Jolly v R

[2013] NSWCCA 76

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Adam Jolly v R [2013] NSWCCA 76

Hearing dates:

11 March 2013

Decision date:

16 April 2013

Before:

Hoeben CJ at CL at [1]
Slattery J at [2]
Bellew J at [3]

Decision:

(i)leave to appeal granted;

(ii)appeal allowed;

(iii)the sentence imposed in respect of count 1, being the offence against s. 66B of the Crimes Act is quashed;

(iv)in lieu thereof the applicant is sentenced to a non-parole period of 10 years and 6 months imprisonment commencing on 25 February 2011 and ending on 24 August 2021, with a balance of term of 4 years and 6 months imprisonment commencing on 25 August 2021 and ending on 24 February 2026;

(v)the sentence imposed in respect of count 3, being the offence against s. 66A(2) of the Crimes Act is quashed;

(vi)in lieu thereof the applicant is sentenced to a non-parole period of 12 years and 7 months imprisonment commencing on 25 May 2011 and expiring on 24 December 2023, with a balance of term of 5 years and 5 months imprisonment commencing on 25 December 2023 and expiring on 24 May 2029;

(vii)the total overall sentence imposed upon the applicant is a non-parole period of 13 years and 4 months, commencing on 25 August 2010 and expiring on 24 December 2023, and a balance of term of 5 years and 5 months, commencing on 25 December 2023 and expiring on 24 May 2029;

(viii)the earliest date upon which the applicant may be released to parole is 25 December 2023.

Catchwords:

CRIMINAL LAW - sentencing - appeal against sentences imposed for kidnapping, aggravated indecent assault, attempted sexual intercourse with a child under 10 and aggravated sexual intercourse with a child under 10 - whether sentencing judge erred in finding that the objective seriousness of the offences were aggravated by the fact that they were part of a series of acts aimed at self-sexual gratification - whether the sentencing judge erred in determining the objective seriousness of the offending - whether the sentencing judge, having found that the offending was above the mid range of objective seriousness, erred in failing to specify the extent to which the offending fell above that range

SENTENCING - where the sentencing judge made a series of findings in favour of the applicant - where those findings not reflected in sentence ultimately imposed - where sentence in excess of the established pattern of sentencing generally applicable to that type of offending - sentences manifestly excessive - leave to appeal granted - appeal allowed - applicant re-sentenced

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Carroll v R [2009] HCA 13; (2009) 254 ALR 379
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Ibbs v The Queen (1987) 163 CLR 447
Ingham v R [2011] NSWCCA 88
Leslie v R [2013] NSWCCA 48
McCabe v R [2006] NSWCCA 220
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
PK v R [2012] NSWCCA 263
R v AJP (2004) 150 A Crim R 575
R v Cunningham [2006] NSWCCA 176
R v King [2009] NSWCCA 117
R v Nikolovska [2010] NSWCCA 153
R v RLS [2012] NSWCCA 236
R v Tadrosse (2005) 65 NSWR 740; [2005] NSWCCA 145

Category:

Principal judgment

Parties:

Adam Jolly (Applicant)
Crown (Respondent)

Representation:

Mr S Odgers SC (Applicant)
Ms H Wilson (Respondent)
Legal Aid New South Wales (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/282407

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-04-02 00:00:00

Before:

English DCJ

Judgment

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

1. SLATTERY J:I agree with Bellew J.

1. BELLEW J: On 2 April 2012, following pleas of guilty entered in the Local Court, the applicant appeared for sentence before her Honour Judge English in the District Court in respect of the following:

(i)   one count of attempted sexual intercourse with a child under the age of 10 years (Crimes Act 1900 s. 66B) ("count 1");

(ii)   two counts of aggravated indecent assault of a person under the age of 16 years (Crimes Act 1900 s. 61M(2) ("counts 2 and 5");

(iii) one count of aggravated sexual intercourse with a child under the age of 10 years (Crimes Act 1900 s. 66A(2) ("count 3");

(iv)   one count of detaining for advantage (Crimes Act 1900 S. 86(1)(b) ("count 4").

1. Her Honour sentenced the applicant as follows:

(i)   in respect of count 1, imprisonment comprising a non-parole period of 12 years commencing on 25 February 2011 and expiring on 24 February 2023, with a balance of term of 5 years commencing on 25 February 2023 and expiring on 24 February 2028;

(ii)   in respect of each of counts 2 and 5, imprisonment comprising a non-parole period of 4 years commencing on 25 August 2010 and expiring on 24 August 2014, with a balance of term of 2 years commencing on 25 August 2014 and expiring on 24 August 2016;

(iii)   in respect of count 3, imprisonment comprising a non-parole period of 15 years commencing on 25 May 2011 and expiring on 24 May 2026 with a balance of term of 7 years commencing on 25 May 2026 and expiring on 24 May 2033;

(iv)   in respect of count 4, imprisonment comprising a non-parole period of 6 years commencing on 25 November 2010 and expiring on 24 November 2016, with a balance of term of 3 years commencing on 25 November 2016 and expiring on 24 November 2019.

1. The total overall sentence imposed upon the applicant was a non-parole period of 15 years and 9 months commencing on 25 August 2010 and expiring on 24 May 2026, with a balance of term of 7 years commencing on 25 May 2026 expiring on 24 May 2033.

1. The applicant now seeks leave to appeal against the sentences imposed, upon the grounds more fully set out below.

THE FACTS

1. The agreed facts set out by the sentencing judge (commencing at AB 11) may be summarised as follows.

1. At about 11.30 am on Sunday 14 February 2010, SS ("the complainant") who was then aged 6 years, was riding her scooter outside the front of her residence at Mount Austin whilst her mother was inside. She went into the front yard of the premises and whilst she was sitting on the front steps, the applicant approached her and said:

"Is your mum home?"

1. The applicant then picked up the complainant and carried her to his vehicle which was parked nearby. The complainant screamed loudly, her screams alerting her mother, as well as an off duty police officer who was inside premises nearby.

1. The applicant placed SS in the rear of his vehicle, a dual cab utility, and got into the driver's seat. As he drove off at high speed, the complainant's mother grabbed on to the rear of the vehicle, but could not maintain her grip and fell to the roadway. She was able to discern two letters from the registration plate on the vehicle and police were immediately notified.

1. The applicant then drove the complainant to two semi rural locations in and around Wagga Wagga where the offences were committed in the following sequence.

Count 2 - Aggravated indecent assault

1. At the first location to which the applicant took the complainant, which was a public reserve, the complainant spat on her hands and placed them on the applicant's erect penis. A mixture of the DNA of the complainant and the applicant was found on the left and right hands of the complainant.

1. The applicant was disturbed by the arrival of a nearby resident, a Mr Connors, who recorded the registration number of the applicant's vehicle which he provided to police some days later upon hearing a report of the complainant's abduction.

Count 1 - Attempted sexual intercourse with a child under 10

1. After being disturbed at the first location, the applicant drove the complainant to another. Upon arrival, he and the complainant left his vehicle and, at the applicant's direction, the complainant removed her clothing and lay down on her back in the grass. The offender removed his clothing and lay down on top of the complainant whereupon he attempted to forcibly penetrate her vagina with his penis. He desisted when the complainant told him that it hurt.

Count 5 - Aggravated indecent assault

1. At some point at the second location, the applicant rubbed his erect penis on the bare bottom of the complainant.

Count 3 - Aggravated sexual intercourse with a child under 10

1. The offender then inserted his penis into the mouth of the complainant, who performed fellatio upon him.

Count 4 - Detain for advantage

1. Following the commission of the offence in count 3, the complainant and the applicant put their clothing back on and got back into the applicant's vehicle. At about 12.50 pm, the applicant dropped the complainant at a location near her home, saying to her:

"You can walk from here".

1. The complainant walked home where she was met by her mother and police, at which time she said:

"He made me touch his doodle".

1. The applicant's detention of the complainant between about 11.30 am and 12.50 pm as outlined above formed the basis of count 4.

Events subsequent to the applicant's offending

1. Upon her arrival at home, the clothing which had been worn by the complainant was seized by police, and she was conveyed to hospital for examination. Due to the fact that the only available attending doctor was a male, a forensic examination could not be performed on the complainant at that time, however crime scene officers were able to take swabs from her hands for subsequent DNA analysis. Later that evening, and over the ensuing weeks and months, she was interviewed on a number of occasions by the police.

1. On 15 February 2010, the day following the incident, the complainant was taken to the Canberra for medical examination. At that time she was found to have significant inflammation of, and a degree of superficial grazing to, her outer genital area.

The police investigation

1. Strike Force Shell was formed in order to investigate the complainant's abduction. Information provided by the RTA established that the applicant was the owner of a vehicle, the description of which matched that provided by the complainant's mother. That information also established that the registration number of applicant's vehicle recorded by the RTA matched that provided to the police by Mr Connors.

1. The applicant was contacted by police and agreed to meet them for the purposes of providing a buccal swab. He failed to keep the appointment he had arranged with the police for that purpose and when subsequently contacted by police, he refused to provide the swab. As a consequence of his refusal, police commenced a covert surveillance operation targeting the applicant. That operation subsequently led the police to follow the applicant driving a vehicle which was registered to an escort agency in Albury. Later investigations established that the vehicle was being driven by the applicant in the course of his employment with that agency. Police secured the vehicle and forensically examined it. Analysis of swabs which were taken from the vehicle matched DNA recovered from the complainant's underpants.

1. The applicant was later arrested at his home in North Albury.

THE SENTENCE PROCEEDINGS

1. The applicant did not give evidence in the sentence proceedings. Counsel who appeared for him on that occasion tendered a number of letters, some addressed to his solicitor and others addressed to the court, which sought to set out (amongst other things) an explanation for the offending. Although those documents formed part of the evidence, their admission was accompanied by what her Honour described as the "usual caveat" regarding the limited weight that could be attached to them in the absence of any cross examination of the applicant.

1. I have referred, in considering the particular grounds of appeal below, to specific aspects of her Honour's reasons for sentence. In light of grounds 2 and 5, which assert that the sentences imposed by her Honour in respect of counts 1 and 3 respectively were manifestly excessive, it is important to observe that her Honour made a number of findings which were favourable to the applicant, and which were not the subject of any challenge before this Court. They included the following:

(i)   the applicant, who was aged 27 at the time of the offending and 30 at the time of sentence, was a person of no prior criminal history, and a person of whom referees spoke highly (at AB 16; 23);

(ii)   his pleas of guilty had significant utilitarian value, and had saved both the victim's family and his own family the trauma of living through a trial and, in particular, had saved the victim from re-living her ordeal (at AB 23);

(iii)   his pleas of guilty demonstrated contrition and remorse (at AB 23);

(iv)   his offending was an aberration and uncharacteristic (at AB 23);

(v)   he was willing to undergo psychotherapy and counselling (at AB 23 - 24);

(vi)   his time on remand had been lengthier than might otherwise have been the case, as a consequence of which he had been deprived of the opportunity of attending psychotherapy or psychiatric treatment, or attending any extra curricular activities which might ordinarily have otherwise been available (at AB 20-21);

(vii)   a custodial sentence would, due to the applicant's impaired psychological status, weigh more harshly upon him than it would in the case of a person of more resolute psychological well being (at AB 24);

(viii)   his period in custody would also be onerous because of the nature of the offences and the consequence that he would be on strict protection or non-associative protection (at AB 21);

(ix)   the opportunity for family members to visit him in prison would be significantly reduced because of his family's intended move to Queensland (at AB 21);

(x)   the applicant was highly unlikely to re-offend if given the opportunity to undergo appropriate treatment, both in custody and upon his eventual release back into the community (at AB 24);

(xi)   his family remained supportive of him, although his rehabilitation would be largely dependent upon him taking steps to resolve the issues which led to his disturbed psychology and sequelae (at AB 24);,

(xii)   although there was no satisfactory explanation for it, his offending was an aberration and was due, in some small part, to the applicant's disturbed psychology, or perhaps his unresolved anger and resentment towards women, coupled with a desire for revenge (at AB 23); and

(xiii)   he suffered from a "precarious mental state", a factor which he was entitled to have taken into account in light of the medical evidence which was to the effect that his psychosexual disorder, avoidant personality and disturbed psychology may have had some part to play in the offending (at AB 22 - 23).

1. To the extent that the findings outlined above went to the applicant's psychological state, they were based upon the unchallenged opinions of Dr Westmore, Psychiatrist, which were set out in a number of reports tendered, without objection, in the applicant's case before her Honour. It is apparent that her Honour accepted those opinions, describing Dr Westmore (at AB 20) as "a well respected psychiatrist who provides reports on behalf of the Crown and offenders in all manner of criminal matters". Having accepted Dr Westmore's opinions, she reached a number of further conclusions, all of which were favourable to the applicant, as follows:

(i)   the applicant had suffered from depression throughout much of his life, including during his childhood, and such depression may have been exacerbated by failed relationships with women (at AB 18);

(ii)   it was more probable than not that the applicant's offending was a result of his feelings of revenge towards women (at AB 18);

(iii)   he had deep seated and unresolved psychological problems which required treatment by someone appropriately qualified, which exhibited a need for specific counselling, and which warranted enrolment in a sex offender's program (at AB 18);

(iv)   he was not suffering from paedophilia, even though the offending was of that general kind, and accordingly, the offences were not as a result of that condition (at AB 19, 20);

(v)   the offences, whilst voluntary, were committed as a result of, or were motivated by, a complex, deep seated and unresolved psychological and personality difficulty from a mental illness at the relevant time, although it was probable that he was suffering from a depressive disorder, most likely in the nature of an adjustment disorder (at AB 19);

(vi)   he had a dysfunctional psychosexual history (at AB 19);

(vii)   incarceration would exacerbate the applicant's depression (at AB 19);

(viii)   he did not suffer from an autistic disorder, be it typical or atypical (at AB 20);

(ix)   although he presented with some features of Asperger's disorder, this was not sufficient to qualify for that particular diagnosis (at AB 20);

(x)   he suffered from an anti-avoidant personality disorder, a psychosexual disorder, and depression (at AB 20);

(xi)   the offending behaviour occurred in the context of the applicant's disturbed psychology, rather than from a primary psychosexual disorder (at AB 20).

THE GROUNDS OF APPEAL

Ground 1 - The sentencing judge erred in holding that the objective seriousness of the offences was aggravated by the fact that they were part of a series of acts aimed at self-sexual gratification.

Her Honour's findings

1. In the course of her assessment of the objective seriousness of the applicant's offending, her Honour observed that it was necessary to consider the overall circumstances in which the offences were committed. This, she said, included a consideration of the period of time over which the offences occurred, whether a degree of force, coercion or threat was used, and the immediate aftermath of the offending. Having made a number of observations of the circumstances in which the acts constituting the applicant's offending were committed, her Honour said (at AB 30):

"These acts do not appear to be fleeting. The child was abducted and deprived of her liberty whilst being sexually assaulted over a period of 1 ½ hours. That is not an insignificant period of time and were, of course, part of a series of acts committed over that time, not one isolated act wherein the offender came to his senses and ceased what he was doing, but a series of acts aimed a self-sexual gratification. That aggravates the objective seriousness of his crime" (emphasis added in each case).

The submissions of the parties

1. It was submitted on behalf of the applicant that in the passage referred to above, her Honour erred in concluding that the objective seriousness of the offences was aggravated by the fact it involved a "series of acts aimed at self-sexual gratification". That error was said to have arisen in two ways.

1. Firstly, it was submitted that although her Honour did not specifically refer to, it was evident that in referring to a "series of acts" her Honour must have had s. 21A(2)(m) of the Crimes (Sentencing Procedure) Act in mind. Accepting that to be the case, it was submitted that her Honour had misconstrued the provisions of that section, and had engaged in an impermissible process of double counting.

1. Secondly, it was submitted that a further error arose from her Honour's conclusion that the applicant's offending was aggravated by the fact that it was aimed at self-sexual gratification. It was submitted that self-sexual gratification was, generally speaking, an inherent characteristic of offending of this kind, and that in treating it as an aggravating factor, her Honour had again engaged in a process of double counting.

1. The Crown submitted that when her Honour's reasons were examined as a whole, a conclusion could not be reached that any error had been made out. Firstly, the Crown relied on the fact that her Honour made no reference at all to the provisions of s. 21A(2)(m). The Crown submitted that the passage cited by the applicant in support of this ground amounted to nothing more than her Honour's acknowledgement of the need to assess the seriousness of the applicant's offending in an overall context.

1. In support of that submission, the Crown pointed to the fact that her Honour had expressly acknowledged (at AB 26) that there was a need not to engage in what she described as "double punishment". The Crown submitted that the fact that her Honour had cautioned herself in that regard tended against a finding that she had proceeded to engage in the process which she had expressly acknowledged was impermissible.

Consideration and conclusion

1. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act is in the following terms:

21A Aggravating, mitigating and other factors in sentencing

...

(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(m) the offence involved multiple victims or a series of criminal acts,

...

1. Plainly, this was not a case where there was one offence containing a number of allegations of criminal acts that were part and parcel of a single course of criminal conduct. Accordingly, s. 21A(2)(m) had no application. In my view, although her Honour did not specifically refer to that provision, the only reasonable construction which can be attributed to that part of her reasons set out in [28] above is that she was seeking to give effect to it. In particular, her Honour's reference to "these acts" and "a series of acts" on the part of the applicant can, in my view, only be construed as a reference to the acts which constituted the individual offences. Her Honour obviously regarded those acts as aggravating the applicant's offending.

1. Accepting that interpretation, her Honour's approach was at odds with that set out in R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 where Howie J (with whom the other members of the court agreed) said at [28]-[29]:

"His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) "the offence involved multiple victims or a series of criminal acts". Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court.

[29] Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct."

1. A further error stems from the fact that her Honour found that the applicant's offending was aggravated because it was aimed at self-sexual gratification. Such a conclusion was directly contrary to that reached by this Court in Ingham v R [2011] NSWCCA 88 where McClellan CJ at CL (with whom the other members of the court agreed) said in the context of similar offending (at [113]):

"It was inherent in the offence that it would be carried out for the purpose of the sexual gratification of the perpetrator. This would not be an aggravating factor."

1. Although, as the Crown pointed out, her Honour was apparently mindful of the need not to engage in double punishment, the passage in respect of which complaint is now made necessarily had that very effect.

1. For all of these reasons, I would uphold this ground.

Ground 2 - the sentence in respect of the offence under s. 66B Crimes Act 1900 (NSW) is manifestly excessive.

1. The offence under s. 66B was contained in count 1. Her honour imposed a non-parole period of 12 years, with a balance of term of 5 years, a total term of 17 years. That sentence was imposed in circumstances where the maximum penalty for the offences was imprisonment for 25 years.

Her Honour's reasons

1. In the course of her reasons, her Honour said (AB 30):

"In assessing the objective seriousness...it is necessary to consider the overall circumstances in which the offences were committed, over what period of time the offences occurred, whether a degree of force or coercion or threat was used to ensure compliance and then silence thereafter, and of course the immediate aftermath upon the victim".

1. Her Honour then said (at AB 33):

"I find each offence committed falls above the mid range of objective seriousness but not in the worst case category".

1. Her Honour did not express a view, either generally or specifically, how far above the mid range the offending fell.

1. Importantly however, her Honour imposed the sentence for this count after reaching a number of conclusions favourable to the applicant, and which I have previously set out.

The submissions of the parties

1. Senior counsel for the applicant submitted that when viewed overall, the sentence was one which was unreasonable or plainly unjust (see generally Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]; 370-371; Carroll v R [2009] HCA 13; (2009) 254 ALR 379 at [8]; 381). He submitted that the unreasonableness of the sentence imposed was reflected in two particular matters.

1. Firstly, he submitted that taking into account the 25 percent discount to reflect the early plea of guilty, her Honour must have necessarily adopted a starting point of 22 years imprisonment, a figure which was equivalent to 88% of the maximum penalty. Bearing in mind that her Honour did not find that the applicant's offending fell into the worst case, senior counsel submitted that her Honour's starting point was unreasonable, and indicative of manifest excess in the sentence which was ultimately imposed.

1. Secondly, senior counsel submitted that the sentence imposed by her Honour was inconsistent with the findings reached in the applicant's favour, which I have previously set out in detail.

1. In advancing each of these submissions, senior counsel made reference to the sentencing statistics available from the judicial commission. He also relied on the fact that the most significant sentence for an offence under s. 66B was that imposed in R v Cunningham [2006] NSWCCA 176 where this Court reduced a sentence of 13 years imposed by the sentencing judge to one of 10 years and 3 months imprisonment.

1. Senior counsel also submitted that her Honour had erred in her conclusion that the offending in count 1 was above the mid range of objective seriousness. The error was said to stem from the fact that her Honour had not taken the further step of specifying the extent to which the offending exceeded that range.

1. The Crown submitted that it was essential that any consideration of sentencing statistics, and any consideration of sentences imposed in other cases, be undertaken with undertaken with caution. The Crown submitted that sentencing is neither a mathematical process, nor a process which is advanced by comparisons with other cases involving sentences imposed for similar offences. The Crown emphasised that there was a need to recognise that not only do facts of cases differ, the particular circumstances of individual offenders also differ, and that such circumstances simply emphasised the importance of instinctive synthesis in the sentencing process.

1. The Crown acknowledged that the sentence imposed by her Honour in respect of count 1 could properly be categorised as stern or even severe. However, the Crown submitted that it was a sentence which was nevertheless appropriate in all of the circumstances.

Consideration and conclusion

1. In R v RLS [2012] NSWCCA 236 I observed (with the concurrence of McClellan CJ at CL and Johnson J) at [132] that care must be taken when engaging in comparative exercises of the kind that the Court was invited to undertake in the present case. I pointed out, in particular, the necessity to bear in mind the importance of considering the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case.

1. This Court has also said on many occasions that a similarly careful approach must be exercised when the Court is asked to undertake an analysis of sentencing statistics which, of themselves, may be of limited use (see for example R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J (with whom Beazley JA and Johnson J agreed)).

1. As I have previously noted, one of the matters relied upon in support of this ground was that her Honour, having found that the applicant's offending was above the mid range of seriousness, erred in failing to take the further step of providing an indication of the extent to which the offending fell above that range. In support of that submission senior counsel for the applicant relied upon the judgment McClellan CJ and Cl (with whom James and Davies JJ agreed) in Ingham v R [2011] NSWCCA 88 at [119].

1. The decision in R v Ingham pre-dated that of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CL120. In PK v R [2012] NSWCCA 263 McCallum J (with whom Macfarlan JA and Price J agreed) expressed the view that following Muldrock, a sentencing judge need not, and arguably should not, attempt to quantify the distance between the actual offence before the court and a putative offence in the middle of the range.

1. In these circumstances, and although it is not a matter which is necessary to decide for the purposes of determining the applicant's appeal, I am doubtful that her Honour's failure to provide a specific indication of the extent to which the applicant's offending was above the mid range amounted to an error. In any event, and for the reasons which follow, I am nevertheless satisfied that this ground has been made out, and that the sentence imposed by her Honour in respect of count 1 was manifestly excessive. There are a number of matters which have led me to form that view.

1. Firstly, it is significant that her Honour did not find that the applicant's offending which constituted count 1 was aggravated in any particular way, nor did she identify any other factor which might have justified a starting point of 22 years imprisonment. That starting point was only three years less than the prescribed maximum penalty. That, of course, is the penalty reserved for an offence falling within the worst category (see generally Ibbs v R (1987) 163 CLR 447). Her Honour did not make a finding that the applicant's offending was within, or even close to, that category.

1. By way of example, but without being exhaustive, offending of this nature can be aggravated by matters such as threats designed to have a victim comply with certain acts, the perpetration of violence towards the victim (be it for the purposes of ensuring compliance or otherwise), and threats of reprisals to the victim in the event that the offending is reported to the authorities. One or more of those factors, had they been present in the applicant's offending, may have had the capacity to justify a starting sentence towards the upper end of the prescribed maximum penalty. However, no such factors formed a part of the applicant's offending. In my view, the absence of a finding that the applicant's conduct was aggravated in any relevant way goes some way to supporting a conclusion that the sentence imposed by her Honour was manifestly excessive, in the sense of being unreasonable or plainly unjust.

1. I am fortified in that view by the extensive and detailed findings which her Honour reached in the applicant's favour. No issue was raised by the Crown in the hearing of this appeal in relation to any of those findings. Importantly, they included a number of important findings in relation to the applicant's mental state both before and at the time of the offending. Her Honour described the applicant's mental state as "precarious". Importantly, she also found that there was a causal link between that mental state and the applicant's offending.

1. In my view, the nature and the extent of the findings which were made in the applicant's favour are not reflected in the sentence that was ultimately imposed in relation to count 1. I am left to conclude that having reached such findings, her Honour failed to ascribe sufficient weight to them in the sentencing process, resulting in the imposition of a sentence which was manifestly excessive.

1. For these reasons I would uphold ground 2.

Ground 3 - The sentencing judge erred in determining the objective seriousness of the offence under s. 66A(2) of the Crimes Act 1900 (NSW).

Ground 4 - the sentencing judge erred in taking into account the standard non-parole period in respect of the offence under s. 66A(2) of the Crimes Act 1900 (NSW)

Ground 5 - the sentence in respect of the offence under s.66A(2) of the Crimes Act 1900 (NSW) is manifestly excessive.

Her Honour's findings

1. The offence under s. 66A(2) (which was count 3) carried a standard non-parole period of 15 years, which was the non-parole period her Honour ultimately imposed.

1. I have previously noted that her Honour reached the conclusion that each episode of the applicant's offending fell above the mid range of objective seriousness, but did not take the further step of reaching a conclusion regarding the extent to which this was the case. Further, in sentencing the offender her Honour made reference (at AB 29) to the fact that the complainant:

"..... had been snatched from the yard of her home and driven away from the presence of her mother in the circumstances as I have described - as the Crown rightfully submits, particularly heinous crimes".

The submissions of the parties

1. In support of ground 3, senior counsel for the applicant submitted that the circumstances referred to by her Honour in that passage of her reasons set out in [63] above were what rendered the offence under s. 66A(2) aggravated. In these circumstances, senior counsel submitted that it should be concluded from that passage that her Honour gave too much weight to the fact of the complainant's deprivation as a factor aggravating the objective seriousness of the offence.

1. Senior counsel further submitted that in light of the paucity of the evidence which was before her Honour as to the precise circumstances of the offending in count 3, her determination of the objective seriousness of that offence, namely that it fell above the mid range, was an error.

1. In respect of ground 4, senior counsel for the applicant submitted that there was a lack of transparency in her Honour's approach. This was said to have arisen from her Honour's finding that the applicant's offending in respect of count 3 was above the mid range. Senior counsel submitted that a sentencing judge who chooses to adopt an approach to sentencing which involves a finding being made in those terms, assumes an added obligation to make his or her findings transparent by indicating the extent to which the offending falls above that particular point in the range.

1. In respect of ground 5 senior counsel submitted that even if a conclusion were reached that grounds 3 and 4 were not made out, the sentence imposed in respect of count 3 was nevertheless one which was manifestly excessive. In this regard he relied firstly upon other decisions of this Court which, he submitted, supported the conclusion that the sentence was manifestly excessive. He also pointed to the fact that, to the extent that it could be ascertained by reference to available material, the sentence imposed upon applicant was the highest imposed for an offence under s. 66A(2). Senior counsel further relied upon the findings made by her Honour in favour of the applicant which, he submitted, were inconsistent with the sentence which was ultimately imposed.

1. The Crown submitted, by reference to the decision in PK (supra) that her Honour had not erred in her assessment of the objective seriousness of the offence contrary to s. 66A(2). The Crown further submitted that if error was found in this regard, it was of little or no significance.

1. As to ground 4, the Crown pointed out that an offence under s. 66A(2) carried a maximum penalty of life imprisonment, and a standard non-parole period of 15 years, and that her Honour was bound to have regard to both of those matters (as well as other factors) in determining an appropriate sentence. The Crown submitted that the sentence imposed reflected that her Honour had proper regard to those considerations.

1. In respect of ground 5, the Crown relied upon the observations of this Court in PK (supra) that offences of this nature are amongst the most serious in the Crimes Act, as evidenced by the maximum penalty of life imprisonment. The Crown submitted that the imposition of a significant sentence was what the legislature had decreed, and that it was the function of her Honour, and this Court, to implement the dictates of the legislature (as to which see R v AJP (2004) 150 A Crim R 575 at [37] per Simpson J). The Crown also submitted that the fact that the sentence imposed upon the applicant was higher than any other imposed did not, of itself, establish that the sentence was manifestly excessive.

CONSIDERATION AND CONCLUSION

1. In respect of ground 3, I am not persuaded that her Honour erred in determining the objective seriousness of the offence. On the evidence which was before her, and having regard to the nature and circumstances of the offending, it was open to her Honour to reach the conclusion that she did.

1. To the extent that the applicant's written submissions suggested that the objective seriousness of the offending was less because the intercourse was in the nature of fellatio, such a submission should be rejected for two reasons. Firstly, the submission reflects a serious underestimation of the reality of the applicant's offending. Secondly, it reflects an approach which is contrary to principle. The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).

1. For these reasons, ground 3 is not made out.

1. As to Ground 4, I do not accept the proposition that her Honour's reasons exhibited a lack of transparency. Her Honour made a finding as to the objective seriousness of the offending which was quite clear, and which was open on the evidence. For the reasons I have previously expressed, the weight of authority favours the proposition that her Honour did not err by failing to take the additional step of specifying the extent to which the offending exceeded the mid range.

1. As to ground 5, the first observation to be made is that simply because a particular sentence is the highest which has ever been imposed for a particular offence does not, without more, establish manifest excess. Such a bald proposition necessarily fails to take into account the circumstances of the particular offending, and the circumstances of the offender, which resulted in the particular sentence being imposed. There is also considerable merit in the Crown's submission that, as a matter of common sense, there will always be a sentence which constitutes the longest sentence imposed for a particular type of offending. .

1. A number of the decisions upon which senior counsel for the applicant relied in support of this ground are referred to in the judgment of McClellan JA in Leslie v R [2013] NSWCCA 48. As I have previously noted, comparative exercises of the kind that this Court was invited to undertake must necessarily be approached with caution. I do not propose to set out the circumstances of the individual cases to which the Court was referred. As might be expected, they exhibit both similarities and differences when compared to the case of the applicant. However, even when full weight is given to that circumstance, those cases tend to establish a sentencing pattern for offending of this nature which is, generally speaking, somewhat lower than the sentences imposed upon the applicant .

1. It is necessarily part of this Court's function to pay heed to, and apply, the principle of consistency in sentencing (see Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [47]). With that in mind, I have come to the view that the sentence imposed by her Honour in respect of count 3 is in excess of the range which is established by the decisions of this Court, to which we were referred.

1. Further in my view, and for the reasons I expressed in relation to ground 2, the sentence imposed by her Honour does not sit comfortably with the findings which were reached in the applicant's favour. I am again left to conclude that having made those findings, her Honour failed to afford them sufficient weight in the sentencing process, resulting in the imposition of a sentence in respect of count 3 which was manifestly excessive, in the sense of being unreasonable or plainly unjust.

1. For these reasons I would uphold ground 5.

ORDERS

1. Her Honour (at AB 32) made a finding of special circumstances based upon the applicant's mental health, the fact that this was his first time in custody, the conditions of that custody and the fact that he would need a longer than normal period of parole in order to enhance his prospects of rehabilitation. On the evidence before her Honour that finding was appropriate.

1. The orders that I propose will result in the applicant being re-sentenced in terms of counts 1 and 3. The sentences that I propose in respect of those counts take into account her Honour's finding of special circumstances.

1. I propose the following orders:

(i)   leave to appeal granted;

(ii)   appeal allowed;

(iii) the sentence imposed in respect of count 1, being the offence against s. 66B of the Crimes Act is quashed;

(iv)   in lieu thereof the applicant is sentenced to a non-parole period of 10 years and 6 months imprisonment commencing on 25 February 2011 and ending on 24 August 2021, with a balance of term of 4 years and 6 months imprisonment commencing on 25 August 2021 and ending on 24 February 2026;

(v) the sentence imposed in respect of count 3, being the offence against s. 66A(2) of the Crimes Act is quashed;

(vi)   in lieu thereof the applicant is sentenced to a non-parole period of 12 years and 7 months imprisonment commencing on 25 May 2011 and expiring on 24 December 2023, with a balance of term of 5 years and 5 months imprisonment commencing on 25 December 2023 and expiring on 24 May 2029;

(vii)   the total overall sentence imposed upon the applicant is a non-parole period of 13 years and 4 months, commencing on 25 August 2010 and expiring on 24 December 2023, and a balance of term of 5 years and 5 months, commencing on 25 December 2023 and expiring on 24 May 2029;

(viii)   the earliest date upon which the applicant may be released to parole is 25 December 2023.

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Decision last updated: 17 April 2013