Kentwell v R

[2013] NSWCCA 266

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kentwell v Regina [2013] NSWCCA 266
Hearing dates:	18 October 2013
Decision date:	14 November 2013
Before:	Hoeben CJ at CL at [1] Johnson J at [2] Bellew J at [3]
Decision:	1.The application for an extension of time is dismissed.
Catchwords:	CRIMINAL LAW - appeal - application to extend time in which to seek leave to appeal against sentence - asserted Muldrock error - principles to be applied in determining whether extension of time should be granted - where Muldrock error established - whether extension of time should be granted CRIMINAL LAW - sentence - where applicant convicted of multiple counts of having sexual intercourse without the consent of the victim - where sentencing judge erred in extending additional term of imprisonment to reflect a finding of special circumstances rather than reducing the non-parole period - where sentencing judge erred in assessment of psychiatric evidence - where sentencing judge erred in imposing a fixed term of imprisonment for an offence for which a standard non-parole period was prescribed - whether offending mitigated by the fact that the applicant and victim were in a relationship - where offending took place in context of domestic violence - where no other sentence warranted in law and no miscarriage of justice - application for extension of time dismissed
Legislation Cited:	Crimes Act 1900 NSW Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
Cases Cited:	Abdul v R [2013] NSWCCA 247 AM v R [2012] NSWCCA 203 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 204 Bellchambers v R [2011] NSWCCA 131 Collier v R [2012] NSWCCA 213 DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; (2010) 205 A Crim R 1 Hristovski v R [2010] NSWCCA 129 Mammone v R [2013] NSWCCA 95 Mansour v R; Hughes v R [2013] NSWCCA 35 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 NM v R (2012) NSWCCA 215 Norman v R [2012] NSWCCA 230 R v Dunn [2004] NSWCCA 346 R v Edigarov (2001) 125 A Crim R 551 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Hemsley [2004] NSWCCA 28 R v P [2004] NSWCCA 218 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Wright [1998] VSCA 84 SGJ v R; KU v R [2008] NSWCCA 258
Category:	Principal judgment
Parties:	Phillip Charles Kentwell - Applicant Regina - Respondent
Representation:	Counsel: Ms J Manuell SC- Applicant Ms J Girdham SC - Respondent Solicitors: Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent
File Number(s):	2008 / 8126-013
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2009-02-20 00:00:00 Before: Johnstone DCJ

Judgment

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

1. JOHNSON J: I agree with Bellew J.

1. BELLEW J: On 15 September 2008, following a trial, the applicant was found guilty of the following offences:

(i) on 29 October 2007 did recklessly cause grievous bodily harm to WN contrary to s. 35(2) of the Crimes Act 1900 NSW (count 1);

(ii)   on 29 October 2007 did maliciously destroy a glass candle holder the property of WN contrary to s. 195(1)(a) of the same Act (count 3);

(iii)   on or about 29 October 2007 did have sexual intercourse with WN without her consent, knowing that WN was not consenting to the sexual intercourse, contrary to s. 61I of the same Act (count 4);

(iv)   on 2 November 2007 did assault WN contrary to s. 61 of the same Act (count 5);

(v)   on or about 2 November 2007 did have sexual intercourse with WN without her consent, knowing that WN was not consenting to the sexual intercourse, contrary to s. 61I of the same Act (count 7).

1. The maximum penalties for the offences of which the applicant was found guilty were as follows:

(i)   Count 1 - imprisonment for 10 years;

(ii)   Count 5 - imprisonment for 2 years;

(iii)   Count 3 - imprisonment for 5 years;

(iv)   Counts 4 and 7 - imprisonment for 14 years with a standard non-parole period of 7 years.

1. On 20 February 2009 the applicant was sentenced as follows:

(i)   in respect of count 1, a fixed term of imprisonment of 4 years commencing on 6 April 2008 and concluding on 5 April 2012;

(ii)   in respect of count 3, a fixed term of imprisonment of 1 month commencing on 6 April 2008 and concluding on 5 May 2008;

(iii)   in respect of count 4 a fixed term of imprisonment of 7 years commencing on 6 August 2008 and concluding on 5 August 2015;

(iv)   in respect of count 5 a fixed term of imprisonment of 3 months commencing on 6 December 2008 and expiring on 5 March 2009;

(v)   in respect of count 7 a non-parole period of 7 years commencing on 6 April 2009 and expiring on 5 April 2016 with an additional period of imprisonment of 4 years commencing on 6 April 2016 and expiring on 5 April 2020.

1. The overall sentence was one of 12 years imprisonment, comprising a non-parole period of 8 years and an additional term of 4 years. The applicant's earliest date of release is 5 April 2016.

1. The applicant seeks an extension of time in which to seek leave to appeal against the sentences imposed. The background to that application is set out in his affidavit of 17 September 2013, along with an affidavit of Ruth Chalmers, solicitor, of 18 September 2013. The applicant has deposed to the fact that on the day he was sentenced (20 February 2009) he completed a Notice of intention to appeal against conviction and sentence. At that time he was represented by the Aboriginal Legal Service. He was then told that his case would be transferred to Legal Aid NSW due to a conflict of interest, the nature of which has not been further explained. The applicant completed an application for legal aid on 24 March 2010 but was not advised until 25 January 2011 that his application had been refused.

1. On 31 August 2012 Ms Chalmers reviewed the transcript of the applicant's sentence proceedings and determined that there may be merit in an appeal due to a so-called "Muldrock error" (see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39). The background to, and the general nature of, such errors was explained by this Court in Abdul v R [2013] NSWCCA 247.

1. After Ms Chalmers had reviewed the matter, Counsel was briefed to advise and in February 2013 Ms Chalmers wrote to the applicant inviting him to complete an application for legal aid. He did so, and after submissions had been received from counsel, a Notice of application for leave to appeal was filed on 28 June 2013.

1. The Crown has opposed the grant of an extension of time.

THE FACTS

1. The following summary is taken from his Honour's remarks on sentence.

1. At the time of the offending, the applicant had known the victim for about four years. From about January 2007 they formed an intimate relationship as a result of which the applicant would stay over at the victim's premises four or five nights per week. In August 2007 the victim made a complaint to the police about the applicant and he was charged with various offences including assault, stealing and contravening a domestic violence order. He was released on bail and thereafter renewed his relationship with the victim.

1. On the afternoon of 29 October 2007 the applicant went to the victim's home when he was affected by alcohol. When the victim was in the kitchen making coffee, the applicant approached her from behind and poured liquid over her head. Without warning he then smashed a beer bottle over her head causing her to fall to the floor. As the victim lay on the floor the applicant kicked her several times in the ribs, causing her immediate pain and difficulty breathing. The applicant refused the victim's request to call an ambulance.

1. The victim tried to leave the premises and told the applicant she was going to her sister's. As she walked outside the applicant grabbed her by the hair and pulled her to the ground. He then kicked her in the chest area and pulled her back inside. Once inside the applicant again kicked the victim before ordering her to get up.

1. There then followed an interlude as the applicant tried to comfort the victim, telling her to sit next to him on the couch. The victim did so out of fear but within a short period the applicant started yelling at her and began to throw various objects within his reach including the victim's mobile phone, remote controls for the television and DVD player, an ash tray and a glass candle holder that smashed at the other end of the room.

1. When the victim went over and knelt down to pick up the smashed candle holder the applicant again attacked her, hitting her over the head and shoulders with a metal bracket from an air conditioner. The applicant then appeared to calm down and sat in the lounge room. Because she was in fear of the applicant, the victim did not leave the premises or contact the police. She continued to experience difficulties with her breathing, her head was sore, she was aching and she felt nauseated. She went to the bathroom and showered before getting into bed.

1. The applicant then called out to the victim from the lounge room asking if she wanted a "doorey", which meant sex. The victim said no. Over the course of the next few hours the applicant repeatedly requested sex, and the victim repeatedly refused.

1. The applicant then came into the bedroom. The victim again told him that she did not want to have sex as she was in too much pain from the earlier assaults. The applicant said:

"Fucking girls only have to spread their fucking legs. It won't hurt."

1. The victim did not want to have sex with the applicant but at this time could see that he was not going to stop his demands. Accordingly, she said to him:

"If you do it just get it over and done with quickly."

1. The applicant then removed the victim's underpants and commenced penile intercourse by penetrating her vagina from behind. The applicant was much larger than the victim and as a consequence, she was affected by his heavy weight and experienced severe pain. She begged the applicant to stop and she started to cry. The applicant allowed her to move into a foetal position but did not stop the intercourse and told her to "stop blubbering". The applicant continued to have penile/vaginal sexual intercourse until he ejaculated.

1. After the intercourse had ended, the applicant remained in the bed. The victim attempted to sleep but was unable to do so because of her pain. She did not leave as she was in fear of the applicant and as the night continued her breathing was laboured. The applicant complained that she was making too much noise and told her to "shut up".

1. The following morning the applicant awoke at about 7.30am and asked for sex. The victim replied:

"No Didge, I can't because I can't do this. You can't keep doing this to me anymore."

1. The applicant then left the premises, following which the victim sought treatment from a medical centre. She was diagnosed (without X-Rays being taken) as having fractured ribs and was told to take painkillers. She returned to her home and went back to bed.

1. On 2 November 2007 the victim saw her General Practitioner. X-Rays taken on that occasion established that she had fractures to her fifth, sixth and seventh right ribs, as well as to her fourth left rib. There was also evidence of trauma to her fifth and sixth left ribs.

1. Later that same afternoon, the applicant arrived at the victim's premises with a companion named Nash. The applicant and Nash started drinking in the lounge room and as the applicant became affected by the alcohol he started to accuse the victim of sleeping with Nash. The victim denied this allegation and told Nash to leave. The applicant and the victim sat together on the lounge, at which time the applicant began igniting a cigarette lighter on and off, at one point applying the flame to the victim's forearm. After she pulled her arm away the applicant began lighting small pieces of paper on the coffee table before beginning to hit the victim whilst calling her a "fucking mole" and a "whore". He then started to twist her arm, at which time she retreated to the bathroom. The applicant continued to accuse the victim of having "sex with wogs" before telling her to "get her arse out of the bathroom". The victim went back into the bedroom where the applicant grabbed her and held her up against the wall next to a cupboard.

1. The applicant then said he wanted something to eat, at which point the victim made a meal for him, before going to bed. The applicant then asked her for sex. The victim repeatedly said she did not want to, telling the applicant she was in too much pain. The applicant responded by saying:

"Just spread your legs. That's all you have to do."

1. The victim again told the applicant that she was unable to breath properly and that the pain was too much, to which the applicant responded:

"You won't feel it."

1. Feeling that she had no choice, and although she did not want to have sex with the applicant, the victim said:

"Just get it over and done with please and hurry."

1. The applicant then commenced to have penile vaginal sex with the victim as she lay on her stomach. As he did so, the victim experienced severe pain to her injured ribs and chest, telling the applicant:

"I don't want to do it .... I've got broken ribs .... Didge I can't do this. I can't do this anymore. I can't".

1. The applicant ignored these pleas, and continued until he ejaculated.

1. On 6 November 2007 the applicant again sought medical attention and on this occasion disclosed that she had been sexually assaulted. She then made a statement to police.

THE GROUNDS OF APPEAL

Ground 1 - His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120.

The approach taken by the sentencing judge

1. At ROS 17, under the heading "The standard non-parole periods" his Honour said (at paragraphs [34] and [35]):

34. Having regard to the findings I have made, the standard nonparole periods which apply to several of the offences are relevant: s 54D Crimes (Sentencing Procedure) Act 1999.

35. However, there is in my view nothing in the relevant mitigating and aggravating factors, nor in any other factors, that persuades me that any variation in the standard nonparole period for these offences is justified except as they may be affected by the application of the principles of totality.

Submissions of the parties

1. Counsel for the applicant submitted that the sentencing judge's discretion miscarried by reason of the fact that he:

(i)   adopted a two stage approach to sentencing;

(ii)   gave determinative significance to the standard non-parole period; and

(iii)   failed to make proper allowance for the applicant's subjective case.

1. It was submitted that these errors were contrary to the approach identified by the High Court in Muldrock.

1. In written submissions, the Crown argued that on a reading of the entirety of the sentencing remarks it was apparent that his Honour had adopted a process of instinctive synthesis in which he had taken account of all of the relevant factors and had then determined what he considered to be the appropriate sentence. However in oral submissions, the Crown accepted that it would be open to this Court to conclude, on the basis of paragraphs [34] and [35] of his Honour's reasons, that there was error.

Consideration and conclusion

1. In my view, the sentencing judge clearly used the standard non-parole period as a starting point in determining the appropriate sentences in respect of counts 4 and 7. He approached the sentencing task on the basis that the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") mandated the imposition of the standard non-parole period in the event that relevant factors did not justify a departure from it. In doing so, his Honour adopted a two stage sentencing process, and gave the standard non-parole period determinative significance. In light of the decision in Muldrock that approach reflected error.

1. Moreover, that error was material in the sense that it clearly had the capacity to infect the exercise of the sentencing discretion (see Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 204 at [83]).

1. It follows that this ground is made out.

Ground 2 - His Honour erred by increasing the balance of term and thereby impermissibly increasing the length of the sentence for the s. 61I offence on 2 November 2007 to reflect a finding of special circumstances.

The findings of the sentencing judge

1. The offence against s. 61I which was committed on 2 November 2007 was that in count 7.

1. As previously noted, his Honour imposed the standard non-parole period of 7 years imprisonment in respect of that offence, with an additional term 342of 4 years imprisonment. His Honour had earlier found special circumstances (at ROS 18 paragraph [39]) on the basis of the applicant's need for medical attention upon release, both in respect of his psychiatric condition and his drug and alcohol abuse.

Submissions of the parties

1. It was submitted on behalf of the applicant that his Honour had determined that the standard non-parole period of 7 years should be imposed and that this necessarily became the starting point for sentence. Applying the statutory ratio, it was submitted that the resultant head sentence should have been one of 9 years and 3 months.

1. Counsel submitted that his Honour had given effect to his finding of special circumstances by extending the balance of the term of imprisonment, rather than by reducing the non-parole period. It was submitted that the finding of special circumstances should have resulted in a downward adjustment of the non-parole period, and that it was not permissible to extend the balance of a term beyond the statutory proportion, and thus increase the length of the sentence, in order to reflect a finding of special circumstances (see R v P [2004] NSWCCA 218).

1. The Crown submitted that there was nothing in the remarks on sentence to suggest that his Honour had adopted the mathematical exercise suggested on behalf of the applicant. The Crown submitted that it was apparent from discussion during the sentencing proceedings that his Honour was aware that he could reduce the standard non-parole period if there were special circumstances which warranted that course.

Consideration and conclusion

1. For the reasons advanced by counsel for the applicant, there is an inconsistency between the finding of special circumstances on the one hand, and the structure of the sentence imposed in respect of count 7 on the other. That inconsistency reflects error.

1. However, the overall sentence imposed was a non-parole period of 8 years, with an additional term of 12 years. That overall sentence is consistent with a finding of special circumstances. In these circumstances, although error has been made out, it is one which in my view is immaterial.

Ground 3 - His Honour erred in setting a fixed term of imprisonment for the offences which carried a standard non-parole period - the s. 35(2) offence of recklessly causing grievous bodily harm and s. 61I of sexual intercourse without consent on 29 October 2007.

The findings of the sentencing judge

1. At the commencement of the hearing, senior counsel for the applicant conceded that contrary to the information provided to the sentencing judge, no standard non-parole period was prescribed for the offence under s. 35(2) of the Crimes Act 1900 (NSW) (count 1). Accordingly, this ground was limited to the fixed term of 7 years imprisonment imposed in respect of the offence in count 4.

Submissions of the parties

1. It was submitted on behalf of the applicant that there is no discretion to decline to set a non-parole period for an offence which attracts a standard non-parole period (see SGJ v R; KU v R [2008] NSWCCA 258; Bellchambers v R [2011] NSWCCA 131).

1. The Crown conceded that in view of the provisions of s. 45(1) of the Sentencing Act his Honour had erred in respect of the sentence imposed in respect of count 4. However, the Crown submitted that the appropriate inference to be drawn was that his Honour had intended that the fixed term which was imposed represent the non-parole period (see R v Dunn [2004] NSWCCA 346; Hristovski v R [2010] NSWCCA 129). The Crown also pointed out that the term imposed in respect of count 4 would be subsumed in the sentence for count 7 and submitted that in these circumstances, re-sentencing made no difference to the end result.

Consideration and conclusion

1. The concession made by the Crown was a proper one. The sentence imposed in respect of count 4 was contrary to the provisions of the Sentencing Act.

1. Whether the fixed term imposed by his Honour should be regarded as representing the length of the non-parole period or the length of the head sentence was something which was not fully argued in the present case. It is a matter about which differing views have been expressed (see the discussion of R A Hulme J in Collier v R [2012] NSWCCA 213 at [52] - [62]). However, the offence in count 4 carried a standard non-parole period of 7 years and his Honour found (at ROS 11, paragraph [12]) that the offending was in the mid range. It would be reasonable in these circumstances to conclude that the fixed term represented the non-parole period. Absent any other basis on which this Court considers that it should intervene, re-sentencing the applicant on count 4 will make no difference to the aggregate non-parole period, or the aggregate sentence (see Mammone v R [2013] NSWCCA 95 at [49] per Latham J, Button J and Grove AJ agreeing).

1. In these circumstances, although error has been established, I do not regard that error as material.

Ground 4 - His Honour erred in his consideration of the psychiatric evidence

The psychiatric evidence

1. Tendered before his Honour were two reports of Dr Stephen Allnutt, psychiatrist. The first was a report of 11 September 2008 in which Dr Allnutt reached (inter alia) the following conclusions:

"In my opinion, at the time that I saw your client, he was manifesting ongoing auditory hallucinations that had onset approximately one year prior following the commencement of methamphetamine abuse. In addition to this, he manifested some mild paranoid ideas and ideas of reference. Thus at the material time that I saw him, he manifested ongoing symptoms of a psychosis. Given that his psychosis persisted months after incarceration, in the absence of evidence of further substance abuse since his incarceration, consideration could be given to a chronic psychotic disorder, however, methamphetamines (sic) induced psychosis can cause a more persisting syndrome of psychotic symptoms than other substances so I cannot entirely rule out a yet to resolve drug induced psychosis."

1. In a second report of 19 February 2009 Dr Allnutt said:

"Having regard to the information provided to me, there is limited evidence of overt psychotic symptoms in the time preceding the onset of methamphetamine abuse. He appears to have a history of a fluctuating mood disorder in that period (likely associated with substances abuse). After the onset of methamphetamines there is evidence for the emergence of symptoms of psychosis, particularly of a paranoid nature (believing people are after him), that his girlfriend was having sex with others behind his back (potentially delusions of infidelity), that the TV was communicating with him (ideas of reference) and that he was hearing voices (auditory hallucinations).

These symptoms have been relatively persistent since then and persist to date despite anti-psychotic medication which suggests that there is a disease process that is occurring independent of methamphetamines. Methamphetamines can induce a syndrome of symptoms that mimic schizophrenia and thus it can be hard to distinguish between a methamphetamine-induced psychosis and schizophrenia. While methamphetamines can result in a persistence of psychotic symptoms, I believe that at this stage, the duration of these symptoms are of a nature that would suggest his condition cannot be explained by drugs alone and that a persisting psychotic disorder (such as schizophrenia) has developed.

Overall, at the material time that the alleged offence occurred I believe there is evidence to support the conclusion that your client was experiencing delusional beliefs compounded by auditory hallucinations and ideas of reference which incorporated his girlfriend leading him to form the view that she was being unfaithful to him and that these symptoms were active at the material time that the alleged offence occurred."

The findings of the sentencing judge

1. The sentencing judge dealt with the psychiatric evidence commencing at ROS 14, paragraph [27]. Having made reference to the reports of Dr Allnutt, particularly the opinion expressed in the second of those reports set out in [53] above, his Honour said (at ROS 15, paragraph [29]):

"This opinion of the doctor is almost entirely dependent on his acceptance of what the applicant told him. Having regard to the character and antecedents of the applicant I would have to profess a certain degree of scepticism in this regard. Nevertheless I am told that Dr Allnutt is a respected criminal psychologist (sic) and, as he was not required for crossexamination, I am prepared to take his opinion at face value.

Even at its highest this medical opinion does in no way justify the behaviour of the applicant. It cannot be said to have had any connection with the sexual offences. It may go some way to explaining his use of violence towards her due to his psychotic beliefs but that is the high point of the opinion insofar as the question of moral culpability is concerned."

1. By reference to the judgment of Sperling J in R v Hemsley [2004] NSWCCA 28 at [33] - [36] his Honour (at ROS 15, paragraph [31]) cited the general principles which are applicable to sentencing a mentally ill offender. Those principles have since been refined, following a review of the authorities, by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; (2010) 205 A Crim R 1 at [177] - [178]. In the present case, the sentencing judge stated the principles in the following terms:

"Firstly, where mental illness contributes to the commission of the offence in a material way, the call for denunciation and penalty may be reduced. I am not satisfied that the mental illness contributed to the commission of the offences in a material way. Secondly, the applicant may be an inappropriate vehicle for general deterrence which may moderate that consideration. I do not believe that the principle of general deterrence is inappropriate for this applicant. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person. I am prepared to accept that particular contention. The question of the mental condition might also be relevant in terms of special circumstances so far as the need for treatment is concerned either during his imprisonment or subsequent to it, and I will come back to this when I deal with special circumstances.

1. His Honour's findings as to special circumstances have been previously noted (at [40] above).

Submissions of the parties

1. It was submitted on behalf of the applicant that having taken Dr Allnutt's opinion "at face value", his Honour erred by concluding that the applicant's mental state had not contributed to the sexual offending. It was submitted that in expressing his opinion Dr Allnutt had not drawn any distinction, in terms of the applicant's mental illness, between the sexual offending and the other offending. It was submitted that in these circumstances there was an inconsistency between his Honour's apparent acceptance of Dr Allnutt's opinion on the one hand, and his findings on the other. In particular, it was submitted that his Honour's finding that there was no connection between the applicant's mental illness and the offending effectively amounted to a rejection of Dr Allnutt's opinion, in circumstances where his Honour appeared to have expressed a general acceptance of it.

1. It was further submitted that in circumstances where there was a documented history of mental illness contained within the reports of Dr Allnutt, his Honour's observation that Dr Allnutt's opinions were "almost entirely dependent" upon acceptance of the information provided by the applicant was also an error. It was also submitted that in the light of that documented history, his Honour's expressed scepticism was somewhat misplaced.

1. The Crown submitted that Dr Allnutt's opinions were at least partly dependent upon what the applicant had told him and that the expressed scepticism of the sentencing judge was warranted. The Crown further submitted that in circumstances where the applicant had not given evidence, his Honour was entitled to give little, if any, weight to Dr Allnutt's opinions (see generally R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369).

Consideration and conclusion

1. No complaint has been made regarding his Honour's statement of the relevant principles applicable to sentencing a mentally ill offender (at [55] above). Further, in light of the applicant's history, adopting a cautious approach to the reliability of anything said by him was not without justification.

1. However, in the first of his reports Dr Allnutt (commencing at p. 2) undertook a comprehensive review of the material pertaining to the applicant's medical history which had been provided by Justice Health. That material established that as long ago as January 1995 the applicant was reported as having mental health problems. Later complaints of suicidal thoughts and auditory hallucinations were accompanied by objective evidence of mental health disturbance, including evidence of attempts at self harm and outbursts of anger. The attending medical practitioner(s) thought the applicant's condition was sufficiently serious to warrant prescription of, and later increases in, anti-psychotic medication.

1. On the material made available to Dr Allnutt, these mental health issues extended up to, and beyond, the date of the offending. None of them were referred to by his Honour in his remarks on sentence. In the circumstances, his Honour's observation that Dr Allnutt's opinion was based almost entirely upon the information provided to him by the applicant was, in my view, not correct and reflected a material error.

1. Further, in the absence of a more definitive statement, his Honour's observation that he was prepared to "take (Dr Allnutt's) opinion at face value" can only be interpreted as a general acceptance of such opinion. Part of Dr Allnutt's opinion was that at the time of the offending, the applicant was experiencing delusional beliefs, auditory hallucinations and ideas of reference which incorporated his view that the victim had been unfaithful to him. Clearly, Dr Allnutt took the view that there was a causal connection between the applicant's mental illness and his offending. He drew no distinction between the particular offences in this respect.

1. In these circumstances, I am not able to reconcile his Honour's apparent acceptance of Dr Allnutt's opinion with his conclusion that the applicant's mental illness had not contributed to the sexual offending in a material way. It follows that his Honour's conclusion in this regard was also reflective of material error.

1. Finally, his Honour found that principles of general deterrence remained an appropriate consideration in the sentencing of the applicant. The reason(s) which led him to that conclusion were not explained. The opinions of Dr Allnutt supported the conclusion that the applicant suffered from a serious mental illness. That illness rendered the applicant an inappropriate vehicle through which to deter others from similar offending (see Muldrock at [55]). His Honour's finding to the contrary reflected further material error.

1. For all of these reasons, this ground is made out.

THE APPLICATION TO EXTEND TIME

The applicable principles

1. In Abdul (supra) this Court said (at [53]):

"Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time".

1. Although not as significant as those periods of delay which have been considered by this Court in other cases of so-called Mudrock error, the delay in the present case is nevertheless substantial. It is sought to be explained on the basis of a change in applicable sentencing principles following the decision in Muldrock. However, grounds (2), (3) and (4) were grounds which were independent of any asserted Muldrock error. Had the applicant wished to bring an appeal based on those grounds he could have done so at a far earlier time. His failure to do so is largely unexplained, although it may have been the result of a change in his representation (which was a matter not of his choosing) and the significant delay in assessing his application for legal aid (which was not his fault). That said, it is at least possible that an extension of time may have an impact upon the victim. It would also offend the principle of finality. The majority of these considerations tend against granting an extension of time.

1. However, for the reasons which have been outlined, a number of material errors have been established. For the reasons explained in Abdul, it is therefore necessary to assess the prospects of success of the application for leave to appeal. In doing so, the Court must consider whether some lesser sentence is warranted in law (Criminal Appeal Act 1912 (NSW) s. 6(3)).

Is some lesser sentence warranted in law?

Submissions of the parties

1. Senior counsel for the applicant firstly submitted that the offending in count 1 involved kicking with a bare foot and that although the injuries would obviously have been painful for the victim, they were nevertheless in the low range of injuries which constitute grievous bodily harm. For these reasons it was submitted that this offending fell towards the lower end of the scale.

1. Further, and whilst acknowledging that it was relevant to take into account the fact that the victim suffered pain during the instances of forced intercourse, senior counsel stressed that the injuries to the victim had not been inflicted by the applicant at the time of, or immediately before or after, the commission of the sexual offences. It was also submitted that the applicant's sexual offending should be assessed in the context of the relationship which existed between himself and the victim, and that this circumstance mitigated such offending.

1. Senior Counsel also submitted that the applicant's criminal history should be assessed according to his background. That background included the fact that he had been adopted at 12 months of age to a non-indigenous family and had suffered from a drinking problem from the age of 15. Reliance was also placed upon the evidence of the applicant's mental illness to which I have previously referred.

1. Finally, reliance was placed upon sentencing statistics and what were said to be sentences imposed in cases of offending which were factually comparable.

1. The Crown submitted that in determining the appropriate sentence in respect of count 1, the injuries sustained by the victim were simply one of a number of factors to be taken into account. The Crown also pointed to the unprovoked and prolonged nature of the initial attack perpetrated on the victim, in the context of a history of domestic violence.

1. The Crown also submitted that the circumstance of any sexual relationship between the applicant and the victim was not relevant. It was submitted that the fact that the applicant was not a stranger to the victim did not mitigate the objective seriousness of the offending and that the more relevant factor was that it took place in the context of a history of domestic violence. The Crown also pointed to the inherent seriousness of the offending, and the fact that it was committed at a time when the applicant was on conditional liberty. For these reasons the Crown submitted that no lesser sentence was warranted in law.

Consideration and conclusion

1. The applicant's offending was obviously serious and for a number of reasons I am not able to accept the submission advanced on his behalf that the offending in count 1 should be viewed as falling towards the lower end of the scale.

1. The result of offending of the kind encompassed by count 1 is not the only consideration relevant to a determination of its seriousness (see R v Mansour; R v Hughes [2013] NSWCCA 35 at [31] - [32]). Moreover, it is particularly significant that in the present case the mode of inflicting the injuries was kicking, an act which has been described as being "a familiar method of inflicting serious injury in modern times" which is to be regarded by the courts as "abhorrent and worthy ... of condign punishment" (see R v Wright [1998] VSCA 84 at [2] cited with approval by Johnson J in AM v R [2012] NSWCCA 203 at [81]). The fact that the kicking was executed with bare feet does not, in my view, render it any less serious.

1. Having acted in such a violent way, a period of time elapsed before the sexual offending commenced. During that period of time, the victim made it clear, on more than one occasion, that she did not wish to have sex with the applicant. It was open to the applicant to respect the victim's wishes and desist from further offending. Rather than do that, he proceeded to force sexual intercourse on the victim, disregarding both her repeated refusals and her subsequent complaints of pain. That offending was repeated in a similar way on a second occasion some days later, again in the context of unprovoked acts of violence towards the victim. On each of those occasions, the applicant made a number of degrading and disrespectful statements to the victim, from which it is abundantly clear that he regarded her as nothing more than a vehicle for his own sexual gratification.

1. The applicant is not assisted by his criminal history. Whilst he has not been previously convicted of sexual offending, he has countless previous convictions for offences of violence. His Honour properly concluded that the applicant's criminal history demonstrated that the violent offending committed in this case was not uncharacteristic.

1. As previously noted, senior counsel for the applicant submitted that the sexual offending was mitigated by the fact that it had occurred in the context of a relationship between the applicant and the victim. In NM v R [2012] NSWCCA 215, Macfarlan JA (commencing at [56]) reviewed the authorities concerning the significance, in terms of sentencing, of a relationship between an offender and a victim. His Honour concluded (at [59], McCallum J and Grove AJ agreeing) that in light of the originally lengthy, and later intermittent, sexual relationship which had existed between the offender and the victim in that case, the offending could not be equated to offending which involved sexual assaults by strangers. In doing so, his Honour observed (at [59]):

"Here, the victim had been prepared until moments before the assaults to have sexual intercourse with the appellant, and the complainant had indeed, only three minutes before the applicant's arrival at her home, invited him over for that very purpose. My view is that in these circumstances, the sentencing judge erred in characterising the offences as falling within the mid-range of seriousness. They were in my view well below that, although not at the bottom of the range".

1. His Honour had occasion to further consider this issue in Norman v R [2012] NSWCCA 230, a case which involved three instances of sexual intercourse without consent committed in the course of a marriage of 13 years duration, each instance having commenced with consensual intercourse. Having referred to his judgment in NM his Honour said (at [60], Price and McCallum JJ agreeing):

"... the objective seriousness of offences such as the present needs to be assessed in the context of the relationship between the offender and the complainant".

1. Whilst the existence of a relationship between an offender and a victim is a relevant consideration in determining the objective seriousness of sexual offending, each case turns on its own facts. In particular, it is necessary to have regard to the nature and extent of any such relationship in determining whether it mitigates the offending.

1. In the present case, his Honour found that the applicant and the victim had formed an intimate relationship in 2007, in the course of which the applicant would stay at the victim's premises on several nights each week. That relationship deteriorated to the point where, in August 2007, the victim made a complaint to police about the applicant. Obviously, the relationship between the applicant and the victim was renewed, although it is not clear precisely when this occurred. It is difficult to ascertain the precise extent of the relationship at the time of the offending. His Honour's reference (at ROS 5) to the fact that the applicant had "continued to visit" the victim would indicate that they were not living together.

1. Whatever the extent of their relationship might have been when the offending occurred, the factual circumstances of such offending were markedly different to those considered by Macfarlan JA in NM. In particular, this was not a case in which the victim had invited, or was at any time prepared to engage in, sexual intercourse with the applicant. On the contrary, she repeatedly stated that she did not wish to do so.

1. The present facts are also quite different from those considered by this Court in Norman. In particular, the applicant and the victim in the present case were not married.

1. The sentencing judge in the present case cited the observations of Wood CJ at CL (with whom Studdert and Bell JJ agreed) in R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 at [41]:

"As this court has confirmed in Glenn (NSWCCA 19.12.1994), Ross (NSWCCA 20.11.1996), Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."

1. These principles were confirmed, after a review of the relevant authorities, by Johnson J (with whom Hunt AJA and Latham J agreed) in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 (at [65] and following).

1. In my view, when considering the relationship between the applicant and the victim, and in considering whether that relationship mitigates the offending, an important consideration is that the offending occurred in the context of significant domestic violence perpetrated upon the victim by the applicant. Whatever their relationship might have been, the acts of domestic violence which preceded each instance of forced sexual intercourse were serious, unprovoked and unwarranted. This was a matter to which his Honour properly had regard.

1. The nature of the respective relationships and the context of the respective offending considered by this Court in NM and Norman are readily distinguishable from those in the present case. For all of these reasons, the nature and extent of any relationship between the applicant and the victim does not, in my view, operate to mitigate the offending.

1. Although material error has been established, none of the matters advanced on behalf of the applicant, including the applicant's mental illness, support a conclusion that there has been substantial injustice arising out of the sentence imposed, or that some other sentence is warranted in law.

ORDER

1. I propose the following order:

(i)   The application for an extension of time is dismissed.

**********

Decision last updated: 14 November 2013