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Court of Criminal Appeal 31 August 2012

Bott v R

[2012] NSWCCA 191

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE KIDNAPPING STANDOVER MERCHANT WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Bott v R [2012] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 31 August 2012
Judge(s): Macfarlan JA, Price J, McCallum J

Background

The appellant pleaded guilty in the District Court to kidnapping under s 86(1)(b) of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment. A related intimidation offence under the Crimes (Domestic and Personal Violence) Act 2007 was taken into account on a Form 1 (a procedure by which additional offences are acknowledged at sentencing without a separate conviction being recorded).

The offending arose from a debt dispute. The victim, a finance broker, was physically seized on a street in Woollahra and dragged approximately 50 metres toward a waiting car by the appellant and another man. The apparent aim was to force the victim to lead them to a third party, Brenton Tong, from whom the group sought to extract money by force. The victim escaped when he triggered his car alarm, causing the appellant and his associate to flee.

The District Court sentenced the appellant to a non-parole period of 12 months with a balance of term of 18 months, after applying a 25 percent discount for the utilitarian value of his guilty plea. The appellant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had made several errors.

  • Whether the sentencing judge took irrelevant matters into account in passing sentence
  • Whether the judge effectively sentenced the appellant for the aggravated kidnapping offence under s 86(2) rather than the basic offence under s 86(1)(b) to which he had pleaded guilty
  • Whether the judge erred in assessing the appellant's prospects of rehabilitation
  • Whether the total sentence was manifestly excessive

Decision

The Court of Criminal Appeal (Price J, with Macfarlan JA and McCallum J agreeing) rejected all three grounds of appeal and dismissed the appeal.

On the question of irrelevant matters, the Court found that even if the sentencing judge had made some observations that were imprecise or technically irrelevant, no material error in the exercise of sentencing discretion was established. The Court applied the principle from Markarian v R that appellate courts should be slow to intervene merely because a judge expressed a view infelicitously, provided the sentence itself is not shown to be unreasonable or plainly unjust.

On the aggravated offence ground, the Court rejected the argument that the judge had impermissibly sentenced the appellant as though he had been convicted under the more serious provision, s 86(2). The judge was entitled to take the threatening and violent character of the conduct into account as objective features of the offence to which the appellant had pleaded guilty.

On rehabilitation and manifest excess, the Court found the judge had clearly considered the subjective case, including the appellant's strong family support and favourable work history. The Court emphasised that standover conduct designed to extract money through fear and violence calls for significant weight on both specific and general deterrence. Although the offence was not the most serious of its type, the Court concluded that a full-time custodial sentence exceeding two years was appropriate, and the sentence imposed was not unreasonable or plainly unjust.

Orders Made

  • Extension of time to seek leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is entitled to treat the violent and threatening character of kidnapping conduct as a significant objective feature when assessing the seriousness of the basic offence, even where the aggravated form of the offence was not charged.
  • Where an appellant cannot show that a sentence is unreasonable or plainly unjust, appellate intervention is not warranted simply because individual aspects of the judge's reasoning were expressed imprecisely, provided no material error in the exercise of discretion is demonstrated.
  • A full-time custodial sentence of more than two years was held to be called for where kidnapping was committed in the context of standover tactics designed to recover money through intimidation and physical force.
  • Both specific and general deterrence carry particular weight in sentencing for offences involving deliberate intimidation as a method of debt collection, especially where the offender showed limited insight into the gravity of that conduct.
  • The Form 1 intimidation offence, involving threats made to the victim at an earlier meeting, was a legitimate basis on which the sentencing judge could increase the sentence imposed for the kidnapping charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(1)(b), s 86(2) (kidnapping)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 68, 69

Cases:
- Allen v R [2010] NSWCCA 47
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357