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District Court 30 May 2019

R v Kertz

[2019] NSWDC 561

Sexual offencesAssault & violenceFirearms & weapons

Citation: R v Kertz [2019] NSWDC 561
Court: District Court of New South Wales
Date: 30 May 2019
Judge: Buscombe DCJ

Background

The offender was sentenced on two offences arising from events on the night of 19 May 2018 in Gundaroo. The offender and the victim had been acquaintances for over a year, having met through the offender's work at a local tip. The victim regarded him as a friend and trusted him prior to that evening.

After a series of phone calls and text messages about bondage activity, the offender drove more than an hour to the victim's remote home without her knowledge or invitation. He arrived after 11:35 pm, pushed the victim onto a lounge, restrained her arms behind her back, and applied handcuffs to her wrists. When the victim resisted, he slapped her twice across the face. He subsequently forced her, without consent, to accompany him to a shed to retrieve recordings, and then to return to the lounge room to attempt to play those recordings for him. He left the premises after the recordings would not play.

Police later executed a search warrant at the offender's premises and located the handcuffs. The offender had pleaded guilty in the Local Court to possessing a prohibited weapon (the handcuffs) under the Weapons Prohibition Act 1998. Following a judge-alone trial in the District Court, Buscombe DCJ found the offender guilty of detaining the victim without consent with the intention of obtaining sexual gratification, contrary to s 86(1) of the Crimes Act 1900.

  • What aggregate sentence was appropriate for the two offences: possessing a prohibited weapon and detaining a person for advantage (sexual gratification)?
  • What was the objective seriousness of each offence?
  • How should the standard non-parole period for the weapons offence and the guilty plea to that offence affect the sentence?
  • Was an indicative non-parole period required for the weapons offence given its short indicative term?

Decision

Buscombe DCJ assessed the detention offence as the more serious of the two. The offender had attended the victim's remote home uninvited in the late hours of the night, physically restrained her with handcuffs, struck her, and then forced her to retrieve and play recordings. The victim impact statement confirmed the offence had a significant and lasting adverse effect on the victim, including a diminished capacity to trust male friends.

On the weapons offence, the court took the standard non-parole period of five years as a legislative guidepost but departed from it, reflecting the court's assessment of the objective seriousness of that offence and the credit due for the early guilty plea. The indicative sentence for possession of the prohibited weapon was six months' imprisonment. The court noted, upon revision, that nominating an indicative non-parole period for this offence was unnecessary given the indicative term was only six months.

The indicative sentence for the detention offence was 18 months' imprisonment. Using the aggregate sentencing provisions of the Crimes (Sentencing Procedure) Act 1999, the court imposed a total aggregate term of one year and ten months, with a non-parole period of one year and four months.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment of one year and ten months, commencing 23 May 2018 and expiring 22 March 2020.
  • An aggregate non-parole period of one year and four months was imposed, expiring 22 September 2019.
  • The offender was to be released to parole on expiry of the non-parole period, subject to the State Parole Authority's assessment of his conduct in custody.

Key Takeaways

  • The District Court treated the detention offence as the principal offence for sentencing purposes, with the weapons charge contributing to the aggregate sentence in a supporting role.
  • Under s 86(1) of the Crimes Act 1900, detaining a person without consent with intent to obtain sexual gratification carries a maximum of 14 years' imprisonment, with no applicable standard non-parole period.
  • Possession of a prohibited weapon under s 7(1) of the Weapons Prohibition Act 1998 carries a maximum of 14 years and a standard non-parole period of five years, which courts treat as a legislative guidepost rather than a mandatory minimum.
  • A guilty plea entered in the Local Court to the weapons offence was taken into account in departing downward from the standard non-parole period for that offence.
  • Where an indicative term for a component offence within an aggregate sentence is six months or less, nominating a separate indicative non-parole period for that component is unnecessary.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(1) (detain for advantage)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (aggregate sentencing provisions)
- Weapons Prohibition Act 1998 (NSW), s 7(1) (possession of prohibited weapon)

Cases: No cases were cited in the decision.