SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Holmes JA.

[2]  HOLMES JA:  The applicant, Jonathon Richwood, pleaded guilty to a number of offences: assault occasioning bodily harm while armed, deprivation of liberty, disabling with intent, wilful damage, attempting to destroy property by explosives, attempt to injure by explosives, extortion with a circumstance of aggravation, unlawfully depositing explosives, possession of more than 10 weapons, at least five of which were category R weapons, and two summary charges of failing to correctly store explosives and manufacturing an unauthorised explosive.  He was sentenced to 10 years imprisonment on the extortion charge (an offence to which no automatic declaration of a serious violent offence attaches), eight years on each of the attempting to destroy property by explosives and attempt to injure by explosive counts, with a declaration of a serious violent offence in respect of the latter, and six years in respect of each of the assault occasioning bodily harm while armed and disabling with intent counts, both with serious violent offence declarations.  Lesser sentences of imprisonment were imposed on the remaining charges.

The Offences

[3] The circumstances of the offences were bizarre.  On 20 December 2004, the applicant booked into a room at a set of hotel apartments at Labrador, on the Gold Coast.  On 23 December, he made a number of bookings for babysitters and prostitutes to attend his room at hourly intervals.  The first to arrive was a 24 year old babysitter who had been sent by a reputable agency.  The applicant, who was in fact alone at the premises, represented to her that he was waiting for his wife to return and that his children were sleeping.  He offered the young woman a drink, which she refused.  Then he hit her with a plastic bag containing a heavy object with the aim of knocking her unconscious (the assault occasioning bodily harm count).  She suffered a minor laceration to the head.

[4] The woman attempted to leave the premises, but the applicant pushed the door shut and would not let her go (the deprivation of liberty count).  When she began to scream, he told her to stop or he would get his gun.  He pushed her up against a wall and tried to strangle her (disabling in order to commit an indictable offence).  Probably as a result of this assault, the victim sustained a fracture to a cervical vertebra. She managed to get away from him and get to her handbag, in which there was a phone.  The applicant went into another room and returned with a knife with a 30 cm blade.  The young woman managed to fight him off by pushing chairs in between them and throwing whatever came to hand at him.  Eventually she managed to run to the front door, open it and escape. A victim impact statement tendered at the sentence indicated that she had, not surprisingly, developed post-traumatic stress disorder as a result of her experience.

[5] On the young woman’s raising the alarm, the police were called and took up positions outside the applicant’s apartment.  The applicant yelled at them not to try entering the room, because he had explosives and hostages. A siege situation ensued, and continued for about 17 hours. The hotel, which was fairly full, was evacuated. An area outside it had to be cordoned off, with considerable disruption of that area of the Gold Coast. Over the first few hours, babysitters and prostitutes, whose attendance had been arranged by the applicant, were intercepted as they turned up for their supposed appointments.  Meanwhile the police searched the applicant’s home and found weapons and ingredients for explosives.

[6] While in the apartment, the applicant set up video cameras, sealed the front door with a sealant and painted the windows with a substance designed to block any view in through them (wilful damage). He positioned furniture so as to blockade the room and set booby traps, using home made bombs containing nails as shrapnel (attempt to destroy property by explosives, attempting to injure by explosives).  During the protracted negotiations he continued to maintain that he had hostages.  He made a number of threats: to kill the police if they entered, to detonate bombs in the room, to launch a rocket launcher at a yacht in the nearby Broadwater, to detonate explosives on the roof of the hotel and to throw explosives from the side of the building into the street.  He demanded $10,000 (the extortion count).  Early in the morning of 24 December, a small explosion was heard in the room (unlawfully depositing explosives).  At about 10.45 am on that day, the applicant surrendered to the police.

[7] In the police interview which followed, the applicant said that he had not slept for some days; that he had booked into the room after receiving threats from people to whom he owed money; and that he had taken with him materials and weapons from his home: a grenade launcher, a home made shot gun, a rocket launcher and a rocket, two flame throwers, four bombs and four hand grenades.  He had made the bookings with the babysitters and prostitutes and intended to give each of his victims a spiked drink in order to make them hostages.  He admitted to the struggle with the young woman who did attend, but denied that he was going to stab her, and made a risible claim of self-defence.  He admitted that during the night he had re‑wired and moved booby traps around the room.  The small explosion in the morning had been to release some pressure on one of the explosives, but also to convince the police that he meant business.  He said that he did not understand his own actions, but he was motivated by a desire to feel safe.

[8] Police on entering the room found explosives, weapons and a number of devices designed for restraint of hostages.  It took over 15 hours to clear the room. The weapons and explosives were homemade, consisting of improvised flame throwers, firearm devices, explosive devices, a rocket launcher and a rocket device, all volatile.  They required controlled explosions, which were undertaken in a car park area outside the hotel, and presented a considerable risk to the team undertaking their removal and destruction.  The police also found a demand written by the applicant, purporting to be from the “sacred warriors of the apocalypse”, and a set of notes, apparently an aide-memoire, listing the steps he planned to take and the telephone numbers he needed to ring.

The applicant’s background

[9] The question of soundness of mind was referred to the Mental Health Court.  The psychiatrists who examined the applicant for the purpose of the reference agreed that he had developed a psychotic state with delusions of persecution in the context of increasing drug abuse.  The issue was whether he was intentionally intoxicated so as to preclude a finding of unsoundness under the Mental Health Act 2000 (Qld). From the reports of the examining psychiatrists, it emerges that the applicant had been abusing benzodiazepines and opiates for some years. He reported a nine to ten year history of use of oxazepam for anxiety, although from 2003 his general practitioner had told him that his use was excessive. In late 2004, he had been prescribed Endone, a narcotic, for a hand injury requiring surgery. In addition, he had been taking anti-depressants for two years. In the period leading up to the offences, he had been taking massive amounts of those drugs.  In prison he had not been prescribed or taken any psychotropic medication and had recovered quickly from his psychosis.  The Mental Health Court concluded that he was not of unsound mind and was fit for trial.   

[10]  The applicant was 45 years old. He had run his own business repairing computers, which had failed, causing him to commit a series of frauds. On 2 November 2005 he had been convicted on several fraud counts, involving a course of conduct over almost six years and a deficiency of some $100,000. He was sentenced to two years and six months imprisonment to be suspended for three years after serving six months imprisonment.  Because the applicant at that stage had spent 314 days in custody in respect of the siege-related charges and it was by no means clear what the outcome of the Mental Health Court reference would be, the judge dealing with the fraud charges took the period into account, explaining that he would otherwise have suspended the sentence after 10 months.

[11]  However, the prosecutor at the sentence under appeal informed the court, without qualification, that the 314 days served prior to the fraud sentence had been taken into account, so that the only time which could be declared on the sentence for the siege-related matters was 316 days dating from the applicant’s release from custody on the fraud sentence.  It seems quite clear that that was an error.  Counsel for the Crown here conceded as much, suggesting that the period from 24 April 2005 (four months after the applicant was taken into custody) to 2 November 2005 (when his earlier sentence commenced), amounting to 192 days, be declared.  Counsel for the applicant, on the other hand, argued that the judge sentencing for fraud had simply made a general allowance, which should not affect the declaration of the entire 314 days up to the commencement of the fraud sentence, as well as the 316 days after its finish.

The sentence hearing

[12]  At sentence, the prosecutor submitted that the appropriate range for sentence was 12 to 14 years, and he sought declarations of serious violent offences in relation to those offences for which such a declaration was available. Counsel for the defence tendered a letter from the applicant in which he apologised for his actions and expressed remorse, a letter from his sister who described the applicant’s conduct as out of character, and a reference from a co-attender at a Christian Fellowship who spoke highly of him.  The applicant had completed a TAFE subject while on remand. Defence counsel submitted that the appropriate head sentence was one of eight to nine years imprisonment, without any declaration. 

[13]  The learned sentencing judge comprehensively reviewed the facts and the material placed before him.  He accepted that the offences were out of character and were committed while the applicant was in an abnormal state of mind brought about by abuse of prescription drugs.  He made the point, however, that that abuse had extended over a very long period of time and resulted from the applicant’s own decision to consume those drugs to excess.  Although it was the case that no one but the babysitter was injured, that was, his Honour said, thanks to her spirited resistance and escape, and the skill of the police negotiators.  The offences had presented a threat to the safety of many people, both during the siege and in the course of removal of explosive material later, from both the hotel room and the applicant’s residence. 

[14]  If the applicant were to come under the influence of opiates again, and if he were stressed, the learned judge considered, he would be capable of committing similar offences and thus must be regarded as a violent and dangerous individual.  The counts of assault occasioning bodily harm and disabling in order to commit an indictable offence warranted serious violent offence declarations because of the nature of the attack on the victim and the intention to render her insensible so that she could be used as a hostage.  The charge of attempting to injure by explosives also warranted a declaration because of its potential for serious injury to a number of people.

Submissions on appeal

[15]  Counsel for the applicant, Mrs Ryan, submitted that the sentencing judge’s finding that the applicant would remain capable of committing such offences under the influence of opiates was not supported by the evidence. She relied on a number of cases to demonstrate that a starting point in a range of 12 to 14 years imprisonment (put forward by the prosecutor and apparently accepted by the sentencing judge) was too high.  Those cases, although they did not all concern the same offences as those charged here, were said to involve offending of an equivalent level of seriousness.

[16]  One was a first instance decision, R v Green.[1]  The defendant in that case, who had an extensive criminal history, faced a number of indictments, the first for offences of dishonesty, from which later offences stemmed.  The defendant, believing that his ex-wife had given evidence to the police, threatened and stalked her and burgled her house, stealing all her property. For the same reason he engaged, over a period of a couple of weeks, in a number of instances of holding people against their will.  In the first, he held two people at gunpoint; on the second, he spread petrol about his ex-wife’s house and put down lit cigarettes and matches as incendiary devices; on the third, he held an 11 year old girl as a hostage for 22 hours in a siege situation.  He was armed with a loaded rifle which was discharged at some stage.  That offence was charged as burglary while armed; the other offences involving sieges were charged as offences of threatening violence and a bomb hoax.  No physical violence was actually done to anyone in the course of those offences.  On the burglary offences he was sentenced to seven years and four months imprisonment with a parole eligibility date after 16 months, both head sentence and parole eligibility date being reduced to allow for 20 months in custody which could not be declared.

[17]  The applicant also relied on R v El-Masri,[2] in which the applicant was sentenced to five years imprisonment for kidnapping for ransom, with lesser sentences on charges of deprivation of liberty and assault occasioning bodily harm in company. He procured two men to assault the complainant, tie him up and put him in the boot of a car in an attempt to recover a drug debt.  The sentence was upheld on appeal.  In R v Chapman[3] the applicant, while on a suspended sentence imposed for stalking the complainant with a weapon, broke into the complainant’s house and waited for her in her bedroom with a knife.  He held her there in a headlock with a knife at her throat threatening to kill her.  Eventually he relaxed his hold and she escaped.  There was a brief stand off with police while he held the knife to his own throat before surrendering.  A sentence of six years imprisonment in respect of charges of burglary, wounding and deprivation of liberty with parole eligibility after two years was upheld. 

[18]  In R v Drinkwater[4] the appellant was convicted of extortion, wilful damage and arson.  It seems that the complainants in that case must have been vulnerable as drug users, because over a period of two days they complied with the appellant’s demands that they drive him around and get money by pawning their own property for him to get drugs.  The appellant was sentenced to six years imprisonment with a recommendation after two and a half years, a sentence which was upheld on appeal.  In R v Stratton[5] the appellant was sentenced to nine years imprisonment after a trial on one count of extortion. He had set up a businessman with a prostitute, videotaped them having sex and threatened to reveal the video tape.  On appeal, his sentence was reduced to seven years.

[19]  Mr Byrne, for the Crown, submitted that it was appropriate to attach the global head sentence to the extortion offence, since it carried the highest maximum penalty. But, he pointed out, since the offence of extortion was not one contained in the schedule of serious violent offences, the effective sentence was one of 10 years imprisonment with a parole eligibility after 6.4 years (that being the effect of a serious violent offence declaration attached to the eight year sentence for attempting to injure by explosives).  The head sentence and the making of the serious violent offence declarations were appropriate, given the circumstances of the offending, the planning and preparation involved and the need for the future protection of the community.

[20]  Mr Byrne relied particularly on the case of R v Andrews,[6] in which the applicant, convicted after a trial of one count of attempting to strike with a projectile with an intent to cause grievous bodily harm and another of extortion, was sentenced to 12 years imprisonment on each count to be served concurrently.  Andrews was 28 years of age and had drug convictions, but no convictions for violence. He and an accomplice had subjected the complainants to various forms of harassment: leaving canine excrement at the house of one, setting a fire in the yard of another and making harassing phone calls to both.  They demanded payment of $30,000, which they went to collect, armed and carrying an explosive device. The police were waiting for them; the accomplice fired at the police, who returned fire; the accomplice was seriously wounded.  The maximum sentences were, for the offence of extortion, 14 years and for striking with a projectile, life imprisonment.  A sentence of 12 years imprisonment was upheld by the Court of Appeal.

[21]  This case, in my view, involves more serious offending than is involved in any of the cases referred to by counsel for the applicant, for a number of reasons.  Unlike any of those cases, the offence of extortion as charged here carried circumstances of aggravation: that it was accompanied by threats which, if carried out, would be likely to cause loss of life, serious personal injury and substantial economic loss in a commercial activity.  The prosecution of a count with those circumstances of aggravation requires, and in this case attracted, the consent of the Attorney-General.  It carried life imprisonment.  

[22]  The case is also set apart on its facts from the decisions referred to by both counsel. It combined both actual and potential harm, to the individuals involved and to the wider community.  Actual harm was suffered by the immediate victim, the babysitter, who suffered both physical and emotional injuries; the police, who were involved in the stress and tension of negotiations and explosive removals; and the public in, and in the vicinity of, the hotel apartments, who were subjected to the attendant disruption.  The potential for harm was grave: to the victims, actual and proposed, whom the applicant sought to lure to his room; to the police, who were exposed at close quarters to the explosives; and to the general community, should there have been an explosion.  There was considerable planning involved in the offences. The proposed hostages in the applicant’s scheme were particularly vulnerable: unsuspecting people going about their business, to be drugged and used for his aims.

[23]  The extraordinary circumstances of this case, in my view, warranted consideration of a head sentence of between 12 and 14 years imprisonment. But there were mitigating factors.  The applicant had a previous good history until his decline into abuse of prescription drugs, which played, it appears, a part in his earlier fraud offences.  There was some basis for optimism as to his rehabilitation.  It seemed probable that his addiction had been broken by the time spent in custody.  The sentencing judge appropriately recognised those factors by lowering the head sentence to 10 years.

[24]  There was ample basis for the making of the serious violent offence declarations. His Honour gave considered, thoughtful reasons. The matters he referred to - the violence of the attack on the babysitter and its purpose, and the risk of serious injury to a great number of people inherent in the placing of the explosives in the hotel -were proper indicators of the seriousness of the relevant offences, which were certainly out of “the norm”. The finding that under stress the applicant would remain capable of committing such offences under the influence of opiates was justified.  Expert evidence was not essential in order to conclude that there remained a risk that an individual with the applicant’s history of addictive behaviour would resume abuse of prescription drugs, and that, if he did so, similar conduct could result.  The need for community protection was thus properly taken into account. The declarations did not render the actual time to be served in custody excessive, having regard to the offending as a whole.

[25]  There is no basis on which to interfere with the learned judge’s exercise of sentencing discretion. The sentence should be varied only to the extent of altering the declaration of time spent in custody as to which his Honour was misinformed.  As to the period which should be declared, Mr Byrne’s contention that the applicant ought not to benefit twice, by being given credit again for the four months allowed for by the sentencing judge in respect of the fraud charges, is sound.

Orders

[26]  I would make the following orders:

1.Leave to appeal against sentence granted.

2.Appeal allowed only to the extent of deleting the declaration as to time spent in pre-sentence custody and substituting the following:

The applicant was held in pre-sentence custody between 24 April 2005 and 2November 2005 and between 2 May 2006 and 16 March 2007, a period of 510 days, which is declared imprisonment already served under the sentences imposed.

[27]  ATKINSON J:  I agree with the orders proposed by and the reasons of Holmes JA.