Monteiro v R
[2014] NSWCCA 277
•26 November 2014
Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Monteiro v R [2014] NSWCCA 277 Hearing dates: 10 October 2014 Decision date: 26 November 2014 Before: Gleeson JA at [1]
Schmidt J at [2]
Bellew J at [5]Decision: The appeal is dismissed.
Catchwords: APPEAL - Muldrock error - error in finding that the appellant was on bail at the time of the offending - error in assessing evidence of appellant's mental illness - necessity to exercise sentencing discretion afresh
APPEAL - sexual offending - where relationship between appellant and the victim had ended - where offending occurred in premises previously shared by the appellant and the victim - whether this was an aggravating factor
APPEAL - sentence - sexual offending - whether some other sentence was warranted in law and should have been passed - relevance of appellant's mental and physical illness - conditions of custody - seriousness of offending - no other sentence warranted - sentence not manifestly excessive - appeal dismissedLegislation Cited: Court Suppression and Non-Publication Orders Act 2010
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases Cited: Application by Simon Monteiro pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 710
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
DS v R [2012] NSWCCA 159; (2012) 221 A Crim R 235
EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Ingham v R [2011] NSWCCA 88
Kentwell v The Queen [2014] HCA 37
Louizos v R [2014] NSWCCA 242
Markarian v The Queen (2005) 228 CLR 357
Melbom v R [2013] NSWCCA 210
Monteiro v R [2011] NSWCCA 113
Montero v R [2013] NSWCCA 214
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
NM v R [2012] NSWCCA 215
Norman v R [2012] NSWCCA 230
R v BIP [2011] NSWCCA 224
R v Comert [2004] NSWCCA 125
R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
R v Engert (1995) 84 A Crim R 67
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Kier [2004] NSWCCA 106
R v L (NSWCCA unreported 17 June 1996)
R v Tuuta [2014] NSWCCA 40
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Wickham [2004] NSWCCA 193
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460Category: Principal judgment Parties: Simon Monteiro - Appellant
Regina - RespondentRepresentation: Counsel:
Ms R Burgess - Appellant
Ms V Lidyard - Respondent
Solicitors:
S O'Connor, Legal Aid NSW - Appellant
J Pheils, Solicitor for Public Prosecutions - Respondent
File Number(s): 2008/8845012 Publication restriction: Nil
Judgment
GLEESON JA: I agree with the reasons and conclusion of Bellew J that error has been established in the Court of Criminal Appeal's earlier judgment, in light of Muldrock v R [2011] HCA 39; 244 CLR 120, and on the part of the sentencing judge in respect of grounds 2 and 3, but not otherwise. In the exercise of the Court's re-sentencing discretion in accordance with Kentwell v R [2014] HCA 37, I have also concluded, like Bellew J, that no lesser sentence is warranted in law than that imposed by Norrish DCJ, notwithstanding the errors which have been established. In reaching this conclusion I have taken into account the objective seriousness of the offending and the appellant's subjective circumstances to date, and the matters discussed by Bellew J in relation to re-sentencing, including that the appellant was not on conditional liberty at the time of the offending and the psychiatric evidence. I agree with the order proposed by Bellew J.
SCHMIDT J: I agree with Bellew J that relevant error has been established. I also agree with his Honour's reasons for his conclusions.
I, too have exercised the sentencing discretion afresh, in accordance with the approach discussed in Kentwell. Like Bellew J, I have also concluded that the sentence imposed by Norrish DCJ is the appropriate sentence for the appellant and his offence and that a lesser sentence is not warranted in law, notwithstanding the error established in the Court of Criminal Appeal's judgement and the matters discussed by Bellew J in relation to ground 2 (that the appellant was on conditional liberty at the time of the offence) and ground 3 (the psychiatric evidence).
I wish to add for myself that but for what I consider to be a lenient sentence imposed by Norrish DCJ, a greater sentence may have been appropriate in this case, given the gravity of the appellant's overall offending. His sentence is a total term of 12 years and 3 months imprisonment, with a non-parole period of 7 years and 9 months. That is a lenient sentence in the circumstances Bellew J has discussed. The principal offence alone carried a maximum penalty of 20 years imprisonment and a standard non parole period of 10 years, two statutory guideposts which must be considered in this sentencing exercise, along with all other relevant factors. The end result of the sentencing exercise at first instance, was partly explained by his Honour's conclusions as to special circumstances. I have concluded that in all of the circumstances, this sentence pays proper regard to the conclusions reached on this appeal in relation to the causal connection between the applicant's mental condition and the commission of his offences, which ameliorates the role which general deterrence should play in this sentencing exercise. Given the applicant's mental condition, as well as his lack of contrition and remorse for his serious offences, however, I consider that specific deterrence must still play a role in this sentencing exercise. In the result I have come to agree that despite my reservations as to the leniency of this sentence, it is in the circumstances appropriate. Certainly no lesser sentence is warranted in law.
BELLEW J: Following a trial before Norrish DCJ and a jury in the District Court, Simon Monteiro ("the appellant") was convicted of the following offence ("the principal offence") contrary to s. 61J of the Crimes Act 1900:
(i) that on 2 January 2008, at Bellevue Hill in the State of New South Wales, he did have sexual intercourse with (JR) without her consent, knowing she was not consenting, in circumstances of aggravation, namely, that immediately before the said sexual intercourse he intentionally inflicted actual bodily harm on (JR).
The principal offence carries a maximum penalty of imprisonment for 20 years. A standard non-parole period of 10 years is prescribed.
The appellant had earlier pleaded guilty to two other offences, namely:
(i) intentionally damaging property, contrary to s. 195(1)(a) of the Crimes Act 1900 ("the damage offence"); and
(ii) stealing, contrary to s. 117 of the same Act
("the stealing offence").
On 9 April 2009 his Honour sentenced the appellant as follows:
(i) in respect of the principal offence, imprisonment for 11 years with a non-parole period of 6 years and 6 months, to commence on 9 April 2009;
(ii) in respect of the damage offence, a fixed term of imprisonment of 2 years and 8 months, to commence on 8 January 2008; and
(iii) in respect of the stealing offence, a fixed term of imprisonment of 1 year and 9 months, to commence on 8 January 2008.
The overall sentence was 12 years and 3 months imprisonment, with a non-parole period of 7 years and 9 months.
THE PROCEDURAL HISTORY
The appellant appealed to the Court of Criminal Appeal against his conviction for the principal offence, and made application for leave to appeal against the sentence which had been imposed. The Court of Criminal Appeal dismissed his appeal against conviction. Leave to appeal against sentence was granted, but that appeal was also dismissed. A Crown appeal against the asserted manifest inadequacy of the sentence imposed for the principal offence was also dismissed: Monteiro v R [2011] NSWCCA 113.
Subsequently, the appellant made application pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 ("the Review Act") for an inquiry into the sentence imposed for the principal offence. He submitted that there was a doubt or question as to a mitigating circumstance, namely that the sentence imposed upon him was infected by error in light of the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. He submitted that the matter should be referred to this Court as an appeal pursuant to the Criminal Appeal Act 1912. That application was granted: Application by Simon Monteiro pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 710. It is in these circumstances that the matter again comes before the Court.
THE FACTS OF THE OFFENDING
The sentencing judge found the facts of the offending to be as follows (commencing at ROS 3):
"In respect of the offence for which the prisoner was found guilty by the jury, the facts I find consistent with that verdict are as follows: The prisoner and the victim commenced an intimate domestic relationship in or about March or early April 2007. After a very brief courtship the prisoner moved into the flat of the victim at Bellevue Hill. It had been rented by her for some years beforehand. The victim was in permanent employment, but over a period of time as the relationship continued she also assisted the prisoner in relation to a business plan or plans that he had, particularly a business proposal in evidence at the trial called "Plastic Fantastic".
After what seems to have been an intense relationship over a period of months, the relationship cooled. It is clear on the evidence available to me that one of the contributing factors to this was the possessive and somewhat erratic behaviour of the prisoner. The victim became pregnant to the prisoner in September 2007, but the pregnancy was terminated by mutual consent. Another pregnancy was apparently terminated in October 2007.
The complainant alleges that on two occasions the prisoner had forced sexual contact with her. I am however unable to conclude beyond reasonable doubt that this was so. I note that the relationship survived these alleged events. In fact there is evidence of the complainant after these events beingjealous of the prisoner and, on her own part, somewhat possessive of him. At the trial she admitted to slapping him in the face over one of his peccadillos.
I am satisfied however that over the period of the relationship, the prisoner was also physical and verbally abusive towards the victim. The evidence at the trial revealed him to be possessive, intimidating and demanding. The verbal abuse of the victim and threats to her reached the point where the complainant sought help from the police anonymously in October 2007. This was after an event where the victim had her hair pulled out by the prisoner. I am satisfied this event occurred beyond reasonable doubt.
The victim spoke to a Constable of Police at Rose Bay, Constable Westfallen, but was too scared to give her name. Ultimately she disclosed her identity to that Constable, but on 16 October or thereabouts she retracted her allegations in a statement entered in the Constable's notebook and signed by the victim. I am satisfied she did so in the belief at that time that the prisoner was claiming that he was to move out of her flat. I accept that through this period of time and up until the beginning of January that she was from time to time afraid of the prisoner because of his erratic behaviour. He could be threatening and/or violent towards her, but then he would be entirely different the following day or a short time after.
The victim claimed at trial that the relationship was over by 16 October 2007. There was evidence at the trial that after that date she communicated with him in a range of ways, particularly via text message, in ways to suggest that this could not be true. She continued to express affection for him in various ways and also show interest in his activities, notwithstanding his erratic behaviour.
She said that she was threatened with an iron bar or pipe on one occasion and she said also on a number of occasions that the prisoner told her that she should not go to the police because he would find out; a claim she believed because of things he said about his connections with the police and his past experiences. Given his criminal history I am prepared to believe that this was in fact said. The prisoner's erratic behaviour included a threat made to the victim's family; expressed to the victim and not the family itself.
As I said earlier, notwithstanding this conduct and the fear that she felt from time to time for the prisoner, she continued to show loyalty to his business aspirations, even where the relationship was ultimately doomed. The impression I formed of the victim was that whilst she was a vivacious person obviously with many talents, she was also a highly dependant (sic) and trusting person. As I said earlier there was evidence that she wanted to continue the relationship, even after what could be called abusive behaviour. I am satisfied however that the relationship was in fact doomed before Christmas and the prisoner had undertaken to move out to find other accommodation.
I point out again I have no version from the prisoner. He did not give evidence in the trial. It would seem on the evidence available to me, notwithstanding some suggestion to the contrary in the psychiatric or psychological reports, that the prisoner was in fact during the period of the relationship in some difficult financial circumstances, particularly towards the latter part of 2007. It seems quite clear that he did not have the financial resources to move out to his own accommodation and he was loath to move out quickly it would seem because of the advantage he could take of the victim by accommodating her apartment.
The victim returned to her family in Goulburn for the Christmas break. On Christmas day the prisoner, completely uninvited, arrived in Goulburn, claiming to have caught a taxicab from Sydney to Goulburn at considerable expense and paying for it by credit card and having no available funds, or so he claimed. He visited the home of the victim's parents, claiming that he had found their address on the electoral roll and then, as I understood the evidence, turned up at the victim's sister's place where the family was enjoying some Christmas lunch or get together. I am satisfied his presence distressed the victim.
He waited outside the house for some period of time, was provided with some food but did not come into the house. He told the victim he had no money and borrowed twenty or thirty dollars from her before leaving.
After he had been to Goulburn there is evidence before the jury that she in fact rang him on a number of occasions in late December. The calls were much longer than one would have expected for what she claimed to be the purpose of the calls to wish him a happy birthday and to make arrangements in relation to the keys to her flat which he held.
The prisoner's conduct at Christmas of course was quite bizarre. It might be reflective of his possessive and intimidating nature. It may have simply been a reflection of his loneliness, or even of some of the manic behaviour of which Dr Davis spoke and to which I will refer to later.
The victim returned to her home on 2 January 2008 with her parents. She made arrangements to meet the prisoner at the flat to get the shared set of keys. She told the prisoner that she did not think it was appropriate for him to be there when her parents arrived because the relationship was "over".
When she did arrive with her parents some time after midday the prisoner was there at the flat. The victim had an appointment with a hairdresser that afternoon, at about 4pm, and was going to get a lift to Bondi Junction with her parents. The prisoner told her the appointment had been cancelled. He apparently had in fact cancelled that appointment himself. She rang the hairdresser and rebooked the appointment, but was unable to attend because of the events that give rise to the sexual assault offence.
After her parents left, the victim walked back to her unit with the prisoner. He followed close behind her. When she walked into the apartment she noticed the music was playing loudly. The prisoner went into the kitchen, rummaged around the drawers and then shortly afterwards he came out of the kitchen, rushed at her, pushed his hand against her face and pushed her backwards in the direction of the bedroom. She was wearing sunglasses which fell downwards from her head onto her face. She said the plastic of the glasses broke.
He was yelling at her. He said to her:
"Think you're a smarty, do you? Think you can play games with me? You will do what you are told. You will be my girl and we will be having a baby. That slut dog Dunne (a friend of the victim) is off limits and don't think you won't be getting fucked."
He commenced to hit the side of her face and head in a brushing movement that caused pain, the slapping of the face caused the injuries that constitute the element of aggravation in the charge.
He told her to get her shoes off, pulled her sneakers from her feet, pushed her back on the bed, pulled her hair and said, "Your stupid fucking plastic hair. You think that's better than me? I'll cut it all fucking off." The victim became fearful because there was a pair of a scissors beside the bed that she saw that had apparently been brought from the kitchen. She first noticed them in the prisoner's hand when she was sitting on the edge of the bed, having been pushed there by the prisoner. She began moving backwards to the bed. She said, "No Simon, it doesn't have to be like this. Please don't do this". She told the prisoner she wanted to go to the toilet and he said, "I don't care. Piss the bed". Eventually he got on top of her, pushed his hand over her face back onto the mattress, pulled her underpants off, told her to take her sundress off and continued to push and slap her face. She had difficulty breathing. He threatened her, "Scream again and it will be your last", gesturing with a pillow case that he would stick the pillow case in her mouth.
He removed his shorts or trousers, inserted his penis in her vagina and performed sexual intercourse upon her. He demanded that she kiss him. She complained that her mouth hurt. He said, "Touch my balls while you're being fucked and then I won't kiss you". He took her hand and cupped it around his testicles. The act of intercourse did not last long. He ejaculated quickly and then rolled off her. The victim was crying. After the victim had been raped, she felt a great dealt (sic) of pain around her head and in her mouth. The whole episode must have been a frightening and humiliating affair for her. She reclothed. Within a short period of time the prisoner appears to have carried on as if nothing had happened. He asked the prisoner (sic), for example, to look at photographs of a yacht in which he had some personal interest.
The victim had abrasions to her face and her lip was swollen. When she was subsequently seen by Dr Brennan the following day she had two patterned abrasion bruises, arch shape and linear measuring 0.5 of a centimetre above and below the lateral left eye, multiple discrete petechial or pinpoint red blue bruises covering an area approximately eight centimetres by five centimetres to the rear of the left side of the face in the area of the ear. Extending up past the hairline for about 1.5 centimetres a small blue bruise, an abrasion on her left ear, a blue red bruise immediately behind the lower half to middle half of the left ear, approximately 2.5 by 0.5 centimetres. An egg shaped mound palpable on the right forehead over the eye about the hairline measuring three by four centimetres. She had a red blue bruise over the lateral third of her right eye measuring 0.25 centimetres, small abrasions on the midline of the neck. She also had markings on her lips.
The prisoner told her during the afternoon that he loved her, that he wanted to marry her and he asked her why she stopped loving him. She said because of the anger and the violence. He said to her that she did not know what violence was. Conversation turned to him moving out and eventually the two of them, after checking available accommodation on a website, walked down to Manning Road, Double Bay, from Bellevue Hill, approximately twenty minutes away. They inspected a property and came back to the flat.
They slept in the apartment that night, but separately. The next morning the victim got up early. She packed essential items with the plan to flee and prepared herself to go to work. The prisoner woke up and washed the sheets from the bed and then picked up the victim's bag and followed her to the bus stop. At the bus stop there was an argument between the two of them over the victim getting the bag back and the prisoner clearly created a scene, both at the bus stop and again on the bus as he followed her. He created such a scene that a woman on the bus asked him to stop swearing because a child was present.
In the presence of others he made allegations against the victim of stealing his money, which clearly were untrue. When he got to Bondi Junction with her, he got off the bus and another verbal altercation continued and he followed her for a period of time, demanding that she open her bag so he could check the contents. Eventually she called out for help and she called out, "Somebody call the police". At one point he took her mobile phone from her, but eventually gave it back and ultimately she got to her office.
When she arrived at the office she was in a distressed state. She spoke to a work colleague, pointed to her face and said, "I'm in trouble. I'm so scared. I don't know what to do". Ultimately the police were contacted. The victim made a complaint of being sexually assaulted and was medically examined by Dr Brennan. The argument in the street may have had the characteristics of some minor domestic dispute, but it seems quite clear on the evidence at the trial that it was a case of the prisoner harassing and intimidating the complainant.
After the police had been contacted by the victim's workmate, the prisoner wound up at Paddington Police Station. By coincidence the policewoman to whom the victim had made complainants about the prisoner's conduct in October 2007 was present at the Station and saw the prisoner. The prisoner showed some injuries to another police officer on his face, being a superficial scratch and some markings in the character of bruises on his leg. The bruises on his leg were still apparent when he was arrested on 8 January. I am quite satisfied that they have nothing to do with the victim. The scratch may be a consequence of some aspect of the struggle, I do not know. The police officer who had spoken to the victim in October 2007 saw the victim later that day and observed the various injuries around her face observed by the doctor.
When the prisoner was at Paddington Police Station he said:
"My girlfriend has assaulted me and she's making claims that she's going to go to the police to tell them that I've raped her." He said "(JR) is trying to make it look I've been raping her. She's threatening to call the police that I bashed her and raped her. She reckons I've drugged her with medication. She's hit me with a baseball bat. She's mad."
She may well have threatened to go to the police, but there is absolutely no suggestion that she hit him with a baseball bat and in any event, he was well placed, even if that was remotely true, to defend himself. He said to the policeman:
"I've been teaching her to box you know. I'm a fighter. I like to keep fit. She asked me to teach her to fight. I tried to teacher (sic) her but the marks on her face are because she wouldn't listen to me and she gets hit in the head all the time."
This was untrue and clearly designed to explain away the injuries that he knew that others would see. He said he did not want to press assault charges but wanted a report written up. The background of this matter is that the prisoner, as he had told the victim, had knowledge of police procedures and was aware that matters would be written up if they were reported to the police.
Of course this was not the first occasion that the prisoner had claimed that the victim was going to set him up, particularly in relation to a sexual assault. He had made this claim, as I understand it, in a Triple-0 call on New Year's Eve and made a similar claim in October, about the first time that she went to the police.
Whilst the victim was being looked after and arrangements were being made to serve upon the prisoner an interim apprehended domestic violence order to protect the victim and the victim was away from her apartment, the next two offences were committed. The offences were detected after the police had attended there to serve the apprehended domestic violence order on the prisoner.
When the police attended about 1am on 4 January, they could see inside the unit. It appeared neat and tidy. During the morning of Friday 4 January Rose Bay police spoke to the offender several times by telephone and then later in the morning of 4 January 2008 police attended the premises at Bellevue Hill and they could hear the sound of continuous water and what they said was the sound of someone inside vomiting. Police Rescue was summonsed to enter the unit by force, but the prisoner was not inside the unit.
Inside the unit at this time police observed, as is shown in the photographs, paint, soy sauce and dirt had been strewn on the floors, walls, ceiling and furniture. A fish tank belonging to the victim in the kitchen had been emptied and dead fish were laying on the bottom of the tank. The bathroom in the unit had been filled with books belonging to her and the shower had been left running. Furniture belonging to her had been upended and slashed. Plants had been removed from their pots. All of these acts of the prisoner giving rise to the charge of malicious damage were designed to get back at her and the conduct was very vindictive indeed. It struck at items that were very personal to her, including her fish, her books and her personal property.
At 8.30pm on Friday 4 January 2008 police took the victim to the unit at Birriga Road. She observed that her pot plants had been pulled out of their pots, pots on the balcony had all been overturned, photographs had been removed and torn up, a cream rug she had owned had been cut into pieces and various items of furniture were slashed. Dirt was on the floor. Paint had been splashed on the walls and on the blinds and on items of personal property. Oil had been squirted into her DVD and video players. Her mattress had been slashed and had dirt on it. Her pillows had been slashed. A large painting belonging to her hanging over the bed had been cut and there had been other damage to other property. The estimate of the damage to JR's property is said to be $14,750. Of course it is not just the value of the property with which the prisoner was concerned, but damaging matters and items that were close to the victim's heart.
The owner of the premises stated that the walls and ceilings had to be repainted, there had to be cleaning, locks had to be changed. She said the cost of repainting the apartment amounted to $850 whilst the replacement of locks throughout the apartment amounted to $290. I will make appropriate orders for compensation, with the assistance of the Crown, at the end of the sentencing orders.
It would seem as the prisoner was in effect turning up the victim's property as an act of revenge or intimidation. He also stole a quantity of property particularised in the facts and in the charge. The victim had noticed that property was missing, as particularised in the charge, on her attendance at the apartment.
At 9.15pm on 4 January 2008 police and the victim were driving south on Birriga Road. A taxi was observed double parked outside 45 Birriga Road and the prisoner was seen in the taxi. The victim saw the taxi driver loading some property into the taxi. Police did a U-turn, approached the prisoner and he ran away. He was called on to stop and he continued to run away, reflecting his guilt in relation to this aspect of the matter. Police found inside the taxi a quantity of property belonging to JR as set out in the facts.
On 5 January 2008 a member of the public living in Birriga Road noticed property in her garbage bins. Police attended her premises and spoke to this lady. They took possession of that property and that property included a computer, a Sony handicam video camera, a cement Budda (sic) and other personal property of the victim which she later identified. Clearly she had not given her consent for the prisoner to remove that or other of her property.
Also, she identified the various property found in the taxi cab as her property, although there are a number of items still missing; namely clothes, some desk easels, some paints, a sketch book and a canvass.
The prisoner attended on 8 January 2008 at Waverley Police Station and surrendered to police. He was told he was to be charged with sexual assault upon the victim and the malicious damage to the flat and the theft of her property. As he did at his trial, as was his right, the prisoner exercised his right to silence and forensic procedures were undertaken. Photographs were taken of some injuries upon his person to which I have referred."
THE GROUNDS OF APPEAL
The appellant relies on the following grounds of appeal:
(i) the Court of Criminal Appeal erred in the application of the standard non-parole period legislation in light of the principles identified in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120;
(ii) the sentencing judge erred in finding that the appellant was on conditional liberty at the time of the offences;
(iii) the sentencing judge erred in his consideration of the psychiatric evidence relevant to the causal connection between the appellant's mental condition and the commission of the offence, the appellant's moral culpability and the diminished need for general deterrence;
(iv) the sentencing judge erred in taking into account, as a matter of aggravation, the fact that the offence occurred in the home of the victim;
(v) there is fresh evidence bearing on the appellant's mental condition relevant to sentence, the absence of which caused a miscarriage of justice;
(vi) the sentence for the principal offence, and the total effective sentence imposed, are manifestly excessive.
The reasons of the sentencing judge
Having set out the facts of the offending, his Honour dealt comprehensively with the appellant's subjective case (commencing at ROS 14). He then turned to the issue of the appellant's mental state (commencing at ROS 23) before noting (at ROS 32) that many of the submissions which had been made to him were directed to the standard non-parole period applicable to the principal offence. His Honour concluded (at ROS 40):
"I have come to the conclusion that the conduct here does reach to the cusp of the mid range of the seriousness but I am not prepared to conclude that it does fall within the mid range. But is very close.
Noting the factors to be taken into account under s 21A to which I will return in a moment, I am required, as the Court of Criminal Appeal says, to note of course that the standard non-parole period can still take its place as a reference point, a benchmark, a sounding board, a guidepost, along with other assistance from statistics, judgments of other courts and the like. It can havedirect relevance as a reference point to be compared with a sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence and of the various and aggravating and mitigating factors as well as any other subjective factor that may be present. The reference point has an important role to play in ensuring consistency in sentencing."
Immediately prior to those observations his Honour had made reference to the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. However, it is clear that his Honour did not use the standard non-parole period in any determinative way, but rather as a guide to the appropriate sentence. It is also clear from a reading of the whole of the sentencing remarks that his Honour had regard to all relevant factors when determining sentence.
The reasons of the Court of Criminal Appeal
When the matter came before the Court of Criminal Appeal, Simpson J (with whom Hoeben J (as his Honour then was) and Price J agreed) said (at [240]):
"This is a case in which, because the appellant was convicted after trial, Pt 4 Div 1A directly applies: see R v Way [2004] NSWCCA 131; 60 NSWLR 168. The standard non-parole period is to be imposed unless the sentencing judge finds that there is a basis for departure" (my emphasis).
Submissions of the appellant
The appellant did not submit that the sentencing judge erred. However, it was submitted that the approach of the Court of Criminal Appeal, as reflected in Simpson J's judgment at [240], was indicative of error.
In particular, it was submitted that primary, or perhaps determinative, significance had been given to the standard non-parole period, contrary to the approach subsequently laid down in Muldrock (particularly at [26]). It was further submitted that the observations of Simpson J were reflective of the Court having engaged in a two stage process of sentencing, an approach which was also contrary to that set out in Muldrock (at [28]).
Submissions of the Crown
The Crown emphasised that the appellant did not assert error on the part of the sentencing judge. However the Crown's position in response to the asserted error on the part of the Court of Criminal Appeal was less clear.
In written submissions, the Crown argued that because there was no error on the part of the sentencing judge, and because the appellant's appeal against sentence was dismissed by the Court of Criminal Appeal, there was no basis on which this Court should intervene. However, the Crown also appeared to concede that the approach taken by Simpson J reflected error. Having made that concession, the Crown then submitted that the approach taken by the Court of Criminal Appeal as to the significance of the standard non-parole was entirely consistent with Muldrock. That submission is difficult to reconcile with the concession which preceded it. The Crown then submitted that even if the Court of Criminal Appeal had erred, this was "saved" by the fact that there had been no similar error on the part of the sentencing judge.
It might be noted that the position taken by the Crown before this Court was at odds with that taken by counsel for the Attorney-General in the appellant's application under the Review Act. On that occasion, it was accepted on behalf of the Attorney-General that the previous judgment of the Court of Criminal Appeal was infected by Muldrock error: see Application by Simon Monteiro pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 710 at [15].
Consideration
In my view, there was no Muldrock error on the part of the sentencing judge. A reading of his Honour's lengthy sentencing remarks makes it clear that he had regard to all relevant factors when determining sentence. His use of the standard non-parole period as a guide was perfectly permissible: Zreika v R [2012] NSWCCA 44 at [43] per Johnson J, McClellan CJ at CL and Rothman J agreeing.
However in my view, the judgment of Simpson J in the Court of Criminal Appeal reflects the standard non-parole period having been used in a primary, if not determinative, way. It also reflects an approach which involved engaging in a two-stage process of sentencing. The High Court has since decided in Muldrock that such approaches are erroneous.
When these errors were made, the Court of Criminal Appeal was obviously dealing with the question of sentence. In these circumstances, the fact that the sentencing judge made no similar error is immaterial.
For all of these reasons, Ground 1 is made out. As a consequence, the sentencing discretion must be exercised afresh. I have considered this when dealing with Grounds 5 and 6 below.
THE REMAINING GROUNDS - A PRELIMINARY ISSUE
The order referring the matter to this Court was made solely on the basis of what is now Ground 1, namely and alleged error by the Court of Criminal Appeal. The matters raised in Grounds 2 to 6, which allege errors on the part of the sentencing judge, formed no part of the application under the Review Act, and were therefore not considered in the determination of that application. The Crown submitted that in these circumstances leave was required in respect of each of these additional grounds. The Crown further submitted that leave should be refused in each case.
On 31 October 2014, following the hearing of the present appeal, the Court of Criminal Appeal (Leeming JA, Fullerton and R A Hulme JJ) delivered judgment in Louizos v R [2014] NSWCCA 242, a matter in which the Court was called upon to determine the scope of an appeal which arises from a referral under the Review Act. In that case, like the present, the error relied upon was a Muldrock error which was said to have arisen in an earlier judgment of the Court of Criminal Appeal. Leeming JA (with whom R A Hulme J agreed) concluded (at [6]) that in such circumstances, the matter was to be approached as if the earlier sentence of the Court of Criminal Appeal was itself the subject of an appeal under s. 5(1)(c) of the Criminal Appeal Act 1912 (NSW). His Honour concluded that in the event that error was detected, it was for the Court hearing the appeal to itself impose the appropriate sentence pursuant to s. 6(3) of the Criminal Appeal Act 1912, the result of any error found being the exercise of the power conferred under that section.
His Honour concluded (at [27]) that leave was not required to advance a new ground merely because that ground was not part of the original reference under the Review Act. His Honour then said (at [33]):
"... only if the appellant persuades a court that there is error will the sentence be set aside and a new sentence imposed. That may occur where, as here, the earlier court has applied principles subsequently held to be incorrect, or otherwise made some error of fact or law in its reasoning process. It may also arise where the earlier court has not dealt with a particular matter".
His Honour also said (at [38]):
"What follows from the foregoing in the present case is this. Ms Louizos is taken to have appealed under s. 5(1)(c) against the sentence imposed by the Court of Criminal Appeal. She does not need leave to prosecute these proceedings. She is entitled to identify grounds which go beyond the matters raised in the inquiry and reference under ss. 78 and 79. She points to two matters: Muldrock error (which is conceded) and error in assessing her objective criminality. There is no reason not to consider those grounds on their merits. They are to be assessed as if an appeal".
In the present case, the circumstances are slightly different. Louizos involved a referral under the Review Act where there had been a successful Crown appeal determined by the Court of Criminal Appeal. Further, although Ground 1 in the present case asserts a Muldrock error arising from the judgment of the Court of Criminal Appeal (which, for the reasons previously given, is made out) Grounds 2, 3 and 4 assert errors on the part of the sentencing judge and not the Court of Criminal Appeal. The error which is the subject of Ground 2 was in fact identified by Simpson J in the Court of Criminal Appeal (at [233]). Although it did not form part of the appellant's grounds of appeal at that time, her Honour nevertheless had regard to it in considering the application for leave to appeal against sentence, as well as the Crown appeal against inadequacy. Ground 5 is based upon further evidence and Ground 6 asserts that the sentence imposed is manifestly excessive.
Notwithstanding the fact that Grounds 2-6 do not assert error on the part of the Court of Criminal Appeal, it is open to the appellant, consistent with the decision in Louizos, to identify, and rely upon, errors which go beyond that which was the subject of the reference under the Review Act. He is therefore entitled to rely upon the errors asserted in Grounds 2, 3 and 4, as well as the matters set out in Ground 5.
None of those grounds require leave and the determination of whether any of them are made out will involve a consideration, by this Court, of the evidence at trial, and the findings of the sentencing judge based upon that evidence. The question whether the appeal should be allowed and the appellant re-sentenced cannot be decided without the whole case being reviewed: Louizos (supra) at [54] per Leeming JA. As discussed at [115]-[116] below, the recent decision of the High Court in Kentwell v The Queen [2014] HCA 37 makes it clear that once error is established, the sentencing discretion is exercised afresh by this Court, taking into account all relevant considerations. That approach is consistent with the decision in Louizos.
Ground 2 - The sentencing judge erred in finding that the appellant was on conditional liberty at the time of the offences
The findings of the sentencing judge
At ROS 2 the sentencing judge said the following:
"The prisoner has been in custody since the date of his arrest, 8 January 2008. Naturally I will take into account all of the time that he has been in custody. The prisoner was on bail in relation to an allegation of assault, which is not yet resolved in the Local Court, when these offences with which I am now concerned arose. He was not otherwise subjected to conditional liberty" (emphasis added).
His Honour then returned to this issue (at ROS 36):
"I have had very close regard to these matters of aggravating factors arising out of s 21A because they have direct pertinence to contemplation of the operation of s 54B Crimes (Sentencing Procedure) Act. I am satisfied that there is substantial emotional harm committed against the victim in relation to the sexual assault matter even though I do not have the benefit of evidence on sentence in this regard or a victim impact statement. The prisoner was on conditional liberty, it has not been suggested to the contrary" (emphasis added).
Submissions of the appellant
Counsel for the appellant relied upon an affidavit of Mr Eccleshall of 1 October 2014 in support of this ground. That affidavit establishes that on 15 November 2007 the appellant was charged with one count of assault, and another count of assault occasioning actual bodily harm. Documents attached to the affidavit refer to the fact that when the appellant appeared before the Local Court in respect of those matters on 9 January 2008, 18 March 2008 and 25 March 2008 bail was dispensed with. Those appearances post-date the commission of the principal offence. However, also annexed to the affidavit of Mr Eccleshall is a transcript of the sentence proceedings in respect of those matters in the Local Court on 28 April 2009. In the course of those proceedings the appellant explained his custodial history to the Magistrate, in the course of which the following exchange is recorded:
HER HONOUR: Now, you weren't in custody principally because of this matter.
ACCUSED: No.
HER HONOUR: You were in custody on other matters so bail does not apply on these matters.
ACCUSED: That's correct."
The Prosecutor is then recorded as saying:
"Yes. Well, the police proceeded with this by way of future CAN so it wasn't even a bail CAN so I think that would be correct."
Counsel for the appellant submitted that this evidence made it clear that the appellant was not subject to bail when the principal offence was committed. It was submitted that his Honour erred in concluding to the contrary.
Submissions of the Crown
The Crown submitted that even if the appellant was not subject to bail at the time of committing the principal offence, he had clearly been charged with other matters prior to that time. It was submitted that regardless of whether bail conditions were formally imposed, the fact that he was charged was a matter relevant to his prospects of rehabilitation, and to the need for specific and general deterrence. For these reasons, the Crown submitted that this ground was not made out.
Consideration
His Honour clearly found that the appellant was "on bail" at the time of the offending, and was therefore subject to conditional liberty. I am satisfied on the evidence before this Court that such a finding was not correct. The evidence establishes that the Local Court proceedings were commenced by the police issuing a future Court Attendance Notice. Consistent with that, relevant documents refer to bail having been dispensed with.
Further, it is apparent that his Honour dealt with this issue in the context of s. 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). Clearly, he regarded it as an aggravating factor. It is not to the point that the charges dealt with in the Local Court may have been relevant to the appellant's prospects of rehabilitation. The Crown's submission in this regard fails to address the asserted error.
For these reasons Ground 2 is made out.
Ground 3 - The sentencing judge erred in his consideration of the psychiatric evidence relevant to the causal connection between the appellant's mental condition and the commission of the offence, the appellant's moral culpability and the diminished need for general deterrence
The evidence before the sentencing judge
The reports of Dr Westmore
A report of Dr Westmore, Psychiatrist, of 23 February 2009 was tendered before the sentencing judge. Dr Westmore recorded the appellant's past medical history as including the following:
"He said he was diagnosed with an under active thyroid in 2007 and treated with medication. Of symptoms he said he suffered depression and low levels of energy.
He has a history of having had two head injuries and he recently underwent PET scan and he is to have MRI and EEG completed as well.
Of his psychiatric history he said from his early years he suffered periods of depression and other periods of high or elevated mood. He said at one stage he was diagnosed with ADD and later it was stated that he was uncontrollable. He said at the age of 10 or 12 he was treated with Tryptanol.
...
He then lived in New York and Los Angeles on and off during the 1990's. While there he saw a psychiatrist who he said treated him for a borderline personality disorder and he was placed on a human growth hormone as well because of continuing levels of low energy and depression.
After 2000 he had returned to Australia and he saw Dr Hampshire on a few occasions.
He then saw a counsellor, Ms Mills, in Sydney in 2007. He said again he was depressed and "bipolar". There was talk only therapy at that stage and later he did some "natural therapy".
He indicated that he had been treated with a wide range of antidepressants as well as thyroid replacement medication. That occurred in 2007. In custody he has seen the psychiatrist Dr Davies and he saw him on about twelve occasions. He reports he has also seen a drug and alcohol counsellor".
Dr Westmore diagnosed a mood disorder based upon the appellant's history generally, and his history of recurrent episodes of depression and elevated mood in particular. Dr Westmore concluded that this history, along with the appellant's clinical presentation, were strongly suggestive of significant personality dysfunction, and a personality disorder. However, he expressed no view regarding any causal connection between the appellant's mental state and his offending.
A second report of Dr Westmore of 3 March 2009 was also before the sentencing judge. That report was provided after Dr Westmore was given the opportunity of considering material produced by Justice Health. Dr Westmore reported on that occasion that "the accumulating psychiatric evidence" supported the conclusion that the appellant suffered from a mood disorder, as well as significant personality pathology.
The report of Dr Diment
A report of Dr Anthony Diment, Consultant Psychologist, dated 3 March 2009 was also tendered before the sentencing judge. Dr Diment obtained a history which included the following:
"...When he was 10 or 11 he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) with oppositional defiant characteristics.
...
He told me he was given Tryptanol (antidepressant) when 12 and Y7. Attended Rivendell School (for special education for children/adolescence with behavioural problems...
...
He told me that his Bipolar affected his life and ability to form enduring relationships."
Under the heading "Medical/Drug History" Dr Diment reported:
"I have mentioned that he related a long-term history of mental health problems and has been variously diagnosed with ADHD post-traumatic stress disorder...and Bipolar mood disorder. Mr Monteiro told me that when he was in the USA he had seen a psychiatrist, Dr Susan Levine, on a regular basis and "she told me that I had borderline personality disorder wasn't psychotic".
...
Around the time of his arrest he had been taking high doses of Avanza (anti-anxiety agent), Aropax (anti-depressant), Prozac (anti-depressant) and Human Growth Hormone (legally prescribed for what he thought was a hypo thyroid condition). He told me that before his court case he had been prescribed Seroquel (anti-psychotic and used in Bipolar treatment), Neulactil (similar) and Zyprexa (anti-psychotic) all of which quote "reacted poorly...sick..with me."
He told me that over the years he has been treated with a variety of medications including Zoloft, Prozac, Avanza, Avapro, Efexor, Topomax (anti-convulsant), Seroquel, Neulactil, Zyprexa and Lithium (which indeed cover most available and commonly used medication for severe anxiety, depression and Bipolar disorders".
Dr Diment concluded that the appellant exhibited above average levels of clinical anxiety and depression, and that a favourably long term prognosis depended on appropriate treatment for, and management of, his Bipolar disorder. Like Dr Westmore, Dr Diment said nothing about a causal connection between the appellant's mental state and his offending.
The evidence of Dr Davies
A report of Dr Gordon Davies, Psychiatrist, was also tendered before the sentencing judge. Dr Davies recorded that he had been informed by the appellant that he had been prescribed Avanza and Prozac (both anti-depressants) before entering custody. With respect to the appellant's mental state at the time of examination, Dr Davies said:
"On interview Mr Monteiro appears slightly grandiose and paranoid. He was not overtly depressed and there was no evidence of any formal thought disorder or perceptual abnormality."
Dr Davies diagnosed the appellant with Bipolar Disorder and concluded:
"Mr Monteiro is 42 year old man who has a long history of disturbed behaviour. On a number of occasions he has presented in a hypo-manic state and this has been agreed by a number of different psychiatrists. This being so there is now doubt of the diagnosis of Bipolar disorder.
Although I have no details of the offences apart from those supplied by Mr Monteiro, I am of the opinion that it is almost certain that his illness was a significant factor in their genesis" (my emphasis).
The highlighted passage of Dr Davies' report in [42] above makes it clear that in his opinion, there was a causal connection between the appellant's mental state and his offending.
Dr Davies gave evidence before the sentencing judge. He said that he was the appellant's treating doctor in custody and had seen him on ten separate occasions in that capacity (T4 L1-15). When asked whether the diagnosis of Bipolar Disorder was at risk of inaccuracy because of anything the appellant may have said, Dr Davies responded (T7 L16-36):
"No, because it's - as much depended on the way he's presented as what he said. I mean the fact that everybody comes along to you with - that says 'I've been diagnosed as bipolar, Doctor'. It's very fashionable at the present moment. And most people that I see who come along and say that, don't have bipolar disorder. The key point about this man is that it's not only his history and his grandiosity, it's his whole manner of presentation. And not only to me, he's seen a number of psychiatric people through his period in gaol, some before I'd seen him, some after. And periodically he has presented in a hypermanic manner. This makes the diagnosis. If you have an episode of mania or hypermania, then this is pathognomonic of the diagnosis of bipolar disorder and then you have the prognostic problems from there".
Dr Davies had stated in his report that the appellant "had faced a number of previous charges but had been acquitted of most of these". That history was inaccurate. The sentencing judge (commencing at T6 L11) took Dr Davies to the entirety of the appellant's criminal history. When asked whether that history accorded with what the appellant had told him, Dr Davies said (at T6 L33-35):
"No, as I said I've always thought of him as somewhat grandiose and minimising of his own capability. But it doesn't materially alter my sort of conclusions".
At the conclusion of his evidence in chief, and in answer to questions put to him by the sentencing judge, Dr Davies said (commencing at T7 L35) that he had not been provided with any details of medical treatment provided to the appellant from 2007 up to the commencement of 2008 i.e., during the period leading up to, and encompassing, the date of the offending.
Dr Davies was then cross-examined by the Crown (commencing at T8 L3). But for three questions regarding the appellant's history of not taking prescribed medication (which Dr Davies saw as an ongoing problem) the entirety of the cross-examination was as follows (T8 L23 - T9 L11):
"Q: And Doctor, you say in your summary and opinion, "Although I have no details of the offences apart from those supplied by Mr Monteiro", do you remember that paragraph?A: Oh yes.
Q: Did he tell you that he had been convicted of an aggravated sexual assault?
A: The present charges?
Q: Yes?
A: Yes, yes.
Q: Did he tell you whether he was guilty or not guilty of that?
A: He always said that he was not guilty.
Q: And does that make it difficult in terms of relating any disorder he may have to an offence, if he maintains that he didn't do it?
A: Which was precisely why I phrased my opinion in those terms. I would think it highly likely. I didn't have the police facts or any other data. I'm not able to comment further.
Q: But the non-acknowledgement of the crime, does that influence at all - -
A: No.
Q: - - Your prognosis?
A: No.
Q: So the fact that he doesn't admit to it is neither here nor there?
A: Well not at this point, certainly, I mean if he's - shall we say if he's convicted and in gaol well then, one might assume that if he actually did it then he would be open about it because then you're working forward rather than backwards, whereas of course, the immediate situation here is to keep out of gaol isn't it.
Q: But he has been convicted, you're aware of that?
A: Oh yes, yes, but - -
Q: He just doesn't admit to the offence?
A: No".
At no stage during the course of cross-examination did the Crown directly challenge Dr Davies' opinion as to the existence of a causal connection between the appellant's mental state and his offending. The closest the Crown came to doing so was when Dr Davies was asked whether the fact that the appellant maintained his innocence made it difficult to express a view about any such connection. Dr Davies acknowledged that it was difficult, but stated that the existence of a causal connection was "highly likely". Although in his report he had used the phrase "almost certain" to describe the likelihood of that connection, it was not suggested to him that his use of a different phrase in his evidence represented a departure from his original opinion.
The findings of the sentencing judge
The sentencing judge summarised the medical evidence (commencing at ROS 23) before making a number of findings.
Importantly, his Honour accepted Dr Davies' diagnosis of Bipolar Disorder. He said (at ROS 24):
"I am prepared to accept Dr Davies' diagnosis of the prisoner as the result of his many contacts with the prisoner".
However, his Honour did not accept that there was any causal connection between the appellant's mental illness and his offending. Having noted that Dr Davies had no information regarding any treatment administered to the appellant in the period leading up to the offending, his Honour said (commencing at ROS 24):
Dr Davies noted the prisoner's failure to acknowledge his guilt of the crime of sexual assault and he stated that he used his words "carefully" in concluding that "(he was) of the opinion that it is almost certain that (the prisoner's) illness was significant factor in (the genesis)" of the offences.
In fact his oral evidence seemed to suggest that he could offer no opinion about the relationship of the bipolar disorder to the offences and there is very good reason for that. The prisoner just gives no explanation for his conduct and one can only infer matters from the version given by the complainantsubject to any reservations that one might have about her evidence where it was contradicted by other material. As it turns out there is little to contradict the essential account the victim gives of what occurred in that bedroom inside that flat. In any event, in the absence of any history provided by Mr Monteiro to Dr Davies about the offences, he could scarcely express any opinions on these matters as I have said.
Dr Davies seemed to suggest that he was unable to state whether there was in fact any connection between the diagnosed bipolar disorder and the offences in that oral evidence.
Furthermore, Dr Davies did not in his report or in his oral evidence, express any appreciation of the different offences with which this court is concerned, the sexual assault committed on 2 January and the quite separate criminality of malicious damage and stealing. No explanation or exposition is shown in Dr Davies' report. Of course I note in the history provided to Dr Davies that not all the details provided by the prisoner are accurate".
Having referred to some of the authorities which set out the principles regarding the relevance of an offender's mental illness on sentence, his Honour then said (commencing at ROS 29):
"Here, of course, I have got no evidence of any relevant mental illness that contributed to the commission of the sexual assault matters. It may be reflective of some manic episode on the part of the prisoner on the victims account. But, in any event, even if it could be inferred as such, just from the facts of the case from the victim, it seems to me that it is not a matter where one could say that the moral culpability can be reduced, given both the character of the condition, if there be one, and the circumstances in which the condition manifested itself to cause such humiliation and pain to the victim. In any event the absence of evidence of direct relationship of the conditions to the conduct to my mind removes that aspect of Hemsley from consideration.
His Honour then considered the impact of mental illness on the issue of general deterrence (commencing at ROS 30):
"Secondly, mental illness may render the offender in (sic) an inappropriate vehicle for general deterrence and moderate that consideration. ... Of course the mental condition of an offender is relevant to many aspects of the sentencing prospects, some of which may point in different directions.
...
As was pointed out in Engert, his Honour said that automatic consequences do not follow from the presence or absence of a particular factual situations. In that matter of course his Honour held that the mental condition of the applicant fell far short of the type of mental disorder that would have required his Honour to give less weight to general deterrence. Here I believe it is the same in relation to the sexual assault matter. In my view in relation to the other offences, even if it could be said, although there is no explanation in the medical evidence of any connection, that they are examples of the prisoner acting out in a manic way, one could not limit the weight of general deterrence, nor limit the need for denunciation and punishment that arises. The facts of the matter are that if one were looking at this as a self contained issue and balancing out all the interests, even if one was to diminish to some extent the weight to be given to general deterrence for the two offences for which the prisoner pleaded guilty, on the basis that they were manic episodes precipitated by bipolar disorder, one would have thought, given the character of the offending, that greater weight might have been required to be given to personal deterrence, as was explained by the Chief Justice, as he then was, in Engert.
His Honour then considered (commencing at ROS 31) the fact that a custodial sentence may weigh more heavily upon a mentally ill person:
" ... a custodial sentence may weigh more heavily on a mentally ill person. Of course here there is the question of whether the prisoner could be categorised as "mentally ill". He certainly has personality and psychological difficulties. I do understand, however, from the totality of the material that a custodial sentence may, to some extent, weigh more heavily on him, particularly if he remains in strict custody, a matter about which, for some surprising reason, no evidence was led and was only raised from the bar table".
Finally, his Honour returned to the general issue of the appellant's mental illness (at ROS 42):
"Again, the medical evidence is not clear of a direct causal relationship".
Submissions of the appellant
The essence of the submission advanced on behalf of the appellant was that a proper assessment of the evidence supported the conclusion that Dr Davies had not resiled from his opinion that there was a causal connection between the appellant's Bipolar disorder and his offending. It was submitted that there was no proper basis upon which to reject that opinion and that his Honour had erred in so doing.
It was further submitted that his Honour erred in finding that the offender's mental disorder fell short of the kind which might support less weight being given to general deterrence. Counsel submitted that when evaluated in the context of the relationship between the offender and the victim, the nature of the appellant's mental condition was relevant to his moral culpability and that it diminished the need for general deterrence.
Counsel further submitted that the appellant's mental condition involved a combination of psychological and psychiatric symptoms. It was submitted that in circumstances where the offending occurred in the context of the breakdown of the relationship between the appellant and the victim, the appellant's personality disorder made him particularly vulnerable and that his instability was highly relevant. Reliance was also placed upon matters alluded to by Dr Westmore including the death of the appellant's mother at an early age and the problematic relationship between the appellant and his step mother. It was submitted that all of these factors may have impacted upon the development of the appellant's personality.
Submissions of the Crown
The Crown submitted that it was open to the sentencing judge to reject Dr Davies' opinion. It was further submitted that there was no definitive statement in any of the medical evidence that the appellant's diagnosis of Bipolar disorder was causally connected to the commission of the offences.
Consideration
The relevance of mental illness on sentence was considered by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, commencing at [177]; 43. The relevant principles set out by his Honour include the following:
(i) where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence;
(ii) an offender's mental health may also have the consequence that he or she is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;
(iii) an offender's mental health may mean that a custodial sentence may weigh more heavily on the person and may, in such circumstances, warrant a reduction in length;
(iv) it may also reduce or eliminate the significance of specific deterrence;
(v) conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
Importantly, even where the offender's mental disability is unrelated to the offending, the sympathy which his or her condition must attract in the eyes of the community generally may be such that to sentence with full weight given to general deterrence may have no impact upon others: R v Engert (1995) 84 A Crim R 67 per Allen J at [72]. That said, evidence of an offender's mental illness does not automatically lead to particular consequences in terms of sentence. What is called for is the making of a discretionary decision in light of the circumstances of the individual case: Engert (supra) per Gleeson CJ at [68].
The acceptance or rejection of the opinion of Dr Davies was obviously a matter for the sentencing judge. However in my view, there are a number of difficulties arising from the conclusions reached by his Honour in the course of his determination that Dr Davies' opinion should be rejected.
Firstly, Dr Davies did not suggest, much less state, that he had "used his words carefully" in concluding that there was a connection between the appellant's mental state and his offending. In his report, he unequivocally stated that it was "almost certain" that the appellant's mental illness was a significant factor in the genesis of his offending. When giving evidence, he stated that the connection was "highly likely". He explained that he had expressed his opinion in those terms because of an acknowledged difficulty arising from the fact that the appellant maintained his innocence. It may be that this was the evidence which the sentencing judge had in mind when he said that Dr Davies had chosen his words carefully. Whilst that might be true in one sense, his words were not chosen in a way which indicated that Dr Davies was seeking to qualify his opinion. On the contrary, he confirmed that opinion and in doing so he made it clear that the appellant's failure to acknowledge his offending had no bearing upon it.
Secondly, and given the evidence set out in [54] above, his Honour's finding that the oral evidence of Dr Davies "seemed to suggest that he could offer no opinion about the relationship of the bipolar disorder to the offences" was not one which was reasonably open. Dr Davies certainly expressed, in clear terms, an opinion concerning that relationship.
Thirdly, and again having regard to the evidence set out in [54] above, his Honour's finding that Dr Davies "seemed to suggest that he was unable to state whether there was in fact any connection between the diagnosed bipolar disorder and the offences in that oral evidence" was not one which was reasonably open. There was certainly no such suggestion made by Dr Davies in his report and a reading of the whole of his evidence does not include any suggestion of the kind to which his Honour referred.
Fourthly, and for the same reasons, the conclusion reached by the sentencing judge that he had "no evidence of any relevant mental illness that contributed to the commission of the sexual assault matters" was not correct. It was also not correct to conclude that "there was no explanation in the medical evidence of any connection" between the appellant's mental state and the offending. The report of Dr Davies, and his evidence, ran contrary to both of these conclusions. In all of these circumstances, the Crown's submission that there was "no definitive statement in any of the medical evidence that the appellant's diagnosis of Bipolar disorder was causally connected to the commission of the offences" cannot be accepted.
Finally, in considering the question of whether the appellant's mental illness might render a custodial sentence more onerous, his Honour questioned "whether the prisoner could be categorised as mentally ill" before observing that he "certainly has personality and psychological difficulties". In my view, these observations were inconsistent with his Honour's express acceptance of Dr Davies' diagnosis of Bipolar Disorder. Once his Honour accepted that diagnosis (as he clearly did) there could be no question that the appellant was properly described as being mentally ill. For the reasons discussed at [123] below that may no longer be the case, but it was certainly the position at the time of sentence.
For all of these reasons Ground 3 is made out.
Ground 4 - The sentencing judge erred in taking into account, as a matter of aggravation, the fact that the offence occurred in the home of the victim
The findings of the sentencing judge
His Honour said (at ROS 38):
"It must be said, as with all aggravating factors whether they be pleaded or considered under s 21A or generally considered pursuant to the common law principles, that they are all matters that have to be considered in proper context and they vary in intensity. It can be said for example in relation to the issue of the offence committed in the victim's home, which is a clear aggravation, that it was at the time of course, the home of the prisoner as well" (emphasis added).
Although it is not completely clear I infer that his Honour, having found that the offending was aggravated by being committed in the victim's home, concluded that this aggravation was mitigated to some degree by the fact that the same premises had previously been the appellant's home as well.
Submissions of the appellant
Counsel for the appellant submitted that the fact that an offence is committed in the home of a victim is an aggravating factor only where the offender is an intruder into the home. It was argued that no aggravation arose in the present case because, as his Honour pointed out, both the offender and the victim had lived in the home where the offending occurred. Counsel also relied on the fact that the sole basis of aggravation found by his Honour was the fact that the offending occurred in the home of the victim and that his Honour had not found, for example, that the victim had any expectation of safety and security in those premises. All of these matters, it was submitted, reflected error.
Submissions of the Crown
The Crown submitted that the fact that the offending took place in the premises previously shared by the appellant and the victim remained relevant to an assessment of objective seriousness of the offending. It was submitted that the victim had a reasonable expectation that she would be able to live in the premises without being the subject of a violent sexual assault.
The Crown further submitted that if there was any error in his Honour's conclusions it did not have a material effect on sentence because the factual context of the offending included a background of domestic violence.
Consideration
Section 21A(2)(eb) of the Sentencing Act provides that where the offence was committed in the home of the victim, the offending is aggravated. Different views have been expressed as to the scope of that provision.
R v Comert [2004] NSWCCA 125 was a case of sexual assault committed by a husband upon his wife. The primary judge had concluded that the offending was aggravated by the fact that it had occurred in the victim's home. However, the victim's home was also the matrimonial home. In relation to this issue Hidden and Hislop JJ said (at [29]):
[29] Reading the relevant part of the sentencing Judge's remarks as a whole, there can be no doubt that her Honour did characterise as an "additional aggravating feature" the fact that the offence was committed in the complainant's home. We are satisfied that, in so doing, her Honour fell into error. No doubt, that would have been an aggravating feature if the offender had been an intruder. However, we are unable to see how a sexual assault on a woman by her husband is rendered more serious because it was perpetrated in the matrimonial home. This, of course, is not to deny the gravity of offences of violence, whether or not of a sexual nature, committed in a domestic setting."
That reasoning has been applied in a number of cases since: EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740; Ingham v R [2011] NSWCCA 88; R v BIP [2011] NSWCCA 224; DS v R [2012] NSWCCA 159; Essex v R [2013] NSWCCA 11.
In Melbom v R [2013] NSWCCA 210 the applicant had been convicted of offences of reckless wounding and threatening to use an offensive weapon which had been committed in the home of the victims. The victims had previously invited the applicant to come and live with them. RA Hulme J (with whom Simpson and Price JJ agreed) noted (at [44]) that the Crown had conceded the correctness of the authorities cited in [74] above. However, his Honour expressed some reservations as to the correctness of those decisions (at [44]):
"...The plain words of s. 21A(2)(eb) do not support the limitation that this Court has placed on their application. ...It was never intended by Parliament that there should be the constraint upon their application that this Court has imposed."
Simpson J (at [2]) shared those reservations and expressed the view that a re-consideration of those earlier authorities was warranted.
RA Hulme J also observed (at [51]) that the sentencing judge in that case had not simply referred to the fact that the offending was aggravated as a consequence of having occurred in the home occupied by the victims and the applicant. He added:
"Her approach would clearly have been contrary to authority if that was all that she had said."
The issue was further considered in Montero v R [2013] NSWCCA 214, a case of aggravated sexual assault committed in the applicant's home. The victim was an acquaintance of the applicant's girlfriend and the sentencing judge had made reference to the place of the offending as being an aggravating factor. RA Hulme J (with whom Leeming JA and Button J agreed) was not persuaded that the sentencing judge had erred in concluding that the offending was aggravated by the fact that it had occurred in the applicant's home, because it was not that fact alone which had been taken into account (at [52]). Additional factors which aggravated the offending included that:
(i) the victim was a guest;
(ii) she had gone to bed with an 18 year old woman who had been a friend for 6 years;
(iii) she had, as a consequence, an entitlement to a feeling of safety and security; and
(iv) unbeknown to her, the applicant had taken the place of her friend in the bed and had sexually assaulted her.
His Honour (at [53]) drew a distinction between those facts and those in Comert (an assault by a husband upon his wife in their home), EK (an assault by a father in the home in which he and the victim lived), Ingham (where the offender was a regular overnight visitor to the premises in which he sexually assaulted two complainants in his care) and BIP, DS and Essex (each of which concerned sexual assaults by men upon children of their respective partners, committed in the home). He concluded (at [55]) that even if the sentencing judge had erred, he had nevertheless been entitled to take into account, as a factor which rendered the offending more serious, the violation of the victim's expectation of safety and security.
In the present case, the sentencing judge found that the relationship was "doomed" before Christmas 2007 and that the appellant had undertaken to move out. Although not stated in express terms, the effect of his Honour's finding was that the relationship had ended by Christmas 2007. It had therefore ended before the offending occurred.
His Honour also found that the offending occurred in circumstances where the victim had made arrangements to meet the offender to return a set of keys. There was, therefore, no suggestion that the appellant would continue to live at the premises.
In circumstances where this Court did not hear full argument on the issue, this is not an appropriate case in which to attempt to resolve the tension which exists in the authorities regarding the proper interpretation of s. 21A(2)(eb). In any event, the circumstances of the present offending are in my view quite clear. The victim and the appellant were no longer in a relationship when the offending occurred. They had agreed to meet so that the victim could retrieve the appellant's keys to the premises. In those circumstances the premises were properly regarded as the home of the victim, but not the appellant. Such circumstances are distinguishable from those in Comert, and the other authorities which have adopted the same reasoning.
It follows that in my view, it was open to his Honour to find that the offending was aggravated. This ground is not made out.
Ground 5 - There is fresh evidence bearing on the appellant's mental condition relevant to sentence, the absence of which has caused a miscarriage of justice.
Ground 6 - The sentence for the sexual assault and the total effective sentence imposed is manifestly excessive.
It is convenient to deal with the arguments advanced in relation to these grounds together.
The additional evidence
The following affidavits were read in the appellant's case in the event that the Court came to consider re-sentence:
(i) the appellant of 18 September 2014;
(ii) Adam Lowe, the appellant's brother, of 8 October 2014;
(iii) Stephen Eccleshall, solicitor, of 22 September 2014, 1 October 2014, 8 October 2014 and 9 October 2014.
On the same basis, the Crown read an affidavit of Steven Thomson of 15 September 2014.
Submissions of the appellant
In considering these grounds, and in the exercise of the sentencing discretion, I should note that some of the subject matter canvassed in the appellant's affidavit is subject to an order made pursuant to s. 7(a) of the Court Suppression and Non-Publication Orders Act 2010 in other proceedings to which the appellant is a party. In those circumstances, I do not propose to make specific reference to that material. However, I record the fact that I have read it, and have had regard to it.
In oral submissions, counsel for the appellant relied upon a number of matters in support of Grounds 5 and 6, as well as in support of the re-exercise of the sentencing discretion if any other ground was made out.
The first matter to which counsel referred was the additional medical evidence which included a further report of Dr Westmore of 29 September 2014. Dr Westmore diagnosed the appellant as suffering from an adjustment disorder with depressed, anxious and angry mood. He reported that the appellant was finding his period in custody "extremely difficult" and concluded that he was not able to diagnose the appellant as suffering from "a serious mental illness, such as a psychotic condition or a serious Mood Disorder such as Major Depressive Disorder or Bipolar Affective Disorder." He was unable to pass comment on any relationship between the appellant's mental state and his offending.
Dr Westmore also said:
"He is a man who had a number of pre-existing psychological problems before he came into custody and, in my respectful view, the custodial experience has not actually assisted him resolve (sic) any of those problems. Indeed his custodial experience is likely to have aggravated and exacerbated those difficulties".
Two other medical reports are also before the Court. The first is that of Dr Stephen Allnutt, Psychiatrist, who examined the appellant on 10 February 2014. Dr Allnutt expressed the view that the appellant did not manifest symptoms consistent with Bipolar Disorder, but did exhibit a number of depressive symptoms. Dr Allnutt said that there was insufficient evidence to conclude that the appellant was a "mentally ill person" or a "mentally disordered person". He recommended (inter alia) that the appellant be moved to a main area of the gaol and that he be placed "one out".
The other report is that of Dr Stephen Woods, Clinical Psychologist, of 25 February 2014. Dr Woods reported:
"Mr Monteiro presents with a number of "issues" that potentially result in him suffering a greater level of hardship as a result of being incarcerated than might otherwise be the case. Specifically Mr Monteiro suffers from an ear complaint that is apparently aggravated by cold weather.... Arising from this history, (a) he was reportedly classified as not suitable to share a cell with other inmates and (b) it was recommended that he not be held in gaols located in cold climate regions. Notwithstanding Mr Monteiro has reportedly spent most of the time served in gaols located in cold climate regions and was recently forced to share a cell with a person who he believes is a convicted child sex offender and possibly murderer, and is currently facing a charge of attempted murder of another inmate."
Dr Woods concluded that the appellant was not suffering from any active symptoms of a mental illness but was suffering from symptoms of Post-Traumatic Stress Disorder. He also noted that the appellant continued to assert his innocence.
Counsel submitted that this additional evidence established that as a consequence of his mental and physical health, the appellant's custodial sentence had become more onerous.
Secondly, counsel relied upon the fact that since the determination of his appeal by this Court four years ago, the appellant had been moved in custody no less than 43 times. Counsel pointed out that the longest continuous period in which he had been in the one custodial facility was 18 months. It was submitted that this had made it difficult for the appellant to settle in custody, undertake rehabilitative courses, and pursue studies.
Thirdly, counsel pointed to the fact that the appellant has been subject to various levels of protection since his incarceration.
Fourthly, counsel relied upon the fact that despite recommendations that the appellant be held in custodial facilities located in areas with a moderate climate due to health issues, he had spent periods in areas where the temperature was cold, and had been denied permission by the authorities to have access to a heater. It was further submitted that the various hardships suffered by the appellant in custody had been extreme, and that little rehabilitative purpose had been served, or would be served in the future by his continuing incarceration.
Fifthly, counsel submitted that it was relevant to consider that the principal offence was committed in the context of a relationship between the offender and the victim. It was submitted that even if it were accepted that the relationship had ended, it had done so only a short time beforehand and that the offending should be viewed in that context.
Sixthly, reliance was placed upon media publicity surrounding the appellant and his offending. It was submitted that on the basis of the appellant's affidavit evidence, that publicity had caused him to be, in effect, "targeted" in custody, giving rise to fears for his safety.
Finally, and in the event that this Court were to intervene and re-sentence the appellant, it was submitted that a finding of special circumstances should be made, based upon the appellant's need for psychiatric or psychological counselling, and an associated need for assistance to adjusting to living in the community.
Submissions of the Crown
The Crown submitted that none of the matters advanced on the appellant's behalf supported the conclusion that some lesser sentence was warranted, or that the sentence was manifestly excessive.
The Crown pointed, in particular, to:
(i) the objective seriousness of the offending;
(ii) the fact that it occurred in a context of domestic violence;
(iii) the appellant's criminal history;
(iv) his lack of contrition and remorse; and
(v) the "wide divergence" between the standard non-parole period, and the sentence which was actually imposed, noting in particular, that it was one imposed following a trial and not a plea of guilty.
Consideration
The function of this Court
For the reasons set out, I have found that Grounds 1, 2 and 3 have been made out. In these circumstances the Court's power in s. 6(3) of the Criminal Appeal Act 1912 is enlivened. The function of this Court in those circumstances was explained by the High Court in Kentwell at [42]:
"... When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence".
The Court went on to say (at [43]):
"After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal".
Notwithstanding the terms of Ground 6, the appellant does not have to establish, for the purposes of the exercise of the Court's function under s. 6(3), that the sentence imposed was manifestly excessive. As the judgment in Kentwell makes clear, it is the function of this Court to exercise the sentencing discretion afresh when, as in the present case, error is established. In doing so, I have had regard to the entirety of the evidence which was before the sentencing judge, as well as the additional evidence which was placed before this Court and the submissions advanced in relation to that evidence and Ground 6.
The appellant's mental health
Dr Davies concluded that there was a causal connection between the appellant's mental state and his offending. I have already set out the relevant aspects of his evidence. In my view, there is no reason to reject Dr Davies' opinion. It supports a conclusion that there was such a connection. In these circumstances, the need for any sentence to reflect principles of general deterrence is lessened.
Further, although there is evidence that the appellant no longer suffers from Bipolar Disorder, he does suffer from various depressive symptoms. There is evidence from Dr Westmore, which I accept, that these various difficulties have rendered the appellant's period in custody more onerous than would otherwise have been the case.
However, considerations of general deterrence and conditions of custody aside, the fact that an offender is in ill health, be it physically or mentally, does not give rise to an automatic requirement that a sentence be mitigated from that which would otherwise be appropriate. As Gleeson CJ pointed out in Engert (supra), what is called for is a discretionary judgment in light of the circumstances of the individual case.
One of the factors relevant to determining the weight to be given to an offender's ill health is the seriousness of the offence. For the reasons set out more fully in [133] and following below, the appellant's offending was, on any view, serious.
Another relevant factor is whether the relevant medical condition existed at the time of the offence, and whether it has deteriorated in the period between the offence and sentence: R v Wickham [2004] NSWCCA 193 per Howie J at [18] (Bell and Hislop JJ agreeing) citing R v Kier [2004] NSWCCA 106 and R v L (NSWCCA unreported 17 June 1996). In the present case, the appellant's mental health problems are of long standing. Both Dr Westmore and Dr Diment traced their origins to the period of the appellant's adolescence.
Further in my view, the evidence does not support a conclusion that the appellant's mental health has deteriorated since the time of the offending. On the contrary, given that the most recent medical evidence does not diagnose the appellant as suffering from a Bipolar Disorder it might be said that his condition has at least stabilised to a degree. As I have noted, Dr Westmore was not able to diagnose the appellant as suffering from a serious mental illness and Dr Allnutt concluded that there was insufficient evidence to conclude that the appellant was mentally ill or mentally disordered.
Other aspects of the appellant's conditions of custody
The appellant's protected status, and his being "targeted" as a consequence of media publicity are relevant considerations on sentence and I have had regard to them. I also accept that repeated changes of location have obviously been disruptive for the appellant in various respects. However I am not satisfied that the issues concerning the appellant's physical health has rendered his custodial sentence significantly more onerous.
One of the principal submissions advanced in this respect concerned the difficulties experienced by the appellant when serving periods of custody in cold climates. It was submitted, in particular, that his requests for assistance in this respect had been refused. It is noteworthy that in his affidavit of 18 September 2014 the appellant said the following:
"41. I suffer from hypothyroidism and also from a bony growth in my ear canal otherwise known as "swimmers ear".
42. I currently take 100 milligrams of oroxin for my thyroid condition.
43. My thyroid condition makes me more susceptible to feeling the cold.
44. My swimmer's ear is aggravated by cold conditions.
45. It is difficult for me to leave my cell to go to an even colder yard to exercise because of the pain and discomfort I feel when it is cold.
46. I have regularly felt pain and discomfort during my sentence as a result of being mostly placed in gaols located in cold climates: Cooma. Lithgow, Goulburn and Junee.
47. In March 2011 my ear was assessed by an ear nose and throat (ENT) specialist at Long Bay. He recommended that I be held in gaol with more moderate winter temperatures to lessen the pain I experience. This recommendation has not been followed.
48. I was offered an appointment to discuss having surgery over a year later in May 2012 and also in early 2013/2014. I did not attend these later appointment because, although I accept I need surgery, I have strong reservations about having such surgery whilst in gaol. I fear that I will suffer complications or secondary infection due to poor hygiene.
49. I therefore have had to rely on pain killers, warm clothing and my fan heater to alleviate my pain symptoms."
Subsequently, at paragraphs (70) and following the appellant said:
"70. I have tried hard to improve myself through tertiary studies since my previous appeal. Unfortunately, I have only been able to gain ready access to my materials and resources to study whilst I was at Cooma. Prior to going to Cooma and in 2014 my efforts have been thwarted as a result of my frequent movements between gaols and my restrictive conditions. Valuable study materials have been (sic).
71. Each time I change gaols I need to seek approval again to undertake my studies, re-establish contact with my University and retrieve access materials from my previous gaol. Due to the disruption, I have had to defer my studies.
72. Last year at Cooma I successfully completed my studies for a diploma of Occupational Health and Safety and a diploma of Quality Auditing from Swinburne University of Technology in Melbourne."
Two matters in particular emerge from this evidence. Firstly, a schedule of the appellant's movements in custody is Annexure "D" to the affidavit of Mr Eccleshall of 22 September 2014. Reference to that document establishes that between 19 January 2013 and 21 December 2013, a period of some 11 months, the appellant was housed at Cooma. That is the only period in which he has been in that location and I therefore infer that it was during that time that he successfully completed the studies he referred to in paragraph (72) of his affidavit. The cold winter climate in Cooma is well known. The fact that the appellant, on his own evidence, managed to successfully complete external studies during the period in which he was held there provides some indication of his ability to cope with being housed in cold climates.
Secondly, the appellant has deposed to the fact that he is being treated with medication for his thyroid condition. Surgery has been offered to him in relation to his ear condition. The appellant declined that surgery because he had fears of contracting infection due to what he considered to be poor levels of hygiene. There is no evidence which establishes any foundation for those fears. In circumstances where the appellant is being treated (apparently appropriately) for one condition, and has declined treatment offered in respect of another, it is difficult for him complain that health considerations render his custodial situation more onerous. This is certainly not a case in which the appellant has been deprived of the benefit of appropriate medical treatment in custody.
The relationship between the appellant and the victim
As I have noted, counsel for the appellant submitted that it was relevant to consider that the offending had occurred in the context of a relationship between the appellant and the victim. Counsel suggested that this was a factor which should mitigate the sentence.
Whilst the existence of a relationship between an offender and a victim is a relevant consideration in determining the objective seriousness of sexual offending, each case must turn on its own facts. The difficulty with counsel's submission in the present case is that his Honour found that the relationship had ended at the time of the offending. There is no suggestion that this finding was erroneous. It follows that the circumstances of the present case are substantially removed from those considered in cases such as NM v R [2012] NSWCCA 215 and Norman v R [2012] NSWCCA 230. In those cases, the offending occurred in the context of an ongoing relationship. In the present case, the relationship was over. In my view, it follows that the existence of the prior relationship between the appellant and the victim is not a factor which attracts mitigation. In particular, and as distinct from cases such as NM, this was not a situation in which the victim had initially invited the appellant to engage in sexual intercourse with her, or had otherwise indicated that she was prepared to do so.
What remains important is that even though the relationship had ended, the offending occurred in what might be loosely described as a domestic setting. In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41]:
"As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell [2000] NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."
These principles were confirmed, after a review of the relevant authorities, by Johnson J (with whom Hunt AJA and Latham J agreed) in R v Hamid [2006] NSWCCA 302 at [65] and following. Leaving aside the question of general deterrence, the observations of Wood CJ at CL are directly apposite to the present case.
The circumstances of the offending
His Honour set out these circumstances at length. Against a background of an earlier relationship which had recently ended, the victim had arranged to meet the appellant for the purposes of retrieving a set of keys to her premises. Prior to her arrival, and in an apparent attempt to control the victim even after their relationship was over, the appellant took it upon himself to cancel the victim's hairdressing appointment scheduled for later that afternoon. This was consistent with the appellant's possessive behaviour towards the victim, to which the sentencing judge referred.
Without warning, the victim was subjected to a brutal, violent and cowardly attack which involved forced penile/vaginal penetration. The attack was accompanied by threats made by the appellant, including a threat of death by suffocation if she did not comply with his demands. The attack left the victim with a number of significant physical injuries. The appellant lied to the police as to the circumstances in which those injuries were sustained. The remaining offending, to which the appellant pleaded guilty, resulted in the theft of, and damage to, the personal property of the victim as well as damage to the premises in which she lived. His Honour found that these offences were acts of revenge or intimidation (at ROS 13).
The offending was aggravated by the fact that it was committed in the victim's home, after her relationship with the appellant had come to an end. In all of the circumstances, and particularly in light of the purpose for which she was meeting with the appellant, the victim was entitled to feel safe and secure in her own premises. She was also entitled to think that she would be able to retrieve the keys to her own premises without being sexually attacked.
The appellant has demonstrated no contrition or remorse, be it in respect of the principal offence of which the jury found him guilty, or the damage and stealing offences. The entirety of that offending was committed against a background of a lengthy criminal history dating back to 1981, and which includes previous offences of violence including assault, assault occasioning actual bodily harm, malicious damage, destroying property and stalking/intimidating.
It is also necessary to bear in mind that the overall sentence imposed was not limited to the commission of the principal offence. In particular, the extent of the damage inflicted by the appellant on the victim's premises, as described by his Honour and as depicted in the photographs which were tendered, was significant.
It is also relevant that the principal offence carried a maximum penalty of 20 years imprisonment. The maximum penalty is an indication of the seriousness with which Parliament views this offending. It acts as a sentencing guidepost or yardstick. In Markarian v The Queen (2005) 228 CLR 357 Gleeson CJ, Gummow Hayne and Callinan JJ said at [31]:
"[31] ... careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."
Further, and although it must not be given primary or determinative significance, the prescribed standard non-parole period of 10 years was the other relevant statutory guidepost.
Finally, I note that the sentencing judge made a finding of special circumstances (at ROS 43). In light of my observations in R v Tuuta [2014] NSWCCA 40 at [57] (with which Bathurst CJ and Hoeben CJ at CL agreed) I have some doubt about whether that finding was open. However, given the conclusions I have reached, it is not necessary for me to consider that issue any further.
In my view, notwithstanding the errors established, and having taking into account all relevant considerations including the evidence of events which have occurred since the appellant was sentenced and the two statutory guideposts, and having exercised the sentencing discretion afresh, I am not satisfied that some lesser sentence is warranted.
It follows that Grounds 5 and 6 are not made out.
CONCLUSION
For the reasons set out, error has been found in respect of grounds 1, 2 and 3. However I am not satisfied, for the reasons given, that some other sentence is warranted in law and should have been passed.
I propose the following order:
(1) The appeal is dismissed.
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Decision last updated: 26 November 2014
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