Citation: Regina v Davis [2004] NSWCCA 310
Court: New South Wales Court of Criminal Appeal
Date: 3 September 2004
Judge(s): Grove J, Simpson J, Shaw J
Background
The appellant was a 24-year-old woman with no prior criminal history, living in Armidale as part of a close-knit Cook Islands community. Her de facto partner's cousin, a young mother, had left her three-year-old son behind in Armidale and relocated to Inverell with a new partner. The appellant grew increasingly concerned that the mother was neglecting her parental duties and that the child was unwell from missing her.
Acting on these concerns, the appellant and two co-offenders travelled to Inverell, obtained the mother's address by deception, and forcibly took her back to Armidale. Physical force was used during the abduction, and the complainant suffered actual bodily harm. Once back in Armidale, however, the appellant and co-offenders permitted the complainant to make telephone calls, including one to police, and the appellant assisted police in locating the address. Officers arrived shortly afterwards and took the complainant away.
All three co-offenders pleaded guilty in the Local Court to taking and detaining a person in company with intent to obtain advantage and occasioning actual bodily harm, an offence under s 86(3) of the Crimes Act 1900 carrying a maximum penalty of 25 years imprisonment. The sentencing judge in the District Court imposed four years imprisonment with a nine-month non-parole period on each offender. The appellant sought leave to appeal against the severity of that sentence.
Legal Issues
- Whether the sentencing judge erred by treating the commission of the offence in company, and the occasioning of actual bodily harm, as aggravating factors, when those were already elements of the charged offence
- Whether, even if that error was established, the sentence was nonetheless appropriate, or whether a lesser sentence was warranted in law
- What the appropriate sentence was upon resentencing, having regard to general deterrence, the unusual circumstances of the offence, and the appellant's personal circumstances
Decision
The Court of Criminal Appeal upheld the first ground of appeal. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 lists aggravating factors a court must consider, but expressly provides that a court must not take additional regard of any factor that is already an element of the offence. Because commission in company and the occasioning of actual bodily harm were both elements of the s 86(3) charge, the sentencing judge was prohibited from treating them as additional aggravating factors. The Crown made a tentative concession on this point, and the Court found the error was plain from the sentencing remarks.
The Court agreed with the sentencing judge that general deterrence was significant and that cultural expectations can only be enforced within the law. However, the Court identified several mitigating features that warranted a substantially reduced sentence. The complainant knew her captors throughout. Once back in Armidale, there was no real attempt to continue the detention: the appellant even assisted police in identifying the address from which the complainant was calling. The level of actual harm, while real, was at the lower end, and the circumstances of the offence had what Grove J described as elements of farce.
Taking into account the nine months already served in custody and the appellant's lack of prior convictions, the Court found that all sentencing objectives could have been achieved by a suspended term or equivalent measure. The Court concluded that a good behaviour bond of twelve months, under s 9 of the Crimes (Sentencing Procedure) Act 1999, was the appropriate resentence given the time already served.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed
- Sentence imposed in the District Court quashed
- Appellant ordered to enter a good behaviour bond for twelve months from the date of the appeal, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999
- Appellant directed to attend and enter that recognizance at the Armidale Court within seven days
Key Takeaways
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court commits a legal error if it treats a matter that is already an element of the charged offence as an additional aggravating factor. This prohibition is express and was plainly breached in the original sentence.
- The Court of Criminal Appeal confirmed that general deterrence remains an important consideration where offenders unlawfully enforce cultural or family expectations, even where motives are described as misguided rather than malicious.
- A substantially reduced sentence may be appropriate where actual harm is limited, the complainant was known to the offenders throughout, detention effectively ceased upon return, and the offender actively assisted police in locating the complainant.
- Refusing to give a co-offender credit for a cleaner record, to avoid other co-offenders having a "sense of grievance," is contrary to sentencing principle. Each offender is entitled to have their individual circumstances properly reflected in their sentence.
- Nine months of actual custody already served was a material factor in the Court's decision to substitute a good behaviour bond rather than a suspended sentence, demonstrating the significance of time served when assessing the proportionality of a resentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(3) (taking and detaining a person in company with intent to obtain advantage, occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds), s 12 (suspended sentences), s 21A (aggravating and mitigating factors)
Cases: No cases were cited in the provided judgment text.