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Court of Criminal Appeal 16 July 2018

Baradi v R

[2018] NSWCCA 143

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL CONVICTION APPEAL SENTENCE APPEAL

Citation: Baradi v R [2018] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 16 July 2018
Judges: Simpson AJA; Johnson J; Adamson J

Background

The appellant pleaded guilty in the District Court to two offences arising from a single incident on 26 July 2016. The offences were aggravated break and enter and commit a serious indictable offence (under s 112(2) of the Crimes Act 1900), and common assault (under s 61). The appellant had been in an intermittent domestic relationship with the complainant, which had a history of violence.

The incident took place at a Manly hotel where the complainant was staying for a training course. The appellant kicked in the door of her room, entered, took her mobile phone, and told her to get up. He then seized her by the wrists and walked her approximately 20 metres down the corridor to a lift. The Crown case, accepted by the appellant, was that the break and enter was aggravated by his knowledge that people were present, and that the serious indictable offence committed inside was detaining a person without consent with intent to obtain an advantage, contrary to s 86(1)(b) of the Crimes Act.

The appellant was sentenced to a total effective term of five years' imprisonment with a two-year non-parole period. He appealed against his conviction for assault on the ground that it constituted double punishment, and sought leave to appeal against his sentences as manifestly excessive.

  • Whether the criminality of the common assault was wholly subsumed by, or contained within, the aggravated break and enter offence, such that convicting and sentencing the appellant on both charges amounted to double punishment.
  • Whether the conduct of taking the complainant's phone and telling her to get up was capable of constituting "detention" for the purposes of the kidnapping offence under s 86(1)(b) of the Crimes Act.
  • Whether the sentences imposed were manifestly excessive.

Decision

The double punishment issue (majority: Johnson J, Adamson J agreeing)

Johnson J, with Adamson J agreeing, held that the assault involved additional criminality beyond the conduct that constituted the aggravated break and enter. The serious indictable offence forming part of the break and enter charge was constituted by the appellant taking the complainant's phone and directing her to get up. Those acts were capable of amounting to detention under s 86(1)(b), because they interfered with the complainant's liberty. "Advantage" in that provision can include the psychological satisfaction or gratification derived by the offender, and detention does not require physical restraint or any minimum duration. The subsequent act of seizing the complainant by the wrists and walking her to the lift was separate conduct forming the assault charge, and the appellant was not doubly punished.

The double punishment issue (dissent: Simpson AJA)

Simpson AJA dissented on this point, finding that taking the phone and saying "get up" could not reasonably be characterised as detention. In her Honour's analysis, the Crown had in reality relied upon the same conduct to establish both the serious indictable offence element of the break and enter and the assault. The assault was therefore fully subsumed in the aggravated break and enter, and convicting and punishing the appellant on both charges amounted to double punishment for a single act of criminality. Simpson AJA would have allowed the conviction appeal, quashed the assault conviction, and varied the commencement date of the break and enter sentence accordingly.

Sentence (unanimous)

All three judges agreed that the sentences were not manifestly excessive. The offences were a serious instance of domestic violence, committed while the appellant was subject to a good behaviour bond for an earlier assault. The sentencing judge had noted that the appellant attributed his violent conduct to being in the "wrong kind of relationships," a tendency to deflect personal responsibility also observed in other domestic violence cases. A significant finding of special circumstances explained the relatively low non-parole period in relation to the head sentence. The total effective sentence of five years with a two-year non-parole period was not unreasonable or plainly unjust.

Orders Made

The orders made by the majority differed from those proposed by Simpson AJA. Based on the orders section extracted from the judgment (which reflects Simpson AJA's proposed orders), the formal orders were:

  • Time for filing the appeal extended to 13 March 2018.
  • Appeal against conviction for common assault allowed; conviction and sentence quashed.
  • Leave to appeal against sentence for aggravated break and enter granted; appeal dismissed.
  • Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, the commencement date of the break and enter sentence varied to 27 October 2016, expiring 26 April 2021, with a non-parole period of 1 year and 6 months expiring 26 April 2018.

Note: The orders section as provided reflects the minority position of Simpson AJA. Johnson J and Adamson J (the majority) dismissed the conviction appeal entirely. Readers should consult the full judgment to confirm which set of orders took formal effect.

Key Takeaways

  • Under s 86(1)(b) of the Crimes Act 1900, detention does not require physical restraint or a minimum duration. Acts that interfere with a person's liberty are capable of constituting detention, and "advantage" for the purposes of the offence can include the offender's psychological gratification.
  • Whether double punishment arises when two charges are laid for conduct arising from a single incident turns on whether the charges involve distinct criminality. In this case, the majority found the assault and the break and enter each involved separate acts, defeating the double punishment argument.
  • A live disagreement existed among the judges on whether taking a phone and issuing a verbal direction constitutes "detention." Simpson AJA considered such conduct insufficient; Johnson J (with Adamson J agreeing) held it was capable of amounting to detention.
  • In sentencing for domestic violence offences, specific and general deterrence are important considerations, as is the community's need for denunciation of such conduct. Breach of conditional liberty at the time of offending aggravates the position.
  • Domestic violence offenders who attribute their conduct to the victim or to the relationship, rather than accepting personal responsibility, have been consistently criticised in this Court's jurisprudence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 86(1)(b), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Davis v R [2006] NSWCCA 392
- R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170
- Homsi v R; Karamalakis v R [2011] NSWCCA 164
- R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Jidah v R (2014) 246 A Crim R 368; [2014] NSWCCA 270
- Cherry v R [2017] NSWCCA 150
- Innes v R [2018] NSWCCA 90
- R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151
- R v Campbell and Brennan [1981] QdR 516
- R v Newell [2004] NSWCCA 183