R v Cane

This matter concerned the sentencing principles in relation to uncharged acts. Defence Counsel and the Crown had agreed that the Crown would not proceed with other assault charges if acts of violence in the course of a kidnapping would be included in the agreed statement of facts. In a joint judgment the Court held despite what had been agreed between the parties, the sentencing judge was not permitted to take into account those acts of violence if the circumstances would then establish a separate offence. It was therefore impermissible for the sentencing judge to treat the fact that the applicant had inflicted actual violence on the complainant in the course of the kidnapping for ransom offence as rendering it a more serious example of the offence. The sentencing judge therefore made an error of law. In re-sentencing the applicant, the Court was required to have regard to time served in pre-sentence custody thus bringing into consideration the proper construction of the words “any other term of imprisonment the offender is liable to serve” in s 156A(2) Penalties and Sentences Act 1992

Mullins P and Boddice JA and Cooper J

4 October 2023

On 30 May 2022, the applicant was sentenced on his own plea of guilty to one count of kidnapping for ransom committed on 9 August 2019. [1]. The applicant was sentenced to six years imprisonment. It was declared the applicant had been held in pre-sentence custody for a period of 1,024 days, but only 68 of those days were taken to be imprisonment already served under the sentence. The applicant had a serious criminal history and had recent convictions for serious drug offending for which he had been sentenced to imprisonment and was serving parole at the time of the commission of the kidnapping offence.[5]. The primary judge ordered that the sentence “be served cumulatively on any other term of imprisonment the applicant was liable to serve.” A parole eligibility date was fixed at 31 May 2022. [2].

An application for leave to appeal against sentence was brought on 2 grounds. First, that the sentencing judge erred in sentencing the applicant on the basis of uncharged acts, being acts of violence against the complainant. Second, that the sentencing judge erred in only declaring 68 days pre-sentence custody as time taken to be served under the sentence.

In a joint judgment the Court found that the sentencing discretion was infected by error in respect of the first ground and re-sentenced the applicant. In light of the finding in respect of the first ground, the Court went on to consider but subsequently rejected the application in relation to one aspect of the second ground.

Background

The applicant was aged 53 at the time of the commission of the offence and 56 at sentence. The applicant was originally indicted on three charges of kidnapping, common assault and assault occasioning bodily harm. All three offences related to a protracted incident involving the same complainant and co-offenders and occurred on the same day.[6]. After pleading guilty to the kidnapping charge the Crown entered a nolle prosequi in respect of the remaining two counts. That course was taken in circumstances where the Prosecutor and Counsel for Cane had agreed the statement of facts on sentence would refer to acts of violence inflicted upon the complainant during the commission of the kidnapping for ransom count. [7]. The statement of facts recorded that the complainant had suffered several injuries including right eye socket fractures, a right cheek fracture, a nose fracture, a right jaw fracture, significant swelling and bruising to the right eye. [9].

The First Ground

The applicant submitted the sentencing judge erred in sentencing him on the basis of an uncharged act, being acts of violence against the complainant. [25]. The sentencing judge made several observations at sentence in relation to the appellants antecedent’s including his criminal history, plea of guilty and the nature and seriousness of the offence [11]. The sentencing judge “also recorded that the circumstances of the offence were set out in an agreed statement of facts…noting repeated acts of violence in the commission of the offence”. [11].

After recording the complainant’s extensive physical injuries, and the contents of the victim impact statements, the sentencing judge said:

“There are a number of aggravating features to that offending…You inflicted actual violence on him. You were in company and the other co-offenders also inflicted violence on him. He suffered significant injuries. Fortunately, they were not sufficient to constitute grievous bodily harm.”

The sentencing judge went on to refer to the sentences imposed on the two co-offenders for parity purposes. [15]. The significance of the reference to the sentences imposed on the co-offenders were that the Crown had proceeded with the two counts on the indictment that were subject to the Nolle Prosequi for Cane. That is, the acts of violence.

The Court re-stated the principle contained in R v De Simoni (1981) 147 CLR 383 that no one should be punished for an offence of which he has not been convicted. Section 582 Criminal Code Act 1899 reflects this. The effect of the principle renders it impermissible for a sentencing judge to take into account an act, omission, matter or circumstance which it would be otherwise permissible to take into account on sentence, if the circumstances would then establish a separate offence which did not form part of the offence for which the person is to be sentenced. [28]. In the present case, there was one day remaining for which the applicant was liable to serve on the possessing dangerous drugs sentence the sentenced imposed for the kidnapping for ransom had to be made cumulative due to the operation of ss 209 and 211 of the CSA. [69].

Disposition

In the result, leave to appeal was granted and the appeal against sentence was allowed. The sentence for the offence of kidnapping for ransom imposed on 30 May 2022 was varied from six years to five years. All other orders of the sentencing judge remained undisturbed.

K Mythen of Counsel