Banting v Regina
[2006] NSWCCA 53
•10 March 2006
CITATION: Banting v Regina [2006] NSWCCA 53
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 2 February 2006
JUDGMENT DATE:
10 March 2006JUDGMENT OF: Grove J at 1; Rothman J at 2 DECISION: a Leave to appeal be granted; b The appeal is allowed; c The sentence imposed by his Honour Judge Marien SC of the District Court on 27 Janaury 2005 be quashed and, in lieu thereof, the following sentence be imposed: (i) Count One: assault in contravention of s.61 of the Crimes Act 1900 committed on 25 December 2002 – a sentence of six months commencing 28 December 2004 and expiring 27 June 2005; (ii) Count Three: larceny in contravention of s.117 of the Crimes Act 1900 committed on 16 March 2003 – a fixed term of 12 months’ imprisonment commencing on 28 February 2005 and expiring on 27 February 2006; (iii) Count Two: sexual intercourse without consent committed on 16 March 2003 in contravention of s.61I of the Crimes Act 1900 – imprisonment for a non-parole period of 3 years commencing on 28 May 2005 and expiring on 27 May 2008 as part of a total sentence of six years commencing 28 May 2005 and expiring on 27 May 2011. ; d The Applicant will be eligible to be released on parole for the first time on 27 May 2008 at which time it is directed that the applicant be subject to supervision by the Probation and Parole Service and that the applicant comply with all reasonable directions of that service, particularly with respect to drug and alcohol counselling and anger management. CATCHWORDS: Criminal Law - sentencing - past relationship - aggravated sexual assault - special knowledge - manifest excess - special circumstances - extended supervision LEGISLATION CITED: Crimes Act 1900, s.61 CASES CITED: R v O'Grady (unreported, NSWCCA 13 May 1997) PARTIES: BANTING, Troy
The CrownFILE NUMBER(S): CCA 2005/1995 COUNSEL: Applicant: Mr A Hallas
Crown: Ms J A GirdhamSOLICITORS: Applicant: Peter Mitchell (Johnsons)
Crown: S Kavanagh (DPP)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3227 LOWER COURT JUDICIAL OFFICER: Marien SC DCJ
2005/1995
10 March 2006GROVE J
ROTHMAN J
1 GROVE J: I agree with Rothman J
2 ROTHMAN J: The applicant, Troy Banting, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Marien SC of the District Court on 27 January 2005. On that date his Honour sentenced the applicant to an effective sentence of four and a half years non-parole period and further two years as the remainder of the sentence, for three offences to which the applicant had pleaded guilty, being sexual assault, assault and larceny.
3 The offences and the sentence imposed were:
Count One:
Assault contrary to s.61 of the Crimes Act 1900 for which there is a maximum penalty of two years’ imprisonment. The applicant was sentenced to a fixed term of 12 months from 28 December 2004. (Date of offence: 25 December 2002)
Count Three:Count Two:
Sexual intercourse without consent contrary to s.61I of the Crimes Act 1900 . Maximum penalty: 14 years’ imprisonment (standard non-parole period: seven years’ imprisonment). The applicant was sentenced on this count to imprisonment for six years, commencing 27 June 2005, with a non-parole period of four years commencing 27 June 2005. (Date of offence: 16 March 2003)
Larceny contrary to s.117 of the Crimes Act 1900 for which there is a maximum penalty of five years’ imprisonment and for which the applicant was sentenced to imprisonment for a fixed term of two years commencing 27 June 2005. (Date of offence: 16 March 2003)
4 The circumstances giving rise to the offences are within short compass. The applicant and the victim were in a de-facto relationship for about eight years ending in 2002. On the Christmas Day after the relationship had ended the applicant drank excessively at home while the victim and their daughter from the relationship were with her family celebrating Christmas. When the victim and daughter arrived home, an argument developed and the applicant poured a bottle of beer over the victim’s head and sprinkled the ashes and butts from an ashtray over her head and body.
5 At the time of the assault both the applicant and victim lived in the same premises although, it seems, the de-facto relationship had ended some time earlier. Shortly thereafter the victim and the daughter of the relationship moved out of the unit and into a house. The applicant also moved out of the unit at the same time but to a different address and continued to have access rights to his daughter.
6 On Sunday, 16 March 2003, the applicant telephoned the victim and asked to take her to dinner. The victim answered in the negative and hung up the phone. The applicant telephoned the victim a number of times after that and during those calls indicated that he wanted to take the victim and his daughter out to dinner and pay for it. The victim continued to say no. A friend of the victim was with her at the time of some of the calls and left the house shortly thereafter leaving the victim and her daughter at home alone.
7 Sometime after 5 pm on that day the applicant telephoned the victim and told her that he was coming over and was bringing their daughter some “McDonalds”. The victim hung up the phone. Their daughter was on the front porch of the house when the applicant arrived in a vehicle. He was alone.
8 The applicant picked up his daughter and entered the house. The victim screamed at him: “Get out of the house!” She tried to get to the front door but was unable to do so. The applicant pushed the victim into the lounge room using both hands. The victim rose and the applicant pushed her into the bedroom and onto the bed. He jumped on top of her and the victim said: “Get off me!” The applicant pushed the victim’s legs apart and he knelt in between them.
9 The applicant ripped the victim’s underpants and pulled her legs up in the air and her underpants off. The victim tried to kick the applicant away by moving her body around but she was unable to do so.
10 During this incident the daughter was at the bedroom door and the applicant got up and off the bed and shut that door. It was at this stage that the victim realised that the applicant was naked while she was still wearing a shirt (sic) and top but no underwear. (The Agreed Facts and Remarks on Sentence refer to shirt but this may be a mistaken reference to skirt.) The victim started to sit up but the applicant pushed her down on the bed with both hands. He pushed her shoulders down onto the bed and he put his hands over her mouth and nose so that it was difficult for her to breath. He put saliva on his hand and rubbed it against her vagina and inserted his penis into her vagina. During this time the victim was constantly saying: “Stop it!” and moving her body in an attempt to get away. The applicant ejaculated during penetration. The assault then ceased.
11 After that the victim was able to open the bedroom door and went to her daughter who was in the daughter’s bedroom. Before the applicant left the premises he took a number of pieces of jewellery that the victim was wearing including two rings from her finger, a gold necklace with a charm attached, together with a mobile phone. The applicant considered he was morally entitled to these items which, as I understand it, were gifts or purchases during their relationship.
12 The above recitation of facts is largely taken from the remarks on sentence of his Honour which, in turn, is taken from the Agreed Facts tendered by the Crown at the sentence proceedings.
Grounds of Appeal
13 The appeal was drafted and filed by the applicant, seemingly without the benefit of legal advice, but the applicant was represented at the appeal. At the hearing of the appeal it was conceded that the grounds of appeal amount, essentially, to one ground, namely, that the sentence was manifestly excessive.
14 The handwritten appeal, some of which grounds were expressly withdrawn during the hearing, raise the following issues:
a That the applicant was sentenced without his barrister being there (this ground was withdrawn and it should be noted that the applicant was represented by legal practitioners at every stage of the sentencing process);
b That the applicant pleaded guilty on the basis of advice and on the basis of a representation by the Crown, which was later breached;
c That the charges should have been dealt with as matters of domestic violence;
d That the applicant was dealt with harshly and insufficient regard was taken to his lack of a significant record;
e That there was no medical evidence showing abusive behaviour;
f That the applicant should have been given weekend detention;
g Insufficient regard was paid to the fact that the applicant was on bail for two years pending trial during which time his alcohol abuse and addiction was overcome and he has not re-offended.
15 One other matter should be dealt with, namely, the seeming reliance on the relationship that had existed between the applicant and the victim. The Crown, in its submissions, referred, as did the sentencing judge, to the relationship as a “pre-existing relationship”. This term is an unfortunate expression which, in itself, gives rise to a misleading and inappropriate inference. The relationship between the applicant and the victim was a past relationship. The term “pre-existing” tends to suggest a continuing relationship at the time of the offences. That is not the evidence before the Court.
16 The above is not simply a pedantic criticism of the language used, but rather a reference to the attitude that pervades some of the submissions that were made. The fact that a person was in a past relationship with another does not give that person any right to take advantage of the other. On the contrary, the existence of a past relationship may leave the persons involved privy to information that may not be in the public arena, as a consequence of which they may have a capacity to effect damage more readily. In this case the applicant was aware of the address of the victim and her vulnerability and used his position of trust with their daughter in order more readily to obtain access to the victim’s premises and commit the sexual assault. In the first of the counts referred to above, the applicant was in an even stronger position given that he and the victim were cohabitating at the time. Even a person in a current relationship is entitled to determine, without being subject to force or threats, how and in what circumstances that relationship will be consummated. The existence of a past relationship simpliciter is not a mitigating factor in sexual assault.
17 I reiterate that which this Court said in R v O’Grady (NSWCCA, 13 May 1997, per Sully J, with whom Gleeson CJ and Hunt CJ at CL agreed):
- “The courts have said, although, indeed, it should not be necessary to emphasise the point at all, that it must be a feature of the way in which modern personal relationships are conducted, that if, for whatever reason, they break down then the woman who is involved in the relationship is entitled to feel that whatever other consequences ensue her personal safety will not be threatened at all, let alone threatened by the commission of criminal offences of the gravity of those with which we are now called upon to deal.”
18 While the offences in R v O’Grady were more serious even than the offences with which the Court is here dealing, the principle deserves restatement. If anything, the fact that an offender was in a past relationship with the victim may, where there is abuse of special knowledge and/or trust, be an aggravating feature.
Seriousness of the Offences: Is the Sentence Manifestly Excessive?
19 In order to determine whether the sentence imposed by his Honour is manifestly excessive, it is necessary to determine the seriousness of the offences. I will deal separately with each.
20 The first offence, the common assault, is, even within the framework of a common assault, at the lowest end of the spectrum. While an offence under s.61 of the Crimes Act 1900 is, necessarily, one in which no actual bodily harm has been occasioned, the pouring of a bottle of beer and cigarette butts and ash over a person is at the lowest end of assaults that come before the Court. There seems to be an overwhelming inference that, had it not been for the later offences, this first count would never have been prosecuted and may not have been the subject of complaint. However, one must bear in mind that the conduct would have been demeaning, disempowering and upsetting to the victim.
21 The offence carries a maximum penalty of two years’ imprisonment and the applicant was sentenced to a 12 months’ fixed term, in circumstances where he had pleaded guilty to the offence. While the effective sentence served for this offence is only six months, the sentence, insofar as it concerns this offence only, seems manifestly excessive. I do not lose sight of the effect on the victim which would have been far worse because of the necessary vulnerability of the victim to a person with whom she was cohabitating. On one view at least this is a breach of the trust, reposed in the applicant, exacerbated, I might add, by the fact that it would have ruined for the victim what had otherwise been a pleasant and joyous Christmas with her family.
22 His Honour dealt with the sexual assault at length and his attitude to it is complicated. There is no doubt that his Honour considered the offence extremely serious, as is every case of non-consensual sexual intercourse. This case involved penile penetration of the vagina which is one factor in determining the seriousness of the offence.
23 Notwithstanding the above comment, the courts are required to perform the task of determining, within the range of offences of this kind, all of them serious, where in that range a particular offence falls. The offence committed does not have a number of the aggravating factors that would add to the seriousness of the offence, such as gratuitous violence, damage of a physical kind, threats of retaliation or the like. There seems to have been little premeditation in the commission of the offence and there is no doubt that the drunken state of the applicant was a major, if not a predominant, factor in the commission of the offence and, on the material before the Court, is a factor which no longer presents as a problem.
24 His Honour took account of the victim impact statement which was tendered before him and is before us. There is little doubt that the victim impact statement had a significant impact upon the sentencing judge. It is a powerful document. Having said that, it should be made clear that it would be a most unusual rape which did not have the impact described in the victim impact statement. The reason that the legislature treats sexual assault of this kind so seriously is partly because of the impact that the conduct has on its victims. To treat the offence more seriously, within the range of serious offences, because of the victim impact statement, may be, at least partly, double counting.
25 The criminal act is serious because of the circumstances of the conduct, not the identity or circumstances of the victim. Here, however, the applicant should have known of the vulnerability of the victim and the impact that his conduct would have on her, both emotionally and physically. He also should have known, not only because the offence was commenced in the presence of his daughter, but also because of the insecurity and disempowerment that necessarily arises from an offence of this kind, that the offence would impact his own daughter. The victim, and her daughter, now live interstate as a direct result of this offence.
26 Bearing in mind all of these matters, I am of the view that the offence in question was at or just below the mid-range of offences. This seems to be the view of the sentencing Judge who described the offence as one which “clearly falls in the middle of the range of objective seriousness”.
27 In terms of the subjective elements that go to sentence, it is clear that the applicant has an otherwise relatively unblemished record and is not a person for whom specific deterrence is an added requirement, nor does it have particular significance, over the ordinary, in relation to the fixing of a sentence. The applicant is a person whose criminal conduct has largely been the result of the effect of alcohol. This is the first time the applicant has been incarcerated. The evidence before the Court is that his rehabilitation programme has been successful and he has not imbibed alcoholic beverages for over 18 months. At the time of his original sentence, he had not imbibed alcohol for over six months. In those circumstances, the person who is being sentenced is a different person involving a different risk from the perpetrator of the offence in 2002 and 2003.
28 Overall, I agree with his Honour in relation to the sexual assault that a total sentence of six years is warranted in terms of the seriousness of the offence. However, in my opinion, his Honour paid insufficient regard to the special circumstances, which he determined existed, and in particular to the rehabilitation that had already occurred in terms of his alcohol dependence and therefore the likelihood that there would not be re-offending. Such a continuing, successful rehabilitation significantly affects the need for an extended period of supervision after imprisonment so as to ensure that the rehabilitation continues on re-entry into society. The additional period of six months’ supervision over the statutory ratio, which his Honour provided, is insufficient.
29 The larceny offence, which carries a maximum sentence of five years’ imprisonment, is at the very lowest end of the range of seriousness for such an offence. The term fixed for the larceny of two years (even in circumstances where there is no effective addition to the overall sentence imposed) is excessive.
Conclusion
30 Overall, I consider that the applicant’s sentence is manifestly excessive. His Honour seems to have taken into account, in an inappropriate manner, the seriousness of the sexual assault in determining an appropriate penalty for the common assault and the larceny and has paid insufficient regard to the special circumstances and the need for extended supervision after release.
31 I have chosen to sentence in a different order than his Honour below so as to have greater flexibility in providing an identifiable period of imprisonment for the two lesser offences and still take account of totality principles. In so doing I have accepted that the worst features of the larceny overlap with the sexual assault offence and that there is some overlap in the criminality of both of those offences and the common assault. I do not, however, take the view that any of the charges ought to be wholly concurrent.
32 I propose the following orders:
a Leave to appeal be granted;
b The appeal is allowed;
c The sentence imposed by his Honour Judge Marien SC of the District Court on 27 January 2005 be quashed and, in lieu thereof, the following sentence be imposed:
i. Count One: assault in contravention of s.61 of the Crimes Act 1900 committed on 25 December 2002 – a sentence of six months commencing 28 December 2004 and expiring 27 June 2005;
ii. Count Three: larceny in contravention of s.117 of the Crimes Act 1900 committed on 16 March 2003 – a fixed term of 12 months’ imprisonment commencing on 28 February 2005 and expiring on 27 February 2006;
iii. Count Two: sexual intercourse without consent committed on 16 March 2003 in contravention of s.61I of the Crimes Act 1900 – imprisonment for a non-parole period of 3 years commencing on 28 May 2005 and expiring on 27 May 2008 as part of a total sentence of six years commencing 28 May 2005 and expiring on 27 May 2011.
d The Applicant will be eligible to be released on parole for the first time on 27 May 2008 at which time it is directed that the applicant be subject to supervision by the Probation and Parole Service and that the applicant comply with all reasonable directions of that service, particularly with respect to drug and alcohol counselling and anger management.
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