REGINA v ROSE [2003] NSWCCA 411

New South Wales Court of Criminal Appeal

CITATION : REGINA v ROSE [2003] NSWCCA 411 HEARING DATE(S) : 21 November 2003 JUDGMENT DATE : 21 November 2003

JUDGMENT OF : Handley JA at 1; Grove J at 10; Adams J at 2 DECISION : Appeal allowed and the order from which the appeal is brought, namely that committal proceedings for the charge of detain for advantage be continued before a Magistrate is vacated.; This matter is re-listed for mention in Wollongong District Court on 3 December 2003.

LEGISLATION CITED : Crimes Act 1900 s86(1)(b) Regina v Robson and Collett (1978) 2 NSWLR 73 CASES CITED : Regina v Collett and Robson (unreported) CCA 7 June 1979 Shane Michael Rowe (1996) 89 A Crim R 467 The Queen PARTIES : Sylven Rose (Respondent) FILE NUMBER(S) : CCA 60351/03 COUNSEL : D Frearson (Crown) R Hulme SC (Respondent) SOLICITORS : C K Smith (Crown) S E O'Connor (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/41/0057 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60351/03

HANDLEY JA GROVE J ADAMS J FRIDAY 21 NOVEMBER 2003 REGINA v SYLVEN ROSE

JUDGMENT

1 HANDLEY JA: I ask Adams J to deliver the first judgment. 2 ADAMS J: This is an appeal by the Director of Public Prosecutions from a judgment of the District Court holding that in the circumstances a plea of guilty to a charge under s86(1)(b) of the Crimes Act 1900 ought not be accepted since the alleged advantage did not in law come within the section. The particularised advantage was psychological gratification or satisfaction. 3 The facts may be briefly stated as follows: it is alleged that the respondent, who was a young man of nineteen years, had a relationship with the complainant, aged fifteen years. They stayed together in the same premises overnight and the next morning an argument ensued during which the complainant said she was leaving. The respondent prevented the complainant from leaving by locking doors, cutting off her path and physically assaulting her. He told her repeatedly that she was not leaving. Ultimately the complainant managed to telephone her mother and ran from the house after pretending to be asleep. The respondent pursued the complainant on a pushbike, he threw the pushbike at her and smashed her mobile phone. 4 These facts were not controversial and, indeed, it appears the respondent made full admissions to the police following his arrest. The respondent stated during that interview that he detained the complainant because he did not want her to leave, he wanted her by his side every five seconds and wanted to talk to her. He wanted to sort everything out so that he could see her again. 5 There is evidence that he was somewhat delusional and to some degree psychologically disturbed. However, he pleaded guilty to a number of charges including that charge with which this Court is now concerned. The learned Judge held that psychological satisfaction was insufficient to constitute the advantage to which s86(1)(b)is in the following terms – "86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person's consent: … (b) with the intention of obtaining any other advantage,