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. Remarks on sentence 8 Having regard to the limited nature of the only ground of appeal against sentence, it is sufficient to summarise quite succinctly the facts of the offence as found by the sentencing judge in his remarks on sentence. 9 The victim of the offence SP was at the date of the offence in an advanced state of pregnancy. She had been living for a number of weeks in the applicant's flat. However, she spent the night of 16 January 2005 elsewhere, returning to the applicant's flat on the morning of 17 January 2005. 10 After the victim had returned to the flat, the applicant verbally abused her, demanding that she return a wallet and money which he accused her of having stolen from him. 11 According to evidence given by the victim at the trial the applicant also physically assaulted her by striking her on various parts of her body on a number of occasions. Whether the sentencing judge should have accepted this evidence was the subject of the only ground of appeal against sentence. 12 The victim began having contractions. A woman who had come to the flat observed the victim in a distressed state, and after leaving the flat, made, and caused to be made, emergency telephone calls. 13 Police and an ambulance arrived at the flat and the victim was conveyed by ambulance to a hospital. At the hospital the victim was diagnosed as suffering from a ruptured uterus. The ruptured uterus was the actual bodily harm alleged by the Crown on the first count. 14 The victim's baby EP, who was several weeks premature, was delivered by Caesarean section at the hospital. The baby suffered brain damage as a result of the rupture of her mother's uterus and died the following day. The death of the baby gave rise to the charge of manslaughter on which both of the accused were acquitted. The appeal 15 The only ground of appeal against sentence was:- His Honour erred in concluding beyond reasonable doubt that the victim had been assaulted by the applicant in the manner described by the victim. 16 The victim gave evidence at the trial that the applicant had assaulted her quite severely by striking her a number of times on the left hand side of her body, her face, her legs and her stomach. During these assaults the victim had endeavoured to protect herself by covering herself with her arms and drawing up her legs. 17 In his remarks on sentence the sentencing judge held that neither the acquittal of the applicant on the charge of specially aggravated detaining for advantage nor the acquittal of the applicant on the charge of manslaughter entailed that the jury had rejected, or at least had not accepted beyond reasonable doubt, the victim's evidence about the applicant assaulting her. Some medical evidence had been adduced before the jury that the victim's uterus could have ruptured spontaneously, that is independently of any assault by the applicant, the victim having undergone three previous Caesarean operations and being in labour. 18 The sentencing judge proceeded to say that he had no difficulty in accepting the victim's evidence that she had in fact been struck by the applicant "in the manner alleged" by the victim. 19 In making his finding the sentencing judge rejected submissions on behalf of the applicant based on evidence given at the trial by an ambulance officer, that, in response to a question by the officer as to whether anyone had assaulted her, the victim had answered "No, nothing happened". The sentencing judge found that at the time of giving this answer to the ambulance officer the victim was "in extremis" and in fear of the offenders. 20 On this application it was submitted by counsel for the applicant that it had not been open to the sentencing judge to find beyond reasonable doubt that the victim had been assaulted by the applicant in the manner described by the victim. 21 It was common ground on the application that such a finding would be a finding of facts adverse to the applicant and could only be made if the facts were proved beyond reasonable doubt. The Queen v Olbrich (1999) 199 CLR 270 at 281 (27). It is clear from his Honour's remarks on sentence that his Honour did regard the assaulting of the victim by the applicant as a matter seriously aggravating the applicant's criminality. 22 In support of the general submission that it had not been open to the sentencing judge to make the challenged finding beyond reasonable doubt, counsel for the applicant submitted that the assaults described by the victim in her evidence at the trial were of such ferocity or severity that one would have expected her evidence, if true, to have been confirmed by medical or physical evidence but there was no such confirmatory evidence at the trial. Counsel for the applicant also referred to the evidence given by the ambulance officer at the trial that the victim had denied to him that she had been assaulted and to evidence given by the applicant himself at the trial in which he denied that he had assaulted the victim. 23 I do not consider that this Court should hold that it was not open to the sentencing judge to be satisfied beyond reasonable doubt that the victim had been assaulted by the applicant in the manner described by the victim. 24 The sentencing judge, of course, had the advantage of having seen and heard the victim give evidence over an extended period at the trial. 25 As held by the sentencing judge, both the verdict of not guilty on the charge of specially aggravated detaining for advantage and the verdict of not guilty on the charge of manslaughter could be explained, without having to find that the jury did not accept beyond reasonable doubt the victim's evidence that she had been assaulted by the applicant. 26 Although there was no evidence independent of the victim confirming that she had been assaulted by the applicant, there was no medical evidence actually tending to show that she had not been assaulted as she alleged. 27 It was open to the sentencing judge to reason that a witness such as the ambulance officer would have been devoting most of his attention to the victim's being in labour and would have paid little attention to other matters. The ambulance officer gave evidence at the trial that the victim was haemorrhaging copiously and had a towel between her legs which was covered in blood. The ambulance officer gave further evidence that in the back of the ambulance he attempted to make a more thorough examination of the victim, including whether there were any signs of trauma in the area of her abdomen or vagina, but "it was very difficult because of the amount of blood". 28 In my opinion, it was open to his Honour to adopt the explanation given in the remarks on sentence of the evidence of the ambulance officer that the victim had denied to him that she had been assaulted. 29 I would reject the only ground of appeal against sentence and, hence, while granting leave to appeal against sentence, I would dismiss the appeal against sentence. 30 PRICE J: I agree with James J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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