Brooks v R

[2006] NSWCCA 169

CITATION:	Tahi BROOKS v REGINA [2006] NSWCCA 169 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15 August 2005
JUDGMENT DATE:	9 August 2006
JUDGMENT OF:	Hulme J at 1; Hidden J at 2; Hall J at 25
DECISION:	Leave to appeal granted, appeal allowed, for re-sentence see para 23
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against sentence - charges of aggravated sexual assault - armed robbery - matters on Form 1 - whether sexual offences fell into worst category - whether sentences excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Johnson [2004] NSWCCA 76 R v Wickham [2004] NSWCCA 193 R v Blair [2005] NSWCCA 78 R v McQueeney [2005] NSWCCA 168 Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	Tahi BROOKS (applicant) REGINA (respondent)
FILE NUMBER(S):	CCA 2005/864
COUNSEL:	H Dhanji (applicant) D Frearson SC (respondent)
SOLICITORS:	S E O'Connor - Solicitor for Legal Aid (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/1020
LOWER COURT JUDICIAL OFFICER:	English DCJ

2005/864

HULME J
HIDDEN J
HALL J

Wednesday 9th August 2006
Tahi Brooks v Regina

Judgment

1 HULME J: I agree with the orders proposed by Hidden and with his Honour’s reasons.

2 HIDDEN J: The applicant, Tahi Brooks, pleaded guilty in the District Court to the following charges:

(1) Aggravated break and enter and commit indictable offence, namely, aggravated sexual intercourse without consent: s112(2) of the Crimes Act ;

(2) Aggravated sexual intercourse without consent: s61J(1) of the Crimes Act ;

(3) Attempted aggravated sexual intercourse without consent: s61J(1)/s61P of the Crimes Act ;

(4) A further offence of aggravated sexual intercourse without consent;

(5) Aggravated robbery: s95 of the Crimes Act .

Each of those offences carries a maximum sentence of imprisonment for twenty years. Standard non-parole periods are prescribed in respect of the charges other than the aggravated robbery. For the aggravated break and enter charge the period is five years, and for the charges of aggravated sexual assault (including the attempt) the period is ten years.

3 The applicant asked that there be taken into account on a Form 1 yet another offence of aggravated sexual intercourse without consent and an offence of escaping from lawful custody. Those offences were taken into account in the sentence on the first charge.

4 He was sentenced as follows:

On the fifth charge (aggravated robbery), imprisonment for a fixed term of seven years to commence on 14 November 2003;
On the first charge (aggravated break and enter and commit aggravated sexual assault), taking into account the Form 1 matters, imprisonment for sixteen years to commence on 14 November 2004, comprising a non-parole period of twelve years and a balance of term of four years;
On each of the second and fourth charges (aggravated sexual assault), imprisonment for a fixed term of eight years to commence on 14 November 2004;
On the third charge (attempted aggravated sexual assault), imprisonment for a fixed term of four-and-a-half years to commence on 14 November 2005.

5 The total effective sentence is imprisonment for seventeen years, with a non-parole period of thirteen years, dating from 14 November 2003. He seeks leave to appeal against those sentences.

6 To assess the gravity of the offences a fairly full account of the facts is necessary. The learned sentencing judge summarised them in her remarks on sentence as follows:

At about 3am on Saturday 8 February 2003 the offender broke and entered the home of ... the victim, at .... Entry was gained through a sliding flyscreen door at the rear of the premises by forcing the screen mesh out of the door frame. At the time of entry, the offender was armed with a spanner. At the time, the premises were occupied by the elderly female victim who was then eighty two years of age and home alone asleep in her bed.
After gaining entry the offender entered the victim’s bedroom. The victim woke to find the offender standing next to her bed looking at her. She challenged him as to his presence in her home and told him to get out while she tried to get up. He grabbed her by the arm, held the spanner to her throat, pushed her onto the bed and said “Shut up you bitch or I will kill you, I want some pussy”. He removed his clothing whilst continuing to hold the spanner to the victim’s throat. He then laid on top of her and pulled up her night gown above the level of her breasts so that she was naked from the breasts down. He then had sexual intercourse with her by inserting two or three fingers into her vagina. Those facts constitute count one on the indictment, the breaking and entering and commit serious indictable offence, namely, sexual intercourse without consent. The offender then used the palm of his hand to rub the genital area whilst keeping the fingers of the same hand inside her vagina for some time estimated by the victim to be three to five minutes. After he removed his fingers from her vagina, he then had further sexual intercourse with her by inserting his penis in her vagina a number of times. This constitutes count two on the indictment, aggravated sexual intercourse without consent and this was done in a forceful manner causing the victim slight pain and continued for some time estimated by the victim to be about ten minutes. The victim was unaware if the offender ejaculated or not.
Whilst this act of intercourse was taking place, the offender said “Babe I love pussy, I love this babe, put your arms around me, cuddle me”. The victim put her hands on the top of each shoulder of the offender and tried to scratch his back. It was her intention to get his DNA under her fingernails in order to identify him.
The offender told the victim to turn over and he rolled her over so that she was face down on the bed with her face in the pillow. He then placed his penis on her anus and the victim said “No, it’ll hurt too much, I can’t breathe”. The offender then rolled the victim onto her back, knelt over her by putting his legs on either side of her body, removed her night gown completely so that she was naked and began rubbing his erect penis around the victim’s mouth. When the victim would not open her mouth the offender said “Open your mouth, open your mouth bitch”. That act constitutes count three, the attempted sexual intercourse without consent. The victim resisted by shaking her head.
The offender then moved his position so that he was lying on his stomach with his head between the victim’s legs. He then began licking the victim’s genital area and moving his tongue in and out of her vagina a number of times for a period of time. The victim estimated five or six minutes. This act constitutes count four, an act of aggravated sexual assault without consent.
Whilst he was performing this act, the offender used both hands to hold the victim around the waist holding her down. The offender then said “Well hold me with your hand”. The victim complied and took hold of the offender’s penis and began to masturbate him. The offender then laid on top of the victim again and had sexual intercourse by inserting his penis in and out of her vagina a number of times. This is the act of aggravated sexual intercourse listed on the Form 1. This was done in a rough manner and continued for some time estimated by the victim to be about ten minutes. The offender said at times during this act “This is great babe, this is great babe, I love pussy”.
The victim said the offender had better leave because her son was due home very shortly. The offender ceased having sexual intercourse with the victim at the time, stood beside the bed and said to her “Haven’t I got a wonderful cock?” The victim again said that he had better leave because her son was due home very shortly and if he caught the offender he would kill him. The offender got dressed and said “Where’s your money?” The victim said she would give it to him. She removed all of her money from her wallet, sixty dollars, and gave it to the offender. These are the facts which constitute count five on the indictment, the aggravated robbery.
The offender searched the bedroom looking in a bedside cabinet and looking in an empty wallet in the cabinet. He also repeatedly asked for the victim’s car keys and mobile phone. She told him she had neither. The victim was experiencing breathing difficulties at this stage. The offender went to the bathroom, the victim went to the lounge room and sat down to try and get her breath back. The offender came out of the bathroom into the lounge room and again asked the victim for her mobile phone and car keys and whether she had any beer in the fridge. The victim said she had none of these things.
The offender told the victim not to move and he went to the kitchen where he looked in the refrigerator and removed a bottle of sherry, a casserole dish containing an apricot chicken casserole and a block of cheese. He went to the dining room table, placed the items on the table, went back to the kitchen where he obtained a fork before returning to the dining room table where he sat down and ate some of the casserole. He asked if she had more beer and was told that she had some Marsala which the offender then also took from the refrigerator.
The offender then went to the telephone in the kitchen and tried to pull it out of the wall plug a number of times before using his teeth to sever the cord between the handpiece and the telephone body. He also asked the victim for the location of the nearest telephone. The victim told the offender to leave because her son would be home soon and the offender asked for her son’s car keys. The offender took the casserole, the two bottles of alcohol, the fork and left the premises via the same hole in the flyscreen door by which he had entered the premises.

7 Her Honour went on to record the process of investigation which led to the applicant’s arrest for these offences on 14 May 2003. He was then in custody in respect of unrelated offences, for which he had been arrested on 15 February 2003. Upon his arrest, he was conveyed to a police station in a caged police vehicle. When the vehicle arrived at the police station and the doors were opened, he jumped out and ran a short distance before police apprehended him. This gave rise to the charge of escaping from lawful custody on the Form 1.

Subjective case

8 The applicant was eighteen years old at the time of the offences and is now twenty-one. He has a bad criminal record for one so young, comprising Children’s Court and Local Court entries. One of his Children’s Court appearances was in June 2002, when he was placed on concurrent control orders for two counts of aggravated robbery. He was on parole in respect of those orders when he committed the present offences. In November 2002 he was sentenced in a Local Court to short fixed terms of imprisonment for assault and demanding property with menaces, those sentences expiring only ten days before the present offences.

9 As I have said, he had been arrested on 15 February 2003 for unrelated offences, including breaking, entering and stealing. In April 2003, in respect of those offences, he was sentenced to terms of imprisonment aggregating nine months, with a non-parole period of three months, to date from 15 February 2003. It was upon the expiration of that non-parole period on 14 May 2003 that he was arrested for the present matters. In the following month his parole was revoked and he became liable to serve the balance of the nine month term, expiring on 14 November 2003. It was on that date that her Honour directed the first of the present sentences to commence.

10 He was born in New Zealand, and migrated to this country with his family when he was fourteen years old. It seems that his upbringing in New Zealand was satisfactory. However, about two years after their arrival in Australia his older brother committed suicide. This had a deleterious effect upon his behaviour and that of his remaining siblings, and his parents effectively disowned them. These developments appear to have contributed to his offending behaviour, as well as his pattern of abuse of alcohol and of a variety of illicit drugs.

11 When he was seven years old he was sexually assaulted by an adult male who was a friend of the family. It was one incident only, involving touching in the genital region, and he was counselled by a psychologist for about eighteen months. Dr Bruce Westmore, a forensic psychiatrist who prepared reports for the sentence proceedings, thought that this incident must have had a significant impact upon him. However, the doctor concluded that the present sexual offences were “of an opportunistic type” and that “drugs and alcohol were also relevant.”

Sentencing judge’s findings

12 In evidence at the sentence proceedings, the applicant gave an account of the offences which her Honour considered to be sanitised and which, in large part, she rejected. However, she found that his intention when he broke into the victim’s premises was to steal and, like Dr Westmore, she concluded that the sexual assaults were opportunistic. She appears to have accepted that he was affected by alcohol, although not to the degree which he had claimed in evidence.

13 In the light of an eloquent victim impact statement, her Honour found that the offences had caused the elderly victim substantial emotional harm: s21A(2)(g) of the Crimes (Sentencing Procedure) Act. While acknowledging that the offences might not be “the worst kind imaginable”, she found that they fell into the worst category of offences of that kind. Although she initially made that observation about “the offences” generally, it appears from a later passage in her remarks that it might have been confined to the sexual assaults. Her Honour also found that, despite the applicant’s relative youth, the offences were not the product of immaturity and that considerations of general deterrence and the protection of the community had to play “a significant role” in sentencing.

14 Her Honour was not persuaded that he was remorseful, but she recognised the utilitarian value of his pleas of guilty by a reduction of sentence of twenty percent. She was pessimistic about his prospects of rehabilitation. She noted that, because of the nature of the offences, he had been on protection of one form or another while in custody.

The application

15 Mr Dhanji, for the applicant, argued the application on a number of grounds: that her Honour had erred in treating the applicant’s criminal record as an aggravating factor under s21A of the Crimes (Sentencing Procedure) Act, in failing to have regard to the effect of accumulation of the sentences in setting the non-parole period, and in finding that the offences fell into the worst category. A ground challenging her Honour’s assessment of the applicant’s credibility was abandoned at the hearing. It was also argued that the sentences, individually and in their total effect, are manifestly excessive.

16 I have concluded that there is substance in the ground concerning her Honour’s finding that the offences fell into the worst category. As I consider that the Court should intervene for that reason, I do not find it necessary to deal with the other grounds of the application. However, I should mention in passing the ground that her Honour wrongly treated the applicant’s criminal record as an aggravating factor under s21A of the Crimes (Sentencing Procedure) Act. In response to that ground the Crown prosecutor advanced an interpretation of s21A which calls into question a line of authority commencing with R v Johnson [2004] NSWCCA 76. On 6 June 2006, after judgment in this matter was reserved, a five judge bench heard argument about that matter in McNaughton v Regina, and judgment in that case is still reserved.

17 I turn, then, to her Honour’s finding that the offences, particularly the sexual assaults, fell into the worst category of offences of their kind. Normally, a judge characterises an offence as falling into the worst category when imposing the maximum sentence for that offence. Her Honour did not sentence the applicant to the maximum term for any of the offences. However, it does appear that her starting point for the offence of aggravated break and enter was the maximum of twenty years. No doubt, the sixteen year term which she imposed was the result of the twenty percent reduction she allowed for the pleas of guilty. Of course, in passing that sentence her Honour took into account the matters on the Form 1, which included a further offence of aggravated sexual assault.

18 The gravity of the offences committed against that unfortunate woman requires no emphasis. Moreover, they were perpetrated by a young man with an unfavourable criminal record, who was on parole in respect of other serious offences at the time. Notwithstanding those matters, I am persuaded that her Honour fell into error in characterising the offences as falling into the worst category.

19 As I have said, her Honour found that the sexual offences were opportunistic, rather than planned. As one would expect, the emotional impact of the incident upon the victim was severe. However, the indignities accompanying the sexual assaults, the applicant’s threats by word of mouth and by the presentation of the spanner, the deprivation of the victim’s liberty and the physical pain experienced by her fall short of much that this Court has had to consider, from time to time, in other cases. There are also bizarre features of the applicant’s behaviour, in particular, his boasting of his “wonderful cock” and his helping himself to a makeshift meal in the kitchen despite the victim’s warning that her son was due home, which raise a question about the extent of his insight into the criminality of his actions. However, this was not a matter explored in the psychiatric reports and little significance can be placed upon it.

20 As I have said, none of the charges was visited with the maximum sentence. Nevertheless, the sentences imposed on most of them, after allowance for the applicant’s pleas of guilty, disclose that her Honour misapprehended where they lay in the scale of objective criminality. While I have focused upon the sexual offences in dealing with this ground, this is equally true of the sentence in respect of the aggravated robbery. I would not disturb the sentence of four and a half years imprisonment on the third charge, the attempted aggravated sexual assault, but I am satisfied that the other sentences cannot stand.

21 Accordingly, this Court must re-sentence the applicant. The sentences must reflect the seriousness of the offences and the relevant aggravating features, while giving appropriate weight to his relative youth, his background and his protective custody. Like her Honour, I would recognise his pleas of guilty by a reduction of sentence of the order of twenty percent, and I would direct the first sentence to commence on 14 November 2003. I would pass partly cumulative sentences on the other charges, mindful of the principle of totality.

22 I referred at the beginning of these reasons to the standard non-parole periods for the offences of aggravated break and enter and aggravated sexual assault. I would adopt her Honour’s approach of passing fixed terms of imprisonment on all the charges except the aggravated break and enter. As to that charge, although the applicant pleaded guilty to it, it is appropriate to have regard to the five year standard non-parole period as a reference point or guide post, in accordance with the principles enunciated in R v Way (2004) 60 NSWLR 168 at [117] ff. In so doing, however, it is necessary to bear in mind that the offence created by s112 of the Crimes Act is one of breaking and entering premises and committing “any serious indictable offence” therein. The expression “serious indictable offence” embraces a wide variety of criminality, and the nature of the serious indictable offence alleged in a particular case must have a significant bearing upon the assessment of the gravity of an offence under the section. In all the circumstances, I am satisfied that a non-parole period in excess of five years is necessary to reflect the criminality of the applicant’s offence.

23 I would grant leave to appeal and allow the appeal. I would quash the sentences on all charges but the third, and re-sentence the applicant as follows:

On the fifth charge (aggravated robbery), imprisonment for three years from 14 November 2003;
On the second charge (aggravated sexual assault – penile penetration), imprisonment for seven years from 14 November 2004;
On the third charge (attempted aggravated sexual assault – fellatio), I would confirm the sentence passed by her Honour of imprisonment for four-and-a-half years from 14 November 2005;
On the fourth charge (aggravated sexual assault – cunnilingus), imprisonment for five years from 14 November 2006;
On the first charge (aggravated break and enter and commit aggravated sexual assault – digital penetration), taking into account the matters on the Form 1, imprisonment for ten years, with a non-parole period of six-and-a-half years, from 14 November 2007.

24 Because of the sentence passed on the first charge, I would decline to set non-parole periods in respect of the other sentences. I would depart from the statutory proportion in setting the non-parole period for the sentence on the first charge because that sentence is accumulated upon the other sentences. The result would be an overall sentence of imprisonment for fourteen years, with a non-parole period of ten-and-a-half years, dating from 14 November 2003. The applicant would be eligible for release on parole on 13 May 2014.

25 HALL J: I agree with the reasons of Hidden J and the orders proposed.

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11/08/2006 - suppress victim's identity - Paragraph(s) 6