Cole v R

[2010] NSWCCA 227

New South Wales
Court of Criminal Appeal

CITATION:	COLE v R [2010] NSWCCA 227 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25 August 2010
JUDGMENT DATE:	8 October 2010
JUDGMENT OF:	Basten JA at 1; Hall J at 28; Latham J at 39
DECISION:	1.Leave to appeal is granted. 2. The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - plea of guilty to an offence of aggravated (infliction of actual bodily harm) sexual intercourse without consent and an offence of detain for advantage - whether Judge failed to properly take into account the applicant's mental illness - whether Judge failed to properly consider the applicant's contrition - whether Judge erred in failure to find special circumstances - whether sentence for sexual assault offence manifestly excessive.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health (Criminal Procedure) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Hejazi v The Queen [2009] NSWCCA 282 Sendy v The Queen [2009] NSWCCA 299 Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149 Marinellis v Regina [2006] NSWCCA 307 Thomas (1992) A Crim R 269, 275-276 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Veen (No 1) v The Queen [1979] HCA 7; 143 CLR 458 Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465 R v Engert (1995) 84 A Crim R 67 R v Helmsley [2004] NSWCCA 228 R v Way [2004] NSWCCA 131 R v Pearce (NSW CCA, 1 November 1996, unreported); R v Letteri (NSW CCA, 18 March 1992, unreported) R v Benetiz [2006] NSWCCA 21 TC v R [2009] NSWCCA 296 R v Wright (1997) 93 A Crim R 48 R v Borkowski [2009] NSWCCA 102 Majid v R [2010] NSWCCA 121 R v Sims (1995) 83 A Crim R 1 R v Foxe (unreported 7 May 1997) R v Gower (1991) 56 A Crim R 115 R v Fidow [2004] NSWCCA 172 R v Oloitoa [2007] NSWCCA 177
PARTIES:	Andrew Robert COLE - (Applicant) Regina - (Respondent)
FILE NUMBER(S):	CCA 2009/8933
COUNSEL:	D Barrow - (Applicant) P Miller - (Respondent)
SOLICITORS:	Legal Aid Commission - (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/8933
LOWER COURT JUDICIAL OFFICER:	Berman SC DCJ

2009/8933

BASTEN JA
HALL J
LATHAM J

8 OCTOBER 2010

ANDREW ROBERT COLE v REGINA

Judgment

1 BASTEN JA : On the night of 30 July 2008, the applicant entered a house occupied by a woman (“the victim”) and her daughters ages 10 and seven years respectively. The door through which he entered was closed, with a sofa across it, but was not locked because the lock no longer operated. The reason he entered the house, which was accepted by the sentencing judge, was that he suffered from paranoid delusions and believed he was being followed by men he described in various ways as being “from the government”, as “the bosses” and as private investigators. He described frenetic travelling by train and bus around Sydney, trying to escape his pursuers.

2 In a lengthy interview with the police, he said that he had created “a bit of a racket” in entering the house and thought he had woken the occupants: Q54. He said that he was “freaking out” and that he had to “contain this situation because if they start you know jumping up, putting lights on, screaming, ringing police these people they’ll know me and they’ll know exactly where I am …”: Q56.

3 The events thereafter have been sufficiently explained by Latham J and need not be repeated. The applicant pleaded guilty to two offences:

(a) detain for advantage ( Crimes Act , s 86(1)), carrying a maximum penalty of 20 years imprisonment, and

(b) aggravated sexual intercourse without consent ( Crimes Act , s 61), also carrying a maximum penalty of 20 years imprisonment.

The factor of aggravation in respect of the latter charge was occasioning actual bodily harm to the victim by tying her wrists behind her back.

4 The applicant was sentenced to a fixed term of five years for the first offence, the sentence dating from 31 July 2008. On the second offence, he was sentenced to a non-parole period of 10 years with a balance of the term of the sentence of four years. The non-parole period was fixed to commence on 31 July 2010 thus being accumulated on the first sentence, by a period of two years. The effective term of mandatory custody was therefore 12 years. The overall period of imprisonment was 16 years.

5 There are a number of difficulties with the manner in which the sentencing exercise was carried out. First, there is a technical difficulty. The sentencing judge was required to sentence the applicant for each offence, as he did. However, in respect of the sexual assault for which he fixed a non-parole period and a balance of the term of the sentence, he was required, in the absence of “special circumstances”, to fix a balance of term which was not more than one-third of the non-parole period: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2). His Honour did not make such a finding; indeed, he concluded that there were “no special circumstances in this case”: judgment, p 8.

6 The Director conceded error, but submitted that it was an error which was beneficial to the applicant because, instead of a non-parole period which was at least 75% of the “head sentence”, the 10 year non-parole period was actually a lower figure. That, however, is to reverse the way in which the section is expressed to operate and assumes that the full sentence was correct and the error lay with the non-parole period.

7 It is likely, given the refusal to find special circumstances, that his Honour sentenced on the basis that the balance of the term on the sexual assault (four years) was one-third of the period of mandatory custody, once the accumulation of the second sentence on part of the first sentence was taken into account. However, that would also be an erroneous approach in law; s 44 operating in respect of a sentence for an offence, not a cumulative period of imprisonment: Hejazi v The Queen [2009] NSWCCA 282 at [18] (my judgment) and [35]-[36] (Howie J, Hislop J agreeing); Sendy v The Queen [2009] NSWCCA 299 at [37] (Fullerton J), [42] (McCallum J). If his Honour had wished to achieve that result, the fact of accumulation would have provided a basis for finding special circumstances, a course which could have been taken.

8 The Director submitted that, if error were found, this Court would nevertheless dismiss the appeal, on the basis that no less severe a sentence was warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). That submission will need to be addressed on its merits. However, s 6(3) applies to an appeal against “a sentence” and the assessment must be made of that sentence. It would be incorrect to apply that section on the basis that the overall period of imprisonment resulting from the accumulation of two sentences, was warranted in law: Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149 at [20]-[21]; Marinellis v Regina [2006] NSWCCA 307 at [66] (Adams J).

9 This latter point is of significance in this case. Although the notice of appeal, erroneously, identified the longest sentence as “16 years” and the non-parole period as “12 years”, and referred to the “total sentence” as manifestly excessive, there was, as Latham J notes, no challenge to the sentence for the first offence, nor (at least directly) the element of accumulation. Nor is there any prosecution appeal in relation to the sentence for the first offence of detaining for advantage.

10 A fixed term may be treated as equivalent to a non-parole period: Thomas (1992) A Crim R 269, 275-276 (Hunt CJ at CL). On this basis, the offence of detain for advantage was treated as warranting a penalty half that of the sexual assault.

11 That causes a difficulty when identifying the appropriate sentence in respect of the sexual assault. It is at least possible that elements which may have been legitimately taken into account as part of the offence of detain for advantage, which covered a period of hours, have been taken into account in respect of the sexual assault. However, there are matters which cannot readily be so treated. For example, the victim was first bound and blindfolded and sprayed with bleach in her own bedroom, while her elder daughter was required to lie face down on the bed beside her. This could have been treated as a serious aggravating circumstance in respect of the detention for advantage. However, the sexual assault was carried out in a different part of the house, the daughter having been left in the bedroom. There is no finding that the daughter witnessed, or was aware of, the sexual assault on her mother.

12 This Court will not readily interfere with the characterisation by the sentencing judge of the circumstances of an offence. However, here there is an element of uncertainty in the way in which his Honour characterised it, and on what basis. At one point he described the offence as “well towards the upper range”: judgment, p 5. Later, he characterised it as “at the high end of the range of objective seriousness”: at p 7. Nor is it clear how his Honour allocated aspects of the conduct of the applicant between the offences.

13 Although the fact that more serious examples of a particular offence can be imagined, or have been experienced, it does not follow, of course, that a sentence towards the maximum penalty may not be imposed. However, principles of proportionality require that where significantly more serious offences can occur, the seriousness of such conduct be reflected in a higher sentence than that which should be imposed for a less serious offence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ), [83] (McHugh J). In the present case, there were a number of features which suggested that the sexual assault was not a most serious offence of its kind.

14 First, both offences may be described as opportunistic, rather than planned. Although the applicant took significant steps (later abandoned) to conceal his identity and to remove traces of his DNA, he did not arrive equipped for such a task with relevant clothing or implements.

15 Secondly, in respect of the detention for advantage, the binding of the victim’s wrists which occasioned the actual bodily harm, appears to have been done in panic, on discovering her with her mobile phone after the applicant had left the room briefly. When she asked him to loosen the tight bonds, he did so and when unable to untie the knots, found scissors to cut the binding free.

16 Thirdly, in respect of the sexual assault, the offence lasted a matter of minutes.

17 Fourthly, his contrition was immediate and he expressed regret at what he had done whilst on the victim’s premises.

18 With one qualification, his Honour made no finding adverse to any of these propositions. Arguably, however, he gave little consideration to them, as potential aggravating circumstances which were absent on the facts, when assessing the seriousness of each offence. The qualification arises from the following statement (judgment, p 4):

“The complainant went straightaway to the police station and reported what had happened to her. The offender was arrested a couple of days later. He conducted a record of interview with the police. It is significant that there is a close match [between the account] of the events given by the complainant and the description of events given by the offender. The offender did tell the police that he was sorry for what he had done. There are indications also that during the course of the four hours, when the complainant engaged the offender in conversation, that he also then expressed his remorse for what he had done.”

19 A number of points arise from this passage. First, and least importantly, the record of interview with the police was conducted 24 hours after the offence, not “a couple of days later”. Secondly, his Honour did not seek to identify any significant element in respect of which the applicant’s description departed from that of the victim in a manner which could have indicated an attempt to diminish the significance of his misconduct. Thirdly, to say that there were “indications” that he had expressed remorse to the victim during his period in the house downplayed the undisputed facts. The complainant told the police that after the sexual assault, he had gone to the fridge and obtained beer for both of them and had sat down beside her on the couch and “appeared to calm down after that”: par 95. She continued (at par 99):

“He gave me the cigarette. While he was giving me the cigarette he starting [started] saying things and talking about what he [had] just done.
He said, ‘I can’t believe I just did that.’ ‘I didn’t mean to.’ ‘I don’t know what came over me.’ ‘I would never hurt your children. I’m not a paedophile.’”

20 So far as circumstances personal to the applicant were concerned, he had a long criminal record, which is referred to by Latham J. Significant weight must be given to that evidence, in the way that her Honour describes. However, the personal history of the applicant provides some explanation (though not of course justification) for his drug taking, psychosis and descent into criminality. The primary judge stated (judgment, p 5):

“The offender’s early history is recorded in a letter that I have received written by his sister. It was relatively unremarkable. True there were the usual problems that occur when parents separate acrimoniously, but things really began to fall apart as the offender’s sister said, when he was around 17 years of age. His criminal history is testament to what occurred thereafter.”

21 With respect, I see no justification for treating the letter so dismissively. There was no reason to doubt the factual assertions in it. His sister stated, amongst other things:

“I am 13 years older than my brother …. During my mother’s pregnancy with Andrew, my parents’ marriage was shaky and my mother had a nervous breakdown. Once Andrew was born, she totally disassociated from him. Then she left home suddenly when he was six years old. Andrew never heard from her again.
…
The relationship my father was in at the time [when Andrew was sent to boarding school] with a young woman was experiencing a rough patch and one day during school holidays when Andrew was nine years old, he came home to discover my dad’s girlfriend lying on the floor after attempting suicide. …
It wasn’t long after that when Andrew began experimenting with marijuana, and from there he progressed on to prescription medications like Rohypnol. His drug abuse was growing out of control. He was expelled from school…. [H]e befriended a boy called Tim. They became great mates. Tim would join Andrew at home for school holidays and vice versa. Everything seemed to go well for a time until Tim committed suicide. Andrew was again brought home to live. By this time, my father had married and moved to … Qld. During his time in Qld a friend of Andrew’s was killed in a motorbike accident. My father then moved to Sydney not long after.
Once Andrew arrived in Sydney his life really began to fall apart.”

22 Finally, it is necessary to refer to the reference made by the sentencing judge to the decisions of the High Court in Veen (No 1) v The Queen [1979] HCA 7; 143 CLR 458 and Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465.

23 As Latham J notes, the way in which his Honour took account of the need for protection of the community was not challenged. However, at least implicitly, the applicant did take issue with the assessment of the sentencing judge that “the prospect of his release to the community one day is decidedly uncomfortable”: judgment, p 8.

24 The applicant’s counsel noted that he is a forensic patient under the supervision of the Mental Health Review Tribunal. The submission noted that “[e]ven when his non-parole period has been served he will only be released if the MHRT determines that he can safely be conditionally released”: at par 60. This was presumably a reference to s 43 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The Director did not take issue with that statement. It may that, at some stage, it will be necessary to consider how the principles explained in Veen (No 2) should operate in the context of the current statutory regime for the control of forensic patients who are seen to be dangerous to the community.

25 Ultimately, the applicant’s complaint of a manifestly excessive sentence was based on the fact that, before allowing a discount of 25% for the early plea of guilty, his Honour must have used a starting point of 18 years 8 months (which, when reduced by 25%, gives the sentence period for the sexual assault offence of 14 years). That, it was submitted, was so close to the maximum that it allowed no room for a proper degree of proportionality with respect to an objectively more serious instance.

26 For reasons explained above, it is not entirely clear what circumstances may need to be discounted to test the validity of this starting point. However, if the offender had successfully concealed evidence of his offence and decamped without expressing remorse and had pleaded not guilty, a sentence of imprisonment of 18 years 8 months would, in my view, have been inappropriate, taking into account the factors set out above. There is no doubt that the offence was serious and that it took place in the victim’s family home; it required a lengthy custodial sentence. Accepting that the offence was above the mid-range, in the event of a conviction by a jury, a non-parole of 12 years with a balance of term of four years, would, in my view, have been a sentence within an appropriate range. (The absence of immediate contrition might have warranted a higher sentence, but not 18 years.) That would suggest a sentence in the present case, on a plea of guilty and with the element of immediate remorse, and a full confession to the police within 12 hours of the offence, as warranting a sentence of 12 years imprisonment, comprised of a non-parole period of nine years and an additional term of three years.

27 I would make the following orders:

(1) grant leave to appeal against the sentence on the offence of aggravated sexual intercourse without consent;

(2) set aside the sentence of 14 years imprisonment, with a non-parole period of 10 years;

(3) fix a non-parole period of nine years to date from 31 July 2010, and to expire on 30 July 2019, with a balance of the term of three years, to date from 31 July 2019 and to expire on 30 July 2022;

(4) otherwise dismiss the appeal.

28 HALL J : I agree with the reasons and order proposed by Latham J.

29 I wish only to add the following observations in relation to the issue raised in the submissions for the appellant to the effect that the derived starting point of the sentence in respect of the offence of aggravated sexual intercourse without consent (18 years and 8 months) allowed no room for a proper degree of proportionality with respect to an objectively more serious instance.

30 In his Honour’s judgment, Basten JA has proceeded with an acceptance of the proposition that the offence was above the mid-range. Additionally, I note that Latham J has observed that it was not contended on the hearing of this appeal that the finding with respect to the objective gravity of the sexual assault offence made by the sentencing judge was not open to him.

31 The sentencing judge, inter alia, took into account the applicant’s mental illness and its significance in assessing the objective seriousness of the offence, his contrition or remorse and his plea of guilty.

32 There was no direct challenge to his Honour’s ultimate finding, namely, that the offence was “… objectively at the high end of the range of objective seriousness for the reasons I have summarised earlier” (remarks on sentence, p.7).

33 It was of importance for the sentencing judge to place any ameliorating circumstances in the overall context of the objective criminality of the applicant’s conduct including statements made by him to the victim. All relevant matters were, in my opinion, considered by his Honour. The sentencing judge, in the course of his reasons, in particular, identified the following matters which he took into account when ultimately assessing the objective seriousness of the offence:-

(1) The applicant, having entered the home after midnight, initially threatened the victim in the presence of her daughter “Just keep quiet and you won’t get hurt” .

(2) In response to the victim’s statement that she was a widow, the applicant then responded by tying her up, covering her mouth with a gag and blindfolding her. The degree of terror that those actions would instil in a female victim was readily apparent.

(3) The applicant threatened the victim again, in particular, on this occasion by making reference to her children saying “Don’t be stupid. Don’t be a hero. You’ve got a young family you don’t want them to get hurt.”

(4) After the victim endeavoured to use her mobile phone, the applicant once more threatened her.

(5) The applicant thereupon proceeded to re-tie the victim’s hands even tighter, causing pain and soreness to her wrists, her hands being described by the victim as “going so blue that she thought they were going to fall off” . At that time, the victim was finding it very hard to breathe. After the applicant freed her hands, she remained blindfolded.

(6) The victim’s endeavour to persuade him that she would not call the police was met with his threatening statement that she would have to prove herself by giving him a “blow job” .

(7) When the victim asked the applicant not to do it, he responded with a further threat, again directed at her children stating, Well if you don’t, I will then do your children” . The sentencing judge correctly commented that it is hard to imagine the terror that the complainant must have felt on hearing that statement.

(8) The applicant then exerted force upon the victim by pushing her to her knees she then, as directed, performed fellatio on him.

34 The above circumstances were taken into account and were directly relevant to the sentencing judge’s conclusion (remarks on sentence, pp.4-5):-

“It is difficult to imagine a more serious offence. The gross violation of the complainant occurred in her home; a place where she was entitled to feel safe. As the offender knew, she had recently suffered the loss of her husband. There were children present and, indeed, the offender took advantage of that by threatening them with sexual assault in order to obtain the complainant’s co-operation. The complainant is a woman who was asleep in her own home and was very vulnerable. The offender used her in a degrading way and obtained what he wanted by the use of both force and threats. Objectively, this is an offence well towards the upper range.”

35 The sentencing judge was clearly mindful of and did have regard to the applicant’s expressions of remorse. Indeed, he noted that his expressions of remorse “began very early in the piece”.

36 The sentencing judge also took into account the medical evidence on the applicant’s mental illness. His Honour observed (remarks on sentence, p.6):-

“… A number of psychiatrists have seen him over the years and it is clear that the offender is mentally unwell. As I made clear. It was the offender’s paranoia, believing that he was being followed by those who would harm him, which led him to entering the complainant’s house in the first place. However, it is difficult to see any connection between the offender’s mental illness and his decision to force the complainant to perform fellatio upon him. There is no reason therefore to significantly moderate the sentence I will impose upon him for that offence.”

37 There was no submission made that his Honour’s conclusion in this latter respect was, in any way, flawed or erroneous.

38 I, consider that the sentencing judge had appropriate regard to all relevant matters bearing upon the objective seriousness of the offence. I, with respect, consider the sentence imposed by him was within the range of available sentences for the offence in question. The sentence in question has not, in my opinion, been shown to be manifestly excessive.

39 LATHAM J : The applicant seeks leave to appeal against a sentence imposed on 21 August 2009 by Berman SC DCJ (the Judge), following the applicant’s pleas of guilty to an offence of aggravated (infliction of actual bodily harm) sexual intercourse without consent, and to an offence of detain for advantage. The offences were committed on 30 July 2008. The former carries a maximum penalty of 20 years imprisonment and a standard non parole period of 10 years. The latter offence carries a maximum penalty of 14 years imprisonment.

40 The Judge imposed a non parole period of 10 years, with a balance of term of 4 years, on the sexual assault offence. The applicant received a fixed term of 5 years imprisonment for the detention offence, which was accumulated upon the sentence for the sexual assault offence to the extent of 2 years. The aggregate non parole period was thus 12 years, with a balance of term of 4 years.

41 The applicant does not challenge the sentence in respect of the detention offence, or the extent of the accumulation. Whilst the grounds of the appeal as filed assert that the aggregate sentence is manifestly excessive, it became clear on the hearing of the appeal that the real complaint was directed to the sentence for the sexual assault offence. Thus, the issue before the Court is the manifest excess of the sentence imposed in respect of that offence.

42 Apart from the ground of manifest excess, the applicant contends that there was error in failing to properly take into account the applicant’s mental illness, in failing to properly consider the applicant’s contrition and in failing to find special circumstances.

43 Both offences were committed on the one victim, a recently widowed 44 year old mother of two young children (aged 7 and 10) who were terrorised in their own home over the course of several hours. The applicant broke into the premises at 2:30am, under the delusion that he was being chased by people who wanted to kill him. The applicant’s mental illness provided the applicant with a defence to a charge corresponding to that conduct. However, the relevance of the applicant’s mental illness to the sexual assault offence is at the heart of this appeal. In order to appreciate the Judge’s assessment of the applicant’s criminality, it is necessary to set out the facts upon which that assessment was based in some detail.

The Offences

44 After entering the premises, the applicant went to the first floor and entered the children’s bedroom. The 10 year old woke up. The applicant asked where her parents were and the child took him to the victim’s bedroom.

45 The victim woke to the applicant saying, “Just keep quiet and you won’t get hurt”. The applicant was standing next to the victim’s daughter and holding the family puppy. The applicant told the child to lie face down on the bed, next to her mother and not to look at him.

46 The applicant asked the victim for money. The victim gave him $30 from her wallet, saying that was all she had. The applicant asked for credit cards or key cards. While the victim was looking in her bag for her cards, the applicant retrieved a scarf from the door and told the victim to lie down, with her hands behind her back. The applicant tied her hands together with the scarf, then used other scarves to tie her feet together, gag and blindfold her. The applicant said he would not hurt her, but warned her “Don’t be stupid, don’t be a hero, you’ve got a young family, you don’t want them to get hurt.” The applicant repeatedly told the young girl not to look at him.

47 The applicant left the bedroom to look for a torch, candles and bin bags in the kitchen. While he was out of the bedroom, the victim managed to free her hands and dial 000 on her mobile phone. The applicant came back into the room before the victim could complete the call. The applicant snatched the phone from her and demanded to know who she was ringing. He told the victim if the police came he would hold her daughter hostage. The applicant further threatened the victim that “if you do anything stupid I will pulverise you.” The applicant also threatened to burn down the house and have the victim killed.

48 The applicant re-tied the victim’s hands very tightly. The applicant asked her if she had any kitchen gloves. He left the bedroom but returned when the victim complained that her hands were hurting. After failing to loosen the scarf, the applicant retrieved a pair of scissors from the bathroom and cut the scarf binding her hands, saying “keep your hands where I can see them.” The bruising to the victim’s hands caused by the ligature constituted the aggravating circumstance for the purposes of the sexual assault charge.

49 The applicant then sprayed the victim with a bleach solution, telling her “it’s because of the DNA.” The victim requested a cigarette. The applicant guided her to the loungeroom, sat the victim on the lounge where she smoked the cigarette and asked her for the names and ages of her children. The victim asked the applicant to leave. He refused, saying there were “bad people” after him. The applicant then demanded “a blow job”. The victim said “No, please no.” The applicant replied, “Well if you don’t I will then do it to your children.”

50 The applicant obtained a towel from the bathroom, placed it on the floor, positioned the victim on her knees and exposed his erect penis. The applicant put the victim’s hand on his penis before pushing her head towards it and forcing her to perform fellatio (sexual intercourse without consent). The applicant ejaculated into her mouth and told her “don’t spill”. The victim was told to spit into a piece of material. The victim heard the rustle of a plastic bag. The applicant then placed the towel on the couch and sat beside the victim. He explained to her that the towel would prevent fibres being detected on the couch.

51 The applicant asked the victim about prescription drugs and alcohol. The applicant took two beers from the fridge and gave one to the victim. They each drank the beer and smoked a cigarette. The applicant expressed some regret for what he had just done, claiming “I don’t know what came over me.” He told the victim he would not hurt her children. The victim again asked the applicant to leave but he refused, claiming that the CIA or “big government people” were still after him.

52 Over the following two hours, the victim attempted to persuade the applicant that she would not call the police if he left. During this conversation, the applicant said “I’m not violent but I will be if I have to.” Only at this point did the applicant allow the victim to remove the blindfold. The applicant told the victim his age and that he would commit suicide rather than return to gaol. The applicant said that he had sprayed the house with bleach and that there was no point in contacting the police, because the investigation would be lengthy and inconvenient to the victim.

53 The applicant told the victim that he was on medication and had not slept for two days. He told her that he had broken into her house because people were chasing him. The victim attempted to calm the applicant down. The applicant said that he felt "terrible about what's happened. How could I do this to you and make you do that thing."

54 The conversation continued until dawn when the applicant returned the $30 he had taken from her. The applicant expressed some concern about the victim's children reporting the matter, so the applicant and the victim agreed to tell the children that the applicant was her boyfriend who had been "playing tricks on her". The victim went upstairs with the applicant’s permission to give her children this explanation. As she came downstairs she saw the applicant put a beer bottle in a plastic bag.

55 The victim, her children and the applicant went in the victim's car to Victoria Rd. When they reached Victoria Rd, the applicant said that he wanted to go to Gladesville. During the journey the applicant asked her if she would keep her promise not to report the matter. The victim replied "of course don't worry". The applicant directed her to an intersection where he left the vehicle. The victim did a U-turn and drove back along Victoria Road, stopping at the first available police station at Ryde. The victim immediately reported the assaults and was taken to Westmead Hospital for examination.

56 The applicant's fingerprints were identified on beer bottles at the victim's home and his DNA was detected in a quantity of semen. As a result of the description provided by the victim, the police arrested the applicant on 31 July 2008 in Kings cross. The applicant entered into a record of interview at the Kings Cross police station and made extensive admissions. The applicant said that he used the garbage bag, gloves and bleach so that he would not be forensically linked to the offence. He said that he became remorseful when speaking with the victim, so that he left behind the items he had collected whilst in the house.

57 The applicant explained to police that there were men, who possibly worked for the government and who were private investigators, trying to kill him. He had spent the previous day attempting to avoid these people and had broken into the victim's home as a result. The applicant acknowledged that he had blindfolded the victim in the hope that she would not be able to identify him and that he attempted to destroy any trace of himself within the premises. He said that he was on antipsychotic medication and was taking an antidepressant, although he had also consumed over a gram of cocaine.

The Assessment of Objective Gravity

58 The Judge found both offences to be “particularly serious” and described the facts as "chilling". Apart from these generic findings, the Judge made no specific finding in respect of the offence of detention for advantage. However, he did make a number of findings specifically in relation to the sexual assault offence.

59 Immediately after a recitation of the facts, the Judge said :-

It is difficult to imagine a more serious offence. This gross violation of the complainant occurred in her home, a place where she was entitled to feel safe. As the offender knew, she had recently suffered the loss of her husband. There were children present and indeed the offender took advantage of that by threatening them with sexual assault in order to obtain the complainants co-operation. The complainant is a woman who was asleep in her own home and was very vulnerable. The offender used her in a degrading way and obtained what he wanted by the use of both force and threats. Objectively, this is an offence well towards the upper range.

The references in this passage to the “gross violation of the complainant”, the threats delivered by the applicant to obtain her co-operation, and the use of the complainant “in a degrading way”, clearly relate to the sexual assault offence.

60 Later, in the context of considering a submission to the effect that the actual bodily harm was not as serious as many cases coming before the courts, the Judge said that was not in itself sufficient to demonstrate that "the aggravated sexual intercourse without consent offence is anything other than objectively at the high end of the range of objective seriousness for the reasons I have summarised earlier."

61 These remarks should be seen in the context of an acknowledgement by the applicant's legal representative below that the sexual assault offence fell at least "towards the midrange". That submission of itself recognized that the sexual assault offence potentially attracted the imposition of the standard non parole period, and that the standard non parole period would inevitably operate as a guide or benchmark in determining the structure of the sentence to be imposed for this offence.

62 Counsel for the applicant in this Court did not contend that the finding with respect to the objective gravity of the sexual assault offence was not open to the Judge. Rather, the submissions were focused upon the existence of reasons for a departure from the imposition of the standard non parole period in particular, and hence, a correspondingly lower head sentence. Two of those reasons correspond to the grounds of appeal relating to the applicant's mental illness and the evidence of the applicant’s contrition. The third reason cited for a departure from the standard non parole period, namely, the plea of guilty, may be briefly addressed.

63 The Judge dealt directly with the applicant’s plea of guilty at page 5 of the remarks on sentence. The Judge referred to the plea of guilty, the maximum penalty and the standard non parole period, before noting that the standard non parole period "is not of direct application, given the plea of guilty, but it remains as a guide post to the sentence I should impose in the present matter." This was a wholly unremarkable and correct observation. It remains to determine whether the Judge gave insufficient weight to the plea of guilty, in combination with the other features of the applicant’s case, with the result that a manifestly excessive sentence was imposed.

The Applicant’s Mental Illness.

64 The Judge dealt directly with this issue at page 6 of the remarks on sentence. He referred to the status of the applicant as a forensic patient. He observed that the applicant "is mentally unwell". He confirmed that "it was the offender's paranoia, believing that he was being followed by those who would harm him, which led him to entering the complainant's house in the first place." The Judge then stated "it is difficult to see any connection between the offender's mental illness and his decision to force the complainant to perform fellatio upon him. There is no reason therefore to significantly moderate the sentence I will impose upon him for that offence."

65 This last statement reflects what has long been regarded as the primary basis upon which a mental disorder may impact upon the moral culpability of an offender. Essentially, if there is a causal relationship between the mental disorder and the commission of the offence, in that the mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability, and thereby the objective gravity of the offence, may be correspondingly reduced : R v Engert (1995) 84 A Crim R 67 ; R v Helmsley [2004] NSWCCA 228 ; R v Way [2004] NSWCCA 131 at [86].

66 The evidence supporting the Judge’s finding in this respect is to be found in one of the psychiatric reports tendered on sentence. Seven reports in all were tendered, dating from 23 June 2003 up to 5 February 2009. The most recent report under the hand of Dr Furst conveniently summarises the applicant’s mental illness and its relevance to the sexual assault offence at p 10 :-

Mr Cole is a 39-year-old single male with a lengthy history of conduct problems, personality dysfunction and dependence on drugs of abuse, most notably stimulant drugs including both amphetamines and cocaine and heroine. His psychiatric history is characterised by psychotic breakdowns following periods of amphetamine abuse, and the symptoms he described in the weeks prior to the index offence before the court are similar to those he experienced in December 2002 when he was hospitalised at the Macquarie hospital and treated for a psychotic illness, most probably a drug induced psychosis. The resolution of his psychosis after his arrest in 2003 and again in 2008 without the need for prolonged treatment with antipsychotic medication makes it less likely that he is suffering from schizophrenia.

He reported using significant quantities of amphetamines and cocaine in the weeks leading up to the index offence, as recently as the date prior to the events in question, when he consumed about 1.5 g of cocaine. All of the evidence available suggests that he was acutely paranoid when he entered the victim's house, and that he was fleeing from people and cars he took to be following him and wishing him serious harm. His mental illness ought to be regarded as a mitigating factor in terms of Cole forcing entry into the victim's house.
He remained paranoid and was labile in mood at the time of the alleged sexual assault on [the victim]. However, it would appear that the sexual act committed was opportunistic rather than being driven by his paranoid delusions. He was angered by her call to the police, labile in his mood, and went to some lengths to conceal potential DNA evidence. In my opinion he was suffering from a mental disorder (drug induced psychosis) but was aware of the wrongfulness of his actions, which is not consistent with the McNaughton rules. (bold not in original)

67 Having regard to this opinion, with which Dr Westmore agreed in his reports of 29 July 2009 and 10 November 2008, the applicant’s contention that the Judge ought to have taken the applicant’s mental illness into account when determining the objective gravity of the offence lacks force. In any event, the Judge declined to significantly moderate the sentence for the sexual assault offence. There is no basis for assuming that the Judge did not have regard to it at all. The Judge recognised that the applicant’s mental illness was largely responsible for his presence in the house and that, but for that factor, the circumstances surrounding the commission of the sexual assault would not have arisen.

68 However, once inside the premises, the applicant embarked on a serious course of criminal conduct. The applicant systematically and methodically restrained the victim and over a number of hours implemented measures designed to prevent his identification and arrest. There was nothing about this conduct that was capable of lessening his culpability for the offence. In my view, no error has been demonstrated on this aspect of the appeal.

69 The applicant further submits that the Judge failed to have regard to his mental illness, independently of its causal connection to the commission of the sexual assault offence. It was submitted that the Judge placed undue emphasis upon the principle of general deterrence, despite the applicant’s mental illness rendering him an inappropriate vehicle for the application of that sentencing principle : R v Pearce (NSW CCA, 1 November 1996, unreported); Engert ; R v Letteri (NSW CCA, 18 March 1992, unreported); R v Benetiz [2006] NSWCCA 21 ; TC v R [2009] NSWCCA 296.

70 It is accepted that the Judge opened his remarks with the observation that “when offences as serious as this are brought to the court’s attention, it is incumbent upon the courts to impose a sentence which will deter the offender, which will deter others and mark in a very concrete way the wrongfulness of the offender’s conduct.” This passage refers to specific deterrence, general deterrence and denunciation. It does not suggest that general deterrence was given more prominence in the sentencing exercise than any other relevant consideration. The question remains whether general deterrence should have played any part in the Judge’s deliberations.

71 In R v Wright (1997) 93 A Crim R 48, Hunt CJ at CL (Gleeson CJ and Hidden J agreeing) said :-

It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.[2] In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied.[3] Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case.[4] The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances.[5] The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding.[6] The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case.[7] But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great.[8]

72 Thus, general deterrence was not wholly irrelevant, particularly when the nature of the applicant’s mental illness did not deprive him, in the circumstances of the sexual assault offence, of a “full understanding of the authority and requirements of the law”. The steps the applicant took to avoid identification and detection are particularly telling in this regard. I am not persuaded that the Judge erred on this account.

73 Even if the applicant’s argument in this respect was successful, there was a powerful countervailing consideration, namely, the danger the applicant continues to present to the community, sounding in specific deterrence. As Gleeson CJ noted in Engert, the significance of a mental illness to the sentencing exercise sometimes points in different directions. The circumstances of this case called for particular emphasis upon specific deterrence, as the following summary of the applicant’s criminal history makes clear.

74 The applicant was convicted in July 1990 of abduction, threatening to inflict actual bodily harm with intent to have sexual intercourse and four counts of sexual assault, for which he received an aggregate term of 10 years and 6 months imprisonment, the aggregate non parole period of which was reduced on appeal to allow for the applicant’s release on 6 December 1994. The applicant breached parole and a warrant was issued for his arrest in 1995. He was returned to his former custody in April of that year. He was convicted in 1995 of three offences of armed robbery and received concurrent non-parole periods which coincided with the balance of parole. He breached parole for the second time in 1999 following his release to parole in April of 1998. He served the balance of parole until April 2003. In 2003 his parole was again revoked and he was ordered to serve a further two years which expired in March 2005. In October 2006 he was convicted for escape custody and sentenced to a non parole period expiring on 20 October 2007, with a balance of term expiring on 20 May 2008. Thus, the instant offences were committed a little more than two months after the expiry of that parole.

75 Against this background, it is hardly surprising that the Judge stated that :-

The High Court in Veen (no. 1) v R (1979) 143 CLR 458 and Veen (no 2) v R (1988) 164 CLR 465 made it clear that the protection of the community is something which I am entitled to take into account. …. What I am not allowed to do, and what I will not do, is to allow the idea of preventive detention to lead to a sentence which is longer than would be objectively required. Within that constraint I have taken into account the likelihood that in the future offences such as this will be repeated. The offender's criminal history and the information I have about the offender suggests that the prospects of rehabilitation are not very good. Indeed the prospect of his release to the community one day is decidedly uncomfortable.

No issue is taken with these remarks.

The Applicant’s Contrition

76 On the subject of the applicant’s contrition, the Judge noted that the applicant's early plea of guilty was "consistent with his expressions of remorse which began very early in the piece". The Judge also accepted that the close correlation between the account of the events given by the victim and that given by the applicant in the course of his record of interview with police supported the applicant's expressions of remorse to the police and to the victim herself towards the end of the period of detention. The Judge allowed for a discount of 25% for the utilitarian value of the plea. The applicant’s argument on this ground is that it is apparent that “little or no” weight was attributed to the applicant’s very genuine contrition.

77 Given that it is not appropriate to allow for an additional specified discount in order to reflect a finding of contrition, and given that the application of the discount for the plea of guilty occurs after the appropriate sentence has been determined by a process of synthesis with respect to all other relevant factors (see R v Borkowski [2009] NSWCCA 102), the applicant seeks to support this ground of the appeal by calculating back from the Judge’s starting point for the sexual assault offence, before the application of the discount for the plea of guilty. That starting point of 18 years and 8 months was one year and 4 months below the statutory maximum.

78 Such a starting point is consistent with the Judge’s characterisation of the offence as “well towards the upper range” and at “the high end of the range” of objective seriousness. It is also consistent, in my view, with the attribution of some weight to the applicant’s contrition. The Judge’s express reference to it cannot be construed any other way. The extent to which the applicant’s contrition ameliorated the sentence otherwise appropriate to the objective gravity of the offence was a matter wholly within the Judge’s sentencing discretion.

79 Johnson J (Simpson and MacCallum JJ agreeing) said in Majid v R [2010] NSWCCA 121 at [40] :-

Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57].

80 I am not persuaded that the applicant has established error on this ground of the appeal.

The Failure to Find Special Circumstances

81 The Judge determined that there were no special circumstances and that "the period of eligibility for parole … is such that if there is to be rehabilitation, I have allowed a sufficient period for it to occur."

82 The applicant's submission on this ground is that his psychiatric condition provided a compelling basis for a finding of special circumstances, in that his tendency towards drug abuse and consequent mental illness had a nexus with his offending behaviour generally, and that the length of his incarceration throughout his adult life called for careful and long-term supervision in the community upon his release. It is apparent from the applicant’s argument in this regard that it was directed to the balance of the aggregate term, although as a practical matter the applicant’s complaint is that the Judge ought to have varied the statutory proportion on the sentence for the sexual assault offence to a greater extent than he did.

83 The applicant referred to decisions of this Court where special circumstances were found on these bases. R v Sims (1995) 83 A Crim R 1 was a decision of Bruce J and Grove J which went no further than determining that the presence of a psychiatric disorder and the need for treatment may amount to special circumstances, in the context of a failure to refer at all to the question of special circumstances. R v Foxe (unreported 7 May 1997), again a decision of a two judge bench, falls into the same category.

84 R v Gower (1991) 56 A Crim R 115 concerned a failure to consider the proportion between the aggregate non parole period and the aggregate additional term following the accumulation of a number of sentences, so that the offender was to serve 4 years imprisonment before release to parole for a period of no more than 4 months. None of these cases are authority for the proposition that the Judge was obliged to find special circumstances on the basis of the applicant’s mental illness or because of the applicant’s custodial history : see R v Fidow [2004] NSWCCA 172.

85 The principal purpose behind a variation to the statutory proportion in appropriate cases is to allow for a more lengthy period of supervision on parole than the statutory proportion would provide. In view of the Judge's unimpeached finding that the applicant's prospects of rehabilitation were not good, a period of 4 years on parole would be more than adequate to allow for the applicant's supervision in the community, particularly having regard to the fact that the applicant has generally re-offended within 12 months of his release to parole in the past.

86 One remaining factor deserves attention. The applicant is presently a forensic patient pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990 and subject to regular six monthly reviews by the Mental Health Review Tribunal. According to Dr Furst’s report of 5 February 2009, the criteria for release into the community for a forensic patient includes that the offender should not endanger any member of the public or himself and that a comprehensive treatment plan is put in place. Assuming that the applicant remains a forensic patient at the expiration of his aggregate non parole period, the Tribunal may form the view that the criteria for release are not satisfied. However that circumstance is largely speculative and cannot play any part in the exercise of the discretion to maintain or depart from the statutory proportion. To the extent that the applicant suggested otherwise, I would reject that submission.

Manifest Excess

87 In the absence of any specific error, is the sentence for the sexual assault offence manifestly excessive? I am not persuaded that it is. No doubt, it is a heavy sentence, but it is not inconsistent with the sentence imposed by this Court after a Crown appeal in R v Oloitoa [2007] NSWCCA 177. The offender in that case was a relatively young man (24) with a criminal history for offences of violence, robbery and dishonesty, who pleaded guilty to forcing the victim to perform an act of fellatio at knifepoint after forcing his way into the victim’s home in the early hours of the morning in the company of two other men. The victim had four young children who were present during the commission of the offence. Threats were uttered towards the victim and her children. The Court (McClellan CJ at CL, Hoeben and Hall JJ) held that a non parole period for the offence of aggravated sexual intercourse without consent of greater than 10 years was warranted.

88 The applicant’s failure to demonstrate that there was an error infecting the Judge’s sentencing discretion in imposing the standard non parole period largely disposes of the argument concerning manifest excess.

89 For all of the foregoing reasons, the applicant has failed to make good any ground of the appeal. The orders I propose are :-

1. Leave to appeal is granted.

2. The appeal is dismissed.

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11/11/2011 - Typographical error - Paragraph(s) 20 - "dissent" changed to "descent"