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Court of Criminal Appeal 6 May 2002

REGINA v. SNOWSILL

[2002] NSWCCA 157

Assault & violence
CRIMINAL LAW SENTENCE APPEAL KIDNAPPING DIVERSE CIRCUMSTANCS OF OFFENCE NO ERROR

Citation: [2002] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 6 May 2002
Judge(s): Greg James J; Carruthers AJ

Background

The appellant was charged with one offence of detain for advantage under s 90A of the Crimes Act 1900, a form of kidnapping carrying a maximum penalty of 14 years imprisonment (or 20 years where the victim suffers injury). The offence arose from an incident in which the appellant, fleeing police after attempting to steal a vehicle, forced his way into a car being driven by a 72-year-old woman. He locked the doors, reached across the driver, and attempted to force her to drive him away from police. The vehicle moved approximately 15 metres before police gained access, rescued the woman, and arrested the appellant.

The victim was not physically injured, though she was frightened. The entire episode was unplanned and arose from a moment of panic during the appellant's attempt to evade police. The offence occurred just over a month after the appellant had been released from a three-month gaol term for unrelated offences.

The Chief Judge of the District Court sentenced the appellant to four years imprisonment, with a non-parole period of two years. Six additional matters, including vehicle-related offences, malicious damage, larceny, and two counts of resist arrest, were taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered in sentencing without separate convictions being recorded). The appellant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge erred in law or principle in setting the starting point for the sentence, given the mitigating features of the offence.
  • Whether the sentence was excessive when compared with sentencing statistics and other decided cases involving offences under s 90A of the Crimes Act 1900.
  • Whether the Court of Criminal Appeal had power to intervene under s 6(3) of the Criminal Appeal Act 1912.

Decision

The appellant argued that at least four features reduced the objective seriousness of the offence: the absence of planning, the fact that detention was not the appellant's primary purpose, the brief duration of the detention, and the absence of physical injury to the victim. On the basis of these factors, the appellant submitted that the sentencing judge's starting point must have been too high, and that comparison with sentencing statistics and other s 90A cases revealed the sentence was not, as the judge described it, at the lower end of the range.

Greg James J rejected these arguments. The Court found that s 90A offences are committed in such diverse circumstances, ranging from highly serious to minimally culpable, that sentencing statistics and comparisons with other cases offer little useful guidance. Each case turns heavily on its own facts, particularly when related offences are brought forward for consideration alongside the primary charge.

The Court also found that the sentencing judge had properly taken into account the mitigating features of the case, including the unplanned nature of the offence, the absence of threats beyond the physical act of taking hold of the steering wheel, the appellant's guilty plea (which attracted a substantial discount), genuine contrition, and the judge's recognition that the appellant was an intelligent person struggling with drug dependency. The sentencing judge had expressed reluctance in imposing such a sentence and had found special circumstances to reduce the statutory ratio between the non-parole period and the total term.

No error of law or principle was identified. The Court concluded that no lesser sentence was warranted in law and that there was no basis to interfere with the discretion exercised by the primary judge.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Offences of detain for advantage under s 90A of the Crimes Act 1900 arise in highly varied circumstances, which significantly limits the assistance that sentencing statistics or comparisons with other decided cases can provide in individual matters.
  • No error was established in the sentencing judge's reasoning, despite the presence of several mitigating factors, including the brief and unplanned nature of the detention and the absence of physical injury to the victim.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal can only interfere with a sentence if it is satisfied that some other sentence was warranted in law and should have been passed; that threshold was not met here.
  • In dismissing the appeal, the Court confirmed that mitigating factors such as lack of planning, a guilty plea, contrition, and a drug-related background do not automatically place a sentence outside the permissible range when weighed against the objective seriousness of the conduct.
  • A sentencing judge's characterisation of a sentence as being at "the lower end" of the range for an offence type does not, of itself, establish appealable error if the characterisation is not borne out by statistical comparison, provided no legal or principled error is otherwise demonstrated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 90A, 117, 154A(1)(a), 195(a)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21

Cases cited: No specific cases were cited in the judgment text provided.