New South Wales Court of Criminal Appeal CITATION : REGINA v. SNOWSILL [2002] NSWCCA 157 FILE NUMBER(S) : CCA No. 60697 of 2001 HEARING DATE(S) : Monday 6 May 2002 JUDGMENT DATE : 6 May 2002 PARTIES : REGINA v. SNOWSILL, Christopher JUDGMENT OF : Greg James J at 1; Carruthers AJ at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/110529 LOWER COURT JUDICIAL Blanch, CJ/DC OFFICER : COUNSEL : Crown: W.G. Dawe, QC. App: C.A. Davenport SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Criminal law - sentence - appeal - kidnapping - diverse circumstancs of offence - little assistance from statistics or other cases - no error - sentence not excessive. Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 DECISION : Application for leave to appeal against sentence granted; appeal dismissed. IN THE COURT OF CRIMINAL APPEAL No. 60697 of 2001 GREG JAMES, J. CARRUTHERS, AJ. MONDAY 6 MAY 2002 REGINA v. CHRISTOPHER SNOWSILL Judgment 1 GREG JAMES, J: This is an application for leave to appeal against the severity of a sentence imposed by his Honour the Chief Judge of the District Court in respect of one offence of detain for advantage, an offence under s.90A of the Crimes Act 1900 which, in its unaggravated form, is punishable by a maximum penalty of 14 years imprisonment. In the event of injury to a victim, such an offence is punishable by a maximum penalty of 20 years imprisonment. 2 His Honour when sentencing the applicant took into account on a Form 1 some six additional matters. They included the offence of take and drive a conveyance, an offence under ss.154A(1)(a) and 117 of the Crimes Act 1900 for which the maximum penalty prescribed is five years imprisonment, an offence of malicious damage under s.195(a) of the Crimes Act, an offence punishable by a maximum penalty of five years imprisonment, an offence of larceny under s.117 of the Crimes Act, the maximum penalty prescribed for which is five years imprisonment, an offence of attempt to take and drive a conveyance, again an offence under s.154A(1)(a), again punishable by a maximum penalty of five years imprisonment and two offences of resist arrest, each under s.58 of the Crimes Act 1900 and which carry maximum penalties of five years imprisonment. 3 His Honour sentenced the applicant, taking into account the matters on the Form 1, to a term of four years imprisonment to commence on 8 May 2001 and to expire on 7 May 2005. In respect of that sentence, his Honour imposed a non-parole period of two years to commence on 8 May 2001 and to expire on 7 May 2003. 4 We have been provided with extensive written submissions by counsel for the applicant and by the Crown and this morning before us in her oral submissions counsel for the applicant has said all that can be said on the applicant's behalf. Those submissions however in my view do not disclose that his Honour the learned trial judge fell into any error of law or principle such as might warrant the court interfering with the sentence. 5 The Criminal Appeal Act 1912, s.6(3), provides that it is only where the court is of the view that some other sentence is warranted in law and should have been passed that the court has power to interfere with the discretion exercised by the primary judge. 6 In this case, it is asserted that there are errors in what the primary judge did, such as would warrant the court interfering. If there were such errors, then the question arises as to whether the sentence as passed was a sentence which was excessive, having regard to those matters to which a court must now have regard, particularly having those referred to in s.21 of the Crimes (Sentencing Procedure) Act 1999. 7 The argument was put that there were at least four matters which mitigated the objective culpability of the offender's actions. It was said that there was no planning for the offence charged, that it was not the offender's primary intent to detain his victim for advantage, that the detention was only momentary and that the victim was occasioned no injury. In those circumstances, it was submitted that his Honour's starting point for sentence calculation must have been too high to end up with the sentence that was passed. It was submitted that there were two errors that could be detected upon a comparison of the facts of this case with the facts of other cases and with sentencing statistics: that his Honour erred in saying cases of this kind deserve long periods of imprisonment when one has regard to sentencing statistics which show that various cases of offences under s.90A have received lesser sentences of imprisonment or indeed sentences of a different nature; and that his Honour erred when he expressed the view that this was a matter where the penalty should be at the lower end of the scale for an offence of this kind, since having regard to the statistics and the nature of some of the cases referred to in them, this sentence was not at the lower end of the scale. Comparison was sought to be made with the circumstances of other cases in the Court of Criminal Appeal in which, so it was said, more culpable behaviour occurred but sentences at primary level were on a par with that passed here and no adverse comment was made on appeal. 8 I am not assisted by reference to the statistics or to other cases as the foundation for arguments of this sort. It is notorious that offences under s.90A are committed in diverse circumstances, ranging from offences of the most serious kind to offences that are verging on having little or limited culpability, having regard to the circumstances in which they were committed, particularly is this so when other offences committed with them are brought forward for punishment. 9 In this case, the short facts were set out in his Honour's remarks on sentence. The prisoner was apparently bent on stealing a motor vehicle. He was seen trying to get into the motor vehicle and police were called. He damaged the motor vehicle and as police came up and challenged him, he fled. He was pursued by police until he came to a vehicle being driven by a 72 year old woman. He opened the front passenger door, got into the vehicle, activated the central locking mechanism to prevent police rescue, lent across the driver and whilst police were attempting to enter the vehicle, attempted to force manually the driver to take off so that he could use her as his hostage and driver for his escape. 10 He shouted at her, "Get your foot off the brake, get your foot off the brake" and apparently manually operated the accelerator. The vehicle only travelled about 15 metres whilst the police were encouraging the woman to keep her foot on the brake and the police were able to active the locking system, gain access to the vehicle, rescue the woman and in due course, subject to some resistance which is referred to in two of the matters on the Form 1, restrain and handcuff the prisoner. The victim was not injured, she was frightened, she did not know what was going to happen. 11 All of these events as his Honour pointed out took place just over a month after the prisoner had been released from gaol after serving a sentence of three months which had been imposed in respect of offences of possess car breaking implements and be carried in conveyance without the consent of the owner. 12 The prisoner's prior record is not such as to operate to dispose a Court to leniency in these circumstances. The trial judge had regard to the fact that he was not primarily seeking to detain anyone and was primarily seeking to get away from the police. He had regard to the fact that the plea, although not entered at the earliest time, was entered in circumstances such as to attract, appropriately as the law then stood, a discount, which, although not quantified, was no doubt substantial. 13 In addition, the trial judge found contrition and in particular contrition about having committed the primary offence into the commission of which the prisoner had fallen, notwithstanding the lack of planning or prior formation of intent. 14 His Honour expressed the view that it was unfortunate in many ways that the prisoner had offended as he had, as he was an intelligent and responsible person who had apparently been struggling against drugs. His Honour referred to the availability of potential residential drug assistance following the prisoner serving the custodial portion of his sentence. He accepted the offence was committed in a moment of panic and was not accompanied by any particular threats or assault "apart from what was involved in taking hold of the steering wheel of the car". 15 His Honour came to the conclusion that he should impose the sentence that he did, it being such a long sentence, with some considerable degree of reluctance, but did find special circumstances to enable a reduction in the statutory ratio. 16 I do not see that his Honour in any way fell into legal error. I do not see that any lesser sentence in the circumstances would be warranted in law or should have been imposed. In my view, the application for leave to appeal against sentence should be granted since the matter has been debated to such an extent before us but the appeal dismissed. 17 CARRUTHERS AJ: I agree. 18 GREG JAMES J: The orders will be as I have proposed. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.