Citation: Banat v R [2020] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 15 December 2020
Judges: Brereton JA; Walton J; Beech-Jones J
Background
The applicant was convicted after trial in the District Court of a specially aggravated kidnapping offence under s 86(3) of the Crimes Act 1900 (NSW). The offence involved the abduction of a victim from a restaurant carpark, after which he was detained across multiple locations for approximately 39 hours, subjected to repeated physical assaults, and threatened with a firearm, a knife, a drill, and what appeared to be petrol. The applicant was implicated on the basis of joint criminal enterprise.
At sentencing, the District Court also dealt with three unrelated offences the applicant had pleaded guilty to, all arising from events in December 2015: demanding property by force with intent to steal, knowingly dealing with proceeds of crime, and participating in a criminal group. The sentencing judge imposed an aggregate sentence of nine years with a non-parole period of six years, commencing 27 July 2017.
The applicant sought leave to appeal against the sentence on two grounds: manifest excess, and failure to take into account a relevant sentencing consideration, specifically that the sentencing judge had credited him for one period of conditional bail but not another.
Legal Issues
- Whether the sentencing judge erred by taking into account the second period of conditional bail (for the kidnapping offence) but declining to take into account the first period (for the December 2015 offences), when both periods involved restrictive conditions amounting to something approaching house arrest.
- Whether the aggregate sentence of nine years, and in particular the indicative sentence of eight years for the kidnapping offence, was manifestly excessive.
- Whether there was any error in the commencement date of the sentence as imposed.
Decision
Ground 1: Failure to credit the first bail period
The Court confirmed that giving credit for time spent on restrictive conditional bail is a matter of discretion for the sentencing judge, not a legal entitlement. Brereton JA held that the conditions attached to the two bail periods were meaningfully different. During the first bail period, the applicant had been required not to leave his residence unless accompanied by a sibling. During the second, the permitted companions included four named individuals. Critically, the applicant had committed the kidnapping offence while on the first bail period, and the sentencing judge was entitled to treat that conduct as relevant to any discretionary credit for that period. No error of principle was established in declining to credit the first bail period.
Ground 2: Manifest excess
The Court rejected the manifest excess argument. Brereton JA found the objective seriousness of the kidnapping offence was high, noting the planning involved, the use of a vehicle fitted with a flashing blue light to simulate a police operation, the use of balaclavas and multiple weapons, and the sustained nature of the detention and violence. While the applicant's precise role within the joint enterprise was not established at the most serious organisational level, his involvement from an early stage was not in doubt. Beech-Jones J observed that because the indicative sentence for the kidnapping offence (eight years) represented the bulk of the nine-year aggregate, a successful manifest excess argument on the former would very likely have affected the latter. No such error was established.
Commencement date
The Court identified a minor error in the commencement date of the sentence as pronounced and allowed the appeal to that narrow extent only, adjusting the commencement date from 27 July 2017 to 20 July 2017.
Orders Made
- Leave to appeal against sentence granted.
- Appeal allowed to the extent that the commencement date of the sentence is varied to 20 July 2017, the expiry date varied to 19 July 2026, and the non-parole period expiry varied to 19 July 2023.
- Appeal otherwise dismissed.
Key Takeaways
- Credit for time spent on conditional bail is a discretionary sentencing factor, not a right. A sentencing court is not obliged to give equal weight to all bail periods, and may decline to credit a period during which the offender committed further offences.
- Where the conditions of two bail periods differ in material respects, a sentencing judge acts within discretion by treating them differently for the purposes of mitigation.
- The Court of Criminal Appeal confirmed that the commission of a serious offence while on conditional bail is a factor that can legitimately inform the weight, if any, given to that bail period as a mitigating matter.
- In challenging an aggregate sentence by reference to a specific indicative sentence, the proportion that the indicative sentence bears to the total aggregate is relevant. Where one indicative sentence dominates the aggregate, as the Court of Criminal Appeal noted here, the two challenges are likely to stand or fall together.
- Minor computational errors in a sentence commencement date may constitute sufficient error to ground a partial appeal, even where all substantive grounds fail.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 86(3), 93T(1), 99(1), 193B(2)
- Summary Offences Act 1988 (NSW), s 27DA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(1)
Cases
- House v The King (1936) 55 CLR 499 (principles governing appellate intervention in sentencing)
- Kentwell v The Queen (2014) 252 CLR 601
- Lehn v R (2016) 93 NSWLR 205
- Lee v R [2020] NSWCCA 244 (aggregate sentence challenges by reference to indicative sentences)
- Hoskins v R [2016] NSWCCA 157
- Frlanov v R [2018] NSWCCA 267
- R v Webb (2004) 149 A Crim R 167
- Refaieh v R [2018] NSWCCA 72
- Bland v R [2014] NSWCCA 82
- R v Perry [2000] NSWCCA 375
- R v Cartwright (1989) 17 NSWLR 243
- Kerr v R [2016] NSWCCA 218
- Hughes v R [2018] NSWCCA 2
- Renshaw v R [2012] NSWCCA 91