Tattersall v R [2011] NSWCCA 282

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tattersall v R [2011] NSWCCA 282 Hearing dates: 14 October 2011 Decision date: 16 December 2011 Before: McClellan CJ at CL at [1] Latham J at [37] Harrison J at [38] Decision: Leave to appeal refused Catchwords: CRIMINAL APPEAL - s86(3) Crimes Act 1900 (NSW) - consideration of evidence in co-offenders' hearings on sentence - leave to appeal refused. Legislation Cited: Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1995 (NSW) Category: Principal judgment Parties: Jason Allen Tattersall (Applicant) Crown Representation: A Francis (Applicant) P G Ingram SC (Crown) Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2007/54286 Decision under appeal Date of Decision: 2010-12-09 00:00:00 Before: Conlon DCJ File Number(s): 2010/54286

Judgment 1McCLELLAN CJ at CL: The applicant pleaded guilty to one count of detaining Steven Jiminez without his consent and with intent to obtain an advantage, namely psychological, and at the time of detaining, actual bodily harm was occasioned to Jiminez. The offence was contrary to s 86(3) of the Crimes Act 1900 (NSW), the maximum penalty being 25 years imprisonment. 2The sentencing judge was also required to take into account on a Form 1 an offence of deem supply of a prohibited drug, being 5.3 grams of methylamphetamine contrary to s 25 Drug Misuse and Trafficking Act 1995 (NSW). 3The applicant was sentenced to imprisonment for a term of 14 years and 5 months comprising a non-parole period of 11 years with a balance of term of 3 years and 5 months. There are two grounds of appeal being:

Ground 1: the sentencing judge erred in having regard to material that was not in evidence before him.

Ground 2: the sentence is manifestly excessive. 4The facts were not in dispute and are as follows: 5The co-offender Nadia Donn befriended a woman called Amanda Sutton in 2006. Both had interests in common and through those interests met the applicant. Sutton became involved in a relationship with the applicant and they moved into a house together. The victim in this matter is Stephen Jimenez. At about this time he was living in Nowra and befriended the co-offenders being Ben Thomas and his girlfriend Nadia Donn. Donn and Thomas introduced Jimenez to Sutton and the applicant. Jimenez eventually moved to Warilla, a suburb of Wollongong. 6Shortly thereafter the applicant was sentenced to a period of imprisonment. Donn spent a lot of time with Sutton whilst the applicant was in custody. She encouraged Sutton to take up with Jimenez and before long Sutton and Jimenez developed a casual sexual relationship. The applicant was released from custody on 20 February 2010 and stayed in a caravan in his brother's backyard in Nowra. At this time Donn fell out with Sutton and told the applicant's brother about Sutton's sexual relationship with Stephen Jimenez. She expected that information to get back to the applicant. 7At about 9pm on Monday 22 February 2010 the applicant arrived at Donn's house. The applicant asked Thomas if he had been "rooting Sutton". Donn said "No it was junior, Stephen (being the victim) and Dwayne". The applicant directed Donn and Thomas to attend his caravan. When they got there the applicant took Jimenez's number from Donn's phone. The applicant called the number. Donn and Thomas heard the applicant talking to someone on the phone and becoming very agitated. He appeared to be speaking to someone called Rob. At the time the victim Jimenez was visiting Rob Menz at William Avenue, Warilla. At about 9.30pm Jimenez's mobile phone rang. Menz picked it up and answered. He heard a male voice ask "Where's Amanda?" Menz replied "Hang on buddy, this is not Stephen, I just answered his phone". The male then said "I'm looking for Amanda. Is Stephen with Amanda? I just got out of gaol, I don't even have any clothes, I want to know where my things are". Menz replied "No they haven't been together since new year". The male asked "Where is he?" Menz replied "Dunno". 8The phone rang again and was answered this time by Jimenez. The male asked "Where are you?" Jimenez replied "In Fairy Meadow". The male said: "Were you with my missus cunt? I'm coming to get you. You're not at Fairy Meadow are you cunt, you're at William Street aren't you cunt. Stay put I'm coming to get you cunt. I'll be there in twenty minutes, I'm leaving now". 9The applicant then directed Donn and Thomas to pick up Jimenez. They were joined by another co-offender Shaun Burne. Donn drove the three of them back to her house where they changed cars and then Thomas drove them to William Avenue, Warilla in his Mitsubishi Magna station wagon. In the meantime Jimenez drove to Warilla Police Station to report the applicant's threat. H e returned to Menz's home in William Avenue. While he was there he received a call from a male calling himself "Jason." The male said he would be at the house in twenty minutes. Jimenez went and sat in his car so that he could drive to the police station if need be. He waited for an hour and then phoned Donn. The male who called himself "Jason" answered the phone. He confirmed that they were on their way and said "You want to be there cunt". 10Shortly thereafter Jimenez heard a car pull up in the street. He saw Donn and Thomas sitting in Thomas's Magna station wagon. He also saw another male in the back seat of the car. Donn and Thomas saw him and yelled out "Are you coming or what?" Jimenez replied, "I don't know, who is that?" Burne replied, "I'm Shaun, Jason's cousin. Are you going to get in the car? The longer you keep Jason waiting the shiftier he gets." 11Jimenez then agreed to follow them in his red Daihatsu Charade. They travelled in convoy to Albion Park. At one point Jimenez phoned Donn to ask where they were going. Thomas answered the phone and told him "Jason is already at a house and he's waiting for us. We are driving there". Jimenez said "I want to meet in a public place". Thomas replied "We can't do that, it will make him more shitty. You are better off just going there". 12When they arrived at Albion Park both cars stopped and Burne got into Jimenez's car. They then drove to the home of the co-offender Matthew Bool and Stephanie Ireland at 5 Murragan Street, Albion Park Rail. The applicant had earlier phoned Bool to tell him that he was coming over to his house with a couple of his mates. He turned up on his motorbike at about midnight. Once inside he told Bool and Ireland, "I've got something to do. We got to go fucking sort this fellow out". 13The others arrived a short time later. They were met by the applicant who said to Jimenez "Get in here now cunt". Jimenez walked into the house. He was followed closely by Thomas, Donn and Burne. The applicant punched him in the head as he walked past. Jimenez was then told to stand in the kitchen area and was then punched causing him to fall to the floor. He was then punched and kicked by the applicant as Thomas, Donn and Burne sat around the kitchen area watching. At some point the applicant told Thomas to get a baseball bat from the car. Thomas left and then returned with a baseball bat. The applicant started to hit Jimenez with the baseball bat and then he continued to hit and kick the victim whilst the others watched. 14At one point Jimenez heard something crack in his left ankle and felt a burst of intense pain in his left leg. He screamed and was told by the applicant to "Shut the fuck up, you're going to wake up the kids". There were five children in the house aged two, four, six, ten and eleven. They were sleeping in the back bedroom. Ireland checked on the children about eight or nine times during the night, otherwise she remained with the others. 15A little while later the applicant told Jimenez to get up and go out to the backyard. Jimenez picked himself up from the kitchen floor and limped out to the backyard. Once outside the applicant screamed at Jimenez, "Have you learnt your lesson cunt. I'm going to overdose you on heroin and leave you to die cunt". The applicant started hitting him with a baseball bat again. Jimenez fell to the ground. After a time the applicant said, "That's what a dirty cunt gets". 16At this point the offender Shaun Burne said "It's my turn now, it's my turn now". The applicant made Jimenez stand up. Burne then punched Jimenez about five times and then kicked him in the ribs. Jimenez fell to the ground again. Burne then said, "Get back inside you dumb little cunt". Back inside the house the applicant asked Bool to get his tattoo gun so that he could write "dog" on Jimenez's forehead. Ireland got the tattoo gun and gave it to Bool who in turn set it up and gave it to the applicant. Jimenez was made to lie on the kitchen floor as the applicant used his right hand to tattoo the word "dog" on his forehead. He took about ten minutes. Burne was standing nearby. Donn, Thomas and Bool were sitting nearby. 17When the applicant was finished tattooing Jimenez's forehead he and Burne again hit Jimenez. Donn was sitting nearby looking at a tattoo book. The applicant made a number of telephone calls to Robert Menz during the early hours of that morning. During the calls Menz could hear Jimenez getting "flogged". At one point the applicant said, "Your mate's having fun here, you're next, this is going to happen to you". Jimenez was also forced to sign over ownership of his Daihatsu Charade to the applicant. The document to be signed was prepared by Donn. Thomas drove the vehicle away from the scene in an attempt to conceal it. 18Jimenez was then taken out to the backyard in the early hours of the morning. Bool directed him to sit on a chair in the carport. The applicant asked him, "What are you meant to say now cunt?" Jimenez replied, "Thank you for stopping and I'm sorry for what I've done". Some time later the applicant said to Jimenez: "Ben and Nadia are going to take you to a Sydney hospital. This is what you are going to say. You got bashed by five or six wogs in a park and that you signed your car over to a friend earlier today and Ben and Nadia found you in a park. I will kill you and come after your family if you tell the cops". 19At about 7.30am Donn and Thomas drove Jimenez to Wollongong Hospital in Thomas' car. With his significant injuries Jimenez had difficulty walking so Donn and Thomas helped him into the hospital and left him with the triage nurse. They then drove to Campbelltown trying to find the address of the person referred to as "junior" for the applicant. The applicant left about twenty minutes after Thomas and Donn. He phoned Bool some time later and told him to get rid of the tattoo gun. Ireland took the tattoo gun and put it into a friend's garbage bin. 20At about 11am Donn and Thomas stopped at 5 Murragan Street on their way back from Campbelltown and picked up the baseball bat. They were joined by Bool and Burne. They then went to the place where Thomas had concealed Jimenez's Daihatsu Charade. Thomas drove the Charade to Kiama bends lookout where he dumped it and was then picked up by Donn, Bool and Burne and driven home to Nowra. 21Jimenez was examined at Wollongong Hospital. He had a painful left ankle, left forearm and right elbow. X-rays revealed a fractured left ankle. He underwent open reduction and internal fixation of his left ankle on 26 February 2010 and it was put into a back slab. The injury was consistent with a direct blow to the ankle and surgery was required. He also had the word "dog" tattooed on his forehead in green ink. 22Dr Angelo Tsirbas, an ocular plastic surgeon reported that the victim has a severe disability in the vision of his left eye so as to be classed as legally blind in that eye. 23The sentencing judge described the factual circumstances as demonstrating "the sickening nature of the offence." His Honour was satisfied that the offender organised for several of his co-offenders to bring the victim to the premises in Murragan Street. Once inside the victim who was 18 years of age was outnumbered and vulnerable. His Honour was satisfied beyond reasonable doubt that the offender then subjected the victim to a brutal bashing that commenced shortly after midnight and did not end until he was taken to the hospital at 7.30 am. Part of the brutality included a threat by the offender that he would be overdosed and left to die. The offender threatened the victim indicating that he and his family would be killed if he spoke to the police. The sentencing judge found that the offence was aggravated by a number of factors including the actual use of a weapon (the baseball bat) and that gratuitous cruelty was involved. His Honour also regarded the use of the tattoo gun as an aggravating feature. His Honour was satisfied that the victim suffered substantial injury and emotional harm well in excess of the actual bodily harm which his Honour described as an element of the offence. His Honour said: "During the period of about 7 hours, so completely broken was the spirit of the victim, that he ultimately told the offender what he believed the offender wanted to hear." 24His Honour was also satisfied that: "Callous and calculating nature of the offending conduct was further demonstrated in the act of the offender telephoning Robert Menz, the victim's friend, so he could hear the screams of the victim in the background and threatening Menz this was going to happen to him." 25His Honour found that the applicant was the ring leader of the criminal enterprise and that his co-offenders were in fear of him and concerned for their own safety if they opposed the applicant's actions. His Honour concluded that the case fell just outside the worst category of offence of its kind, but, mindful of the fact that the applicant had ordered his co-offenders to take the victim to hospital ultimately concluded that the offence "falls towards the very high end of the range but just short of worst case category." 26The applicant was aged 35 at the time of sentencing. He has a criminal record for a variety of offences including common assault, custody of a knife in a public place, contravening an apprehended violence order and driving whilst disqualified. He has on previous occasions breached his parole conditions. Following his previous incarceration he was released from custody on 20 February 2010. The offences the subject of the present proceedings were committed 2 days later. 27The sentencing judge concluded that the applicant's conduct "displayed a viciousness and callousness not often seen." His Honour said that "when giving evidence I did not detect any feeling of sympathy for the victim's suffering during the offence or indeed empathy for the continuing psychological damage the victim would experience in the future." His Honour concluded that he was unable to make a finding that the applicant had good prospects of rehabilitation nor that he would be unlikely to re-offend. 28The applicant pleaded guilty and although the plea was entered at a relatively late stage his Honour allowed a discount of 10% for the utilitarian value of the plea. His Honour was not persuaded that there were special circumstances.

Ground 1: To that extent the trial judge's summary of the defence case was also inadequate. 29Under this ground of appeal the applicant challenges the sentencing judge's finding that the applicant was the ring leader and that his co-offenders were afraid for their own safety. It was submitted that the evidence could not support these findings and furthermore that the propositions were not put to the applicant during the course of his cross examination. It was submitted that accordingly his Honour erred in having regard to these matters in his assessment of the objective gravity of the offence. 30The sentencing judge was also responsible for sentencing the applicant's co-offenders. In the remarks on sentence for those offenders his Honour indicated that he was satisfied that each of the co-offenders had been afraid of the applicant at the time of the offence. It is apparent from the transcript of the hearing in relation to the applicant that when he gave evidence he was asked questions by his own counsel in which he acknowledged that he knew from the Crown case statement and from the material that his co-offenders tendered in their own proceedings, that the other offenders had said they were fearful of the applicant at the time Mr Jiminez was detained. In the course of submissions in this Court the applicant's counsel acknowledged that his Honour had sentenced the other offenders and was accordingly familiar with the circumstances of the offence. It was implicit if not expressed that counsel acknowledged that his Honour could have regard to his findings in the other proceedings when sentencing the applicant. Counsel acknowledged that he could not submit that the applicant should be sentenced at the level of the other offenders indicating "that's clearly not an available submission, his role is significantly greater than that of the others who have been previously sentenced." Counsel also acknowledged that his client had "an extensive criminal history, extending over many years." 31In these circumstances I am satisfied it was plain to the applicant's counsel that after having regard to all of the evidentiary material which counsel acknowledged was available to the sentencing judge his Honour would find that the applicant was the ring leader of the enterprise and that the co-offenders had participated because of threats made against them by the applicant. I am not satisfied that his Honour erred and would reject ground 1 of the appeal.

Ground 2: the sentence is manifestly excessive 32There can be no doubt that the applicant committed a very serious offence. The victim was seriously injured in the course of the events and has been left legally blind in his left eye. He was brutally bashed with a baseball bat and detained for more than 7 hours. Apart from the physical injuries he was threatened with death. Death threats were also made against his family if the matter was reported to the police. 33Apart from the other substantial physical injuries and emotional harm the applicant inflicted a large tattoo of the word "dog" on the victim's forehead. The applicant was the ring leader of the enterprise. 34The applicant said he committed the offence because he had felt "a bit upset" when he learned of the sexual relationship between his former partner and the victim. He also said that he was "off his head" on drugs or alcohol at the time. To my mind neither of these matters justified or ameliorated the seriousness of the offence. Apart from the primary offence his Honour also had to have regard to the matter on the Form 1. The offence was committed within 2 days of the applicant being released from custody having previously breached his parole. His objective circumstances include a criminal history which demonstrate persistent disregard for the law. The sentencing judge was not satisfied that the applicant would not re-offend. 35In all of these circumstances I am not persuaded that the sentence which his Honour imposed was erroneously excessive. 36In the result I am of the opinion that the applicant's application was entirely without merit. I would refuse leave to appeal. 37LATHAM J: I agree with McClellan CJ at CL. 38HARRISON J: I agree with McClellan CJ at CL.

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