Dean v The Queen

[2006] NSWCCA 341

Reported Decision: 166 A Crim R 341

New South Wales

Court of Criminal Appeal

CITATION:	Dean v R [2006] NSWCCA 341
HEARING DATE(S):	10 October 2006
JUDGMENT DATE:	26 October 2006
JUDGMENT OF:	Tobias JA at 1; Grove J at 74; Bell J at 83
DECISION:	(a) Appeal against conviction dismissed; (b) Leave to appeal against sentence granted and appeal allowed in part; (c) The sentence imposed on the appellant by his Honour Judge Finnane on 29 July 2005 be quashed; (d) For the offence of sexual intercourse without consent contrary to s61I of the Crimes Act (NSW) 1900 committed on 25 September 2004, the appellant be sentenced to imprisonment for a non parole period of seven years to commence on 27 February 2005 and expire on 26 February 2012, with a balance of the term of the sentence of two years and four months to commence on 27 February 2012 and expire on 26 June 2014. The earliest date the appellant will be eligible for release is 28 February 2012
CATCHWORDS:	CRIMINAL LAW – sexual assault – appeal against conviction – appeal against sentence – directions to jury – whether misdirection – onus of proof – whether onus reversed – standard of proof – meaning of proof beyond reasonable doubt – whether sentence excessive
LEGISLATION CITED:	Crimes Act 1900, s61I Crimes (Sentencing Procedure) Act 1999, ss 44, 54A, 54B, 54D; Pt 4 Div 1A Criminal Appeal Act 1912, s 6(3)
CASES CITED:	R v Way (2004) 60 NSWLR 168 Ryan v The Queen (2001) 206 CLR 267 Siganto v the Queen (1998) 194 CLR 656 Thomas v The Queen (1960) 102 CLR 584
PARTIES:	Phillip John Dean Regina
FILE NUMBER(S):	CCA 2006/1442
COUNSEL:	A: Mark Dennis R: Virginia Lydiard
SOLICITORS:	A: Steve O'Connor (LAC) R: S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/61/005
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	29 July 2005

2006/1442 CCAP

TOBIAS JA
GROVE J
BELL J

Thursday 26 October 2006

PHILLIP JOHN DEAN v REGINA

Judgment

1 TOBIAS JA: On 11 April 2005 the appellant was arraigned in the District Court at Orange before his Honour Judge Finnane QC in respect of the following charge preferred pursuant to s61I of the Crimes Act 1900 (NSW):

“That on 25 September 2004 at Orange in the State of New South Wales [the appellant] did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting.”

The appellant pleaded not guilty to the charge and the trial before his Honour and a jury commenced that day.

2 The trial continued until 13 April 2005 when the jury found the appellant guilty as charged. On 29 July 2005 the trial judge sentenced the appellant to imprisonment for a non-parole period of seven years commencing on 13 April 2005 and terminating on 12 April 2012 and to an additional term of three years commencing on 13 April 2012 and terminating on 12 April 2015 – a total term of 10 years.

3 The appellant appeals against his conviction on the charge in question and, if unsuccessful on that appeal, seeks the Court’s leave to appeal against the sentence imposed by the trial judge.

The relevant facts

4 The relevant facts were summarised by the trial judge in his Remarks on Sentence which I adopt with minor amendments. The complainant was the daughter of a woman with whom the appellant had been living for some time in a de facto relationship. The offence occurred on 25 September 2004 at about 4.00 am in a bedroom in her mother’s flat. At the time the appellant was 44 years old and the complainant 24 years old. The complainant had gone out to a hotel the night before with her mother and had then gone on to meet friends. She arrived back at her mother’s flat about 2.00 am.

5 The appellant knew that the complainant was sleeping in the second bedroom of the flat as he had assisted her mother in preparing the bedroom for her daughter’s stay. He also knew that the complainant had been out drinking the night before and into the early hours of the following morning. On the evening in question the appellant went to sleep with the complainant’s mother in the main bedroom, although he had agreed (at her insistence) to leave the flat the following day as their relationship had, apparently, foundered.

6 When the complainant arrived home at about 2.00 am, she removed all her clothing except for her underpants, put on a shirt and the collapsed face-down onto the bed in the second bedroom. She had consumed a large amount of alcohol and was affected by it to a substantial degree. She was also very tired and, consequently, went straight to sleep.

7 At approximately 4.00 am the complainant (to whom I shall refer as “XX”, where necessary in this paragraph) awoke when she felt a penis penetrating her vagina from behind and moving in and out. This caused her discomfort since her vaginal area was dry and unlubricated. She then moved her arm around her body, turned and saw the appellant who said to her “XX, it’s alright”. The complainant emitted what she described in evidence as a “primal kind of growl” and pushed herself upright. Although disorientated, she got up off the bed, put on some clothes and ran out of the flat, where she hailed and caught a taxi to her usual place of residence. She shared this residence with a male, to whom I shall refer as “YY”. YY and XX had previously been in a relationship, but they were no longer together and were staying in separate rooms. When she arrived at that residence she was very upset and made an immediate complaint of rape to YY.

8 Meanwhile, the complainant’s mother had become aware of the front door to her flat closing and came out of the main bedroom. She saw the appellant who informed her that he had tried to have sex with the complainant. Some time after the complainant arrived at her own place of residence, she rang her mother who told her what the appellant had said. This caused the complainant to become extremely upset and to shout over the phone that the appellant had actually raped her.

9 After arriving home, the complainant felt extremely dirty. She showered and rubbed herself continually in an attempt to remove what she thought was something dirty from her body. At that time she was having her period and a tampon had been forced further into her vagina as a consequence of the appellant’s penetration of her body. She exhibited signs of physical disgust to YY that was manifested by her body language and the manner in which she was talking, screaming and crying.

10 The police were called whereupon the complainant informed them of what had happened. She later recounted the events again to a medical practitioner and a social worker. She was examined by the medical practitioner who carried out a sexual assault protocol resulting in semen being found on a low vaginal swab taken from her. The DNA from the swab was consistent with that of the appellant.

11 The police conducted an Electronically Recorded Interview of a Suspected Person (or ERISP interview) with the appellant on the morning of 24 September. He denied that intercourse had taken place at all. Amongst other things he said:

“Well, well I don’t know nothin’ about it. Like I said, I just woke up there beside her.”

12 At trial the appellant conceded that intercourse had taken place but stated that it was consensual and had in fact occurred at the instigation of the complainant. He gave sworn evidence that he and the complainant had smoked marijuana at her mother’s flat and that she had then laid down with him on the bed after which she allegedly said to him “Fuck me”. She then pushed herself onto her knees, positioned herself and invited the appellant to have intercourse with her from behind.

13 In cross-examination the appellant acknowledged that he had lied in his interview with the police, asserting that he had done so to “protect” the complainant not only from YY but also from the father of her young child, who lived in the Bateman’s Bay area and was no longer in a relationship with the complainant.

14 The appellant accepted that the jury’s verdict involved an acceptance of the version of events advanced by the complainant and constituted a rejection in its entirety of the appellant’s version of events.

The appellant’s appeal against his conviction

15 The appellant’s appeal against his conviction is based on one ground only: namely, that the trial judge erred in his summing up to the jury in that he had reversed the onus of proof in relation to the critical issue of consent. The appellant accepted that he needed the leave of this Court to raise this ground pursuant to r 4 of the Criminal Appeal Rules as his trial counsel neither raised any objection to the relevant part of the trial judge’s summing nor requested any further or different directions with respect to the issue now sought to be raised on the appeal.

16 Before commencing his summing up, the trial judge provided a five page document to the jury marked MFI “D”, the first part of which was headed “Directions of Law” and the second part “General Directions”. The first part was divided into five subheadings of which the first was “The elements of the offence”. Before setting out those elements, the document defined the offence of sexual intercourse without consent to mean

“sexual intercourse, which occurs in circumstances where the complainant did not consent and where the accused knew she was not consenting.”

17 The document then defined the expression “sexual intercourse” after which it stated

“The Crown must prove sexual intercourse occurred between the accused and the complainant and must prove it beyond reasonable doubt.”

18 The next element of the offence referred to in the document was that of “Consent”. As the issue of consent was the critical element in the case which was in dispute (at trial the appellant did not dispute that he had had intercourse with the complainant but alleged that she consented thereto), it is appropriate to set out the trial judge’s written direction on this issue in full:

“ Consent means that the complainant was consciously and voluntarily agreeing to engage in sexual intercourse with the accused. The agreement must be a real one. It can be given by words or by actions. Similarly, absence of consent does not have to be in words. It may also be communicated in other ways.
A person cannot consent if she is asleep. The Crown says in this case that the accused was asleep at the time the accused penetrated her with is penis.
The accused in this case says that the complainant consented and that he believed she was consenting. If the complainant consented, then no offence was committed. The accused claims that the complainant asked for sexual intercourse and position herself to get it. The complainant denies that she did that.
The Crown must prove beyond reasonable doubt that the complainant was not consenting. If you have a doubt about this, you must acquit.
The Crown must also prove that the accused knew that the complainant was not consenting. This is a subjective test. How then does the Crown prove the accused knew the complainant was not consenting? The Crown asks you to draw this conclusion from the fact that the complainant was asleep and could not give any consent.” (Emphasis in original)

The appellant does not complain about any part of this direction.

19 The document then provided written directions with respect to other factors relevant to the charge other than the elements of the offence such as good character, complaint, credibility and consciousness of guilt, being issues which arose out of the witnesses evidence as well as, in relation to the issue of consciousness of guilty, with respect to the appellant’s concession that he told deliberate lies in his ERISP interview with the police.

20 Under the heading “General directions”, three matters were referred to namely, proof beyond reasonable doubt, the requirement for a unanimous verdict and a reference to the fact that the accused had given sworn evidence and had thereby exposed himself to cross-examination. Critical to the issue raised in the appellant’s ground of appeal was the written direction given under the heading “Proof beyond reasonable doubt”. It was as follows:

“The Crown must prove each of the elements of the charge in the case against the accused beyond reasonable doubt. The expression ‘beyond reasonable doubt’ means what it says. It is the highest level of proof in our system of law. Each of you as jurors knows the meaning of this expression.”

21 On the second page of the transcript of his oral summing up, the trial judge reminded the jury that “the ultimate question is, – are you satisfied beyond reasonable doubt”. After some further general remarks, his Honour (at page 3 of the summing up) commenced to take the jury through his written Directions of Law. After dealing with the first element, namely, that the appellant had sexual intercourse with the complainant, his Honour turned to the question of “Consent” and as the challenge by the appellant arises out of this part of his Honour’s summing up, it is appropriate to set out the relevant part in full:

“The real dispute comes in the next paragraph of consent. Consent means that the complainant was consciously and voluntarily agreeing to engage in sexual intercourse with the accused. The agreement must be a real one. It can be given by words or actions – absence of consent doe not have to be in words, it may be communicated in other ways – and I say this, and it is, in fact, a direction of law. A person cannot consent if she is asleep. It is not possible to consent in your sleep.
The case here is a very starkly different one from the point of view of each of the Crown and the accused. The Crown says that the complainant, [the complainant], was asleep. Her evidence is she was asleep and, in substance, that is what she has told the various people to whom she made complaint, that is her mother, [YY], Constable Crooks, Dr Howe and Karen Hines.
Again, that is a statement of fact, I suppose, by me, that that is what she told them, that she was asleep, but you examine it members of the jury and I think you will find that is so – she told each of them she was asleep.
If she was asleep, she cannot consent. No person who is asleep or unconscious can give consent. That is the plain fact of it.
If, on the other hand, as the accused claims in evidence, although he did not claim that to the police, she said to him ‘fuck me’ and immediately got up on all fours and position herself for that particular reason, she would have been firstly saying she wanted him to, and secondly by her actions, she would have been making it clear that she was consenting. However, if she was asleep, she could not.
Mr Walsh has attempted to suggest that somehow or other it would not have been possible for him to have penetrated her while she was asleep. Well you consider that argument, but members of the jury you, no doubt, will think very carefully before you would reject the claim that the complainant was asleep . If the complainant was asleep, then I direct you that the accused could not possibly believe that she was consenting. If she was asleep, he could not have any basis for saying she was consenting.
If, of course, she was awake, that is a different matter. His case is she was not asleep. He does not have to make a case but, in a sense, he has given evidence to support his contention. He does not say ‘look she was asleep and I thought she was consenting because of this or that or I did not really think she was asleep’ – he does not say that at all. He says ‘she got up on all fours, positioned herself and said to him, before that, ‘fuck me’, so you have got two different views. One is she is asleep, the other is she is not.
The Crown must prove beyond reasonable doubt that the complainant was not consenting. If you have a doubt must acquit. The Crown has to prove he knew she was not consenting, and the Crown asked you to draw this conclusion from the fact that she was asleep and could not give her consent.
Members of the jury, if you find that she was asleep, then the plain fact is she could not consent, and that is a direction of law .” (Emphasis added.)

22 The appellant’s challenge to his conviction is wholly based upon those parts of the above passage from the trial judge’s summing up which I have emphasised. I shall refer to those passages as the “matters complained of”. The appellant’s essential submission was that the matters complained of, and in particular the first matter, reversed the onus of proof on the critical issue of consent. It was submitted that that matter had or would tend to have the effect of directing the jury that the onus lay upon the appellant to persuade them to reject the complainant’s claim that she was asleep at the time the appellant commenced to have intercourse with her rather than that the onus lay upon the Crown to satisfy them beyond reasonable doubt that she was asleep at the time.

23 Before dealing in more detail with this submission, it is appropriate to draw attention to the direction given by the trial judge in the penultimate paragraph of the passages from his summing which I have recorded in [21] above. This direction stated that the Crown must prove beyond reasonable doubt that the complainant was not consenting and if the jury had a doubt, it was required to acquit. It is readily apparent from the last sentence of that paragraph that his Honour was directing the jury that the Crown sought to prove beyond reasonable doubt that the complainant was not consenting by establishing that she was asleep at the relevant time and, therefore, could not have given her consent. Needless to say, the appellant does not assert error with respect to that direction.

24 After summarising the various witnesses’ evidence, his Honour (at p49 of his summing up) said this:

“The case boils down, [counsel for the appellant] said, to the word of the complainant against the accused – there are only two people here. As I said to you before, the Crown case has more than the evidence of just two people – it is the evidence of the complainant, her evidence supported in various ways by the other evidence, and the evidence of the accused on the other hand.
You have to look at all the evidence and decide whether having heard his version, and all the other evidence, you are satisfied beyond a reasonable doubt. I must again inform you that the onus does not shift to him. He does not have to prove a case.”

25 At pp51–2 of the summing up his Honour sought to emphasise the issue of consent by directing the jury in the following terms:

“It was put to you that if he honestly though wrongly believed she was consenting then you might think she must have consented.
Members of the jury, I have to say this to you, that that submission does not seem to be based on the evidence. The evidence is, on the one hand there is a sleeping woman lying down, fast asleep after a night of heavy drinking and dancing and carousing, who is awoken at 4 o’clock in the morning by someone actually having sexual intercourse with her – that is one version.
The other version is she is up on all fours, having invited him to have sex with her. If she was up on all fours inviting him to have sex with her, it would not be a question of honestly believing she was consenting – it would be actual consent, that would have to be so. She said ‘come on, fuck me’ and immediately got up and positioned herself. It is not a question of any honest belief at all.
If she was asleep, members of the jury, you cannot – a sleeping or unconscious person cannot consent and no person could honestly or reasonably believe that that was so, and indeed, he does not suggest that he honestly or reasonably believed that he was having sex with a sleeping woman. He said he was having sex with a wide awake woman.

There is no basis for you to consider that particular matter. The real thing is have you a doubt about which of these things happened, if you have a reasonable doubt, the Crown has not proved its case. ” (Emphasis added.)

26 The appellant placed some reliance upon the High Court of Australia’s decision in Thomas v The Queen (1960) 102 CLR 584. In that case the appellant was charged with murder to which he had pleaded not guilty. He had raised defences of insanity as well as drunkenness. It was emphasised by the justices that the jury must clearly understand that the accused was to be acquitted if the Crown case had not been proved beyond reasonable doubt. What was told to the jury meant that they had to be satisfied beyond any reasonable doubt that the accused was guilty before they were able to find him so.

27 In that case the trial judge, after directing the jury that the general onus was on the Crown to satisfy them that the accused was guilty and that the accused was entitled to the benefit of any reasonable doubt they might have, continued in these terms:

“There is no particular magic about the way you’ve got to consider it, no special rules, you consider it in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives, and if considering it in that way you come to the conclusion – you come to a feeling of comfortable satisfaction that the accused is guilty, then you should find him so guilty, and that is the standard you should apply with the various verdicts which I have indicated to you, except of course to the extent that so far as insanity is concerned, the onus is on the accused to satisfied you as to that on the balance of probability.”

28 McTiernan J observed (at 587) that there was no authority for the use of the verbiage contained in the above passage to elucidate what was meant by proof beyond any reasonable doubt. After noting that the question of whether a direction regarding the onus of proof was proper was not purely a verbal one, his Honour said:

“It is a question whether what the jury is told means that they must be satisfied beyond any reasonable doubt that the accused is guilty. But there is a danger in venturing upon a novel elucidation of this principle of the criminal law. It is dubious advice to tell the jury that no particular magic is required to perform their duty. … But I think that the cardinal error was to tell the jury that if they arrived at a feeling of comfortable satisfaction that the accused was guilty, they should find him guilty, and then to add that such was the standard of proof.”

29 His Honour thus concluded that there was a clear misdirection and one that was likely to mislead the jury as to the degree of certainty they ought to feel that the accused was guilty of wilful murder in order to be justified in finding him guilty of that crime. The direction affected the whole of the general issue raised by the plea of not guilty and especially the question of whether the prosecution proved beyond any reasonable doubt that notwithstanding the evidence of drunkenness, the accused could in fact form the intention required for the crime of wilful murder.

30 Fullagar J (at 593) also agreed that the passage in the summing identified by McTiernan J contained a misdirection in that it tended to water down and qualify the plain rule that what was required to justify a conviction was proof beyond reasonable doubt. His Honour was particularly concerned with the trial judge’s reference to “comfortable satisfaction”.

31 Kitto J was of the same view as Fullagar J with whose observations he agreed. His Honour said (at 596):

“It is enough to say that in my opinion an attentive jury may very well have understood the passage as placing upon the previous references to proof beyond a reasonable doubt an interpretation or a gloss substantially lessening the severity of the true standard, and that therefore the appellant’s conviction was by a jury which had not been instructed in accordance with the strict requirements of the law. …
The case has seemed to me a proper one for special leave, because of the extreme importance of maintaining the absolute right of an accused person to have his case decided by a jury which has been given certainly to understand that he is to be acquitted if the Crown case has not been proved beyond a reasonable doubt.”

32 The appellant also submitted that the trial judge in the second matter complained of had elevated the proposition that if the complainant was asleep at the time intercourse took place then she could not have consented, to a question of law. There is substance in this submission in that it involves a question of fact rather than of law. Yet it is a self-evident fact that if the jury was satisfied beyond reasonable doubt that the claimant was asleep at the time that intercourse took place, then she could not have consented to that invasive act upon her person. No relevant misdirection is involved in the passage in question.

33 However, at the end of the day the appellant’s substantial complaint was that the admonition by the trial judge that the jury think very carefully before they rejected the complainant’s claim that she was asleep, resulted in a reversal of the onus of proof or, at the very least, in a real risk that the jury would have understood his Honour to have been directing them that the onus lay upon the appellant to persuade them to reject the claimant’s evidence that she was asleep and that unless they did so, the appellant was guilty. This was an error that was fundamental and went, so it was submitted, to a core aspect of his Honour’s summing up.

34 Taken in isolation, it might at least be argued that the offending sentence was ambiguous. But it cannot be so taken as it must have been heard and understood by the jury in the context in which it was said. That context was the attempt of trial counsel for the appellant to suggest that it would not have been possible for him to penetrate the complainant’s vagina whilst she was asleep. Therefore, so the argument ran, as he was able to penetrate her, she must have been awake and therefore have consented to intercourse.

35 In the foregoing context it seems to me that the jury could not have understood that his Honour was directing them that the onus was upon the appellant to establish to the jury’s satisfaction that the complainant was not asleep when intercourse took place. Of course, at all times the onus lay upon the Crown to prove beyond reasonable doubt that at that time the complainant was in fact asleep as she maintained. In my opinion, the present case is entirely different to that with which the High Court was faced in Thomas. The trial judge repeated on a number of occasions in his summing up that at all times the onus lay upon the Crown to prove each element of the offence beyond reasonable doubt.

36 The jury were also provided with a written direction which, no doubt, they were able to take with them to the jury room when considering their verdict and which expressly directed them that the Crown had to prove beyond reasonable doubt that the complainant did not consent and that if they had any doubt concerning that, they must acquit. That was a direction which reflected the passage from the judgment of Kitto J in Thomas to which I have referred in [31] above.

37 That there was no risk, let alone a real risk, that the jury would have understood the first matter complained of to have reversed the onus of proof is supported by the fact that trial counsel for the appellant did not object to the direction in question or seek any clarification thereof or any additional direction to emphasise to the jury that the Crown must prove beyond reasonable doubt that the complainant had not consented to the act of intercourse.

38 Accordingly, when taken in the context in which it was made and which related to an argument advanced on behalf of the appellant by his then trial counsel, and in the light of the other written and oral directions to the jury which made it patently clear that the onus lay upon the Crown to prove beyond reasonable doubt that the complainant did not consent to the act of intercourse if they found that she was asleep, in my view the first matter complained of does not constitute a misdirection. Accordingly, the appellant’s submission to the contrary should be rejected and the appeal against conviction dismissed.

The appellant’s appeal against sentence

39 As I have indicated, the trial judge imposed on the appellant a non-parole period of imprisonment of seven years commencing on 13 April 2005 and expiring on 12 April 2012. He then imposed a balance of three years, making a total term of 10 years expiring on 12 April 2015. It was properly conceded by the Crown that the trial judge, through no fault of his own, had failed to take into account that the appellant was arrested on 25 September 2004 and not granted bail until 9 November 2004 and hence had already served 45 days of pre-trial custody. It was therefore common ground that, at the very least, the sentence imposed by his Honour should have commenced on 27 February 2005 and not 13 April 2005 and that it was necessary to make an appropriate adjustment to the expiry of the non-parole period and the balance of the term to reflect the earlier commencement date.

40 When considering the grounds of appeal advanced with respect to the question of sentence, it is of critical importance that, pursuant to s54D of the Crimes (Sentencing Procedure) Act 1999 (the Act), a standard non-parole period of seven years had been fixed with respect to an offence under s61I of the Crimes Act. For the purpose of sentencing the appellant s54A(2) provided that that standard non-parole period represented the non-parole period for an offence in the middle of the range of objective seriousness for the offence in question.

41 Given that there is no question but that a sentence of imprisonment was required to be imposed with respect to the subject offence in the circumstances in which it was committed, s54B of the Act relevantly provided as follows:

“(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s21A.
(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
(5) The failure of the court to comply with this section does not invalidate the sentence.”

42 The factors referred to in s21A to which reference may be had pursuant to s54B(3) for setting a longer or shorter non-parole period than the standard, relate to the relevant aggravating factors referred to in s21A(2), the relevant mitigating factors referred to in s21A(3) as well as any other objective or subjective factor that affects the relevant seriousness of the offence. With those preliminary remarks I turn to the grounds of appeal advanced by the appellant against the sentence imposed upon him.

Ground 1: His Honour erred in regarding the appellant’s plea of Not Guilty as an aggravating matter on sentence

43 In his Remarks on Sentence, his Honour referred to the appellant’s choice to conduct the case that the complainant had consumed marijuana with him in her mother’s flat, had laid down with him on the bed, then pushed herself up on her knees and invited him to have sex with her from behind. When she was cross-examined to this effect, she had become considerably upset. The appellant gave evidence in which he again advanced this version of events. His Honour then continued:

“In my opinion it was a false version and the jury has found this by its verdict. It was also a version which totally lacked any credibility. In my opinion the offender was not satisfied with raping his victim, but chose to continue to humiliate her in the courtroom.”

44 After then referring to a number of factors which were significantly relevant to the objective seriousness of the offence, and observing that next to murder, rape must be regarded as the most serious of all crimes since it involves the violation of the body of a person by another, his Honour continued in the following terms:

“Rape is a despicable, cruel and cowardly crime. It is made even worse when the offender insists on making the victim go over it all again and forces the victim to confront false allegations of consent . In this case, the offender chose not only to put forward the proposition of consent, but to put forward a case that she, the victim, was the one who sought the sexual intercourse.” (Emphasis added.)

45 The appellant submitted that in the passage last referred to and, in particular, in that part I have emphasised, the sentencing judge was asserting as an aggravating factor to be taken into account when sentencing the appellant, the fact that the conduct of his case at the trial indicated a degree of malice towards the complainant which would be perceived by the hypothetical observer as resulting in the infliction upon the appellant by the sentencing judge of an additional punishment.

46 Reliance was placed upon the decision of the High Court in Siganto v the Queen (1998) 194 CLR 656 at 667 [34] and [35] that distress occasioned to a complainant by having to give evidence at the trial of an accused person was not an aggravating circumstance for sentencing purposes. That it was also held in that case (at 663 [22]) that a person charged with a criminal offence is entitled to plead not guilty and defend himself or herself without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. An accused person has the right to stand his trial without prejudice to the conduct of his defence impinging adversely upon the sentence which is ultimately imposed him or her upon if found guilty.

47 The Crown conceded that the if the remarks complained of could be interpreted as expressing the view that the fact that the appellant took his trial as an aggravating factor because it demonstrated specific malice towards the complainant, then his Honour went beyond merely noting the additional distress to the complainant in having to give evidence and moved into an area relating to the objective seriousness of the offence. In so doing he would have fallen into serious error for the reasons set forth in Siganto.

48 However, in the context of the present case, such an error could only have been relevant if the sentencing judge had treated the factors in respect of which complaint was made as a matter of aggravation justifying his setting a non-parole period longer than the standard non-parole period for the offence in question.

49 In order to justify his departure from the standard non-parole period by imposing a longer non-parole period, his Honour would have had to conclude that the circumstances in which the subject offence was committed took it out of the middle range of the objective seriousness for such an offence and placed it in a higher category. His Honour did not do this. On the contrary, he found that the offence was one which was in the middle of the range of objective seriousness so that no longer non-parole period than the standard should be imposed. Whether a lesser non-parole period should have been imposed is another matter and the subject of other grounds of appeal.

50 The remarks with respect to which complaint is made are asserted by the appellant to have been regarded by the sentencing judge as constituting aggravating factors which contributed to the severe sentence which his Honour imposed. But as a matter of logic as the sentencing judge only imposed the standard non-parole period that cannot be so.

51 Quite properly, the appellant conceded that it was open to his Honour to determine that the subject offence was capable of being characterised as falling within the middle of the range of objective seriousness for offences of that particular kind. His Honour identified a number of factors that clearly supported his conclusion to that effect. Thus he referred to the fact that the complainant was a slightly built and vulnerable young woman who was completely helpless because of alcohol-affected sleep whereas the appellant was a strongly built man nearly 20 years her senior.

52 Furthermore, he had taken advantage of her state of helplessness to invade her body. Because he was living with her mother, he was someone the complainant was entitled to believe would respect her rather than violate her. No complaint is or could be made by the appellant as to his Honour’s observation that the objective seriousness of the particular offence required the sentence imposed upon the appellant to provide greater emphasis on the principles of retribution and general deterrence as it was important

“that people who commit this type of offence understand that they can expect to receive heavy gaol sentences. It is important that the rest of the community understand that so that others who might be contemplating this sort of thing will [be] aware of the consequences.”

53 There is, therefore, a matter of principle involved in this aspect of the appeal. But for Div 1A of Pt 4 of the Act setting standard non-parole periods for particular offences including the subject offence, and given that his Honour sentenced the appellant to a non-parole period of seven years, there would be much to be said in favour of the proposition that the remarks complained of were taken by the sentencing judge to constitute aggravating factors justifying a non-parole period of that length. Had he done so and absent Div 1A, Siganto would have required the sentence to be quashed and the appellant re-sentenced by this Court.

54 Due to the insertion of Div 1A of Pt 4 into the Act, it seems to me that such an error could only be relevant if it was utilised by the sentencing judge as an aggravating factor justifying a finding that the offence of which the offender was convicted fell beyond the middle of the range of objective seriousness for offences to which the Table to Div 1A applied justifying the imposition of a longer non-parole period than the standard period referred to in that Table. The error must be irrelevant where, absent that effect, it is accepted that the offence fell in the middle of the range of objective seriousness for the relevant offence. That was the position in the present case.

55 It follows that where a standard non-parole period applies to an offence listed in the Table to Div 1A, not every error in the sentencing process will result in the imposed non-parole period being quashed. Where the error involves the taking into account of factors that the sentencing judge considers heightens the objective seriousness of the relevant offence so as to justify the imposition of a longer non-parole period than the standard, then the error will result in appellate intervention. But where, as in the present case, the standard non-parole period was imposed notwithstanding the alleged aggravating factors, then the error can have no relevance if otherwise it was open to the sentencing judge to determine that the offence fell in the middle of the range of objective seriousness for offences of the kind in question.

56 Accordingly, for the foregoing reasons, in my opinion the remarks of which the appellant complains and which might otherwise have attracted the principles adumbrated in Signanto, have no relevance to the present case. Therefore, given the appellant’s acceptance that (absent those remarks) it was open to the sentencing judge to find that the circumstances of the offence justified a finding that it lay in the middle of the range of objective seriousness for such an offence, the error alleged could not have had any effect upon the imposition by his Honour of the standard non-parole period of seven years to which the appellant was sentenced. It follows that the first ground of appeal should be rejected.

Ground 2: His Honour erred in finding as a fact that the appellant “… in fact has done nothing worthwhile in his life”

57 The relevant passage in his Honour’s Remarks on Sentence followed his reference to evidence given by the appellant’s mother, who referred to a number of relationships the appellant had had with women and which had produced a number of children with whom he had sporadic contact. The appellant’s mother had also referred to his drug and alcohol addictions that appeared to be ongoing.

58 Nevertheless, the appellant had resumed a friendship with a woman he had known (together with her deceased husband) many years previously and with whom he had commenced to live in a de facto relationship prior to his trial. She gave evidence at the sentencing hearing that the appellant was a hardworking and loving man and someone with whom she wished to share her life. His Honour then observed:

“However, the version of him which she has sits at odds with the picture painted by the probation officer and his mother which is a picture of a man who has worked only intermittently, who has been a heavy consumer of drugs and drink, who has committed criminal offences most of his life, and who, in fact, has done nothing at all worthwhile in his life . It may that if this relationship endures … it will help him when he emerges from prison.” (Emphasis added.)

59 The appellant submitted that his Honour erred as a matter of fact in asserting that he had “done nothing at all worthwhile in his life”. This erroneous finding had in turn led to other errors including the failure by his Honour to correctly weigh the appellant’s past character and antecedents and, in doing so, to incorrectly weigh his prospects of rehabilitation. Reference was then made to his education to School Certificate standard at Conobolas High School in Orange, to his employment upon leaving school in various occupations and to his personal relationships with a number of women, with some of whom he had had children.

60 It was submitted that the appellant was a man with limited education who had nonetheless shown an inclination to both seek and maintain employment. Further, he had shown a capacity to form and maintain worthwhile relationships in the context of family settings. The attainment of an education (even a basic one), the pursuit of meaningful employment (even unskilled or semi-skilled employment) and taking on the successful conduct of personal relationships including the caring for young children and one’s parents, were all worthwhile endeavours. Such matters were relevant to both the question of his past character and future prospects of rehabilitation. Reliance was place upon the decision of the High Court in Ryan v The Queen (2001) 206 CLR 267, but having reread that decision I cannot see that it has any relevance to the present case.

61 In my opinion, the remarks of the trial judge that are the subject of this complaint have been taken out of context. In the Pre-Sentence Report of the Community Offender Services Probation and Parole Service dated 3 June 2005 and which was Exhibit B in the sentencing hearing, under the heading “Education/Training/Employment” the following appears:

“Mr Dean indicated that prior to his arrest he was working on a casual basis wood carting as well as concreting. Records suggest that he has not had a lengthy history of full-time employment.”

62 There is nothing in the appellant’s employment history set forth in his written submissions which would contradict that conclusion. The appellant may have had a number of different jobs over his working life but there is no evidence to indicate that he was in pursuit of meaningful employment of any nature or that he was even in regular employment except, perhaps, for the 18 months prior to his trial.

63 So far as his past character and antecedents are concerned, the particulars of his previous convictions tendered at the sentencing hearing indicated that he had been in trouble with the law since 1978 and that hardly a year had passed since then when he has not been charged and convicted of some offence. It is true that the present offence is the first of its kind with which he has been charged and convicted. Nevertheless it is clear from the four and half pages of particulars of previous convictions that he could hardly be described as a person of good character.

64 After referring to the appellant as a man who had an extensive criminal record with many convictions for dishonesty, drug taking, break and enter and serious driving offences, his Honour noted that he had not responded positively to supervision by the Probation and Parole Service and that he had told his probation officers substantially the same false story which he had advocated in his defence in the present matter. His Honour agreed with the probation officer that the appellant had showed no remorse for his actions. Furthermore, his Honour found that the fact that the appellant showed no remorse and, even after conviction, persisted in maintaining his version of what occurred indicated that his rehabilitation prospects were slight.

65 It is in the foregoing context that his Honour made the remark in respect of which complaint is made. In my opinion there is evidence to justify that remark and it was therefore open to his Honour to find that, in the context in which the remark was made, the appellant had in fact done nothing at all worthwhile in his life. I would therefore reject the second ground of appeal.

Ground 3: The errors of law identified in Grounds 1 and 2 caused his Honour’s sentencing discretion to miscarry in determining that the standard non-parole period should be applied

66 As I have indicated, the error referred to in the final ground of appeal was irrelevant to his Honour’s finding that the standard non-parole period should apply. As I have already rejected the second ground of appeal it follows that the third ground of appeal cannot be sustained. Nevertheless, it was submitted that his Honour’s discretion had miscarried when he imposed the standard non-parole period and that he ought to have imposed a lesser period. In order to have done so, s54B(3) of the Act would have required him to confine his reasons for setting a period that was shorter than the standard non-parole period to those referred to in s21A. Relevantly, that would have required his Honour to find one or more of the mitigating circumstances set out in s21A(3) or some other objective or subjective factors that affected the relevant seriousness of the offence: R v Way (2004) 60 NSWLR 168 at 191 [117]–[120].

67 Mitigating factors (if they existed) relevant to the present case would be confined to those set forth in subparagraph (a) – the emotional harm caused by the offence to the complainant was not substantial; (e) – the offender does not have any record (or any significant record) of previous convictions; (f) – the offender was a person of good character; (g) – the offender is unlikely to re-offend; (h) – the offender has good prospects of rehabilitation; and (i) – the offender has shown remorse for the offence.

68 Apart from the possibility that the appellant is unlikely to re-offend, in respect of which there was neither a finding by the trial judge nor any submission to that effect by the appellant, none of the other mitigating factors were present in this case. On the contrary, his Honour found that the emotional harm to the complainant was substantial; that the appellant had a significant record of previous convictions; that he was not a person of good character; that he did not have good prospects of rehabilitation and, finally, that he had shown no remorse for the offence.

69 In the foregoing circumstances, no proper basis existed for his Honour to have set a non-parole period that was shorter than the standard period. Accordingly, his discretion in setting the standard non-parole period did not in any way miscarry.

Ground 4: His Honour erred in imposing a sentence of 10 years which, given a non-parole period of seven years, offended s44(2) of the Crimes (Sentencing Procedure) Act 1999

70 Section 44 of the Act provides, relevantly, that:

“(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
(3) The failure of a court to comply with subsection 92 does not invalidate the sentence.”

71 His Honour complied with s44(1) by setting the standard non-parole period of seven years. However, he then set the balance of the term of the sentence at three years which exceeded by more than one third the non-parole period of seven years. The correct balance of the term sentence required by s44(2) was two years and four months. His Honour gave no reasons for increasing the balance of the term from two years and four months to three years. Certainly, there were no special circumstances for increasing the ratio. Ultimately, it was accepted by the Crown that his Honour had erred in setting the balance of the term of the sentence at three years and accepted that this Court should intervene and reduce the additional term to two years and four months. It is proper that we should accede to that request.

Conclusion on sentence

72 It follows from the foregoing that subject to amending the date on which the appellant’s sentence commenced from 13 April 2005 to 27 February 2005 and reducing the balance of the term of the sentence from three years to two years and four months, the appellant’s appeal against his sentence should otherwise be dismissed.

73 I would therefore propose the following orders:

(a) Appeal against conviction dismissed.

(b) Leave to appeal against sentence granted and appeal allowed in part.

(c) The sentence imposed on the appellant by his Honour Judge Finnane on 29 July 2005 be quashed.

(d) For the offence of sexual intercourse without consent contrary to s61I of the Crimes Act (NSW) 1900 committed on 25 September 2004, the appellant be sentenced to imprisonment for a non-parole period of seven years to commence on 27 February 2005 and expire on 26 February 2012, with a balance of the term of the sentence of two years and four months to commence on 27 February 2012 and expire on 26 June 2014. The earliest date the appellant will be eligible for release is 28 February 2012.

74 GROVE J: I have had the advantage of reading the judgment of Tobias JA in draft form. I agree with his judgment and, in particular, express my agreement with his analysis in connection with ground 1 in the sentence appeal.

75 The enactment of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 mandates imposition by a sentencing judge for any crime in the Table to the Division of the standard non parole period prescribed. Imposition of a term longer or shorter than the standard non parole period may only occur for reasons referred to in s 21A of the Act. Thus, whether the litany of aggravating and mitigating factors in s 21A exhaustively comprehends all possible factors of those natures, departure from imposing the standard non parole period requires the presence of factor or factors as mentioned therein.

76 The trigger for a requirement to impose the standard non parole period is a determination that the offence is “in the middle of the range of objective seriousness” of the particular offence.

77 In the present case, it was conceded by counsel that it was open to Finnane DCJ to find that “the matter for sentence was capable of being characterized as falling within the mid range of objective seriousness.” That concession was well founded and there was no error in his Honour’s finding in this regard.

78 As Tobias JA has noted, the sentencing judge’s remarks concerning the aggravation of the appellant’s offending arising out of his plea of not guilty, thereby creating a need for the complainant to testify and confront what were found to be false allegations, constituted an error of the type identified in Siganto v The Queen 1998 194 CLR 656.

79 Absent the application of the standard non parole period (and putting to one side possible applicability of s 6(3) of the Criminal Appeal Act 1912) the approach manifest in his Honour’s Remarks on Sentence would lead to a conclusion that an impermissible element had contributed to an elevation in the quantum of sentence assessed.

80 Where however, as in this instance, the standard non-parole period has been imposed, an error of aggravating nature although apparently taken into account would lose any significance. It was not suggested that any mitigating factor should have been found so as to depart, by way of reduction from the standard non-parole period and it is a consequence of the legislative structure that an error of aggravating nature will be irrelevant if there is no departure by way of increase from the standard non-parole period.

81 It may appear a curious situation that an express taking into account of an impermissible matter as a factor of aggravation is reduced to irrelevancy but that will be the case where the term of the standard non parole period has not, for that reason, been increased.

82 I agree with the orders proposed by Tobias JA.

83 BELL J: I agree with the judgment of Tobias JA. I also agree with the additional observations made by Grove J, concerning the operation of Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999. As his Honour notes, it was not suggested that any mitigating factor should have been found so as to depart from the standard non-parole period. There was no question that a circumstance of mitigation had been offset by the erroneous finding of the aggravating factor.

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