R v Rowe

HEADNOTE Section 90A of the Crimes Act 1900 provides that anyone who takes away or detains a person for his own advantage shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so taken away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years. Held

1. The onus lies on the accused to satisfy the judge that the victim was liberated without having sustained substantial injury. It is a matter in mitigation, not aggravation. Accordingly, the Crown does not have to charge substantial injury in the indictment where it intends to rely upon the higher maximum sentence. The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359; Regina v Lee (1994) 76 A Crim R 271 distinguished
2. "Substantial injury" means one which is more than minor or slight, but it need not be of the serious kind which would constitute it being grievous bodily harm. Regina v Hudson [1985] FCA 442; (1985) 63 ALR 257 followed. Regina v Lloyd [1967] 1 QB 175; Regina v Albert Steven Ryan (CCA, 30 October 1995, unreported) referred to
3. An injury of a minor physical nature caused to a woman by violence inflicted during or associated with sexual intercourse without consent, and particularly when the woman is being detained against her will, is capable of being regarded as substantial because the circumstances in which it was inflicted greatly affect its seriousness. Discussion as to relevance to sentencing of the wishes of the victim in domestic violence type offence.