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49
Court of Criminal Appeal 11 June 2004

R v Newell

[2004] NSWCCA 183

Assault & violence
CRIMINAL PRACTICE AND PROCEDURE SENTENCE KIDNAPPING NO MATTER OF PRINCIPLE.

Citation: R v Newell [2004] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 11 June 2004
Judge(s): Bell J, Howie J, Hislop J

Background

The applicant pleaded guilty in the District Court to two offences arising from events on 4 March 2003. The first was kidnapping with actual bodily harm under s 86(2)(b) of the Crimes Act 1900, carrying a maximum of 20 years imprisonment. The second was possession of a prohibited weapon (a side-handled baton) under s 7(1) of the Weapons Prohibition Act 1998, carrying a maximum of 14 years.

The facts were serious. After a consensual encounter with a hitchhiker, the applicant restrained the victim with cable ties and rope, gagged her with tape so tightly it cut into her mouth, concealed her under a tarpaulin in his vehicle, and later tethered her by the neck to a log in bushland. She escaped unaided and was found by passing motorists still bound. She suffered severe swelling to her hands and cuts and abrasions across much of her body.

Freeman DCJ sentenced the applicant to 8 years imprisonment with a non-parole period of 5 years for the kidnapping, and a concurrent fixed term of 18 months for the weapons offence. The applicant sought leave to appeal those sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by applying only a 20% discount for the applicant's early guilty pleas
  • Whether the sentencing judge erred in placing the offending in the middle range of seriousness for s 86(2)(b) kidnapping offences
  • Whether the sentences imposed were manifestly excessive

Decision

On the discount for the guilty plea, Howie J noted that the applicant had pleaded guilty in the Local Court and that the matter came before the District Court only because of defects in the committal document requiring a fresh indictment. The sentencing judge was aware of this and had regard to the full circumstances surrounding the plea. The Court found no error in applying a 20% discount.

On the assessment of seriousness, Howie J declined to disturb the sentencing judge's characterisation of the offending as mid-range. The agreed facts described sustained, deliberate restraint over an extended period, multiple attempts by the victim to escape, and ongoing threats. The sentencing judge had acknowledged some mitigating factors, including the applicant's lack of relevant prior convictions and his intoxication at the time.

On manifest excess, the Court rejected the submission that statistical comparisons with other sentences compelled a lower result. Howie J observed that kidnapping offences under s 86 are not sufficiently homogenous for statistics to carry much weight, and that even an identified sentencing range does not require any particular sentence to fall within it. The Court found nothing in the overall sentence that was disproportionate to the gravity of the facts.

On the weapons offence, the Court noted that possession of a prohibited weapon capable of causing serious injury is inherently serious, regardless of whether there was evidence of intent to use it unlawfully. The concurrent structure of that sentence was, if anything, favourable to the applicant, since the two offences were unrelated and a partly cumulative approach could have been justified.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a 20% discount for a guilty plea is not rendered erroneous simply because the plea was entered at the earliest available opportunity in circumstances where a procedural defect required re-presentation by indictment.
  • A sentencing judge's assessment of where an offence falls on the range of seriousness will not be disturbed on appeal unless error is demonstrated; the sustained and deliberate nature of the restraint here supported a mid-range characterisation.
  • Statistical sentencing data has limited utility for offences under s 86 of the Crimes Act 1900, because kidnapping offences are not sufficiently uniform in their conduct to make statistics a reliable benchmark.
  • Under the Weapons Prohibition Act 1998, possession of a prohibited weapon capable of serious injury is treated as an inherently serious matter, consistent with the policy approach applied to unauthorised firearms possession; absence of evidence of intent to commit a further offence does not significantly mitigate the offending.
  • No error warranting appellate intervention was established, and the Court applied the principle from R v Thomson and Houlton (2000) 49 NSWLR 383 in assessing the discount for the guilty plea.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2)(b), 90A (now repealed)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Hanslow [2004] NSWCCA 163
- R v Newman [2004] NSWCCA 113
- R v Anforth [2003] NSWCCA 222
- R v Cromarty [2004] NSWCCA 54
- R v Tolley [2004] NSWCCA 165