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Court of Criminal Appeal 26 July 2006

JCS v REGINA , JMS v REGINA, REGINA v JCS, REGINA v JMS

[2006] NSWCCA 221

Also reported as (2006) 164 A Crim R 1
Assault & violence
CRIMINAL LAW UNLAWFUL IMPRISONMENT APPEAL AGAINST CONVICTION JOINT AND SEVERAL OFFENCES COMMON LAW OFFENCE MEANING OF CONSTRAINING AND RESTRAINING

Citation: JCS v REGINA, JMS v REGINA, REGINA v JCS, REGINA v JMS [2006] NSWCCA 221
Court: New South Wales Court of Criminal Appeal
Date: 26 July 2006
Judge(s): McClellan CJ at CL; James J; Hoeben J

Background

The two appellants, a mother and her husband (the complainant's stepfather), were jointly tried in the District Court on charges of failing to provide necessary food and unlawful imprisonment of the complainant, the mother's daughter. The complainant, who was born in 1984, suffered from ectodermal dysplasia, a genetic condition causing significant facial disfigurement and related physical effects. She left school at age 15 and, around her 16th birthday in June 2000, was allegedly confined to her bedroom at the family home in Macquarie Fields.

The Crown alleged the confinement lasted approximately 22 months. A lock was placed on the exterior of the bedroom door and on the window, the light globe was removed, and a trampoline was positioned against the window to obscure it from outside. The complainant was said to receive one meal a day, was given sedating medication, and spent much of her time asleep. The appellants told neighbours and friends that she was staying with relatives interstate to account for her absence from family events.

In April 2002, the complainant escaped through the window and went to a local police station. She was subsequently hospitalised and treated for severe malnourishment and anaemia. A police search of the home confirmed the physical arrangements described. The jury acquitted both appellants on the food neglect charge but convicted them of unlawful imprisonment. Both appealed their convictions, and the Crown appealed the sentences imposed.

  • Whether the indictment was valid for a joint charge of unlawful imprisonment as a common law offence
  • Whether the complainant's evidence, despite inconsistencies, was capable of being accepted by the jury
  • Whether the offence of unlawful imprisonment requires proof that the confinement was against the complainant's will
  • The correct meaning of "constraining" and "restraining" as elements of the offence
  • Whether the trial judge's directions on intent, the complainant's state of mind, and the drawing of inferences were adequate
  • Whether the trial judge's directions adequately distinguished the individual acts of each accused from the joint criminal enterprise
  • Whether the parental discipline defence was properly left to the jury
  • Whether a document that the complainant had not adopted should have been admitted in evidence, and whether re-examination of the complainant was properly conducted
  • Whether the sentences imposed were manifestly inadequate, having regard to objective gravity, general deterrence, the complainant's age and condition as aggravating factors, and the use of periodic detention

Decision

The Court of Criminal Appeal dismissed both appeals against conviction. McClellan CJ at CL (with James J and Hoeben J agreeing) considered each ground of appeal in detail and found that the trial judge's directions adequately covered the elements of the offence. The inconsistencies in the complainant's evidence were a matter for the jury, and it was open to the jury to accept her account. The Court confirmed that unlawful imprisonment at common law does not require the confinement to be actively resisted or objected to by the complainant; what matters is whether the person was constrained or restrained without lawful authority.

On the evidentiary grounds, the Court found no error in the trial judge's decisions regarding the document in question or the re-examination of the complainant. The directions on intent were adequate in the circumstances, and the jury was properly instructed on how to assess the individual conduct of each accused in the context of a joint criminal enterprise. The parental discipline defence was addressed appropriately in the summing-up.

The Crown appeals against sentence were also dismissed. The sentencing judge had treated the case as unique, noting the difficulty of finding comparable sentences and acknowledging the absence of evidence about the appellants' motives. The Court accepted that the sentences, while arguably lenient, fell within the sentencing discretion. McClellan CJ at CL also declined to intervene on a discretionary basis: by the time of the appeal, JCS had already served his non-parole period and JMS had only a short period remaining. Extending those minimum terms at that point would have produced disproportionate harshness in the circumstances.

Orders Made

  • Both appeals against conviction dismissed
  • Crown appeals against both sentences dismissed

Key Takeaways

  • Unlawful imprisonment at common law does not require the confined person to have actively resisted or objected; the offence is established where a person is constrained or restrained without lawful authority, regardless of the complainant's subjective reaction.
  • Inconsistencies in a complainant's evidence go to the weight and credibility of that evidence, which is a matter for the jury to resolve; an appellate court will not substitute its own assessment where it was open to the jury to accept the evidence.
  • In dismissing the Crown sentence appeals, the Court of Criminal Appeal applied the well-established principle that successful Crown appeals against sentence should be rare, particularly where no specific error can be identified and the sentence, while arguably lenient, remained within the sentencing discretion.
  • A discretionary refusal to intervene on sentence may be appropriate where the appellants have served, or are close to completing, their minimum terms by the time the appeal is heard, such that intervention would produce disproportionate punishment.
  • The complainant's age and physical condition were treated as aggravating factors at sentence, while parental difficulties with a disabled child were acknowledged as capable of operating in mitigation, demonstrating the factually complex balancing exercise required in unusual cases of this kind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- DPP v Merriman [1973] AC 584
- Ex Parte Lovell; Re Buckley (1938) SR (NSW) 153
- GO v The Queen (1996) 102 FLR 299
- MacPherson v Brown (1975) 12 SASR 184
- MFA v The Queen (2002) 193 ALR 184
- R v Awang [2004] QCA 152
- R v Baker [2000] NSWCCA 85
- R v Bourke [2000] NSWCCA 414
- R v Busuttil [2006] SASC 47
- R v Colebrook [1999] NSWCCA 262
- R v DBG (2002) 133 A Crim R 227
- R v Fenwick (1953) 54 SR (NSW) 147
- R v Fidow [2004] NSWCCA 172
- R v Habib [2005] NSWCCA 223
- R v Hallocoglu (1992) 29 NSWLR 67
- R v McConnell [1977] 1 NSWLR 714
- R v Rahman [1985] 81 Cr App R 348
- R v Tillott (1991) 53 A Crim R 46
- R v Villar [2004] NSWCCA 302
- R v Williams (1990) 50 A Crim R 213
- The Queen v Chai [2002] HCA 12