Court of Criminal Appeal
New South Wales
Case Title: R v BALL, Judd Ashton Medium Neutral Citation: [2013] NSWCCA 126 Hearing Date(s): 21 November 2012 Decision Date: 24 May 2013 Before: Macfarlan JA at [1];
Hall J at [2];
Campbell J at [177]Decision: (1) Appeal by the Crown upheld.
(2) The sentences imposed by Jeffreys DCJ in the District Court on 13 June 2012 be set aside.
(3) The respondent, in respect of the offence contrary to s 86(2) of the Crimes Act 1900, be re-sentenced to a term of imprisonment of 2 years and 11 months comprising a non-parole period of 1 year and 6 months to commence on 22 June 2012 and to expire on 21 December 2013 with a balance of term of 1 year and 5 months to expire on 21 May 2015.
(4) Order that the time served by the offender pursuant to that sentence imposed in the District Court is to count as part of the sentence imposed by the Court.
(5) An order that the respondent be released on parole on 21 December 2013.
(6) The respondent, in respect of the offence contrary to s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999 be sentenced to a fixed term of imprisonment of 6 months to commence on 22 June 2012 and to expire on 21 December 2012.
Catchwords: CRIMINAL LAW - sentence appeal by Crown - aggravated kidnapping and drive manner dangerous - four offences contrary to ss 59(1), 33B(1)(a), s 195(1)(a) and 154A(1)(a)/117 of the Crimes Act 1900 on Form 1 - sentence of 2 years to be served by way of Intensive Correction Order imposed by District Court in respect of aggravated kidnapping - conviction with no other penalty and minimum automatic disqualification period imposed by District Court in respect of drive manner dangerous - whether sentences manifestly inadequate - whether subjective case impermissibly ameliorated appropriate sentence - consideration of Form 1 offences - offender's mental health did not substantially reduce culpability - failure to impose sentence that reflected objective seriousness of offence - drive manner dangerous warranted more than recording of conviction without penalty - imposition of Intensive Correction Order did not give sufficient effect to general or specific deterrence - evidence of offender's rehabilitation prior to appeal - significant delay in sentencing process in District Court - whether to exercise residual discretion - full-time custodial sentence appropriate - offender to have full benefit of time served under Intensive Correction Order Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2008 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Regulation 2010 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Interpretation Act 1987 (NSW)
Road Transport (General) Act 2005 (NSW)
Road Transport (Safety and Traffic Management) Act 1999 (NSW)Cases Cited: Attorney General's Application under ss…
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- AGLC
- R v Ball [2013] NSWCCA 126
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- [2013] NSWCCA 126
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CaseChat Overview and Summary
The court found that the offender's mental health did not substantially reduce his culpability and that the failure to impose a sentence that reflected the objective seriousness of the offence was a significant error. The court noted that the dangerous driving warranted more than a recording of conviction without penalty and that the imposition of an Intensive Correction Order did not give sufficient effect to the purposes of general and specific deterrence. The court also noted the significant delay in the sentencing process in the District Court. While acknowledging evidence of the offender's rehabilitation prior to the appeal, the court found that a full-time custodial sentence was appropriate to give full effect to the purposes of sentencing, including general deterrence and denunciation. The offender would, however, have the full benefit of time served under the Intensive Correction Order.
The court allowed the appeal and ordered that the appellant be re-sentenced for the offences. The court directed that the offender be imprisoned for a period of 2 years, to be served by way of a full-time custodial sentence. The offender was to have the full benefit of time served under the Intensive Correction Order. The court also ordered that the offender be disqualified from driving for a period of 3 years.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In her written submissions on behalf of the respondent, Ms Manuell SC emphasised the following matters:(i) Duration of the DetentionThe period over which the offence took place was said to be relevantly short and the distance was only 2-3 kms.(ii) The Extent of Fear or Terror OccasionedIt was accepted that the victim was terrified by the respondent's driving and that her terror was exacerbated by the respondent's demeanour and words spoken at the time.(iii) The Purpose of the DetentionIt was submitted that it would appear that there was no rational purpose for the detention other than for the respondent to take the victim back to the home they had shared.(iv) The Extent (if any) to which Third Parties were Subjected to Ordeal or Anguish by Reason of Fear for the Welfare of the VictimThere was said to be no evidence of any third parties being subjected to such matters.(v) PremeditationIt was submitted that the offence was not pre-planned. The respondent had not been expecting to see the victim on the night of the offences and only did so when she phoned him late at night because of the problem with the car battery.After he attended and the battery was recharged, and whilst the victim was driving the respondent home, the respondent asked her questions about where she had been that night.Unlike many aggravated kidnapping offences, the s 86(2) offence in this case was said to be spontaneous.(vi) Nature of the Injuries SustainedWhilst the statements by the victim in the Victim Impact Statement were acknowledged, there was no medical evidence or photographs of the victim's injuries tendered in the sentencing proceedings. It was accepted, however, that the victim would have been greatly traumatised by the offence.(vii) Domestic RelationshipWhilst it was acknowledged that the offence was committed in the course of a domestic relationship which is a matter capable of being an aggravating circumstance, it was submitted that this should not aggravate the seriousness of the s 86(2) offence in this case. A number of stressors affecting the respondent had existed before the offence as detailed in the submissions. These included a serious car accident in which both the respondent and victim had been involved, the victim's miscarriage and the separation of the respondent's parents and the death of the complainant's father.The various problems that existed, it was submitted, placed the offences in the context of a disintegrating relationship where issues of jealousy, anger and mixed messages had not surprisingly arisen.(viii) Seriousness of the OffenceIt was submitted that although the s 86(2) offence was a serious offence because of the dangerousness of the respondent's driving and the terror the victim experienced, its objective gravity was said to be limited by its spontaneity, its short duration, the respondent voluntarily ceasing the offence, the destination (being a place the victim knew and from which she could obtain assistance), the relatively minor physical injuries inflicted on the victim and the earlier difficulties in the relationship.