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District Court 24 June 2009

R v Johnson, Hall & Ersman

[2009] NSWDC 279

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING ESPECIALLY AGGRAVATED KIDNAPPING 3 CO OFFENDERS 2 SOURCES OF EVIDENCE

Citation: R v Johnson, Hall & Ersman [2009] NSWDC 279
Court: District Court of New South Wales
Date: 24 June 2009
Judge(s): Nicholson SC DCJ

Background

The victim, a western Sydney resident, had previously used a brothel where one of the co-offenders worked as a sex worker. That co-offender (the female accused) lured him to Penrith under false pretences. Once there, the two male co-offenders beat him and forced him into a vehicle while he was seated in his car.

The victim was held captive, assaulted, and threatened over several hours. He was driven to a remote location and threatened with death before ultimately being taken back to his mother's home at Glenmore Park, where his fear compelled him to grant the offenders entry. A digital camera was stolen, and the victim's car was later taken and driven to premises connected with the female offender's pimp.

The three accused faced sentencing together, though their procedural histories differed. One male co-offender had been convicted by jury; the other male and the female co-offender had pleaded guilty to charges the Crown accepted as adequately reflecting their criminality. A fourth participant was not before the court.

  • What was the appropriate assessment of the objective seriousness of the especially aggravated kidnapping for each offender?
  • How should the court weigh the differing levels of culpability across three co-offenders, given one conviction by jury and two guilty pleas?
  • What personal circumstances, including rehabilitation prospects and prior conduct, were relevant to each offender's sentence?
  • How should parity be maintained across the three sentences while reflecting individual circumstances?
  • What discount, if any, applied for guilty pleas, and were special circumstances established to justify adjusting the standard non-parole period ratio?
  • What additional offences on Form 1 should be taken into account when sentencing the principal charges?

Decision

The court assessed the objective criminality of the kidnapping as serious. The victim had been lured, physically assaulted, held against his will, threatened with death, and exploited by fear to gain entry to his home. The court applied a structured approach to assessing the seriousness of the detention offence, treating factors such as duration, degree of physical harm, and use of threats as relevant indicators.

For Johnson, convicted by jury after trial, the court imposed a total sentence of three years for the especially aggravated detention, with a non-parole period of two years commencing from the date of his remand in custody in December 2007. A concurrent sentence of fifteen months (ten-month non-parole period) was imposed for the aggravated break, enter and steal. Both sentences had largely been served by the sentencing date.

Hall, who pleaded guilty, received a longer head sentence than Johnson, reflecting the court's assessment of his greater overall criminality when the Form 1 matters were taken into account. His non-parole period was set at two years and three months, with a balance of term of two years.

Ersman's situation was treated distinctly. The court accepted that her background, including drug dependency and her circumstances as a sex worker, warranted a different approach. She was convicted but released on conditional bail under section 11 of the Crimes (Sentencing Procedure) Act 1999, with placement at Odyssey House as a central condition, subject to extensive drug testing, supervision, and reporting requirements.

Orders Made

Ian Shaun Johnson:
- Convicted of detaining the victim in circumstances of special aggravation (in company, with actual bodily harm occasioned): non-parole period of 2 years from 4 December 2007, balance of term expiring 6 November 2010; ordered released 3 December 2009
- Convicted of aggravated break, enter and steal (Glenmore Park, in company): non-parole period of 10 months from 4 December 2007 (expired 3 October 2008); balance of term expired 3 March 2009
- Convicted under s 166 of taking and driving the victim's vehicle: 6 months imprisonment from 4 December 2007 (expired 3 June 2008)

Timothy Leigh Hall:
- Convicted of detaining the victim in circumstances of special aggravation: non-parole period of 2 years and 3 months, balance of term of 2 years
- Five additional matters taken into account on Form 1

Rachel Anne May Ersman:
- Convicted of detaining the victim without consent with intent to obtain an advantage in circumstances of special aggravation
- Released on conditional bail under s 11 of the Crimes (Sentencing Procedure) Act 1999, with conditions including residence at Odyssey House, random drug and alcohol testing, attendance at AA and NA, supervision by Probation and Parole, and return to court at the three-month anniversary of release
- Three additional matters (including aggravated break, enter and steal and possession of cannabis) taken into account on Form 1

Key Takeaways

  • The District Court applied a structured checklist approach to assessing the objective seriousness of an especially aggravated kidnapping, treating factors such as duration of detention, degree of violence, threats made, and the exploitation of the victim's fear as relevant considerations.
  • Where multiple co-offenders are sentenced together but their procedural histories differ (jury conviction versus guilty plea), the court must calibrate sentences individually while preserving overall parity.
  • A guilty plea does not automatically produce a lighter sentence than a co-offender convicted at trial if the pleading offender's total criminality, including Form 1 matters, is assessed as greater.
  • Under s 11 of the Crimes (Sentencing Procedure) Act 1999, a court may convict an offender and grant bail rather than impose immediate custody, subject to conditions directed at rehabilitation, such as placement in a residential drug and alcohol program.
  • Rehabilitation prospects, including an offender's drug dependency, exploitative personal circumstances, and acceptance into a structured program, can materially influence the form of sentence imposed, even for a serious violent offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 166

Cases:
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- Della-Vedova v R [2009] NSWCCA 107