Belghar v R

[2013] NSWCCA 245

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Belghar v R [2013] NSWCCA 245

Hearing dates:

9 October 2013

Decision date:

31 October 2013

Before:

Gleeson JA at [1];
R A Hulme J at [85];
Adamson J at [86]

Decision:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal- appeal against sentence - conviction for kidnapping under s 86(1)(b) of the Crimes Act 1900 - where sentencing judge found that the sentence was of a most serious nature - whether sentence manifestly excessive

Legislation Cited:

Crimes Act 1900 ss 61, 86
Crimes (Sentencing Procedure) Act 1999 s 44

Cases Cited:

Ayshow v R [2011] NSWCCA 240
Charbaji v R [2011] NSWCA 181
Corby v R [2010] NSWCCA 146
Georgopolous v R [2010] NSWCCA 246
Ha v R [2010] NSWCCA 83
Heine v R [2008] NSWCCA 61
House v The King (1936) 55 CLR 499
Ibbs v The Queen [1987] HCA 46; 163 CLR 447
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Nguyen v R [2011] NSWCCA 127
R v Cage [2006] NSWCCA 304
R v Dodd (1991) 57 A Crim R 349
R v DRR [2004] NSWCCA 126
R v Gebrail (Unreported, NSW Court of Criminal Appeal, Mahoney JA, 18 November 1994)
R v Geddes (1936) 36 SR (NSW) 554
R v Koloamatangi [2011] NSWCAA 288
R v Lee [2003] NSWCCA 391
R v Newell [2004] NSWCCA 183
R v Pearson [2004] NSWCCA 129
Sheen v R [2011] NSWCCA 259
Sivell v R [2009] NSWCCA 286
Turner v R [2011] NSWCCA 189
Williams v R; Saunders v R [2006] NSWCCA 33
Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Ismail Belghar (Applicant)
Regina (Crown)

Representation:

Counsel:
Ms A Francis with Ms C Wasley (Applicant)
Ms S Herbert (Respondent Crown)
Solicitors:
Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/326053

Publication restriction:

None

 Decision under appeal 

Jurisdiction:

9101

Citation:

R v Belghar

Date of Decision:

2012-10-19 00:00:00

Before:

Zahra DCJ

File Number(s):

2009/326053

Judgment

1. GLEESON JA: Ismail Belghar (the applicant) applies for leave to appeal against one of the sentences imposed on him by his Honour Judge Zahra in the District Court at Sydney on 19 October 2012.

1. The applicant had pleaded guilty to two offences when the matter was listed for trial on 8 May 2012, namely:

(1) that the applicant did detain the complainant without her consent and with the intention of obtaining an advantage, namely to intimidate the complainant contrary to s 86(1)(b) of the Crimes Act 1900 (Count 2) - for which the maximum penalty prescribed is imprisonment for 14 years; and

(2) on the same day, the applicant did assault the complainant contrary to s 61 of the Crimes Act (Count 3) - for which the maximum penalty prescribed is 2 years imprisonment.

1. The applicant had pleaded not guilty to an offence of attempted murder by other means (Count 1). The Crown accepted the applicant's pleas of guilty on the kidnapping and assault counts in full satisfaction of the indictment.

1. The individual sentences imposed on the applicant were a term of 4 years and 6 months imprisonment with a non-parole period of 2 years and 6 months for detaining for advantage and a sentence of 3 months imprisonment for common assault, to be served concurrently.

Ground of appeal

1. The sole ground of appeal is that the sentence imposed on the kidnapping count is manifestly excessive. No complaint is made in respect of the sentence imposed on the assault count.

Circumstances of the offence

1. The sentencing judge proceeded on the basis of a statement of agreed facts.

1. The uncontested facts were that the victim is the sister in law of the applicant, who is married to the victim's older sister. It was noted in the statement of facts that the applicant and the victim had a somewhat strained relationship, but that there had been no prior confrontations.

1. Approximately two months before the offending, the victim, then aged 22 years, a girlfriend and the applicant's wife (who was 7 years older than the victim) went to the beach together, without the knowledge of the applicant. When the applicant's wife returned home and told him where she had been, the applicant called the victim and abused her for taking his wife to the beach. The applicant said words to the effect:

"You slut ... I'm going to fuck you up ... You fucking slut, how dare you take my wife to the beach".

1. The applicant's wife, in a statement to police, described the applicant as yelling into the phone and being very angry. He said to the victim "Why did you take my wife to the beach you bitch". The applicant's wife said that the applicant believed she had worn a bikini to the beach when she in fact had not done so. She told the police that the applicant did not like her sister. The statement of facts records that from this time the victim avoided the applicant so as to avoid confrontation. There was no contact between the applicant and the victim before the date of the offending.

1. At around 8.45pm on 22 December 2009, the victim drove to Broadway Shopping Centre in Glebe with her brother and his two daughters. Upon entering the shopping centre the victim saw the applicant and her sister looking at a store display. In order to avoid the applicant the victim walked outside the shopping centre to the walkways that led to the car park levels. The victim's brother and his children went and spoke with the applicant and his wife. The victim sat on the internal handrail of the walkway facing the entrance of the shopping centre while she waited for the conversation between her brother, the applicant and his wife to end.

1. The internal handrail had an additional rail below it that the victim had placed her feet on. The victim described her position as being similar to sitting on a bar stool but with her knees raised higher. This internal handrail was approximately 1.5 metres from the external boundary railing of the car park. The external railing was about 12 metres above the ground.

1. While the victim waited she saw the applicant walk away from the group and then suddenly turn to walk quickly towards her. The applicant had a key in his hand and stood in front of the victim, put his face up to hers and said:

"I'm going to kill you. I'm going to fucking kill you."

He then slapped the victim across the left side of her face causing pain and stinging. This assault was the subject of Count 3.

1. The applicant then picked up the victim by putting his hands around the victim's knees and waist, which meant that she was unable to free herself. The offender carried the victim approximately 1.5 metres to the external boundary railing and held her horizontally over the railing. The victim's mid-chest upwards was over the railing and she was facing the ground some twelve metres below. The victim was not sure how long she was held in that position, but in her statement she indicated that it did not feel like it was very long. This detaining of the victim was the subject of Count 2.

1. While being held over the rail the victim, fearing that the applicant intended to throw her over the railing and that she may die, began screaming and crying uncontrollably. She then felt her legs become free and she fell to the ground inside the external railing on the walkway. The victim saw that her brother was now restraining the applicant. The victim ran into the shopping centre and attempted to get the attention of security guards. She saw that her brother continued to have a hold on the applicant and was trying to calm him down. Eventually the applicant was freed and he left the car park.

1. The victim's sunglasses were later found, by police examining the area, on the roadway below the railing where the detention occurred. An arm of the sunglasses was located on the ground of the walkway within the car park, approximately 30 cm from the exterior boundary railing.

1. The statement of facts notes the account of the incident given by the victim's brother. He observed the applicant approach the victim pointing his keys at the victim and then lifting her from the internal handrail in a "scooping motion". He saw the applicant had the victim in a "bear hug-type hold" and while holding the victim in this manner leant his body over the external boundary railing.

1. The victim's brother rushed towards the applicant, tackling the applicant to the ground and breaking his hold of the victim. The applicant was then restrained by the victim's brother. When the applicant was released, he appeared to attempt to walk towards the victim. The victim's brother told the applicant he was not to approach the victim and the applicant was seen to leave the walkway area.

1. The statement of facts notes that when the applicant returned home after assaulting and detaining the victim, he told his wife:

"I went and said to her stay off my back please and she gave me that attitude and it made me angry."

1. After his arrest on the following day, the applicant engaged in a recorded interview with police during which he admitted confronting the victim regarding what he said were issues of respect. The applicant agreed that he had approached the victim in an angry state, but denied any intention to physically injure her.

The judge's findings

1. The sentencing judge noted that the objective gravity of the offending is reflected by the maximum penalty set by Parliament of 14 years imprisonment. He observed that the sentences to be imposed must reflect the need for general deterrence and must be sufficient to deter the offender from repeating the offence.

1. The judge then identified the recognised relevant factors to the assessment of the seriousness of the offence under s 86 of the Crimes Act. These included the period, the circumstances of the detention, the extent to which fear or terror may be occasioned in the victim, the person being detained and the purpose of the detention: see R v Newell [2004] NSWCCA 183 at [32].

1. The judge found that, objectively, the offence was of "a most serious kind". The applicant intended to place the victim in fear that she was going to be killed, with a view to ensuring that the victim ceased contact with his wife. The advantage sought by the applicant was a psychological one; namely, to assert his authority over the victim. The victim believed that she was going to fall to her death and the applicant's threat that he was going to kill her caused the victim extreme terror.

1. Although the duration of the detention was not lengthy, the judge found that it was marked by an intense period of aggression. The judge accepted that there was no planning involved in the offence and the act was impulsive. Nonetheless, he considered that the conduct needed to be viewed against an earlier threat made by the applicant some two months prior.

1. The judge observed that offences under s 86 are committed in a wide range of circumstances. He considered the background to the offence, and the relationship between the applicant and the victim and made a finding that:

"The offender sought to exercise violence with the intention of controlling familial relationships. He sought to do that in a public setting. The victim was entitled to move about in the community without interference with her liberty. The offender sought to intimidate the victim and placed her in substantial fear as she went about her life. The nature of the offending here creates a greater need for specific deterrence and the need for denunciation."

1. The judge found that the victim believed that she was going to fall to her death and that the offender intended to place the victim in that state of mind by placing part of her body, from her mid-chest upwards, over the railing facing a significant drop of some four storeys.

1. As to the objective of the detention, the judge found:

"The words used by the offender, that he was going to kill her at this time would have placed the victim in extreme terror."

1. The judge noted that the offence occurred in the presence of the victim's nieces aged 11 years and 9 years, and within view of members of the public at a shopping centre with complete disregard to the impact of such conduct.

1. The judge noted the victim impact statement which described the way in which the applicant's conduct had affected the victim socially, emotionally and mentally. This included the horror, fear and sadness she experiences when she recalls the assault; losing sleep, waking in the middle of the night, experiencing flashbacks and nightmares, and being fearful and wary when leaving the house.

Subjective features of the applicant

1. Subjective matters taken into account by the sentencing judge included the age of the applicant, 37 years at the time of sentencing; his background, having been born in Morocco and the youngest of six children; his travel to Australia on holiday in 1995 and obtaining a visa; his marriage in 1999; his employment history and the subsequent grant of a disability support pension in 2008 as a result of his anxiety and depression.

1. A psychological report from Mr T Smith noted that the applicant suffered a longstanding anxiety condition. The applicant gave a history that he had developed social phobia and depression approximately 12 years prior to the sentencing date. There had been no apparent trigger to the onset of these conditions. The applicant's symptoms had gradually increased to the point where he was unable to be in public places where there were many people, such as shopping centres.

1. The psychologist expressed the opinion that by 2008, the applicant's reported symptoms were severe resulting in the loss of employment, loss of independence and continuing avoidance of crowds. The psychologist diagnosed the applicant as suffering, at the time of the offending, an anxiety disorder - social phobia with panic attacks and depressive disorder secondary to an anxiety disorder.

1. Importantly however, the psychologist expressed the further opinion that while the applicant's agitation about family relations could have been exacerbated by his anxiety symptoms, his symptoms were not a factor underlying his offending. The judge found that the applicant was not cognitively impaired at the time of the offence.

1. The applicant did not give evidence. He told the psychologist that his social phobia would prevent him doing so, but he wanted to convey his remorse. The judge noted however, that comments made by the applicant recorded in the pre-sentence report and the account given in his recorded interview with the police, indicated that he sought to minimise the gravity of his conduct. Similarly, the applicant provided a history to the psychologist which suggested that the victim was engaged in significant acts in order to corrupt his wife and cause the breakdown of his relationship with her.

1. The judge found that the applicant's attempt to minimise his conduct suggested that he did not appreciate the gravity of his conduct and evidenced that he was lacking in insight as to the impact of his actions upon the victim.

1. The judge concluded that little weight could be given to the applicant's expressions of remorse, having regard to the explanation of his conduct provided to the psychologist and the probation officer. His Honour did take into account the applicant's expressions of remorse to others, as evidenced in the testimonials, in a limited way.

1. The judge took into account that the applicant's underlying mental health condition, including his social phobia, was likely to cause hardship in custody. He took this hardship into account as part of the mix of subjective factors. He also took into account the delay of about 3 years between the offending and the time of sentence, the 3 days spent in custody at the time of his arrest and his reporting obligations whilst on bail.

1. A 10 per cent discount was allowed for the utilitarian value of the plea. No complaint is made in this regard on appeal.

1. The judge was unable to make a finding as to the prospects of the applicant's rehabilitation. He considered that continuing treatment would significantly enhance those prospects.

1. The judge found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, in that the applicant required continuing mental health treatment, including psychological counselling and cognitive behavioural therapy. He accepted that due to the applicant's underlying mental health condition he was not an appropriate vehicle for the full weight of general deterrence.

Submissions on appeal

1. The applicant's written submissions accepted that no error attached to the judge's findings of fact or application of enunciated principle.

1. Nonetheless the applicant contended that in weighing the balance between the objective severity of the offending and the applicant's personal circumstances, the judge erred resulting in a sentence which is manifestly excessive. This submission relied upon a number of comparator cases as suggesting a manifestly excessive sentence in this case.

1. These cases are considered below. It should be observed, however, that the applicant's reliance on appeal on comparator cases is inconsistent with the position which was adopted before the sentencing judge. On that occasion, counsel for the applicant submitted that the circumstances in which the kidnapping-type of offence can be committed are so divergent as to make statistics and comparable cases of very little assistance (AB 176, Tcpt lines 1-3).

1. In oral argument the applicant contended that the sentencing judge was required to express a conclusion as to the "objective seriousness" of the offence, that is, where in the objective range the offending fell by reference to the maximum penalty for kidnapping.

1. The applicant argued that this requirement was supported by authorities which hold that a bare recitation of the facts constituting the offence and a reference to the objective features of the offence does not satisfy the requirements of sentencing: R v Cage [2006] NSWCCA 304 at [15]-[19] per Latham J (Hunt AJA and Johnson J agreeing). The applicant also referred to authorities emphasising that some assessment of the objective seriousness of any offending is an element of the sentencing process: Corby v R [2010] NSWCCA 146 at [49] per Johnson J; R v Gebrail (Unreported, NSW Court of Criminal Appeal, Mahoney JA, 18 November 1994) Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 452.

1. The applicant complained that the sentencing judge had failed to conduct any assessment of the criminal culpability of the applicant as against the maximum penalty for the kidnapping offence, taking into account the different elements of the offence and the varying degrees of criminality which attached to those elements.

1. The applicant also contended that the objective criminality of the applicant's offending, being that of intimidation, was at the lower end of the spectrum of kidnapping offences.

Manifest excess

1. A submission that a sentence is excessive (or inadequate) derives from the last kind of error identified in House v The King (1936) 55 CLR 499 at 505. As explained in Sheen v R [2011] NSWCCA 259 at [162] per Johnson J (Hall and Price JJ agreeing):

"To establish a ground claiming manifest excess, it is necessary for the Appellant to demonstrate that the sentence under challenge is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [27]. Absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. Nor is appellate intervention on the ground of manifest excess justified simply because (if it be the case) the result arrived at in the District Court is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where error is established in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 505: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]."

1. In the present case, the applicant's argument that the sentencing is manifestly excessive may be approached in one of two ways. The first is that, making due allowance for the seriousness of the kidnapping offence and the personal circumstances of the applicant, including his anxiety condition, the sentence should have been at the lower end of the scale. The second approach is that the sentence might be regarded as excessive because if his Honour had engaged in the exercise of more precisely identifying the level of objective seriousness, and properly analysed the relevant facts in the way the applicant contends he should have, the result would have been that he would have found the objective seriousness of the offending at the low level.

1. The problem with the first approach, in my view, is that it does not give sufficient weight to the regard the sentencing judge was entitled to, and did take to the facts as found by him, as to which no complaint is made.

1. Those findings included that the detention was marked by an intense period of aggression upon the victim; the applicant intended to place the victim in fear that she was going to be killed; the applicant sought to exercise violence with the intention of controlling familial relationships; the objective of the detention would have placed the victim in extreme terror; and that the victim believed that she was going to fall to her death.

1. The applicant's complaint that the judge should have given more weight to the applicant's personal circumstances does not establish error in the exercise of the sentencing discretion, let alone that the sentence is unreasonable or plainly unjust.

1. The problem with the second approach, in my view, is that contrary to the applicant's contention, the sentencing judge did assess the objective seriousness of the offending. The judge found that the offending was of "a most serious kind". The applicant did not dispute this finding. Indeed during the course of oral argument, counsel for the applicant acknowledged that the offence was clearly very serious: (AT 5.50).

1. The judge's assessment of the gravity of the offending was undoubtedly open to him on the facts as found. His Honour after clearly identifying the salient features of the offence, gave careful and thorough reasons for this finding. These are referred to in summary terms at [20]-[26] above.

1. Contrary to the applicant's submissions, the judge had regard to the separate elements of the kidnapping offence under s 86(1)(a) of the Crimes Act. No complaint is made by the applicant with his Honour's identification of the gravamen of the offence for the purpose of sentencing, being the unlawful detaining of a person. Nor is there any complaint made with his Honour's observation that the nature of the advantage that the offender sought to obtain is not the determinative factor, or considered to be conclusive, as to the seriousness of the offence.

1. The applicant's contention that the nature of the intimidation in the present case is at the lower end of the criminal spectrum must be rejected. The nature of the intimidation, as found by the sentencing judge, was extreme. The victim was put in fear of her life. She was placed from her mid-chest upwards over the railing facing a drop of some four storeys; she thought she was going to fall to her death. The applicant's characterisation of the nature of the intimidation is contrary to the sentencing judge's findings, which are not challenged. This is fatal to the applicant's submissions.

1. More generally it may be accepted that an assessment of the objective gravity of any offence has traditionally been an essential element of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349.

1. However, the applicant's submission that the sentencing judge failed to state precisely where in the range of "objective seriousness" the offending fell, paid no attention to the fact that the s 86 offence did not carry a standard non-parole period. Nor did the applicant address the authorities in this Court, both pre and post Muldrock v The Queen [2011] HCA 39; 244 CLR 120, which have considered the question of the extent to which the sentencing judge need make a detailed finding as to where the offending fell in relation to the range of objective seriousness, for offences which do not carry a standard non-parole period.

1. In this regard, there are a number of statements in this Court pre Muldrock, that in the case of an offence which does not carry a standard non-parole period, it is unnecessary for the sentencing judge to embark upon a detailed finding as to where the offence lay in relation to the range of objective seriousness for such an offence: Sivell v R [2009] NSWCCA 286 at [2]-[5] per McClellan CJ at CL; Georgopolous v R [2010] NSWCCA 246 at [3] per Allsop P, at [30] per Howie AJ; Nguyen v R [2011] NSWCCA 127 per Hoeben J at [38]-41] (McClellan CJ at CL and Grove AJ agreeing); Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[77] per Simpson J (Davies J and Grove AJ agreeing); Turner v R [2011] NSWCCA 189 at [53] per Simpson J (Basten JA and Garling J agreeing); Charbaji v R [2011] NSWCA 181 at [15], per Buddin J (Whealy JA and Harrison J agreeing).

1. As explained by McClellan CJ at CL in Sivell v R at [5], a distinction is to be drawn between the two modes of expression whereby a sentencing judge may indicate the seriousness of an offence under consideration:

"The 'objective seriousness' of an offence is a different concept to the 'seriousness of the offence', the latter expression being commonly used when determining the sentence, both total term and non-parole period (if appropriate) for that offence. Where a standard non-parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all of the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered."

1. These authorities should not be taken as doubting that any sentencing decision calls for attention to be paid to the objective gravity of the offending: Markarian v R [2005] HCA 25; 228 CLR 357; Khoury v R at [71] per Simpson J. Rather, where the offence in question does not carry a standard non-parole period, it is not necessary for the sentencing judge to have made a finding as to where precisely it lay in of the spectrum of offending: Charbaji v R at [15] citing Simpson J in Khoury v R at [74].

1. It has been observed in this Court post Muldrock, that the judgment of the High Court in Muldrock has left somewhat opaque the meaning of the term "objective seriousness": R v Koloamatangi [2011] NSWCAA 288 at [19]-[21]. Nevertheless, as subsequent decisions of this Court have stated, it remains part of a sentencing judge's function to consider the objective gravity of the subject crime and the moral culpability of the offender: Ayshow v R [2011] NSWCCA 240 at [39]; Sheen v R at [169]; Zreika v R [2012] NSWCCA 44 at [47].

1. In the present case, his Honour's remarks on sentence perform this function.

1. Taking into account the wide range of circumstances that offences under s 86 are committed, in my view, it was unnecessary for his Honour to express a more detailed view as to where the offending fell within the range of objective seriousness.

Relevance of comparator cases?

1. The applicant relies upon six cases as suggesting a manifestly excessive sentence in this case. However, this submission wrongly assumes that the wide variety of circumstances in which the offending can occur readily yields a range.

1. An examination of the facts in each case relied upon by the applicant confirms the limited utility of comparing outcomes of the exercise of the sentencing discretion, especially as between cases which involve very different circumstances of detention, and the extent to which the offender's mental state at the time of the offending was significant in some of those cases, and those in which it was not.

1. In Williams v R; Saunders v R [2006] NSWCCA 33, the appeal was allowed for Williams on the basis of parity in respect of a sentence of 4 years imprisonment comprising a non-parole period of 2 years for an offence contrary to s 86(2)(a) of the Crimes Act carrying a maximum penalty of 20 years. Williams was resentenced to 2 years and 6 months imprisonment with a non-parole period of 18 months.

1. There were a number of distinguishing features in relation to Williams compared to his co-offender, Saunders, who was sentenced to 4 years imprisonment with a non-parole period of 2 years. These included that a discount of 10 per cent ought to have been allowed in respect of Williams' offer to enter a plea; there were significant differences between both the objective and subjective factors concerning Williams' offending in contrast to his co-offender Saunders, in particular Williams was not the instigator of the offence and the unlawful detention was already on foot at the time he was contacted by his co-offender; Williams' involvement in the detention was only for a period of two hours compared to six hours in respect of Saunders; the purpose of the detention was to find out who were the victim's accomplices in a break-in at Saunders' premises when a motorcycle had been stolen; the nature of the detention involved driving the victim to a picnic area in a State Forest and forcing him to dig a hole and Saunders had said to the victim during the incident that it would be his "bed for the night". Significantly, at [45], Hall J (with whom Basten JA and Howie J agreed), accepted the sentencing judge's finding that personal deterrence was not as important as it may be in other cases.

1. Next, the applicant referred to Heine v R [2008] NSWCCA 61 and the cases referred to therein. The Crown correctly pointed out that Heine was specifically referred to in the Crown's written submissions below.

1. In Heine, after a 15 per cent discount for a guilty plea, the offender was sentenced to 4 years imprisonment with 2 years non-parole for the offence of detain for advantage contrary to s 86(1)(b) of the Crimes Act. The victim was Heine's wife. He had tied her hands together and her legs together whilst she was sleeping, produced two large kitchen knives, saying that one was for her and the other was for him, that he would kill her first and then kill himself. The purpose of the detention was to interrogate his wife to identify the man with whom Heine believed she was having an affair. Heine videotaped his interrogation. His wife believed that she was going to die. The detention lasted for several hours before Heine telephoned his brother and reported what he had done. His brother told him to free his wife, which he did.

1. The sentencing judge took into account a number of subjective features including that Heine suffered from a depressive illness, was psychotic and had an alcohol dependence.

1. In R v DRR [2004] NSWCCA 126, this Court dismissed an appeal against a sentence of 4 years and 6 months imprisonment with a non-parole period of 2 years and 3 months imposed for an offence contrary to s 86(1)(b) of the Crimes Act. This sentence was imposed on an offender who was suffering from a drug-induced psychosis at the time of the offence. The offender persuaded his victim to give him a lift in her car. His behaviour became increasingly bizarre during the course of the drive. He threatened to rape and kill her. The detention was for about four hours. The offender had previous convictions for dishonesty, drug and driving offences and one conviction for assault.

1. The sentencing judge took into account a number of subjective features including that the offender had a background of considerable hardship; he expressed remorse; he felt devastated for the victim and recognised the seriousness of the offence; there was moderation of both general and specific deterrence; he was being held in protective custody; and the discount for his guilty plea was 20 per cent.

1. In R v Lee [2003] NSWCCA 391, the offender was sentenced to 5 years imprisonment with a non-parole period of 2 years and 6 months for the offence contrary to s 86(1)(b) of the Crimes Act. The offender had entered a school to steal money from a classroom but was disrupted by students and teachers. He locked a teacher and a group of students in a storeroom and said that he had a bomb. He was armed with a knife and had threatened children. The detention lasted for 20 minutes before police arrived.

1. The sentencing judge took into account the offender's subjective features which included that he had been consistently seeking treatment for his mental illness and was discharged from a number of facilities in the weeks prior to the offence. His conduct in committing the offence was characterised as "bizarre" and his mental condition impacted his capacity to make rational judgments. Furthermore, the offender was remorseful and his sentence was to be served on protection. The discount for the guilty plea was 25 per cent.

1. In R v Pearson [2004] NSWCCA 129, this Court imposed a sentence following appeal of 5 years imprisonment with 3 years non-parole for three offences contrary to s 85A(1) (as s 86(1) of the Crimes Act was originally numbered). The offender entered the classroom of a school demanding to see his daughter, to whom he had been denied access over the Christmas period. He placed a can of petrol on the floor of the classroom and detained a group of school children and their teacher in an attempt to force the authority to produce his daughter. He had one prior conviction for assault. He was suffering from a major depressive illness. Fresh evidence was led on appeal to show that he had been advised to cease his medication six weeks prior to the incident. His sentence was discounted by 22.5 per cent to reflect the value of his plea of guilty.

1. The significant subjective features of the offender's conduct included that he had ceased taking his medication on medical advice; and the impact of the mental illness was significant in moderating of general deterrence, denunciation and punishment.

1. In Ha v R [2010] NSWCCA 83, the offender was sentenced to 3 years and 4 months imprisonment with a non-parole period of 2 years and 6 months for an offence contrary to s 86(2) of the Crimes Act. He had been convicted after a trial. His appeal against sentence was dismissed. The victim was known to the co-offender. The offenders had coordinated the luring of the victim to the offender's apartment at a time when both the offenders and another "large" person would be present, so as to intimidate the victim into providing the sum of $50,000. The sentencing judge regarded the physical assault on the victim by the co-offender as being relatively minor, but of sufficient severity to cause the victim to capitulate and thus render further violence unnecessary. The detention was for a relatively short period.

1. The sentencing judge agreed with the offender's submission that the objective seriousness of the offence was not at mid-range, however he considered the sentence imposed was appropriate having regard to the objective seriousness of the offence and the subjective circumstances of the offender.

1. As already noted at [66] above, the comparator cases are of limited utility. Furthermore, it may be observed that there are significant distinguishing features between the comparator cases and the present case.

1. First, there are differences between the discount for the plea of guilty allowed in some of the comparator cases and the discount allowed in the present. This affects the notional head sentence in those cases, and the present case.

1. Secondly, in each of Heine, DRR, Lee and Pearson, the sentencing decision reflected the weight given by the sentencing judge to the mental health condition of the offender at the time of the offence. By contrast, in the present case, the sentencing judge was satisfied that the applicant was not cognitively impaired at the time of the offence, although he did take into account his social phobia and anxiety condition as a relevant subjective feature.

1. Thirdly, in Williams v R, the case most strongly relied upon by the applicant, the lesser sentence imposed on Williams on appeal was on the basis of parity, and reflected his lesser role as co-offender and, the sentencing judge's finding that personal deterrence was not as important (in that case) as it may be in other cases.

1. In my view, these cases do not assist the applicant. The sentence imposed by his Honour lay within the range of proper exercise of sentencing discretion in the circumstances of this case.

Orders

1. I propose the following orders:

(1)   Leave to appeal against sentence granted.

(2)   Appeal dismissed.

1. R A HULME J: I agree with Gleeson JA.

1. ADAMSON J: I agree with Gleeson JA.

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Decision last updated: 31 October 2013