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Court of Criminal Appeal 27 June 2003

Regina v Paul Hendradinata; Regina v Bruce Sunandar Rossi; Regina v Ronny Antaredjo

[2003] NSWCCA 161

Also reported as 142 A Crim R 180
Assault & violenceTheft & property

Citation: Regina v Paul Hendradinata; Regina v Bruce Sunandar Rossi; Regina v Ronny Antaredjo [2003] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 27 June 2003
Judge(s): Santow JA; Sully J; Buddin J (Santow JA and Buddin J agreeing with Sully J)

Background

Three co-offenders were convicted by a jury in the Sydney District Court of detaining a victim for advantage, contrary to section 90A of the Crimes Act 1900 (NSW) (since repealed). Two of the three, Rossi and Antaredjo, were also convicted of maliciously inflicting grievous bodily harm with intent, contrary to section 33 of the same Act.

The offences arose from events in August 2000. The victim, an Indonesian national living in Sydney, was lured under false pretences to a city apartment and then held captive for four days across two locations. During that detention, he was beaten repeatedly, threatened with a firearm and a sword, had money taken from his bank account, and sustained serious injuries including a fractured leg. The jury rejected each respondent's defence of duress, and the sentencing judge specifically found that each had opportunities to withdraw from the enterprise but did not.

At first instance, Judge Dodd sentenced all three respondents in August 2002. The section 90A offence attracted a head sentence of four years with a non-parole period of eighteen months. For Rossi and Antaredjo, the section 33 offence attracted a further twelve months with a six-month non-parole period, structured to produce an effective head sentence of four and a half years and an effective non-parole period of two years. The Crown appealed all sentences as manifestly inadequate.

  • Whether the sentences imposed at first instance were manifestly inadequate having regard to the gravity of the offending.
  • What the proper approach to sentencing for the section 90A detention offence (with injury, attracting a 20-year maximum) should have been.
  • What the proper approach to sentencing for the section 33 grievous bodily harm with intent offence (attracting a 25-year maximum) should have been, treated as a discrete sentence in accordance with the principles in Pearce v The Queen.
  • How the principles of totality and proportionality should apply when structuring partially concurrent sentences for two serious offences arising from the same course of conduct.
  • What restraint the Court should exercise in re-sentencing following a successful Crown appeal.

Decision

Sully J, with whom Santow JA and Buddin J agreed, held that the sentences imposed at first instance were manifestly inadequate on all counts. The offending was described as serious: a prolonged, premeditated, and violent deprivation of liberty involving multiple perpetrators, sustained physical brutality, threats with weapons, and financial exploitation of the victim over four days.

For the section 90A detention offence, Sully J assessed that a proper first-instance sentence would have been in the order of six years with a non-parole period of three and a half to four years. For the section 33 grievous bodily harm offence, treated as a discrete sentence in accordance with Pearce, a proper sentence would also have been in the order of six years with a non-parole period of around four years. Applying the principles of totality and proportionality, Sully J considered that partial cumulation for Rossi and Antaredjo should have produced an effective head sentence of approximately seven and a half years with an effective non-parole period of around five years.

Acknowledging the restraint required when re-sentencing after a successful Crown appeal, the Court imposed sentences below those it identified as strictly appropriate at first instance. Hendradinata was re-sentenced to five years' imprisonment with a three-year non-parole period. Rossi and Antaredjo each received five-year terms on each count, structured with partial cumulation to produce an effective head sentence of six years and an effective non-parole period of four years.

Orders Made

  • Crown appeals allowed in each case; all sentences passed at first instance quashed.
  • Hendradinata re-sentenced to five years' imprisonment (commencing 22 May 2002, expiring 21 May 2007), with a non-parole period of three years (commencing 22 May 2002, expiring 21 May 2005).
  • Rossi re-sentenced on Count 1 to five years commencing 26 May 2002 (non-parole period: three years from 26 May 2002); and on Count 2 to five years commencing 26 May 2003 (non-parole period: three years from 26 May 2003).
  • Antaredjo re-sentenced on Count 1 to five years commencing 11 May 2002 (non-parole period: three years from 11 May 2002); and on Count 2 to five years commencing 11 May 2003 (non-parole period: three years from 11 May 2003).

Key Takeaways

  • A sentence may be manifestly inadequate even where the sentencing judge made no identifiable error in principle; the Court of Criminal Appeal will intervene where the result departs substantially from the range appropriate to the gravity of the offending.
  • Where multiple offences arise from the same course of conduct, Pearce v The Queen requires each sentence to be fixed as a discrete and appropriate penalty for that offence before the totality principle is applied to structure any cumulation.
  • Applying the totality and proportionality principles does not require full cumulation; partial cumulation may be appropriate, but the resulting effective sentence must still reflect the overall seriousness of the conduct.
  • In re-sentencing after a successful Crown appeal, the Court of Criminal Appeal applies restraint and may impose a sentence below what it considers would have been strictly appropriate at first instance, as a recognition of the respondents' legitimate expectation of finality.
  • The District Court's rejection of duress as a mitigating factor at sentence was upheld where the offenders had identifiable opportunities to withdraw from the enterprise and alert authorities but chose not to.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence)
- Crimes Act 1900 (NSW), s 90A (detention for advantage, since repealed; maximum 20 years where victim injured)
- Crimes Act 1900 (NSW), s 33 (maliciously inflicting grievous bodily harm with intent; maximum 25 years)

Cases:
- Pearce v The Queen (1998) 194 CLR 610 (principles for sentencing on multiple counts)
- Reg v Brown & ors [1994] 1 AC 212 (cited in the judgment)