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Court of Criminal Appeal 4 April 2014

Sheen v R

[2014] NSWCCA 42

Assault & violenceTheft & property
CRIMINAL LAW CONVICTION APPEAL SENTENCE APPEAL APPEAL DISMISSED

Citation: Sheen v R [2014] NSWCCA 42
Court: Court of Criminal Appeal, New South Wales
Date: 4 April 2014
Judge(s): Macfarlan JA; Garling J; RS Hulme AJ

Background

The appellant pleaded guilty, following plea negotiations, to two offences on an amended indictment: common assault of one victim and specially aggravated kidnapping of another. The offences arose from an incident in which the appellant and three associates used violence and coercion to pursue a $200 debt, ultimately forcing the debtor's girlfriend into her own car, assaulting and threatening her, and driving her around while searching for the debtor.

The original indictment had charged attempted kidnapping as the primary offence, with common assault included as a back-up charge under a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). When the indictment was amended to replace the attempted kidnapping charge with common assault, the back-up charge remained on foot. The sentencing judge, apparently overlooking the duplication, convicted and sentenced the appellant on both the amended indictment charge and the identical back-up charge.

On sentence, the appellant received a fixed term of three months for the common assault and seven years and two months imprisonment for the specially aggravated kidnapping, with a non-parole period of five years and two months. He appealed both the conviction on the back-up charge and the sentence for the kidnapping offence.

  • Whether the appellant was wrongly convicted of both the common assault charge in the amended indictment and the identical back-up charge arising from the same s 166 certificate
  • Whether the sentencing judge erred in characterising the appellant's role in the joint criminal enterprise, specifically in finding him to be the instigator of the events

Decision

On the conviction appeal, the Court of Criminal Appeal held that the conviction on the back-up charge was plainly erroneous. Once the primary charge of attempted kidnapping was replaced by common assault in the amended indictment, the back-up charge became redundant because it was now identical to the primary charge. Section 167(1) of the Criminal Procedure Act 1986 (NSW) provides that a back-up offence must be dismissed where the accused is found guilty of the primary offence. Convicting the appellant of both the same offence twice was impermissible, and the Crown properly conceded the point.

On the sentence appeal, the appellant argued that the sentencing judge had misjudged his role by characterising him as the instigator of the joint criminal enterprise. The Court rejected this argument. The facts, as agreed between the parties, showed that the entire sequence of events began with the appellant's pursuit of a personal debt, his threats to the debtor, and his recruitment of associates to assist him. Garling J observed that the appellant set in train all of the evening's events and bore responsibility for what followed.

The Court found no identifiable error in the sentencing judge's assessment of objective seriousness. The offence of specially aggravated kidnapping carried a maximum penalty of 25 years, and the sentence of seven years and two months was not excessive. Garling J added that a longer sentence could also have been justified.

Orders Made

  • The time for appeal in relation to the conviction on the s 166 certificate common assault charge was extended.
  • The appeal against that conviction was allowed and the conviction quashed.
  • Leave to appeal against sentence was granted, but the sentence appeal was dismissed.

Key Takeaways

  • Under s 167(1) of the Criminal Procedure Act 1986 (NSW), a back-up charge must be dismissed once the accused is found guilty of the primary offence. Where the primary charge is amended to become identical to the back-up charge, the same principle applies and a conviction on both is impermissible.
  • A back-up charge under a s 166 certificate becomes otiose when the indictment is amended so that the primary charge mirrors it exactly, and it should be dismissed rather than proceeded upon.
  • In assessing a participant's role in a joint criminal enterprise for sentencing purposes, the Court of Criminal Appeal confirmed that a sentencing judge may properly treat the person whose personal dispute originated and drove the criminal conduct as the instigator, even where others in the group were physically more prominent during the offence.
  • No error was established in the sentencing judge's characterisation of objective seriousness where the agreed facts supported the conclusion that the appellant instigated the enterprise and the resulting violence was serious and sustained.
  • Dismissing the sentence appeal, the Court noted that the sentence imposed was within range and that a longer term would also have been open on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61 (common assault), 86 (kidnapping, attempted kidnapping, and specially aggravated kidnapping)
- Criminal Procedure Act 1986 (NSW), ss 166 (back-up charges certificate), 167 (dismissal of back-up charges)

Cases:
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v Wright [2009] NSWCCA 3
- Mercael v R [2010] NSWCCA 36
- Michael v R [2014] NSWCCA 2
- Mulato v R [2006] NSWCCA 282