R v Rowe [1996] NSWCCA 1

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Rowe [1996] NSWCCA 1 Decision date: 03 October 1996 Before: Hunt CJ at CL at [1]; Smart J at [28]; Ireland J at [29] Decision: Application for leave to appeal refused. Catchwords: CRIMINAL LAW AND PROCEDURE – kidnapping – Crimes Act 1900, s 90A – meaning of "substantial injury" – relevance of forgiveness by complainant in domestic violence type offences. Legislation Cited: Crimes Act 1900 (NSW), s 90A Cases Cited: Regina v Albert Steven Ryan (Court of Criminal Appeal (NSW), 30 October 1995, unrep) Regina v Allan Edward Collett (Court of Criminal Appeal (NSW), 7 June 1979, unrep) Regina v Boyle (1987) 34 A Crim R 202 Regina v Hudson [1985] FCA 442; (1985) 63 ALR 257 Regina v Lee (1994) 76 A Crim R 271 Regina v Lloyd [1967] 1 QB 175 Regina v Peter James Glen (Court of Criminal Appeal (NSW), 19 December 1994, unrep) Regina v Reid [1933] 1 QB 299 Regina v Robson & Collett [1978] 1 NSWLR 73 Regina v T (1990) 47 A Crim R 29 Regina v Trotter (1993) 35 NSWLR 428 The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359 Category: Principal judgment Parties: Shane Michael Rowe (Applicant) Regina (Respondent) File Number(s): 60451/95 Decision under appeal Court or tribunal: District Court Before: Nield DCJ

HEADNOTE Section 90A of the Crimes Act 1900 provides that anyone who takes away or detains a person for his own advantage shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so taken away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years. Held 1. The onus lies on the accused to satisfy the judge that the victim was liberated without having sustained substantial injury. It is a matter in mitigation, not aggravation. Accordingly, the Crown does not have to charge substantial injury in the indictment where it intends to rely upon the higher maximum sentence. The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359; Regina v Lee (1994) 76 A Crim R 271 distinguished 2. "Substantial injury" means one which is more than minor or slight, but it need not be of the serious kind which would constitute it being grievous bodily harm. Regina v Hudson [1985] FCA 442; (1985) 63 ALR 257 followed. Regina v Lloyd [1967] 1 QB 175; Regina v Albert Steven Ryan (CCA, 30 October 1995, unreported) referred to 3. An injury of a minor physical nature caused to a woman by violence inflicted during or associated with sexual intercourse without consent, and particularly when the woman is being detained against her will, is capable of being regarded as substantial because the circumstances in which it was inflicted greatly affect its seriousness. Discussion as to relevance to sentencing of the wishes of the victim in domestic violence type offence.