McClelland v R

[2019] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	McClelland v R [2019] NSWCCA 59
Hearing dates:	13 March 2019
Date of orders:	29 March 2019
Decision date:	29 March 2019
Before:	Macfarlan JA at [1]; Fullerton J at [2]; Bellew J at [51]
Decision:	1. Leave to appeal is granted. 2. The appeal is dismissed.
Catchwords:	CRIME – Appeals – Appeal against sentence – whether the sentencing judge erred by making findings as to objective seriousness which contravened concessions by the Crown – whether the Crown’s submissions in respect of objective seriousness are properly characterised as concessions – whether the sentencing judge erred in assessing objective seriousness – whether the sentencing judge imposed an aggregate sentence which was unreasonable or plainly unjust
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Battersby v R [2018] NSWCCA 141 Carroll v The Queen [2009] HCA 13 Chong v R [2017] NSWCCA 185 DL v The Queen [2018] HCA 32 DN v R [2016] NSWCCA 252; 92 NSWLR 600 Kerr v R [2016] NSWCCA 218 Newman v R [2018] NSWCCA 208 R v Cortese [2013] NSWCCA 148 R v Speechley [2012] NSWCCA 130 Salafia v R [2015] NSWCCA 141 Simpson v R [2014] NSWCCA 23 Stojanovski v R [2013] NSWCCA 334
Category:	Principal judgment
Parties:	Samuel Luke McClelland (Applicant) The Crown (Respondent)
Representation:	Counsel: C Smith SC (Applicant) M England (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/57029
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Date of Decision: 26 May 2017 Before: Baly SC DCJ File Number(s): 2014/57029

Judgment

1. MACFARLAN JA: I agree with Fullerton J.

2. FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 12 years imprisonment with a non-parole period of 7 years imposed by Baly SC DCJ on 26 May 2017 after he was convicted after trial on 15 December 2016 of the following offences:

1. One count of sexual intercourse without consent laid contrary to s 61I of the Crimes Act 1900 (NSW) (Count 1 on the indictment);

2. Two counts of sexual intercourse without consent laid contrary to s 61J(1) of the Crimes Act (in each case aggravated by the reckless infliction of actual bodily harm in s 61J(1)(a)) (Counts 2 and 3 on the indictment);

3. Two counts of detain for advantage contrary to s 86(1) of the Crimes Act (in each count the advantage being an intention to obtain psychological satisfaction) (Counts 6 and 9 on the indictment).

3. The jury were unable to agree on two further counts of sexual intercourse without consent, also laid contrary to s 61I of the Crimes Act (Counts 7 and 8 on the indictment).

4. The following table summarises the maximum penalty applicable for each offence and, where appropriate, the applicable standard non-parole period. In respect of Counts 1, 2 and 3 the table also identifies the nature of the sexual intercourse the subject of each count and, in respect of Counts 2 and 3, the bodily harm recklessly inflicted in the course of committing those offences. The sentences indicated for each count are also set out.

Count	Section	Offence	Max Penalty and SNPP	Conduct	Jury Verdict	Indicative Sentence
1	61I	Sexual intercourse without consent	14 years, SNPP 7 years	Fellatio	Guilty	5 years, NPP 3 years
2	61J(1)	Sexual intercourse without consent & recklessly inflict ABH	20 years, SNPP 10 years	Penile-vaginal ABH: abrasion vagina	Guilty	9 years, NPP 5 years
3	61J(1)	Sexual intercourse without consent & recklessly inflict ABH	20 years, SNPP 10 years	Penile-anal ABH: lacerations anus	Guilty	11 years, NPP 6 years
4	61I	Sexual intercourse without consent	14 years, SNPP 7 years	Penile-vaginal	Not guilty	-
5	61I	Sexual intercourse without consent	14 years, SNPP 7 years	Digital penetration vagina	Not guilty	-
6	86(1)(b)	Detain for advantage	14 years	Detention in the house	Guilty	3 years
7	61I	Sexual intercourse without consent	14 years, SNPP 7 years	Fellatio	Hung jury	-
8	61I	Sexual intercourse without consent	14 years, SNPP 7 years	Penile-vaginal	Hung jury	-
9	86(1)(b)	Detain for advantage	14 years	Detention in the car	Guilty	3 years
Aggregate sentence: 12 years, NPP 7 yrs

The facts for sentencing purposes

5. The sentencing judge acknowledged that it was necessary that her findings of fact were consistent with the jury's verdicts on Counts 1, 2, 3, 6 and 9 and, further, that in making findings as to the facts and circumstances relevant to Counts 6 and 9, she was obliged to ignore the complainant's evidence of non-consensual acts of sexual intercourse that occurred contextual to that offending (Counts 7 and 8 on the indictment) as to which the jury were unable to agree.

6. Counts 1, 2 and 3 related to events which occurred in the late evening of 17 September 2012. Counts 6 and 9 related to events which occurred 18 months later in the evening of 23 February 2014.

7. The applicant and the complainant were in a sexual relationship between 2009 and 23 February 2015. By September 2012 they moved into a property owned by the applicant's mother and father. The applicant and the complainant described the relationship as an “on and off relationship”.

8. Her Honour the made the following findings referable to the evidence led at trial:

[On 17 September 2012 the offender] was away working. The victim had cooked dinner for the offender, but he did not return home to eat it. She went to bed, in a bedroom other than the main bedroom of the house, however, she did not go to sleep. When she heard the offender come in that evening, she went to the main bedroom and asked him why he had not come home for dinner. He did not give her an answer. She then went back to the bedroom where she was sleeping. About ten minutes later the offender came to her. He turned the lights on and said, “How dare you tell me what to do”. At that stage, she was in bed. The offender then came over to her and sat on her. The victim said, in her evidence, that the offender then got “physical”. The offender said that he did not have to explain to her where he was, and that he was going to teach her a lesson for not giving him sex when he wanted it. At that stage, the victim began to cry, and she began to hyperventilate because the offender had his hand over her mouth.

She went on in her evidence to describe that her pyjamas came off, but she was not sure how that happened. The pair struggled on the bed and then, somehow, the offender got the victim onto a futon style chair that was in the bedroom. At first, she was on the chair, and then the offender managed to get her off and sat on the chair himself. At that stage, he grabbed her head and forced his penis into her mouth. That is Count 1.

He then forced his penis into the victim’s vagina. That is Count 2. He then forced his penis into the victim’s anus. That is Count 3. [The victim], in her evidence, said she was screaming because of the pain. The offender told her that there was no point screaming, because no one would hear her. She then went on to describe how the offender took his penis out of her anus and put it into her vagina, and then into her mouth, and back into her vagina.

When asked to describe how she felt when the offender had his penis in her anus she said, “It was the worst pain I’ve ever felt, and I couldn’t even just be numb to the pain, it was hurting so much. I asked him to stop because of the pain”… The victim also said she was trying to push the offender off. She said she was putting her hand down to try to stop him from doing what he was doing.

The victim gave evidence that the offender said to her that if she was to have sex with him he would not put his penis back into her anus. Despite this assurance, the offender did put his penis back into her anus, and eventually the offender also put his penis into her mouth and ejaculated. The victim in her evidence said that the offender made her take his ejaculate in her mouth. After this occurred, she cleaned herself up. The offender told her that she was to go to bed with him, which she did. When the offender had fallen asleep, the victim snuck out of the house and drove to a neighbour’s house.

That neighbour was a person Sharon Larson, who gave evidence in the trial. The victim told Ms Larson that she had been raped, and that she had been anally raped. She arrived at Ms Larson’s home at about midnight. Ms Larson took her in for the night, and in the morning she arranged for the victim to be taken to the hospital. Ms Larson said that [the victim] was hysterical when she arrived. She could not speak, and was crying uncontrollably.

At the hospital [the victim] was examined by a Dr McGowan. She noted that [the victim] had significant vaginal and anal pain. There were abrasions to the victim’s vagina. There were three lacerations to the victim’s anus. The doctor opined that there would have been considerable force in order to cause the three lacerations to the anus. She also said that a lot of pain would have been experienced by the victim.

Shortly before 23 February 2014, the victim was not living with the offender, but she would still see him. Prior to 23 February, the two had gone motor bike riding together, and the victim had also borrowed a swag from the offender. On 23 February, she went to ‘Kintyre’ to return the swag and to see some video footage that the offender had taken of the motor-biking excursion.

The Crown charged the offender with four offences arising out of the events that occurred at ‘Kintyre’ that day, including two offences of sexual intercourse without consent. As previously noted, the jury could not agree on a verdict in relation to those offences. That was where the issue was whether the Crown could prove a lack of consent, and whether the Crown could prove that the accused knew the complainant was not consenting.

Without taking those facts into account, the following occurred at the premises. There was a conversation, during which the offender asked the victim whether her “pussy” was sore and swollen because she had been having sex with other men, according to the offender. The offender then told the victim to show him her pussy, which she did. At that stage, the victim noticed that the offender was syncing her phone, and she went to retrieve her phone. The offender then went to where she was and blocked her from leaving the room. He stood in between two doors and blocked her from exiting through the doors. She told him to let her go, he replied, “No, you are staying”. The victim said he demanded to see her phone, and became angry. It was then that the offender dragged the victim into the bedroom and forced her to have penile sexual intercourse and perform fellatio on him.

The offender, when he was interviewed hours afterwards, said that sexual intercourse had been with consent. One of the things that the complainant said, in relation to this event, is that, at the offender’s request, she had dressed in a pink corset, and that she “faked” her consent to penile intercourse, because the offender threatened that he would anally rape her if she did not submit to intercourse. She said that he threatened to tape her hands and mouth with duct tape, which she knocked out of his hands.

It was also the fact that the offender filmed an act of fellatio at this time. Plainly, to my mind, the jury may have had difficulty finding that the accused knew, or was reckless as to whether the complainant consented. That may well have accounted for the jury’s inability to reach verdicts on Counts 7 and 8.Without taking those acts into account, I find that the other acts alleged by the victim at this time did occur, namely, that there were threats concerning anal intercourse, and the use of duct tape, as well as the fact that the offender dragged her into the room. These are all relevant to the nature of the detention at that time.

After intercourse had taken place, the two went outside. The offender took the victim’s car keys out of her hand and put them in the ignition of her car. He locked the car door. They went back inside. The victim said that she was not feeling well. She took her handbag, where there was a spare set of car keys. She unlocked her car and drove off. The offender followed her in his car. The victim said that she was terrified that he would catch up to her. She drove at a speed of up to 160 kilometres per hour. She said that the offender was gaining on her, and so she pulled into a house where there were people she did not know, and she cried for help.

The occupants of the house were awoken, and described hearing screaming. A Mr Eastick said he saw a female holding onto the verandah post “for dear life”. At that time, a male was trying to pull the female off the post.

The second detention, that is, the last count on the indictment, occurred when the offender forced the victim into his car. The evidence was that, although he forced her into a car, she got out quite quickly after entering the car. Police and ambulance were called, and the victim was described by police and ambulance officers as being in shock and extremely upset.

9. The sentencing judge made several favourable findings as to the applicant's subjective circumstances. They may be summarised as follows:

1. He was entitled to a measure of leniency because of his prior good character;

2. His prospects of rehabilitation were "reasonably good" (despite his failure to acknowledge responsibility for the offending);

3. He would "probably not reoffend”;

4. None of the offences were planned;

5. His time in custody would be more onerous due to the separation from his partner and his young child who had complex medical needs.

10. Her Honour was satisfied that special circumstances arose from the fact that the aggregate sentence would be the applicant’s first custodial sentence and that he would need a longer period on parole to reintegrate into the community.

Findings as to objective seriousness

11. In order to indicate a sentence for each of the offences the subject of Counts 1, 2, 3, 6 and 9, and to make an assessment of the totality of the applicant’s criminality for the purposes of imposing an aggregate sentence (the exercise mandated by s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)), her Honour was obliged to make an assessment of the objective seriousness of each offence. That assessment was necessarily informed by the evidence at trial.

12. Subject only to the medical evidence which was relevant to proving the nature of the bodily harm recklessly inflicted by the applicant to the complainant’s vagina and anus in the commission of the sexual assaults the subject of Counts 2 and 3 on the indictment, her Honour’s assessment of the objective seriousness of each of the five counts was based exclusively on her assessment of the complainant’s evidence. That assessment was also necessarily informed by her direction to the jury that if verdicts of guilty were to be returned on any of the counts upon which the jury were deliberating, they needed to be satisfied that the complainant was both an honest and accurate witness and that in making that assessment they should examine her evidence very carefully to assess whether they were satisfied that they could act upon it to the very high standard required in a criminal trial.

13. The applicant did not give evidence. An ERISP was tendered in the Crown case in which he denied any acts of non-consensual intercourse. He also denied detaining the complainant either in the car or in the house (the conduct the subject of Counts 6 and 9).

14. Her Honour’s findings as to objective seriousness are conveniently summarised in a further table extracted below. The table also includes, where relevant, the submissions advanced by the parties at the sentence hearing and, to the extent that there is any different position taken by the parties on the appeal, the extent of that difference.

Count	Applicant’s assessment of range in court below	Crown’s assessment of range in court below	Sentencing judgement’s assessment of range	Applicant’s assessment of range on appeal
1	No submission made	Counts 1 – 3 fall just below the mid-range (MRI 1 p 8)	Mid-range	Contends below mid-range
2			Squarely into the mid-range	Contends below mid-range
3			Well into the mid-range, and towards the upper end of mid-range	Concedes offence was mid-range
6	No submissions made save for – “so far as the two charges of detain are concerned it is respectfully submitted that the level of violence is at the lowest end of the spectrum”	Well below the mid-range of objective seriousness but above the lower end for s 86(1)(b) offences	“I accept the Crown Prosecutor’s assessment of each of them as falling below the mid-range… But, in my view, they do not fall appreciably below the mid-range…”	Contends well below mid-range
9

The grounds of appeal

15. The applicant relies on three grounds of appeal:

1. The sentencing judge erred by making findings as to the objective seriousness of the offences which contravened concessions made by the Crown and of which the applicant was not on notice.

2. The sentencing judge erred in assessing the objective seriousness of Count 6 by:

1. taking into account an irrelevant consideration, namely, why the jury were unable to reach unanimous verdicts on Counts 7 and 8;

2. traversing facts relevant only to Counts 7 and 8; and,

3. otherwise mistaking the facts.

3. The sentencing judge imposed an aggregate sentence upon the applicant that is unreasonable or plainly unjust.

The first ground of appeal

16. An assessment of objective seriousness is not the sole determinant of an indicative sentence or an appropriate aggregate sentence. The orthodox approach to the exercise of the ultimate sentencing discretion is to ensure that all factors bearing on the imposition of a just and appropriate aggregate sentence are synthesised. That said, an assessment of the objective seriousness of the applicant's offending for each of the five offences was essential to the sentencing exercise in which the sentencing judge was engaged.

17. An assessment of objective seriousness necessarily involves the exercise of an evaluative judgment by the sentencing judge. For that reason, usually, although not invariably, the question of the objective seriousness of the offending the subject of a sentencing exercise attracts competing submissions at the sentencing hearing, and necessarily so where the assessment is in contest. On occasions, the Crown concedes that particular offending should or ought be regarded by the sentencing court as reflecting a particular degree of objective seriousness or moral culpability. In those circumstances, a departure from that concession by the sentencing judge, without the offender being given the opportunity of addressing the issue by submissions or evidence, may be productive of a denial of procedural fairness resulting in a miscarriage of justice.

18. The question raised by this appeal is whether the Crown conceded that the objective seriousness of the offending the subject of Counts 1, 2 and 3 was below mid-range as the applicant contends, citing DL v The Queen [2018] HCA 32 as authority for the proposition that the sentencing judge was bound by that concession, or whether the Crown simply advanced a submission in the sentencing hearing as to the approach her Honour might take in her assessment of the objective seriousness of those offences.

19. In DL, the Crown had made clear its position before the Court of Criminal Appeal on re-sentence that no issue was taken with the assessment of criminality made by the primary judge. At [39] the High Court acknowledged the correctness of the position of Leeming JA that the Court of Criminal Appeal was not bound by the Crown’s concession (see Carroll v The Queen [2009] HCA 13 at [24]). However, the Court went on to say:

Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. It was an error to hold that the appellant had had ample opportunity to be heard on all aspects of his appeal.

20. In addition to relying on DL, the applicant referred the Court to Chong v R [2017] NSWCCA 185 where, at [5], Basten JA said (Harrison J agreeing, Schmidt J dissenting):

Procedural unfairness involves the denial to an offender of an opportunity to deal with material adverse to his or her interests. Justifiable claims of unfairness on sentencing where the offender has not given evidence can arise only in limited circumstances. For example, it will usually not be possible for an offender who has not given evidence of remorse to complain that the sentencing judge did not accept indirect evidence, such as statements to a psychologist. However, claims of unfairness can arise in circumstances where the judge has made a finding of fact adverse to the offender, which was not sought by the prosecutor and which therefore might reasonably not have been anticipated by the offender. Similarly, where the judge, having led the offender to believe (the offender reasonably relying upon the belief) that no such finding would be made, then makes an adverse finding, it may be held that the sentencing was procedurally unfair.

This passage was subsequently approved in Newman v R [2018] NSWCCA 208 at [26].

21. Having regard to the extracts from DL and Chong above, I accept that were the Crown Prosecutor to have conceded, either expressly or by necessary implication, that the offending the subject of each of Counts 1, 2 and 3 was no higher than low range offending, that would have operated to constrain the exercise of the judge’s sentencing discretion such that a finding of objective seriousness contrary to the Crown’s concession, without notice to the applicant that she was minded to take a different approach, would have been productive of a procedural unfairness. However, for the following reasons I am not satisfied that is what occurred.

22. Her Honour received sentencing submissions from the Crown and the applicant in advance of the sentencing hearing. The applicant's senior counsel (also the applicant’s counsel at trial, although not his counsel on the appeal) furnished his submissions on 25 May 2017, the day before the sentence hearing. Despite the fact that the three offences the subject of Counts 1, 2 and 3 attracted a standard non-parole period between 7 and 10 years, save as to submit that “each of the convictions related to a serious crime and the relevant standard non-parole periods reflect the seriousness of each offence", the applicant’s counsel made no submission at all in respect of the objective seriousness of the applicant’s offending. In contrast, he submitted that in respect of Counts 6 and 9, as to which no standard non-parole attached, the “level of violence involved is at the lowest end of the spectrum”.

23. The Crown Prosecutor furnished his submissions on the day listed for the sentence hearing. He referred the sentencing judge to the graphic detail in which the complainant described the applicant’s sexual abuse of her over the course of conduct comprehended by Counts 1, 2 and 3 (accompanied by relevant transcript references). He also referred her Honour to those features of the gravity of the offending against both ss 61l and 61J identified in Simpson v R [2014] NSWCCA 23 at [30] and DN v R [2016] NSWCCA 252; 92 NSWLR 600 at [107]) relevant to an assessment of the objective seriousness of particular offending, including the mechanism of forced sexual intercourse (in this case both oral, penile and anal); the degree of violence used; the physical harm inflicted; and the circumstances of humiliation the complainant experienced. He also submitted that, together with the medical evidence of anal and vaginal injury and the complainant's evidence that she felt excruciating pain and was screaming throughout the course of the anal intercourse, she was also humiliated at being forced to have penile/vaginal and penile/anal intercourse and then be forced to perform fellatio. Finally, the Crown advanced the somewhat surprising submission that the offending the subject of each of Counts 1, 2 and 3 was “just below the mid-range of objective seriousness”. With respect to Counts 6 and 9, the Crown submitted that “the offending was well below the mid-range of objective seriousness but above the lower end of the scale”.

24. At the sentencing hearing her Honour acknowledged receipt of the written submissions from both parties. She enquired of Senior Counsel for the applicant as to whether he wished to address his written submissions orally. He declined the invitation. She then enquired of the Crown Prosecutor as to whether he wished to address his written submissions; an invitation which he also declined. In declining the invitation to advance oral submissions Senior Counsel for the applicant ultimately advanced no submission at all on the question of objective seriousness of Counts 1, 2 and 3.

25. The applicant adduced no evidence on the appeal as to why Senior Counsel took that approach. Furthermore, there is nothing in what transpired in the sentencing hearing to suggest that counsel was of the opinion that the Crown had made a concession as to objective seriousness which would bind the sentencing judge thereby relieving him of the obligation of addressing the issue on the applicant’s behalf; the interpretation of events advanced by Senior Counsel who appeared for the applicant on the appeal. As I see it, an available inference, although not the only inference, is that Senior Counsel considered it at least a possibility that the sentencing judge may accept the Crown's submission that the objective seriousness for each of Counts 1, 2 and 3 was “just below the mid-range”, and took the course of making no submissions at all on the question in case her Honour was persuaded to come to a different view.

26. Whether that was an informed decision by Senior Counsel is not to the point. The question on this appeal is whether a submission by the Crown in sentence proceedings (either orally or in writing) that particular offending positioned referable to a notional point on a spectrum of offending from low range to high range (or by some other formulation of words) obliges the sentencing judge to regard that submission as a concession by the Crown that no other finding is open.

27. In Stojanovski v R [2013] NSWCCA 334 the same issue was raised as that raised on this appeal. At [30]-[34] Simpson J held that a sentencing judge is not bound to accept the Crown's submitted assessment of the objective gravity of an offence, the matter being entirely within the province of the sentencing judge. As Walton J observed at [52] in Battersby v R [2018] NSWCCA 141 (citing Salafia v R [2015] NSWCCA 141 at [76]), because the assessment of objective seriousness is a discretionary process, the positioning of objective seriousness on a spectrum does not readily admit of precision since it calls for a value judgment as to which minds might reasonably differ. His Honour went on to observe that fine gradations in what he described as “the factors underpinning the assessment of objective seriousness” (in that case between a finding that the offender was “well above the lowest rung of a drug trafficking hierarchy” and his role being “a little higher than the lowest rung of the hierarchy”) could never be a basis for a finding of error in a sentencing exercise.

28. In this case the Crown submitted that “the shades of differences” between her Honour’s assessment of the objective seriousness of each of Counts 1, 2 and 3 relative to the mid-range, while both significant and verifiable differences given that Count 3 was self-evidently the more serious of the three offences, nonetheless had mid-range offending as a reference point, and that each was a finding open to her.

29. Where the language used by a Crown Prosecutor is that which is customarily used when advancing a submission for the consideration of a sentencing court (as it was in this case), and in circumstances where, as here, there were no oral submissions advanced by either party which might have elevated the Crown’s submission to a concession that the objective seriousness of Counts 1, 2 and 3 was in the low range, it is simply not open to read into that language any concession by the Crown that no other finding was open. I note that elsewhere in the Crown’s written submissions it was conceded that there was a low level of violence deployed by the applicant other than by the act of intercourse itself.

30. I would reject the first ground of appeal.

The second ground of appeal

31. The discrete passage in the sentencing remarks which is said to reflect error is included at [8] above but extracted here for clarity:

Without taking those facts into account, the following occurred at the premises. There was a conversation, during which the offender as ked the victim whether her “pussy” was sore and swollen because she had been having sex with other men, according to the offender. The offender then told the victim to show him her pussy, which she did. At that stage, the victim noticed that the offender was syncing her phone, and she went to retrieve her phone. The offender then went to where she was and blocked her from leaving the room. He stood in between two doors and blocked her from exiting through the doors. She told him to let her go, he replied, “No, you are staying”. The victim said he demanded to see her phone, and became angry. It was then that the offender dragged the victim into the bedroom and forced her to have penile sexual intercourse and perform fellatio on him.

The offender, when he was interviewed hours afterwards, said that sexual intercourse had been with consent. One of the things that the complainant said, in relation to this event, is that, at the offender’s request, she had dressed in a pink corset, and that she “faked” her consent to penile intercourse, because the offender threatened that he would anally rape her if she did not submit to intercourse. She said that he threatened to tape her hands and mouth with duct tape, which she knocked out of his hands.

It was also the fact that the offender filmed an act of fellatio at this time. Plainly, to my mind, the jury may have had difficulty finding that the accused knew, or was reckless as to whether the complainant consented. That may well have accounted for the jury’s inability to reach verdicts on Counts 7 and 8. Without taking those acts into account, I find that the other acts alleged by the victim at this time did occur, namely, that there were threats concerning anal intercourse, and the use of duct tape, as well as the fact that the offender dragged her into the room. These are all relevant to the nature of the detention at that time. (Emphasis added.)

32. The applicant submitted that to the extent that her Honour was entitled, in indicating a sentence for Count 6, to make factual findings additional to the facts that were comprehended by the jury verdict on that Count, she was not entitled to undertake any analysis of the reason the jury were unable to reach a unanimous verdicts on Counts 7 and 8 and that, in any event, the reason for their lack of unanimity was indeterminable. In short, the applicant submitted that the facts relied upon by the Crown at trial for proof of Counts 7 and 8 were wholly irrelevant in indicating a sentence for Count 6.

33. The breadth of that proposition is contrary to sentencing principle. In assessing the seriousness of a breach of s 86(1) of the Crimes Act her Honour was entitled to take into consideration the circumstances in which the complainant was detained, the purpose for which she was detained, and the period of detention (see R v Speechley [2012] NSWCCA 130).

34. In this case, the jury's verdict on Count 6 necessarily encompassed a finding that the applicant detained the complainant in the bedroom for psychological gratification (the element of advantage particularised by the Crown at trial) and that he detained her by preventing her from leaving the bedroom by the use of force as further particulars of the way in which that offence was committed. It was also clear from the way in which the trial was conducted that it was during the course of the complainant’s detention in the bedroom that the applicant committed the alleged offences the subject of Counts 7 and 8.

35. Her Honour was acutely aware she was not permitted to take into account the penile and oral acts of allegedly non-consensual sexual intercourse that occurred during her detention in the bedroom since those acts were not comprehended by the jury's verdict on Count 6. It is clear from the extract above that it was those acts which her Honour disregarded. The applicant does not contend otherwise. What her Honour was concerned to identify were the other acts (that is those acts that did not comprise the forced penile and oral acts of intercourse) that were prevailing whilst the complainant was subject to the applicant’s unlawful detaining of her in the bedroom as relevant to what her Honour described as “the nature of the detention at that time”. In my view, that was a permissible and appropriate enquiry to undertake. It follows that the applicant’s contention that her Honour was not permitted to take into account what occurred in the bedroom after the complainant was prevented from leaving the bedroom by blocking her exit must be rejected. As part of the argument advanced in support of the second ground of appeal, the applicant also submitted that in the course of her Honour making such further factual findings that she considered properly informed the circumstances in which the complainant was detained for advantage in the bedroom, she traversed matters which had been left to the jury as relevant solely to the question of consent and the applicant's knowledge or recklessness as to the lack of consent; the factual contest inherent in the applicants pleas of not guilty to Counts 7 and 8.

36. As I read the sentencing remarks, her Honour refers to the jury being unable to agree upon their verdicts on Counts 7 and 8 so as to make clear that she would not traverse the fact that the jury did not return verdicts on those counts. She was not undertaking an ambit enquiry into the jury's reasoning process for an impermissible reason. To the contrary. By the deployment of very qualified language as to how the jury might have approached the evidence bearing on the issues relevant to proof of lack of consent and the applicant’s knowledge of it, she was marking out the permissible limits of her fact-finding exercise for sentencing purposes on Count 6.

37. The applicant further submitted that her Honour made a number of factual findings which were said to be erroneous:

1. that the applicant dragged the complainant into the bedroom;

2. that he threatened to tape the complainant’s hands and mouth with duct tape; and

3. that he threatened he would anally rape her if she did not submit sexual intercourse.

38. In the way in which the argument was advanced on appeal, (a) was not pressed. As to (b) and (c), they have been extracted in the applicant's written submissions as separate findings of fact from what her Honour described in her reasons for sentence as “threats concerning anal intercourse and [threats concerning] the use of duct tape”.

39. The Crown accepts that there was no evidence that in the circumstances relied upon by the Crown to prove the applicant detained the complainant with intent to obtain an advantage contrary to s 86(1) of the Crimes Act that the applicant expressly threatened to anally rape the complainant or, for that matter, that he made that express threat as part of the factual matrix comprehended by Counts 7 and 8. The Crown pointed out however that the complainant gave evidence that while the applicant was straddling her on the bed (before committing what were alleged to be non-consensual acts of intercourse) he produced silver duct tape and threatened to tape her hands and mouth. In cross-examination she gave the following evidence:

Q. He never said he was going to hurt you did he?

A. He told me that it could turn bad for me. (Emphasis added.)

Q. He never said anything of the sort to you … I put to you?

A. No he did and that’s why I had to calm down because I was otherwise I was going to get more hurt than being taped up.

40. The complainant also said:

Q. When you engaged in this sexual intercourse with him, did you at any point tell him to stop or did you say no?

A. I went along with the sex as much as I was crying I had to stay calm because I went along with it because I told myself that if I stayed calm and did what he said that I – it would be over and done with and I could leave and I also didn’t want to feel the pain from the first incident in 2012.

Q. Which incident was that …?

A. The anal sex. I didn’t want to feel that pain again, so I stayed calm and just did what he wanted me to do.

(Emphasis added.)

41. That evidence was preceded by the complainant’s evidence as to how she came to be detained in the bedroom:

Q. What happened then?

A. I started to get scared and concerned and as I was pinned in his room I had nowhere to go so I sat down on the TV unit cabinet thing, beside the TV.

Q. Where is that located …? Which room?

A. It was in the main bedroom against the wall, not the same end as the bed. I sat there getting upset as he was still demanding my phone and I wouldn’t give it to him. Then he started getting angry at me because --

…

A. His tone of voice was getting angry tone in his voice as he kept demanding my phone off me. And he told me that I shouldn’t make him angry, and I was getting very scared and upset and I was sitting still in the corner beside the TV and then he came over and grabbed my arms, here and here, and forcefully dragged me into the bed.

…

Q. What happened then?

A. He took me over to the bed and then I was laying on my bed.

Q. How did he get you to the bed?

A. Forcefully walked me to the bed and then I ended up on my back on the bed and he got on top of me, straddling me on my hips and still had hold of my arms and was holding me down. In the end he would put them down under his legs.

Q. Put what down?

A. My arms were beside me under his legs.

Q. I must put that on the record. You are indicating both your arms by your sides?

A. Yes and then from his back pocket somewhere on the bed he pulled out some silver duct tape and he – I managed to get my arms free to turn the bedside lamp on and saw the tape so I knocked it and it went flying toward the end of the bed to the floor.

Q. When you saw the duct tape in the hands of the accused, did he say anything about the duct tape?

A. He – all he said – he was just going to tape my hands and my mouth.

Q. Did you say anything in response to that?

A. I was crying and hyperventilating because I am very claustrophobic about my hands and being tied up. So I was getting really scared for myself if my hands were tied. But I managed to knock the tape away and it was on the floor and I calmed myself down so I could breathe as I was really, really upset and my nose was blocking up and so I calmed down so I could calm him down to talk to him and hoped I could get myself out of the situation …

42. The Crown submitted that in indicating a sentence for Count 6 it would be have been open to her Honour to take into account an implicit threat of anal intercourse by the applicant threatening the complainant that “things could turn bad” if she did not submit, coupled with her further evidence that she did not want to feel the pain she experienced during the forced anal intercourse she had been subjected to 18 months earlier (the subject of Count 3 on the indictment). The Crown also submitted that even if there were no evidential foundation to find that "there were threats concerning anal intercourse”, whether express or implied, that error had no material bearing on her Honour’s assessment of the objective seriousness of Count 6 in circumstances where there was evidence that the applicant produced duct tape and threatened to use it to tape the applicant's hands and mouth during the course of the complainant being detained unlawfully in the bedroom. The Crown submitted, and I accept, the existence of the duct tape and its threatened use, quite apart from the threat of forced anal intercourse, was a fact available for sentencing purposes on Count 6 as part of the factual matrix in which that offence was committed, in addition to it being part of the factual matrix in which it was alleged non-consensual acts of sexual intercourse occurred.

43. In the result, I am not satisfied that there is a material sentencing error in the sentencing judge’s approach to the assessment of the objective seriousness of Count 6 on the indictment.

44. I would reject the second ground of appeal.

The third ground of appeal

45. The principles that apply when an offender complains that a sentence is manifestly excessive are well settled, as is the approach to that question where an aggregate sentence has been imposed. In the latter case the question is not whether the indicative sentences are “unreasonable or plainly unjust” since they are not themselves amenable to appeal. The question is whether the applicant can establish that the aggregate sentence, reflecting the totality of the criminality the subject of the sentence proceeding, can be so described (see Newman and Kerr v R [2016] NSWCCA 218).

46. The applicant’s written submissions in support of this ground of appeal are cast on the basis that Counts 1 and 2 constituted offending below the mid-range of objective seriousness whilst Count 3 was an offence in the mid-range. That is, foundational to the complaint of a manifestly excessive aggregate sentence is the submission that the indicative sentences on each count overstated the objective seriousness of the offending and implicitly understated the applicant’s subjective case, leading to a manifestly excessive aggregate sentence. For the reasons already given in rejecting the first ground of appeal, I am not persuaded that her Honour's assessment of objective seriousness of Counts 1, 2 and 3 was in error or there is any error in the sentence indicated for Count 6 as contended for in the second ground of appeal.

47. In addition, and to the extent that the applicant’s written submissions suggest that because the offences occurred in the context of an intermittent intimate relationship between the applicant and the complainant the objective criminality of his overall offending is reduced, I would reject that submission (see R v Cortese [2013] NSWCCA 148 at [55]).

48. Finally, although the applicant had a number of favourable features in his subjective case, given the seriousness of the offending the subject of Count 3, I consider an indicated sentence of 11 years with a non-parole period of 6 years was open. Similarly with the sentences indicated for Counts 1 and 2. When the offending the subject of Counts 6 and 9 is also taken into consideration for totality purposes, an aggregate sentence of 12 years with a non-parole period of 7 years is neither unreasonable nor plainly unjust.

49. I would reject the third ground of appeal.

Orders

50. I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

51. BELLEW J: I agree with Fullerton J.

**********

Decision last updated: 29 March 2019