Citation: Tattersall v R [2011] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 16 December 2011
Judge(s): McClellan CJ at CL; Latham J; Harrison J
Background
The appellant pleaded guilty to one count of detaining a person without consent and with intent to obtain an advantage, contrary to s 86(3) of the Crimes Act 1900 (NSW), with actual bodily harm occasioned to the victim. The offence arose from events in February 2010, just two days after the appellant was released from custody.
The appellant, upon learning of a sexual relationship between his former partner and the victim, orchestrated a plan to lure the victim to a house in Albion Park. Once there, the appellant and several co-offenders detained the victim for over seven hours, during which the victim was repeatedly punched, kicked, and struck with a baseball bat, had the word "dog" tattooed on his forehead, was threatened with death by heroin overdose, and was forced to sign over ownership of his car. The victim suffered serious injuries including a broken ankle and was left legally blind in his left eye.
The appellant was sentenced to 14 years and 5 months imprisonment, with a non-parole period of 11 years. He sought leave to appeal on two grounds: that the sentencing judge improperly relied on material not formally in evidence, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by having regard to material that was not formally in evidence before him, specifically findings made in the sentencing hearings of co-offenders.
- Whether the sentence of 14 years and 5 months with an 11-year non-parole period was manifestly excessive in all the circumstances.
Decision
On the first ground, the Court found no error. The sentencing judge had referred to material from the sentencing proceedings of co-offenders, including findings that the appellant was the ringleader and that co-offenders participated under threats from him. McClellan CJ at CL noted that the appellant's own counsel had acknowledged in submissions that the applicant's role was significantly greater than that of the co-offenders, and had conceded the applicant's extensive criminal history. In those circumstances, the Court was satisfied that counsel was plainly aware the sentencing judge would draw the same conclusions from that material, and no objection had been taken at the time.
On the second ground, the Court rejected the contention that the sentence was manifestly excessive. The offending was characterised as very serious: the victim endured a prolonged and brutal assault, sustained permanent injuries, was threatened with death, and had threats extended to his family if he reported the matter. The Court noted the appellant was the ringleader, committed the offence within two days of release from custody after previously breaching parole, and had a criminal history demonstrating persistent disregard for the law.
The appellant's explanations, that he felt "a bit upset" about the sexual relationship and was affected by drugs or alcohol, were found to neither justify nor meaningfully reduce the seriousness of the offending. The Court also noted the Form 1 drug supply matter and the sentencing judge's finding that the appellant was likely to reoffend.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge does not err by drawing on findings from co-offenders' sentencing proceedings where defence counsel was plainly aware that material was available and acknowledged its effect without objection.
- Where counsel expressly concedes an accused's role was greater than that of co-offenders, a sentencing judge's reliance on that characterisation will not constitute error merely because the underlying findings were made in separate proceedings.
- Offending within days of release from custody, combined with a history of persistent criminal conduct and a finding of likelihood of reoffending, are weighty factors supporting a heavy sentence.
- In dismissing the manifest excess ground, the Court emphasised the cumulative gravity of the offending: prolonged detention, serious and permanent physical injuries, death threats, forced property transfer, and deliberate humiliation of the victim.
- A stated reason of feeling emotionally aggrieved, or being affected by drugs or alcohol at the time of the offence, will not ordinarily reduce the objective seriousness of a sustained and orchestrated violent assault.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(3) (aggravated detention for advantage, maximum penalty 25 years)
- Drug Misuse and Trafficking Act 1995 (NSW), s 25 (deemed supply of a prohibited drug)
Cases cited: No cases were cited in the text of the judgment.