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Court of Criminal Appeal 11 March 2015

De Wet v R

[2015] NSWCCA 23

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE KIDNAPPING COMMITTED IN COMPANY GRIEVOUS BODILY HARM

Citation: De Wet v R [2015] NSWCCA 23
Court: Court of Criminal Appeal, New South Wales
Date: 11 March 2015
Judges: Hoeben CJ at CL; Harrison J; R A Hulme J

Background

The appellant pleaded guilty in the District Court to two offences arising from a premeditated attack on a victim in Bellambi in July 2012. The first offence was specially aggravated detention for advantage (kidnapping committed in company), contrary to s 86(3) of the Crimes Act 1900. The second was intentionally inflicting grievous bodily harm, contrary to s 33(1)(b) of the same Act.

The facts, recorded in part through police listening devices and phone intercepts, disclosed that the appellant orchestrated a scheme over several weeks to locate and punish the victim over a personal grievance. Recruited associates lured the victim, forcibly removed him from his mother's home, and transported him to a secluded area. There, the appellant led a sustained and ferocious beating, during which he bit off and spat out a piece of the victim's ear cartilage. DNA later confirmed the appellant's identity. The appellant was recorded gloating about the attack afterward.

The District Court sentenced the appellant to a fixed term of four years for the kidnapping, cumulative on a nine-year head sentence (with a six-year non-parole period) for the grievous bodily harm count. The total effective sentence was ten years, with a non-parole period of seven years. The appellant received a ten percent discount for his guilty pleas.

  • Whether the sentencing judge erred by failing to assess the objective seriousness of each offence separately.
  • Whether the sentencing judge erred in accumulating (stacking) the two sentences rather than making them concurrent.
  • Whether the sentence on the grievous bodily harm count was manifestly excessive.

Decision

On the first ground, Harrison J found no error in the sentencing judge's approach to objective seriousness. The sentencing judge had clearly addressed each offence individually and, separately, considered the overall criminality involved. The Court noted that because the two offences were closely related in time, place, and circumstances, it was appropriate to consider their interrelationship when assessing seriousness.

On the accumulation ground, the Court confirmed the applicable principle from Pearce v The Queen: where separate offences arise from the same transaction, concurrent sentences are the starting point, but accumulation is permissible where the criminality of the second offence is not fully reflected by a concurrent term. Here, the kidnapping was a distinct wrong visited upon the victim, separate from the assault itself. The Court held that accumulation was justified because concurrent sentences would have given no meaningful punishment for the kidnapping.

On manifest excess, the Court declined to intervene. The standard requires that the sentence be unreasonable or plainly unjust, not merely that other sentences have been lower in comparable cases. Harrison J emphasised that the element of intent underlying the grievous bodily harm charge was evident in the entire length and ferocity of the attack, not only in the specific acts that caused the identifiable injuries. The overall criminality, including weeks of premeditation, the coordinated abduction, and the prolonged beating, fully supported the sentence imposed. The Court found no misapplication of principle.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Accumulation of sentences for offences arising from the same criminal episode is permissible where making sentences concurrent would fail to reflect the full criminality of one of the offences, particularly where that offence constitutes a distinct wrong against the victim.
  • A sentence is not manifestly excessive simply because comparable cases have produced lower terms. Intervention requires the appellate court to conclude that there was a misapplication of sentencing principle, or that the sentence falls so far outside the available range that error must be inferred.
  • When assessing objective seriousness for intentionally inflicting grievous bodily harm, the court is not confined to the specific acts directly causing the identified injuries. The duration, ferocity, and broader conduct of the attack are all relevant to the assessment.
  • In dismissing all three grounds, the Court of Criminal Appeal confirmed that the District Court had properly applied the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, including the weight given to general and specific deterrence for serious, premeditated violence.
  • A ten percent utilitarian discount for a guilty plea does not, without more, render an otherwise appropriate sentence excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Dinsdale v The Queen (2000) 175 ALR 315
- Franklin v R [2013] NSWCCA 122
- Hili v The Queen [2010] HCA 45
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Morgan (1993) 70 A Crim R 368
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465