SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant pleaded guilty on 7 April 2006 in the District Court at Southport to one count of burglary and, on a separate indictment, to two counts of kidnapping, two counts of grievous bodily harm and one count of assault with intent to commit a crime.  He also pleaded guilty to a summary charge of possession of a small quantity of cannabis.  He was sentenced to five years concurrent imprisonment for each of the offences of kidnapping and grievous bodily harm which occurred first in time.  In respect of the kidnapping offence he was declared to be convicted of a serious violent offence under Part 9A Penalties and Sentences Act 1992 (Qld).  He was then sentenced to three years imprisonment for each of the kidnapping and grievous bodily harm offences which occurred second in time.  In respect of this kidnapping offence he was also declared to be convicted of a serious violent offence.  He was sentenced to two years imprisonment for the serious assault.  Those three terms of imprisonment were concurrent with each other but cumulative on the five year terms of imprisonment.  He was also sentenced to one year concurrent imprisonment for the burglary offence and not further punished in respect of the drug offence.  As the offences on the five count indictment constituted a breach of a recognizance release order after he had served eight months of a two year sentence imposed on 21 October 2002, the judge also revoked that order and sentenced the applicant to imprisonment for the remaining period of 16 months, to be served concurrently with the other sentences imposed.  The applicant's effective total sentence for all his offending was eight years imprisonment.  Because of the declarations he will have to serve 6.4 years[1] before becoming eligible to apply for post-prison community-based release.

[2] The applicant, who is now self-represented, contends that his sentence is manifestly excessive.  His principal complaint is that he should not have been declared to be convicted of serious violent offences in respect of the kidnapping offences.

[3] He was 32 when he committed the burglary offence, 34 when he committed the remaining offences and 36 at sentence.  He has a considerable criminal history including terms of imprisonment, although no previous convictions for offences of violence.  He was first convicted as a young man in 1989 in the Dubbo Local Court of stealing, imposition and stealing from the person.  He was convicted of other minor offences of dishonesty in New South Wales in the 1990s.  In 2002 in the Port Macquarie Local Court he was sentenced to two months imprisonment for failing to comply with a community service order.  On 21 October 2002 in the District Court at Southport he was convicted of unlawful use of a motor vehicle and sentenced to six months imprisonment.  He was also convicted and sentenced to two years imprisonment to be released after serving eight months on recognizance to be of good behaviour for three years for two counts of defrauding the Tax Office by lodging false returns and one count of attempting to defraud the Tax Office.  It was this recognizance that was breached by his commission on the offences of the five count indictment now before this Court.

[4] I turn now to the circumstances concerning the offences the subject of this application.  The offence of burglary occurred on 31 January 2002 when the applicant entered his former de facto wife's home and stole property worth about $12,000.  He was not charged with the offence until 12 May 2003.  He had already served terms of imprisonment in New South Wales and Queensland for these offences related to his former partner's property at about this time.

[5] He was on bail for the offence of burglary when he committed the remaining offences, which are of much greater community concern.  In the early hours of 28 February 2004 the 22 year old female complainant was returning to her home after a night out with friends.  The applicant was driving in his car and offered her a lift.  She refused and continued walking on her way.  He again offered her a lift.  She thought he was a security guard because of his fitted black T-shirt and because he appeared to be stopping in front of premises and checking them.  He suddenly ran around behind his car towards her.  He was holding a 25 cm long knife with jagged edges.  She feared for her safety and screamed.  He said "Stop screaming or I will kill you."  She said:  "Please don't.  Please don't."  He grabbed her arm and guided her towards and into the boot of his car.  He closed the boot, locking it so she could not get out.  She was in great fear for her safety.  He drove off.  She rang triple 0 on her mobile phone and requested help.  After about 15 or 20 minutes of trying to open the boot latch she finally succeeded.  She escaped by jumping out of the moving vehicle.  She landed heavily on the road.  She fled and hid.  She used her mobile phone to again call police.  Once she was safe with police officers she realized she was badly injured and they took her immediately to hospital.  In jumping from the moving vehicle she suffered abrasions to her face, shoulder, buttocks, left hand and both feet.  Residual scarring and disfigurement even with treatment remains likely.  Photographs were tendered at sentence of her extensive injuries.  She was four weeks pregnant at the time of the offences.  She terminated the pregnancy following medical advice that the foetus may have been injured when she jumped from the car.  She was in great physical pain for two weeks and, as would be expected, has suffered very significant emotional and psychological disturbances after this terrifying encounter.

[6] Unfortunately the applicant was not immediately apprehended and he struck again about two months later.  On 24 April 2004 another 22 year old woman was walking in Surfers Paradise about 3.00 am when the applicant ran at her holding a knife with an eight to 10 cm long blade with jagged teeth.  She screamed and tried to push the knife away from her body, cutting her hand.  He pushed some thick woollen material into her mouth to muffle her screams and dragged her towards his car.  He bundled her into the back seat through the passenger side door saying "I'm not going to hurt you.  Just come with me".  She continued to scream and yell for help.  He pushed her head down and closed the door.  She struggled but he overpowered her with great force.  She tried to open the door to escape but it was locked.  He placed a necktie around her head to cover her mouth which was still gagged.  He put a small blanket over her body and told her to lie down and keep still.  A Good Samaritan, the complainant in the serious assault charge, opened the rear door of the car and asked if everything was alright.  The appellant punched this man three times to the head.  Thanks to the bravery of this concerned citizen, the young woman was able to escape and run for help.  Police arrived and she received medical assistance for her injuries.  She had abrasions to her back and a cut to her right ring finger resulting in tendon damage, which later required surgery.  Without treatment her hand would have been permanently injured.  She too has suffered significant ongoing physical and emotional harm.

[7] Police were given the applicant's car registration number and they attended at his residence.  He fled but was later apprehended.  Police found the knife used in the offences and the second complainant's shoe inside a drain outside his home.  They also found a small quantity of cannabis in his possession.

[8] He participated in a record of interview.  In relation to the first offences he said he had been on "speed" and did not have a clear recollection of his conduct.  He said he committed the offences because he wanted to get himself into trouble;  he was "totally off me face" and "pretty angry with females" and that he wanted the complainants "to feel how short life is".  He said he wanted to scare them but not to bash, rape or murder them.  In relation to the second set of offences he repeated his assertion that he had no intention of hurting the complainant.  He claimed he committed the offences on the spur of the moment.  He said he did not intend to have sex with or to kill or hurt either complainant but rather to punish himself and his former partner who had previously committed suicide.  He also admitted punching the brave man who came to the aid of the second complainant.

[9] The prosecutor at sentence submitted that, taking into account the applicant's timely plea of guilty, an effective term of imprisonment for all offences was seven years imprisonment with a declaration under Part 9A and that this should be cumulative upon the outstanding 16 month term of imprisonment in respect of the recognizance order imposed on 21 October 2002.

[10]  The applicant's counsel at sentence tendered a report from psychologist Mr Peter Perros which described the applicant's dysfunctional background and his distress at discovering at age 24 that he had been adopted.  Mr Perros considered that the applicant has suffered depression for some time and may need medication for that condition.  He is also in need of psychological therapy and ongoing counselling.  He has been particularly affected by the suicide of a former partner.  Defence counsel emphasized that the applicant had been in lengthy pre-sentence custody during which time he was assaulted by another inmate;  the present offences were committed at a time when he was abusing amphetamines and alcohol and these substances caused him to act in a way which was out of character.  He expressed remorse for his actions.  The applicant had indicated an early desire to accept responsibility for the offences but did not plead guilty immediately because of legal advice as to the appropriateness of the charges laid.  Once these matters of law were ruled upon he then pleaded guilty.  Counsel emphasized the applicant's lack of prior criminal history for violence and the unplanned nature of the offences.  He submitted that an effective sentence of five years imprisonment without a declaration and without any accumulation of penalties was open.

[11]  The sentencing judge considered the kidnapping and grievous bodily harm offences as extremely serious, noting that both complainants had suffered greatly as a result of the offences.  His Honour rejected the applicant's contention that he did not intend to harm the complainants.  Because of issues of totality the judge determined that it was not appropriate to make the sentences imposed for the new offences cumulative on the term of imprisonment under the breached recognizance release order.  His Honour considered that "the armed abduction of two strangers, including the gagging of one and the restraint of the other in the boot and the force used, amounts to offences that warrant the appellation of seriously violent" and so made declarations in respect of those offences under Part 9A.  The judge observed that the applicant's offences of kidnapping fell within the worst category of kidnapping offences particularly as there were two victims and that the maximum penalty for the offence of kidnapping is seven years imprisonment.

[12]  The judge was right to consider the applicant's offences of serial kidnapping were in the worst category of that offence.  The forcible detention off the street of young women unknown to the offender in the early hours of the morning by bundling them into the boot or back seat of a car whilst threatening or using a large knife is most serious criminal conduct warranting condign punishment.  Both young women suffered serious physical and emotional harm.  The second series of offences, only two months later, were compounded by the applicant's attack on a courageous citizen who intervened to assist the second complainant.  The quite separate nature of the two series of offences made the cumulative imprisonment imposed by his Honour entirely appropriate.  A further aggravating factor was that the offences on the five count indictment were committed whilst the applicant was on bail for the burglary offence and the subject of a recognizance order.  He was a mature man with a considerable criminal history.  The only mitigating factors were the absence of prior like convictions and the plea of guilty.  The judge moderated the total period of imprisonment he might otherwise have imposed (two cumulative terms of up to seven years imprisonment) because of principles of totality and the few mitigating factors by imposing cumulative five and three year terms of imprisonment.  He further moderated the effective sentence by not ordering that the penalty for the offences on the five count indictment be served cumulatively upon the unserved term of imprisonment under the breach of recognizance order of 21 October 2002 or upon the term of imprisonment for the quite distinct offence of burglary.

[13]  There are fortunately no other cases to which we have been referred closely comparable to the terrifyingly disturbing combination of circumstances revealed in the applicant's offending.  The cases to which the respondent has referred us, R v A[2] and R v El-Masri[3] support in a general way the sentence imposed here.

[14]  The applicant has not demonstrated that the sentencing judge erred in the exercise of his discretion in declaring the applicant to be convicted in respect of the kidnapping offences of serious violent offences;  nor has he demonstrated that those declarations had the effect of making the sentences imposed on 7 April 2006 in any way manifestly excessive.

[15]  I would refuse the application for leave to appeal against sentence.

[16]  JERRARD JA:  In this application I have read the President's reasons for judgment and proposed order, and respectfully agree with it.  Mr Von Pearson made it clear in his careful oral argument that he accepted that the eight year head sentence was in the general range of a head sentence that he had expected to receive, and that his complaint was that the declaration that he had been convicted of two serious violent offences produced a manifestly excessive result.

[17]  He pleaded guilty to those two offences of kidnapping, and accordingly accepted that by his conduct he had satisfied the necessary elements of those offences.  In the circumstances both were serious offences, and both were committed with an accompanying use of overpowering force or violence that resulted in grievous bodily harm to the victim.  In circumstances where Mr Von Pearson almost certainly faced a head sentence in excess of 10 years had he been convicted only after a trial of the offences to which he pleaded guilty, he cannot sustain the argument that the overall result of the exercise of the discretion to make those two declarations resulted in a manifestly harsh sentence.

[18]  The carefully prepared psychologist's report presented on his behalf to the learned sentencing judge revealed that Mr Von Pearson has been very deeply affected by traumatic events in his adult life, even though he has held responsible employment positions.  The fact the psychologist suggested that he needs ongoing counselling means that Mr Von Pearson needs to make a considerable effort for him to be an acceptable risk for release on parole.  His offending behaviour showed a great deal of anger and determination to capture a young woman as his prisoner, and either he has no insight into the reason for that, or he has not given the real explanation.  In oral argument he did not reveal any actual sympathy for either of the female victims, as opposed to an intelligent recognition of the strategic value of not putting either of them in the witness box.

[19]  KEANE JA:  I agree with the reasons of the President and with the order proposed by her Honour.