R v Newell [2004] NSWCCA 183

New South Wales Court of Criminal Appeal

CITATION : R v Newell [2004] NSWCCA 183 HEARING DATE(S) : 04/06/2004 JUDGMENT DATE : 11 June 2004

JUDGMENT OF : Bell J at 1; Howie J at 2; Hislop J at 47 DECISION : Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS : Criminal Practice and Procedure - Sentence - Kidnapping - whether the sentence was manifestly excessive - no matter of principle. LEGISLATION CITED : Crimes Act 1900 - s 86(2)(b), 90A (now repealed) Weapons Probition Act 1998 - s 7(1) R v Thomson and Houlton (2000) 49 NSWLR 383 R v Hanslow [2004] NSWCCA 163 CASES CITED : R v Newman [2004] NSWCCA 113 R v Anforth [2003] NSWCCA 222 R v Cromarty [2004] NSWCCA 54 R v Tolley [2004] NSWCCA 165 PARTIES : Regina v David Newell FILE NUMBER(S) : CCA 60056/04 COUNSEL : E. Wilkins - Crown - SOLICITORS : S. Kavanagh - Crown E. Conditsis - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0207 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60056/04

BELL J HOWIE J HISLOP J

FRIDAY 11 JUNE 2004 R v DAVID NEWELL Judgment 1 BELL J: I agree with Howie J. 2 HOWIE J: On 1 August 2003 the applicant was arraigned before the District Court on an indictment containing two counts. The first count alleged that he did on 4 March 2003 detain [the victim], without her consent, with the intention of obtaining an advantage, and at the time of the commission of the offence, actual bodily harm was occasioned to her. That is an offence contrary to s 86(2)(b) of the Crimes Act and carries a maximum penalty of 20 years imprisonment. The second count on the indictment was that he did, on the same date, possess a prohibited weapon, namely, a side handled baton. This offence is contrary to s 7(1) of the Weapons Prohibition Act, and carries a maximum penalty of 14 years imprisonment. 3 The applicant pleaded guilty to both charges. He had previously pleaded guilty before the Local Court and was committed for sentence, but there were defects in the committal document that had to be cured by the presentation of an indictment. On 13 August 2003 the applicant was sentenced by Freeman DCJ to a term of imprisonment of 8 years with a non-parole period of 5 year for the first count, and a fixed term of 18 months for the second count to be served concurrently with the sentence for the first count. The sentences dated from 4 March 2003 and the applicant is eligible for release to parole on 3 March 2011 4 The applicant relies upon the following three grounds: