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Court of Criminal Appeal 19 June 2023

Martin Wade v R

[2023] NSWCCA 135

Assault & violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE UNLAWFUL DETENTION CONTRACT ENFORCER USE OF STATISTICS AND COMPARATIVE CASES

Citation: Martin Wade v R [2023] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 19 June 2023
Judge(s): Gleeson JA, Davies J (primary judgment), Wilson J

Background

The applicant pleaded guilty to two offences arising from a home invasion on 12 December 2020 at a Northern Beaches property: entering a dwelling with intent to commit a serious indictable offence (intimidation), and unlawfully detaining two occupants with intent to commit that same offence in circumstances of special aggravation. He had been engaged as "muscle" by a businessman who claimed a former associate owed his company $1 million, and attended the property with a second male intruder to intimidate the occupant into acknowledging the alleged debt.

During the detention, which lasted between four and seven minutes, one of the occupants had her finger cut by a machete, a packing knife was held to the other occupant's neck, a watch was stolen, and both occupants were threatened with serious harm if they reported the incident to police.

The sentencing judge found the objective seriousness of each offence fell below the mid-range, but nonetheless imposed an aggregate sentence of six years' imprisonment with a non-parole period of three years and seven months. The indicative sentence for the unlawful detention count (sequence 3) was five years and six months. The applicant sought leave to appeal on the grounds that the indicative sentence for sequence 3 was excessive and that the aggregate sentence was manifestly excessive.

  • Whether the indicative sentence of five years and six months for the unlawful detention offence was within the sentencing judge's discretion, given the finding of below mid-range objective seriousness.
  • Whether the aggregate sentence of six years' imprisonment was manifestly excessive, having regard to the applicant's subjective circumstances including his early guilty plea, low intellect, mental health, Bugmy-related background factors, and the hardship of incarceration during the COVID-19 pandemic.
  • The appropriate use of sentencing statistics and comparative cases in assessing sentences for unlawful detention.

Decision

The Court of Criminal Appeal, by Davies J (with Gleeson JA and Wilson J agreeing), dismissed both grounds of appeal. On ground 1, the Court accepted that while the sentencing judge found the objective seriousness fell below the mid-range, the offence remained a serious instance of unlawful detention involving threats, actual violence, and robbery. A notional starting point of seven years and four months, though stern, was not outside the range of the sentencing judge's discretion.

The Court also addressed the applicant's reliance on sentencing statistics and comparative cases. It reaffirmed the difficulties inherent in using such material, observing that unlawful detention cases are unlikely to be sufficiently homogeneous to draw meaningful comparisons. The Court further noted that the role of a "contract enforcer" of this nature attracts considerable judicial disapproval, and that disapproval was properly reflected in the sentence.

On ground 2, the Court reasoned that because the indicative sentence for sequence 3 was not manifestly excessive, and the two indicative sentences were notionally accumulated by only six months, it was difficult to see how the aggregate could be manifestly excessive. The non-parole period represented a generous reduction of the statutory ratio to approximately 60%, below the usual statutory ratio of 75%. All subjective matters raised by the applicant had been considered by the sentencing judge, and the Court confirmed that the weight assigned to any subjective factor in the sentencing exercise rests entirely with the sentencing judge.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Sentencing statistics and comparative cases carry inherent limitations, particularly for the offence of unlawful detention, where individual cases are unlikely to be sufficiently homogeneous to support meaningful numerical comparison.
  • A below mid-range finding on objective seriousness does not preclude a stern indicative sentence where the conduct involved threats, actual violence, and robbery during the detention.
  • The Court of Criminal Appeal confirmed that persons who act as "contract enforcers" to intimidate others into acknowledging civil debts attract considerable judicial disapproval, properly reflected in sentencing outcomes.
  • Where an indicative sentence is not manifestly excessive and the two sentences are notionally accumulated by only six months, an aggregate sentence is unlikely to be characterised as manifestly excessive, particularly where the non-parole period reflects a generous reduction of the statutory ratio.
  • The weight attributed to subjective factors, including guilty plea, intellectual limitations, mental health, Bugmy-related background, and COVID-19 conditions of custody, is a matter entirely within the sentencing judge's discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86, 111

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 36
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- R v Newell [2004] NSWCCA 183
- R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
- Clarke v R [2021] NSWCCA 236
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528