Black v R

[2013] NSWCCA 265

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Black v R [2013] NSWCCA 265
Hearing dates:	18 October 2013
Decision date:	14 November 2013
Before:	Hoeben CJ at CL at [1] Johnson J at [2] Bellew J [3]
Decision:	1.The application for an extension of time is dismissed
Catchwords:	CRIMINAL LAW - appeal - application for extension of time - so called Muldrock error - where sentencing judge made reference to the standard non-parole period being highly relevant - where necessity to read the reasons for sentence as a whole - error not established CRIMINAL LAW - appeal - application for extension of time - where sentencing judge imposed fixed terms of imprisonment for offences for which a standard non-parole period was prescribed - error made out - no other sentence warranted in law - application for extension of time dismissed
Legislation Cited:	Crimes Act 1900 NSW Crimes (Sentencing Procedure) Act 1999 NSW Criminal Appeal Act 1912 NSW
Cases Cited:	Abdul v R [2013] NSWCCA 247 Aslett v R [2012] NSWCCA 235 Baxter v R (2007) 173 A Crim R 284 Bellchambers v R [2011] NSWCCA 131 Black v R [2013] NSWCCA 183 Collier v R [2012] NSWCCA 213 Essex v R [2013] NSWCCA 11 FB v R; R v FB [2011] NSWCCA 217 Hristovski v R [2010] NSWCCA 129 Lang v R [2013] NSWCCA 29 Mammone v R [2013] NSWCCA 95 Markarian v R [2005] HCA 25; (2006) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 R v Dunn [2004] NSWCCA 346 R v Nguyen [2013] NSWCCA 195 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 SGJ v R; KU v R [2008] NSWCCA 258 Vandeventer v R [2013] NSWCCA 77
Category:	Principal judgment
Parties:	Stephen Black - Applicant Regina - Respondent
Representation:	Counsel: Mr C Smith - Applicant Ms J Girdham SC - Respondent Solicitors:
File Number(s):	2007 / 7395011
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2008-12-11 00:00:00 Before: Coolahan DCJ

Judgment

1. HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.

1. JOHNSON J: I agree with Bellew J.

1. BELLEW J: The applicant was found guilty of the following offences following a trial by jury:

(i)   on or about 6 March 2006 did have sexual intercourse with JA without her consent, knowing she was not consenting, and immediately before the sexual intercourse threatened to inflict actual bodily harm on her by means of an offensive weapon, being a knife (count 1);

(ii)   on or about 6 March 2006 did have sexual intercourse with JA without her consent, knowing she was not consenting, and immediately before the sexual intercourse threatened to inflict actual bodily harm on her by means of an offensive weapon, being a knife (count 2);

(iii)   on or about 6 March 2006 did assault JA and at the time of such assault did commit an act of indecency on her (count 3);

(iv)   on or about 6 March 2006 did have sexual intercourse with JA without her consent, knowing she was not consenting, and immediately before the sexual intercourse threatened to inflict actual bodily harm on her by means of an offensive weapon, being a knife (count 4);

(v)   on or about 6 March 2006 did incite JA, being a person above the age of 16 years, to commit an act of indecency (count 5);

(vi)   on or about 6 March 2006 did have sexual intercourse with JA without her consent, knowing that she was not consenting, and immediately before the sexual intercourse threatened to inflict actual bodily harm on her by means of an offensive weapon, being a knife (count 6);

(vii)   on or about 6 March 2006 did assault JA and at the time of such assault did commit an act of indecency on JA (count 7).

1. The offending in each of counts 1, 2, 4 and 6 was contrary to s. 61J of the Crimes Act 1900 NSW. Each of those matters carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The offending in each of counts 3 and 7 was contrary to s. 61L of the same Act and carried a maximum penalty of 5 years with no prescribed standard non-parole period. The offending in count 5 was contrary to s. 61N(2) of the same Act and carried a maximum penalty of 18 months imprisonment, again with no prescribed standard non-parole period.

1. On 11 December 2008 his Honour Judge Coolahan sentenced the applicant as follows:

(i)   in respect of count 1, a fixed term of imprisonment of 6 years to commence on 16 May 2008 and expire on 15 May 2014;

(ii)   in respect of count 2, a fixed term of imprisonment of 6 years commencing on 16 November 2008 and expiring on 15 November 2014;

(iii)   in respect of count 3, a fixed term of imprisonment of 1 year to commence on 16 May 2009 and expire on 15 May 2010;

(iv)   in respect of count 4, a non-parole period of 7 years to commence on 16 November 2010 and expire on 15 November 2017, with a full term of 11 and half years to expire on 15 May 2022;

(v)   in respect of count 5, a fixed term of imprisonment of 4 months to commence on 16 July 2009 and expire on 15 November 2009;

(vi)   in respect of count 6, a fixed term of imprisonment of 6 years to commence on 16 November 2009 and expire on 15 November 2015;

(vii)   in respect of count 7, a fixed term of imprisonment of 1 year to commence on 16 May 2010 and expire on 15 May 2011.

1. The overall sentence imposed upon the applicant was imprisonment for 14 years with a non-parole period of 9 years and 6 months. The applicant is eligible for release on 15 November 2017.

1. The applicant seeks an extension of time in which to seek leave to appeal against the sentences imposed. The background to that application is set out in an affidavit of the applicant of 19 September 2013, along with an affidavit of Jasmine Stanton, solicitor, of 19 September 2013. In summary, the applicant filed a Notice of intention to appeal against conviction and sentence in late December 2008, and made an application for legal aid. It was not until April 2010 that the applicant was informed that his application for legal aid had been refused. The applicant, representing himself, proceeded with his appeal against conviction which was dismissed by this Court (see Black v R [2013] NSWCCA 183).

1. In February 2013 the applicant was advised by Ms Stanton that there was a reasonable prospect that an appeal against his sentence might be successful on the basis of a so-called "Muldrock error" (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39). In Abdul v R [2013] NSWCCA 247 this Court explained in detail the background to, and the general nature of, so-called "Muldrock errors".

1. Following the advice of Ms Stanton, the applicant made an application for legal aid, which was apparently not received. A further application was completed, counsel was briefed and a notice of application for leave to appeal was filed on 28 June 2013.

1. The Crown has opposed the grant of an extension of time.

THE FACTS

1. The following summary of the facts is taken from the remarks on sentence.

1. JA ("the victim"), who was 45 years of age, met the applicant who was then 40 years of age, in January 2005. They saw each other from time to time thereafter but the victim maintained that at all times their relationship was a purely platonic one, a fact disputed by the applicant. She said that initially contact was friendly but as time progressed the applicant wanted more from the relationship than she was prepared to give, and that he became increasingly jealous.

1. At some point after Christmas 2005 the victim commenced a relationship with another person. She told the applicant that she did not want to see him again and requested him not to come to her house. Notwithstanding the victim's request that he not do so, the applicant came to her house on 28 February 2006 (when he left a letter for her) and again on 1 March 2006.

Count 1

1. On the evening of 5 March 2006 the victim went to bed. She subsequently woke up and saw a dark shadow in her bedroom whom the jury found to be the applicant. The applicant put a knife to the lefthand side of the victim's throat and said:

"Don't scream or I'll fucking kill you."

1. The applicant told the victim to put her arms down to her side and then straddled her. She could tell that he had nothing on the bottom half of his body. He said:

"I am just going to have some fun while I am here."

1. The applicant told the victim to remove her nightdress. Whilst still holding the knife at the victim's throat, the applicant then inserted his fingers into her vagina.

Count 2

1. After a couple of minutes, the applicant removed his fingers from the victim's vagina and inserted his penis. At that time the victim did not know where the knife was. This act of intercourse continued for several minutes but the victim was unsure whether the applicant ejaculated.

Count 3

1. The applicant then trailed the knife down the lefthand side of the victim's stomach whilst talking to her. Having removed his penis from her vagina, the applicant roughly grabbed the victim's left breast before biting it. She made a noise when he did so, and the applicant said to her:

"Just be quiet and shut up."

Count 4

1. At some stage the applicant said to the victim:

"This knife has been up pussies."

1. A threat was then made by the applicant in relation to the victim's son, following which the applicant said:

"Might fuck you up the arse. Roll over."

1. The victim then rolled over and felt the applicant penetrate her anus with his penis. The victim made a noise due to the pain, whereupon the applicant put his hand over her mouth and pushed her head and face into the pillow to stop her crying out. This act of intercourse continued for 3 or 4 minutes.

Count 5

1. The applicant then told the victim to roll onto her back and said to her:

"Put your hand down there".

1. The applicant then took the victim's hand and placed it on his erect penis. The victim could tell that the applicant was not wearing a condom. He told the victim to rub his penis, whereupon she stroked it a couple of times before stopping.

Count 6

1. After the victim had stroked the applicant's penis, he put his penis back into her vagina and instructed her to put her fingers into her vagina at the same time. The victim put one finger inside her vagina whilst the applicant was still inside her.

Count 7

1. The applicant then removed his penis from the victim's vagina and got off the bed, before wiping himself and the victim with what the victim thought was her nightdress. The applicant then instructed the victim to roll back over onto her stomach, at which time he said:

"Look what we found here on the floor."

1. The applicant then felt something being shoved between her legs and knew it was a vibrator which she had purchased some time earlier. She was not sure whether the vibrator penetrated her or not. The applicant then said to the victim:

"Don't go to the cops. I will come back and fucking kill you."

1. The applicant then left the premises.

1. The victim, in a petrified state, waited for a short time before driving from her house and telephoning the person with whom she was then in a relationship. She then made a complaint to police. The victim told police that during the time that the applicant was talking to her, the tone of his voice was one of bitterness, resentment and anger.

1. At the time of making her complaint to the police, the victim suspected that the applicant was the intruder but could not be certain. The circumstantial evidence relied upon by the Crown at trial to establish that it was in fact the applicant was obviously accepted by the jury.

1. During the sentence proceedings the Crown tendered a Victim Impact Statement, along with a statement from a social worker and a report from the victim's general practitioner. Those documents set out the effect of the offending upon the victim.

The findings of the sentencing judge

1. Commencing at ROS 8, his Honour said:

"As can be seen, the offences, particularly those set out in counts 1, 2, 4 and 6 are extremely serious. That an offence of aggravated sexual intercourse without consent is to be regarded seriously is obvious from the maximum penalty provided for it as well as the standard nonparole period which it attracts. As I said, the whole experience was undoubtedly degrading and terrifying. I have no doubt that the victim feared for her life.

Further, all the evidence points to the fact no doubt the offence was committed out of jealousy and resentment with the applicant having decided to have what he considered was rightfully his, that is to say a sexual relationship with the victim in the teeth of her unwillingness to do so, a fact which had been abundantly clear to him and must have been clear to him for many months. There is no doubt that his actions were premeditated and that he did not give a single thought to the consequences for the victim.

The offences, particularly the offences of aggravated sexual intercourse without consent must result in very significant fulltime custodial sentences. This is necessary, amongst other things, to ensure that persons of like mind are significantly deterred from adopting the same sort of actions and to ensure that the concerns of the community is reflected by the maximum penalties and standard nonparole periods for those offences are properly addressed".

1. Commencing at ROS 8 his Honour assessed the applicant's subjective case, including the contents of a pre-sentence report which had been tendered. He also considered, at some length, the character evidence which had been given in the sentence proceedings. His Honour was not able to reach any definitive conclusion as to the applicant's prospects of rehabilitation although he did conclude (at ROS 13) that it was unlikely that the applicant would re-offend.

1. Finally, his Honour found that there was evidence that the applicant had a propensity to become unwell in times of stress, the point of attempting suicide. In these circumstances, his Honour found that a custodial sentence would be harsher for the applicant, and found special circumstances.

1. In terms of the objective seriousness of the offending, his Honour had particular regard (at ROS 14) to the fact that the offences had been committed in the applicant's home and found that there was some degree of planning involved, although it was not lengthy.

THE GROUNDS OF APPEAL

Ground 1 - His Honour erred in his approach to the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120.

The findings of the sentencing judge

1. His Honour found (at ROS 14) that all of the offences were to be regarded as falling within the mid range of objective seriousness. He then said (at ROS 15):

"Having found that counts 1, 2, 4 and 6 fall in the mid range of seriousness, and there having been no pleas of guilty to take into account, the standard nonparole periods, apart from the question of special circumstances, become highly relevant. Further, because these are separate offences albeit forming part of the one course of conduct over a limited period of time, some partial accumulation is required to reflect the separate criminality involved in the commission of each of the offences".

Submissions of the parties

1. It was submitted on behalf of the applicant that his Honour's sentencing discretion had miscarried by reason of the fact that he had, contrary to the decision in Muldrock:

(i)   adopted a two stage approach to sentencing;

(ii)   given determinative significance to the standard non-parole period; and

(iii)   failed to make proper allowance for the applicant's subjective case on sentence.

1. In particular, counsel for the applicant submitted that the passage in [35] above was to be interpreted as the sentencing judge having sentenced the applicant in accordance with the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, such an approach having been found by the High Court in Muldrock to be erroneous. Counsel submitted, in particular, that his Honour's reference to the fact that there had been no pleas of guilty, along with his reference to the fact that each of counts 1, 2, 4 and 6 attracted a standard non-parole period, supported the conclusion that his Honour had given the standard non-parole period primary significance in the sentencing process.

1. In support of his submissions, counsel for the applicant referred to the decision in R v Nguyen [2013] NSWCCA 195 where this Court (Beazley P, Johnson and R A Hulme JJ) observed (at [62]) that the standard non-parole period and the maximum sentence are the two legislative guideposts in determining sentence. In the same case, the Court also observed (at [63]) that the standard non-parole period may be a more significant factor in the case where there is little operating in an offender's favour on sentence. As I understood it, counsel for the applicant submitted that the absence of any reference by the sentencing judge to the maximum penalty (in the context of his reference to the standard non-parole period) was indicative of the standard non-parole period having been given primary significance.

1. The Crown submitted that no error was made out and further submitted that far from using the standard non-parole period in a mandatory or prescriptive way, his Honour had done no more than refer to it, in effect, as one of a number of relevant considerations he was required to take into account. The Crown submitted that his Honour's reference to the standard non-parole period being "highly relevant" was nothing more than his Honour's acknowledgement that it was to be treated as a statutory guidepost.

1. The Crown also relied upon the fact that the sentences imposed by his Honour were substantially less than the prescribed standard non-parole period. It was submitted that this was a further indication of the fact that the standard non-parole period had not been given primary or determinative significance. Counsel for the applicant sought to meet this submission by reliance upon my decision in Essex v R [2013] NSWCCA 11.

Consideration and conclusion

1. This Court has observed on numerous occasions that when considering whether a Muldrock type error has been established, it is necessary to view the reasons for sentence as a whole, rather than confine examination to one particular passage or sentence which is said to reflect error see (Essex v R [2013] NSWCCA 11 at [30], citing Aldous v R [2012] NSWCCA 153 at [2] and Zreika v R [2012] NSWCCA 44 at [43]). Having read the entirety of his Honour's reasons, I am not satisfied that error has been established.

1. Prior to the passage set out in [35] above, his Honour had comprehensively considered both the objective seriousness of the offending, and the applicant's subjective case. The terms in which he did so tend against a conclusion that the standard non-parole periods which were applicable to counts 1, 2, 4 and 6 were given primary, let alone determinative, significance. Rather, his Honour's approach was one which was consistent with the adoption of a process of instinctive synthesis in which all relevant factors were identified, their significance discussed, and a value judgment reached as to the appropriate sentence (as to which see Markarianv R [2005] HCA 25; (2006) 228 CLR 357 at [51] per McHugh J).

1. Further support for the conclusion that no error has been established is to be found in his Honour's reference to the fact that the standard non-parole period was "highly relevant". Apart from being a correct statement, his Honour's use of the term "highly relevant" in reference to the standard non-parole period tends against the conclusion that the standard non-parole period was given primary or determinative significance in the sentencing process (see Aslett v R [2012] NSWCCA 235 at [35]).

1. In my view, the decision in Nguyen does not assist the applicant. To the extent that some inference was sought to be drawn, by reference to that decision, from his Honour's failure to make reference to the maximum penalty being a second statutory guidepost, such an approach runs contrary to the necessity to view the reasons as a whole. In any event, the observations of this Court in Nguyen were made in the context of a case in which the offender had little in the way of a subjective case. That could not be said to be the position in the case of the present applicant.

1. Further, and for similar reasons, the decision in Essex does not assist the applicant. Counsel for the applicant relied upon my observation in that case (at [31]) that what I found to be the erroneous approach of the sentencing judge was not saved by the fact that the non-parole period which was ultimately imposed was less than the prescribed standard. That observation was made in the context of a case in which the Muldrock error was clear and unequivocal. For the reasons I have explained, the present case is quite different.

1. For all of these reasons, ground 1 is not made out.

Ground 2 - His Honour erred in imposing fixed terms of imprisonment for counts 1, 2, and 6.

The sentencing judge's findings

1. His Honour reached the following conclusions in respect of counts 1, 2 and 6 at ROS 16:

"On count 1 he is sentenced to a fixed term of six years imprisonment to commence on 16 May 2008 and expire on 15 May 2014. On count 2 he is sentenced to a fixed term of imprisonment of six years to commence on 16 November 2008 and expire on 15 November 2014. ... On count 6 he is sentenced to a fixed term of imprisonment of six years to commence on 16 November 2009 and expire on 15 November 2015".

The submissions of the parties

1. Counsel for the applicant submitted that there was no discretion to decline to set a non-parole period for an offence which attracted a standard non-parole period in view of s. 45(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") (see generally SGJ v R; KU v R [2008] NSWCCA 258; Bellchambers v R [2011] NSWCCA 131).

1. The Crown conceded that a non-parole and an additional term must be set for an offence which attracts a standard non-parole period and that as a consequence, the sentences imposed in respect of counts 1, 2 and 6 were contrary to law.

1. The Crown further submitted that the fixed terms imposed should be treated as the equivalent of the non-parole period for the purposes of sentence (see generally R v Dunn [2004] NSWCCA 346; Hristovski v R [2010] NSWCCA 129).

Consideration and conclusion

1. The concession made by the Crown was a proper one. The sentences imposed in respect of counts 1, 2 and 6 were contrary to the provisions of the Sentencing Act. The error was a material one (see Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 204 at [83] per Latham J. It follows that this ground is made out.

1. The issue of whether the fixed terms imposed by his Honour should be regarded as representing the length of the non-parole period or the length of the head sentence in each case was not fully argued in the appeal, and is a matter about which differing views have been expressed (see the discussion of R A Hulme J in Collier v R [2012] NSWCCA 213 at [52] - [62]). In any event, and absent any other basis on which this Court considers that it should intervene, re-sentencing the applicant in respect of counts 1, 2 and 6 will make no difference to the aggregate non-parole period, or the aggregate sentence, in light of the sentence imposed in respect of count 4 (see Mammone v R [2013] NSWCCA 95 at [49] per Latham J, Button J and Grove AJ agreeing).

THE APPLICATION TO EXTEND TIME

The applicable principles

1. In Abdul (supra) this Court said (at [53]):

"Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time".

1. The delay in the present case is sought to be largely explained upon the basis of a change in applicable sentencing principles following the decision in Muldrock. However, for the reasons already expressed, no Muldrock error has been made out. Further, although ground 2 has been made out, it is independent of ground 1 and could have been brought at the time of the hearing of the applicant's appeal against conviction. The affidavit evidence advances no explanation as to why this course was not taken, although it might be inferred that it was due to the fact that legal aid had been refused and the applicant was unrepresented.

1. In the present case, the evidence of the impact upon the victim which was before the sentencing judge was somewhat greater than is generally the case, and extended to reports from a social worker and the victim's general practitioner. The effect of the applicant's offending upon the victim was obviously significant, such that an extension of time may well have an adverse impact upon her. It would also offend the principle of finality. In my view, all of these matters tend against granting of an extension of time.

1. However, for the reasons which have been outlined, material error has been established in respect of ground 2. For the reasons explained in Abdul, it is therefore necessary to assess the prospects of success of the application for leave to appeal. In doing so, the Court must consider whether some lesser sentence is warranted in law (Criminal Appeal Act 1912 (NSW) s. 6(3)).

Is some other sentence warranted in law?

Submissions of the parties

1. It was emphasised on behalf of the applicant that in order to establish that some other sentence was warranted in law, it was not necessary to establish that the sentences imposed were manifestly excessive, and that it is a matter for the Court to re-exercise its statutory discretion (see generally Baxter (supra)).

1. It was submitted that the applicant's subjective circumstances were not properly reflected in the ultimate sentence imposed. In this regard, counsel pointed to the fact that there was evidence that as a consequence of his offending the applicant had suffered significant extra curial punishment as the consequence of the loss of his job and his home, and as a result of being declared bankrupt.

1. Reliance was also placed on the evidence that the applicant had suffered depression and had attempted suicide, as well as the fact that his Honour had found that he was unlikely to re-offend. Finally, the applicant relied upon sentencing statistics, along with sentences imposed in other cases which were said to be factually comparable.

1. The Crown submitted that his Honour had comprehensively set out the entirety of the subjective material relied upon by the applicant and had obvious regard to those subjective matters, not only in relation to the individual sentences but also in relation to the degree of accumulation which the Crown described as "moderate".

1. The Crown submitted that a degree of accumulation was required in the present case because it could not be said that the criminality of each of the offences was completely subsumed by that of the others. It was also pointed out that the extent of the accumulation had not been challenged by the applicant.

1. In terms of the applicant's reliance upon sentencing statistics, the Crown relied on a number of previous decisions in which this Court had spoken about the about the caution with which any statistical analysis ought be approached (see for example FB v R; R v FB [2011] NSWCCA 217; Lang v R [2013] NSWCCA 29). In this regard, the Crown submitted that the cases relied upon by the applicant provided no assistance because of the differentiating circumstances, and placed particular reliance upon the observations of Adamson J (with whom McClellan CJ at CL and Rothman J agreed) in Vandeventer v R [2013] NSWCCA 33 at [45].

Consideration and conclusion

1. In my view, there is no merit in the submissions advanced on behalf of the applicant.

1. His Honour comprehensively reviewed all aspects of the applicant's subjective case (at ROS 8 to ROS 15). In doing so, he referred to each and every one of the subjective matters cited by counsel for the applicant in submissions before this Court. Clearly, all of those matters were taken into account in determining sentence. It is also relevant to note that the applicant maintained his innocence, such that it was not open to his Honour to take into account any expressed remorse or contrition for the offending.

1. Moreover, when sentencing the applicant his Honour was required to balance the applicant's subjective case against what was, on any view, serious offending. He properly pointed out (at ROS 8) that the offending would obviously have been degrading and terrifying for the victim, and that general deterrence was of particular significance.

1. Further, and in circumstances where the applicant and the victim had previously known one another but where the applicant had maintained that the relationship was a platonic one, his Honour found that the offending was motivated by feelings of jealousy and resentment on the part of the applicant. That finding was not challenged on appeal.

1. Finally, his Honour found (at ROS 8) that the offending was pre-mediated and that the applicant, having determined to act in the way in which he did, engaged in repeated and degrading offending towards the victim. That finding was similarly not challenged.

1. All of those circumstances to which his Honour referred called for the imposition of condign punishment.

1. For these reasons, no injustice has arisen as a consequence of the sentence imposed, and no lesser sentence is warranted in law.

ORDER

1. I propose the following order:

(i)   The application for an extension of time is dismissed.

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Decision last updated: 14 November 2013