Baradi v R [2018] NSWCCA 143
Baradi v R [2018] NSWCCA 143 · Read the judgment on AustLII
Catchwords: Detain for advantage – element of control – contrast with common assault
The Court of Criminal Appeal (‘CCA’) has considered the question of just how little control is required for the purpose of detaining a person for advantage, and has determined that, at least in this given scenario, it will be enough to say ‘come on, get up.
The appellant was convicted of one count of aggravated break, enter and commit serious indictable offence. Importantly, the serious indictable offence alleged was detaining a person for advantage (which, if charged separately, is pursuant to Crimes Act 1900 (NSW) s81(1)). He was also convicted of a separate common assault. In what seems to be some kind of jealous rage, he turned up at a hotel room which the victim was in with two colleagues during a training course and started banging on the door. Eventually he broke through the door and entered the room (obviously, this was the element of breaking). He snatched the victim’s phone off her and said ‘come on, get up’. It was this latter phrase – ‘come on, get up’ which was relied upon for the purpose of the ‘detain for advantage’ element. He then took her by the wrists and walked her out of the room (in the majority judgment, this was the separate common assault offence). On appeal he contended that the criminality of the common assault was completely subsumed by the aggravated break and enter offence, and that to convict him of common assault was therefore to subject him to double punishment. That is, that the detention for which was the serious indictable offence relied upon was not relevantly separate from the grabbing of the complainant’s wrists which made up the common assault.
The court (Johnson J, Adamson J agreeing; Simpson AJA dissenting) held that the conduct in taking the complainant’s mobile phone and telling her to ‘come on, get up’ was an act of control exercised over the complainant, sufficient to amount to detention for the purposes of s81(1) of the Crimes Act (at [81]). Previous authority established that there is no need for the offender to take physical hold of a person to detain them (at [74] and [77]). The sentencing judge had correctly identified that the period of detention was ‘relatively short’ and did not treat the subsequent taking hold of the complainant’s wrist as part of the detain for advantage offence (at [82] to [83]).
Simpson AJA’s judgment in dissent took a different approach to the facts. Her Honour considered it clear that the taking hold of the complainant’s wrist was the real act amounting to detention. It was also, on her Honour’s interpretation of the facts, the act constituting the assault (at [40]). It followed, on that construction, that there was no additional criminality in the assault, and the appellant ought not have been convicted of it because it amounted to ‘double jeopardy’ (at [44]). However, apart from the obvious fact of being in the minority, her Honour did not grapple (at least directly) with the important proposition in the judgment of the majority that the phrase ‘come on, get up’, in this factual context, could be sufficient for the offence. That aspect of the majority’s judgment is at least arguably something of a lowering of the bar for detention – although as always the question will turn on its facts.