R v Rowe

[1996] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rowe [1996] NSWCCA 1
Decision date:	03 October 1996
Before:	Hunt CJ at CL at [1]; Smart J at [28]; Ireland J at [29]
Decision:	Application for leave to appeal refused.
Catchwords:	CRIMINAL LAW AND PROCEDURE – kidnapping – Crimes Act 1900, s 90A – meaning of "substantial injury" – relevance of forgiveness by complainant in domestic violence type offences.
Legislation Cited:	Crimes Act 1900 (NSW), s 90A
Cases Cited:	Regina v Albert Steven Ryan (Court of Criminal Appeal (NSW), 30 October 1995, unrep) Regina v Allan Edward Collett (Court of Criminal Appeal (NSW), 7 June 1979, unrep) Regina v Boyle (1987) 34 A Crim R 202 Regina v Hudson [1985] FCA 442; (1985) 63 ALR 257 Regina v Lee (1994) 76 A Crim R 271 Regina v Lloyd [1967] 1 QB 175 Regina v Peter James Glen (Court of Criminal Appeal (NSW), 19 December 1994, unrep) Regina v Reid [1933] 1 QB 299 Regina v Robson & Collett [1978] 1 NSWLR 73 Regina v T (1990) 47 A Crim R 29 Regina v Trotter (1993) 35 NSWLR 428 The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359
Category:	Principal judgment
Parties:	Shane Michael Rowe (Applicant) Regina (Respondent)
File Number(s):	60451/95
Decision under appeal	Court or tribunal: District Court Before: Nield DCJ

HEADNOTE

Section 90A of the Crimes Act 1900 provides that anyone who takes away or detains a person for his own advantage shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so taken away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years.

Held   

1.   The onus lies on the accused to satisfy the judge that the victim was liberated without having sustained substantial injury. It is a matter in mitigation, not aggravation. Accordingly, the Crown does not have to charge substantial injury in the indictment where it intends to rely upon the higher maximum sentence.

The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359; Regina v Lee (1994) 76 A Crim R 271 distinguished

2.   "Substantial injury" means one which is more than minor or slight, but it need not be of the serious kind which would constitute it being grievous bodily harm.

Regina v Hudson [1985] FCA 442; (1985) 63 ALR 257 followed. Regina v Lloyd [1967] 1 QB 175; Regina v Albert Steven Ryan (CCA, 30 October 1995, unreported) referred to

3.   An injury of a minor physical nature caused to a woman by violence inflicted during or associated with sexual intercourse without consent, and particularly when the woman is being detained against her will, is capable of being regarded as substantial because the circumstances in which it was inflicted greatly affect its seriousness.

Discussion as to relevance to sentencing of the wishes of the victim in domestic violence type offence.

Judgment

1. HUNT CJ at CL: The applicant (Shane Michael Rowe) pleaded guilty to charges that he had kidnapped and then had sexual intercourse without consent with the complainant (KT). Judge Nield in the District Court imposed a total term of penal servitude for seven years, consisting of an effective minimum term of four years and an additional term of three years. Those figures include a period of one month and five days of discrete pre-sentence custody. The applicant seeks leave to appeal against that sentence.

2. The applicant and the complainant lived in a de facto relationship over a period of more than five years. That relationship has been described variously as "off and on" and as "unsteady and disruptive". It is unnecessary to give any particular details of it. It is sufficient to say that, although reference has been made to the applicant's temper, there had been no violence exhibited by the applicant towards the complainant prior to the events which led to these two charges.

3. There were two children born of that relationship. Immediately prior to the events in question, the relationship had broken up again. The applicant nevertheless harboured strong feelings of jealousy when he was informed that the applicant had become involved (as he believed) with another man. At some time after midnight, he called at a nightclub where the complainant was in a group of people, and asked her to speak to him. The two of them spoke briefly in the carpark and an argument developed. She declined to enter his car, and he took her by the arm, physically pushing her into it, and he prevented her from leaving it when she attempted to do so. He drove her to the premises where he was then residing, asking her to have sexual intercourse with him. When she declined, he informed her that he intended to rape her.

4. When they arrived at the applicant's premises, the complainant declined to enter, but she was pushed inside by the applicant, who made various threats to kill her family and the man with whom he believed that she had become involved. He forced her by the hair on to the bed, and he roughly undressed her, tearing her underpants from her in the process. He forced her legs apart, and sexual intercourse without consent followed. He then pushed her to the floor, threatening to kick her.

5. The complainant suffered grazes to her leg, stomach and wrist, and soreness to her head, groin and vagina. She had been upset, scared and crying throughout the ordeal. At the time of her abduction, she had been crying hysterically. The applicant drove her to her mother's house where the children were being minded, and obtained her agreement that she would not tell her mother or the police what had happened. He told her that he was sorry for what he had done.

6. When interviewed by the police shortly afterwards, the applicant made full admissions in relation to the offences, and he accepted the truth of most (but not all) of the complainant's version. He told the police that he had just freaked out when he had found out that she was with someone else. When she admitted to him that she had been with a man, he said that he had just flipped out. He said that he could not handle the fact that other people were going to be around his children. He said that he just did not know what he was doing at the time, but that he felt he had to do what he did. He said that he had had two schooners of beer earlier in the evening after work, but no more because he had had to drive a considerable distance home. He conceded that there was no excuse whatsoever for committing the offences.

7. The applicant appeared in the Local Court a month after he had obtained bail and consented to a "paper" committal. In the District Court, he initially appeared unrepresented and sought a sentence indication hearing. When legal aid was granted, he accepted advice to plead guilty. In the meantime, he had access to his children and slept with the complainant on those occasions. This was in breach of the bail conditions, but both parties appear to have ignored them. The judge did not take those breaches into account.

8. The complainant wrote a letter to the judge, and gave evidence, that she had resumed a relationship with the applicant and that she did not want him to receive a custodial sentence - particularly because of the trauma which the older child would suffer if he did. She said that she had forgiven the applicant for what he had done. She confirmed the truth of what she had told Dr Strum, a psychiatrist, whose report was tendered. According to that report, she had told Dr Strum that, as a result of these two offences, she no longer had faith in relationships and did not trust men. She had been terrified by the applicant and had not thought that she would escape alive. She had developed depression, with anorexia, insomnia, sleep disturbances, nightmares about what had occurred, and flashbacks. She had suicidal thoughts, an altered libido, and felt very angry and bitter towards the applicant. Dr Strum had diagnosed a post traumatic stress disorder with symptoms of major depression, but he hoped that, in time, things would settle down.

9. At the commencement of the hearing in this Court, Mr Segal on behalf of the applicant stated that he wished to amend the Notice of Appeal in order to challenge the conviction - in other words, to include an application to withdraw the pleas of guilty which had been entered. He indicated that the basis for such an application was twofold. The first was that the indictment charged the kidnapping as taking away, rather than as detention, and that (so it was said) there was no evidence of intention to obtain an advantage at the time of taking away. The second was that the admissions made to the police may have been excluded by the judge in the exercise of his discretion, based upon the report of a psychologist that the applicant's intellectual functioning is within the bottom twelve per cent of the population.

10. The complainant's statement asserts that the applicant kept asking her to have sexual intercourse with her during the course of the car journey from the club. It is an easy inference to draw that that was the intention with which he took her away. An intention to have sexual intercourse, even with consent, would amount to an advantage within the meaning of the section. Moreover, the applicant admitted that the original kidnapping was in order to make the complainant talk to him. That, too, would amount to an advantage within the meaning of the section (as Mr Segal conceded), as it would have given the applicant a psychological satisfaction if she did so. [1]

    1. Regina v Robson & Collett [1978] 1 NSWLR 73 at 77; Regina v Allan Edward Collett (Court of Criminal Appeal (NSW), 7 June 1979, unrep), per O'Brien J at 1 (with whom Street CJ agreed) and per Roden J at 7-9.

11. Of course, if the applicant were to have been successful in withdrawing his plea to the kidnapping charge, it is inevitable that the indictment would have been amended to add a count based on detention to that based on taking away. The intention to obtain an advantage needs to be shown to exist only at some time during that period of detention. [2]  Yet, on sentencing, all of the circumstances of the detention would be relevant. I do not see that the applicant would have been likely to obtain any benefit from going to trial upon the issue of intention.

    2. Regina v Reid [1933] 1 QB 299 at 302.

12. As to the admissibility of the confession, there is no suggestion that the police acted illegally. There is nothing on the face of the interview itself to suggest that it was in any way unfair to the applicant, or that he did not understand the fact that he was admitting his guilt of very serious offences and that he was willing to do so or that it would be unfair to use those admissions against him. He had earlier, when unrepresented, sought a sentence indication. He appears from the transcript to have handled that matter without difficulty. Psychologists, by referring to the low percentile rating of a person's intellectual functioning, do not usually intend to suggest that it would be unfair to that person to ask him to answer some questions of the nature asked here.

13. Mr Segal was granted an adjournment in order to confer with his client as to the wisdom of pursuing an application to withdraw his pleas, with the consequence that, if ultimately convicted, he would lose the benefits which he presently has of his early confession and pleas of guilty. The Crown fairly enough said that it was not in a position to meet such an application today, having had no notice that it would be made. There would therefore have had to be an adjournment. When the hearing resumed, Mr Segal stated that his client had decided not to proceed with that application.

14. This Court has received written submissions from the applicant himself and from Mr Segal in relation to the application for leave to appeal against the sentence which was imposed. An application was made for "fresh" evidence to be led from the complainant that she and the applicant had married since the sentencing, that her complaints to Dr Strum had been deliberately exaggerated because she had been angry with the applicant at the time, and that she had originally attempted to have the charges dropped, and repeating the plea which she had made to the judge. This evidence was not objected to, but the submission was made that it did not amount to "fresh evidence" in that it did not materially add to the evidence before the judge.

15. The complainant added further oral evidence to her affidavit. She said that she had not read Dr Strum's report at the time when she gave evidence in the District Court that what she had said to the doctor was correct. Having now read it, she denied having told the doctor that the applicant had been abusive towards her - verbally or physically - or that she had been anorexic. She said that her depression and insomnia were unrelated to the commission of these offences. I do not see that those make any real difference to the picture before the judge, who made no reference to any physical abuse of the complainant by the applicant. There is, as the Crown submitted, nothing new in the remainder of the evidence now tendered.

16. The submissions made by counsel for the applicant subsume those received in writing from the applicant himself, and I shall deal only with the former.

17. The first submission is that the judge misstated the applicant's prior criminal history. The judge referred to his record as including "three offences of assault recorded in June 1988". The amended particulars supplied to this Court confirm that that is true. The fact that the applicant did have prior convictions for assault was relevant. It was relevant to show that the applicant did not have a clear record in relation to violence. I see no error here. A point is taken that the judge should have accepted the evidence given by the applicant that he had been adversely affected by alcohol at the time of these offences. He did not in his evidence before the judge deny the truth of what he had told the police, that he had only consumed two schooners much earlier in the evening. No error has been shown in the judge's finding that he was not intoxicated at the time.

18. The second submission relates to the kidnapping charge. Section 90A of the Crimes Act 1900 provides that anyone who takes away or detains a person for his own advantage shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so taken away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years. The applicant has argued that, if the Crown wished to rely upon the higher maximum sentence, the indictment should have charged the circumstance of aggravation which gave rise to that higher maximum. Reliance was placed upon the decision of this Court in Regina v Lee,[3] which followed the decision of High Court in The Queen v Meaton. [4]  I reject that submission.

    3. (1994) 76 A Crim R 271 at 289.

    4. [1986] HCA 27; (1986) 160 CLR 359.

19. The intention of s 90A is clear. It is to offer an inducement to the kidnapper to refrain from killing the victim in order to destroy the evidence, or from inflicting substantial injury upon the victim, by offering a lower maximum sentence where no such injury has occurred. The form in which the section is expressed clearly places the onus upon the accused to satisfy the judge that the victim was liberated without having sustained such injury; it does not require the Crown to eliminate any reasonable possibility that such injury was sustained. It is not a matter of aggravation but of mitigation. [5]

    5. The legislative history of this provision is discussed in Regina v Hudson [1985] FCA 442; (1985) 63 ALR 257 at 271-272.

20. The applicant has then argued that the judge erred in treating the maximum as twenty years in this case. Quite apart from the onus of proof, which the applicant made no attempt to discharge, it was in my view open to the judge to conclude positively (as he did) that the complainant had suffered substantial injury. In Regina v Hudson,[6] the Full Court of the Federal Court, hearing an appeal from the Supreme Court of the Australian Capital Territory, interpreted the phrase "substantial injury" in s 90A in these terms:

" ... for an injury to be substantial it must be more than minor or slight, but that it need not be of the serious kind which would constitute it being grievous bodily harm."

6. [1985] FCA 442; (1985) 63 ALR 257 at 272.

21. That interpretation was based in large part upon the NSW Parliamentary discussion of the clause of the Bill which became s 90A. I agree with that interpretation. It is similar to the meaning given to the word "substantially" in the phrase "substantially impaired" in s 23A, being of less than total but more than trivial or minimal. [7] The physical injuries which the complainant suffered were minor, but an injury caused to a woman by violence inflicted during or associated with sexual intercourse without consent, and particularly when the woman is being detained against her will, is capable of amounting to serious injury within the meaning of s 90A. It was submitted that "injury", in the context of the Crimes Act, must be a physical injury. Be that as it may, an assault which produces minor physical consequences may well become substantial where the circumstances in which it was inflicted (as here) greatly affect its seriousness.

    7. Regina v Lloyd [1967] 1 QB 175 at 178-179; Regina v Trotter (1993) 35 NSWLR 428 at 431; Regina v Albert Steven Ryan (Court of Criminal Appeal (NSW), 30 October 1995, unrep) at 8.

22. The applicant's third submission is that the judge gave insufficient weight to his subjective features. Complaint is made of the judge's statement that the applicant's age, background, upbringing, education and employment had no relationship to the commission of these offences. The argument is that those matters "served to create the milieu" for the commission of the offences. According to the Pre-Sentence Report, the applicant had been brought up in a disruptive and unhappy family, as violence and abuses were frequent in his early years due to the alcohol abuse, first by his father and then by his mother's de facto husband. I do not see any error made by the judge in rejecting the claimed relationship in the circumstances of this case. There had been no previous violence towards the complainant, despite many breakups in the relationship and despite what is described by the complainant as frequent arguments. The report of the psychologist suggests that the applicant is vulnerable to accumulated stress and that he has only a minimal competency to manage and resolve stress. I do not see that the judge was obliged to find that this was a mitigating factor in relation to these offences. We do not rehear these matters, and it was open to the judge to make that finding. The judge said that he was allowing a substantial (in the sense of large) discount for the pleas of guilty, and that he was taking into account his contrition and his immediate and frank confession to the police. I do not accept that the judge has erred by giving too little weight to that contrition.

23. The applicant's fourth submission is that the judge erred by having regard to the sexual assault when sentencing him on the kidnapping charge because he was thereby being punished twice for that offence. It was suggested that the scuffle in the car park was domestic violence unassociated with the sexual assault which later took place. I regard this as a somewhat unreal approach in the circumstances of this case. I am satisfied that the judge was fully alive to the problem relating to this issue. He said that, as the offences were related (as they necessarily were in this case), the principle of totality had to be applied. The total sentence imposed does not suggest to me that there was any double counting. A very substantial sentence could have been imposed in relation to each of the offences taken alone. No error has been established here.

21. The applicant's fifth submission is that the judge gave insufficient weight to the wishes of the complainant. This Court has said more than once that the attitude of complainants cannot govern the approach to be taken in sentencing. In Regina v Peter James Glen, [8]  Simpson J pointed out that, whilst forgiveness by the victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offences fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have. I accept her Honour's reasoning as to why that should be so. It is unnecessary to repeat what she said here.

    8. (Court of Criminal Appeal (NSW), 19 December 1994, unrep).

22. This Court has also said more than once that the hardship upon the family of an offender will not be relevant in mitigation unless it goes beyond that which inevitably results in any case of incarceration and unless it is sufficiently extreme as to demand that the judge draw back. [9]  That has not been established in this case. It may be ironic, as has been suggested, that the victim and her children are also going to suffer the punishment imposed upon the offender, but the fact remains that the law requires such a punishment to be imposed. All that the applicant says here is that it would not have offended sentencing principles to give greater weight to the complainant's wishes. That is not an argument which can be put to this Court, which (as I have already pointed out) does not rehear these matters until error has been established. It has not been established here.

    9. See, for example, Regina v Boyle (1987) 34 A Crim R 202 at 204-206; Regina v T (1990) 47 A Crim R 29 at 40.

23. Finally, it was submitted that the subsequent marriage of the couple and the application shows that the future relationship between them is assured. I do not see any particular weight in this submission. It is obvious from the psychologist's report that, should the applicant again suspect that the complainant has been unfaithful, the same thing is likely to happen again.

24. I propose that leave to appeal be refused.

25. SMART J: I agree.

26. IRELAND J: I also agree.

27. HUNT CJ at CL: The order of the Court is that the application for leave to appeal is refused.

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Endnotes

Decision last updated: 31 March 2017