Citation: Regina v Herceg [2001] NSWCCA 242
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2001
Judge(s): Howie J (with Barr J agreeing)
Background
The applicant pleaded guilty in the District Court to two counts of detaining a person to advantage under s 90A of the Crimes Act 1900 and two counts of assault occasioning actual bodily harm under s 59. The offences arose from an incident in January 1998 in which the applicant and co-offenders detained two young people at a social club in Wollongong, accusing them of theft. Both victims were assaulted, restrained, and threatened during what the sentencing judge described as a terrifying ordeal.
Judge Moore sentenced the applicant to four years imprisonment with a two-year non-parole period for the detaining offences, and two-year fixed terms for each assault offence, all commencing from 14 December 2000. Two co-offenders, Shaw and Boardman, had been sentenced separately and received markedly lighter sentences.
The applicant sought leave to appeal, arguing that his sentences were unjustly disparate when compared to those of his co-offenders, and that the sentencing judge had failed to make a necessary finding about the severity of the victims' injuries.
Legal Issues
- Whether the applicant had a justifiable sense of grievance arising from the parity between his sentence and those imposed on co-offenders Shaw and Boardman.
- Whether Judge Moore erred by failing to determine the applicable maximum penalty under s 90A, which depends on whether the victims were liberated "without substantial injury."
Decision
On the parity ground, the Court of Criminal Appeal accepted that Shaw's substantially lighter sentence reflected a discount of approximately 50 per cent for his agreement to give evidence against the applicant and Boardman. The Court found this explanation accounted for the disparity, and that no justifiable sense of grievance arose. The Court also noted that Shaw faced an additional matter on a Form 1 document, and that comparisons between co-offenders must account for all relevant differences in their individual circumstances and roles.
As for Boardman, the Court found his sentence was more readily compared to the applicant's because there were fewer differentiating factors. However, the Court was not persuaded that the disparity was sufficient to establish a justifiable grievance, particularly given the applicant's greater involvement in the overall criminal enterprise.
On the second ground, the Court acknowledged that Judge Moore may not have expressly resolved the maximum penalty question under s 90A. That provision attracts different maximum penalties depending on whether the victim was liberated without substantial injury. However, the Court found that, even if the sentencing exercise had miscarried on that point, re-sentencing would not have produced a different result. On the facts, the Court was not satisfied that the victims had been liberated without sustaining substantial injuries. Drawing on the approach in R v Rowe, the Court held that substantial injury is not confined to serious physical harm; it may include the psychological and emotional consequences of violence inflicted in terrifying circumstances. The Court concluded the appropriate maximum penalty was 20 years imprisonment in each case.
Leave to appeal was granted but the appeal was dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Under s 90A of the Crimes Act 1900, whether a victim was liberated "without substantial injury" is a necessary finding that determines the applicable maximum penalty, and a sentencing court must address this question.
- Following R v Rowe, "substantial injury" for the purposes of s 90A is not limited to serious physical harm. Minor physical injuries may still be substantial where they are inflicted in circumstances of significant terror or coercion, including where there is a real prospect of residual psychiatric harm.
- Parity between co-offenders must account for all relevant differences, including cooperation with authorities. A substantial discount for an undertaking to give evidence against co-offenders is a recognised and legitimate explanation for sentencing disparity.
- No justifiable sense of grievance arises where a co-offender's lighter sentence is adequately explained by factors personal to that offender, such as the granting of a significant discount for assistance to police or prosecutors.
- In dismissing the appeal, the Court confirmed that even where a technical error in the sentencing process is identified, the appeal will not succeed if re-sentencing would produce the same or a heavier result.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59, 90A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44
Cases
- R v Diamond (NSWCCA, 18 February 1993)
- R v Hopper (NSWCCA, 19 November 1998)
- R v Rowe (1996) 89 A Crim R 467