Macreadie v The King

[2023] NSWCCA 162

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Macreadie v R [2023] NSWCCA 162

Hearing dates:

17 February 2023

Date of orders:

05 July 2023

Decision date:

05 July 2023

Before:

Beech-Jones CJ at CL at [1];
Button J at [2];
McNaughton J at [5]

Decision:

(1) The applicant be granted leave to appeal.

(2) The appeal be dismissed.

Catchwords:

CRIME – appeal – sentence appeal – whether sentencing judge’s factual finding about the applicant’s purpose for entering the premises was open – aggravated break, enter and commit serious indictable offence – aggravated sexual assault against sleeping child –surrounding evidence led to finding which was open beyond reasonable doubt – it was open to find the applicant’s purpose for entering the home was to commit the sexual assault

Legislation Cited:

Crimes Act 1900 (NSW) ss 61J, 112

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 43, 54B

Criminal Appeal Act 1912 (NSW, s 5

District Court Rules 1973 (NSW) Pt 53 r 12

Mental Health Act 2007 (NSW)

Cases Cited:

A v R [2020] NSWCCA 145

Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150

Fisher v R; R v Fisher [2021] NSWCCA 91

Hordern v R [2019] NSWCCA 138

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

R v Daley [2010] NSWCCA 223

R v O’Donoghue (1988) 34 A Crim R 397

Ragg v R [2022] NSWCCA 150

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Yin v R [2019] NSWCCA 217

Category:

Principal judgment

Parties:

Christopher Anthony Macreadie (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Quilter (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/242903

Publication restriction:

The non-publication orders previously made in this matter are continued until further order of the Court.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 August 2021

Before:

McLennan SC DCJ

File Number(s):

2020/242903

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 29 June 2018 Christopher Macreadie (“the applicant”) entered the home of a sleeping 14-year-old girl (“SB”) via a rear glass sliding door. SB and her mother were asleep on lounge chairs in the lounge room. The applicant entered various rooms in the house and collected intimate items belonging to SB, including bikini bottoms, underpants and photographs. At approximately 2:00am SB awoke to the applicant rubbing the outside of her vagina with his hand, he was touching her skin to skin. The applicant inserted his fingers into her vagina whilst SB pretended to be asleep. SB felt the applicant lay partially on top of her, continuing to insert his fingers into her vagina. She sat up in pain. The applicant got off SB and made a ‘shhh’ sound. He ran to the glass sliding door, and picked up a bag with the intimate items belonging to SB. The applicant smiled at SB before again indicating that she be quiet. He ran through the gate and down the road.

On 20 August 2020, the applicant was arrested for these offences. On 25 May 2021 the applicant pleaded guilty to one count of aggravated break, enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW) (“Count 1”) and one count of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act (“Count 2”).

The applicant was sentenced in the District Court at Lismore on 27 August 2021 by Judge McLennan SC (“the sentencing judge”). The sentencing judge imposed an aggregate term of imprisonment of 8 years and 6 months with a non-parole period of 5 years and 10 months.

The issues arising on the appeal were:

(i) Whether the sentencing judge’s factual finding that the applicant’s true purpose in entering the premises was to commit sexual assault on the sleeping child was not open to his Honour (“ground 1”); and

(ii) Whether an error was made in the written order in relation to the starting date of the sentence (“ground 2”).

The Court held (McNaughton J, Beech-Jones CJ at CL and Button J agreeing), granting leave to appeal, but dismissing both grounds of the appeal:

As to ground 1, per McNaughton J (Beech-Jones CJ at CL and Button J agreeing):

(1) The “entry into the premises” referred to by the sentencing judge in his Honour’s remarks was in the context of considering the objective seriousness of Count 1, not Count 2. It was in the context of Count 1 that his Honour concluded the true purpose behind the entry into the premises was to commit the sexual assault on SB. The items the subject of Count 1 were not taken for monetary value, but rather, were taken because they had a sexual connotation relating to SB, who the applicant had seen before entry because the lights were on. To approach the criminality looking at the whole of the circumstances was appropriate. To do otherwise would have been to look at the evidence piecemeal rather than as a whole: [1] (Beech-Jones CJ at CL) [2]-[3] (Button J) [49]-[57] (McNaughton J).

[Ragg v R [2022] NSWCCA 150 cited]

[The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 cited]

(2) In any event, if the impugned finding was relied upon as a matter which increased the objective seriousness of Count 2, it was open to the sentencing judge to find that the applicant’s true purpose in entering the house was to commit the sexual assault on SB. The evidence, when considered as a whole, lead to a conclusion which is open beyond reasonable doubt: that the applicant entered for the purpose of sexual assault: [1] (Beech-Jones CJ at CL) [2]-[3] (Button J) [58]-[59] (McNaughton J).

[The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 applied]

(3) Further, an intention to assault the child, if not formed at the time of entry, would have been formed not long after entry. The error, if there be one, is so marginal that it would not have the capacity to affect the exercise of the sentencing discretion: [1] (Beech-Jones CJ at CL) [2]-[3] (Button J) [60] (McNaughton J).

[Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 cited]

[Newman v R [2019] NSWCCA 157 cited]

As to ground 2, per [McNaughton J (Beech-Jones CJ at CL and Button J agreeing):

(4) The Supreme Court has no power to order the District Court to amend an administrative error under either the Criminal Appeal Act 1912 (NSW) or Crimes (Sentencing Procedure) Act 1999 (NSW): [1] (Beech-Jones CJ at CL) [4] (Button J) [69] (McNaughton J).

JUDGMENT

1. BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of McNaughton J. For the reasons given by her Honour I would reject the challenge to the finding by the sentencing judge that “the true purpose behind the entry into the [victim’s] premises was to commit the sexual assault on the sleeping child that he observed through the door” and that is so regardless of whether the appropriate standard of review of finding of fact made on sentence is that stated in R v O’Donoghue (1988) 34 A Crim R 397 or as stated in Hordern v R [2019] NSWCCA 138 at [20]. Otherwise this is (another) example of a case where the facts and circumstances of a subsequent offence committed shortly after the subject offence can bear upon the assessment of the objective gravity of the latter (see Ragg v R [2022] NSWCCA 150 at [38]-[45]). I otherwise agree with the reasons of McNaughton J. I agree with the orders proposed by her Honour.

2. BUTTON J: I agree with McNaughton J that satisfaction beyond reasonable doubt of the contested proposition was open to the evaluation of the learned sentencing judge.

3. Of particular significance to my opinion are the visibility of the sleeping complainant at the time of the entry (agreed facts at 2 and 3); and, as the Crown submitted at first instance, the nature and circumstances of the subsequent offence, committed two years later.

4. I also agree with the approach of her Honour to ground 2, with the result that I agree with the orders proposed.

5. McNAUGHTON J: In the early hours of 29 June 2018, 32-year-old Christopher Macreadie (“the applicant”) entered the home of a sleeping 14-year-old girl (“SB”) and whilst there digitally sexually assaulted her. SB resided with her mother and brother. Prior to assaulting SB, the applicant had been into other rooms in the house where he had collected intimate items belonging to SB including bikini bottoms, underpants, and photographs which he placed in a bag, and which he ultimately took with him (“the 2018 offences”).

6. The applicant was not arrested for the 2018 offences until 20 August 2020. He pleaded guilty to these offences on 25 May 2021. The applicant was sentenced in the District Court at Lismore for the 2018 offences on 27 August 2021 by Judge McLennan SC (“the sentencing judge”). The sentencing judge imposed an aggregate term of imprisonment of 8 years and 6 months with a non-parole period of 5 years and 10 months. The sentencing judge stated that the sentence would commence on 25 December 2020, although it was erroneously recorded on the court file as beginning on 27 December 2020.

7. The details of the offences, including the indicative sentences are as follows:

Count	Offence	Maximum Penalty/Standard Non-Parole Period	Indicative Sentence (pre-discount)	Indicative Sentence (after 25% discount for early pleas of guilty)
Count 1	Aggravated (knowing a person was home) break, enter and commit a serious indictable offence (larceny) Crimes Act 1900 (NSW) s 112(2)	20 years / 5 years	5 years 4 months	4 years
Count 2	Aggravated (person under the age of 16) sexual intercourse without consent with SB knowing she was not consenting Crimes Act s 61J(1)	20 years / 10 years	9 years 4 months	7 years

8. The applicant had no convictions for previous offending. However, before being sentenced for the 2018 offences, he was sentenced in the Ballina Local Court for two offences committed in 2020 (“the 2020 offences”) to concurrent terms of imprisonment of 12 months with non-parole periods of 6 months. The aggregate sentence for the 2018 offences was added to this six-month non-parole period. The total effective sentence for all the offending was 9 years with a non-parole period of 6 years and 4 months. The effective non-parole period comprises about 70.4 per cent of the total effective sentence.

9. The applicant seeks leave to appeal his sentence for the 2018 offences on two grounds:

1. The sentencing judge’s factual finding that the applicant’s true purpose in entering the premises was to commit sexual assault on the sleeping child was not open to his Honour.

2. An error was made in the written order in relation to the starting date of the sentence.

The Agreed Statement of Facts

10. The applicant was sentenced on the basis of an Agreed Statement of Facts. Given the nature of Ground 1, and the modest length of the Statement of Facts, it is reproduced in full. It can be noted that the sentencing judge also set out the agreed facts in full in his remarks on sentence.

“STATEMENT OF AGREED FACTS

The Crown contends that the [applicant] is criminally responsible in respect of the offence as a principal in the first degree, having:

• Known persons were inside the house, opened a closed glass sliding door and entered a residence at [an address in a regional NSW town];

• Once inside the house, he stole a girls’ cheerleading bag, bikini bottoms, and two photos from the victim’s bedroom, as well as several pieces of women’s underwear from a clotheshorse in the lounge room;

• Indecently assaulted a child under the age of 16 years by touching the outside of her vagina; and

• Had sexual intercourse with a child under the age of 16 years by inserting his finger(s) into her vagina.

Background

1) The [applicant] is Christopher Macreadie ([DOB]). The victim is [SB] ([DOB]) and, at the time of these events, she was aged 14 years. The victim resides with her mother [named] and brother [named] (aged 16 years) at [address]. The [applicant] is not known to either the victim or her family.

2) At approximately 11pm on Thursday 28 June 2018, the victim had fallen asleep on a lounge in the lounge room of her house. Her mother was asleep on a separate lounge chair within the same living room. Her brother was asleep in his bedroom. The front door was closed and locked. The rear glass sliding door was closed but unlocked.

3) After the victim and her mother had fallen asleep, the [applicant] entered the house through the rear glass sliding door. The door through which he entered is transparent and is close to the lounges where the victim and her mother were sleeping. The [applicant] observed the [victim] and her mother asleep on the lounges. There were lights on inside the house and a car parked in the driveway.

4) The [applicant] entered various rooms within the house. From the victim’s bedroom, he took a pair of bikini bottoms and two photographs from the wall. One photograph depicted the victim, and her friend, in bikinis at the beach. The other photograph was a selfie of the victim and her friend in the friend’s bathroom. He also took her cheerleading bag.

5) From the lounge room, he took 4-5 pairs of women’s underpants (belonging to the victim and her mother) from a clothes horse. He put these items (as well as the items taken from the victim’s bedroom) into the cheerleading bag and put the bag near the sliding door.

6) At approximately 2am, the victim awoke to the [applicant] rubbing the outside of her vagina with his hand. His hand was inside her pyjama bottoms and underpants and he was touching her skin-to-skin.

7) The victim was terrified, froze, and pretended to be asleep. She noticed that the t-shirt she had been wearing when she had fallen asleep had been removed, exposing her white crop top.

8) The [applicant] took off the victim’s pyjama pants and underwear while she was still pretending to be asleep. He inserted his fingers into her vagina. She remained still with her eyes closed, she felt the [applicant] lay partially on top of her, continuing to insert his fingers into her vagina. She sat up in pain.

9) The [applicant] got off her and stood in the middle of the lounge room. He placed his index finger to his mouth and made a ‘shhh’ sound. He then ran to the glass sliding door and picked up the victim’s cheerleading bag. The victim put on her pyjama shorts and closed the door. The [applicant] smiled at her before again indicating for her to be quiet. He ran through the gate and down the road.

10) The victim woke her mother and told her that a man had been inside the house. Police were contacted and attended shortly afterwards.

Police investigation

11) A crime scene was declared, and the victim’s pyjamas were seized.

12) That morning, the victim participated in a recorded interview at the Child Abuse Unit.

13) A male DNA profile was found on two locations inside the waistband of the victim’s pyjama pants; however, it could not be matched to any person at that time. No suspects could be identified. The investigation was suspended.

Further forensic testing

14) On 15 July 2020, investigating police were advised that the DNA profile from the victim’s pyjama shorts had been matched to the [applicant].

15) On 20 August 2020, the [applicant] was arrested for these offences. He was conveyed to Coffs Harbour Police station, where he declined to participate in an interview.

Search warrant

16) On 31 July 2020, police executed a search warrant at [address] which was the home of the [applicant] and his partner. During the search, police located a number of pairs of female underwear. The [applicant’s] partner told police that none of the pairs belonged to her and that she had found them amongst the [applicant]’s property after he had been taken into custody on other unrelated matters.”

Sentencing proceedings

11. The following material was tendered by the Crown:

1. Statement of Agreed Facts;

2. Victim impact statement;

3. Applicant’s criminal history (consisting only of the 2020 offences);

4. Police facts sheet for the 2020 offences;

5. Applicant’s custodial history report; and

6. A report by Justice Health (Dr Gordon Elliott) prepared in relation to the 2020 offences.

12. The Statement of Facts concerning the 2020 offences can be summarised as follows. In June 2020, a woman was showering in the female shower block at a Holiday Park in a NSW coastal town. When she entered the shower block, she observed the applicant standing naked with a patterned shower cap on his head, but he had his hands over his genitals and was holding something. She thought it was odd to see a man in the female showers but continued to her cubicle and started showering. She felt something touch her leg. She looked down and saw the applicant lying on the ground facing upward with his whole head under the cubicle. The woman screamed and the applicant ran away. The woman’s husband was nearby and saw the applicant running from the shower block, pulling up his shorts and carrying a bag. The husband attempted to restrain the applicant, but the applicant pulled out a knife and briefly began to chase the husband. The applicant entered his car and drove away.

13. The applicant was convicted in the Ballina Local Court for offences of observing a person in private without consent and being armed with intent to commit an indictable offence. It was while he was serving his sentence for the 2020 offences that the 2018 offences were matched to him.

14. The sentencing judge (for the 2018 offences) stated that the aggregate sentence he would impose would date from the end of the non-parole period for the sentence for the 2020 offences, that being 25 December 2020. He further stated that this aggregate sentence would be moderated only slightly when he came to consider the question of the totality of the applicable sentence, having regard to the sentence for the 2020 offences.

15. The applicant did not give evidence at the sentence hearing. His personal circumstances were set out in various documents tendered on his behalf, as follows:

1. Letter of apology from the applicant, affirmed 20 August 2021;

2. Various achievement certificates for courses completed by the applicant in custody;

3. Letter from Pastor Graeme Beaumont dated 17 August 2021;

4. Psychiatric report of Dr Gerald Chew, a forensic psychiatrist, dated 2 August 2021;

5. Affidavit of Narelle Macreadie (the applicant’s mother) sworn 2 August 2021, attaching:

1. Medical report for Narelle Macreadie from 2017;

2. Letter from Narelle Macreadie dated 19 August 2021;

3. Letter from Serge Rignault (a naturopath) dated 19 August 2021;

6. Affidavit of Maggie Louise Chandler (the applicant’s godmother), sworn 19 August 2021.

16. The documents indicated that the applicant was aged 32 at the time of the 2018 offences and 35 at sentence. He has a 6-year-old daughter with his ex-partner and a 12-year-old stepson.

17. The applicant had an upbringing involving some challenges. His father suffered from schizophrenia, abused substances (particularly alcohol) and was violent. The applicant’s mother became legally blind when he was four years old. He witnessed “significant” domestic violence at home and spent time in a refuge. The applicant was sexually abused by his older sister between the ages of four to ten. She was five years older than him and had died in 2016. The conflicting feelings he had for his sister complicated his grief. He grew up in an environment hostile to conventional medicine. His drug use commenced at six years of age with cannabis and increased from the age of 13 to daily use until the age of 23. The applicant abused alcohol from his mid-teens to the point of blackouts. He started to use methamphetamine (known more commonly as ice) in his mid-20s which continued until his arrest, apart from a six-month period of abstinence following a hospital admission in 2017.

18. Despite these difficulties, the applicant completed Year 10. He worked from the age of 13, initially on a paper run, and when he left school, he worked as a tyre fitter during the day and at a restaurant in the evenings. He commenced an apprenticeship as a mechanic, becoming qualified at the age of 22, and rose to a frontline management role in a mechanic’s business.

16. Prior to the 2018 offences, the applicant faced a number of other challenges, including, in 2016, the death of his grandfather and the death of his sister from heart disease and substance use problems. The applicant’s sister had been treated for mental health issues before her death. He relinquished his role at the mechanic’s business when his sister became ill. Not long after his sister’s death, his mother was diagnosed with cancer (Squamous Cell Carcinoma) for which she was receiving non-conventional treatment. Following his sister’s death and mother’s diagnosis, the applicant’s substance use became chronic, and he eventually ceased working. He became aggressive and had relationship problems, leading to his partner and children leaving him in 2017.

17. In October 2017, at the age of 32, the applicant was admitted to Royal Brisbane Hospital with an acute psychosis considered likely secondary to substance misuse. This was his first presentation to mental health services, and he required involuntary treatment under the Mental Health Act 2007 (NSW). He was treated with anti-psychotic and mood-stabilising medication. He did not like the medication, ceasing it after two months, and had little mental health follow up. The material indicated he had suicidal thinking around the time of his admission, had attempted suicide in the past, and had been put on suicide watch in custody. The applicant’s father became ill and died around the time of the 2018 offences.

18. In early 2018, the applicant had been living with his partner at a cheap motel. He had used drugs to block out the negative emotion and to cope.

19. Dr Chew’s report was based on a psychiatric assessment conducted via Audio Visual Link with the applicant at Clarence Correctional Centre on 17 June 2021. Dr Chew had previously assessed the applicant on 11 and 17 November 2020 for previous reports. Included within the report for this matter was the following:

“He said that he could not recall the offending behaviour. He said that at the time of the offending behaviour he had been using significant quantities of methamphetamine, around 3.5g per week. This affected his thinking and emotions and behaviour making him more erratic and impulsive. He also said that methamphetamine increased his sexual arousal significantly. He also admitted that he may have been drinking alcohol around the time as well. He was unable to quantify how much.”

23. Dr Chew diagnosed the applicant with “Previous Drug Induced Psychosis” (severe – necessitating hospitalisation) and “Polysubstance Use disorder”, in particular methamphetamine and alcohol. He did not diagnose the applicant with a paraphilia. As Dr Elliott had done, Dr Chew recommended abstinence from drugs as well as residential rehabilitation and psychological therapy.

24. Dr Chew opined:

“I think that his mental conditions may have contributed directly to the commission of the offending behaviour. His substance use disorder may have then contributed to the offending behaviour by disinhibiting him and impairing his judgment. Further it appears that the methamphetamine may have caused a hypersexuality driving his behaviour.”

25. Dr Chew stated the applicant had some insight into his mental health issues and his substance use problems.

26. In the applicant’s letter of apology to the District Court, he said he was “fully responsible for abusing and causing so much anguish to this innocent child”.

27. In the Crown’s written submissions on sentence, the following was included in relation to Count 1:

“In the present case, while the value of property stolen was relatively low, the items stolen had a sexual connotation. The [applicant] was in the home undetected for sufficient time to choose the items he stole from different rooms in the house, and apparently eschewed the opportunity to steal items of financial value. The sexual nature of the offending is clearly seen in the context of Count 2.”

28. In relation to Count 2, the Crown included the following in written submissions:

“It is open to the court to conclude that the [applicant] broke into the house with the intention of committing a sexual offence. That conclusion would follow from the facts:

The offence followed Count 1, which involved the stealing of items of intimate clothing and photographs of the victim in a bikini;

There is no evidence of the [applicant] stealing items of a non-intimate nature;

The [applicant] admits that the use of methylamphetamine heightened his level of sexual arousal at the time of the offending;

The [applicant’s] only other criminal offending is also of a sexual nature committed whilst under the influence of methylamphetamine.”

(Footnote omitted.)

29. The issue of whether the applicant broke into the house with the intention of committing a sexual offence was the subject of oral submissions during the sentencing proceedings. The following exchange was recorded:

“BEHAN [for the applicant]: The Crown said there that it's open to the Court to conclude that the [applicant] broke into the house with the intention of committing a sexual offence. In my submission, that's not a finding that your Honour would make beyond a reasonable doubt.

HIS HONOUR: Why not?

BEHAN: Well, because obviously there were two separate offences that occurred when the [applicant] was inside the house. One was the stealing of the quite intimate property, and the second was the sexual assault. Obviously the offence of stealing took place first and must have, as the Crown points out, involve some time spent in the house gathering the belongings in the bag. And it was only after that that the [applicant] then committed the sexual assault offence. In my submission, there's a reasonable possibility that the intention was to steal items and that the sexual assault offence was then, for want of a better way to put it, somewhat opportunistic rather than the specific intention with which he had at the time of breaking into the house.”

30. The Crown responded:

“HANNA [for the Crown]: Your Honour, in relation to that last point, the question of whether someone has an intention at the time they break into a house is obviously a matter of inference. In a common situation where the offence committed inside is stealing, the conclusion is readily drawn that the intention of the person who breaks in was to steal property. In this case, the offences that were committed when the [applicant] was inside the house were either of a sexual nature or had a sexual connotation.

There was nothing stolen, for example, that was apparently to be sold to feed his drug habit or anything like that. Everything that was done was of a sexual nature and focused on the particular victim. It was her intimate clothing that was taken. It's not entirely correct to say that that was all stolen before the sexual assault. It was rather collected before but taken away afterwards. He collected the things in the bag before he woke the victim, apparently inadvertently, and then continued or picked them up and took them out once he was disturbed.”

31. His Honour then stated:

“Mr Crown, the facts reveal that the victim was asleep on a lounge, the lights were on in the house, the mother was there, and both of those people, the 14 year old girl and her mother, were both visible through the doors. He goes into the house, collects intimate belongings relating to the 14 year old girl, and sexually assaults her. I have got no doubt why it was that he entered that house, Mr Crown.”

The sentencing judge’s findings

32. In his Honour’s reasons, the sentencing judge said:

“Contrary to the submission made by the [applicant], I conclude that the true purpose behind the entry into the premises was to commit the sexual assault on the sleeping child that he observed through the door while the houselights were on. I am satisfied, having regard to the items taken, that the [applicant] made a conscious decision to sexually assault the child rather than her adult mother. That conclusion is reinforced by the fact that not only were underpants belonging to the child as well as the mother taken but other items belonging to the child, including photographs of her, were collected as well.”

33. It is important to set out the impugned portion of the sentencing judge’s remarks in context. His Honour stated (with paragraph numbers added for the purposes of this judgment):

“[1] The objective seriousness of each offence is, of course, to be assessed separately. In the abstract, count 1 might be regarded as being below the midrange of objective seriousness. Entry was through a rear sliding door which was closed and unlocked, and therefore did not require any force to open it. The property that was taken could not be regarded as being of great monetary value. The evidence before me does not allow me to conclude that this was an offence committed with any degree of deliberation. However, the true colour to be given to count 1 is to be derived from count 2 in conjunction with the nature of the items taken in count 1.

[2] Contrary to the submission made by the [applicant], I conclude that the true purpose behind the entry into the premises was to commit the sexual assault on the sleeping child that he observed through the door while the houselights were on. I am satisfied, having regard to the items taken, that the [applicant] made a conscious decision to sexually assault the child rather than her adult mother. That conclusion is reinforced by the fact that not only were underpants belonging to the child as well as the mother taken but other items belonging to the child, including photographs of her, were collected as well.

[3] The victim was assaulted in her home. She was vulnerable due to the fact that she was asleep initially, although this vulnerability is not that apparently contemplated by s 21A, which is concerned with the vulnerability due to membership of a certain class. However, it is a fact relevant to objective seriousness that she was vulnerable because she was asleep initially. It is completely unsurprising that she awoke in terror. The deliberation with which the [applicant] committed this offence is manifest by his removal of items of the victim’s clothing. The facts speak of the insertion of fingers in the plural and that the penetration inflicted pain.

[4] It is unquestionably the case that this kind of sexual intercourse without consent is inherently a violent one. The absence of the infliction of additional violence, that is additional to the violation she was subjected to in the act of sexual intercourse, is not a matter that reduces the objective seriousness of the offending: see Fisher v [R; R v Fisher] [2021] NSWCCA 91 at para 84. The event was clearly not a momentary or fleeting penetration, although the true significance of the duration of such an event is stated in [R] v Daley [2010] NSWCCA 223 at para 48, where his Honour Price J, with the agreement of the other members of the Court said, inter alia, ‘I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence.’

[5] Any suggestion that the digital penetration of the child’s vagina by the use of the [applicant’s] fingers in some way lessens the seriousness of his offence would imply that there is some hierarchy of penetrations in which fingers fall below other forms of penetration. Of course, such an analysis would be contrary to establish [sic] sentencing principle: see Fisher at para 88.

[6] I have not heard from the [applicant]. I am therefore entitled to draw conclusions from the facts provided I am satisfied of them beyond a reasonable doubt.

[7] In my view, the only explanation for the [applicant] smiling at the victim is that it reflected self-satisfaction at, one, having apparently succeeded in persuading the victim to silence by a shooshing action and, two, having satisfied himself by committing such a brazen act of sexual violation. I have no difficulty concluding that count 2 falls within the midrange of objective seriousness. [...]”

(Emphasis added.)

34. The sentencing judge also dealt with the applicant’s background including his past drug use in some detail. In particular, as stated above, his Honour noted that the applicant had desisted from using methamphetamine for a six-month period following his hospital admission. His Honour also noted that he had chosen not to continue with his medication prescribed to him on discharge in 2017 and stated: “He must be taken to have appreciated the consequences for at least his mental health if he returned to significant methamphetamine use.”

35. His Honour found that the applicant was “fully culpable for his conduct”, and a “perfectly appropriate vehicle for general deterrence.” His Honour also stated:

“What is disturbing is that what seems to have been a long term ice habit, that on one previous occasion only seems to have resulted in a psychosis severe enough to warrant hospitalisation (where, however, it does seem he was considered at high risk of harm to others), should suddenly manifest itself by the commission of these offences. His apparent unwillingness to speak about what are his true motivations for two separate sets of sexually motivated offences committed about two years apart is, in my view, particularly concerning.”

36. The sentencing judge found special circumstances, noting this would assist in achieving long term abstinence from all substances, as it would provide the applicant with monitoring and support. His Honour stated that in his view, the applicant will be a potential danger to other women if he does not remain abstinent.

Ground 1: The sentencing judge’s factual finding that the applicant’s true purpose in entering the premises was to commit sexual assault on the sleeping child was not open to his Honour

The applicant’s submissions

37. The applicant submits that the sentencing judge took into account the fact the applicant formed an intention to commit sexual assault before entering the premises, but that such a finding was not open on the evidence as his Honour was only permitted to do so if satisfied of such a fact beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (“Olbrich”). It is contended that such an error had the capacity to affect the sentence imposed: Kentwell v The Queen (“Kentwell”) (2014) 252 CLR 601; [2014] HCA 37.

38. The applicant points to the Crown’s submission on sentence that it was open to conclude that the applicant broke into the house with the intention of committing “a sexual offence” relying on the following matters:

1. Count 2 followed Count 1, which involved the stealing of items of intimate clothing and photographs of the victim in a bikini;

2. There was no additional evidence of the applicant stealing items of a non-intimate nature;

3. The applicant admitted that the use of methamphetamine heightened his level of sexual arousal at the time of the offending; and

4. The applicant’s only other criminal offending is also of a sexual nature committed whilst under the influence of methamphetamine.

39. The applicant submits that the sentencing judge did not refer to s 61J(2)(h) of the Crimes Act, however, contends that it is clear the sentencing judge took into account the fact that the applicant formed an intention to commit sexual assault before entering the premises in a way that was adverse to the applicant.

40. As to the impact of methamphetamine on the applicant, the sentencing judge said: “It is simply unknowable as a matter of fact whether the [applicant] was drug affected at the time of the commission of the offence or not.” This was presumably due to the passage of time between the applicant’s offending and arrest.

41. As the applicant led no oral evidence concerning his offending and no evidence relating to his reason for entering the house, the sentencing judge was left to draw inferences from the Statement of Agreed Facts. Those included:

1. At approximately 11:00pm, the victim had fallen asleep on a lounge in the lounge room and her mother was asleep on a separate lounge in the same room;

2. At an indeterminate time (between 12:00am [1] and 2:00am) the applicant entered the house through the rear glass door. As per the applicant’s plea to Count 1, he knew persons were home. The sentencing judge inferred that the applicant saw the victim (and presumably her mother) before entering the house;

3. After entering the house, the applicant entered various rooms within the house. From the victim’s bedroom he stole intimate items. This occurred over an indeterminate period of time;

4. At some point before 2:00am, the applicant began to commit the sexual offence against the victim in the lounge room. The victim awoke and eventually reacted, which prompted the applicant to leave via the rear door, taking items with him.

   1. The indictment to which the applicant pleaded guilty specifies the offences as having taken place on 29 June 2018 – thus the time frame must be between 12:00am and 2:00am on that day.

42. The applicant submits that the above circumstances “gave rise to numerous possible inferences about when the applicant formed an intention to sexually assault the victim” (emphasis in original). They included:

1. The applicant formed the intention to commit sexual assault before entering the property;

2. The applicant formed the intention to commit sexual assault moments before he carried out the sexual assault in the loungeroom;

3. The applicant formed an intention to commit the sexual assault at some point in between the two points referred to above. For example, it could have been when he was in the victim’s room handling her property or just after.

43. The applicant submits that for the sentencing judge to draw the first of these inferences beyond reasonable doubt, it was necessary that his Honour regard the other alternative inferences as not reasonably possible. The applicant submits there was no sound basis to do so.

44. During oral submissions, counsel for the applicant further submitted that “it is just simply unknowable” when the intention arose.

45. The applicant further submits that despite the terms of s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge did not specify the non-parole periods for the indicative sentences. Section 54B(4) reads as follows:

54B   Consideration of standard non-parole period in sentencing

[…]

(4)  When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence.

46. Although this is not raised as a ground of appeal, it is submitted by the applicant that this should be addressed if the Court re-sentences the applicant.

The respondent’s submissions

47. As a preliminary point, the respondent submits that despite division of opinion about the correct legal test to apply when addressing grounds of appeal based upon alleged errors of fact made by a sentencing judge (see Yin v R [2019] NSWCCA 217 at [26]-[28] (Bathurst CJ)), the correct test is the traditional constrained approach derived from the following passage in R v O’Donoghue (1988) 34 A Crim R 397 at 401 (Hunt J):

“Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge.”

48. As to the ground of appeal, the respondent noted:

“The sentencing Judge’s finding as to motive was based upon the inference that the applicant had seen the victim through the window before breaking into her home; that the only items taken had a sexual connotation and related primarily to the victim; and that he assaulted the victim after he had collected items with a sexual connotation concerning her.”

49. It is contended by the respondent that it was open to the sentencing judge to consider that the alternative hypotheses identified by the applicant were not reasonable inferences to be drawn from the evidence, and to find that the only rational hypothesis considering the evidence as a whole was that the applicant entered the house with the intention of sexually assaulting the victim.

50. The respondent further submits that if applying the more expansive legal test of mistake of fact,[2] and if an error of fact did occur, it is doubtful that it had the capacity to make any material difference to the sentence imposed.

    2. Clarke v R [2015] NSWCCA 232 at [32]-[36]; (2015) 254 A Crim R 150; Hordern v R [2019] NSWCCA 138 at [6]-[20].

Consideration of Ground 1

51. When one looks closely at the remarks on sentence, it appears that some slight lack of clarity arose in the course of argument on appeal about the impugned finding.

52. Despite the way the issue was dealt with in submissions before the sentencing judge, when one carefully examines the remarks, the finding about the motive for entry was made more clearly in the context of considering the objective seriousness of Count 1. The sentencing judge as set out at [33(1)] above, stated that “in the abstract” the objective seriousness of Count 1 might be regarded as “below the midrange of objective seriousness” noting that the monetary value of the items taken was small, and the evidence did not allow him to “conclude that this was an offence committed with any degree of deliberation”. Importantly, his Honour continued: “However, the true colour to be given to count 1 is to be derived from count 2 in conjunction with the nature of the items taken in count 1” (emphasis added).

53. To approach the criminality involved in this way – that is, circumstantially – was appropriate. To do otherwise would have been to look at the evidence piecemeal rather than as a whole: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48].

54. The “entry into the premises” referred to by his Honour is an element of Count 1, not Count 2, and it appears, by reference to the structure of the remarks, despite the way it was argued, to have been dealt with in this way by his Honour.

55. As noted in argument before this Court, the aggravating factor relied upon in Count 2 was that the victim was aged under 16 years pursuant to s 61J(2)(d) of the Crimes Act and not s 61J(2)(h) of the Crimes Act (break and enter into a dwelling house with the intention of committing (relevantly) the sexual offence).

56. Thus, it appears that it was in the context of Count 1 that his Honour stated at [33(2)] above:

“Contrary to the submission made by the [applicant], I conclude that the true purpose behind the entry into the premises was to commit the sexual assault on the sleeping child that he observed through the door while the houselights were on.”

(Emphasis added.)

57. In other words, the items the subject of Count 1, were not taken for their monetary value, or simply to collect them, but rather were taken because they were items with a sexual connotation relating (almost exclusively) to the female child, who the applicant had seen before entry because the lights were on. Thus, although the sentencing judge does not state it explicitly, it is to be inferred that this aspect elevated the objective seriousness of Count 1.

58. However, even if the impugned finding was also relied upon as a matter which increased the objective seriousness of Count 2 (and of course both offences were closely related), the question for determination remains the same: was the finding which was adverse to the applicant as to the “true purpose behind the entry into the premises” being “to commit the sexual assault on the sleeping child that he observed through the door while the houselights were on” open to the sentencing judge beyond reasonable doubt: Olbrich at [27].

59. In my view, it was open to the sentencing judge, in all of the circumstances, to find that the whole of the offending (that is, both offences) were related to each other, and were part of one criminal venture. It was open to find that the applicant’s true purpose in entering the house was to commit the sexual assault on the sleeping child. The observation of the child and her mother in the lit room, the nature of the items taken, and the sustained and serious nature of the sexual assault of the child, involving the removal of her top as well as her pyjama pants and her underpants, followed by digital penetration as well as the applicant partially laying on her, when considered as a whole, are all matters leading to a conclusion which is open beyond reasonable doubt: that the applicant entered for the purpose of sexual assault. In noting that the items taken prior to the assault were all apparently for sexual gratification, it can also be observed that it would not have been possible for the applicant to have assaulted the victim first and then taken items as the victim would (as she did) likely have woken and he would need to abscond before taking anything.

60. In any event, there is no suggestion the house was targeted in order to commit any of the offending. An intention to assault the child, if not formed at the time of entry would have been formed not long after entry. In all of the circumstances, the error, if there be one, is so marginal that it would not have had the capacity to affect the exercise of the sentencing discretion: Kentwell at [42]; Newman v R [2019] NSWCCA 157 at [12] and [15].

61. Ground 1 is not made out.

Ground 2: An error was made in the written order in relation to the starting date of the sentence

62. Ground 2 raises the problem that the aggregate sentence should have been recorded as commencing on 25 December 2020 in accordance with the sentencing judge’s intention, rather than 27 December 2020.

63. The sentencing judge twice indicated in the sentencing remarks that the applicant’s aggregate sentence in the present case would commence on 25 December 2020. That was the date after the expiration of the applicant’s non-parole period for the 2020 offences.

64. The District Court order on the court file, however, mistakenly records the commencement date of the sentence as 27 December 2020. That order became the order of the Court pursuant to Pt 53 r 12 of the District Court Rules 1973 (NSW).

The applicant’s submissions

65. The applicant originally contended there was no basis to exclude the type of error identified in Ground 2 as being beyond the reach of this Court. It was submitted “it is appropriate, and indeed practical, for leave to be granted to raise this ground and for it to be dealt with by this Court even if it could theoretically be done in the District Court.”

The respondent’s submissions

66. In its written submissions, the respondent submitted this error is not an error of law or fact of the type that enlivens the jurisdiction of this Court to hear an application for leave to appeal against sentence instituted pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW), as it does not allege an error in the sentencing process, but simply an error in recording the result. Nor could it be said to be an “error of law” of the technical variety to which s 43 of the Crimes (Sentencing Procedure) Act would apply. Rather it is an error capable of correction by the District Court on its own motion or by application of a party.

67. At the hearing of the appeal, the decision of this Court in A v R [2020] NSWCCA 145 was brought to the Court’s and the applicant’s attention by the respondent. In that case, a similar problem had occurred, and it was accepted (at ([48]) by senior counsel for the applicant that there was not “an error in sentence but in the recording of the sentence and […] this Court does not have the jurisdiction to correct the error”. The Court appeared to accept that concession as correctly made.

68. During oral submissions, counsel for the respondent confirmed the Crown was prepared to assist to fix the error as soon as possible and would cooperate if the applicant approached the District Court.

Consideration of Ground 2

69. This Court has no power to order the District Court to amend an administrative error of that Court’s records under either the Criminal Appeal Act or the Crimes (Sentencing Procedure) Act. The error is an administrative error over which this Court has no jurisdiction. It would be appropriate for the parties to approach the District Court Registry to amend its records.

70. Ground 2 is rejected.

Proposed Orders

71. I propose the following orders:

1. The applicant be granted leave to appeal.

2. The appeal be dismissed.

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Endnotes

Amendments

06 July 2023 - Typographical error in coversheet

Decision last updated: 06 July 2023