GROVE J
SIMPSON J
SHAW J
Friday 3 September 2004
REGINA v KEITHA WAIMARIE DAVIS
Judgment
1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Knight DCJ on 16 October 2003.
2 The applicant and two co-offenders adhered to pleas of guilty earlier made in the Local Court to a charge of taking and detaining a woman in company with intent to obtain advantage and occasioning her actual bodily harm. Such an offence has a prescribed maximum penalty of twenty five years imprisonment. The facts of this offence are, however, unusual and far distant from the serious conduct which can be comprehended in a charge under s 86(3) of the Crimes Act 1900.
3 The applicant is a young woman aged twenty four years. She is the de facto partner of Mike Rynn Toa (whom I will refer to as Toa). They are the parents of a small child. Toa is a cousin of Ngatokotoru Roi who is the mother of a three year old son named Jake. They are members of what was described as close knit community, the members of which had come from the Cook Islands. They were located in Armidale. Ms Roi commenced a relationship with one Jason Rummery and left Armidale to go and live with him in Inverell. She left the child Jake behind in Armidale with another cousin.
4 The applicant gave evidence in the sentencing proceedings. She testified that she became concerned about Ms Roi who had changed from being a very lovely mother to one she described as very horrible. She had had previously a close relationship with Ms Roi, describing themselves as like sisters. She had a poor opinion of Mr Rummery whom she thought was an unemployed drug user. Her concern was heightened by a perception that the child Jake was ill which she attributed to fretting for his absent mother.
5 On 8 May 2003 four people left Armidale by motor car driven by one James Wilson. The learned sentencing judge observed that Mr Wilson appeared to play no part in the events other than providing transport. The other occupants of the car were the applicant, Toa and a friend of theirs Andrew Wallace. Those three were the co-offenders charged as I have mentioned.
6 Upon arrival in Inverell the applicant (not revealing that she was in that town) telephoned Ms Roi and by use of a deception obtained her current address. The party then proceeded to it.
7 Thereafter the three offenders forcibly took Ms Roi to the motor car, obtained her belongings from the house, and returned with her to Armidale. In the course of detaining her there were struggles during which on one occasion Toa punched Ms Roi to the side of the face and the applicant "kneed" her in the stomach in order to force her into the vehicle.
8 On return to Armidale Mr Wilson left the group. Inside premises which were the home of the applicant and Toa, Ms Roi was permitted, and even encouraged, to make telephone calls. She called a family member and also the police. Ms Roi spoke to Senior Constable Burton who asked her what number she was calling from, Ms Roi made an enquiry and a female voice (fairly obviously the applicant) gave the correct number which was relayed to the constable. A short time later police came to the address and took Ms Roi away. They returned about an hour later and arrested the three offenders.
9 The applicant did not deny what had happened and offered the explanation that she was acting out of a desire to have Ms Roi return home and behave as expected by her family, which would include looking after her son.
10 However, his Honour found "they conceded that they knew, each of them in effect, that what they were doing was illegal and they have adhered to those statements ever since."
11 The applicant was sentenced to imprisonment for four years dating from 16 October 2003 with a non parole period of nine months dating from that date and expiring on 15 July 2004. The Court has been advised that she has in fact been released on parole. The co-offenders received identical sentences.
12 The applicant had no prior conviction of any kind. In addition to fulfilling domestic duties it appears that she had employment from time to time as a rouseabout on various properties when that work was available.
13 Two grounds of appeal are relied upon:
"(1) The learned sentencing judge erred by taking into account as aggravating features two matters which were elements of the offence itself.
(2) The sentence is manifestly excessive."
14 Ground 1 has its origin in a statement by his Honour in his remarks on sentence:
"I am required by s 21A of the Crimes (Sentencing Procedure) Act to have regard to certain aggravating and mitigating factors set forth in subsection (2) and (3) of s 21A and I propose to do so by going through them seriatim in relation to each of the offenders."
15 He then proceeded to observe:
"First of all, in relation to aggravating factors, s 21A(2)(b) is relevant. The offence did involve the actual use of violence. There can be no doubt that Ms Roi did sustain actual bodily harm and I am satisfied that that was caused by the way that she was handled on this day and, in particular, the punch that Mr Toa threw at her."