Currie v R

[2013] NSWCCA 267

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Currie v R [2013] NSWCCA 267
Hearing dates:	14 October 2013
Decision date:	12 November 2013
Before:	Hoeben CJ at CL at [1]; Johnson J at [2]; Bellew J at [100]
Decision:	Application for extension of time to appeal against sentence refused
Catchwords:	CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in August 2008 - Applicant convicted after trial of two counts of aggravated sexual intercourse without consent (s.61J Crimes Act 1900) and one count of indecent assault (s.61L Crimes Act 1900) - s.61J offences subject to a standard non-parole period - sole ground of appeal asserted Muldrock error - relevant considerations for grant of extension of time - Muldrock error conceded by Crown - whether lesser sentence warranted in law - extensive criminal history including prior sexual assault offences - offences committed in breach of conditional liberty - Applicant with deprived early background and later stable and supportive marriage - relevance of Applicant's mental condition to sentence - Applicant sentenced subsequently to entirely concurrent terms of imprisonment for unrelated offences - held no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	Abdul v R [2013] NSWCCA 247 ASP v R [2007] NSWSC 339 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Neal v The Queen [1982] HCA 55; 149 CLR 305 Porter v R [2008] NSWCCA 145 R v Currie (Court of Criminal Appeal, 31 October 1997) R v Fernando (1992) 76 A Crim R 58 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 R v Wright (1997) 93 A Crim R 48
Texts Cited:	---
Category:	Principal judgment
Parties:	Desmond Jeffrey Currie (Applicant) Regina (Respondent)
Representation:	Counsel: Ms RW Burgess (Applicant) Ms TL Smith (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2007/7834
Publication restriction:	---
Decision under appeal	Citation: --- Date of Decision: 2008-08-29 00:00:00 Before: His Honour Judge Black QC File Number(s): 2007/7834; 2007/10972

Judgment

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

1. JOHNSON J: The Applicant, Desmond Jeffrey Currie, seeks an extension of time to apply for leave to appeal against sentences imposed in the District Court on 29 August 2008. After trial, the Applicant was convicted and sentenced with respect to two counts of aggravated sexual intercourse without consent under s.61J Crimes Act 1900 and one count of indecent assault under s.61L Crimes Act 1900.

1. The maximum penalty under s.61J is imprisonment for 20 years with a standard non-parole period of 10 years. The maximum penalty for a s.61L offence is five years' imprisonment.

The Sentences

1. On each of the s.61J counts, the Applicant was sentenced to concurrent terms of imprisonment comprising a non-parole period of 10 years commencing on 13 November 2007 and expiring on 12 November 2017, with a balance of term of three years and four months commencing on 13 November 2017 and expiring on 12 March 2021.

1. On the s.61L count, the Applicant was sentenced to a fixed term of imprisonment of 18 months commencing on 13 November 2007 and expiring on 12 May 2009. This sentence was subsumed in the sentences for the s.61J offences.

The Present Application

1. On 19 February 2009, the Applicant lodged a Notice of Intention to Appeal against conviction and sentence to the Court of Criminal Appeal. The Applicant sought legal aid for the purpose of an appeal and, on 23 December 2009, he was informed that legal aid had been refused.

1. The Applicant did not proceed with an appeal and the Notice of Intention to Appeal lapsed.

1. On 5 October 2011, the High Court of Australia gave judgment in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 ("Muldrock"). Following that decision, the Applicant's case was reviewed (together with a number of others) by the Standard Non-Parole Period Review Team established within Legal Aid NSW. On 31 January 2013, the Applicant was informed that his case had been reviewed in light of the decision in Muldrock and he was invited to complete an application for legal aid for further work to be undertaken.

1. On 28 June 2013, a Notice of Application for Extension of Time for Notice of Application for Leave to Appeal was filed in the Court of Criminal Appeal, seeking an extension of time under s.10(1)(b) Criminal Appeal Act 1912.

1. The sole ground of appeal relied upon by the Applicant is in the following terms:

"His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] 244 CLR 120."

1. The concept of "Muldrock error" was considered in Abdul v R [2013] NSWCCA 247 at [19]-[28]. What is said there will assist an understanding of some of the issues raised in this application.

1. The principles to be applied on an application for extension of time such as this were considered by this Court in Abdul v R at [42]-[53]. Those principles will be applied in determining the present application for extension of time.

Muldrock Error is Conceded

1. The Crown concedes that the sentencing Judge approached the sentencing of the Applicant upon a basis which did not comply with the decision in Muldrock. This concession was appropriately made. His Honour found the s.61J offences were mid-range offences and stated that he saw "no reason why the standard non-parole period should not apply" (ROS7). Other findings were made with respect to sentence, including the Applicant's mental state, to which reference will be made. However, it is clear that Muldrock error is demonstrated in this case.

1. The Crown submitted that, in the circumstances of the case, the Court would conclude that no lesser sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912, so that the Court should refuse the Applicant an extension of time.

1. Given the Crown concession of Muldrock error, it is appropriate to set out objective and subjective matters which are relevant to the exercise of discretion to extend time, including evidence concerning the Applicant's custodial history since sentence was passed.

The Applicant's Offences

1. The Applicant was born in 1963. As will be seen, he has an extensive criminal history, including sexual assault offences committed in 1994, for which he was sentenced to terms of imprisonment.

1. In September 2005, the victim, a young woman from Estonia, travelled to Australia on a working holiday.

1. On 23 September 2005, the victim's 24th birthday, she travelled from Brisbane to spend a few days in Byron Bay. The victim booked into backpacker accommodation, bought a bottle of wine and was socialising with a number of persons.

1. The Applicant, then aged 42 years, joined the group and the conversation turned to the victim's intention to travel to Sydney to meet her partner. The Applicant indicated that he too was travelling that way to visit his grandmother. He offered the victim a lift for $60.00. The victim accepted.

1. The Applicant suggested that they leave immediately. He and the victim walked to a four-wheel drive vehicle parked in a nearby car park. The Applicant drove the victim to the backpacker accommodation, where she picked up her belongings and they set off on the journey from Byron Bay. It was night time. Having driven for about 40 minutes, the Applicant stopped at a lookout where they shared a joint.

1. The Applicant then drove to a remote property, assuring the victim that the route he was taking was a "faster way of getting there". The victim was affected by the cannabis she had consumed, but the Applicant appeared friendly and they chatted and laughed during the journey. However, when the Applicant drove to the remote property on the pretext of "getting more weed", the victim felt uncomfortable.

1. A house was located on the remote property to which the Applicant had driven. The house was clearly abandoned, and the victim noticed a makeshift table beside the house. She remained in the vehicle whilst the Applicant got out and walked around the house. When the Applicant returned to the vehicle, he said that he wanted to play his didgeridoo, which he did for a couple of minutes.

1. The Applicant then got out of the vehicle again, before returning and driving the vehicle a short distance before stopping. The Applicant said to the victim, "I want to make love to you". The victim replied, "No thanks, I'm not interested. Like I have a girlfriend of five years, you know like I've never cheated on her, I'm not going to cheat on her right now on my birthday of all the days in the year, like it's just - it's ridiculous".

1. The Applicant replied, "We can do this the easy way or we can do it the hard way". A struggle ensued as the victim attempted to get out of the vehicle. The Applicant had a knife in his right hand and he put it to the victim's neck. The knife was about 8-10 centimetres long, similar to a fishing knife. The victim said, "Please no, why are you doing this?" and the Applicant said, "You know how to play the game". The victim said, "Please don't hurt me". The Applicant said, "Do you want us to hurt you?".

1. The victim said to the Applicant, "I'll do whatever, just put away the knife". The Applicant appeared to relax and he put the knife away.

1. The Applicant exposed his penis and said, "I want you to give me a blow job". He forced the victim's head onto his groin and forced his penis into her mouth causing the victim to retch (first s.61J count). The victim told him that she did not want to do this.

1. The Applicant then told the victim to get out of the vehicle. He took her to the makeshift table, lifted her up and placed her on the table. The Applicant pulled up the victim's t-shirt and sucked her breasts (the s.61L count).

1. The Applicant pulled down the victim's pants and underwear, and placed his penis into her vagina. He pulled her from the table onto the ground and continued to have sexual intercourse with her until he ejaculated (second s.61J count).

1. The Applicant walked back to the vehicle. He told the victim that he had what he wanted from her and that he would now continue driving. The victim got back into the vehicle and they drove for some time, with the Applicant driving to another property to get some "weed", by which time the sun had risen. The Applicant appeared to speak with a man at this property for a short time and then returned to the vehicle and continued driving.

1. The victim noticed that they were passing through towns and she took the opportunity to get out at Macksville (some 298 kilometres from Byron Bay), having arrived there at about 8.00 am. The victim went to a pharmacist to buy the morning-after pill, bought a train ticket to Sydney, left a message on her partner's mobile telephone indicating when she expected to arrive in Sydney and had a shower. Upon arrival in Sydney, the matter was reported to police. A sexual assault examination of the victim was undertaken with samples taken for DNA analysis.

1. The Applicant was arrested on 16 February 2006 as his fingerprints were located on a motor vehicle which had been stolen at Chinderah at about midnight on 23 September 2005, and later recovered in Taree in October 2005. The Applicant was released on bail pending further enquiries.

1. In July 2006, police were notified that the Applicant's DNA profile matched the profile obtained from the samples taken from the victim of these sexual assaults. The police established a link between the stolen vehicle and the sexual assaults, in that certain features of the vehicle used by the perpetrator were described by the victim, including fishing rod holders and petrol tanks.

1. The Applicant was arrested in relation to these offences on 27 July 2006 and was granted conditional bail.

1. The Applicant was convicted of all offences following a trial before his Honour Judge Black QC and a jury at the Lismore District Court between 6 and 13 November 2007. The Applicant did not give evidence at the trial. It appears that the issue at trial was consent. He was remanded in custody on 13 November 2007 and has remained in custody since.

The Applicant's Criminal History and Subjective Circumstances

1. The Applicant has a lengthy criminal history commencing in 1976. The record includes:

(a)   eight counts of aggravated sexual intercourse without consent committed in 1994 (see below);

(b)   47 break and enter, stealing, receiving or other property-related crimes;

(c)   three offences involving assault;

(d)   41 driving or motor vehicle-related offences, including dangerous driving causing death for which a sentence of imprisonment was imposed in the Brisbane District Court in 1986;

(e)   eight drug-related offences.

1. At the time of the commission of the present offences, the Applicant was subject to conditional liberty, having been sentenced to a suspended term of imprisonment for 12 months at the Tweed Heads Local Court on 21 February 2005 for driving whilst disqualified.

1. It is appropriate to refer in a little detail to the sexual assault offences committed by the Applicant in 1994. Counsel for the Applicant before his Honour Judge Black QC in 2008 acknowledged the similarity between the two sets of offences.

1. The Applicant (then aged 31 years) entered the 19-year old victim's flat at Tweed Heads in the early hours of the morning of 14 January 1994. The Applicant maintained that he was there to meet an acquaintance of the victim. The Applicant and the victim smoked some cannabis. Soon after, the Applicant offered the victim money for sex but she declined. She told him to leave and opened the door for that purpose. The Applicant shut the door, turned off the lights and, when the victim tried to re-open the door, he grabbed a kitchen knife. He forced the victim into the bedroom with the knife at her throat and told her not to make any noise. Despite the victim's pleas to leave her alone, the Applicant repeatedly assaulted her sexually by way of penile vaginal and anal intercourse, digital anal penetration and fellatio. The Applicant then fell asleep and the victim fled in a distressed state and made immediate complaint to a neighbour.

1. The Applicant was sentenced on 16 March 1995 to a total effective sentence of seven years' imprisonment, comprising a non-parole period of four years and an additional term of three years.

1. An appeal against conviction and sentence was dismissed: R v Currie (Court of Criminal Appeal, 31 October 1997). In the course of dismissing the appeal against conviction, Smart J (Hunt CJ at CL and Bruce J agreeing) observed that the Applicant "faced a formidable Crown case" and his "explanations were not easy to accept". In rejecting a ground asserting that the verdicts were unsafe and unsatisfactory, Smart J said:

"From my earlier summary of the evidence it is apparent that this ground is without merit. The complainant's evidence was cogent, she fled as soon as she could, she was distressed, she made a prompt complaint and the appellant was found by 3 men naked on her bed shortly thereafter. He initially denied intercourse. Subsequently, he said that there had been consensual intercourse. The appellant did not give evidence and was unable to explain satisfactorily the objective facts and some of his earlier statements to the police. He proffered an explanation as to why he denied having sexual intercourse."

1. His Honour said with respect to the sentence appeal:

"The offence was a serious one involving uninvited entry to the complainant's home in the early hours of the morning, threatening her with a knife and raping her. The judge said, correctly, that it was difficult to find any mitigating features in the objective facts. The judge found that alcohol and smoking marijuana were significant features of the entire incident. The judge accepted that the offence was one which was out of character for him. The appellant's record does not entitle him to leniency.

The judge had regard, amongst other things to the appellant's deprived background, the attempts which he had made to overcome this, his musical gifts which may lead to a musical career and his strong ties with his wife and family. The judge was concerned that a lengthy period in gaol would disrupt these. The judge also had regard to the special factors which affect the sentencing of Aboriginal offenders. After a thoughtful review of the subjective features the judge correctly felt constrained by the gravity of the offence.

The sentence is not manifestly excessive. No basis exists for interfering with the sentence."

1. The Applicant's wife and brother gave evidence at the sentencing hearing in 2008. Nathan Moran, the Applicant's brother, gave unchallenged evidence concerning the Applicant's unhappy and dysfunctional background. The Applicant's grandmother was one of 16 siblings from the South-West Rocks Aboriginal Reserve, all of whom were removed from home and placed in institutions. The Applicant's mother was also taken into care at the Cootamundra Girls' Home, but escaped when she was 11 years of age and returned to the north coast. At the age of 14 years, the Applicant's mother was sexually assaulted by Kenneth Currie, the Applicant's father. She was aged 15 years and one month when the Applicant was born. Mr Moran testified that violence was an everyday occurrence in their community and that there was a lot of violence during the Applicant's early years. The Applicant's mother later moved to Sydney with the Applicant, however, his father forcibly removed him and his mother did not have further contact for many years. The Applicant was cared for by members of his father's extended family until he became a ward of the State at the age of eight or nine years.

1. The Applicant's wife, Deidre Currie, met the Applicant in 1990 and they married in 1992. She came from a stable background. They had four children, aged 16, 15 and eight-year old twins (as at August 2008). Mr Moran testified that Ms Currie had been a positive influence on the Applicant's life.

1. Ms Currie testified that the Applicant had been diagnosed for the first time with bipolar disorder in July 2004 and was prescribed Lithium and Zyprexa. Despite Ms Currie urging the Applicant to take his medication, he had ceased taking it in August 2005. At the time of these offences, the Applicant was apparently not residing with his wife.

1. A report of Dr Bruce Westmore dated 13 August 2008 was tendered at the sentencing hearing. Dr Westmore referred to competing features of the evidence concerning the Applicant's mental state. On the one hand, Dr Westmore pointed to the victim's account of the Applicant's friendly conversation with no hint of disordered thinking or conduct. On the other hand, Dr Westmore pointed to evidence of the diagnosis of mental disorder. He expressed the view, on the balance of probabilities, that the Applicant was suffering from an early relapse of his mental illness at that time and that the mental illness was present, to some degree, when the offences were committed on 24 September 2005.

1. However, Dr Westmore went on to observe:

"I do note the existence of a previous sexual offence, which I am presuming at this time occurred in the absence of a hypomanic episode. If that is the case, then it reflects longer standing behavioural problems of a sexual offending type and those problems are likely to be multidetermined in their aetiology, including the presence of aggressive sexual urges and his inability to control them and issues arising from his personality."

1. Dr Westmore observed further:

"Mr Currie has in the past demonstrated dangerous behaviour as reflected in his criminal history and the matters now before the court. He has had problems in the past with insight and compliance and while in a manic state, his risks to the community will increase."

1. Dr Westmore provided a provisional diagnosis of schizoaffective disorder with a likelihood, as well, that he suffered from an antisocial personality disorder.

Remarks on Sentence

1. Although Muldrock error is conceded, it remains important to refer to aspects of the remarks on sentence. The sentencing Judge delivered ex tempore remarks on sentence immediately after the sentencing hearing on 29 August 2008.

1. As Spigelman CJ observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 577 [48], the conditions under which District Court Judges give such reasons "are not such as to permit their remarks to be parsed and analysed". In R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at 180-181 [34], with the concurrence of McClellan CJ at CL and Hammerschlag J, I observed:

"... it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57])."

1. It is important to keep these statements in mind, in particular, when considering submissions that his Honour did not refer in the remarks to certain matters which had been the subject of evidence and submissions at the sentencing hearing.

1. The sentencing Judge adverted to the facts of the offence, noting that the offences were more than opportunistic because they "involved inveigling [the victim] into a vehicle and driving off to a remote area" (ROS2).

1. His Honour referred to the victim impact statement read in the sentencing proceedings, noting that the victim "was a woman of considerable commonsense and ... strength" who had taken the "very courageous course" of not resisting when the knife threat was made. His Honour noted the deleterious consequences of the offences committed against the victim (ROS3-4).

1. His Honour observed that the main aspect that had occupied oral addresses was the relevance of mental illness on sentence. Reference was made to the evidence of the Applicant's wife, which his Honour accepted. The sentencing Judge referred to Dr Westmore's report and his opinion that it was likely that the Applicant's mental illness "was present to some degree" at the time of the offences. His Honour continued (ROS6):

"The important words which I am quite sure Dr Westmore chose with care are 'to some degree'. I take the view that one cannot ignore what happened in 1994 and while the illness may have some relevance to what happened in September 2005 it does not answer the entire situation and I cannot on this evidence be satisfied that the evidence [sic] was the trigger or cause of what happened. I think it is a relevant consideration."

1. The sentencing Judge then turned to the significance of the Applicant choosing not to take his medication. His Honour said (ROS6):

"He had been aware, although his wife, perhaps somewhat loyally says that as far as she is concerned he may not fully have appreciated objectively what was wrong with him, he knew he had to take medication, he chose not to and it seems to me that he must therefore accept the responsibility for being visited with the consequences. If that is a somewhat narrow view, nevertheless I must also take into account that this is a man who will not or did not on this occasion and who is to say it may not happen again, did not take his appropriate medication, which he knew he had to take and it isn't as if this is something that was undiscovered at the time. So at the end of the day for the reasons I have attempted to enumerate while I accept there may be the presence of a mental illness to some degree, I do not see it affecting one way or the other the overall assessment of this case. I do not see it as being of a benefit to the offender, I do take it into the account when assessing the protection of the public here in arriving at my overall assessment of where this offence lies."

1. His Honour adverted to the Applicant's criminal history, noting the sexual assault offences in 1994.

1. The sentencing Judge determined to make all sentences entirely concurrent as "they were all part and parcel of the same activity" (ROS7). His Honour then proceeded to pass the sentences presently under challenge.

Further Sentences Imposed in October 2008

1. After being sentenced for the present offences on 29 August 2008, the Applicant was sentenced on 16 October 2008 at the Port Macquarie District Court for two unrelated offences of aggravated break and enter and commit serious indictable offence.

1. For these offences, the Applicant was sentenced to an effective non-parole period of three years and three months commencing on 16 October 2008 and expiring on 15 January 2012, with a balance of term of nine months commencing on 16 January 2012 and expiring on 15 October 2012.

1. It will be observed that these sentences were entirely subsumed by the sentences imposed for the present offences. There was no additional penalty for these offences.

Submissions on the Application

1. Detailed written submissions were made by the parties, supplemented by oral submissions at the hearing. Brief reference will be made to the submissions.

Submissions for the Applicant

1. In light of the conceded Muldrock error, the Applicant submitted that lesser sentences are warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912. Affidavits of the Applicant and the Applicant's solicitor were read in support of the application.

1. It was submitted that this Court should reach the conclusion that lesser sentences are warranted in law, in particular, by reference to:

(a)   the correct approach to the standard non-parole periods in accordance with Muldrock;

(b)   the giving of full weight to the Applicant's deprived background in accordance with the principles in Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 at 1032 [44];

(c)   the giving of appropriate weight to the Applicant's mental illness in accordance with the principles in Bugmy v The Queen at 1033 [47]-[48];

(d)   the progress made by the Applicant in prison, including evidence with respect to his mental illness and his willingness to undertake a sex offender's program;

(e) statistics concerning sentences imposed for s.61J Crimes Act 1900 offences before and after the decision in Muldrock, and other sentencing decisions for s.61J offences.

1. Although it was accepted that any resentencing of the Applicant may take into account the later sentences passed in October 2008, with some accumulation being appropriate, it was submitted that this Court should intervene and impose sentences which ought be shorter than those passed at first instance.

Submissions of the Crown

1. The Crown submitted that, after applying relevant principles, no lesser sentences are warranted in the Applicant's case so that the application for an extension of time ought be refused.

1. The Crown submitted that this conclusion may be reached after applying the principles in Muldrock and Bugmy v The Queen and other applicable principles.

1. It was submitted that particular care is required concerning submissions made by reference to statistics and other sentencing decisions.

1. The Crown submitted, as well, that entirely concurrent sentences had been passed for the s.61J offences. Even if some alteration to the sentence was warranted, an appropriate level of accumulation would result in sentences of no lesser duration.

1. The Crown submitted that the evidence concerning the Applicant's progress in custody between 2008 and 2013 indicated that his compliance with medication remained problematic, with this aspect bearing upon his prospect of reoffending and the protection of the community.

1. It was submitted that the existence and length of the October 2008 sentences was a further reason for refusal of an extension of time.

Determination

1. It is appropriate for the Court to consider the merits of the application for the purpose of determining whether an extension of time should be granted in this case. A foundation for an extension of time, and intervention by the Court, may be demonstrated if the Court forms the view that substantial injustice would result if the application for extension of time is refused.

1. The Court is entitled, in accordance with the principles in Douar v R [2005] NSWCCA 455; 159 A Crim R 154 and Baxter v R [2007] NSWCCA 237; 173 A Crim R 284, to have regard to post-sentence conduct and the position of the Applicant at the time when the application is being determined. Accordingly, the Applicant relies upon evidence concerning events in his life and in his custodial setting since sentence was imposed. However, post-sentence events which operate adversely to the Applicant may also be taken into account: Douar v R at 178-179 [129]-[131].

1. In determining this application, it is necessary to have regard to the objective gravity of the offences, the subjective circumstances of the Applicant, the need for specific and general deterrence (which remain substantial, even making due allowance for Dr Westmore's report) and the evidence concerning the Applicant's mental health in custody. It is necessary, as well, to have regard to the principles of accumulation, concurrency and totality.

1. The present offences were of considerable objective gravity. The Applicant "inveigled" the victim, a younger woman whom he had just met, into travelling with him in a motor vehicle to a remote area. Although it may be accepted that the Applicant's judgment was affected to some extent by the onset of a mental illness, the condition did not impact upon his capacity to converse coherently and apparently reasonably with the victim and to drive a motor vehicle long distances for the purposes of conveying the victim to and from the scene of the sexual assaults.

1. It must also be kept in mind that the Applicant's very supportive wife had urged him to take his medication, and that the Applicant was well aware that he should do so, and of the deleterious consequences if he did not. Consideration of this issue in R v Wright (1997) 93 A Crim R 48 at 51-52 has direct application to these circumstances.

1. The Applicant took the victim to a remote location, a no doubt frightening scenario, where he threatened her at knifepoint and then sexually assaulted her in different ways. The fact that the Applicant drove the victim back into town, and did not abandon her at the remote location, provides limited assistance only on the question of sentence.

1. As was his right, the Applicant went to trial and was convicted. He was not entitled to any discount which would have applied if he had pleaded guilty.

1. There was, and continues to be, no expression by the Applicant of contrition or remorse for his grave offences against the victim.

1. The Applicant's offences were committed whilst he was subject to conditional liberty. It does not matter that the suspended sentence applicable at the time was for an offence of driving whilst disqualified, an offence of a different character to the present offences. The present offences were committed by the Applicant at a time when he was subject to a court order requiring good behaviour on his part and his offences constituted grave breaches of his conditional liberty: Porter v R [2008] NSWCCA 145 at [86].

1. Although the sentencing Judge did not refer to the Applicant's deprived background in his remarks on sentence, written submissions had been made (by the Crown) by reference to Neal v The Queen [1982] HCA 55; 149 CLR 305 at 326 and R v Fernando (1992) 76 A Crim R 58, and his Honour had heard evidence from the Applicant's brother and wife. It should not be concluded that his Honour disregarded this evidence at the time of delivering his ex tempore judgment.

1. In any event, the Applicant is entitled to have full weight accorded as a result of his deprived background: Bugmy v The Queen at 1032 [44]. This is one of several factors to be taken into account in considering the circumstances of the Applicant and of his offences. An additional factor to be kept in mind in this case is the substantial evidence concerning the stable environment in which the Applicant had lived since the early 1990s with his wife, who provided significant assistance to him in the community. This is not a case of ongoing and continuous disadvantage and social disorder as may be seen in other cases of Aboriginal offenders.

1. The Applicant's position in this respect was referred to by Smart J in the 1997 judgment of the Court of Criminal Appeal referred to earlier (at [41]). The 1994 sexual assaults were committed at a time when the Applicant had these stable influences in his life. He committed the 2005 offences whilst still having the benefit of stable family support.

1. In giving full weight to the Applicant's disadvantaged background, it remains necessary to take proper account, as well, of his long-standing criminal history for a variety of offences. In particular, the sexual assault offences committed in 1994, again involving a victim who was a stranger assaulted at knifepoint, remain significant matters to be taken into account on sentence. As the sentencing Judge in this case observed, the Applicant was not suffering from any mental condition at that time.

1. Proper regard should be had to the Applicant's mental health issues in accordance with Bugmy v The Queen at 1033 [47]-[48], in light of the sentencing Judge's findings on this issue which are, in my view, clearly correct.

1. The total effective sentence imposed upon the Applicant was a non-parole period of 10 years commencing on 13 November 2007 and expiring on 12 November 2017, with an additional term of three years and four months commencing on 13 November 2017 and expiring on 12 March 2021.

1. The total effective sentence is a substantial one. However, the Applicant's crimes were of considerable gravity. The conflicting purposes of punishment point to the need for substantial sentences in this case, bearing in mind, amongst other things, the need to protect the community: Bugmy v The Queen at 1032 [44].

1. The evidence concerning the Applicant's progress in custody and his experiences, including family bereavements, is relevant to the application.

1. In a manner similar to a life sentence redetermination application, the Court has (to an extent) the advantage of hindsight when approaching the question of sentence: ASP v R [2007] NSWSC 339 at [273]. However, this evidence does not operate entirely in the Applicant's favour. There have been occasions in 2008, 2011 and September 2013 when he has not been medication compliant, a scenario which existed in 2005 when these offences were committed. Although some progress has been made, concern remains with respect to the risk of reoffending and protection of the community. The Applicant continues to lack insight into his sexual offending conduct, which has seen grave crimes of this type committed against separate victims in 1994 and 2005. The Applicant has expressed willingness to undertake a sex offender's program in custody. It is to be hoped that he is given this opportunity in the balance of his non-parole period.

1. The Applicant's reliance upon sentencing statistics and reference to other sentencing decisions is of very limited assistance: Abdul v R at [66]-[71].

1. Utilising the maximum penalty and the standard non-parole period as guideposts, in accordance with the principles in Muldrock, and having regard to all matters relevant to the question of sentence, a conclusion should not be reached that a lesser period of imprisonment ought be imposed upon the Applicant for these crimes.

1. There is force in the Crown submission that some measure of accumulation was appropriate as between the two s.61J offences. The offences were different in nature, committed in different locations near the abandoned house. The first s.61J offence caused the victim to retch, before she was subjected to the separate act of indignity giving rise to the second s.61J offence. Even if some reduction of the s.61J sentences was considered appropriate, the process of accumulation would see no lesser total effective sentence being imposed.

1. There is a further aspect of the Applicant's case which operates against him on this application. Reference has already been made to the sentences of imprisonment imposed at the Port Macquarie District Court on 16 October 2008, being entirely concurrent sentences of imprisonment for unrelated offences.

1. In approaching the question of sentence at this time, including the question whether substantial injustice would flow if this Court declined to extend time, it is appropriate to take into account the lengthy sentences of imprisonment which the Applicant has served for entirely unrelated offences, whilst at the same time serving the present sentences.

1. If the Applicant had been sentenced for these other matters at the same time as the present sexual assault offences, it would have been inevitable, in accordance with relevant principles, that a significant measure of accumulation would have resulted. It appears from the transcript of sentencing proceedings that the Applicant considered joining up the Port Macquarie matters so that he could be sentenced at the one time, but elected not to do so (T6, 1 May 2008; T12, 29 August 2008).

1. This Court should approach the matter upon the basis that, should an extension of time be granted and this Court proceed to resentencing, a significant measure of accumulation would be necessary to give effect to sentences for the present offences, in addition to separate sentences for unrelated offences committed by the Applicant.

1. In circumstances where the primary question is whether an extension of time ought be granted, with attention being given to the question whether substantial injustice would result if that did not occur, then this additional circumstance operates significantly and adversely to the Applicant.

Conclusion

1. The present application was filed four years and 10 months after sentence was passed on 29 August 2008. The sole ground of appeal relied upon is the Muldrock ground. The Applicant had initiated appellate action after sentence in 2008, but had not proceeded with it in circumstances where legal aid was refused. The present application may be appropriately characterised as one based solely upon the change in law arising from Muldrock.

1. An examination of the sentences imposed, and consideration of those sentences by reference to correct legal principles and the facts of the case, together with the interests of the community and the victim, leads to the conclusion that the discretion to grant an extension of time to appeal should not be exercised in this case. If an extension of time had been granted, a conclusion would have been reached that no lesser sentences were warranted for the purpose of s.6(3) Criminal Appeal Act 1912.

1. I propose that the Court refuse an extension of time to seek leave to appeal against sentence under s.10(1)(b) Criminal Appeal Act 1912.

1. BELLEW J: I agree with Johnson J.

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Amendments

20 November 2013 - Correction of party name

Amended paragraphs: Coverpage

Decision last updated: 20 November 2013