AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
40
Court of Criminal Appeal 28 June 2012

R v Speechley

[2012] NSWCCA 130

Also reported as (2012) 221 A Crim R 175
Assault & violence
CRIMINAL LAW SENTENCE CROWN APPEAL AGGRAVATED KIDNAPPING OFFENDER RESPONDENT FRIEND OF CO

Citation: R v Speechley [2012] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 28 June 2012
Judges: McClellan CJ at CL, Johnson J, Hammerschlag J

Background

The respondent, a 19-year-old woman at the time of the offence, pleaded guilty in the Parramatta District Court to aggravated kidnapping under s.86(2)(a) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years' imprisonment and has no standard non-parole period. The kidnapping arose from a vigilante plan targeting a man whom the respondent's close friend had accused of sexual assault.

On the night of 2 May 2011, the respondent and her co-offenders lured the victim into a vehicle under false pretences. Once at a park, the victim was confronted at gunpoint by a third co-offender who had been concealed in the boot of the car. During the incident, the victim was handcuffed, struck on the head with a rifle, and had a knife retrieved from the boot by the respondent at a co-offender's direction. The victim ultimately escaped and contacted police.

The District Court sentenced the respondent to one year and 11 months' imprisonment, but suspended the sentence entirely and released her on a good behaviour bond with Probation and Parole supervision. The Crown appealed, arguing the sentence was manifestly inadequate.

  • Whether the District Court's sentencing of the respondent contained patent or latent errors rendering the sentence manifestly inadequate
  • Whether the Court of Criminal Appeal should dismiss the Crown appeal in the exercise of its residual discretion, particularly in light of evidence of the respondent's progress since sentence
  • Whether the evidence advanced by the respondent in support of residual discretion was candid and reliable
  • What sentence should be imposed on resentencing

Decision

The Court of Criminal Appeal, with Johnson J delivering the principal judgment (McClellan CJ at CL and Hammerschlag J agreeing), found that the suspended sentence was manifestly inadequate for an offence of this seriousness. The offending involved the planned abduction of a person, the use of a loaded firearm pointed at his head, handcuffing, a knife, and the discharge of the weapon during the incident. These objective circumstances, the Court found, placed the offending at a significant level of gravity.

A central issue was whether the Court should decline to resentence the respondent by exercising its residual discretion. The respondent had advanced evidence of rehabilitation and changed circumstances in the period between sentencing and the appeal hearing. However, the Court found that aspects of this evidence were misleading, and emphasised that a respondent seeking to invoke the residual discretion must be entirely candid with the Court. The failure to meet that standard of candour weighed heavily against exercising the discretion in the respondent's favour.

The Court declined to exercise the residual discretion and allowed the Crown appeal. On resentencing, the Court fixed the same total term of one year and 11 months but converted it to a full-time custodial sentence, with a non-parole period of 12 months. Special circumstances were found to vary the statutory non-parole ratio, principally because the respondent had the care of a young child. The sentence was backdated to 3 February 2012, the date of the original sentencing.

Orders Made

  • Crown appeal allowed
  • Sentence imposed at the Parramatta District Court on 3 February 2012 quashed
  • Respondent sentenced for aggravated kidnapping under s.86(2)(a) Crimes Act 1900 to imprisonment comprising:
  • Non-parole period of 12 months commencing 3 February 2012 and expiring 2 February 2013
  • Balance of term of 11 months commencing 3 February 2013 and expiring 2 January 2014
  • Direction that the respondent be released on parole at the expiry of the non-parole period on 2 February 2013

Key Takeaways

  • A fully suspended sentence for aggravated kidnapping involving a firearm, handcuffs, a knife, and a planned abduction was held to be manifestly inadequate, even accounting for the respondent's youth, lack of prior convictions, and personal circumstances.
  • Where a respondent seeks to invoke the Court of Criminal Appeal's residual discretion to decline resentencing despite a manifestly inadequate sentence, a strict standard of candour applies to any evidence advanced in support of that application.
  • Misleading evidence tendered by a respondent in the residual discretion context will weigh against the exercise of that discretion in the respondent's favour.
  • Special circumstances justifying a variation of the statutory non-parole period ratio can be established by factors including primary carer responsibility for a young child, even where the respondent is being resentenced after a Crown appeal.
  • The Court of Criminal Appeal backdated the resentenced term to the date of the original sentencing, reflecting the time the respondent had already been subject to the suspended sentence and bond.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s.5D
- Crimes Act 1900 (NSW), s.86(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss.12, 44(2), 50

Cases
- Simkhada v R [2010] NSWCCA 284
- Rotner v R [2011] NSWCCA 207
- Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
- Davis v R [2006] NSWCCA 392
- R v Rose [2003] NSWCCA 411
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- Heine v R [2008] NSWCCA 61
- R v Burton [2008] NSWCCA 128
- Jeffries v R [2008] NSWCCA 114; 185 A Crim R 500
- Williams v R [2006] NSWCCA 33
- Barlow v R [2008] NSWCCA 96; 184 A Crim R 187
- R v Rayment [2010] NSWCCA 85; 200 A Crim R 48
- R v Newell [2004] NSWCCA 183
- R v Falls [2004] NSWCCA 335
- R v Leoni [1999] NSWCCA 14
- R v Villar and Zugecic [2004] NSWCCA 302
- R v Button and Griffen [2002] NSWCCA 159; 54 NSWLR 455
- McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549
- R v Dodd (1991) 57 A Crim R 349
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120