OWENS v R [2008] NSWCCA 155

New South Wales Court of Criminal Appeal

CITATION: OWENS v R [2008] NSWCCA 155

HEARING DATE(S): 2 July 2008

JUDGMENT DATE: 14 July 2008

JUDGMENT OF: Allsop P at 1; James J at 2; Price J at 30

DECISION: Grant leave to appeal against sentence. Dismiss the appeal against sentence.

CATCHWORDS: CRIMINAL LAW - Sentencing - open to sentencing judge to make finding of fact adverse to applicant beyond reasonable doubt

LEGISLATION CITED: Crimes Act

CATEGORY: Principal judgment

CASES CITED : The Queen v Olbrich (1999) 199 CLR 270

PARTIES: OWENS, Frederick The Crown

FILE NUMBER(S): CCA 2007/2841

COUNSEL: A Francis (Appellant) N J Adams (Crown)

SOLICITORS: Catherine Hunter, Solicitor (Appellant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1176

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 9 March 2007

IN THE COURT OF CRIMINAL APPEAL 2007/2841

ALLSOP P JAMES J PRICE J

MONDAY 14 JULY 2008 OWENS, Frederick v R Judgment 1 ALLSOP P: I agree. 2 JAMES J: Frederick John Owens applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Freeman on 9 March 2007. 3 The applicant and a co-accused had stood trial before his Honour and a jury on charges of:- 1. Specially aggravated detaining for advantage a woman who I will refer to as "SP" 2. Manslaughter of EP, a baby born to SP. 4 On the first count the jury found both accused guilty, not of the offence charged of specially aggravated detaining for advantage, but of an alternative offence of aggravated detaining for advantage. The jury acquitted both accused on the count of manslaughter. 5 For the offence of aggravated detaining for advantage Judge Freeman imposed on the applicant a sentence consisting of a non-parole period of four years commencing on 21 January 2005 and a balance of the term of two years. 6 Detaining for advantage is an offence under s 86 of the Crimes Act. Section 86(1) creates a basic offence of detaining a person without the person's consent with the intention of obtaining an advantage. Under s 86(2) of the Act a person is guilty of the aggravated offence if he commits the offence in the company of another person or if at the time of the commission of the offence or immediately before or after the commission of the offence actual bodily harm is occasioned to the victim. Under s 86(3) a person is guilty of the specially aggravated offence, if both the person commits the offence in the company of another person and at the time of the commission of the offence or immediately before or after the commission of the offence actual bodily harm is occasioned to the victim. Section 86(4) provides for the finding of an alternative verdict, if the jury is not satisfied that an accused person is guilty of the offence charged but is satisfied that the accused person is guilty of a lesser offence under the section. 7 In the present case, as the offence, if committed, was clearly committed by each accused in the company of the other accused, the explanation of the jury's verdicts on the first count is necessarily that, while the jury was satisfied that each accused had committed the offence in the company of another person (that is, the other accused), the jury was not satisfied that actual bodily harm had been occasioned to the victim at the time of or immediately before or after the commission of the offence.