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Court of Criminal Appeal 31 October 2013

Belghar v R

[2013] NSWCCA 245

Assault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Belghar v R [2013] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 31 October 2013
Judges: Gleeson JA; R A Hulme J; Adamson J

Background

The applicant pleaded guilty in the District Court to two offences arising from an incident at a Sydney shopping centre in December 2009. The victim was his sister-in-law, with whom he had a strained relationship following a dispute over his wife attending the beach. On the night in question, the applicant approached the victim at a car park walkway, slapped her across the face, then lifted her bodily and held her horizontally over an external railing approximately 12 metres above the ground, causing her to believe she was about to be thrown to her death.

The offences were: detaining the victim without consent and with the intention of obtaining an advantage, contrary to s 86(1)(b) of the Crimes Act 1900 (maximum 14 years imprisonment); and common assault under s 61 of the same Act (maximum 2 years). The Crown accepted these pleas in full satisfaction of an indictment that had originally included a count of attempted murder.

Judge Zahra in the District Court sentenced the applicant to 4 years and 6 months imprisonment with a non-parole period of 2 years and 6 months for the kidnapping, and 3 months concurrent for the assault. The applicant sought leave to appeal against the kidnapping sentence only, on the sole ground that it was manifestly excessive.

  • Whether the sentence of 4 years and 6 months for the s 86(1)(b) kidnapping offence was manifestly excessive.
  • Whether the sentencing judge correctly assessed the objective seriousness of the offence and applied the relevant sentencing principles.
  • Whether comparator cases from prior decisions of the Court of Criminal Appeal demonstrated that the sentence fell outside the appropriate range.

Decision

Gleeson JA (with whom Hulme J and Adamson J agreed) dismissed the appeal, finding that the sentence lay within the range of a proper exercise of sentencing discretion. The sentencing judge had correctly identified the relevant factors for assessing the seriousness of a detention offence under s 86, including the period and circumstances of the detention, the fear occasioned in the victim, and the purpose of the detention.

The Court accepted the sentencing judge's characterisation of the offence as one of the most serious kind. Although the detention was brief, it was marked by intense aggression, an explicit death threat, and a genuine risk that the victim could have fallen 12 metres to the ground. The applicant's conduct was also properly viewed against the earlier threatening phone call made two months prior, even though the offence itself was impulsive and unplanned.

The applicant relied on several comparator cases to argue the sentence was too high. The Court found those cases of limited utility. Significant distinguishing features included differences in the discounts allowed for guilty pleas, the weight given to mental health conditions in other cases (not present here, beyond a social phobia and anxiety condition), and the fact that the one case most strongly relied upon had resulted in a reduced sentence on parity grounds reflecting a lesser co-offending role. None of the comparators demonstrated error in the sentence imposed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A conviction under s 86(1)(b) of the Crimes Act 1900 for detaining for advantage encompasses a wide range of circumstances; the Court confirmed that relevant factors include the period of detention, the circumstances, the terror occasioned, the identity of the victim, and the purpose sought.
  • Brief duration of a detention does not, of itself, reduce the objective seriousness of the offence where the detention involved extreme danger and intense aggression.
  • The Court of Criminal Appeal confirmed that comparator sentences are of limited utility and must be assessed carefully for distinguishing features, including differences in plea discounts and the offender's mental health circumstances.
  • In dismissing the appeal, the Court reaffirmed that an appellate court will not interfere with a sentence unless the applicant establishes error, whether by identifying a specific error of principle or by demonstrating that the sentence is so unreasonable as to warrant the inference of error.
  • An advantage within the meaning of s 86(1)(b) may be psychological in nature; the sentencing judge's finding that the applicant sought to assert authority over the victim and intimidate her into ceasing contact with his wife satisfied that element.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 86
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Ayshow v R [2011] NSWCCA 240
- Charbaji v R [2011] NSWCA 181
- Corby v R [2010] NSWCCA 146
- Georgopolous v R [2010] NSWCCA 246
- Ha v R [2010] NSWCCA 83
- Heine v R [2008] NSWCCA 61
- House v The King (1936) 55 CLR 499
- Ibbs v The Queen [1987] HCA 46; 163 CLR 447
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Markarian v R [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Nguyen v R [2011] NSWCCA 127
- R v Cage [2006] NSWCCA 304
- R v Dodd (1991) 57 A Crim R 349
- R v DRR [2004] NSWCCA 126
- R v Gebrail (Unreported, NSW Court of Criminal Appeal, 18 November 1994)
- R v Geddes (1936) 36 SR (NSW) 554
- R v Koloamatangi [2011] NSWCAA 288
- R v Lee [2003] NSWCCA 391
- R v Newell [2004] NSWCCA 183