Keeley v R
[2014] NSWCCA 139
•25 July 2014
Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Keeley v R [2014] NSWCCA 139 Hearing dates: 14 February 2014 Decision date: 25 July 2014 Before: Ward JA at [1];
Johnson J at [9];
RS Hulme AJ at [145]Decision: Leave to appeal against sentence granted.
Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - Applicant pleaded guilty to three counts of aggravated sexual intercourse without consent contrary to s.61J Crimes Act 1900 and one count of aggravated robbery involving the deprivation of personal liberty contrary to s.95 Crimes Act 1900 - indecent assault offence also taken into account on Form 1 - Applicant accosted victim (a stranger) in public street and forced her down alleyway at knifepoint - Applicant then engaged in one digital penetration offence and two penile/vaginal penetration offences before robbing victim of her wallet and running away - 29-year old offender - Applicant with polysubstance dependence and Cluster B Personality Disorder (Anti-Social and Borderline Personality Disorder) - concerns about risk of reoffending - whether findings of fact in relation to degree of premeditation and Applicant's level of intoxication lacked evidentiary basis - findings open on evidence - whether partially accumulated sentences imposed for penile/vaginal penetration offences effected double punishment of Applicant contrary to law - no error demonstrated - whether sentences manifestly excessive - objective gravity of offences - sexual attack by armed offender upon woman in public street - repeated sexual assault offences - importance of general deterrence on sentence for offences of sexual violence committed against stranger in a public street - sentences not unreasonable or plainly unjust - appeal dismissed Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases Cited: Beldon v R [2012] NSWCCA 194
Boney v R [2008] NSWCCA 165
Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Currie v R [2013] NSWCCA 267
Doe v R [2013] NSWCCA 248
Duffy v R [2009] NSWCCA 304
Hili v The Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MH v R [2011] NSWCCA 230
Mulato v R [2006] NSWCCA 282
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Da Silva (NSWCCA, 30 November 1995, unreported)
R v Fernando (1992) 76 A Crim R 58
R v Gill [2010] VSCA 67
R v GWM [2012] NSWCCA 240
R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1
R v Hilton [2005] NSWCCA 317; 157 A Crim R 504
R v Hinchliffe [2013] NSWCCA 327
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v King [2009] NSWCCA 117
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v O [2005] NSWCCA 327
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
Simpson v R [2014] NSWCCA 23
Smith v R [2013] NSWCCA 209
Stephens v R [2010] NSWCCA 93
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
ZZ v R [2013] NSWCCA 83Texts Cited: --- Category: Principal judgment Parties: Daniel Paul Keeley (Applicant)
Regina (Respondent)Representation: Counsel:
Mr T Gartelmann (Applicant)
Mr RA Herps (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2011/259044 Publication restriction: --- Decision under appeal
- Citation:
- ---
- Date of Decision:
- 2012-08-31 00:00:00
- Before:
- Wells SC DCJ
- File Number(s):
- 2011/259044
Judgment
WARD JA: I have had the opportunity of reading in draft the judgments of Johnson J and RS Hulme AJ. I agree, for the reasons given by Johnson J, that leave to appeal against the sentence should be granted and that the appeal should be dismissed.
The Applicant pleaded guilty to and has been convicted of three counts of aggravated sexual assault and one count of robbery. The factual circumstances in which the offences took place are detailed in Johnson J's judgment at [15]-[43]. They were, on any view of the matter, very serious offences. The Applicant's treatment of the victim was humiliating and degrading.
The objective seriousness of an offence is to be determined by reference to the facts and circumstances of the particular case in question. In Mulato v R [2006] NSWCCA 282, Spigelman CJ stated (at [37]) that characterisation of the degree of objective seriousness of an offence is quintessentially within the role of the sentencing Judge in performing the fact finding exercise and drawing inferences from those facts. His Honour noted that the Court will be very slow to set aside a judgment made by a first-instance Judge exercising a broadly based discretion and considered that the question was whether or not the particular characterisation given by the sentencing Judge to the circumstances of the offence was open. Bathurst CJ referred to that statement of principle in R v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51].
In the present case, the sentences for Counts 1 and 2 reflect that the sentencing Judge considered that the offence the subject of the first penile/vaginal intercourse was objectively more serious than the offence involving digital penetration. There were factors, to which her Honour referred, that made each of those offences objectively very serious. I do not consider that her Honour erred when sentencing on the digital penetration count nor do I consider that the sentence for that count was manifestly excessive. I have nothing further to add to the reasons of Johnson J in that regard.
The second point of disagreement between Johnson J and RS Hulme AJ is as to whether the sentencing Judge erred, when imposing sentence for the second offence of penile/vaginal intercourse (Count 3), by referring to the context of what had preceded it and in observing that the complainant might have thought her ordeal was over after the first offence of penile/vaginal intercourse.
Her Honour's comments as to the latter were not, and did not in terms purport to be, a finding that the complainant had in fact thought her ordeal was over after the second s.61J offence. Nevertheless, an inference that the complainant might reasonably have thought that was the case was in my opinion open to her Honour. The Applicant had ejaculated at the conclusion of the first count of penile/vaginal intercourse. His penis had become flaccid. The demand then made of his victim, to which RS Hulme AJ has referred, while an indication on the Applicant's part of a wish to continue some form of sexual assault is not inconsistent with the reasonable conclusion that the worst of the victim's sexual ordeal was over.
It was appropriate for her Honour to take into account the whole of the circumstances of the offending, including that the further sexual conduct occurred at a time when the victim had already been subjected to a violent and terrifying ordeal. Further penile/vaginal intercourse, albeit that it did not conclude in ejaculation, carried with it a renewed risk of infection and pregnancy; it was a repeated sexual attack and, as noted, it was of a humiliating and degrading kind. Her Honour did not in my opinion err in the exercise of her sentencing discretion.
For those reasons, I agree with Johnson J.
JOHNSON J: The Applicant, Daniel Paul Keeley, seeks leave to appeal against sentences imposed at the Newcastle District Court on 31 August 2012 with respect to serious sexual assault and robbery offences.
The Applicant pleaded guilty before her Honour Judge Wells SC to the following offences:
(a) three counts of aggravated sexual intercourse without consent (involving the infliction of actual bodily harm) contrary to s.61J Crimes Act 1900, each punishable by a maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years;
(b) one offence of aggravated robbery involving the deprivation of personal liberty contrary to s.95(1) Crimes Act 1900, punishable by a maximum penalty of 20 years' imprisonment.
By way of a Form 1, the Applicant requested the sentencing court to take into account, on sentence for one of the s.61J offences, an offence of indecent assault contrary to s.61L Crimes Act 1900 which, if prosecuted separately, would have been punishable by a maximum penalty of five years' imprisonment.
The sentencing Judge imposed the following terms of imprisonment:
(a) for the offence of aggravated robbery, a fixed term of imprisonment of 18 months to commence on 11 August 2011 and expire on 10 February 2013;
(b) for the first offence of aggravated sexual intercourse without consent (digital penetration), imprisonment comprising a non-parole period of seven years and six months commencing on 11 August 2012 and expiring on 10 February 2020, with a balance of term of two years and six months commencing on 11 February 2020 and expiring on 10 August 2022;
(c) for the second offence of aggravated sexual intercourse without consent (penile penetration), taking into account the matter on the Form 1, imprisonment comprising a non-parole period of nine years commencing on 11 August 2012 and expiring on 10 August 2021, with a balance of term of three years commencing on 11 August 2021 and expiring on 10 August 2024;
(d) for the third offence of aggravated sexual intercourse without consent (penile penetration), imprisonment comprising a non-parole period of nine years commencing on 11 August 2014 and expiring on 10 August 2023, with a balance of term of three years commencing on 11 August 2023 and expiring on 10 August 2026.
The overall effective sentence involved a head sentence of 15 years' imprisonment, with a non-parole period of 12 years expiring on 11 August 2023 and a balance of term of three years expiring on 10 August 2026.
Grounds of Appeal
The Applicant relies upon the following grounds of appeal:
(a) Ground 1 - The sentencing Judge erred in making factual findings lacking an adequate evidentiary foundation.
(b) Ground 2 - The sentencing Judge erred in imposing sentences that doubly punished the circumstances of the last offence.
(c) Ground 3 - The sentences are unreasonable and/or plainly unjust.
Facts of the Offences
What follows is drawn from an Agreed Statement of Facts tendered in the District Court.
In July 2011, the victim, a 23-year old woman, was working at a shopping centre in Newcastle West. She lived at The Hill and usually drove to and from work.
On 11 July 2011, the victim was due to leave for work at 2.45 pm and went to her car. She discovered that she had a flat tyre and arranged for a friend to drop her at work. She informed her friend that she would make her own way home. Her working hours that day were from 3.00 pm to 8.00 pm.
Upon completing work at about 8.00 pm, the victim obtained some advice from work colleagues as to the safest way to walk home. She followed the advice and commenced her journey home on foot.
Photographs obtained from closed-circuit television footage were tendered at the sentencing hearing. They depict the victim walking in the street. The sentencing Judge observed that the photographs demonstrated that she was a young lady of slight build.
The Victim is Accosted by the Applicant in the Street
As the victim walked along Parry Street, Cooks Hill, approaching Dawson Street, she observed the Applicant (then aged 29 years) walk diagonally across the road at that intersection. She thought that he had walked down Dawson Street towards King Street.
As she crossed Dawson Street, the victim noticed movement out of the corner of her eye. She saw the Applicant jogging towards her. The Applicant said, "Hey wait, wait, wait". The victim responded, "What are you doing?". The Applicant then grabbed the victim's wallet from her hand. She thought that he was going to run off with her wallet. The victim said to the Applicant, "Just take it".
At this point, the victim had an opportunity to observe her assailant in some detail. She noted that he was wearing a black beanie and a black-coloured ski jacket, with a zip at the front, made of canvas or other hard material. The jacket was done up to his chin. The Applicant was wearing tracksuit pants. The Applicant had a beard and was about 5'9" tall and of medium build.
The Applicant initially took two or three steps away from the victim, but then came back to her and said, "Come on, come on, come with me". At the time he was behind the victim, pushing her with his left hand and had his right arm over her chest. The victim said, "What are you doing?". The victim tried to call "000", but the Applicant noticed she had a phone and said, "Give me the phone". The victim threw the phone away so the Applicant could not get it.
The Applicant Forces the Victim into an Alley at Knifepoint
The Applicant said, "Be quiet, come this way" and was pushing the victim. He said, "Look, do you want me to cut you?". The victim then realised that the Applicant was holding a knife to her neck. At this point, they were in the middle of the intersection. She complied with the Applicant's request to move and he said, "Slow down, I can't run that fast".
The Applicant forced the victim towards an alley that ran between houses and a bowling club. She was continually saying to the Applicant, "Stop it, what are you doing? No, no, no". The victim was trying to rationalise with the Applicant, but he kept telling her to be quiet. She said to him, "Take my money, I'll give you my money. I'll give you my keycard, we can go to the bank and get you money". The Applicant responded, "I'll cut you. Come with me".
Once in the alleyway, the Applicant continued to tell the victim to be quiet. She said, "Don't, I have my period". The Applicant said, "Get on the ground". He forced the victim onto the ground and onto her back. In the process, the victim suffered a graze to her knee.
The victim saw a knife in the Applicant's right hand. She grabbed hold of his right hand and said "No". She could smell alcohol on him. The Applicant was touching the victim near her vagina, on the outside of her clothes. She called for help. The Applicant said, "Shut up. Do you want me to stab you? I'll stab you. Don't say help again. I'll stab you". The victim responded, "Ok".
The victim had hold of the Applicant's hand containing the knife and he was moving his hand around in an effort to break her grip. He said, "Let go of my wrist or I'll stab you". He then held the knife above her head and forced the knife down hard. As she was in the process of protecting herself, the Applicant cut the victim's left hand and she let go of his hand.
At this point, the Applicant's mobile phone rang, which was ignored.
The Applicant then put his right hand and the knife between the victim's legs and cut her skirt, underpants and stockings and removed them. She said again, "I have my period" but the Applicant responded, "You are lying".
Aggravated Sexual Intercourse Without Consent - Digital Intercourse (Offence 1)
The Applicant then inserted his fingers into the victim's vagina. He had moved the knife from his right hand to his left hand and held it near her head. The victim then asked if she could remove her tampon and she did so.
The Applicant was lying on top of the victim and was pressing down hard upon her. The Applicant removed his own pants. The victim put her hands down near his waist in an unsuccessful effort to push him off, and in doing so she touched the Applicant's penis which she noticed was small and soft. The Applicant said, "Kiss it". To avoid having to perform fellatio, she masturbated the Applicant.
The victim tried to calm the Applicant down, being in fear that she was going to be stabbed.
Aggravated Sexual Intercourse Without Consent - Penile/Vaginal Intercourse (Offence 2)
The Applicant's penis became hard. He tried to put his penis into her vagina. The victim, in an effort to hasten the end of the ordeal, assisted the Applicant to insert his penis into her vagina. He then had sexual intercourse with her. The Applicant kissed her on the face. He told her, "Kiss me, open your mouth". She complied, noting that he tasted of sweet alcohol. The Applicant ejaculated and his penis went soft.
The Applicant said to the victim, "Try to make me hard. I want to see your tits". The victim exposed her left breast. She again masturbated the Applicant. The Applicant inserted fingers into her vagina whilst saying disgusting things to her (there was no separate charge relating to this event).
Indecent Assault (Form 1)
The Applicant told her, "You have the nicest little tits and you are so tight". The Applicant started kissing her on the left breast. This constituted the indecent assault offence on the Form 1.
Aggravated Sexual Intercourse Without Consent - Penile/Vaginal Intercourse (Offence 3) and Aggravated Robbery (Offence 4)
The Applicant then put his penis into her vagina and had sexual intercourse with her. His mobile rang again. The Applicant stopped. He stood up and pulled up his pants. He said something like, "Thank you Miss". He picked up her wallet and ran.
The victim composed herself. She used her cardigan to cover the lower half of her body and walked down the lane towards Dawson Street, being the opposite direction to that which the Applicant had fled. When she reached Dawson Street, she saw the Applicant and ducked behind a car to hide from him.
The Victim Complains and Assistance is Provided
The victim knocked on a nearby door and told the occupant, "I've been raped. Will you help me please". Police and an ambulance were called.
Police attended and the victim was taken to the John Hunter Hospital. She had sustained a laceration to a finger on her left hand, a graze to her left knee, bruising and abrasions to her back and general soreness. As a result of forensic examination and analysis, a semen sample was obtained which contained DNA consistent with the Applicant.
The Applicant Takes Steps to Avoid Detection
On 16 July 2011, the Applicant attended the RTA to obtain a fresh licence in the name of Daniel Paul Keeley. Up until that time, his licence had been in the name of Daniel Paul Marriott. This involved changing his surname to his mother's maiden name. The Applicant had shaved off his full facial beard.
The Applicant is Arrested and Charged
Thereafter, the Applicant travelled to Bali for a holiday. On 11 August 2011, the Applicant was arrested at the Sydney International Airport on his return from Bali. The Applicant maintained his innocence to police and declined to be interviewed. He was charged with the present offences.
The Applicant remained in custody after his arrest on 11 August 2011.
Impact of the Offences Upon the Victim
An affidavit of the victim dated 21 November 2011 was tendered at the sentencing hearing. The sentencing Judge recorded the contents of that affidavit and made findings which were not challenged in this Court (ROS4):
"In an affidavit dated 21 November 2011 she indicated that the attack upon her has left her severely depressed and suicidal. She says [she] has not told her closest friends or family the details. She describes it as the most personal and traumatic thing that has ever happened to her. There can be no doubt that circumstances such as these would be likely to cause her to suffer lasting depression and affect her emotionally for the rest of her life."
The Applicant's Subjective Circumstances
The Applicant was born in August 1981. He was 29 years old at the time of the offences and 31 years of age at the time of sentence.
The Applicant has a record of prior convictions for property, driving, firearm and drug offences. He has no prior convictions for sexual offences.
There are a number of entries for break, enter and steal, larceny and PCA offences between 1993 and 2005. In the Children's Court, he had been sentenced to community-based orders and control orders. In the Local Court, he had been sentenced to community-based orders and, in 2005, he received a six-month suspended sentence for an offence of driving with high-range PCA. He has not previously been sentenced to full-time imprisonment.
On 20 September 2012, some three weeks after the imposition of the present sentences, the Applicant was sentenced to terms of imprisonment in the Newcastle Local Court for 13 offences of larceny and three offences of malicious damage to property. These sentences (as they must) ran entirely concurrently with the present sentences. As the Applicant had been in custody since his arrest for the present offences on 11 August 2011, and had been on holiday in Bali for part of the month between the sexual assault offences and his arrest, it is likely that these further offences were committed prior to, or soon after, the sexual assault offences. I will return to this aspect later in the judgment.
A report dated 19 June 2012 of Dr Christopher Bench, psychiatrist, was tendered at the sentencing hearing, together with a report of Ms Debbie Case, psychologist, dated 31 January 2012. The Applicant did not give evidence and no other oral evidence was given at the sentencing hearing.
The reports revealed that the Applicant was the only child of his parents. His mother was Aboriginal and his father was Caucasian. The Applicant's parents separated when he was two years of age and he resided thereafter with his mother. When he was five years of age, his mother remarried and had three more children. The Applicant has had no contact with his father since he was 10 years of age.
The Applicant was unemployed at the time of these offences and in receipt of unemployment benefits. He had been employed in the past in various positions, including in a wrecking yard, a cleaning business, a factory and labouring positions.
The Applicant informed the psychiatrist and psychologist that he had been sexually assaulted by a soccer coach when he was 10 years of age. He stated that he attended counselling for about three months. He completed Year 8 at school, but was expelled. He left home in his late teens. He attempted Year 10 at TAFE, but did not attend regularly because of substance-abuse issues.
Static risk assessment undertaken by Ms Case placed the Applicant in the medium-to-high range in terms of risk of reoffending in relation to sexual matters. Personality testing by Ms Case indicated the presence of severe pathological personality traits, namely borderline personality traits which may lead him to suffer from intense instability of mood and behaviour. High scores on drug dependence and alcohol dependence confirmed a number of associated traits, including hedonism and impulsiveness. Ms Case observed that such offenders are widely accepted as challenging to treat and most respond slowly.
Dr Bench noted that the Applicant would meet the diagnostic criteria for polysubstance dependence and for Cluster B Personality Disorder with borderline and antisocial traits. According to Dr Bench, the Applicant has had an almost lifelong pattern of mood instability, unstable interpersonal relationships, impulsive behaviour in the form of drug use, gambling and violence, recurrent suicidal behaviour and difficulty controlling his anger. Dr Bench considered that the Applicant has personality traits of both Anti-Social and Borderline Personality Disorder, prompting the diagnosis of Cluster B Personality Disorder.
With respect to the risk of recidivism, Dr Bench noted as concerning features the Applicant's drug and alcohol abuse, his relationship instability and domestic violence in his relationship at the time of the present offences, with a further factor affecting his risk of reoffending being his "significant personality pathology".
Dr Bench found that there was no evidence to suggest that the Applicant was suffering from a significant mood, anxiety or psychotic disorder at the time of the present offences.
Dr Bench considered that the Applicant needed to abstain from all drugs and alcohol for life or he would be a significant risk of reoffending.
The sentencing Judge observed that there was nothing in the Applicant's circumstances that indicated features that would attract application of the principles in R v Fernando (1992) 76 A Crim R 58 (ROS5). It was not submitted in this Court that this approach was wrong or that the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 apply to this case.
The Applicant had expressed remorse for the present offences in his conversations with Dr Bench and Ms Case. The sentencing Judge noted, however, that the Applicant had entered pleas of guilty only after the DNA evidence became available. The Applicant did not give evidence at the sentencing hearing. Her Honour observed that, in these circumstances, limited weight should be given to the Applicant's expressions of remorse.
Her Honour allowed a 25% discount for the utilitarian value of the Applicant's pleas of guilty.
Ground 1 - Claim of Error in Making Factual Findings Lacking an Adequate Evidentiary Foundation
This ground of appeal is directed to findings made by the sentencing Judge concerning the Applicant's level of premeditation and the rejection of a submission that the offences were opportunistic.
The Applicant did not give evidence at the sentencing hearing. However, submissions were made by reference to his accounts to the authors of the psychiatric and psychological reports. The Applicant had said to them that he had been fishing that day, that the offence had occurred on the spur of the moment and that he was significantly intoxicated.
Her Honour referred to these matters (ROS9-10):
"In relation to the offences, he said to both the psychologist and the psychiatrist that he had been fishing all day and that he had consumed around twenty-two beers. He said he had smoked marijuana early that morning before he left. He reported confusion about his motivation in committing the offences. He said the details were unclear and it was like a dream. He said to the psychologist that he was able to remember the sexual acts but could not remember taking the victim into the alley or threatening her in any way.
That account is not consistent with the duration of the behaviour to which he has pleaded, nor with the account given by the complainant, which omits any mention at all of him appearing to be intoxicated by way of slurred speech, stumbling, falling around. To the contrary, what she noticed was the taste or smell of alcohol only when she had to kiss him.
He said that his loss of memory with regard to the details might have been in part due to intoxication, though he did admit to the psychologist that it was likely that he was reluctant to admit to himself what he had done. He denied to the psychologist that the offence was premeditated and said that the knife was in his bag from his day out fishing.
He told Dr Bench that it was all kind of a blur, that he did not remember much and that he did not remember exactly what happened. He said he remembered standing at the corner and bumping into the complainant. He remembered taking her into the alleyway and doing what he did but he could not recall all of the details, only some. He said he remembered thinking about the way he wanted to go home before the offences and that he wanted to avoid Darby Street with all of his fishing gear.
The complainant, as I have noted, gave a detailed description of his appearance and clothing. She did not note that he had any bag or fishing tackle. Given the extent of detail she provided, had he had a bag or fishing tackle it seems to me that she would have noticed that."
Other findings under challenge were contained in the following extract from the remarks on sentence (ROS10-11):
"Consequently, the story that he has given about fishing all day is either an invention or he had his gear hidden away somewhere in order to allow the offences to be committed. On either scenario, it must be inferred that there was a significant level of premeditation. He has not given any sworn evidence to the effect that it was not premeditated and consequently I give little weight to that claim.
At the commencement of the offence, he asked the complainant for her purse. Though never submitted, it might be postulated that the events started out as a robbery and at some point he changed his mind and it turned into more, namely the aggravated sexual assaults. On the other hand, he seemed to immediately know that the laneway or alleyway was available. He took her, on her account, quite directly into that area in order to commit the offences.
For those reasons, I reject his claim that this was an opportunistic set of offences. It was either not the case that he had been fishing all day as he claims or he had planned this attack at least by the time that he needed to secrete his bag or fishing gear.
Taking into account the manner in which he was able to carry out the offences, I conclude that he is exaggerating the amount of alcohol that he says he consumed that day and that he is doing that to mitigate the seriousness of what he has done. I find that he is less than frank when he says that he has little memory of the details of these offences. He was able to maintain control of the complainant for an extended period of time. He was able to march her down a dark alleyway at knifepoint. He was able to change the knife from one hand to another whilst removing her clothing and removing his own.
Accordingly, I do not accept that he was as intoxicated as he would want this court to believe. I would accept that he was intoxicated to a small extent but not such as he claimed.
I find that there was some level of premeditation or planning and that this was not an entirely opportunistic offence."
A further finding of the sentencing Judge should be noted (ROS16-17):
"Nor is it found that his judgment was affected by the effects of voluntary excessive consumption of alcohol or drugs. As indicated already, this offence did not have the hallmarks of someone who was excessively or even moderately under the influence of alcohol or drugs such that there was impact on his judgment. He carried out the offences in an efficient and forceful manner."
Submissions of the Parties
Mr Gartelmann, counsel for the Applicant, noted the rejection by the sentencing Judge of the Applicant's account of the amount of alcohol he had consumed as it was "not consistent with the duration of the behaviour" involved in the offences, and the absence of "any mention at all of him appearing to be intoxicated by way of slurred speech, stumbling, falling around" in the victim's account. Counsel pointed to the Judge's finding that the offences did not have the "hallmarks" of someone excessively or even moderately under the influence of alcohol, as they were carried out in an "efficient and forceful manner" (ROS17).
Mr Gartelmann submitted that there was no adequate evidentiary foundation for the finding that the offences were premeditated or planned. It was submitted that the absence of mention in the Agreed Facts of the victim noticing the Applicant with fishing gear did not establish that the Applicant either did not have fishing gear or had secreted it. The fact that the Applicant took the victim directly to the lane did not establish that he had prior knowledge of the lane, or planned to commit the offences there.
Although counsel accepted that it was open to the sentencing Judge not to accept the Applicant's explanation for possession of the knife, it was submitted that the conclusion that he planned to commit the offences was unwarranted. It was submitted that, as the sentencing Judge had recognised, it was possible that the Applicant initially intended to take the victim's wallet, then changed his mind, and yet the facts did not disclose the knife was used in the robbery.
It was submitted further that there was no adequate evidentiary foundation for the finding that the Applicant exaggerated the amount of his alcohol consumption and the level of his intoxication. According to this submission, the sentencing Judge was incorrect in stating that the victim only noticed the taste or smell of alcohol when she had to kiss the Applicant, as the Agreed Facts stated that the victim smelt alcohol on the Applicant at an earlier stage. It was submitted further that the manner in which the offences were committed did not provide an adequate evidentiary foundation for the Judge's conclusion regarding the Applicant's level of intoxication.
Counsel submitted that, although it was open to the sentencing Judge not to be satisfied of the Applicant's accounts to the psychiatrist and psychologist regarding his alcohol consumption and level of intoxication, the conclusion that he exaggerated it in order to mitigate the seriousness of the offences was unjustified.
In support of the submission, Mr Gartelmann referred to The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]-[28] and Duffy v R [2009] NSWCCA 304 at [21].
Counsel for the Applicant submitted that the findings that the offences were premeditated or planned, and that the Applicant exaggerated the amount of his alcohol consumption and the extent of his intoxication in order to mitigate the seriousness of the offence, were findings adverse to the Applicant and were required to be established beyond reasonable doubt. It was contended that neither the evidence in the proceedings, nor inferences reasonably to be drawn from the evidence, justified these findings.
Counsel also submitted that the findings were material to the exercise of the sentencing discretion as they deprived the Applicant of leniency that might otherwise have been warranted.
The Crown noted that the sentencing Judge's ultimate finding concerning planning was that "there was some level of premeditation or planning and that this is not an entirely opportunistic offence" (ROS11). It was submitted that this finding was open to the sentencing Judge and that it involved a limited finding adverse to the Applicant, with an acceptance of a limited level of premeditation or planning.
With respect to the finding concerning intoxication, the Crown submitted that it was open to the sentencing Judge, by reference to the documentary evidence, to conclude that the Applicant had exaggerated the amount of alcohol he had consumed prior to the commission of the offences. In any event, the Crown submitted that there was nothing in the remarks on sentence to indicate that the finding concerning intoxication operated in a manner to occasion a harsher sentence than might otherwise had been imposed.
Decision
This ground of appeal seeks to challenge a factual finding made by the sentencing Judge. The approach of this Court in determining such a ground was summarised in R v Hinchliffe [2013] NSWCCA 327 at [196] in the following way:
"To overturn a factual finding by a sentencing Judge, it is necessary for this Court to be satisfied that there was an error of principle, or a mistake of fact or law, such that the sentencing discretion of the trial Judge miscarried. In its review, the Court is bound by findings of fact by the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King [1936] HCA 40; 55 CLR 499 at 504-505: R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 573 [61]."
It should be kept in mind that the Applicant did not give evidence at the sentencing hearing. The evidence before the Court to be considered for the purpose of these factual issues comprised the Agreed Statement of Facts and the psychiatric and psychological reports tendered at the sentencing hearing.
In these circumstances, it was correct for the sentencing Judge to give very limited weight to the statements made by the Applicant to the psychiatrist and psychologist reproduced in their reports: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377 [58]-[59], 380 [79]; R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-185 [39]-[41].
The finding actually made by the sentencing Judge with respect to premeditation was, in reality, the most favourable finding which the Applicant could have expected in light of the evidence adduced on sentence. The sentencing Judge did not characterise the offence as fully or substantially premeditated, nor was the claim of opportunism completely rejected. The sentencing Judge's finding was that there "was some level of premeditation or planning and that this was not an entirely opportunistic offence".
This finding was open on the evidence and did not operate to the disadvantage of the Applicant. Indeed, as has been mentioned, he could not reasonably expect any better finding on this aspect in light of the evidence before the sentencing Judge.
The Applicant has not established error with respect to this finding.
In making a finding concerning intoxication, the sentencing Judge was entitled to have regard to the narrative of the offences contained in the Agreed Statement of Facts, based as it was upon the close attention paid by the victim to the Applicant's words, acts and demeanour throughout the whole frightening episode.
The accounts provided by the Applicant to the psychiatrist and psychologist concerning his intake of alcohol and his fishing activities were, of course, unsworn and untested. There was, in fact, some inconsistency between the accounts set out in the two reports.
I do not accept the submission for the Applicant that the onus lay upon the Crown to prove beyond reasonable doubt any proposition in this case. It was the Applicant who raised the question of intoxication in the accounts he provided to his psychiatrist and psychologist. A submission was made on his behalf that intoxication was to be taken into account in his favour on sentence. The sentencing Judge did not accept the submission made concerning intoxication, noting as well that there had been a measure of exaggeration on the Applicant's behalf according to the evidence.
The Applicant was sentenced before the commencement of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999 on 31 January 2014. That section now excludes by statute self-induced intoxication being taken into account as a mitigating factor on sentence. However, the law at the time when the Applicant was sentenced was to a similar effect. Although an offender's intoxication, whether by alcohol or drugs, could explain an offence, it ordinarily did not mitigate the penalty: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at 44 [26]. Courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce an offender's culpability. Although an "out of character" exception has been acknowledged to exist, it has almost never been applied: R v GWM [2012] NSWCCA 240 at [82]; ZZ v R [2013] NSWCCA 83 at [110].
The unsworn, untested and somewhat inconsistent accounts given by the Applicant to the psychiatrist and psychologist did not sit comfortably with the detailed account given by the victim in the Agreed Statement of Facts.
It is sufficient to determine this ground of appeal to express the view that the Applicant has failed to demonstrate error on the part of the sentencing Judge in the findings challenged by the first ground of appeal.
I would reject Ground 1.
Ground 2 - Claim of Error in Imposing Sentences that Doubly Punished the Circumstances of the Last Offence
Submissions of the Parties
This ground was directed towards the acceptance by the sentencing Judge of a Crown submission that the Applicant's sexual offences were "above mid range but not in the worst category", but that "getting close to the worst case category" was "the second offence involving penile vaginal intercourse in the context of what had preceded it" (ROS16), a reference to Offence 3.
Mr Gartelmann submitted that the sentence imposed for that offence was the same as the sentence imposed for the first offence involving penile/vaginal intercourse (Offence 2). The sentence on Offence 2 reflected the additional criminality involved in the Form 1 offence.
Accordingly, Mr Gartelmann submitted that it appeared that the sentence imposed for Offence 3 reflected the sentencing Judge's conclusion that the offence was of greater seriousness because it was committed in the context of the preceding offences. The sentencing Judge stated that it was proposed to partially accumulate some of the sentences as they were "separate and distinct offences although carried out within one course of conduct" and, in particular, the second act of penile/vaginal intercourse "in the context of the circumstances will attract significant accumulation" (ROS18).
Counsel submitted that, in taking this approach, the sentencing Judge had failed to apply correctly the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610. It was submitted that her Honour failed to apply proper principles in determining either the sentence for Offence 3, or the extent of its accumulation, with the effect of doubly punishing the one circumstance of the Applicant's conduct: Pearce v The Queen at 624 [49].
The Crown submitted that no error had been demonstrated as contended for in this ground of appeal. It was submitted that the sentencing Judge had approached issues of accumulation, concurrency and totality in accordance with the principles in Pearce v The Queen. It was emphasised that Offence 3 occurred at a time when the victim may have thought that the ordeal was over, only to experience a further offence involving penile/vaginal intercourse.
Decision
It is appropriate to set out the parts of her Honour's remarks on sentence which give rise to this ground of appeal.
Her Honour said (ROS16):
"It was submitted on his behalf that these sexual assault matters are mid range offences. The Crown has contended that they are above mid range but not in the worst category.
I accept the submission of the Crown. However, I note that getting close to the worst case category is the second penile vaginal intercourse offence in the context of what had preceded it. Furthermore, there is largely an absence of factors that mitigate the objective seriousness. There are injuries inflicted on other complainants that are worse. It was an isolated incident, although it involved multiple offences."
With respect to accumulation, the sentencing Judge said (ROS18):
"In passing sentence I propose to partially accumulate some of the sentences imposed for these offences, given that they are separate and distinct offences although carried out within one course of conduct. In particular, the second act of penile/vaginal intercourse, that is the further offence, in the context of the circumstances will attract significant accumulation."
The sentencing Judge approached the task of sentencing the Applicant for several crimes arising from the one course of conduct in accordance with the principles in Pearce v The Queen. It was open to the sentencing Judge to conclude that the final offence of aggravated sexual intercourse without consent was of greater objective gravity, occurring as it did at a time when the victim had been subjected to several offences, only to be once again made the subject of forced penile/vaginal intercourse.
Far from desisting, the Applicant subjected the already humiliated and terrified victim to a further s.61J offence of a most serious type. These aspects served to magnify the objective gravity of the last offence.
It was necessary for her Honour to consider the circumstances of each offence for the purposes of determining an appropriate level of concurrency and accumulation, and with totality in mind as well. The sentences as fixed involved overlapping sentences with a total term reflecting the concept of totality.
Her Honour explained why the final s.61J offence was of greater objective seriousness, calculated a sentence for that offence and then determined the degree of partial accumulation of that sentence upon the other sentences.
The actual measure of accumulation for the final s.61J offence involved a two-year extension of the effective non-parole period. It is difficult to see how this measure of accumulation constitutes double punishment contrary to the principles in Pearce v The Queen. Partial accumulation of this order was open to her Honour in sentencing the Applicant for these serious and repeated sexual assault offences.
Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision: Pearce v The Queen at 624 [46]. It is highly undesirable that the process of sentencing should become any more technical than it is already: Pearce v The Queen at 622 [39].
In this case, the selection of the individual sentence and the determination of the appropriate degree of accumulation did not, in my view, result in a situation where there was double punishment of the Applicant. No injustice has been demonstrated by the Applicant in the approach taken to sentencing for the final s.61J offence, nor in relation to considerations of accumulation and totality. No breach of the principles in Pearce v The Queen has been demonstrated.
I would reject Ground 2.
Ground 3 - Claim that the Sentences Were Unreasonable and/or Plainly Unjust
Submissions of the Parties
Mr Gartelmann submitted that the sentences imposed for the offences of aggravated sexual intercourse without consent are disproportionate to their seriousness, relative to the applicable maximum penalty and the range of conduct falling within the offence provision: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [31].
The sentences reflect nominal starting points (before discount) of 13 years and four months for the first offence and 16 years for the second and third offences. The maximum penalty applicable for these offences was imprisonment for 20 years.
Whilst acknowledging that the offences were serious, it was submitted that their respective facts and circumstances did not warrant the assessment that they were above mid-range or, with respect to Offence 3, "getting close to the worst case category" (ROS16).
Whilst acknowledging that it was an aggravating feature of the offences that the Applicant was armed with a knife and that there was a real threat of violence, it was submitted that the actual violence used and the bodily harm inflicted were limited and that the conduct was not prolonged. It was submitted that neither the facts and circumstances of each offence, nor the additional criminality in the Form 1 indecent assault offence, warranted the nominal starting points for these sentences.
Mr Gartelmann submitted that the subjective circumstances of the Applicant did not demand great weight being given to considerations of specific deterrence, retribution or protection of the community. He had no record of prior convictions for similar offending and had not previously been sentenced to imprisonment.
It was submitted that, although each offence of aggravated sexual intercourse without consent involved a separate and discrete act, the same actual bodily harm occasioned to the victim established the statutory circumstance of aggravation for them all.
Whilst acknowledging that the fact that the offences were committed in the course of one episode did not require concurrent sentences, it was submitted that the extent to which they involved disparate conduct remained relevant in assessing the totality of the criminality involved. Whilst the robbery offence reflected discrete criminality, it was submitted that the sexual assault offences were neither disparate in nature, nor separated in place or time from one another, so that a greater level of concurrency was warranted.
It was submitted for the Applicant that an overall sentence of imprisonment for 15 years with a non-parole period of 12 years exceeded the boundaries of a reasonable exercise of discretion by reference to accumulation and the totality of the criminality involved in the offences. Counsel submitted that both the individual sentences for the offences of aggravated sexual intercourse without consent, and the resultant overall sentence, were unreasonable and/or plainly unjust so that this Court should intervene and resentence the Applicant.
The Crown submitted that it was necessary for the sentencing Judge to have regard to both the maximum penalty of 20 years' imprisonment and the standard non-parole period of 10 years applicable to each of the s.61J offences. The Crown submitted that the assessments of the objective seriousness of the s.61J offences were open in the circumstances of the case.
It was submitted that the discretionary assessment of the seriousness of the offences was not affected by error so that the finding ought not be lightly disturbed by this Court: Smith v R [2013] NSWCCA 209 at [50]-[51].
The Crown submitted that the sentencing Judge had regard to the objective gravity of the offences and the subjective circumstances of the Applicant, and proceeded to sentence the Applicant in a manner that did not demonstrate error.
Decision
An assessment of a ground of appeal claiming manifest excess requires consideration of all the matters that are relevant to fixing sentence: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 539 [59]. As the ground of appeal makes clear, it is necessary for the Applicant to demonstrate that the sentences imposed were unreasonable or plainly unjust.
It will assist at this point to refer to features of the offences which the sentencing Judge described as "objectively serious factors" (ROS14). These were as follows (ROS14-16):
"The first is that the complainant was vulnerable. Looking at all of the offences, this would have been nothing short of a completely terrifying ordeal and no doubt there would have been times, if not the whole time, that she thought that she was going to die.
Another serious aspect is that after having penile/vaginal sexual intercourse with her, without her consent, and ejaculating, he proceeded to do the same again. Perhaps after the first time she thought that her ordeal might have been over but it seems it was only halfway over.
I take into account as well that she had not in any way been irresponsible about her safety. She had not in any way placed herself in an unreasonable position where she had compromised her safety. The offence occurred at 8.30 pm in a city street where she or any citizen has the right to think that they can walk safely around without being attacked.
Of course, another serious aspect is the ongoing use of a knife. He used it to force her to abduct her down the laneway, he used it throughout the offences and he used it when he put it between her legs and cut her lower clothing, her underpants, her skirt and her stockings, and then he removed them.
Another aggravating factor of the charge itself is that the injuries did include a cut to her left hand, which was not an injury that were necessary to effect the actual offence being committed. It was something over and above that. She also suffered a graze on her left knee, bruising and abrasions on the back and general soreness. While there are cases where the injuries are worse, it cannot be accepted that he did not intend or at least was extremely reckless to her physical wellbeing generally speaking. In particular, I do not accept that he did not intend to cut her hand. It was submitted that this was not intentional. I reject that. Taking into account his deliberate conduct with the knife when the injury was inflicted, there was only one outcome and that is the injury would be suffered by the complainant. In one part of the reports he said that she cut her hand. That is not acceptable. He cut her hand. Perhaps this was merely a poor choice of words on his part.
Another serious aspect of the offences is that he threatened to stab her with the knife if she did not comply. He behaved in a way throughout the ordeal that was brutal and callous. He humiliated and degraded her in many ways, including the removal of the tampon.
He engaged in unprotected sex with her. In that regard, firstly, there is a real possibility of further actual physical injury to her in that he knew he had hepatitis C. He told the psychologist that he failed to bother to treat it because he was too busy taking drugs. It is a real possibility then that she might have contracted that disease. In addition, apart from that real possibility would have been in her mind the latent prospect that she could have contracted AIDS, other sexually transmitted diseases, or fallen pregnant.
Another factor is that he ignored her pleas and her reasoning with him to stop."
These findings were not challenged in this Court. The findings were both open and appropriate in the circumstances of the case.
These offences were of considerable objective gravity. A young woman who was walking home from work was accosted in the street by a stranger. The Applicant brandished a knife and threatened the victim. He forced her to go to a nearby laneway, no doubt to undertake the sexual attack which followed in a less visible location.
As the detailed recital of facts set out earlier reveals, the victim was subjected to a protracted and frightening experience, where actual force was used against her on a number of occasions, accompanied by threats and the commission of acts of indignity and sexual violation.
The Applicant left the victim lying in the street and fled without concern for her welfare. The additional offence of aggravated robbery involved the theft of her wallet, a final criminal act to be added to the sexual assaults which preceded it.
The victim was, in substance, dragged off the street whilst she was going peacefully about her own business: R v Gill [2010] VSCA 67 at [52]. Using the terminology in Boney v R [2008] NSWCCA 165 at [106], this was a case where a victim walking on a street at night was seized by a complete stranger about whom she knew nothing and who, for all the victim knew, may well have killed her when the sexual assault was over.
Consideration of Stephens v R [2010] NSWCCA 93 at [58]-[64], and the sentencing decisions for s.61J offences there referred to, confirms the significant objective gravity of the three s.61J offences in this case, and the appropriateness of a lengthy term of imprisonment in cases of this type.
The sentencing Judge had regard to the decisions in Boney v R and Stephens v R in passing sentence in this case (ROS14).
The victim suffered substantially from the attack upon her, experiencing what will undoubtedly be long-term psychological injury. It was important that the sentences passed upon the Applicant recognised the harm done to the victim of these crimes: s.3A(g) Crimes (Sentencing Procedure) Act 1999.
It is noteworthy that the Applicant, after the commission of these offences, took steps to disguise his identity by the issue of a driver's licence in a different name and the removal of his beard, no doubt intended to reduce the prospect of his apprehension for these offences. As it happens, he did not succeed in this respect, and was apprehended upon his return from a holiday in Bali.
The Applicant had a criminal history for a range of offences, although none of a sexual nature.
The Applicant's subjective case included several troubling aspects referred to by Dr Bench and Ms Case (see [53]-[57] above). The sentencing Judge observed that there "are good reasons for real questions about the offender's prospects of rehabilitation, in particular the likelihood of his re-offending with respect to offences of this kind" (ROS17). Reference was made to the Applicant's attitude towards women as reflected in the reports, with her Honour noting that those matters did not call for a more severe punishment but were to be taken into account in terms of his risk of reoffending and his prospects of rehabilitation (ROS17-18).
Her Honour observed that general deterrence and specific deterrence were significant factors on sentence in this case (ROS18).
General deterrence is a most significant factor on sentence for offences of sexual violence committed against women, and in particular where offences are committed against a complete stranger selected by the offender in a public street. Specific deterrence was also important here. The Applicant was nearly 30 years old at the time of the offences. He was not a young man and the material before the sentencing Judge was troubling concerning his attitude towards women.
Her Honour had regard to the protection of the community in passing sentence, noting that this was "another factor of importance" given the "considerable reservations about his risk of re-offending" (ROS18).
It has been accepted that an assessment of an offender's risk of reoffending is necessarily imprecise where a lengthy sentence is imposed: Beldon v R [2012] NSWCCA 194 at [53]. However, regard should still be had by a sentencing Judge to the risk of reoffending and prospects of rehabilitation. Her Honour did so and these aspects did not assist the Applicant in this case.
The Applicant was to be sentenced for several offences so that principles concerning concurrency, accumulation and totality fell to be applied. The sentencing Judge applied these principles in reaching a discretionary determination which was available to her on these issues.
In R v MAK [2006] NSWCCA 381; 167 A Crim R 159, Spigelman CJ, Whealy and Howie JJ said at 164-165 [18] that a sentencing court must take care when applying the totality principle, keeping in mind public confidence in the administration of justice which requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending. This concept has direct application in a case such as this.
The sentencing Judge declined to find "special circumstances". Further, her Honour stated expressly the intention that the effective balance of term should be one of three years, following an effective non-parole period of 12 years. Her Honour observed that the three-year period constituted ample time for the Applicant to be supervised on parole (ROS19). These were discretionary decisions which were open to the sentencing Judge.
It may be acknowledged that the total effective sentence imposed upon the Applicant is a substantial one. However, his crimes of sexual violence and robbery against the victim were substantial, calling for lengthy terms of imprisonment to reflect the various purposes of sentencing.
I am not persuaded that the individual sentences, nor the total effective sentence, are unreasonable or plainly unjust. I would reject the submission that the sentences were manifestly excessive.
Ground 3 should be rejected.
Conclusion
As each ground of appeal has been rejected, no occasion arises for this Court to determine for the purpose of s.6(3) Criminal Appeal Act 1912 whether other sentences were warranted.
If the occasion to resentence the Applicant had arisen, it would have been necessary to consider how to accommodate the series of entirely concurrent custodial sentences of imprisonment for periods of nine or 12 months, imposed at the Newcastle Local Court on 20 September 2012 (see [48] above). If the question of resentencing had arisen, then the necessary discretionary exercise concerning concurrency and accumulation would have called for consideration to be given to these concurrent sentences for unrelated crimes, imposed upon the Applicant after the sentences presently under challenge: cf Currie v R [2013] NSWCCA 267 at [92]-[95]. However, that point has not been reached on this application.
I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.
I have had the opportunity to consider the judgment of RS Hulme AJ, about which I make two comments.
Firstly, I am not at all sure that the point considered by his Honour with respect to digital penetration was taken by the Applicant. There was no ground of appeal to this effect, nor was an argument advanced asserting error in this respect. In any event, I remain of the view reflected in my agreement with the judgment of Bellew J in Doe v R [2013] NSWCCA 248. See, as well, Simpson v R [2014] NSWCCA 23 at [28]-[34]. I detect no error in the approach of the sentencing Judge, nor in the sentence imposed with respect to the first count under s.61J Crimes Act 1900.
Secondly, his Honour has concluded that there is nothing in the facts to suggest that the victim may have thought that her ordeal was over after the second s.61J offence, save for the fact of the Applicant's ejaculation. As the Agreed Statement of Facts made clear, the victim took steps at different points during the Applicant's offending conduct to accelerate the sexual progress of the event, no doubt as a result of the threat by the Applicant to otherwise stab her with a knife. The appropriate inference is that the victim was seeking to bring the ordeal to an end at the earliest possible time. The fact that the Applicant ejaculated would have led the victim to the reasonable conclusion that the Applicant's sexual urges would subside. After all, movement to this point appeared to be what the victim was seeking to accelerate. It was more than open to the sentencing Judge to infer that the victim considered that the sexual ordeal was over. However, the Applicant sustained his attack with a further offence. As indicated earlier (at [97]-[98]), a repeated sexual attack against an already traumatised victim serves to magnify the objective gravity of the final s.61J offence in this case.
RS HULME AJ: In this matter I have had the advantage of reading the reasons for judgment of Johnson J. His Honour has recorded the relevant facts and findings of Wells SC DCJ and I need not repeat them. I agree with his Honour that the first ground of appeal should fail and with his Honour's reasons for that conclusion. I am however unable to agree with his Honour as to the disposition of the remaining grounds of appeal.
My first point of disagreement falls within a narrow compass and will have no impact on the effective sentence imposed on the Applicant. However, as the point has been taken and I consider that the sentencing Judge erred, I should say so.
My disagreement lies in the sentence imposed on the first count and with the relativity between that sentence and the sentence imposed on the second count. Those sentences were, respectively of 10 years including a non-parole period of seven years and six months and 12 years including a non-parole period of nine years. The first offence involved digital penetration of the complainant's vagina. The second involved penile penetration also of the vagina and ejaculation and this in circumstances where the Applicant knew he was infected with Hepatitis C. In the case of the second count, the circumstances included the Applicant forcing an open-mouth kiss on the complainant and there was also taken into account an offence of indecent assault.
Prior to the offence the subject of the first count, the Applicant had forced the complainant into a secluded area in the circumstances detailed by Johnson J and cut her left hand. There was no corresponding or quasi-equivalent injury inflicted during the offence the subject of the second count. However, this circumstance seems to have played no part in her Honour's sentencing of the Applicant for one, rather than another count. The circumstance of aggravation relied on for each offence was actual bodily harm without further particularity and her Honour's treatment of this aspect was simply as follows:
"Of course, another serious aspect is the ongoing use of a knife. He used it to force her to abduct her down the laneway, he used it throughout the offences and he used it when he put it between her legs and cut her lower clothing, her underpants, her skirt and her stockings, and then he removed them.
Another aggravating factor of the charge itself is that the injuries did include a cut to her left hand, which was not an injury that were necessary to effect the actual offence being committed. It was something over and above that. She also suffered a graze to her left knee, bruising and abrasions on the back and general soreness. While there are cases where the injuries are worse, it cannot be accepted that he did not intend or at least was extremely reckless to her physical wellbeing generally speaking. In particular, I do not accept that he did not intend to cut her hand."
The context in which this passage appears indicates that in her reference to "charge" her Honour was not confining her attention to the first count.
In Doe v R [2013] NSWCCA 248, Bellew J, with the concurrence of Hoeben CJ at CL and Johnson J, observed at [54]:
"...it should be emphasised that there is no decision of this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than some other form of forced sexual intercourse. Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness."
With respect to his Honour, I think he meant "necessarily" when he said, "of itself". If not, he was wrong because in R v Da Silva (NSWCCA, 30 November 1995, unreported) Grove J, whose judgment was concurred in by Gleeson CJ and Ireland J, observed:
"Third it is submitted that an act of digital penetration is less serious than an offence of, for example, penile penetration. Generally I would agree that this is likely to be so."
Furthermore in R v O [2005] NSWCCA 327, Sully J, with whom Hidden and Hall JJ agreed said at [32]-[33]:
"I would accept that, as a general proposition, an act of digital penetration, as such, is less serious than an act of penile penetration as such."
The passage just quoted was also quoted by Bellew J.
Of course there are other cases that deal with the issue including R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1 and MH v R [2011] NSWCCA 230 but it is unnecessary that I attempt a comprehensive discourse on the topic here.
If, as Wells SC DCJ seems to have done, one treats the Applicant's non-sexual violence as simply applicable to all of his offences, and assesses "the objective seriousness of offending ... according to the entirety of the facts and circumstances of the case in question", as Doe v R, and R v King [2009] NSWCCA 117 at [36] require, the objective seriousness of the offence the subject of the second count was substantially worse than that of the first offence. The second offence carried with it a risk of pregnancy, some, perhaps small, risk of Hepatitis C, and what one may expect, and her Honour concluded likely, fear by the complainant of one or other of these conditions or other venereal disease.
(I should perhaps add that treating the Applicant's non-sexual violence as applicable to all his offences as her Honour seems to have done, runs the risk that it will be the subject of double or triple punishment, an event which should not occur - see Pearce v The Queen at 623 [40]-[49]; R v Hilton [2005] NSWCCA 317; 157 A Crim R 504. Those cases make it clear that concurrency of sentences is not a sufficient answer to the problem but the point was not taken in the appeal and in the circumstances I need not take it further).
Even disregarding the concern just expressed, in my view the sentence for the first count was manifestly excessive and it should be reduced to imprisonment for a non-parole period of six years and total sentence of eight years, both such periods commencing on 11 August 2012, that is, twothirds of the sentence for a significantly more serious offence.
Although heavy - about half of the sentences commonly given to murderers - I am not persuaded that the sentence imposed for the Applicant's second offence was outside the legitimate exercise of Wells SC DCJ's sentencing discretion.
My second point of disagreement lies in the sentence imposed for the third sexual intercourse offence and in Wells SC DCJ's reasoning that led to that sentence. In relation to that offence her Honour said:
"Another serious aspect is that after having penile/vaginal sexual intercourse with her, without her consent, and ejaculating, he proceeded to do the same again. Perhaps after the first time she thought that her ordeal might have been over but it seems it was only halfway over.
... I note that getting close to the worst case category is the second penile vaginal intercourse offence in the context of what had preceded it."
There is nothing in the account of the facts to suggest that the complainant thought her ordeal might have been over save for the fact of the Applicant's ejaculation. However, that seems to have been immediately followed by his request for the complainant to "try to make me hard. I want to see your tits" and other sexual activity. Furthermore, I am unable to see how this further offence is made worse than it otherwise would have been by "the context of what had preceded it" and which amounted to the foundation for the first and second counts and the indecent assault offence placed on a Form 1. In the sentences imposed for the first and second sexual assault charges, the Applicant was being punished for the conduct that amounted to that foundation and her Honour's approach was to double count that conduct.
In that the Applicant did not ejaculate during the commission of the third offence under s.61J, and seems to have voluntarily desisted during the currency of it, this offence was less objectively serious than the second and her Honour's view that it was "getting close to the worst case category" was erroneous. It should be noted also that there was no Form 1 offence to be taken into account in connection with the third offence as there had been with the second.
While it was appropriate on account of the third offence to add something to the effective sentence, the sentence for that third offence should have been substantially less than that imposed for the second. And while I do not suggest that the effects of the Applicant's earlier threat and violence had dissipated, it is also of significance that the cut that the victim had suffered in consequence of the Applicant's threats and use of a knife had occurred during the first offence and her other actual bodily harm, being a graze to her left knee, bruising and abrasions to her back and general soreness is likely to have also occurred mainly prior to the third offence. It would be wrong to punish him again for elements of his earlier offending.
The sentence for the third offence should be reduced to imprisonment for five years. It seems likely that her Honour's decision to extend the Applicant's effective non-parole period by two years on account of the third offence was also influenced by her erroneous view of its seriousness and this period should be reduced.
Unless the order in which sentences commenced is changed, because of considerations of totality I would structure the sentence for the third offence so that one year was added to the effective non-parole period, and the Applicant has three years when he is eligible for parole. Given mine is a minority view, I do not need to further formulate what I would do.
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Decision last updated: 25 July 2014
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