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Court of Criminal Appeal 9 October 2002

Regina v Drummond, Crook & Taranto

[2002] NSWCCA 413

Assault & violenceFirearms & weaponsPublic order & justice offences
APPEALS AGAINST SENTENCE MAJOR ROLE ON PAROLE LENGTHY CRIMINAL RECORD CHALLENGE TO FINDINGS OF FACT NOT MANIFESTLY EXCESSIVE CROOK

Citation: Regina v Drummond, Crook & Taranto [2002] NSWCCA 413
Court: NSW Court of Criminal Appeal
Date: 9 October 2002
Judge(s): Sperling J, Buddin J

Background

Three applicants, Martin Drummond, Suzanna Crook, and Graham Taranto, were convicted after a jury trial of detaining a sex worker, referred to here as the victim, with intent to hold her for the advantage of Drummond. The offence arose at an inner-city brothel that Drummond operated. Crook was Drummond's partner, and Taranto was a labourer present at the premises to assist with renovations.

The detention followed an argument in which Drummond accused the victim of stealing his amphetamines. The victim was held in an upstairs bedroom, subjected to physical violence by Drummond and Crook, and at one point had a pistol pointed at her head by Drummond. When she attempted to escape via a balcony, Taranto intercepted her and returned her to the bedroom. Crook subsequently handcuffed her to the bed using toy handcuffs from the premises.

Each applicant had been sentenced in the District Court by Cooper DCJ under s 90A of the Crimes Act 1900. The Crown did not assert substantial injury to the victim, so the applicable maximum penalty was 14 years' imprisonment. All three applicants sought leave to appeal against sentence only, none having expressed remorse or accepted responsibility for the offence.

  • Whether the sentencing judge made any error of fact in the findings underlying the sentences imposed on Drummond and Crook
  • Whether the sentences imposed on Drummond and Crook were manifestly excessive
  • Whether the sentence imposed on Taranto was manifestly excessive, having particular regard to his lesser role compared to his co-offenders and the degree of differentiation between their respective sentences

Decision

Drummond: Drummond played the major role in the offence. He initiated the detention, was primarily responsible for the physical violence including producing a firearm, and was on parole at the time of the offence with a lengthy prior criminal record. The Court found no error in the sentencing judge's factual findings and concluded the sentence of four years and four months with a non-parole period of three years and three months was not manifestly excessive.

Crook: Crook played a significant role, actively participating in detaining and assaulting the victim and handcuffing her to the bed. The sentencing judge made a finding of special circumstances in her favour, resulting in a proportionally longer parole period. The Court accepted she had more favourable subjective features than the other applicants, but found no error in the sentencing judge's factual findings and held the sentence of four years with a non-parole period of two years was not manifestly excessive.

Taranto: The Court allowed Taranto's appeal, finding that the original sentence of three years and eight months failed to reflect adequate differentiation between his role and those of his co-offenders. Unlike Drummond and Crook, Taranto was not a principal in the offence. He had no personal interest in detaining the victim, did not initiate the detention, was not present when the firearm was produced, and was present during only one of the violent incidents. The Court also noted he treated the victim with some degree of consideration. The Court found, under s 6(3) of the Criminal Appeal Act 1912, that a different sentence was warranted.

Orders Made

  • Drummond: Leave to appeal granted; appeal dismissed.
  • Crook: Leave to appeal granted; appeal dismissed.
  • Taranto: Leave to appeal granted; appeal allowed; District Court sentence set aside; sentenced to three years' imprisonment commencing 2 August 2001 and expiring 1 August 2004, with a non-parole period of two years and three months commencing 2 August 2001 and expiring 1 November 2003, at which time the applicant to be released on parole.

Key Takeaways

  • A significant disparity between co-offenders' sentences can constitute grounds for appellate intervention where one offender played a meaningfully lesser role, was not a principal, had no personal stake in the offence, and did not inflict violence.
  • In dismissing Drummond's appeal, the Court confirmed that being on parole and holding a lengthy criminal record are weighty sentencing considerations capable of sustaining a substantial sentence even at the lower end of the maximum penalty range.
  • Where a convicted person expresses no remorse and declines to accept responsibility, they are disentitled from any sentencing discount on that basis, leaving the sentencing court to determine facts consistent with the jury's verdict.
  • The Court of Criminal Appeal confirmed that the presence or absence of violence, the degree of personal involvement in initiating an offence, and any mitigating conduct toward a victim are all relevant to calibrating sentences among co-offenders convicted of the same charge.
  • Under s 90A of the Crimes Act 1900 (as then in force), where the Crown did not assert substantial injury to a victim of detention for advantage, the applicable maximum penalty was 14 years rather than 20 years, and the sentencing court was bound to proceed on that lower maximum.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 90A (detain with intent to hold for advantage)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
- R v Elhalabi (2001) NSWCCA 516
- R v McGourty [2002] NSWCCA 335
- R v Moffitt (1990) 20 NSWLR 114
- R v Richards (1981) 2 NSWLR 464