R v El-Masri[2003] QCA 52

SUPREME COURT OF QUEENSLAND

MACKENZIE J:  The applicant pleaded guilty to offences of deprivation of liberty and assault occasioning bodily harm in company committed in late 1999 and offences of deprivation of liberty, kidnapping for ransom and assault occasioning bodily harm in company committed on 20 February 2000.  The same complainant was involved in each of the offences.

It was alleged that he owed $20,000 to the applicant on account of drugs sold on behalf of the applicant.  The late 1999 charges relate to an occasion when the complainant came to Brisbane to see the applicant.  He got into a vehicle occupied by the applicant and others in order to discuss the debt.  He was prevented from getting out and the applicant assaulted him during that period while he was deprived of his liberty.

The February 2000 offences occurred when the complainant was visited by two men, neither of whom was the applicant, and went with them to another house in expectation of a drug purchase.  At that house one of the men said he was a hit man and the complainant was assaulted with an iron bar and a baseball bat.  Money was demanded from him.  He was then tied up in a way that placed him at risk of choking if he moved.

The applicant was telephoned and advised that the complainant had been captured.  The complainant was told that he was lucky that the applicant wanted him alive after which he was blindfolded and struck several more times about the head and put in the boot of the car.  He managed to untie the ropes and remove the blindfold.  However, when it was discovered that he had freed himself he was hit again and tied up extremely tightly.

A threat to shoot him was made but nothing was done because he was told there was a risk of the projectile penetrating the car's fuel tank.  The two men and the complainant then travelled in the car and met the complainant who punched and kicked the complainant in the head and neck.  He asked the complainant how he was going to get the money.  The complainant asked if he could call his mother and during the course of that conversation the applicant said to the complainant's mother that she had until 9 o'clock or the complainant was dead.  He was placed in the boot again but managed to free himself and escape.  He ran to a house nearby and contacted the police.

In the second incident he suffered fractures to the cheeks, and cuts and bruises to the head and arms, leaving scars.  In respect of the second incident the prosecution case was that the applicant was a party to the whole incident. 

On the count of kidnapping for ransom the applicant was sentenced to five years' imprisonment.  On the remaining counts he was sentenced to three years' imprisonment, all to be served concurrently.  He was also ordered to serve the unexpired portion of an intensive correction order which the present convictions breached.  That sentence was also to be served concurrently, which was a somewhat mitigating factor in the circumstances itself.

The applicant submits that the sentence was manifestly excessive with particular emphasis being placed on the argument that he received no benefit for pleading guilty.  It was accepted that the applicant intended to plead guilty to all but kidnapping for ransom but, nevertheless, entered a plea of guilty at a relatively late stage on that count as well.

Reliance was placed on his youth - he was 22 at the time of the offences - and his troubled background as a migrant from Lebanon.  The Crown Prosecutor had submitted below that six to nine years was an appropriate range for the offences.  The applicant's counsel below relied on The Queen v. Watkins and Kennedy [2002] QCA 26.  That case has some factual similarities in the broad sense that the complainant owed a drug debt and was taken from his home by Watkins and Kennedy, kept captive and tortured for the purpose of extorting money from him.

It differs in that there was only one episode.  There is also another significant difference; in the case of each respondent, the three year sentence for torture was cumulative upon effective sentences of four years for carrying on the business of trafficking in cannabis and methylamphetamine in the case of Watkins and 18 months for supplying methylamphetamine and aggravated possession of that drug and LSD in the case of Kennedy.

The judgment of the Court of Appeal expressly said that the effective sentences might properly be described as somewhat lenient even allowing for a plea of guilty.  However, they did not call for correction on an Attorney-General's appeal.  More directly relevantly the Court said the following: 

"Had this Court been faced with a sentence of three years for this torture alone, even following the pleas of guilty, there would have been a strong case for increase on appeal but it is the aggregate sentences to which the Court must now look and the seven year and four and a half year terms are not so low as to warrant adjustment.  On the other hand, as follows, they could not, with any approach to realism, be described as excessive, let alone manifestly so".

It was also said that three years for torture should not be regarded as sitting comfortably in the requisite range.  It should be regarded as a low order penalty which survived appeal only because the Court had to focus on the aggregate terms of imprisonment and the matter was an Attorney-General's appeal.  That case, in my view, provides no safe guidance as to the appropriate level for the particular offence for which we are concerned, except to indicate that, in broadly similar circumstances, the level of three years was too low.

The offence in Watkins and Kennedy, as I have said, was torture.  The offence for which a five year term was imposed in this case was kidnapping for ransom although there was the broad similarity in the circumstances. 

The Crown Prosecutor referred to The Queen v. Carrington and Long, Court of Appeal numbers 329 and 352 of 1985 and The Queen v. Ho, Court of Appeal number 65 of 1990 as examples of the levels of sentencing for kidnapping for ransom offences.  Carrington and Long were resentenced by the Court of Appeal to seven years and six years for a case which involved a home invasion and a husband and a wife being taken at gunpoint with a view to recovering a substantial sum of money allegedly owed by the husband.  No actual violence was inflicted but threats implying that the children of the family were in danger were made. 

Ho involved kidnapping of a child of a wealthy Chinese businessman and holding her for ransom.  No actual violence was used and the motive was to obtain money to prop up a failing business.  A sentence of nine years' imprisonment was not disturbed.

Having regard to the level of sentencing that has been established in the cases just referred to and the fact that  Watkins and Kennedy does not suggest the sentences are out of range, the application, in my view, must fail.  Even if the notional starting point before the mitigating circumstances were taken into account was of the order of six or seven years, I would not regard the sentences manifestly excessive.  It was an offence which was accompanied by considerable violence and infliction of considerable terror on the complainant and arose out of an attempt to recover a debt incurred in illegal activities.  In my view, the application for leave to appeal against sentence should be dismissed.

McPHERSON JA:  I agree.

JERRARD JA:  I agree.

McPHERSON JA:  The application for leave to appeal is dismissed.