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Court of Criminal Appeal 29 August 2008

Kerr v R

[2008] NSWCCA 201

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCING AGGRAVATED KIDNAPPING NOT A CRUSHING SENTENCE NO ERROR PRESENCE OF A WEAPON

Citation: Kerr v R [2008] NSWCCA 201
Court: New South Wales Court of Criminal Appeal
Date: 29 August 2008
Judges: Spigelman CJ, Simpson J, Price J

Background

The appellant pleaded guilty in the District Court to a charge of aggravated kidnapping under s 86(2)(b) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The offending occurred over a weekend in late July 2005 and involved the unlawful detention of a former partner over an extended period. Two further matters were taken into account on a Form 1: a second aggravated kidnapping charge and a charge of stealing a motor vehicle.

The facts were serious. The offending involved repeated physical assaults, the use of a knife (including holding it to the victim's throat and cutting her foot), binding the victim with duct tape and zip ties, threats to kill, and transporting the victim to multiple locations over the course of approximately two days. The District Court sentenced the appellant to a non-parole period of 8 years with a balance of term of 3 years, applying an undiscounted starting point of 14 years and a utilitarian discount of just over 20 percent for the guilty plea.

The appellant sought leave to appeal against severity on four grounds: an error in backdating the sentence, failure to apply the totality principle, failure to reflect a finding of special circumstances in the non-parole period, and manifest excess.

  • Whether the sentencing judge inadvertently failed to properly backdate the sentence to the correct commencement date
  • Whether the totality principle applied, given the appellant was not serving an existing sentence at the time of sentencing
  • Whether the sentencing judge, having found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, failed to give adequate effect to that finding in the ratio of non-parole period to balance of term
  • Whether the overall sentence of 11 years (8 years non-parole, 3 years balance) was manifestly excessive

Decision

On the first ground, the Court found that the sentencing judge had inadvertently commenced the sentence from 9 October 2006 rather than the correct date of 9 June 2006. This was an error and the only ground on which the appeal succeeded.

On totality, the Court rejected the appellant's argument. The totality principle operates where an offender is already serving a sentence and a new sentence is imposed. Because the appellant was not serving an existing custodial sentence at the time of sentencing, the principle had no application.

On special circumstances, the Court accepted that the sentencing judge had made a limited finding of special circumstances and concluded that the resulting ratio of non-parole period to total sentence was consistent with that finding. No error was demonstrated in how the finding was translated into the sentence structure.

On manifest excess, the Court found the sentence was within the upper end of an appropriate range but did not disclose error. The sentencing judge's characterisation of the offence as well above the midrange of objective seriousness was a factual finding open on the evidence, given the sustained violence, use of a weapon, threats to kill, and the Form 1 offences. The fact that the appellant was on parole at the time of the offending was an additional aggravating factor. The Court found the undiscounted starting point of 14 years imprisonment did not manifest error.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence in the District Court quashed only to the extent of the commencement and expiration dates
  • Appellant re-sentenced to imprisonment with a non-parole period of 8 years commencing 9 June 2006 and expiring 8 June 2014, with a balance of term of 3 years expiring 8 June 2017
  • Earliest eligible parole date: 8 June 2014

Key Takeaways

  • The totality principle does not apply where an offender is not serving an existing custodial sentence at the time a new sentence is imposed.
  • A limited finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 does not automatically require a substantially reduced non-parole period; it is sufficient that the finding is reflected in the resulting ratio between the non-parole period and the balance of term.
  • Where a sentencing judge characterises the objective seriousness of an offence as well above the midrange, the Court of Criminal Appeal confirmed that characterisation is essentially a factual finding and will not be disturbed unless the judge overlooked a relevant consideration, applied wrong principle, or reached a finding not open on the evidence.
  • Aggravated kidnapping involving sustained physical violence, a weapon, threats to kill, binding of the victim, and multiple locations over an extended period was treated as a very serious instance of the offence, justifying a sentence at the upper end of the appropriate range.
  • An inadvertent error in the commencement date of a sentence is a correctable error on appeal, even where the substantive sentence is otherwise upheld in its entirety.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 86(1), 86(2), 86(2)(b), 86(3), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 24(a), 44, 44(2)

Cases:
- Huntington v Regina [2007] NSWCCA 196
- Mulato v Regina [2006] NSWCCA 282
- R v Fidow [2004] NSWCA 172
- R v Johnson [2004] NSWCCA 140
- R v M.A.K; R v M.S.K [2006] NSWCCA 381
- R v MMK [2006] NSWCCA 272
- R v Newell [2004] NSWCCA 183
- Regina v Cramp [2004] NSWCCA 264