R v Rose

[2003] NSWCCA 411

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v  ROSE [2003]  NSWCCA 411

FILE NUMBER(S):
60351/03

HEARING DATE(S):            21 November 2003

JUDGMENT DATE: 21/11/2003

PARTIES:
The Queen

Sylven Rose (Respondent)

JUDGMENT OF:      Handley JA Grove J Adams J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        03/41/0057

LOWER COURT JUDICIAL OFFICER:     Goldring DCJ

COUNSEL:
D Frearson (Crown)
R Hulme SC (Respondent)

SOLICITORS:
C K Smith (Crown)
S E O'Connor (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900 s86(1)(b)

DECISION:
Appeal allowed and the order from which the appeal is brought, namely that committal proceedings for the charge of detain for advantage be continued before a Magistrate is vacated.
This matter is re-listed for mention in Wollongong District Court on 3 December 2003.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60351/03

HANDLEY JA
  GROVE J
  ADAMS J

FRIDAY 21 NOVEMBER 2003

REGINA     v     SYLVEN ROSE

JUDGMENT

1. HANDLEY JA:  I ask Adams J to deliver the first judgment.

2. ADAMS J: This is an appeal by the Director of Public Prosecutions from a judgment of the District Court holding that in the circumstances a plea of guilty to a charge under s86(1)(b) of the Crimes Act 1900 ought not be accepted since the alleged advantage did not in law come within the section. The particularised advantage was psychological gratification or satisfaction.

3. The facts may be briefly stated as follows:  it is alleged that the respondent, who was a young man of nineteen years, had a relationship with the complainant, aged fifteen years.  They stayed together in the same premises overnight and the next morning an argument ensued during which the complainant said she was leaving.  The respondent prevented the complainant from leaving by locking doors, cutting off her path and physically assaulting her.  He told her repeatedly that she was not leaving.  Ultimately the complainant managed to telephone her mother and ran from the house after pretending to be asleep.  The respondent pursued the complainant on a pushbike, he threw the pushbike at her and smashed her mobile phone.

4. These facts were not controversial and, indeed, it appears the respondent made full admissions to the police following his arrest.  The respondent stated during that interview that he detained the complainant because he did not want her to leave, he wanted her by his side every five seconds and wanted to talk to her.  He wanted to sort everything out so that he could see her again.

5. There is evidence that he was somewhat delusional and to some degree psychologically disturbed. However, he pleaded guilty to a number of charges including that charge with which this Court is now concerned. The learned Judge held that psychological satisfaction was insufficient to constitute the advantage to which s86(1)(b)is in the following terms –

   “86       Kidnapping

   (1)Basic offence

   A person who takes or detains a person, without the person’s consent:

   …

   (b)         with the intention of obtaining any other advantage,

   is liable to imprisonment for 14 years.”

6. The provision has been considered on a number of occasions both by Judges of this court sitting alone and by the Court of Criminal Appeal.  In Shane Michael Rowe (1996) 89 A Crim R 467 at 469 Hunt CJ at CL stated:

   “The applicant admitted that the original kidnapping was in order to make the complainant talk to him that ... would amount to an advantage within the meaning of the section ... as it would have given the applicant a psychological satisfaction if she did so.”

7. His Honour cited Regina v Robson and Collett (1978) 2 NSWLR 73 at 77 and Regina v Collett and Robson (unreported) CCA 7 June 1979 per O’Brien J, with whom the Chief Justice agreed and Roden J at pp 7 to 9.  The precise scope of the section in question is not easy to define and this Court has taken the path, with respect I think the right one, of seeking to examine particular cases against the section and determine whether those cases come within it.  It is clear that the present case is addressed by the passage in Rowe which I have quoted above.  It is not sought to argue that Rowe in this respect is wrongly decided.  If Rowe were to be reconsidered it would need to be reconsidered by a bench of five and not three Judges.  This is not an occasion upon which, as it seems to me, Rowe requires reconsideration and I would decline to do so.

8. It follows that the appeal must succeed and the order from which the appeal is brought, namely that committal proceedings for the charge of detain for advantage be continued before a Magistrate should be vacated.

9. HANDLEY JA:  I agree.

10. GROVE J:  I agree.

11. HANDLEY JA:  The order of the court will be as pronounced by Adams J.  The court directs that this matter be re-listed for mention in Wollongong District Court on 3 December 2003.

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LAST UPDATED:            06/02/2004