New South Wales Court of Criminal Appeal CITATION : Regina v Davis [2004] NSWCCA 310 revised - 10/09/2004 HEARING DATE(S) : Friday 3 September 2004 JUDGMENT DATE : 3 September 2004 JUDGMENT OF : Grove J at 1; Simpson J at 28; Shaw J at 29 DECISION : APPEAL AGAINST SENTENCE ALLOWED.; APPELLANT RESENTENCED CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - DETENTION OF FAMILY MEMBER PERCEIVED TO BE FAILING PARENTAL DUTY TO SMALL CHILD - MISGUIDED MOTIVES - CULTURAL MORES ENFORCEABLE ONLY WITHIN LEGAL BOUNDARIES - SENTENCE SHOULD REFLECT GENERAL DETERRENCE - NEED FOR PERSONAL DETERRENCE NOT GREAT IN UNUSUAL CIRCUMSTANCES - NO PRACTICAL ATTEMPT TO DETAIN ONCE COMPLAINANT RETURNED TO TOWN OF HER CHILD'S PRESENCE - LOW LEVEL OF ACTUAL HARM - OFFENDER PARTICIPATES IN SUMMONING POLICE LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing and Procedure) Act 1999 PARTIES : Regina v Keitha Waimarie Davis FILE NUMBER(S) : CCA 2004/1894 (60189/04) COUNSEL : P. Ingram (Crown) R. Hulme SC (Applicant) SOLICITORS : S. Kavanagh (Crown) S. O'Connor (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0126 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1894 CCAP (60189/04) 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." and "The offence was committed in company and therefore subsection (e) is relevant." 16 The commission of the offence in company and the sustaining by Ms Roi of actual bodily harm were elements of the offence charged under s 86(3) of the Crimes Act. Whilst aggravating factors to be taken into account are listed in s 21A(2) of the Crimes (Sentencing and Procedure) Act 1999 there is express provision at the conclusion of the scheduled items: "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence." 17 It is submitted on behalf of the applicant that his Honour's remarks show that he treated the elements of the offence above described as aggravating features. 18 In a written submission counsel for the Crown made a tentative concession: "The respondent (Crown) submits that it would appear that the learned sentencing judge may have regarded these two features as aggravating the circumstances of the offence." 19 It is plain from his Honour's explicit remarks that he did in fact do so and ground 1 must be sustained. 20 The Crown submits, however, that even if such error has occurred this Court would not conclude that some lesser sentence was warranted in law. It is convenient to deal with this submission in the context of ground 2. 21 His Honour recognized that he had to balance the genuine, although misguided, motive of the applicant (and the co-offenders) against the objective seriousness of the offence and in particular the need for general deterrence. By reason of the plea of guilty entered at the earliest opportunity he indicated that he would apply a discount to sentence otherwise assessed and further enhance this discount by reason of a finding of remorse resulting in reduction in sentence by one third. It follows that the "starting point" of his assessment must have been six years imprisonment. 22 I have already observed that the applicant had no prior convictions. Toa and Wallace did have previous records which his Honour assessed as being comparatively minor. Nevertheless he rejected a submission that the applicant be dealt with in a more lenient fashion than either of them because "each of those gentlemen would have a legitimate sense of grievance". It would be contrary to principle to deprive an offender of an entitlement to reflection of leniency in a sentence for that reason as it would logically follow that that offender was receiving an imposition which was larger than ought to have been assessed. However, parity is not a matter that is expressly advanced as a ground in this appeal. 23 Having regard to the demonstration of error encompassed by ground 1, the question of resentence by this Court arises. 24 I agree with his Honour's observation that general deterrence was of importance and that the enforcement of cultural mores must occur within the confines of the law. 25 However, the victim knew at all times who the applicant was. After arrival in Armidale there was no real attempt to continue the detention as evidenced by the assistance in enabling police to be contacted and ascertain where she was. It does not undermine the seriousness of the breach of the law to observe that there were elements of farce to this offence. 26 In my view all the objectives of sentencing would have been attained by the imposition of a term of imprisonment suspended pursuant to s 12 of the applicable statute. 27 As matters presently stand, the applicant has been kept in custody for nine months - and is subject to parole for a little over three years hence. Taking into account the time already served I am of opinion that the appropriate resentence is to direct the applicant to enter into a good behaviour bond for a period of twelve months from today pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. 28 SIMPSON J: I agree. 29 SHAW J: I agree with Grove J. 30 GROVE J: The order of the Court therefore will be as I have proposed. 31 The application for leave to appeal against sentence is granted. The appeal is allowed. The sentence imposed in the District Court is quashed. In lieu thereof the applicant is ordered to enter a good behaviour bond for twelve months from today pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999. 32 We direct that the applicant attend and enter that recognizance at the Armidale Court within seven days of today. ********** Last Modified: 09/13/2004 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.