell of the rear seat of Ms L's car behind the driver (as well as a set of jumper leads, a hammer and two screwdrivers). The Crown accepts that the mere fact that those implements were in the car is not of itself significant but submits that it provides some support for Ms L's contention that she was threatened with such implements. 3. The Crown also places reliance on the evidence of Constable Connolly to the effect that, when police first approached the service station in response to Ms L's cries for help, Mr Sorensen attempted to flee by driving away from the area in Ms L's car. The jury, of course, had the benefit of seeing the CCTV recording of the events at the service station (which the trial judge on sentencing referred to as being of a compelling nature). 4. For Mr Sorensen, it is suggested that there was an alternative explanation for the attempted flight, in that Mr Hall was in possession of a quantity of drugs. It is not disputed that a quantity of drugs was found in the car. They presumably were not Ms L's drugs, since the defence case was that she had gone to Sydney in order to "score" some drugs. There was, however, no evidence as to whether Mr Sorensen was aware that Mr Hall was in possession of drugs or that there were drugs in the car at the time. The trial judge in summing up, having earlier sought submissions from Counsel as to the form of direction that should be made in this regard, referred only to the CCTV footage as a further matter that the Crown said was consistent with its case. There was no complaint about his Honour's summing up in that regard. 5. Having reviewed the whole of the transcript, there can be no doubt that Ms L's evidence needed to be approached with a great deal of caution and that she was hardly a reliable witness in a number of respects. The trial judge gave the jury careful directions in that regard and went so far as to note that there was a real issue in the trial as to whether Ms L had lied on a considerable number of occasions. Again, there was no complaint as to those directions. 6. Some of what Ms L said was undeniably incorrect, such as her evidence that she had just got her licence a few days before the events in question. She admitted having lied to the police about various matters (such as her relationship with Raquel and her belief that the other women had put the rings back before leaving Mr Hall's house). There was some confusion in her evidence as to who had done what to her during her ordeal (namely whether it was Mr Hall or Mr Sorensen who she said had hit her fingers with a hammer or had burnt or threatened to burn her back or hair), though this seems explicable by reference to the confusion on her part as to who she had been referring to as "he" in parts of her earlier police statements. And there can be little doubt that Ms L exaggerated both the nature and extent of the assaults and her subsequent physical state. 7. However, the two matters that in my opinion provide powerful support for the convictions are the medical evidence of shoe prints on Ms L's back (which Dr Anver considered unlikely to have been inflicted the day before she had examined her) and the evidence of Constable Connolly (apparently confirmed by the CCTV footage) of Ms L's distress at the time she ran from the car. The former obviously supports the allegations of assault. Both of those matters cast real doubt on the reliability of Ms Turner's evidence that Ms L did not appear to be injured and was not in any distress only a short time before arriving at the service station. 8. The matters going to Ms L's credibility and reliability as a witness (such as the lies that Ms L accepted she had made in an attempt to disassociate herself from any criminal activity) were matters that the jury had to weigh against other evidence (such as the medical evidence and the CCTV footage from the service station) that supported Ms L's claim that she had been the victim of an assault. The jury had the advantage of seeing Ms L give evidence and hence forming an assessment as to whether some of the inconsistencies in her evidence were due to stress at being in the witness box or were an indication that she was dishonest or unreliable in the giving of her evidence as a whole. The jury were also in a position to apply their common sense when considering whether a regular user of ice, who had consumed on her own account only a small amount that evening, might have been delusional or had difficulty in remembering the events, bearing in mind the medical evidence that there was nothing to suggest a diagnosis that she was psychotic. 9. Having considered all of those matters, and bearing in mind the considerable advantage that the jury had in assessing the relevant witnesses, especially Ms L, I consider that it was open to the jury to have concluded beyond reasonable doubt that Ms L was assaulted by being kicked and stomped on (albeit not by being hit with a hammer or having more than some flame applied close to her back), threatened with more dire consequences, and detained without her consent for the period of time commencing from the assaults until at least the time she was at Ms Turner's house and perhaps (if Ms Turner's evidence of taking Ms L outside to have a cigarette were to be disbelieved) up to the time of Ms L's escape at the service station. 10. Therefore, although Ms L was clearly an unsatisfactory witness in a number of respects and some of her allegations (such as the actual burning of her hair and back) were not on the medical evidence established beyond reasonable doubt, I am not persuaded that the guilty verdicts were unreasonable. I would reject ground 1. 11. Since the appeal proceedings were commenced quite some time after expiry of the time for an appeal against conviction without leave (Mr Sorensen having been convicted on 5 October 2013, the time for appeal expired in November 2013; his notice of appeal was filed 31 July 2015), an application to extend the time in which to appeal ought to have been brought. 12. The Crown did not object to an extension of time for the filing of the notice of appeal. In the circumstances, I would extend time for the filing of the notice of appeal to 31 July 2015 and dismiss the conviction appeal. Application for leave to appeal against sentence Grounds 2 and 2A 1. Both these grounds relate to the finding by his Honour that the quasi-vigilante nature of the offence was an aggravating feature and I will deal with them together. 2. First, it is relevant to note the context in which, in his remarks on sentence, his Honour referred to quasi-vigilantism as an aggravating feature. 3. Having made clear those aspects of Ms L's allegations that his Honour concluded, with regard to the medical evidence, were not made out beyond reasonable doubt (namely that Mr Sorensen had struck Ms L's hand using the hammer with full force, if at all; that there had been a full application of the blow torch effect obtained by combining an aerosol with flame and then pointing it directly onto her back; and Ms L's evidence as to the aftermath of her ordeal) and those matters that his Honour did accept beyond reasonable doubt (such as the making of the threats backed by actions that were employed to instil fear; that the marks on Ms L's back were shoe marks caused by Mr Hall having stood on her back; and that the activities engaged upon in the course of an ongoing assault constituted a degree of gratuitous cruelty by each offender), his Honour went on to observe that "the setting of all of the offences was overshadowed by the inherent and specific gravity of the offence of specially aggravated kidnapping". 4. It was in that context that his Honour addressed each of the factors referred to in R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 (from [106]) with reference to the facts of the present case, namely the length of time of the detention; consideration of how Ms L came to regain her liberty; and whether the level of intimidation escalated. 5. As to the second of those factors, his Honour noted that in Speechley the extent to which fear or terror was occasioned and the manner in which the victim was treated during detention were factors that elevated the objective gravity of the offence; and that the Court there also considered whether the purpose of the detention was for ransom or otherwise. 6. His Honour referred to the condemnation required of offences committed as a form of vigilante action and the relevance of that to reflecting general deterrence on sentence, stating that there were "some aspects" of that factor in the present matter. His Honour then went on to say: In order to avoid any perception of double counting of the aggravating feature and the kidnapping it is necessary that much of the offending will, after individual assessment, require recognition as very serious but also intimately related offending in the course of an ongoing course of criminality. That will require consideration of whether a requisite degree of concurrence is to be applied. The formulation nonetheless leaves any assessment of totality in the criminality for both offenders as very grave, albeit with a dominating concern to properly assess the totality of all the indictment counts within the framework of the related and very serious offences especially aggravated kidnapping. (my emphasis) 1. Pausing there, in the above passage, in which his Honour clearly had in mind the need to avoid double counting the element of aggravation constituted by the quasi-vigilante nature of the offending, what his Honour was posing was the question of concurrence as between the "intimately related offending" (i.e., the offences in counts 2-4) and the specially aggravated kidnapping, not any double counting that might be involved in treating the quasi-vigilante nature of the offence as an aggravating factor for the offending in count 5. 2. That is made clear later in the course of his Honour's remarks on sentence where his Honour noted, first, that selecting the appropriate penalty for the individual offences of being armed with intent to commit an indictable offence (count 2 in Mr Sorensen's case) required "care and implementation" (perhaps meaning care in implementation) so as to distinguish that offence from the core offence of specially aggravated kidnapping, and then, having referred to the way in which weapons were used in the offending, went on to say: Each of the related joint offending matters that constituted an assault occasioning actual bodily harm was serious in its concerted brutality, if not for any lasting physical effect. That aside, I find that the psychological trauma and harm done was considerable and that is also to be regarded with care as to the reconciliation of both the totality of offending and the need to avoid any suggestion of double counting in those matters [which in context must mean the offences in counts 3-4] alongside what I have described as the core and most serious offence of the specially aggravated kidnapping. (my emphasis) 1. The statement that has given rise to the present two grounds of appeal, made after consideration of the objective seriousness of the offending and the subjective circumstances of the offenders, was at p 34 of the remarks on sentence, where his Honour was clearly referring only to the offence the subject of count 5 and said: It is the case that the detention in this instance was not for the advantage of obtaining money, but that is a distinction of limited comfort in light of the humiliation and fear occasioned throughout the period of detention. That period of detention was hours rather than days, however, they were hours of continuing terror, humiliation and threat, including with lethal weapons, being a knife in particular. I also do not overlook the imposing size and appearance of the two offenders, acting in concert and speaking in terms that were plainly calculated to instil terror in a victim who had already been bashed and who I find feared for her life. I note that the victim was only relieved of her ordeal by her own quick thinking and the fortuitous presence nearby of alert police officers. I find that the detention came about as an act of quasi-vigilantism on the part of the offenders. I regard that as an aggravating circumstance. The offence is also one where the protection of the community from violent tendencies in each of these offenders is a matter requiring reflection in sentences that will meet the purposes of sentencing in a penalty that includes appropriate attention to specific deterrence of both offenders. (my emphasis) 1. For Mr Sorensen it is submitted, in effect, that it was an error of principle for his Honour to treat quasi-vigilantism as an aggravating feature and that what authorities such as Speechley and Barlow v R [2008] NSWCCA 96; (2008) 184 A Crim R 187 contemplate is that, depending on the circumstances of the case, quasi-vigilantism may not be a mitigating feature but that they do not go further to say that it is or can be an aggravating feature. It is submitted that retribution or vigilantism provides an explanation for the conduct but cannot make it more serious than an offence committed, say, for financial gain or sexual gratification. 2. That submission cannot be accepted. In Speechley (at [110]), Johnson J expressly recognised the need to condemn actions of a vigilante nature and the relevance of this to reflecting general deterrence on sentence. The passages in Barlow (at [40] and [67]-[68]) referred to at [112] and [113] in Speechley make clear that not only may quasi-vigilantism mitigate to some degree the objective seriousness of an offence in particular cases but also it may indicate in particular cases the need for a more severe sentence to address issues of deterrence. 3. Therefore, subject to the qualification that must be made having regard to the issue raised by ground 2A of the grounds raised in relation to the sentence, it cannot be said that it was not open to his Honour to take into account the quasi-vigilante nature of the offending when assessing both the objective seriousness of the offending and the need for the sentence to reflect issues of deterrence in that regard. 4. The alternative and narrower submission put for Mr Sorensen on ground 2 is that even if as a matter of principle quasi-vigilantism could be considered an aggravating factor, it should not be regarded as one in the circumstances of this case on the basis that here there was provocation in the form of the theft of the rings from Ms Turner's house. Acceptance of that proposition would logically mean that quasi-vigilantism would presumably never be an aggravating factor, since it is predicated on there being some wrong or perceived wrong that provides an explanation for the conduct, but in any event it was a matter for his Honour to evaluate the weight to be placed on this factor when assessing the objective seriousness of the conduct. 5. It was open for example to his Honour to regard, as an aggravating factor for counts 2-4, the offenders' violent and disproportionate reaction to the theft, or alleged theft, of three diamond rings (relatively trivial in the sense that, however valuable the three rings may have been – and there was no evidence as to this – the attempted theft was thwarted within a very short time and the rings recovered and returned to Ms Turner). 6. Whether that operated wholly to attenuate any mitigating effect that the quasi-vigilantism might otherwise have had (which is how the Crown submits his Honour's remarks should be read) or to warrant an increase in the sentence that would otherwise have been appropriate absent the quasi-vigilantism, is not necessary to address. 7. Ground 2 must therefore be rejected. 8. Ground 2A, however, raises a different issue. 9. Section 21A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the Court is not to have regard to any aggravating or mitigating factor in sentencing if it would be contrary to any act or rule of law to do so. In R v Kelly [2005] NSWCCA 280; (2005) 155 A Crim R 499, Rothman J said at [40]: Even though a matter may be described as an aggravating factor, if it forms part of the elements of an offence or cannot, as a matter of law, be taken into account, then, notwithstanding the generality of description in s 21A of the Crimes (Sentencing Procedure) Act, such a matter cannot be an aggravating factor in the determination of the sentence for the offence in question. 1. In R v Kelly, where the offence was of aggravated robbery contrary to s 95(1) of the Crimes Act, Rothman J held that the sentencing judge had erred in taking into account the actual and threatened use of violence as an aggravating factor in determining the appropriate sentence to be applied, since use of violence was an integral element in the offence. His Honour said that any regard, even minor, to the use of violence as an aggravating factor on sentence would in those circumstances be an error ([42]). 2. In Hanze v R [2006] NSWCCA 36, Giles JA said (at [26]): The limitation in regard to an aggravating factor is not to be applied mechanically, but to give effect to the common law preclusion of double counting by increasing the offender's punishment because of something already taken into account by virtue of the conviction (after trial or on a plea of guilty). 1. In the present case, Mr Sorensen submits that the quasi-vigilante nature of the offence was embraced in the charge under s 86(3) of the Crimes Act, namely that the advantage sought was to obtain gratification by punishing and humiliating Ms L, and hence this should not have been taken into account as an aggravating factor in sentencing for that offence. 2. The Crown does not dispute that the advantage pleaded in count 5 of the indictment and the quasi-vigilante conduct referred to by the sentencing judge were the same conduct. However, the Crown submits that his Honour did not double count the quasi-vigilantism or otherwise err in the instinctive synthesis of the sentence in this regard. 3. The Crown submits in effect that what his Honour should be understood as having meant, when stating that he regarded the quasi-vigilantism as an aggravating circumstance, was that the conduct "required the imposition of a sentence that properly reflected that the quasi vigilantism had been taken into account once and had resulted in the full weight being afforded to specific general deterrence, denunciation and community protection on account of the motive". 4. The Crown points to his Honour's recognition of the need to avoid double counting in the sentencing process (in the passages to which I have already referred). 5. The Crown submits that, having regard to the earlier references as to the need to avoid double counting, his Honour's observation in relation to count 5 that vigilantism was an aggravating circumstance was a "short hand reprise" of his Honour's earlier considerations of the factors identified in Speechley (at [110]) and was a reference to the possibility that vigilantism might warrant less weight to be afforded to special deterrence and/or community protection in cases of the type to which reference was made in the extracts from R v Swan [2006] NSWCCA 47 per Spigelman CJ at [33] and R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 per Howie J at [30]-[32]. 6. In other words, what seems to be suggested is that his Honour's statement may be read as a rejection of the possibility that the quasi-vigilantism in the present case might operate to ameliorate the sentence to be imposed on count 5, as a consequence of the reduced need for weight to be afforded to specific deterrence and/or community protection in the instinctive synthesis of the sentence; and, conversely, a recognition that full weight should be accorded to the need for a sentence reflecting the requirements of specific and general deterrence and community protection in the present case where the offence was very serious, the alleged motivation relatively trivial and the offender had a criminal history of offending which included an offence having a strong similarity to the present matter. 7. The Crown argues that the present circumstances required the vigilantism to be counted once in the determination of the additional weight to be afforded to specific deterrence, general deterrence, denunciation and community protection and that this is what occurred. 8. However, having properly recognised the need to avoid double counting the aggravating factor of the quasi-vigilantism in relation to the other offences when considering the totality of the offending (that being overshadowed by the specially aggravated kidnapping) (see [105], [108] above), his Honour nevertheless expressly referred to quasi-vigilantism as an aggravating factor for the count 5 offence, when the aggravation itself formed part of the charge. Punishment and humiliation were necessary parts of the offence of specially aggravated kidnapping as pleaded on the indictment. It could not properly be regarded as an aggravating factor on sentencing for an offence of which it formed part. 9. Therefore, even though the extent to which and the manner in which that factor was taken into account in determining the sentence for count 5 is not clear, I am of the opinion that his Honour erred in finding that the quasi-vigilante nature of the count 5 offence was an aggravating factor. Ground 2A is made out. In those circumstances it falls to this Court to re-sentence Mr Sorensen in line with the principles in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601. Ground 3 1. Given that the sentencing discretion is to be exercised by this Court afresh, it is not necessary for the Court to consider ground 3. Whether the sentence is manifestly excessive is not an issue which this Court is now required to determine. Re-sentencing 1. As to the objective seriousness of the various offences, I deal first with the sexual assault offence (count 3). It did not involve sexual gratification but it was degrading and humiliating. Ms L was made to strip and to crawl around like a dog, with derogatory comments being made as to her physical appearance. The touching of Ms L's breast and stomach was described as "grabbing" and was not prolonged. Although Mr Sorensen has pointed out the conduct followed some mild consensual sexual activity between Ms L and Mr Hall earlier that evening, I do not consider that this minimises the seriousness of later non-consensual sexual activity. 2. Turning then to the offences of violence (counts 2, 4 and 5), while the physical injuries suffered were relatively minor, with minor bruising and swelling but no laceration or breaking of the skin or fractures, the medical evidence was consistent with heat being applied in some fashion to Ms L's naked back and her back was stomped on with sufficient force to leave shoe prints on her back. The offences were accompanied by threats of serious violence, including the implicit threat comprised by Mr Sorensen's statement that if it had been him she would have had her head cut off and she would not be leaving the house unless she was in bubble wrap or a body bag. Ms L was terrorised by the presence and utilisation of the hammer and aerosol (though not to the extreme degree of which she gave evidence) and it may readily be accepted that she suffered psychological trauma during the offending. The description of Ms L on the CCTV was of someone in a state of extreme distress. 3. Even allowing for the degree of undoubted exaggeration by Ms L, she was subjected to both actual and threatened violence of a serious kind. 4. In relation to counts 2 and 4, where it is not inappropriate to take into account the quasi-vigilante nature of the offences, the conduct represented an excessively disproportionate response to a relatively trivial perceived wrong. In those circumstances there is no cause to ameliorate the sentence that might otherwise be appropriate to impose. Rather this factor points to a need for the sentences to reflect both specific deterrence and community protection. 5. As to count 5, the detention was for a period of some hours. Ms L was subjected to a degrading and distressing course of actual and threatened violence, albeit not to the extent that she recalled having been perpetrated. The threats made against her were very serious, as was the stomping on her back by Mr Hall. Ms L feared for her life. 6. In written submissions for Mr Sorensen reference was made to Ms L having willingly and voluntarily placed herself in a vulnerable situation, including by reason of her having driven from Wollongong to Penrith to an unfamiliar area without a driver's licence and with no money. Although such a submission amounts on its face to a concession of vulnerability, the Crown accepts that there was no finding of vulnerability such as to be taken into account as an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act. In my opinion the circumstances in which Ms L came to be at Mr Sorensen's house neither lessen nor heighten the objective seriousness of what was done to her there. 7. Mr Sorensen also notes that one of the mitigating factors to be taken into account when imposing sentence pursuant to s 21A(3)(c) of the Act is provocation by the victim. Reference is made in this regard to Ms L's involvement in the theft or alleged theft of Ms Turner's jewellery. However, even apart from the absence of a finding as to Ms L's involvement in the theft of the jewellery, as already noted it can only be said that this was an extravagantly disproportionate response to a relatively minor perceived wrong. 8. Insofar as Mr Sorensen sought to draw a comparison (favourable to his position) between the present case and the offending that was considered in Morrison v R [2014] NSWCCA 199, this Court has previously observed that there is a danger in seeking to draw factual comparisons between cases for the simple reason that the facts of the cases necessarily differ. It is necessary to bear in mind the totality of the circumstances which have resulted in a particular sentence being imposed in a particular case (see RLS v R [2012] NSWCCA 236 per Bellew J at [132], McClellan CJ at CL and Johnson J agreeing). 9. Having regard to the totality of the offending comprised by counts 2, 4 and 5, I would place those offences as being of a high order of objective seriousness. In relation to counts 2 and 4 (as noted above) while I would not impose a greater sentence by reference to the quasi-vigilante nature of the offences neither do I consider that this warrants any amelioration of the sentence that I would otherwise impose. 10. As to subjective matters, the pre-sentence report dated 5 December 2013 disclosed a history of an unstable upbringing as well as a lengthy history of criminal conduct. Mr Sorensen accepts that he has spent over half his life in custody. Significantly, at the time of the offence he was on parole for the offence of maliciously inflicting grievous bodily harm. 11. Mr Watson-Munro, a consultant forensic psychologist whose report was tendered on Mr Sorensen's behalf at the sentencing hearing, concluded that Mr Sorensen had exhibited signs indicating he was suffering from major depression and was in remission from a poly-substance abuse disorder. His criminal history included a series of offences committed after having consumed illicit substances. It is apparent from the evidence that he is, as his Honour described him, a seasoned criminal and seasoned drug abuser. 12. Mr Watson-Munro recommended cognitive behavioural therapy to address and develop relapse prevention strategies in a number of areas in effect to provide Mr Sorensen with the basic skills for living in society as a normal citizen. Mr Watson-Munro also noted Mr Sorensen's commitment to his partner and to his partner's infant daughter. 13. Mr Sorensen had, as referred to earlier, provided a letter to the sentencing judge asserting his determination to cease using drugs and to use the motivation of a potential for a normal family life to strengthen his resolve to avoid further offending. There was, however, no expression of remorse for the suffering meted out to Ms L nor did Mr Sorensen accept his guilt. Mr Sorensen's prior record and poor prospects of rehabilitation require a sentence that focusses on specific deterrence and community protection. 14. The sentencing judge considered that Mr Sorensen had a "glimmer of insight in him that he had wasted far too much of his life in custody as he now approached middle age, with looming powerful indications that he has become institutionalised" and thus he should be subjected to a longer period on parole "which, if productive, will be for the good of the community" and accordingly found special circumstances that justified a variation of the statutory formula in s 44 of the Crimes (Sentencing Procedure) Act. I am sceptical that such special circumstances are present, there being little, if any evidence to justify a finding that there are significant positive signs which show that if Mr Sorensen is given a longer period on parole rehabilitation is likely to be successful, as opposed to being a mere possibility (R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399 at [56]-[57]). However, the Crown did not in this Court submit that his Honour erred in this regard or that, in resentencing, no such finding should be made. In the circumstances I have slightly reduced the non-parole period from that which would follow from applying the s 44 formula. 15. Taking into account those matters, the respective maximum penalties and, as to count 3, the standard non-parole period, as well as the principle of totality, and applying, as the primary judge did, a high degree of concurrency, I propose the following indicative sentences: 1. on count 2, 3 years' imprisonment; 2. on count 3, 3 years' imprisonment with a non-parole period of 2 years, 3 months; 3. on count 4, 2 years' imprisonment; 4. on count 5, 8 years' imprisonment, aggregated to an overall sentence of 10 years' imprisonment commencing on 24 May 2013 with a non-parole period of 7 years expiring on 23 May 2020. Orders 1. The orders I propose are as follows: 1. Grant an extension of time until 31 July 2015 to file the notice of appeal against conviction. 2. Appeal against conviction dismissed. 3. Grant leave to appeal against sentence. 4. Appeal against sentence allowed. 5. Sentences imposed by the primary judge are quashed. 6. In lieu thereof, Michael Christian Sorensen is sentenced to imprisonment for a term of 10 years commencing on 24 May 2013 and expiring on 23 May 2023, with a non-parole period of 7 years to expire on 23 May 2020. 7. The earliest date on which Mr Sorensen will be eligible for release on parole is 24 May 2020. 1. ADAMS J: I agree with Ward JA. 2. BELLEW J: I agree with Ward JA. ********** 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: 14 April 2016