JCS v Regina JMS v Regina Regina v JCS Regina v JMS

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: JCS v REGINA , JMS v REGINA, REGINA v JCS, REGINA v JMS [2006] NSWCCA 221

FILE NUMBER(S):
2006/897
2006/905
2005/2242
2005/2244

HEARING DATE(S): 24 May 2006

DECISION DATE: 26/07/2006

PARTIES:
JCS (Appl/Resp)
JMS (Appl/Resp)
The Crown

JUDGMENT OF: McClellan CJ at CL James J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3085
03/21/3100

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

COUNSEL:
S Corish (Appl/resp JCS)
M Ramage QC (Appl/resp JMS)
P Barrett (Crown)

SOLICITORS:
Legal Aid Commission of NSW (JCS)
Marsdens Law Group (JMS)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
unlawful imprisonment
appeal against conviction
joint and several offences
validity of indictment for unlawful imprisonment
common law offence
inconsistencies in complainant’s evidence
whether open to the jury to accept complainant’s evidence
whether necessary to be against the will of the complainant
meaning of constraining and restraining
directions on element of intent
relevance of complainant’s state of mind
whether direction on drawing of inferences necessary
whether directions correctly addressed actions of an individual not part of the joint criminal enterprise
parental discipline
whether evidence available on each separate count was adequately distinguished from evidence not available
EVIDENCE
whether document, which the complainant had not adopted, ought to have been admitted
re-examination of the complainant
CRIMINAL LAW
unlawful imprisonment
Crown appeal against sentence
objective gravity
general deterrence
unusual offence
whether mitigating factors were ‘double-counted’
special circumstances
parental difficulties as mitigating factors
complainant’s age and condition as aggravating factors
impact of periodic detention
discretion not to intervene

LEGISLATION CITED:
Crimes Act 1900
Criminal Procedure Act 1986 NSW
Evidence Act 1995
Crimes (Sentencing Procedure) Act 1999

DECISION:
1. Both appeals against conviction dismissed
2. Crown appeals against both sentences dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/897
2006/905
2005/2242
2005/2244
McCLELLAN CJ at CL
JAMES J
HOEBEN J
WEDNESDAY 26 JULY 2006

JCS v REGINA
JMS v REGINA
REGINA v JCS
REGINA v JMS

Judgment

McCLELLAN CJ at CL: The appellants were tried jointly before Charteris DCJ and a jury in August 2005 on charges of failing to provide necessary food and unlawful imprisonment of the complainant, MS. This was the second trial of the appellants, the previous trial having been terminated late in proceedings in March 2004. JMS is the natural mother and JCS is the step-father of the complainant. Both appellants pleaded not guilty. The appellants appeal against their convictions. The Crown also brings an appeal against the sentences which were imposed. The counts were pleaded as follows:
Count 1: That they between 8 June 2000 and 17 April 2002 at Macquarie Fields in the State of New South Wales being persons legally liable to provide necessary food for [the complainant], a child, wilfully and without lawful excuse neglected to do so, such that the health of [the complainant] was likely to be seriously injured (s 44 of the Crimes Act 1900).
(The Crown was granted leave to amend the original indictment which referred to clothing and lodging).
Count 2: That they between 8 June 2000 and 17 April 2002 at Macquarie Fields in the State of New South Wales did unlawfully imprison [the complainant].
The jury acquitted both appellants on count 1, but convicted them on count 2.
On 28 October 2005, Charteris DCJ sentenced JMS to 1 year and 9 months imprisonment commencing on 5 November 2005 and expiring on 4 August 2007, with a non-parole period of 9 months, to expire on 4 August 2006.
JCS was sentenced to 1 year and 3 months imprisonment commencing on 5 November 2005 and expiring on 4 May 2007, with a non-parole period of 6 months, to expire on 4 May 2006.
Both sentences were ordered to be served by way of periodic detention. Being a common law offence, there is no maximum penalty for the offence unlawful imprisonment.
The prosecution case
The complainant was born on 8 June 1984. She lived with her younger sister, BS, and the appellants. JCS, her step-father, married her mother a year after she was born. Her step-brother, DR and his two children occasionally stayed at the house. Until June 2000, the complainant had shared a bedroom with her younger sister. She had two elder brothers who were not living at the house at the time.
The complainant suffers from a genetic condition, ectodermal dysplasia, which she inherited from her mother, who suffers from it to a lesser degree. As a result of the condition the complainant had significant facial disfigurement, affecting her skin, ears, teeth and hair, and had no breast tissue or nipples.
The complainant had an unhappy childhood, was teased about her appearance at school, and left at the age of 15. There was evidence that in the period leading up to her 16th birthday she had experienced difficulties at home and did not get along well with her mother.
The imprisonment was alleged to have occurred in a bedroom at the family home for a period of about 22 months. The Crown alleged that sometime around the complainant’s 16th birthday, which was on 8 June 2000, the appellants took steps to confine the complainant to her bedroom.
The Crown case was that the complainant was confined by placing a lock on the exterior of the door and on the window. When a search warrant was executed by Detective Sergeant Van Leeuwen on 17 April 2002, he found a lock on the window and the complainant’s mother admitted that the key was kept in the kitchen cupboard. A trampoline was also pushed up against the window shading it from the outside.
Detective Van Leewan also noticed that the light globe in the room had been removed. The complainant’s mother claimed the fitting did not work, although it did work when tested. There was evidence that the door lock had been moved at some time to a higher position on the doorjamb. Detective Van Leeuwan found polyester glass fibre resin smeared onto the jamb in a position which suggested that the holes had been filled after a slide-bolt securing the door had been removed. It was the Crown case that after the complainant’s escape the appellants removed the door lock and attempted to conceal the holes with filler.
The complainant’s evidence established that she was permitted to leave the room to use the toilet, was provided with a few changes of clothes, and showered infrequently. During the period of her alleged confinement she was provided with food once a day, but it was alleged that the food she was given was inadequate. The complainant also recalled being given Phenergan to make her sleep after the meal, and she said that much of her time in the room was spent asleep.
There was evidence that appellants told others, including MC, a neighbour, and PB, a family friend, that the complainant was away or staying with relatives interstate to explain why she was not present at any social occasions, including Christmas and birthdays. The complainant’s aunt on her mother’s side, KR, gave evidence that she did not see the complainant during the period, although her general contact with her sister’s family had ceased in 1999. The complainant’s brother’s girlfriend, DS, had been at the house a number of times between June 2000 and April 2002 and, although she thought she heard noises coming from the room, the door was always shut and she did not see the complainant.
The complainant allegedly escaped from the room on 17 April 2002 by breaking through the flyscreen of the partially opened window and went to the local Police Station. There she told Detective Hales that: “My mother has locked me in my bedroom for the past year and a half or two years”. She was treated at Sydney Children’s Hospital Campbelltown for severe malnourishment and anaemia. Dr Dunstan found that her eyes were abnormally sensitive to light, consistent with her being in a dimly lit room, and her ankles would not readily flex, consistent with her having been lying down for long periods. Dr Dunstan also found that her hygiene, dentition, exercise and mental state had been grossly neglected.
The defence case
The appellants did not give evidence at their trials. It was the defence case that the complainant was free to leave at any time and that the appellants did not jointly agree to imprison her. The appellants maintained that the complainant had invented a story in order to be allowed to live with her aunt KR. The appellant JMS, the mother, also argued that the complainant may have been influenced by her knowledge of a media organisation’s offer to pay $20,000 for her story. It was the appellant’s case that her physical state upon presenting at Campbelltown Hospital was due to a refusal to eat or undergo medical treatment.
The appellants relied upon a letter allegedly written by the complainant at the relevant time, in which she apologises ‘for the past and all the very stupid, unforgivable things’, praising and apologising to her mother and saying ‘you are the best family in the world and I could never find a better one’. The complainant remembered writing a letter of this kind ‘after I’d been in my room for a while’. In the first trial, she agreed that she had written the letter.
In May 1998 the complainant wrote a letter to her aunt KR, stating that she did not want to live at home any more, that she was made to sit in the laundry until midnight and that she was not given warm clothes. This was subsequently the subject of a Department of Community Services investigation, which found, upon visiting the complainant’s home, that the allegations were unsubstantiated.
The appellant JCS’s sister-in-law, TLS gave evidence that the complainant and her mother began to argue at about the beginning of 2000, because of possible plans to move the family to Queensland. She gave evidence that she saw the complainant while visiting the house, until October 2001, when the appellants separated. She gave evidence that the complainant ate with the family and slept in a room with her sister at this time. TLS also stated the the complainant had come to stay with her shortly before her 16th birthday, which she initially said was in October, and then said was in December.

Appeals against conviction

All the grounds for appeal against conviction are common to both appellants, except the first, which is only raised by JMS, the mother.
Ground 1: JMS (the mother): The trial miscarried due to a defect in the indictment
The appellant, JMS submitted that the second count on the indictment should have read: “That JMS … unlawfully and injuriously imprisoned [the complainant] and detained her against her will”. This wording was drawn from Archbold Criminal Pleading and Practice 2005 at 19-336.
It was submitted that as a result of the omission of the words “injuriously” and “detained her against her will” the jury were not directed in relation to essential ingredients of the offence. The suggested importance of the omission of “injuriously” was that it may have led the jury to place additional weight on expert evidence of alternative causes for the physical state in which the complainant presented at the hospital. The suggested importance of the omission of “detained against her will” was that the jury was not required to resolve the problem of evidence given by the complainant suggesting that she was not assaulted or threatened, and that she may on occasions have been free to leave the house.
An indictment must set out an offence known to law, including all its essential elements together with sufficient particulars (See Ex Parte Lovell; Re Buckley (1938) SR (NSW) 153 at 166. The essential element of the offence of unlawful imprisonment is a restraint of liberty. It is not essential to prove that the restraint was against the person’s will or ‘injurious.’ It may be the result of a trick or fraud or even without the person’s knowledge. (See R v Awang [2004] QCA 152 at [2]; MacPherson v Brown (1975) 12 SASR 184 at 196-7 and the discussion in GO v The Queen (1996) 102 FLR 299 at 319). Section 16(1)(b) of the Criminal Procedure Act 1986 NSW provides that an “indictment is not … defective” merely “for want of any averment of any matter unnecessary to be proved or necessarily implied.” The indictment in the present case did set out the essential elements of the offence and was not defective.
It was submitted that the indictment was also defective because it pleaded a conjoint offence even though the appellant, JMS’s plea was separately entered. It is well established that “indictments are to be read jointly and severally” (Street J in R v Fenwick (1953) 54 SR (NSW) 147). Where a single count on an indictment charges two or more persons with an offence it alleges “a separate offence committed on the same occasion by each defendant as part of the same transaction” (Taylor CJ at CL R v McConnell [1977] 1 NSWLR 714 at 720; See also R v Villar [2004] NSWCCA 302 at [36]-[46]; DPP v Merriman [1973] AC 584). The indictment cannot be defective by reason of its joint charge against the appellants.
Ground 1 of the appeal of JMS is not made out.
Ground 2: JMS (the mother): Ground 1: JCS (the step-father): The verdict was unsafe and unsatisfactory [unreasonable]
In R v Habib [2005] NSWCCA 223 I summarised the principles relevant to this ground of appeal in the following terms:
“Section 6(1) of the Criminal Appeal Act provides as follows:
‘The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.’
Although the application of the section has at times proved troublesome it was authoritatively considered by the High Court in MFA v The Queen (2002) 213 CLR 606, M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439 at 493.
There are two joint judgments in MFA. Gleeson CJ, Hayne and Callinan JJ state that when the issue is whether the verdict of a jury is unreasonable or cannot be supported the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M:
‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’
As the High Court emphasised in Chamberlain v The Queen(No 2) (1984) 153 CLR 521 it is important to appreciate that the role of the Court of Appeal is to decide a question of fact. "It is supervising or reviewing the findings of a tribunal of fact" (see Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643; R v R (1989) 18 NSWLR 74).
In MFA the High Court was concerned with whether the analysis of the facts of a trial by this Court was appropriate. In carrying out the appellate task the joint judgment emphasised that it was relevant to identify whether the evidence in the Crown case was "cogent and unequivocal, and it was not inherently implausible"[30]. The relevant question is whether "it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt" [36].
In MFA, McHugh, Gummow and Kirby JJ joined in a separate judgment. Their Honours emphasised that it was important to focus on the language of s 6(1) which because of the inclusion of the word "unreasonable" "seems to state a very broad test"[47]. However, their Honours point out that the seeming amplitude is to be restricted by the context. Being a verdict of a jury which is given a special place in the law to set it aside involves "a serious step"[49]. The requirement of the section is that the court must determine whether there has been a "miscarriage of justice" notwithstanding that the jury has returned a guilty verdict.
Embracing the test adopted by the majority of the court in M the joint judgment stated:
‘Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence' [55].
The joint judgment offered the following by way of guidance:
‘The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].
In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention [96].”
In the present matter, the appellants submitted that the verdicts were unreasonable because it was not open to the jury to accept the complainant as a reliable witness due to the inconsistencies in her account of her incarceration and her evidence generally.
The appellants point to inconsistencies in the complainant’s claim that she was detained in the room for 22 months. They emphasise that the complainant did not give evidence about the initial occasion when she was locked in the room or the exact date on which it occurred. The complainant could not recall anything being said about her staying in her bedroom. However, she did recall hearing her parents fix the bolt to her bedroom door.
The complainant admitted in cross-examination that there may have been at least one occasion when she was alone in the house. The complainant’s sister did not lock the door when they were together in the house and there were occasions when the complainant could have left the house, especially when alone with her sister. The complainant gave evidence that she knew there was a telephone and how to dial the emergency number, but made no attempt to do so. She was from time to time allowed to watch television with her sister or M, one of the children who visited the house. The complainant said that she did try to leave the house, but was unable to say when she had made this attempt.

The appellants also drew attention to other inconsistencies in the complainant’s evidence bearing upon the complainant’s reliability. These included: the complainant’s admission to having been dishonest in the past; the letter written to her Aunt KR in 1998, which resulted in a Department of Community Services investigation which did not substantiate any of the allegations of mistreatment made in the letter; discrepancies in her evidence as to when her relationship with her mother deteriorated and whether she had refused to eat to punish her mother; and the location where her sister slept in the house.
The Crown argued that it did not matter that the complainant could not remember the exact date on which the offence was commenced since she placed her incarceration within a month after her sixteenth birthday. In addition, the complainant did recall hearing the slide-bolt being affixed to the door whilst she was in the bathroom. In relation to her opportunity to leave the house, the Crown emphasised that the complainant explained: “well she wasn’t exactly just going to let me walk out of the door. I didn’t know where my parents were, if they were on their way home, coming home. I didn’t know where to go what to do.” It was the complainant’s evidence that during the 22 months, she never felt that an attempt to escape would have been successful.
The Crown submitted that there was nothing in the inconsistencies raised by the appellants that went so far as to demonstrate that her evidence was inherently unreliable. The Crown also pointed to evidence supporting the complainant’s account of events including: the evidence of the light globe being removed and the window being obscured, the fact that a slip-lock had been on the door and recently removed, the torn flyscreen, the lock on the bedroom window, the evidence of her aunt KR, her brother’s girlfriend, the neighbour and the family friend all of whom gave evidence that they had not seen the complainant during the relevant period.
Whether or not the fact that the complainant could not recall the exact date of her incarceration indicated that she had not been imprisoned was a matter for the jury. The evidence that she may have been free to leave, but did not take the opportunity to escape was also to be evaluated by the jury having regard to the whole of the evidence. To my mind it was open to the jury to be satisfied beyond reasonable doubt that the complainant had been unlawfully imprisoned.
The fact that there may have been some inconsistencies in the evidence does not mean that the verdict was unreasonable (see R v DBG (2002) 133 A Crim R 227 at [65] and [69]). It was for the jury to assess the impact, if any, of the inconsistencies and determine whether to accept the complainant’s evidence in spite of them.
It was further submitted that the acquittal on count 1 was inconsistent with the verdict on count two, because proof of both charges depended on the acceptance of the complainant’s evidence. It was argued that since most of the complainant’s evidence related to the failure to provide sufficient food, and the appellants were acquitted of this charge, then the jury must have rejected the complainant’s evidence.
The trial judge was careful to direct the jury to give separate consideration to the evidence in relation to each of the counts. The complainant gave evidence that at times during the relevant period she had refused to eat, and that on occasions she was permitted to eat with the family. However, she was adamant that she was not permitted to leave the premises from June 2000 to April 2001. The trial judge addressed the evidence with respect to the food charges in his remarks on sentence when his Honour said:
‘The jury found each of the offenders not guilty of that charge. It is understandable that such a verdict was arrived at. The evidence, taken in its totality, reveals that there was some evidence that [the complainant] would not eat on occasions and would be motivated not to do so in order to “repay” her mother because she had some ill-feeling towards her mother as a result of some discontent or argument between them’
In these circumstances, the finding on count one did not mean that the jury had necessarily disbelieved the complainant or that all her evidence was unreliable (see MFA v The Queen (2002) 193 ALR 184 at [34]).
The verdict was not unreasonable and this ground of appeal should be rejected.
Ground 3: JMS (the mother): Ground 2: JCS (the step-father): The trial judge erred in his direction on the ingredients of the offence
The appellants submitted that the trial judge should have directed that the Crown had to prove that there was total physical restraint of the complainant, not just moral restraint. The appellants submitted that his Honour ought to have:
(i) directed the jury that there could not be restraint by omission;
(ii) pointed out to the jury the distinction between persuasion and duress; and
(iii) explained that to establish restraint by authority there must be evidence that the person restrained felt they were obliged to submit to that authority.
The trial judge’s direction on the elements of the offence of unlawful imprisonment was as follows:
“Members of the jury, the second count in the indictment is that between 8 June 2000 and 17 April 2002 at Macquarie Fields did unlawfully imprison [the complainant]. Members of the jury, again there are elements that have to be proved beyond reasonable doubt. There are two elements I put to you. The first element is that there was an unlawful and total restraint of the personal liberty of [the complainant] by restraining her against her will or compelling her against her will to a particular place. Members of the jury, if I might just correct myself there, it is “constraining” not “restricting”. Constraining her against her will or compelling her against her will to a particular place and not leave it. An alternative meaning to that expression “unlawful and total restraint of personal liberty” includes actually confining her against her will to a particular place. I suppose the alternatives there are directing someone to go somewhere and on the basis that they are not to leave it or, alternatively, physically taking them somewhere and throwing then into the room – that is, confining them there. So you have to be satisfied beyond reasonable doubt that there was unlawful and total restraint of personal liberty of [the complainant] by wither constraining her against her will or compelling her against her will to go to a particular place or confining her against her will to a particular place.
The second element is that the accused must intentionally have done so. In other words, that in the case against each accused it must be proven that he or she intended to unlawfully and totally restrain the personal liberty of [the complainant].”
The elements of the common law offence of unlawful imprisonment were defined in R v Busuttil [2006] SASC 47 by Anderson J at [37] in these terms:
1.The accused acted on the occasion in question by compelling the victim to remain in a particular place without his consent and against his will;
2. That the restraint was deliberate and that the accused intended to constrain the victim from leaving; and
3. That the accused had no lawful excuse for his conduct.
However, as I have indicated at para [22] this description is in one respect not correct. It is not an essential element of the offence that the person be detained against their will although this may often be the case. In the context of a discussion of the relevant Northern Territory statute Asche CJ said:
“If there is any doubt about this I think one may properly look at the heading: see Knight v Lambrick Contractors Ltd [1957] 1 QB 562 at 566, per Parker LJ. The heading is "Deprivation of Liberty".
The distinction therefore is not to be sought in the words "confines or detains ... or otherwise". That is, one does not look for some expression other than "confines" or "detains" to read with "or otherwise". The distinction is in the words "against his will or otherwise deprives another of his personal liberty". The words "or otherwise" are there to cover cases where the Act recognises, as the common law recognised, that there can be unlawful detentions of personal liberty even if it cannot be shown that such detention was against the will of the victim. Such cases can be easily imagined. Insane or very ill persons or very young children may not possess the capacity to consent. A drunken or drugged person may have temporarily lost the capacity to give consent or give a consent which is a real consent. Consent may be obtained by fraud or a trick. A person may be unlawfully deprived of his liberty without his knowledge; for example, if he is locked in while asleep, for, even though the door be unlocked before he wakes, that period between locking and unlocking could still constitute a deprivation of personal liberty. Many of these examples are considered by Atkin LJ (as he (1990) 102 FLR 299 at 320 then was) in Meering v Grahame White Aviation Co Ltd (1919) 122 LT 44 at 53-54. His Lordship said:
‘It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious and while he is a lunatic ... So a man might in fact, to my mind, be imprisoned by having the key of a door turned against him so that he is imprisoned in a room in fact although he does not know that the key has been turned."
The appellants submitted that His Honour was in error in failing to direct the jury that they had to be satisfied beyond reasonable doubt that the complainant remained in the room for the whole period as a direct result of the appellants’ actions, rather than because of what were described as her own misguided beliefs. The Crown responded that it was unnecessary for the prosecution to prove that each appellant was directly involved in the detention of the complainant for the entire period and, furthermore, that there was sufficient evidence that the appellants’ actions justified the complainant’s belief that she was not free to leave.
It is unnecessary for the trial judge do other than clearly state the relevant legal principles and direct the jury on all the elements of the offence which relate to the particular facts and issues in dispute (see The Queen v Chai [2002] HCA 12 at [18]; R v Williams (1990) 50 A Crim R 213 at 214). Accordingly, it was not necessary for his Honour to explore the legal complexities of the offence beyond the matters that the jury was required to consider having regard to the factual allegations made in the Crown case.
It is apparent that by telling the jury that they had to be satisfied that the complainant had been held against her will his Honour went beyond the essential elements of the offence. However, all this meant was that an additional and unnecessary burden was imposed on the Crown.
In my opinion his Honour’s directions otherwise adequately identified the relevant elements of the offence. The jury were entitled to conclude that, by reason of direction given to the complainant and her acceptance that she was required to obey the appellants, the offence was made out.
The appellant further argued that His Honour’s directions were confusing and misleading because they gave examples not relevant to the present case. The particular passage in the summing-up which the appellant submitted was inappropriate was: “I suppose the alternatives there are directing someone to go somewhere and on the basis that they are not to leave, or, alternatively, physically taking them somewhere and throwing them into the room.”
In my opinion, in the context of his Honour’s directions, these were merely examples of the meaning of the words “constraining” and “restraining”. The jury could not have been misled.
The appellants also argued that his Honour’s directions confused the assertion that the complainant was not free to leave with her assertion that she believed she would have been restrained from leaving. Attention is drawn to the following passage:
“As I understand the prosecutor’s case in this matter, it is not suggested that [the appellants] directed that [the complainant] must go to her room and not come out. The words were not expressed according to the Crown’s case. What occurred, however, was that she went to her room and was locked in her room and was only allowed out of the room, with some exceptions, to go to the toilet.
Members of the jury, the Crown’s case on opening to you was that the unlawful imprisonment occurred in the bedroom of the home in [the complainant’s bedroom] – that was what the Crown put to you as the particular place. The Crown’s case, was I understand it, is that the occasions that [the complainant] left that particular place she still remained imprisoned in that her personal liberty was unlawfully and totally restrained – she was not free to leave. If she had attempted to leave, her belief was she would have been restrained from leaving. That is why the Crown has put to you that particular case. I will come later to the arguments put to you on behalf of the accused that, in fact, [the complainant] had the opportunity to leave and in that regard could not be considered to be unlawfully and totally restrained as regards her personal liberty.
In my opinion this submission cannot be accepted. This passage from his Honour’s summing up is a summary of the Crown’s argument and supporting evidence. His Honour clearly indicated that it was for the jury to determine whether the complainant was unlawfully imprisoned, taking into account the fact that she was occasionally allowed to leave the room.
The appellant further submitted that his Honour’s statement that “If she had attempted to leave, her belief was that she would have been restrained from leaving” was not supported by the evidence, and that the complainant’s evidence only went so far as to establish that she had no reason to believe that any attempt to escape would have been successful. However, as I have indicated, his Honour made the observation in the context of summarising the Crown case. As the quoted passage indicates his Honour dealt at a later time with the appellants’ arguments in relation to the approach which should be taken to the relevant evidence. I do not believe that his Honour’s direction could have confused or misled the jury in any way.
Counsel for the appellants did not raise any of these matters when his Honour invited submissions at the conclusion of his summing up, and accordingly Rule 4 of the Criminal Appeal Rules applies. Leave to rely on this ground should be refused.
Ground 4: JMS (the mother): Ground 3: JCS (the step-father): The trial judge erred in his directions to the jury on intent
His Honour’s directions in relation to intent were as follows:
“The second element is that the accused must intentionally have done so. In other words, that in the case against each accused it must be proven that he or she intended to unlawfully and totally restrain the personal liberty of [the complainant]. Concepts, members of the jury, of intention are entirely, of course, a matter for you. Intent and intention are very familiar words. In the legal context they carry their original meaning. Intention may be inferred or deduced from the circumstances from which the detention occurred and from the conduct of an accused before or at the time or after he or she did a specific act. Whatever a person says about his or her intention may be looked at for the purpose of finding out what that intention was, in fact, at the relevant time. In some cases, however, a person’s actions may themselves provide the most convincing evidence of his or her intention. Where a specific result is the obvious and inevitable consequence of a person’s act and when that person deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving the specific result. In other words, there can be expressions by a person as to what that person intends to happen. More frequently, you might think, people do not express verbally what they intend to happen but when you look at their actions, you can see what their intention was.”
Later in the summing up, his Honour returned to the issue, saying:
“Members of the jury, there was one other matter that I did direct you about intention and I may have, by a slip of the tongue, not accurately reflected what the law is and if I may just repeat that about a person’s intention: Intention may be inferred or deduced from the circumstances in which something is done and from the conduct of the accused before, at the time or after the happening of a specific event. Whatever a person says about his or her intention may be looked at for the purposes of finding out what exactly that intention was at the relevant time. In some cases a person’s act may themselves provide the most convincing evidence of his or her intention. Where a specific result is the obvious and inevitable consequence of a person’s act and where he or she deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving that specific result. But intention, as I have put to you, may be inferred or deduced from the circumstances in which the offence occurred and from the conduct of the accused. In other words, from what one can say and also from what one does and the circumstances in which one does it.”
The appellants complain that when his Honour later referred to the Crown case he misdirected the jury by indicating to them that they could infer the necessary intention of the appellants from the belief of the complainant that she would have been restrained from leaving the premises.
The direction complained of is set out at [46] above.
To my mind this submission reflects a misunderstanding of the direction which his Honour gave. The reference in the later direction to the complainant’s belief was not made with reference to the intent of the appellants. Rather his Honour was, in my view correctly, identifying the way in which the Crown put its case. The actions, including no doubt words of the appellants had effectively constrained the complainant, inter alia, by inducing in her a belief that she could not leave.
The appellants separately complain that the trial judge did not adequately explain the reasoning process for the drawing of inferences relevant to the appellants’ intention. However, a trial judge has no obligation to give directions on the drawing of inferences, where the inference is as to the accused’s state of mind. As Hunt J said in R v Tillott (1991) 53 A Crim R 46 (Gleeson CJ and Samuels JA agreeing) at 50:
“In the present case, it is necessary to look first at the extent to which the actions of the two accused (as opposed to the intention with which they were done) were to be established by circumstantial evidence. This was not, in my opinion, a case in which a circumstantial evidence direction would have been appropriate in relation to those actions. It is true that certain inferences were required in relation to the physical acts done, but the central issue in the case was whether the appellant was a party to a joint enterprise with Wilson to commit an armed robbery of the Auburn Hotel. That was an issue relating to the appellant's state of mind.
The one situation in which it has certainly not been the practice to give a circumstantial evidence direction is where the only inference (or the only substantial inference) which has to be drawn is one as to the accused's state of mind. Where (as in the present case) there is no evidence by way of admission as to what an accused's state of mind was, that state of mind must always be established by way of inference -- usually from what the accused has said or done; a person's actions often provide the most convincing evidence of the intention with which he does those actions. In such cases, that practice has existed because no circumstantial evidence direction is required by law.”

The Crown cases were not prosecuted by reference to circumstantial evidence with respect to the appellants’ actions. Inferences were only required to be drawn with respect to their respective states of mind. A direction on the drawing of inferences was not required and none was sought at the trial.
Leave under Rule 4 to rely on this ground should be refused.
Ground 5: JMS (the mother): Ground 4: JCS (the step-father): The trial judge erred in failing to direct the jury in respect of the evidence of BS (the sister)
The appellants submitted that the trial judge should have directed the jury to only take account of the sister’s alleged acts if they were satisfied that she was the agent of the appellants or party to the joint criminal enterprise.
I do not accept that submission. The Crown did not allege that the sister was part of the joint criminal enterprise, and did not argue that she was the appellants’ agent and did not rely on principles relevant to the commission of acts associated with crime by agents. The prosecution case relied on the complainant’s evidence of continuing constraints of her movements, and circumstantial evidence supporting her account. The relevance of the sister was confined to the question of whether the Crown could make out its case when from time to time the sister was the only person present in the house with the complainant. Whether, because at times both appellants were absent, the Crown had made out its case was a matter for the jury.
No direction regarding the role of the sister was requested at the trial. Leave under Rule 4 to rely on this ground should be refused.
Ground 6: JMS (the mother): Ground 5: JCS (the step-father): The trial judge erred in failing to direct the jury in respect of parental discipline
The matter of parental discipline was addressed in a discussion between the trial judge and counsel relating to whether an issue of lawful excuse for the actions of the appellants was to be raised. The exchange was as follows:
“HIS HONOUR:    Lawful excuse, without lawful excuse, I gather there is no issue about lawful excuse in this case? No issues being put to the jury, am I correct, Mr Price and Mr Smith, of lawful excuse?
SMITH: For my part yes, that’s correct.
HIS HONOUR:     Mr Price?
PRICE:    For my part it is too, your Honour.
HIS HONOUR:     No lawful excuse. Wilfully is a matter that I will tell the jury which means consciously and intentionally, but there not being any lawful excuse thrown up in relation to the evidence, if the jury were satisfied of the allegations beyond reasonable doubt, then there’s no matter for them to consider about lawful excuse in this case.
PRICE:    That’s right.
HIS HONOUR:     It’s not the type of case, for instance, where there’s an allegation of assault against a child and there is excessive force used in correction and the accused relies on lawful excuse that I have the right to correct my child, very different to that. Would you agree with that, Mr Price and Mr Smith.
PRICE:    Yes, your Honour.”
His Honour’s direction in relation to parental discipline was as follows:
“In the course of this trial there has been no submission on behalf of either accused, if the Crown has satisfied you beyond reasonable doubt of the allegations of [the complainant], that whatever [the appellants] were doing was with lawful excuse. In other words, it has not arisen in this case – it has not been the source of any evidence. It has not been the source of any submissions to you but it is an element, the Crown has to prove, that it was without lawful excuse.
You will view the behaviour of [the appellants] in the circumstances of the relationship they had with [the complainant] as her mother and stepfather respectively. Parents have a special relationship obviously with their child or children. Parents have the right in our society to discipline a child, direct a child, restrain a child – give a child a smack on the bottom on occasions. That is all with lawful excuse. For example, there may be many in this courtroom who have sent a young child to the room and said there is now “time out and you go to your room and we are closing the door and you cannot come out.” That is not an offence because it is with lawful excuse. It is within the parameters of what one is entitled to do as a parent. In this case, the Crown in saying that what it alleges occurred in relation to [the complainant] was well outside the parameters of any lawful excuse of a parent who was disciplining a child in the course of raising that child.”
While the appellants submitted that this direction was given in respect only of count 1 and should have been given in relation to count 2, this is clearly not the case, especially given his Honour’s example, even though it was raised in discussion of the count 1 elements. The Crown submitted that the detention in this case was “for such a period in and such circumstances as to take it out of the realms of reasonable parental discipline”(R v Rahman [1985] 81 Cr A pp R 348 at 354). In my opinion, this submission was correct. In a case where the duration of the alleged detention was 22 months, a direction on the defence of lawful correction could only have been distracting and confusing for the jury. His Honour’s direction was more than sufficient.
No further directions were sought at the trial, and Rule 4 applies. Leave to rely on this ground should be refused.
Ground 7: JMS (the mother): Ground 6: JCS (the step-father): The trial judge erred in his conduct of the trial in a number of respects
a) The tender of an alleged letter to the complainant’s mother
The appellants submitted that the judge erred in rejecting the tender of a letter that the defence alleged had been written by the complainant and allegedly contained a prior inconsistent statement (see s 43 of the Evidence Act 1995). In cross-examination of the complainant, the letter she sent to her aunt on her mother’s side, KR, in May 1998, which was later the subject of the DOCS investigation, was admitted into evidence.
Counsel then sought the tender of the rejected letter, which, it was alleged, was also written by the complainant. When shown the letter, the complainant totally denied writing or causing the letter to be written. Later, the following exchange occurred in which the contents of the letter were effectively admitted into evidence:
“SMITH: Q.         I just want to go back through some questions and answers that you were asked and gave on 2 March 2004. May it please the Court at page 133 at line 29, ‘Q. Now have a look at this please, is that a letter you wrote? A. I don’t recall this letter, it’s possible that I could have wrote, but I don’t remember it at all. Q. It’s possible that you could have wrote it? A. Yes. Q. Looks like your handwriting? A. Yes. Q. And was that letter intended for your mum? A. I am not sure, as I said I don’t remember this letter at all. Q. You agreed with me earlier that the friend who you got to write the letter to [KR] was a young girl called H, is that right? A. Yes. Q. In the document that I’ve just put before you, you don’t deny that this is your letter, you’re just saying now that you can’t remember writing, is that right? A. Yes. Q. And in that letter it says, ‘I’ve been looking for you all day, I just wanted to tell you about the letter. First of all I didn’t write it, well I wrote it on a rough piece of papers and H wrote it neater on the piece of paper.’ Now is that a reference to the letter that you got H to write which went to [KR]? A. Yes. Q. The letter where you made this accusations against you mum? A. Yes. Q. It goes on, ‘and the letter should be the other way around, really it’s me that is killing my mum, mentally because I am so rude, disrespectful and rude, dishonest and deceiving and was very selfish of me to write something so disrespectful and untrue I didn’t think it would cause so much trouble and heartbreak for my mum and am very sorry for causing everyone all the trouble that I have caused. My mum asked me yesterday to look deep into my heart and tell her really what I wanted to happen and wherever I want it happen. Whether I wanted to stay with her or go to [KR] And I said I wanted to stay at home and she said, okay. So me and her are like old buddies and I am very happy because she put up with me for this long and is still willing to keep me in her family after that very untrue and selfish letter, thanks ….’ That’s the letter you wrote to your mum, isn’t it? A. As I said, I don’t remember the letter at all it’s not familiar to me.” You were asked those questions and gave those answers, correct?
A.           Yes.
Q.           When you were asked those questions and gave those answers you understood that the questions and answers were relating to the letter that I’ve just shown you, correct?
A.           Yes.
Q.           I suggest to you that that is a letter that you wrote?
A.           No.”
The Crown objected to the tender of the letter on the basis that the witness had not adopted it as her letter. The issue of the admissibility of this second letter was argued in the absence of the jury. The trial judge ruled that it was inadmissible because Counsel had not informed the witness of the provenance of the letter as required under s 43(2)(a). The following exchange with Counsel makes his Honour’s reasoning clear:
“HIS HONOUR:    Her evidence is in this court that she said that she hadn’t written it and it wasn’t her handwriting. In the lower court she said I don’t remember the letter at all, it’s not familiar to me. Then she’s asked can she deny it’s hers. She says no. On the state of that evidence do you say a jury could conclude she had written it.
SMITH: Yes.
HIS HONOUR:     Without other evidence?
SMITH: With the evidence I’ve referred to in the letter.
HIS HONOUR:     That would mean would it not that in a case unassociated with this if one were to in similar circumstances to this take the letter written by the friend and a year or so after the committal for trial, draft out a letter in similar handwriting in note form and you show it to a witness and the witness says I don’t remember it, it’s not familiar to me, I can’t deny that I wrote it. You say that would then be admissible and a jury could conclude that that letter in the circumstances of which I said, which is a forgery, was reliable on that evidence.
SMITH: It may not be, but that respectfully is different factually to the case here. Can I expand on my submission in this case.
HIS HONOUR:     You haven’t revealed to her the source of the document. I assume that you would be able to prove the source of it. You’ve cross-examined about the Department of Community Services and the like. I am unclear from the portions you’ve quoted from it at what stage these things are being said about ‘we are not like old buddies’ or words to that effect. I wondered whether it was something that occurs as a result of the Department of Community Services investigation, but as regards provenance of the document I assume you’d be in a position to establish its provenance. The Crown has objected to it. There is no agreement as to its provenance. The state of the evidence in my view does not entitle me to admit it, because the jury – you say the jury can look at the exhibit 1 and therefore infer that the witness wrote this piece of paper. I regret that I’m against you from your point of view I regret it because I don’t think the jury can infer that from the material that you have put before the jury. In my view it would be a matter of speculation for the jury to conclude that it had been written by the witness.”
The appellants submitted that there was sufficient material in the letter’s content for the jury to infer its authorship, and that it was important in establishing a pattern of denials and ‘lack of recall’ in the complainant’s evidence.
No evidence was led as to the provenance of the letter and the Crown did not concede that it was part of the Department of Community Services file. I am satisfied that his Honour correctly applied s 43 and that, without knowing the provenance of the letter, it could not be admitted at that point in the trial.
b) The re-examination of the complainant
In re-examination of the complainant, the prosecutor was allowed, over objection, to ask: “… has it ever been suggested to you before that in December 2000 you stayed with [your Aunt, TLS] for the period of one week?” The appellants submitted that this question had no probative value and should not have been allowed.
The Crown argued that the question went to the credibility of the complainant’s aunt, her step-father’s sister-in-law, TLS. TLS gave evidence in both trials. Counsel for JMS, the mother, indicated late in the Crown case in the second trial that he wished to lead evidence from TLS. His Honour allowed this evidence to be led and allowed the complainant to be recalled and re-examined in light of any new matters raised. In her evidence TLS stated that the complainant stayed with her for a few days in October or December 2000. The prosecutor’s question regarding when the complainant had first heard the suggestion that she had visited TLS at this time was relevant to the reliability of TLS’s statement.
His Honour’s reasoning in admitting the question is revealed in the following exchange:
“PRICE: Objection. Is that proper re-examination your Honour? My objection is that it’s not.
HIS HONOUR: I think the question can be asked in re-examination. What the question is going to I think is when did the witness first hear the suggestions that you have put. I think she can be asked that.
PRICE: That could’ve quite easily been led in-chief though your Honour.
HIS HONOUR: But the propositions couldn’t have been led in chief because you hadn’t put them in cross-examination, is that so?
PRICE: They could’ve been because my friend was well aware of what I was going to ask.
HIS HONOUR: Well, it’s a type of question which would normally be addressed in re-examination. When propositions are put the re-examiner is entitled to ask when had you first heard that suggestion …”
In my opinion the question was relevant and admissible in re-examination of the complainant for the reason suggested by his Honour.
c) Distinguishing evidence admissible on each count
The appellants submitted that the trial judge did not direct the jury as to the evidence which was admissible on each count. The appellant’s concern was that it was left to the jury to consider the body of evidence, particularly the medical reports, records and photographs, which were relevant to the first count, as evidence in relation to the second count.
In response the Crown submitted, in my opinion, correctly, that his Honour’s directions respecting the need to consider each count separately and the elements of each offence, as well as his clear summary of the evidence, were sufficient. In my opinion there was no need to further complicate the directions where the different elements of each offence were so clear (See R v Williams (1990) 50 A Crim R 213 at 214).
The practical answer to the submission lies in the fact that the jury acquitted on count 1 but convicted on count 2. They clearly considered the charges separately.
No request for directions in relation to this issue was made at the trial, Rule 4 applies and leave to rely on the third aspect of this ground should be rejected.
In my opinion, no error in the conduct of the trial has been demonstrated. This ground of appeal is not made out.
Conclusion on conviction appeals
Both the appeals against conviction should be dismissed.
Crown appeals against sentences
The Crown submitted that the sentences and non-parole periods imposed on the respondents do not adequately reflect the objective gravity of the offence and the need for general deterrence. The Crown submitted that a period of confinement of 22 months far exceeded the minimum period necessary to constitute the offence, increasing its objective gravity. In support of this submission the Crown referred to two recent cases involving unlawful imprisonment in NSW, both of which involved sentences of 2 years (See R v Colebrook [1999] NSWCCA 262; and R v Bourke [2000] NSWCCA 414). Although the respondents were not convicted of failing to provide necessary food, the Crown also submitted that the complainant’s physical condition at the conclusion of her confinement added to the gravity of the offence.
The respondents submitted that the two cases referred to by the Crown both involve violent assaults and are not comparable or useful. The respondent JCS emphasised his Honour’s finding that he was ‘satisfied on the evidence … that each of the offenders was not seeking to cause physical harm … There was no physical beatings no violence whatsoever’. The respondents also submitted, that his Honour clearly took the duration of the complainant’s imprisonment into account.
The Crown also submitted that the sentencing judge had erred by taking mitigating factors into account for the purpose of calculating the head-sentences as well as the non-parole periods and therefore effectively “double-counted” (See R v Fidow [2004] NSWCCA 172). The non-parole periods of 6 months for JCS and 9 months for JMS, represent 40% of the total term. While, his Honour found special circumstances in both cases, the non-parole periods are a substantially below the statutory norm, and the Crown submitted that this is indicative of error.
The Crown also submitted that his Honour erred in treating the difficulties involved in raising the complainant as a mitigating factor rather than an aggravating factor due to her vulnerability. In this respect his Honour said:
“I take into account, in relation to both [JMS] and [JCS], that the court must have regard for the difficulties that they would have encountered in raising children who were perceived by others to look unusual or abnormal. [JCS], the evidence satisfies me, has been a very hard worker who has supported his family. The evidence in respect of [JMS] also supports a similarly favourable view. In the course of argument I have observed that it is easy for one to say that one understands how difficult it must be to live in a community when, through physical deformity, you appear very different to what is said to be the normal person. But no amount of attempting to understand what it would be like would enable one truly to understand. Only [JCS] and [JMS], who have had to walk that journey, would know the difficulties they would encounter and how they would have to respond to the cruel observations of children who have said something unkind about their children. The whole family has had a terrible burden, in my view, and nothing I have said should be taken as criticism of them in trying to do the best for their family.”
In response to these submissions the respondents submitted that error is not self-evident. They argued that subjective matters including the lack of relevant criminal records, good character references, and the negligible prospect of reoffending were sufficiently persuasive to warrant a lower non-parole period.
The Crown also submitted that the complainant’s age and condition made her a vulnerable person within the meaning of s 21A(2)(l) of the Crimes (Sentencing Procedure Act) 1999, and this should have been regarded as an aggravating factor.
Although there is some force in this argument, it is necessary to examine his Honour’s particular remarks. His Honour said:
“There is a general principle as to how the law operates concerning the protection of young children … Many parents in our community regrettably have the added burden of having disabled children or difficult children. The community does not accept that confining such a child to his or her room is remotely acceptable behaviour.”
From this passage I infer that his Honour accepted that the complainant’s age and condition was an aggravating factor.
The Crown further submitted that the sentences were unduly lenient by reason that they were ordered to be served through periodic detention (See R v Hallocoglu (1992) 29 NSWLR 67 at 73.) The Crown submitted that a sentence of periodic detention had negligible deterrent force.
Conclusion and discretion not to intervene

This Court has emphasised the exceptional circumstances in which Crown appeals against sentence will be upheld. As Spigelman CJ said in R v Baker [2000] NSWCCA 85 at [19]:
“The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.”
There was difficulty in this case in finding comparative sentences. As the sentencing judge observed: ‘the circumstances of this case can truly be described as unique.” The sentencing task was complicated by the fact that there was no evidence before the Court as to the respondents’ motives. Although arguably lenient the sentences imposed were within the discretion of the sentencing judge.
Even if error had been demonstrated I am not persuaded that this Court should intervene. JCS has already served his non-parole period and JMS has only a short period remaining of her non-parole period. In these circumstances an extension of the minimum term of either respondent would bring an exceptionally harsh punishment not justified in the circumstances.
The Crown appeals against both sentences should be dismissed.
JAMES J: I agree with McClellan CJ at CL.
HOEBEN J: I agree with McClellan CJ at CL.

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LAST UPDATED: 17/08/2006

[2006] NSWCCA 221

26 July 2006