Baradi v The Queen

[2018] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Baradi v R [2018] NSWCCA 143

Hearing dates:

21 May 2018

Decision date:

16 July 2018

Before:

Simpson AJA at [1]
Johnson J at [55]
Adamson J at [110]

Decision:

(a) Time for filing the application for leave to appeal be extended to 13 March 2018.
(b) Grant leave to appeal.
(c) With respect to the assault offence under s 61 Crimes Act 1900, dismiss the appeal against conviction.
(d) With respect to the sentences imposed on 11 May 2017, dismiss the appeal against sentence.

Catchwords:

CRIMINAL LAW – appeal – conviction – whether the elements of offence of assault were contained in offence of aggravated break and enter – whether conviction for assault resulted in double punishment – whether criminality of assault wholly encompassed in break and enter offence

 

CRIMINAL LAW – appeal – sentence – whether sentence imposed is double punishment – whether distinct criminality in relation to two offences

  CRIMINAL LAW – appeal – sentence – where offence a serious instance of domestic violence – where significant subjective factors – where starting point of sentence was six years – whether sentence manifestly excessive

Legislation Cited:

Crimes Act 1900 ss 61; 86(1)(b); 112(2)
Crimes (Sentencing Procedure) Act 1999 s 59
Drug Misuse & Trafficking Act 1985 (NSW)

Cases Cited:

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Cherry v R [2017] NSWCCA 150
Davis v R [2006] NSWCCA 392
Homsi, Houssam v R; Karamalakis, Voula v R [2011] NSWCCA 164
Innes v R [2018] NSWCCA 90
Jidah v R (2014) 246 A Crim R 368; [2014] NSWCCA 270
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Campbell and Brennan [1981] QdR 516
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
R v Newell [2004] NSWCCA 183
R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170

Category:

Principal judgment

Parties:

Paul Baradi (Appellant)
Crown (Respondent)

Representation:

Counsel:
T Quilter (Applicant)
M England (Crown)

    Solicitors:
Marsdens Law Group
Solicitor for Public Prosecutions

File Number(s):

2016/225692

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Baradi [2017] NSWDC 175

Date of Decision:

11 May 2017

Before:

His Honour Judge Berman SC

File Number(s):

2016/225692

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant pleaded guilty to one count of common assault and one count of aggravated break and enter and commit serious indictable offence, arising out of offences committed on 26 July 2016. The circumstance of aggravation was that the appellant knew that persons were present in the premises. The serious indictable offence the appellant was alleged to have committed while therein was detain a person, without consent, with intent to obtain an advantage, an offence against s86(1) of the Crimes Act 1900 (NSW) .

The appellant kicked in the door of a hotel room and entered the room. He took a mobile phone from the complainant and said ‘Come on, get up’. On the Crown case, as accepted by the appellant in the District Court, this conduct constituted the aggravated break and enter charge. The appellant took the complainant by her wrists and walked her out of the room, 20m to the lift. This conduct constituted the assault charge.

The appellant filed an appeal against the conviction for assault and an application for leave to appeal against the sentences.

The appellant contended that the criminality of the assault was subsumed by the count of aggravated break and enter. His conviction for assault thus caused a miscarriage of justice by subjecting him to double punishment. He also contended that the sentences imposed were manifestly excessive.

Per Johnson J at [55], (Adamson J at [110] agreeing), dismissing the appeal:

Held at [73]-[79], [81], [86]-[91]

(1) An offence against s 86(1) of the Crimes Act 1900 can be committed by either taking or detaining a person. This may be done without any physical contact with the victim, or without any physical detention. The detention does not need to be for any specific length of time, provided it interferes with the person’s liberty. ‘Advantage’ within the meaning of the offence can consist of a psychological satisfaction or gratification derived by the offender.

Davis v R [2006] NSWCCA 392 cited; Homsi v R [2011] NSWCCA 164 cited; R v Campbell and Brennan [1981] QdR 516 cited; R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 cited.

(2) The conduct of taking the complainant’s mobile phone and saying “Come on, get up” was an act of control exercised over the complainant. These acts interfered with the liberty of the complainant and were therefore capable of constituting detention for the purpose of s. 86(1).

(3)   The assault offence involved additional criminality to that which formed part of the aggravated break and enter offence. The appellant was not doubly punished for the same conduct.

Sessions v R (1997) 95 A Crim R 151; [1998] 2 VR 304 cited; Jidah v R (2014) 246 A Crim R 368; [2014] NSWCCA 270 cited.

Simpson AJA at [1], contra:

At [24]-[27], [41]-[46]

(1) The appellant’s conduct in taking the complainant’s mobile telephone and telling her to get up could not reasonably be held to constitute a detention. In reality, the Crown relied upon the conduct used to establish the charge of assault to establish the serious indictable offence that was an element of the aggravated break and enter offence.

(2) The offence of assault was fully contained, or subsumed, in the offence of aggravated break and enter and commit a serious indictable offence. The offender was punished twice for the same act of criminality.

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 considered; Sessions v R (1997) 95 A Crim R 151; [1998] 2 VR 304 considered; Jidah v R (2014) 246 A Crim R 368; [2014] NSWCCA 270 considered.

Per Simpson AJA at [1], (Johnson J at [55] agreeing with additional reasons, Adamson J agreeing at [110]), dismissing the appeal:

Held at [48]-[52], [99]-[105]

(3) The sentences were not manifestly excessive.

Judgment

1. SIMPSON AJA: On 17 November 2016, in the Central Local Court, the appellant entered pleas of guilty to two charges contained in Court Attendance Notices. The charges were:

1. aggravated break and enter and commit serious indictable offence (an offence against s 112(2) of the Crimes Act 1900); and

2. common assault (an offence against s 61 of the Crimes Act).

2. The appellant was committed to the District Court for sentence. Sentencing proceedings took place on 11 May 2017. At the same time, the appellant was called up to be dealt with for breach of the conditions of a good behaviour bond imposed in connection with a suspended sentence, in respect of another offence of common assault committed on 14 October 2015 (“the 2015 offence”). The appellant, having adhered to his pleas of guilty, was duly convicted.

3. The maximum penalty applicable to the first offence is imprisonment for 20 years; pursuant to Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) a standard non-parole period of five years is specified. The second offence, of assault, is subject to a maximum penalty of imprisonment for two years.

4. Both offences were alleged to have been committed on 26 July 2016, in circumstances shortly to be recounted. The circumstance of aggravation alleged in relation to the first count was that the appellant knew that persons were present in the premises. The serious indictable offence he was alleged to have committed while therein was an offence against s 86(1)(b) of the Crimes Act, shortly known as kidnapping (or take and detain a person, without consent, with the intention of obtaining an advantage).

5. On 11 May 2017 the appellant was sentenced as follows:

• for the 2015 offence: imprisonment for 8 months, commencing on 27 July 2016 and expiring on 26 March 2017;

• for the offence of common assault committed on 26 July 2016: imprisonment for 9 months, commencing on 27 October 2016 (and therefore accumulated on the previously imposed sentence by 3 months) and expiring on 26 July 2017;

• for the offence of aggravated break and enter: imprisonment for 4 years and 6 months, commencing on 27 January 2017 (accumulated by 3 months on the previously imposed sentence) and expiring on 26 July 2021, with a non-parole period of 1 year and 6 months, expiring on 26 July 2018.

The total effective sentence imposed was of imprisonment for 5 years with a non-parole period of 2 years.

6. Notwithstanding his pleas of guilty, on 13 March 2018 the appellant filed an appeal against conviction and an application for leave to appeal against the sentences, and (as was necessary) an application for extension of time in which to do so. It became clear that the appeal against conviction was directed to the conviction for assault. He did not contest the conviction for the aggravated break and enter offence. The Crown did not oppose an extension of time and I am satisfied that it is appropriate to make such an order.

7. The proposed grounds of appeal are specified as follows:

“Ground 1: the appellant’s conviction for assault caused a miscarriage of justice by subjecting him to double punishment.

Ground 2: (in the alternative to ground 1): the Sentencing Judge erred by doubly punishing the Appellant for a single act.

Ground 3: The sentences are manifestly excessive.”

The Crown case

8. An agreed statement of facts was put before the sentencing judge. Put briefly, the appellant had, for 9 months, been in a domestic but intermittent relationship with the complainant. The relationship included a history of violence, although no detail of the violence was provided.

9. On the date of the offending the complainant was staying at a hotel in Manly, undertaking a training course. She was accompanied by two friends, one male, one female. They had been at the hotel since 24 July. At about 8.30 pm the appellant telephoned the complainant and told her that he wanted to see her. She said that she was studying. He responded angrily, threatening her with interference in the course in which she was engaged. Half an hour later, while the complainant and her two friends were in the room occupied by the female friend, the appellant knocked on the door. He was identified by the complainant’s friend who looked through the peep hole in the door.

10. Because the proposed grounds of appeal depend heavily upon the manner in which the facts alleged by the Crown were stated (and, it must be remembered, were agreed by the appellant), it is best to set out the relevant passages verbatim. They are as follows:

“Sequence 1 – aggravated break and enter serious indictable offence – people there.

5.   The offender started to call out the name of the [complainant], getting louder on each occasion until he was yelling. The offender continued to knock on the room door. The knocking continued to get harder and harder. The offender started to kick at the room door. The offender continued to kick the door and eventually broke the door lock and latch and forced the door from the frame. The offender entered the hotel room.

6.   The [complainant[ was on her mobile phone at the time. The offender started to yell at [the complainant’s female friend] accusing her of contacting the Police. The offender took the mobile phone off the [complainant] and said ‘come on, get up’.

Sequence 2 – common assault

7.   The offender took the [complainant] by her wrists. The [complainant] felt she would not be able to break free from the offender. The offender began to walk out of the room whilst holding onto the [complainant’s] wrist. The offender aggressively held onto the [complainant’s] wrist and this continued as he moved 20 metres from the room [to] the lift.”

11. The appellant was arrested the following day. Bail was refused and he has remained in custody since that date.

The appellant’s personal circumstances

12. Before moving to consider the grounds of appeal it is convenient to outline the other matters relevant to sentence.

13. The appellant was born in December 1992. He was 23 years of age at the time of the offences. He had a criminal history which included numerous instances of contravention of apprehended domestic violence orders, several offences of assault, and other offences such as stealing, escaping police custody and destroying or damaging property. All appear to have been committed in 2011, with the exception of the 2015 offence of common assault. This was the offence in respect of which the suspended sentence was imposed, to which a good behaviour bond was attached, to which the appellant was subject at the time of the present offending. Throughout the period of prior offending, the appellant had the benefit of the imposition of suspended sentences or other non-custodial alternatives. He had never served a term of imprisonment. There was no offence on his record between 2010 and October 2015.

14. Notwithstanding the opportunities he had been given to effect rehabilitation, the appellant was reported to have responded poorly to supervision. It may be emphasised that the present offences were committed while he was on conditional liberty in respect of the 2015 offence.

15. The appellant was reported (in a pre-sentence report) to have had a very positive and supportive relationship with his mother, but to have had some difficulties in the past in his relationship with his father. However, for 9 months prior to his arrest he had been in receipt of a carer’s pension in order to care for his father who was not well. Both parents attended the sentence hearing.

16. The appellant had, for some years, been having treatment with a consultant psychologist for assistance with anger management, and had indicated his willingness further to address such issues.

17. He gave evidence in the sentencing hearing. He said that, from September 2016, he had been held in protective custody as a result of an attack on him by other prisoners.

Remarks on sentence

18. The sentencing judge opened his remarks on sentence by explaining the personal responsibility offenders must take for, in particular, offences of domestic violence. He recounted the agreed facts, noted that there was an element of premeditation in the offences, and noted that the appellant was on conditional liberty at the time of the offending. He noted that, in sentencing for the breach of the suspended sentence bond conditions, he had to be careful to avoid double punishment. He noted the appellant’s “unfortunate history of offending”, particularly noting previous instances of domestic violence and other forms of violence. He noted the early plea of guilty and reduced the sentence he otherwise would have imposed by 25%. He found, pursuant to s 44(2) of the Sentencing Procedure Act, special circumstances warranting departure from the statutory ratio between the head sentence and the non-parole period. It may be noted that, in doing so, he allowed in the overall sentence a very significant reduction in the non-parole period. (Sentencing in accordance with the s 44(2) proportions between the head sentence and the non-parole period, absent a finding of special circumstances, would have resulted in a non-parole period for the aggravated break and enter offence of 3 years and 4½ months, against the 18 months actually imposed; the same proportions on the effective sentence would have produced a non-parole period of 3 years and 9 months, against the 2 years actually imposed).

19. Before moving to the arguments on appeal, it is necessary to state with some particularity the offences with which the appellant was charged.

20. The first charge was brought under s 112(2) of the Crimes Act. Section 112 relevantly, provides:

(1)   A person who:

(a)    breaks and enters any dwelling house or other building and commits any serious indictable offence therein,

…

is guilty of an offence and liable to imprisonment for 14 years.

(2)   Aggravated offence. A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

…”

“Circumstances of aggravation” are defined in s 105A, and include:

“(f)   the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.”

This was the circumstance of aggravation alleged against the appellant.

A “serious indictable offence” is defined in s 4 of the Crimes Act as an offence that is punishable by imprisonment for life or for a term of 5 years or more.

21. The “serious indictable offence” which the appellant was alleged to have committed was specified in the Court Attendance Notice as:

“Detain for advantage …”

This was a reference to an offence against s 86 of the Crimes Act, which relevantly provides:

“(1)   Basic offence. A person who takes or detains a person, without the person’s consent:

(a)   …

(a1)   …

(b)   with the intention of obtaining any other advantage

is liable to imprisonment for 14 years.”

The offence of “detaining for advantage” is, therefore, for the purposes of s 112, a serious indictable offence.

22. In order to establish that the appellant was guilty of the aggravated break and enter offence charged, it was necessary that the Crown establish:

• that he broke and entered the hotel room;

• that, while therein, he committed the offence of detaining for advantage;

• that he did so in circumstances of aggravation (knowing that persons were in the hotel room).

23. It was not in issue that, for the purposes of s 112, the hotel room was a dwelling house or other building. Nor was it in issue that the appellant broke and entered the hotel room. The circumstance of aggravation alleged, that he knew there were persons present in the hotel room, was also not in issue.

24. As set out above, paras 5 and 6 of the Agreed Facts purported to identify the conduct that constituted the offence of aggravated break, enter and, while therein, commit a serious indictable offence. That necessarily included the conduct that constituted the serious indictable offence of detaining for advantage. But there is no conduct stated in those paragraphs that could reasonably be held to constitute “detaining”.

25. For this purpose, the Crown sought to rely on the assertion that the appellant took the complainant’s mobile phone, and told her to “get up”. That, in my opinion, is insufficient to constitute a detention.

26. What, in truth, the Crown relied on as the act of detention was the appellant’s conduct, set out in para 7, in taking the complainant by her wrist, and walking out of the hotel room door while continuing to hold onto her wrist. That was also the conduct on which the Crown relied to establish the charge of assault.

The appeal

Grounds 1 and 2

27. Although ground 1 can be seen to be directed to the conviction for assault, and ground 2 appears to be directed to the sentence imposed, the grounds are pleaded in the alternative and depend upon a common proposition. That common proposition is that there was an overlap in the facts relied upon to support the first and second charges, such as to have resulted in double punishment of the appellant.

28. Underlying the issues raised on the appeal is the concept of “double jeopardy”. In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 the plurality (McHugh, Hayne and Callinan JJ) explained that the concept of double jeopardy can arise at three stages of the criminal process: prosecution, conviction and punishment (at [9]).

29. The circumstances in Pearce were not dissimilar to the present. Mr Pearce committed an offence by breaking into the victim’s house and assaulting him. He was then charged with and (eventually, after failing in an application for a stay of proceedings on the basis that the indictment was oppressive or an abuse of process) pleaded guilty to and was convicted of two counts. The first was of maliciously inflicting grievous bodily harm with intent to do so. The second was of breaking and entering the victim’s home and inflicting on him grievous bodily harm. The grievous bodily harm relied upon in support of each count was the same. Identical sentences were imposed in relation to the two counts, to be served concurrently.

27. Although (as I understand the judgment) the plurality accepted that nobody can be prosecuted twice for the same offence (whether the prosecution results in conviction or acquittal) their Honours limited “the same offence” to one which has the same elements as the other.

28. In Pearce, the offences were not co-extensive. While they had at least one common element, each had another element or elements that the other did not. The first required proof by the Crown of a specific intent on the part of Mr Pearce. That element was not part of the second count. The second count required proof of a breaking and entering: that element was not part of the first offence.

29. The plurality in the High Court therefore found that there was no double jeopardy in the prosecution of Mr Peace for the two offences, notwithstanding the overlap of the infliction of grievous bodily harm as an element of each, in that the same conduct was relied upon by the Crown in support of that aspect of each charge. There was, in the circumstances of that case, no double jeopardy in either the prosecution or the conviction of Mr Pearce.

30. Their Honours found, however, that there was double punishment in that, on sentence, the infliction of the same grievous bodily harm was taken into account in the calculation of the sentence imposed for each of the two offences. It made no difference that the sentences imposed were identical and were specified to be served concurrently.

31. Sessions v R (1997) 95 A Crim R 151 was a Victorian case that was decided before the decision in Pearce was delivered. Mr Sessions was charged with, and pleaded guilty to, one count of rape of an 8 month old child, and a second count of recklessly causing serious injury to the child. The serious injury was a direct consequence of the rape. At first instance, it was held that, as an offence of rape could be constituted by a small degree of penetration, the serious injury was caused by the continuation of that offence, in effect constituting a second offence.

32. On appeal, the Victorian Court of Appeal held that the distinction was “artificial and unreal” and could not properly be drawn (at p160). In the course of his reasons, Hayne JA (as he then was) said:

“It is clear that where one offence is an element of a more serious offence a person cannot be convicted of both offences.” (p 155)

36. His Honour immediately went on to say:

“That is, if the second offence is merely an aggravated form of the first offence, a person cannot be convicted of both.”

37. That proposition did not dictate the outcome in Sessions: as his Honour said, rape was not an aggravated form of recklessly causing serious injury. However, as the injury to the child was caused by the act of penetration constituting the rape, and, further, the sentencing laws of Victoria required that, in sentencing for the rape, the injury is taken into account, it was inappropriate that Mr Sessions be convicted of two offences..

38. Although he recognised that:

“… it is not the law that a person shall not be punished twice for the same act,”

ultimately, Hayne JA, with whom Batt JA and Eames JA agreed, held that, in the circumstances of that case, Mr Sessions should not have been convicted of both offences. The Court set aside the conviction on the second count. Hayne JA gave three essential reasons, which I paraphrase as briefly as I am able:

(i)   assuming the basic principle to be that a single act or omission should not give rise to multiple punishments, convictions should not be recorded on both counts;

(ii)   the injury to the child victim could (and should) be taken into account on the punishment for rape, leaving no aspect of that offence unpunished;

(iii)   there were no additional aspects of the offence of recklessly causing injury that was not incorporated in the rape charge.

39. Counsel for the appellant referred to the decision of this Court in Yousef Jidah v R [2014] NSWCCA 270. Mr Jidah was convicted of a number of offences, including one count of supplying a prohibited drug, contrary to the Drug Misuse & Trafficking Act 1985 (NSW) (“the DMT Act”). The drug was identified as pseudoephedrine. (The drug supply charge depended upon the extended definition of supply contained in the DMT Act). He was also convicted of one count of attempting to possess a precursor, also contrary to the DNT; the precursor was identified as pseudoephedrine. It appears to have been common ground that the substance the subject of the supply charge was the same substance the subject of the attempted possession charge. It was there contended that all of the elements of the supply count were contained in the possession count, and that, as a result, Mr Jidah had been twice punished for the same criminality and that one or other of the convictions ought to be quashed. This Court rejected that contention, holding that there were different elements of the two offences, and that the whole of the criminality of each was not “captured” in the other. The court therefore dismissed the appeal against conviction. Importantly, however, it recognised that there was overlap in the elements of the offences, and in the conduct that established those elements, and cautioned that, in sentencing, it was necessary to ensure that Mr Jidah was not doubly punished for conduct that was common to both offences.

40. Turning then to the facts of the present case. It is clear that the Crown relied on the appellant’s act of taking hold of the complainant’s wrist as the act constituting the necessary element of detention, thus completing the relevant factual foundation for the first offence. But it was also that act that constituted the factual foundation of the charge of assault. Once the act of taking the complainant by the wrist had been incorporated into the factual foundation for the aggravated break and enter offence, he could not then be the subject of further punishment of the appellant: there remained no aspect of the assault offence for which the appellant had not been (or was not to be) punished. But that is the consequence of the appellant’s having been charged with the two offences.

41. As in Pearce, the appellant was punished twice for the same act of criminality. For that reason alone, in my opinion, the sentence for assault cannot stand. The more difficult question is whether the conviction for that offence can be allowed to stand.

42. Without the act by the appellant of taking hold of the complainant’s wrist, the facts stated in paras 5 and 6 of the Agreed Facts could not establish an essential element of the charge – detention. The taking of the complainant by the wrist was imported into the charge of aggravated break and enter, for the purpose of completing the evidence to establish that offence.

43. If, in proof of the count of assault, anything additional to what was required in proof of the detention were necessary, it would be open to the Crown to charge that offence separately. It would then be a matter for the sentencing judge to ensure that there was no duplication of that part of the sentence for the offence of aggravated break and enter that applied to the detention.

44. But there was no additional element. In Pearce, the first offence had an element of intention not present in the second; the second had an element of break and enter not present in the first. To effect punishment of the total criminality it was necessary that both offences be prosecuted. Avoidance of “double jeopardy” was to be effected in the sentencing process.

45. In Jidah, the first offence charged incorporated elements not present in the second: significantly, the quantity of the drug involved (to Mr Jidah’s knowledge), and an attempt by him to take possession of the drug for the purpose of supply. The second count involved proof by the Crown that Mr Jidah attempted to possess a substance he knew or believed to be a precursor, intending it to be used by another person for the manufacture of a drug. The offences were not co-extensive, although there were overlapping elements. Again, avoidance of “double jeopardy” was to be effected in the sentencing process. Sessions is different from Pearce and Jidah in that the second offence charged added nothing to the first. Once it was accepted that sentencing for the rape count could (and must) take into account the injury to the child, the second count of recklessly causing serious injury to the child, added nothing to the rape count. There were no elements of the second count not taken into account in the punishment for the first. The whole of the criminality was encompassed in the rape count.

46. In this case, as in Sessions, it was open to the Crown to rely on the whole of the circumstances outlined in the agreed facts in support of the first count. Not only was it open, in order to establish all elements of the aggravated break and enter count, it was necessary that the Crown rely on the assault. That is, the act of taking hold the complainant by the wrist, and maintaining that hold while walking her out of the room were incidents of the first offence, and relevant and necessary to be taken into account for sentencing purposes. But that left no independent or separate act constituting the offence of assault. The offence of assault was fully contained, or subsumed, in the offence of aggravated break and enter and commit a serious indictable offence

47. In my opinion, the appeal against conviction on the count of assault must be allowed and the conviction set aside. I would uphold ground 1 of the appeal.

Ground 3: manifestly excessive

48. No complaint is made about the sentence imposed in respect of the 2015 assault. The appellant complains that the sentence of 4 years and 6 months (incorporating a 25% reduction in recognition of the plea of guilty) in respect of the aggravated break and enter offence was manifestly excessive. He also complained that the total effective sentence of 5 years was manifestly excessive. Having regard to the view that I have expressed above, that last contention may be put to one side.

49. Counsel began his submission by recognising that:

• a sentence of full time imprisonment was appropriate;

• as the offence was a serious instance of domestic violence, both general deterrence and denunciation were important sentencing considerations;

• having regard to the appellant’s history of previous offending of the same kind, an element of personal deterrence in sentence was necessary.

50. Nevertheless, counsel submitted, the sentence was manifestly excessive. Taking into account the 25% reduction, the starting point was 6 years. That, he submitted, was “disproportionate”, having regard to the following factors:

• the appellant’s age at the time of the offending (23 years);

• that this was only his second criminal incident in a period of more than 5 years;

• that this was the appellant’s first sentence of full time imprisonment;

• that the appellant had demonstrated some insight into the offences and was motivated to address his offending behaviour;

• that the appellant had reasonable prospects of rehabilitation; and

• that notwithstanding the seriousness of the offence, the complainant was detained for a relatively short time and sustained no physical injuries.

51. I am unable to accept these arguments. The appellant had a lengthy history of similar offences. He had repeatedly been given the benefit of non-custodial sentences, including a number of terms of imprisonment that were suspended, and that ought to have brought home to him the gravity of his conduct, and the likelihood of full time imprisonment for subsequent offending.

52. I am not satisfied that the sentence has been shown to have been manifestly excessive. In reaching this conclusion I have focused upon the head sentence and have not been deflected by the generous application of the finding of s 44 special circumstances that reduced the non-parole period to 1 year and 6 months.

53. Since I have not found error in sentencing, the decision in Kentwell v TheQueen (2014) 252 CLR 601; [2014] HCA 37 does not require this Court to resentence. All that is necessary is that the commencing date of the sentence for the aggravated break and enter offence be adjusted to take account of the setting aside of the sentence on the conviction for assault: Sentencing Procedure Act s 59.

54. The orders I propose are:

1.   Time for filing the appeal be extended to 13 March 2018;

With respect to the charge of common assault alleged to have been committed on 26 July 2016:

2.   Appeal allowed, conviction and sentence quashed;

With respect to the charge of aggravated break and enter and commit a serious indictable offence:

3.   Leave to appeal against sentence granted, appeal dismissed;

4. Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, vary the date of the commencement of that sentence to 27 October 2016, to expire on 26 April 2021, the non-parole period of 1 year and 6 months to expire on 26 April 2018.

55. JOHNSON J: I have had the advantage of considering, in draft, the judgment of Simpson AJA. I have come to a different conclusion with respect to the application. The Applicant has not succeeded on any of his grounds and the appeal ought be dismissed.

56. The background to the application, facts and subjective circumstances of the Applicant are set out in the judgment of Simpson AJA.

57. I move directly to matters relevant to the first and second grounds of appeal.

58. The Applicant had pleaded guilty in the Local Court, and been committed for sentence in the District Court, with respect to two offences:

1. on 26 July 2016 at Manly, he did break and enter the Novotel Hotel Room 339, a dwelling of [a colleague of the complainant] situated at 55 North Steyne Manly, and then in the said Novotel Hotel Room 339 dwelling, he did commit a serious indictable offence, detain for advantage in circumstances of aggravation, to wit, he knew that there were persons present within the said Novotel Hotel Room 339, an offence under s.112(2) Crimes Act 1900 punishable by a maximum penalty of 20 years’ imprisonment with a standard non-parole period of five years.

2. on 26 July 2016 at Manly, he did assault the complainant, an offence punishable under s.61 Crimes Act 1900 by a maximum penalty of two years’ imprisonment.

59. On 11 May 2017, the Applicant appeared before his Honour Judge Berman SC at the Sydney District Court. The Applicant was represented by counsel who had signed the Agreed Statement of Facts on the Applicant’s behalf. In his evidence that day at the sentencing hearing, the Applicant accepted the contents of the Agreed Statement of Facts (T5, 11 May 2017).

60. It is important to note the structure and content of the Agreed Statement of Facts. The document described the presence of the complainant and two colleagues in the hotel room for study purposes. At about 9.00 pm on 26 July 2016, the Applicant knocked on the door and identified himself. The Agreed Statement of Facts then described the two offences in the following way:

“Sequence 1 – aggravated break and enter serious indictable offence – people there.

5.   The offender started to call out the name of the [complainant], getting louder on each occasion until he was yelling. The offender continued to knock on the room door. The knocking continued to get harder and harder. The offender started to kick at the room door. The offender continued to kick the door and eventually broke the door lock and latch and forced the door from the frame. The offender entered the hotel room.

6.   The [complainant] was on her mobile phone at the time. The offender started to yell at [the complainant’s female colleague] accusing her of contacting the Police. The offender took the mobile phone off the [complainant] and said ‘come on, get up’.

Sequence 2 – common assault

7.   The offender took the [complainant] by her wrists. The [complainant] felt she would not be able to break free from the offender. The offender began to walk out of the room whilst holding onto the [complainant’s] wrist. The offender aggressively held onto the [complainant’s] wrist and this continued as he moved 20 metres from the room [to] the lift.

8.   Hotel staff attended the lift area after the incident had been reported. The hotel staff attempted to intervene and Police were contacted. The offender let go of the [complainant] and entered the lift. The offender left the hotel through the foyer.”

61. It is clear that the sentencing hearing was conducted by reference to the description of the offences contained in the Agreed Statement of Facts, with the sentencing Judge adopting the same approach when passing sentence later that day: R v Baradi [2017] NSWDC 175 at [6]-[7]. His Honour passed the sentences referred to by Simpson AJA at [5].

62. By Notice of Application for Leave to Appeal filed on 13 March 2018, the Applicant seeks an extension of time to bring an application for leave to appeal against conviction on the s.61 offence and also against sentence.

63. The Applicant’s grounds of appeal are set out in Simpson AJA’s judgment at [7].

64. Ground 1 contends, in effect, that the criminality encompassed in the assault count was fully caught by the first count so that there was double punishment in sentencing the Applicant separately upon the assault charge in addition to the offence under s.112(2) Crimes Act 1900. The Applicant submits that a miscarriage of justice resulted so that this Court should quash the conviction and sentence on the assault count.

65. The first count to which the Applicant pleaded guilty involved an offence of aggravated break, enter and commit serious indictable offence contrary to s.112(2) Crimes Act 1900. This Court has observed that a very diverse range of offending may be accommodated within the terms of an aggravated s.112(2) offence: Cherry v R [2017] NSWCCA 150 at [54].

66. As Simpson AJA observed at [23], there was no issue here that the hotel room was a dwelling nor that the Applicant did break and enter the hotel room. Nor was there any dispute that the Applicant knew that other persons were in the hotel room at the time of the offence so as to constitute the relevant circumstance for the purpose of the definition of “circumstances of aggravation” in s.105A(1) Crimes Act 1900.

67. The serious indictable offence particularised in the description of the s.112(2) offence was one of detaining a person for advantage contrary to s.86(1)(b) Crimes Act 1900.

68. The breadth of conduct which is capable of falling within an offence under s.86(1) has been emphasised in the cases: R v Newell [2004] NSWCCA 183 at [43]; R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at 185 [53]. The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person: R v Speechley at 185 [54].

69. It was the Crown case (admitted by the Applicant) that the complainant was in the room with other persons when the Applicant knocked on the door whilst yelling out her name loudly, until he eventually broke the door lock and latch and forced the door from the frame before entering the hotel room. This aspect of the incident constituted the breaking and entering of the hotel room.

70. When the Applicant entered the room, the complainant (no doubt terrified) was on her mobile phone. The Applicant started to yell at another person in the room accusing her of contacting the police.

71. He then took the mobile phone from the complainant and said “Come on, get up”.

72. The Crown contends that those circumstances in themselves constitute an offence of detaining for advantage. I accept that submission.

73. An offence under s.86(1)(b) Crimes Act 1900 may be committed (relevantly) where a person “takes or detains a person”, without the person’s consent, with the intention of obtaining “any other advantage”.

74. The term “detaining” is defined in s.86(7) Crimes Act 1900 as including “causing the person to remain where he or she is”. It is apparent that taking a physical hold of the person is not essential for there to be a detention or a taking under s.86.

61. As Howie J (Basten JA and Whealy J agreeing) said in Davis v R [2006] NSWCCA 392 at [56] and [65], s.86(1) contains only one offence, but provides that it can be committed in one of two ways so far as the actus reus of the offence is concerned - by taking or detaining the person. In this case, the Crown alleged that the Applicant had detained the complainant.

62. As at common law, every taking will include a detention but not every detention will involve a taking. It is the interference with the liberty of the person that is the conduct at the heart of the conduct caught by s.86: Davis v R at [56]

63. There may be a taking or detention without any physical contact with the victim: Davis v R at [59]-[62]. There does not have to be any physical detention to satisfy the requirement of detaining: Homsi v R [2011] NSWCCA 164 at [73]. The detention need not be for any specific length of time provided it interferes with the person’s liberty: R v Campbell and Brennan [1981] QdR 516 at 521; Davis v R at [62].

64. Drawing upon these decisions, the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales suggests at [5-2010] the following direction for the element of “detain” in a trial for a s.86(1) offence:

“The first matter for the Crown to prove is that [the accused] detained [the alleged victim]. To detain a person means to prevent that person from leaving should he or she wish to do so. It is an interference with the person’s liberty. It is enough if [the alleged victim] was detained for only a very short time.”

79. The “advantage” referred to in s.86(1)(b) can consist of a psychological satisfaction or gratification derived by the offender: R v Speechley at 185 [50].

80. For the Applicant to succeed on the first ground of appeal, it is necessary that he demonstrate that there was not a case to be left to a jury on the s.112(2) count if the matter had proceeded to trial, given the manner in which it was pleaded against him in paragraphs 5 and 6 of the Agreed Statement of Facts. The well-known test to be applied in considering this legal question was summarised recently in Innes v R [2018] NSWCCA 90 at [63]-[65]:

“63   The test to be applied by a trial judge on an application for verdict by direction in a criminal jury trial is not in doubt. It is the duty of a trial judge to direct a verdict of not guilty if the evidence cannot sustain a guilty verdict or if there is no evidence upon which a jury could convict: Doney v The Queen [1990] 171 CLR 207; [1990] HCA 51 at 212; The Queen v LK at 195 [29]. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. A verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen at 214-215.

64   A trial Judge has no power to direct a verdict of acquittal merely because the Judge had formed a view that a guilty verdict would be unreasonable or, using the terminology previously adopted, unsafe and unsatisfactory: R v R (1989) 18 NSWLR 74 at 85; Doney v The Queen at 214-215.

65   In a case based on circumstantial evidence, at the close of the prosecution case, the Crown need only show that an inference consistent with guilt reasonably arises on the evidence. The Crown does not have to prove that this was the only inference that arose or that there was no inference arising from the evidence inconsistent with guilt: R v JMR (1991) 57 A Crim R 39 at 43-44. It does not matter at this point how tenuously that inference arises provided that it was reasonably open on the evidence: R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 at 130 [127]; Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746 at [14].”

81. I am satisfied that there was a case to answer with respect to the s.86(1) offence (which formed part of the s.112(2) offence) upon the basis that, after the Applicant broke and entered the hotel room, he then took the mobile phone off the complainant and said “Come on, get up” with this being capable, as a matter of law, of causing the complainant to remain where she was, this being an act of control exercised by the Applicant over the complainant. The acts of the Applicant interfered with the liberty of the complainant so as to constitute detention for the purpose of s.86(1) Crimes Act 1900.

82. The sentencing Judge noted (correctly), for the purpose of the s.112(2) offence, that “the period of detention was relatively short”: R v Baradi at [15].

83. His Honour did not treat the subsequent taking hold of the complainant by the Applicant as being conduct which formed part of the s.112(2) offence.

84. It is clear that the Applicant’s acts, from the time he took hold of the complainant were all treated as being conduct which constituted the assault offence. This accorded with the structure and content of the Agreed Statement of Facts (at [60] above).

85. If the assault had formed part of the s.112(2) offence, it would have been open to the Crown and the Court to have regard to the use of corporal violence on the complainant as a further circumstance of aggravation under s.105A(1) Crimes Act 1900. This was not the approach taken in the District Court, thereby emphasising the separate criminality arising from the assault count to which the Applicant had pleaded guilty.

86. The Agreed Statement of Facts made clear that the assault offence commenced in the hotel room (the dwelling broken into for the purpose of the s.112(2) offence) but continued outside the hotel room and into the foyer where it took intervention by the hotel staff to cause the Applicant to let go of the complainant and then depart the hotel. There were features of the assault offence which involved additional criminality to that which formed part of the s.112(2) offence.

87. In addition, as the sentencing Judge observed (R v Baradi at [15]), there were multiple victims of the s.112(2) offence, being those persons inside the hotel room when the Applicant burst in.

88. I do not consider the Applicant is assisted by the decision of the Victorian Court of Appeal in R v Sessions [1998] 2 VR 304. Unlike the appellant in R v Sessions, the Applicant here was not being punished twice for the one act.

89. The principles to be applied were summarised by this Court in Jidah v R (2014) 246 A Crim R 368; [2014] NSWCCA 270 at 375-380 [34]-[56]. In the circumstances of the present case, the conviction and sentence of the Applicant on both the s.112(2) count and the assault count did not expose him to double punishment, such that the conviction on the assault count should be quashed to avoid a miscarriage of justice: Jidah v R at 377 [46].

90. As the Court observed in Jidah v R at 378 [50], the whole of the criminality in R v Sessions was encompassed in one charge. That is not the present case. The whole of the Applicant’s criminality is not captured in one of the offences: Jidah v R at 379-380 [56].

91. It may be said that there was a course of criminal conduct on the Applicant’s behalf which involved two offences. Sentencing for the offences engaged the principles of totality, accumulation and concurrency, being the approach applied by the sentencing Judge in this case.

92. The Applicant pleaded guilty to each of the two offences. He seeks to have the conviction and sentence on the assault charge quashed. To the extent that the Applicant is taken to be seeking leave to withdraw his plea of guilty for the assault charge, it is necessary to bear in mind the principles to be applied by this Court when application is made to quash a conviction entered after a plea of guilty in the District Court: Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 at 312-313 [32]-[35].

93. The ultimate question for this Court is whether it has been demonstrated that a miscarriage of justice will occur if the Applicant is not permitted to withdraw his plea: Thalari v R at 312 [32]. A proper foundation has been identified for each of the two offences to which the Applicant pleaded guilty. His pleas of guilty were cogent admissions of the ingredients of each offence: Thalari v R at 312 [34]. No miscarriage of justice has been demonstrated by the fact that the Crown proceeded with two offences with the Applicant pleading guilty to each of them and being sentenced for both offences.

94. The Applicant has failed to demonstrate that a miscarriage of justice resulted from his conviction and sentence on both counts to which he had pleaded guilty. His challenge to the conviction on the assault count should be refused.

95. I would reject the first ground of appeal.

96. The second ground of appeal should fall with the first ground. There was no double punishment of the Applicant in this case. He was sentenced for two offences arising from his course of criminal conduct on the evening of 26 July 2016. There were several victims of the s.112(2) offence (the complainant and two other persons) and a single victim of the assault offence (the complainant).

97. His Honour applied appropriate sentencing principles in accordance with Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at 47-48 [27]-[28] in passing sentence for the totality of the Applicant’s criminal conduct.

98. I would reject the second ground of appeal.

99. With respect to the claim in the third ground that the sentences were manifestly excessive, I agree generally with Simpson AJA.

100. It is necessary to keep in mind that the Applicant had a history of domestic violence from 2011, with a further incident of violence against his grandfather in October 2015, for which he was subject to a suspended sentence at the time of these offences.

101. The principles referred to in Cherry v R at [76]-[80] are pertinent on sentence. Specific and general deterrence were important factors on sentence for domestic violence offences, together with the requirement for powerful denunciation by the community of such conduct: R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at 195-196 [86].

102. The Applicant’s offences were committed in breach of conditional liberty.

103. Further, as the sentencing Judge observed, the Applicant attributed his violent behaviour to “being in the wrong kind of relationships”: R v Baradi at [1]. The sentencing Judge emphasised (in R v Baradi at [1]), that it was important that the Applicant and the community understand that the Applicant alone was responsible for his criminal conduct. This is not the first time that this Court has noted a tendency on the part of domestic violence offenders to blame the victim: R v Hamid at 202 [121].

104. A limited degree of accumulation was applied with respect to both the suspended sentence offence and the assault offence and both these periods were appropriate. The total effective sentence was one of imprisonment for five years with a non-parole period of two years. A very substantial allowance was made by way of a finding of special circumstances to give rise to this relationship between the effective head sentence and the effective non-parole period.

105. It has not been demonstrated that the sentence or sentences imposed were unreasonable or plainly unjust so as to warrant this Court upholding the manifest excess ground.

Conclusion

106. The Applicant has not made good any of his grounds of appeal.

107. The Crown did not oppose an extension of time to bring the application for leave to appeal.

108. The issues raised on the application warrant an extension of time and the grant of leave to appeal, but the appeal should be dismissed.

109. I propose the following orders:

1. time for filing the application for leave to appeal be extended to 13 March 2018;

2. grant leave to appeal;

3. (c) with respect to the assault offence under s.61 Crimes Act 1900, dismiss the appeal against conviction;

4. (d)   with respect to the sentences imposed on 11 May 2017, dismiss the appeal against sentence.

110. ADAMSON J: I agree with Johnson J.   

Amendments

16 July 2018 - In [84] cross-reference to [6] should be [60].

"The Appeal" heading above [19] has been deleted.

Decision last updated: 16 July 2018