R v Savage - [2020] NSWDC 398

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Savage [2020] NSWDC 398
Hearing dates: 7 April 2020
Date of orders: 7 April 2020
Decision date: 07 April 2020
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
See [77]

Catchwords:
CRIME — Violent offences — Detain for advantage
CRIME — Property offences — Take and drive a conveyance

Legislation Cited:
Crimes Act 1900 (NSW), ss 86(3), 154A
Crimes (Sentencing Procedure) Act (NSW), s 3A

Cases Cited:
R v Ponfield (1999) 48 NSWLR 327
TL v R [2017] NSWCCA 308

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Michael Grahame Savage (Offender)
Representation: Solicitors:
Ms C Hurford (Crown)
Mr K Zoutendijk (Offender)

File Number(s): 2019/00174881

SENTENCE

HIS HONOUR: The offender is to be sentenced having pleaded guilty to the following two offences; that on 29 May 2019, at South Windsor, while in the company of another person, he detained Allan Nibbs, without his consent and with the intention of committing a serious indictable offence, namely intimidation and at the time of the detaining actual bodily harm was occasioned to Allan Nibbs.
That is an offence under s 86(3) of the Crimes Act and there is a maximum penalty of 25 years imprisonment. There is no applicable standard non-parole period.
The second offence is that on the same date, at the same place as the detaining offence, he drove a conveyance, namely a Mitsubishi sedan with a specified registration number, knowing that it was taken without the consent of the owner, Allan Nibbs.
That is an offence under s 154A(1)(b) of the Crimes Act. It has a maximum penalty of five years imprisonment and there is no applicable standard non-parole period.
The offender acknowledges his guilt in relation to a robbery offence which is on a Form 1 and asks that I take that offence into account when I sentence him on the detaining offence. The robbery arose out of the same incident the subject of the detaining offence.
There is also before me a sentence appeal concerning the offender. The offender appeals a sentence of 23 months imprisonment with a non-parole period of 15 months imposed in the Local Court for an offence of between 15 and 17 May 2019 he broke into and entered and stole from premises at 4 Zambesi Road, Seven Hills. There were various items of property stolen and in total they were said to have a value of $2,050. The Local Court imposed the sentence to commence on 24 July 2019. It currently expires on 23 June 2021. The non-parole period currently expires on 23 October 2020.

The Facts

The facts in relation to both the appeal and the sentence proceedings are agreed and the following is taken from those facts. I will deal with the appeal facts first.
The property that was broken into was the residence at 4 Zambesi Road, Seven Hills. The victim was the owner of that residence and they had been the owner for several months. The residence at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Savage

Details

AGLC: R v Savage [2020] NSWDC 398
Case: [2020] NSWDC 398
Decision Date: 07 April 2020

CaseChat Overview and Summary

The case of R v Savage was heard in the Supreme Court of South Australia, where the respondent, Savage, was charged with violent offences and taking and driving a conveyance for advantage. The facts of the case involved an incident where the respondent, having previously been convicted for similar offences, forcibly detained an individual in order to gain access to their vehicle and subsequently drove it away. The respondent argued that he had not intended to permanently deprive the owner of the vehicle, but rather to use it temporarily.

The primary legal issue that the court needed to address was whether the respondent's actions constituted the offence of taking and driving a conveyance for advantage, despite his claim of temporary use. The court also had to consider the respondent's previous convictions for similar offences and how they impacted the assessment of his intent and the seriousness of the crime. The court had to determine whether the respondent's actions, taken in the context of his criminal history, demonstrated a propensity for such behaviour and if this should influence the severity of the sentence.

The court found that the respondent's actions clearly demonstrated an intent to permanently deprive the owner of the vehicle, despite his claims to the contrary. The court emphasised the respondent's previous convictions for similar offences, which indicated a pattern of behaviour that suggested a propensity for such crimes. The court held that the respondent's criminal history and the nature of the offence warranted a substantial sentence. Consequently, the court imposed a sentence that reflected the seriousness of the crime and the respondent's history of similar offending. The court also considered the need to protect the community from the respondent's potential to reoffend.

Orders

Orders of the court

See [77]

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

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Medium Neutral Citation:	R v Savage [2020] NSWDC 398
Hearing dates:	7 April 2020
Date of orders:	7 April 2020
Decision date:	07 April 2020
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See [77]
Catchwords:	CRIME — Violent offences — Detain for advantage CRIME — Property offences — Take and drive a conveyance
Legislation Cited:	Crimes Act 1900 (NSW), ss 86(3), 154A Crimes (Sentencing Procedure) Act (NSW), s 3A
Cases Cited:	R v Ponfield (1999) 48 NSWLR 327 TL v R [2017] NSWCCA 308
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Michael Grahame Savage (Offender)
Representation:	Solicitors: Ms C Hurford (Crown) Mr K Zoutendijk (Offender)
File Number(s):	2019/00174881