THE SUPREME COURT OF THE NORTHERN TERRITORY SCC THE QUEEN. and WILLIAM NICOLAS O DONNELL. (Sentence) RILEY CJ TRANSCRIPT OF PROCEEDINGS

Transcription

1 N.B. Copyright in this transcript is the property of the Crown. If this transcript is copied without the authority of the Attorney-General of the Northern Territory, proceedings for infringement will be taken. THE SUPREME COURT OF THE NORTHERN TERRITORY SCC THE QUEEN and WILLIAM NICOLAS O DONNELL (Sentence) RILEY CJ TRANSCRIPT OF PROCEEDINGS AT DARWIN ON THURSDAY 30 OCTOBER 2014 Transcribed by: Merrill Corporation 1

2 HIS HONOUR: Mr O Donnell, you have pleaded guilty to four offences which occurred in January 2014 at Litchfield Park. The first of those is that you assaulted a female, to whom I will refer to as NR, who was threatened with a knife. The maximum penalty for this offence is imprisonment for 5 years. The second was that you assaulted her male friend, JC, who was also threatened with a knife. The maximum penalty for this offence is also imprisonment for 5 years. The third is that you assaulted her female friend, JD, who was threatened with a knife. Again, the maximum penalty for this offence is imprisonment for 5 years. The final and most serious offence was that you detained NR against her will. The maximum penalty for this offence is imprisonment for 7 years. You are a 42 year old man who came to Darwin seeking work a few months before the offending. You had undertaken work as a tour guide, taking people to Litchfield National Park. The victims of your offending were backpackers who made arrangements with you to go on a guided tour to Litchfield. NR is a 25 year old female backpacker from England. JC is a 19 year old male backpacker from Germany and he was travelling with JD, a 19 year old female backpacker, also from Germany. You first met NR to whom you were sexually attracted. She resisted your advances. On 21 January 2014, the group left Darwin after hiring a motor vehicle and purchasing supplies. You headed for camping grounds in Litchfield National Park. That evening, after set up camp, the group ate dinner and you consumed alcohol. You asked NR whether she wished to sleep in your tent, and she agreed to do so, on the basis that you slept separately. During the evening, you made advances of a sexual nature towards her, but she refused your advances. Thereafter, you acted in a way that has been described as stand-offish towards her. She told her German companions of your conduct and they agreed that they would not leave her alone with you. During the day, the group, led by yourself, explored various sites within the park. You were angry and you refused to engage with the group. You consumed more alcohol and became intoxicated. You became increasingly aggressive towards the group and your aggression increased when NR advised you that she intended to leave the group the following day. You demanded money from the backpackers to pay for fuel. You were swearing and yelling abuse. At one point, you produced a cooking knife with a 15 2

3 centimetre blade. You threatened the backpackers, saying that you did not want to hurt anybody, but that if you had to, you would use the knife. Not unnaturally, they each felt fear. This is the conduct which constitutes each of the offences of assault referred to in Counts 1, 2 and 3 on the indictment. At this time, it was raining. JD went to her tent but JC remained in the presence of yourself and NR, to ensure her safety. You continued to consume alcohol and the three of you talked for some time. After a while, you insisted that JC leave, and he did so, after obtaining the approval of NR. You then repeatedly told NR that you loved her and that you wanted to have sex with her. She said she was not interested. She felt that she could not leave because of the anger you had previously displayed. Late that night or early the morning, you asked her to sleep in the motor vehicle with you. She indicated that she would sleep in the toilet block with the two Germans. However, you insisted that she stay in the vehicle with you. It is the time spent in the vehicle that constitutes the offence of deprivation of liberty. She sat in the front passenger seat and you sat in the driver s seat. During the night, you repeatedly moved into her space, cuddled her and attempted to kiss her. She was too frightened to leave the vehicle. I make it clear that you are not charged with any sexual misconduct in relation to the assault offences to which I have already referred. The factors of a sexual nature relate only to the offence of deprivation of liberty. The whole tone of the deprivation was of a sexual nature. At one point, you told her to take her pants off. She jumped out of the vehicle and was crying. You got out of the vehicle and told her to get back in. She did so because she was scared and had nowhere to go. You continued to make sexual advances towards her. She tried on a number of occasions to leave, but you prevented her from doing so. She was visibly upset throughout this period. At some point, you masturbated in front of her. She tried to look away, but you demanded that she look at you. You insisted that she spread her legs. At this point, she opened the door and jumped from the vehicle. She ran into bushland and hid from you. You drove around in the vehicle looking for her, but you were unable to find her. She remained hidden until the following morning when she secured assistance from two tradesmen who were at that location to carry out maintenance work. 3

4 Whilst she was hiding from you, she sustained cuts, ant bites and scratches and she was constantly wet. She was terrified that you would find her and she got little sleep. The tradesmen took her and the German backpackers to the police. You packed up the campsite and drove away, but you were intercepted by police and arrested. That occurred on 23 January, You were taken to the police station where you entered into a record of interview in which you denied being intoxicated and claimed that it was your victim who had attempted to force herself upon you. You were charged and you have remained in custody since your arrest. I have Victim Impact Statements from each of your victims. They each refer to the distressing nature of the offending and the impact that it has had on their lives. They are each hesitant about trusting people and are concerned that something like this might happen again. They had each paid you money for the trip, which, of course, turned out to be a nightmare rather than an enjoyable experience. They lost the money they paid to you. JD left Australia because she was not able to trust anyone here. JC had similar feelings but stayed for a short time. NR continued her travels in New Zealand. You have a criminal history from Victoria, South Australia and Queensland. The history does not include any offences of violence and does not include any offences which have sexual undertones. Most of your criminal history is for dishonesty offences, such as obtaining property by deception, using a motor vehicle without consent, fraudulent conversion, false pretences and representing yourself as a police officer. In addition, you have alcohol-related traffic offences. Although you have been sentenced to terms of imprisonment in the past, the sentences have been suspended on each occasion. Your counsel informed me that your entry into custody in the Northern Territory when you were arrested was your first time in prison. You have now been in custody for a period in excess of 9 months. It has been a very difficult time for you. You spent much of the period in protective custody as a consequence of cooperating with the authorities in relation to an incident that occurred in prison. When you came before the court, you were quite distressed regarding your time in prison. It was submitted to me that you have learned a very significant lesson. You have pleaded guilty. The plea did not come at any early time. It is not clear to me why the matter was not resolved sometime ago. Some delay would have resulted from the fact that this was to be a defended hearing and the victims were out of the jurisdiction. However, it was not until recently that you acknowledged responsibility and offered to plead guilty. 4

5 Prior to reaching that decision, you had been provided with legal representation from at least three separate barristers. Whatever may have been the cause of the delay, it seems to me that the major component rested with you, rather than with any inaction on part of the prosecution. I will give you credit for your plea. It had the positive effect of avoiding the need for an expensive trial and the additional positive effect that the three victims did not have to relive their ordeal. As I have already noted, you are aged 42 years. You were born in Thailand. You were adopted into an Australian family when you were a little over three years old. Although you maintain contact with your family, you are not close to them. You have not been visited by friends or family whilst you have been in custody. You have two children of your own, from two previous relationships. Those children are aged eight and 10 years. You have nothing to do with the children and they are cared for by their mothers. You have had employment in the past. You have been self-employed and you worked in the building and construction industry. You do not have any formal trade qualifications. You described yourself as a jack of all trades. You came to Darwin seeking work and you did some work in the tourism industry. I am told that you have no real savings and no property. When you are free to do so, it is your intention to remain in the Northern Territory and seek employment here. No satisfactory explanation was given for your conduct on this occasion. You accept that your level of intoxication contributed to your conduct. You have only an incomplete recollection of what took place. Your counsel described what you did as a brain snap. You say that you are embarrassed by your conduct and you are disgusted with yourself. Those claims, of course, are to be seen in light of the fact that it was such a long time after the events that you finally took responsibility for what you did. In light of your age, your non-violent history, and the impact that your time in prison has had upon you, I think it unlikely you will offend in this way again. I regard your prospects for rehabilitation as being reasonable. Nevertheless, personal deterrence remains a consideration in determining an appropriate sentence. The offending was, of course, serious. Your actions took place in a remote location, in circumstances where you were intoxicated and you wielded a knife. Your victims were in an environment which was foreign to them and they were in your care. They were dependent upon you. You breached their trust in a significant way. 5

6 Your conduct also reflected in a very negative way upon the Northern Territory and its tourism industry. The sentence I impose must reflect the need for general deterrence, punishment and protection of the community. You have been assessed as suitable for supervision upon your release into the community, subject to a series of conditions to which you have agreed. You will be convicted on each count. I will deal with the discount for your plea in a moment. In relation to Count 1, the assault upon NR, this involved a threat with a knife. In relation to this assault, I adopt a starting point of imprisonment for 4 months. In relation to Counts 2 and 3, the assaults upon JC and JD, these also involved a threat to each with the knife. In relation to each of those assaults, I adopt a starting point of imprisonment for 4 months. In relation to Count 4, the deprivation of liberty, I regard this as the most serious of the offending. It took place in circumstances where NR was detained for a significant period of time, in a remote location where she was extremely vulnerable and where she was fearful of physical violence. She was also fearful of sexual attack. In relation to this offence, I adopt a starting point of imprisonment for 2 years. All of the offending arose out of the one set of circumstances and at the one time. It is necessary for there to be some concurrency. In addition, I bear in mind the totality principle. In the circumstances, I direct that the sentences in relation to Counts 2 and 3 be served concurrently, and those sentences be served cumulatively upon the sentence in relation to Count 1, giving a total of 8 months in relation to Counts 1, 2 and 3. I direct that Count 4 be served cumulatively upon that combined sentence to the extent of 22 months. The total combined sentence is, therefore, imprisonment for 30 months. However, I reduce that sentence, to reflect the plea of guilty, to a term of imprisonment for a period of 24 months. I have considered that period in light of the totality principle and I see no need to further interfere. You will therefore be sentenced to imprisonment for a period of 24 months, deemed to have commenced on the day you were taken into prison, being 23 January I direct that the sentence be suspended after you have served a period of imprisonment of 11 months, dated from that date. The sentence will be suspended for a period of 18 months from the date of your release, on the following conditions: 6

7 1. You must not, during the period of the order, commit another offence whether in or outside the Territory, punishable on conviction by imprisonment. 2. You will be under the ongoing supervision of a Probation and Parole Officer and you must obey all reasonable directions from a Probation and Parole Officer and must report to a Probation and Parole Officer within two clear working days after the order comes into force, that is, after you are released from prison. 3. You must tell your Probation and Parole Officer of any change of address or employment within two clear days after any such change. 4. You must not to leave the Northern Territory, except with the permission of your Probation and Parole Officer. 5. You will not purchase or consume alcohol and you will submit to testing as directed by your Probation and Parole Officer or a Police Officer. 6. You will participate in assessment, counselling and/or treatment, as directed by your Probation and Parole Officer. 7. You will only enter into employment as agreed upon by a Probation and Parole Officer. 8. You will notify a Probation and Parole Officer of any intention to change employment before such change occurs. You did agree to a provision that you would have no contact with your victims but, given that they live overseas, I see no point in making that order. The operational period is 18 months from the date of your release. The effect of all that is that you have been sentenced to imprisonment for a period of 24 months. It will be deemed to have commenced when you went into gaol on 23 January You will be released 11 months after that date under supervision, on the terms that I have set out. Do you understand that? Is there anything arising? MR MORTERS: No. MR MALEY: No, sir. 7