Khanchitanon v R

[2014] NSWCCA 204

Court of Criminal Appeal

New South Wales

Case Title:	Khanchitanon v R
Medium Neutral Citation:	[2014] NSWCCA 204
Hearing Date(s):	19 September 2014
Decision Date:	03 October 2014
Before:	Hoeben CJ at CL at [1] Fullerton J at [2] Adamson J at [3]
Decision:	Refuse leave to appeal
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - sexual intercourse without consent - applicant was victim's employer - fact that victim continued to report to work did not ameliorate the applicant's abuse of authority - pedantry particularly inappropriate when remarks on sentence delivered orally and ex tempore - actual or potential deportation irrelevant to the sentencing exercise but error was in applicant's favour - leave refused
Legislation Cited:	Crimes Act 1900 (NSW), ss 61I, 61L Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases Cited:	Dinsdale v R [2000] HCA 54; 202 CLR 321 Hili v The Queen [2010] HCA 45; 242 CLR 520 Kaminic v R [2014] NSWCCA 116 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Pham [2005] NSWCCA 94
Category:	Principal judgment
Parties:	Peeradej Khanchitanon (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: M Crawford-Fish (Applicant) N Adams (Crown)
- Solicitors:	Solicitors: John B Hajje & Associates (Applicant) S Kavanagh (Solicitor for Public Prosecutions)
File Number(s):	2012/105657
Decision Under Appeal
- Before:	Syme DCJ
- Date of Decision:	09 May 2013
- Court File Number(s):	2012/105657
Publication Restriction:	Nil

JUDGMENT

JUDGMENT

1. HOEBEN CJ at CL: I agree with Adamson J.

2. FULLERTON J: I agree with Adamson J.

3. ADAMSON J: The applicant seeks leave to appeal against the sentences imposed by Syme DCJ on 9 May 2013, following his conviction after trial, as follows:

Count no.	Section of Crimes Act 1900	Offence	Maximum Penalty/ Standard Non-Parole period	Sentence
1	S 61L	Indecent assault on JJ on 31 March 2012	5 years	Fixed term of 4 months to date from 9 May 2013 and to expire on 8 September 2013
2	S 61I	Sexual intercourse without consent against JJ on 2 April 2012	14 years / 7 years	Total term of 4 years to date from 9 May 2013 with a non-parole period of 2 years and 6 months

1. Her Honour found special circumstances and adjusted the ratio of the non-parole period to the total term from 75% to 62.5%.

2. The sole ground of appeal is that the sentence for the second count was manifestly excessive.

Facts

Count 1: indecent assault on 31 March 2012

1. The victim arrived in Australia on 24 March 2012 on a student visa. Within a few days of her arrival, she obtained employment with the applicant and his wife at their Thai restaurant at Crow's Nest. The applicant's wife was pregnant with their first child. On 30 March 2012, the victim's first day at work, the applicant was overly friendly towards her and made inappropriate sexual comments. The next day, towards the end of her shift, the victim was alone with the applicant in the restaurant. He approached her in the washing up room, grabbed her from the front, put his arms around her and tried to kiss her on the cheek. She resisted and said, "No, I don't want this". He persisted and undid her bra strap under her T-shirt. He put his hands on her chest and rubbed her breasts. She was afraid and begged him to stop. Ultimately she managed to free herself after raising her voice.

Count 2: Sexual intercourse without consent on 2 April 2012

1. On 2 April 2012 the applicant continued to make inappropriate comments. He suggested that she be his mistress and become pregnant to him. At his request, she worked a full shift. At the end of the shift, after they had finished cleaning the restaurant, he switched off the light, followed her into the washing up room, grabbed her and forced her against a bench. Despite her resistance, he tried to kiss her, held her hands tightly behind her back with one hand, tried to undo her bra and then forced his hand under her T-shirt. He forced his hand down the front of her trousers and digitally penetrated her vagina, a short way and for a relatively brief time, which the victim estimated to be about a minute. She was afraid and begged him to stop. Eventually she managed to extricate herself. He said, "You are wet already, that thing of yours smells nice, it's not like the other woman's".

2. The applicant gave the victim a lift home but continued speaking inappropriately to her. She complained both to her flat-mate and to her boyfriend and reported the matter to police the following day.

3. At trial the applicant denied any wrong-doing and said that the victim flirted with him, that she kissed him and that he only touched her pubic hair. The jury must be taken to have rejected his evidence by its verdict of guilty on each count.

The sentence hearing

1. The Crown tendered the indictment and the applicant's criminal history which showed that he had had no prior contact with the police. The Crown also tendered a pre-sentence report dated 3 May 2013 and a report of pre-sentence consultation. It also tendered a victim impact statement from JJ who said that she had been suffering from flashbacks, nightmares and insomnia. She also said:

   "The biggest impact on my life is how it affected my work. I need to work to support my study but after trying to return to work I found that I can't trust my male bosses or co-workers. I don't want to be nice to them at all in case they get the wrong impression. I'm always thinking about not putting myself into the same situation or making myself vulnerable to being attacked again. It is too stressful for me to work."

2. The applicant tendered a letter dated 3 May 2013 from Far East Migration Consultant Pty Limited, various character references and a report of Dr. Ashkar, psychologist, dated 6 May 2013. The applicant's wife gave evidence at the sentence hearing about her immigration status (holder of a student visa) and that of the applicant (whose visa is linked to hers).

The remarks on sentence

1. The sentencing judge recited the facts that are set out above. Her Honour noted the victim impact statement and the distress the victim suffered as a result of the offending conduct. Her Honour said:

   "This sadly is a normal and usual consequence of this kind of offence on a victim. It will not form part of an aggravating circumstance but the victim impact statement simply reminds this Court and the offender of the consequences of his behaviour."

2. Her Honour referred to the victim's position as the applicant's employee and said:

   "To that end she was in a vulnerable position because she needed the work and she was during the course of these offences alone at work with him and he was in a position of power over her. For these offences therefore, it forms an aggravating circumstance because of the relationship between the two participants."

3. Her Honour found:

   "He completely disregarded her protestations. His actions only ceased when on the first occasion she raised her voice and on the second occasion, after his fingers had entered her vagina, she physically pulled away."

4. Her Honour was not satisfied that the applicant felt remorse, except for himself and for the consequences of his offending on his family, and took into account his good character and lack of criminal record. Her Honour did not, however, consider that his lack of insight and understanding amounted to an aggravating circumstance.

5. The sentencing judge found special circumstances based on the language difficulties arising from his English being poor to adequate and cultural difficulties which will make his incarceration more onerous.

6. Her Honour did not accept the submission that the sentence ought to be structured so as to avoid the applicant failing the good character test for immigration purposes. Her Honour did, however, take into account the circumstance that the imposition of a sentence would be likely to have the effect that the applicant would be deported at the end of his sentence. The sentencing judge considered that this amounted to extra-curial punishment. Her Honour found the applicant to have reasonable prospects of rehabilitation, although she also found that he lacked insight into the consequences of his offending on the victim.

7. The sentencing judge assessed the objective seriousness of the applicant's offending as follows:

   "The conclusion from his good character and lack of record is that he should be allowed some leniency. Taking into account all of the circumstances of the offence that I have referred to, that is, the length of time that the offence occurred, the circumstances of the offence, the fact the victim signified on several occasions both in words and struggling that she was not consenting, the relatively short duration and the fact that he was her employer and that digital penetration only was involved, this is an offence towards the lower end of the scale of seriousness but not at the lowest end."

Reasons

1. The sole ground of appeal is that the sentence for the second count was manifestly excessive.

2. A claim of manifest excess requires the applicant to establish that the sentences imposed were unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v R [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]-[59]. Whether a sentence is manifestly excessive is a conclusion. It is not necessary to identify any particular error in the process; it is the examination of the result that leads to the conclusion.

3. Nonetheless it can be helpful to ascertain why and how the sentence was arrived at since this inquiry may explain the conclusion and expose the reason for any manifest excess.

4. Mr Crawford-Fish, who appeared on behalf of the applicant, challenged her Honour's assessment of the objective seriousness of the offending as being towards the lower end but not at the lowest end. He relied on two matters in support of his contention that the sentencing judge erred in the assessment with respect to the second count:

   (1) The sentencing judge found that the applicant, as the victim's employer, was in a position of power over her and that this amounted to an aggravating circumstance.

   (2) The sentencing judge found that the applicant completely disregarded the victim's protestations.

5. Mr Crawford-Fish relied on the victim's attendance at work on days subsequent to the first of the applicant's inappropriate remarks and the conduct that comprised the first count. He contended that her conduct showed that she had a choice whether to attend work and that she chose to do so. He subsequently retreated from the submission but considered that her subsequent attendance showed that the disparity in power between the applicant and the victim was not as substantial as her Honour had adjudged it to be. I do not accept this submission.

6. First, this Court is reluctant to disturb the sentencing judge's assessment of objective seriousness of the offending conduct: see the authorities referred to in Kaminic v R [2014] NSWCCA 116 at [46]-[47] per Fullerton J, Ward JA agreeing. Secondly, I do not discern any error in her Honour's assessment in the present case, either in the context of (1) above, or at all. Section 21A(2)(k) of the Crimes (Sentencing Procedure) Act provides that an offender's abuse of authority over a victim is an aggravating circumstance that is to be taken into account on sentence. Although the victim may have had a choice whether to attend work after the applicant had first behaved inappropriately towards her, she was obviously in need of money and was subject to a financial imperative to support herself while she was studying. Furthermore, she may have believed that her firm rebuffs had had the desired effect and that the applicant would respect her rejection of his advances. Abuse of authority by the offender, as employer, is not neutralised by the victim reporting for work after the first instance of abuse.

7. Mr Crawford-Fish submitted that it was not correct to say, as her Honour did, that the applicant completely disregarded her protestations when her Honour went on to say that he desisted on the first occasion when she raised her voice and on the second occasion when she physically pulled away. He also relied on the circumstance that the applicant drove the victim home after his commission of the second count.

8. I reject this submission. Her Honour was plainly aware that the applicant had ceased the offending conduct at the points referred to above. The applicant's complete disregard of her protestations was not permanent, but lasted as long as the offending conduct lasted. A reader acutely attuned to error could discern a potential inconsistency between the finding that the applicant completely disregarded her protestations and the finding that he stopped the offending conduct at two particular points (when she raised her voice and when she pulled away). However, such an analysis is inappropriate, particularly in respect of remarks on sentence that have been delivered orally and ex tempore immediately following the sentence hearing. Judges who impose sentences in such circumstances (as is the usual practice in the District Court) are entitled to have their remarks read and considered fairly and as a whole, with due consideration of the context in which they have been delivered.

9. I do not discern any error in her Honour's assessment of the objective seriousness of the second count. It was open to her Honour to find that the offending was towards the lower end, but not at the lowest end, of the scale of seriousness. The digital penetration was effected as a result of the applicant physical forcing himself on the victim when they were in the restaurant together, in the dark. He had already suggested that he should make her pregnant. He was her employer and she was a new arrival to this country. She was terrified of what he would do to her.

10. Her Honour took into account the prospect of deportation as amounting to extra-curial punishment. The fact of actual or potential deportation is irrelevant to the sentencing exercise. It was, accordingly, an error for the sentencing judge to use deportation to determine any aspect of the sentence: R v Pham [2005] NSWCCA 94 at [13]-[14] per Wood CJ at CL, Hislop and Johnson JJ agreeing. In the present case, this error was in the applicant's favour.

11. I do not consider the sentence imposed for the second count to be manifestly excessive. The sole ground of appeal has not been made out.

Proposed orders

1. I propose the following order:

   (1)Refuse leave to appeal.

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