(2001) 125 A Crim R 551
R v Hamid [2006] NSWCCA 302
164 A Crim R 179
R v Hibberd [200] NSWCCA 20
(2009) 194 A Crim R 1
R v Newell [2004] NSWCCA 183
R v Speechley [2012] NSWCCA 130
Source
Original judgment source is linked above.
Catchwords
(2001) 125 A Crim R 551
R v Hamid [2006] NSWCCA 302164 A Crim R 179
R v Hibberd [200] NSWCCA 20(2009) 194 A Crim R 1
R v Newell [2004] NSWCCA 183
R v Speechley [2012] NSWCCA 130
Judgment (5 paragraphs)
[1]
The application
Counsel for the applicant, Ms Kluss, argued two grounds for the application:
the sentencing Judge erred in his assessment of the criminality of the aggravated kidnapping offence;
the sentences are manifestly excessive.
[2]
Aggravated kidnapping
His Honour characterised the manner in which the applicant detained the victim "by instilling fear and control over her... by his conduct, demeanour, words and assault" as "significant." He added that "one could think of events that were much more serious than this, but this was particularly serious." The victim, he said, who had done nothing wrong and "nothing to engender this action on the part of the offender, was detained for hours, continuously assaulted and made to act in a manner which was degrading and distressing beyond belief." He assessed the objective gravity of the offence at "at least mid-range."
Ms Kluss argued that to find the offending to be at least mid-range overstated its objective criminality. She referred to R v Newell [2004] NSWCCA 183, a case of aggravated kidnapping, in which Howie J (with whom Bell and Hislop JJ agreed) said at [32]:
The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence.
Ms Kluss submitted that the seriousness of the offence should be considered taking into account such factors as:
1. the detention was achieved by instilling fear and control over the victim rather than being physically restrained;
2. there were relatively brief times when she was physically pinned down and when the applicant lay on the bed with his arm around her to effect her detention;
3. he did not lock her in the premises (or take other steps such as piling items against a door) so she could not escape;
4. there was no rational purpose for the detention other than for him to scare her and ventilate his sense of jealousy and anger towards her;
5. the physical injuries she suffered were bruising and scratching, which were relatively minor, and there was no medical evidence of them;
6. the detention began at about 8.30pm and had finished by 3.00am;
7. there was no evidence that the offence was pre-planned.
It is well established that the assessment of the objective gravity of an offence is a matter very much within the role of a sentencing judge, that this Court should be slow to determine such a matter for itself, and that it is subject to review only on the familiar principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. That approach was spelt out in Mulato v R [2006] NSWCCA 282, per Spigelman CJ at [37] and Simpson J (as she then was) at [46]. It is an approach which has been adopted in many subsequent cases. Recently in Alkanaan v R [2017] NSWCCA 56, Harrison J (with whom Payne JA and Schmidt J agreed) said at [57]:
A successful challenge to a finding of objective seriousness requires that error be established. House v The King... describes the types of error that will suffice. The assessment of the objective seriousness of an offence is definitely evaluative, so that differing outcomes within a range of accepted tolerances is permissible.
The Crown prosecutor argued, and I accept, that some of the factors referred to by Ms Kluss understate the gravity of the facts. While the victim was not locked in the premises and was physically restrained only relatively briefly, she was effectively restrained by her fear of the applicant. His behaviour over the preceding weeks, the subject of the Form 1 matters, demonstrated his capacity for violence. When the detention came to an end is something of a moot point, but it cannot be said that it was "clearly finished by 3.00am", given that she still feared that an attempt to escape would be met with further violence. To refer to her injuries as only "bruising and scratching" is not a fair description of the extent and severity of them.
While it may be accepted that the detention had no rational purpose other than the applicant's desire to scare the victim and express his jealousy and anger towards her, that is of no assistance to him. As noted, in Newell at [32] Howie J observed that the nature of the advantage sought by the offender was not conclusive as to the seriousness of the offence. His Honour added that it was not necessary before an offence might fall into the most serious category that the detention was for the purpose of ransom (to which specific reference is made in s 86(1) of the Crimes Act). Indeed, as the Crown prosecutor pointed out, in Newell the offence was held to be in the mid-range of objective seriousness even though the detention did not appear to have a rational basis.
In R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175; Johnson J (with whom McClellan CJ at CL and Hammerschlag J agreed) said at [50]-[51]:
50. It will be observed immediately that the offences contained in s.86 extend beyond the traditional concept of kidnapping, involving the holding of a person for ransom. The concept of "any other advantage" in s.86(1)(b) (and previously in s.90A) has been interpreted broadly, extending (amongst other things) to psychological gratification or satisfaction: R v Rose [2003] NSWCCA 411. Indeed, the experience of the courts in recent years has been that the detention of a person for purposes other than for ransom has been the predominant scenario for offences under s.86. There have been regular examples of persons detained for advantage in the context of domestic violence incidents, or the taking of vigilante action in circumstances where it is believed that the detained person has committed some wrong against the offender, or persons associated with the offender.
51. Examples of s.86 offences committed in a domestic violence context include R v Hamid [2006] NSWCCA 302; 164 A Crim R 179, Heine v R [2008] NSWCCA 61, R v Burton [2008] NSWCCA 128 and Jeffries v R [2008] NSWCCA 114; 185 A Crim R 500.
It was Johnson J (with whom Hunt AJA and Latham J agreed) who delivered the leading judgment in one of the domestic cases referred to, R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179. Relevantly to the present case, his Honour observed at [131] that in that case the offence was "committed in the context of the Respondent's controlling and violent relationship with [the complainant]." He added that an assessment of the objective seriousness of that offence "involves an examination of the immediate acts of the Respondent in the context of his violent control of the victim."
The sentencing judge's observations about the offence here, quoted at [39] above, were entirely apt. No doubt the offence of detention for advantage aggravated by the infliction of actual bodily harm encompasses a very wide variety of circumstances. His Honour's finding that the present offence was at the mid-range of objective gravity was (to adopt the language of Harrison J in Alkanaan) an evaluative judgment which, in my view, was open to him. Reasonable minds might differ about that judgment, but no relevant error in it has been identified. This ground is not made out.
[3]
Manifestly excessive?
Ms Kluss submitted that both sentences are manifestly excessive. She noted that they were arrived at after a reduction of 25% for the pleas of guilty. The 7 ½ year sentence for aggravated kidnapping was arrived at from a starting point of 10 years, and the 3 ½ year sentence for sexual intercourse without consent from a starting point of 4 years and 8 months.
In relation to the offence of aggravated kidnapping, his Honour had been supplied with Judicial Commission statistics of sentences for all offenders between January 2009 and December 2015. Ms Kluss also provided the Court with statistics for the period from January 2010 to December 2016. The earlier figures were based on 53 cases and the later figures on 58 cases. No doubt there is considerable overlap between the two sets of figures. What emerges from them is that the head sentence and non-parole period in the present case are well in the upper range of the figures disclosed. However, the number of cases sampled is relatively small.
Ms Kluss acknowledged the limited use of figures of that kind. As the Crown prosecutor pointed out, so much has been affirmed in relation to kidnapping offences. In Newell at [43] Howie J observed:
Statistical information may have value in an appropriate case to indicate a range of sentences for offences where there is a predictable similarity in the conduct amounting to the offence. I doubt the offences under s 86 will be sufficiently homogenous that a reference to statistics alone will be of much assistance.
That passage was cited by Hoeben CJ at CL (with whom Price and Lonergan JJ agreed) in Hurst v R [2017] NSWCCA 114 at [120], where his Honour observed the "particular difficulty" which attends reliance on statistics in detain for advantage cases, such cases being "very fact specific." What his Honour then went on to say at [121] is also germane:
It was also noted recently by the High Court in The Queen v Kilic [2016] HCA 48; [259 CLR 256] at [21] that there has been a societal shift when sentencing for domestic violence offences:
"… current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations."
The attempted kidnapping here was a serious offence, as the summary of the facts demonstrates. It should also be borne in mind that the sentence for it embraced the criminality of the Form 1 offences.
As to the offence of sexual intercourse without consent, Ms Kluss noted that it was of relatively short duration and involved digital, rather than penile, penetration. As to the nature of the penetration, she referred to the well known decision of the High Court in Ibbs v The Queen (1987) 163 CLR 447, in which the Court held that where a statute includes several categories of sexual penetration within the definition of an offence, it does not necessarily mean that each category is as heinous as another. The gravity of the offence charged turns upon the facts of the case. Ibbs was examined by this Court in R v Hibberd [200] NSWCCA 20; (2009) 194 A Crim R 1, where it was held, consistently with Ibbs, that digital penetration is not necessarily less serious than penile penetration, emphasising again that the seriousness of such an offence turns on the facts of the case at hand.
In its context in the present case, the act of penetration was a particularly degrading one. His Honour noted that it was committed in the context of "threatening, assaulting and abusing the victim," and referred to the "humiliation of the manner in which it was conducted." He assessed it as slightly below the mid-range of objective seriousness. No complaint was made in this Court about that assessment.
Ms Kluss fairly acknowledged that most of the sentence for the sexual assault was concurrent with the sentence for the aggravated kidnapping, and added that in some ways it might be considered an "indicative sentence." Nevertheless, the appropriate sentence has been raised by this ground of the application and should be determined.
Against a maximum sentence of 20 years, the starting point of 10 years imprisonment for this offence of aggravated kidnapping is high. Against a maximum sentence of 14 years and a standard non-parole period of 7 years, the starting point of imprisonment for 4 years and 8 months for the sexual assault here is substantial. However, his Honour had to have regard not only to the objective gravity of the offences but to the fact that they were committed while the applicant was on parole, and that parole related to even more serious offences of a similar kind.
As the Crown prosecutor pointed out, it is particularly disturbing that the applicant had completed the CUBIT program during his earlier period of imprisonment, that in evidence he was articulate in his recitation of the rehabilitation he had undertaken, and yet within 8 months of being released on parole he committed the present offences. His Honour was justifiably guarded about his prospects of rehabilitation.
In his reasons his Honour rightly observed:
... one can see that deterrence both general and specific but, more particularly specific, looms large on the question of sentencing in this case. Secondly, protection of the community from the offender is also a large part of the sentencing here, as well as making the offender accountable for his actions and denouncing those actions. More particularly then also to recognise the harm done to the victim of the crime and the community.
His Honour's observations were consistent with the familiar statement of principle in the plurality judgment in Veen v The Queen [No. 2] (1987-88) 164 CLR 465 at 477. This was a case in which there clearly was "a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."
Particularly is this so given the domestic context of these offences. As Johnson J observed in Hamid (supra) at [86]:
In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.
At the time he was sentenced, the applicant's parole had been revoked and he was serving the balance of the earlier sentences. The present sentences were partly accumulated upon that balance of parole and, as noted, the sentence for the aggravated kidnapping was accumulated by 3 months upon the sentence for the sexual assault. No complaint was made by Ms Kluss about that approach. The focus of her argument was upon the sentences for each of the two offences which, she contended, were manifestly excessive alone or in combination. She acknowledged the need to demonstrate that they were unreasonable or plainly unjust, the expression from House v The King adopted in Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [3]-[6] (324-5).
I am not persuaded that either sentence, or the combination of them, merits that description. This ground also is not made out. Since preparing these reasons, I have received in draft the judgment of Garling J. I agree with his Honour's comments.
[4]
Orders
I would grant leave to appeal, but dismiss the appeal.
[5]
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Decision last updated: 14 March 2018
Parties
Applicant/Plaintiff:
Diaz
Respondent/Defendant:
R
Cases Cited (18)
Judgment
PAYNE JA: I agree with the reasons of Hidden AJ and the order he proposes. I also agree with the additional remarks of Garling J.
GARLING J: I agree with the orders proposed by Hidden AJ and with his reasons.
I desire to add some comments. In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at 558 [41] of violent attacks in domestic settings this:
"Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct. In truth, such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."
Having regard to the fact that these offences were committed whilst the applicant was on parole for similar, but more serious, offences of domestic violence upon a different victim, any sentence which was imposed needed to pay close attention, and give significant weight, to specific deterrence.
The nature of these offences, being of domestic violence carried out by a physically dominant and controlling man against a woman who was in vulnerable state, meant that the sentencing Judge had to give significant weight to the principle of general deterrence.
Given that the previous offences were against a different victim from those which were being considered in these proceedings, and that despite completing rehabilitation courses whilst in custody, the applicant seemed unable to restrain himself from again engaging in violent offences against an innocent woman, the sentencing Judge was required to give significant weight to the purpose of sentencing of protection of the community from the offender, and the denunciation of the conduct of the offender: s 3A Crimes (Sentencing Procedure) Act 1999. In those circumstances, the arguments of the applicant that the sentences imposed were manifestly excessive are wholly unpersuasive.
The sentences which were imposed were, in my view, entirely appropriate in light of all of the circumstances.
HIDDEN AJ: The applicant, Rodrigo Phillip Diaz, pleaded guilty in the District Court to the following charges:
Aggravated detaining of a person for advantage, an offence under s 86(2)(b) of the Crimes Act 1900 which carries a maximum sentence of imprisonment for 20 years, the aggravation being the infliction of actual bodily harm;
Sexual intercourse without consent, an offence under s 61(i) of the Crimes Act, carrying a maximum sentence of imprisonment for 14 years and a standard non-parole period of 7 years.
In respect of the first of those offences, the court was asked to take into account on a Form 1:
Four offences of destroying of damaging property, (an offence under s 195(1)(a) of the Crimes Act, carrying a maximum sentence of 5 years imprisonment);
One offence of assault occasioning actual bodily harm (s 59(1) of the Crimes Act, also carrying a maximum sentence of 5 years imprisonment);
One offence of common assault (s 61 of the Crimes Act, carrying a maximum sentence of 2 years imprisonment).
On the second charge, sexual intercourse without consent, the applicant was sentenced to imprisonment for 3 ½ years with a non-parole period of 2 years and 3 months, to commence on 20 September 2016. On the first charge, which might conveniently be described as aggravated kidnapping, taking into account the matters on the Form 1, he was sentenced to imprisonment for 7 ½ years with a non-parole period of 4 years and 3 months, to commence on 20 December 2016. The overall sentence then, was 7 years and 9 months with an effective non-parole of 4 ½ years. He seeks leave to appeal against those sentences.
Subjective case
The applicant was 35 years old at the time of the offences, and is now 37. He has a disturbing criminal history, which includes offences of destroying or damaging property, aggravated robbery, common assault, assault occasioning actual bodily harm, maliciously inflicting grievous bodily harm, detaining a person with intent to obtain advantage and sexual intercourse without consent.
The greater part of this criminal history relates to offences of a domestic violence nature committed in early 2005, which were the subject of an appeal against sentence to this Court: Diaz v R [2013] NSWCCA 277. A substantial sentence had been imposed in the District Court. The appeal was allowed in part, and the sentence was adjusted to a limited extent, for reasons which are not relevant for present purposes. It is the facts of the case, which bear significant similarities to the present case, which are relevant.
Put shortly, on the first occasion the applicant detained the victim in her apartment, damaged some of her property, threatened her, and assaulted her in various ways, breaking her jaw and causing a number of other injuries. This incident, which continued for an extended period, led to charges of attempted kidnapping (detaining for advantage with actual bodily harm), malicious damage, assault occasioning actual bodily harm and maliciously inflicting grievous bodily harm.
The second occasion involved abuse over a period of 5 days. The applicant assaulted the victim frequently and seriously, on occasions using what appeared to be a baton. He forcibly had sexual intercourse with her, on several occasions vaginally and once anally. He attempted fellatio, but was unable to because of the state of her jaw. His conduct over this period led to charges of attempted kidnapping, assault occasioning actual bodily harm and sexual intercourse without consent, completed and attempted.
The facts of these offences are more serious than the offences now before this Court. Button J summarised the applicant's behaviour by saying that he "subjected the victim to two extended episodes of criminality that are remarkable for their brutality and viciousness, even by the standards of the matters that come before this Court".
The orders of the court provided for the applicant's eligibility for parole in February 2014. He was released on parole on 3 November 2014. He was subject to that parole at the time of the present offences.
The applicant's background emerges from evidence which he and his brother, Daniel gave in the sentence proceedings. He was born in Chile, one of eight children, and the family migrated to Australia in 1986, when he was 6 years old. His father was violent towards all of them, and he left home at the age of 14 or 15. He spent some time living on the street, but otherwise moved in with his sister or with friends until he eventually got a place for himself. His schooling was troubled. He said that because there was violence at home he "just retaliated" at school, getting into a lot of fights. He left while in year 10. From the age of 19 he abused alcohol and a variety of illicit drugs, continuing his drug use while in custody.
In the 12 months prior to his release on parole he undertook the CUBIT program for sex offenders. In evidence he expressed remorse for the present offences. He said that the CUBIT program had enlightened him to some awareness of the factors contributing to his behaviour but, when asked in cross-examination if he thought that he could avoid such behaviour if he were in a similar situation again, he frankly acknowledged that he could not give "any guarantees." He said that he definitely needed an anger management program while serving his sentence and, in due course, as a condition to his parole. He also acknowledged that he needed help in dealing with his substance abuse, and would welcome any treatment which might be appropriate for it.
He had a satisfactory record of employment while at liberty, working in businesses conducted by his brothers. His brother, Daniel gave evidence that he would employ him in his cleaning business upon his release and offered his support generally.
The sentencing judge allowed a 25% reduction of sentence for the applicant's pleas of guilty. His Honour was satisfied that his expression of remorse was genuine and that he accepted that he had problems needing to be addressed, particularly in the areas of anger management and drug use. As to his rehabilitation, his Honour saw his history as being "against a positive finding in that regard notwithstanding the availability of community support and assistance." However, he found special circumstances warranting a departure from the statutory proportion between sentence and non-parole period to assist his reintegration into the community.