Ocek v R

[2009] NSWCCA 42

New South Wales
Court of Criminal Appeal

CITATION:	OCEK v R [2009] NSWCCA 42
HEARING DATE(S):	4 February 2009
JUDGMENT DATE:	26 February 2009
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Adams J at 3
DECISION:	Leave to appeal granted Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - aggravated sexual assault - appeal against sentence - fresh evidence on mitigation rejected as relevant but not cogent - sentence not in error
LEGISLATION CITED:	Crimes Act 1900 s 61J
CATEGORY:	Principal judgment
PARTIES:	Barbros OCEK (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2003/00013747
COUNSEL:	Mr M Ramage QC (Applicant) Mr D Arnott SC (Respondent)
SOLICITORS:	Voros Lawyers (Applicant) S Kavanagh (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1248
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:	3 June 2004

2003/00013747

McCLELLAN CJ at CL
JAMES J
ADAMS J

26 February 2009

Barbros OCEK v R

Judgment

1 McCLELLAN CJ at CL: I agree with Adams J.

2 JAMES J: I agree with Adams J.

3 ADAMS J:

Introduction

On 31 March 2004 the applicant was convicted in the District Court of two counts of aggravated sexual assault under s 61J of the Crimes Act 1900 committed upon the same victim in the course of one episode on 26 April 2002. The maximum penalty is twenty years’ imprisonment. In respect of the first charge, in which the aggravation was threatening the victim with a knife, the applicant was sentenced to eight years’ imprisonment with a non-parole period of six years. In respect of the second charge, where the aggravation comprised assaulting the victim and occasioning actual bodily harm to her, he was sentenced to seven years with a non-parole period of five years. The latter sentence commenced eighteen months after the commencement of the former and thus the effective sentence was one of eight years and six months’ imprisonment with a non-parole period of six years and six months. The applicant had been on bail until the date of his conviction, which was specified as the commencement date of his imprisonment.

4 The applicant filed a notice of intention to apply for leave to appeal against his sentence on 2 July 2004. The Registrar of the Court granted a number of extensions for filing the application, the last of which expired on 15 March 2006. Ultimately, the application was filed on 12 August 2008, years out of time. It was necessary, therefore, that the applicant seek the leave of the Court to proceed. The applicant’s solicitor has provided an affidavit explaining why the delay occurred. It is sufficient to say that, although this matter was regrettably conducted with a substantial degree of inefficiency, the applicant was not, as I see the case, responsible for this. Accordingly, I would grant an extension of time sufficient to permit the application for leave to appeal to proceed.

5 The applicant also seeks to tender fresh evidence which, it is contended, is relevant to the proper assessment of the appropriateness of his sentence and, if admitted, should lead to its reduction. The Crown opposes the reception of this material.

The facts

6 The following summary is taken from the reasons for sentence and, for the purposes of this appeal at least, is not disputed in any significant respect by the applicant although some matters are contended to have greater importance than was ascribed to them by the learned sentencing judge. As I have said, both offences were committed in the course of a single episode that occurred on 26 April 2002. The applicant and the victim had met in a public area in Redfern where they began talking and drinking together. The victim accepted the applicant’s invitation to go to the boarding house where he was then living to continue drinking. On the way, they stopped to buy some beer. After drinking the beer and smoking some cannabis, they began to engage in consensual sexual conduct although the applicant had difficulty in obtaining an erection. He then began to hit the victim around her head, turned her over and attempted anal intercourse. She screamed out and said, “Don’t”, whereupon he produced a knife and, holding it to her throat threatened to cut her. He still could not manage an erection, however, and turned her over once more forcing her to take his penis into her mouth. After this, the applicant punched and head-butted the victim’s face. For some time after the assault, the applicant did not did not allow the victim to leave the room without him, although later, on the pretext of her need to go to the bathroom, she obtained his permission to leave and then managed to attract the attention of another resident in the boarding house. With his help, she was able to leave and immediately rang the police.

The applicant’s case on sentence

7 The victim’s evidence in the trial was that the applicant had punched her many times to the face. The applicant’s case both to the jury and on sentence was that the photographs taken by police showed merely a swollen cheek and eye and, therefore, that the victim had greatly exaggerated the extent of the violence. The same point was submitted here (though rather by passing comment) by Mr Ramage QC on the applicant’s behalf.

8 Amongst other explanations for his conduct, the applicant claimed that at the time of the offences he was intoxicated by alcohol and cannabis combined with the ingestion of a prescribed drug, Rivotril, which he was taking for sleeplessness. The matters were discussed in a report from a psychologist, Mr Smith, which was tendered on sentence. That report noted the applicant as having told Mr Smith –

“At the trial I was found guilty of forced oral sex and putting my finger in her anus. Both of these things happened but nothing was forced. It was the effect of the Rivotril. I didn’t mean anything to happen to her. I snapped when I could not perform and she said something to me.”

Summarising the position, Mr Smith said –

“The offender after saying that he was deeply remorseful for what he did that night and how much he regretted what had happened said:

‘I had no intention to harm her or do anything she did not want to do. I take the blame.’
He then went on to blame the effect on the Rivotril and said that he had been told that its effect was that a person could just snap for no reason. “

9 Also tendered on sentence was a pre-sentence report containing the usual information (to which I will later refer) but also the following passages, cited in the sentencing judge’s reasons –

“He also indicated that he believes that he hit the victim, although not as often as she had claimed, for calling him names. He denies his sexual offending behaviour.”
[The author went on:] “Given what appears to be an at least partial denial, the concept of regret would not seem to be relevant and was only discussed minimally.”

10 The sentencing judge, having cited the passages I have quoted from Mr Smith’s report, noted that counsel for the applicant had relied a great deal on the expression of remorse which it contained as showing that he accepted responsibility for his offence but concluded that “it is so heavily qualified by blame-shifting and self-justification when read in context with the balance of the report that it is, in my mind, but a feigned expression of remorse”. Dealing with the alleged exaggeration of the victim of the number of blows inflicted by the applicant, her Honour observed that in none of the material tendered on sentence did the applicant acknowledge the use of the knife as an element of the first sexual assault.

The fresh evidence

11 Tendered on the appeal was an affidavit by the applicant describing his treatment by a Dr Singh, general practitioner, for ongoing depression, insomnia and drug and alcohol abuse. This affidavit contains much that was, in substance, before the sentencing judge. It contains the additional information that Dr Singh had prescribed Rivotril but that, after about a month, the applicant had started to increase his ingestion of that medication without informing Dr Singh that he was doing so and without his advice. The affidavit gives details about the effects of taking Rivotril on the day of the offence, claiming that he felt he was becoming drowsy and confused. He claimed that he was “extremely affected by the combination of drugs and alcohol…[and accordingly had] a limited memory of the evening…but I do remember feeling like my behaviour changed suddenly and for no reason”. The applicant claimed that he had provided this information to his solicitors and requested that an expert’s report be obtained. The date of these instructions is not stated but, as I read the affidavit, it seems to have occurred well after the applicant was sentenced and were given in the context of the proposed appeal. Other matters are referred to in the affidavit which do not call for comment.

12 The fresh evidence relied on is a report of Professor Starmer. This report deals generally with the effect of alcohol, cannabis and Rivotril. In particular, following a detailed discussion of the effect of Rivotril the report states –

“7.9 Unforeseeable reactions may occur when alcohol and clonazepam [i.e. Rivotril] are taken together. On rare occasions , when clonazepam has been taken with alcohol or other central nervous system-active drugs, the individual has manifested unusual or disturbed behaviour of which he/she has no later recollection. The spectrum of reported effects includes hallucinations, acute excitation, confusion, agitation, unusual dreams and sleep disturbances…
7.10 Occasionally benzodiazepines produce paradoxical stimulant effects and can provoke aggressive and hyperactive behaviour and exacerbate seizures in epileptics. Outbursts of rage and violent behaviour have also been reported after clonazepam, especially in anxious patients. These paradoxical effects have been attributed to dis-inhibition of behaviour which is normally suppressed by social restraints, fear or anxiety …” [Italics added.]

13 Professor Starmer’s conclusion was that the “exact interactive consequences of his drug-taking” could not be predicted but that “the spectrum does include a possible paradoxical reaction to benzodiazepines [including Rivotril]” [italics added].

14 The Crown tendered a report by Dr Judith Perl, a pharmacologist from the Clinical Forensic Medicine Unit of the NSW Police Force which, in substance, did not dispute the opinion of Professor Starmer but pointed out that the most likely effect of the high dose of Rivotril claimed by the applicant to have been ingested on the day in question “would have been to produce significant sedation”.

15 It was submitted by Mr Ramage QC that Professor Starmer’s evidence – not sought to be controverted by Dr Perl – significantly supported his case that the violence inflicted on the applicant occurred when he had “snapped” and that this was caused or significantly contributed to by the unforeseen consequences of Rivotril ingestion. Since this is a matter which is relied on by the applicant in mitigation of the gravity of his offence, it was a matter which it was necessary to be proved on the balance of probabilities. The mere proof of a possibility, for obvious reasons, does not suffice. At the same time, it seems to me that the sentencing judge accepted that the applicant had “snapped”. Even had the report of Professor Starmer been adduced before her, I do not think it could have provided an adequate evidentiary basis for concluding that this was, or probably was, the result of his having taken Rivotril. Moreover, this “snapping” was proffered as an explanation for the assaults occasioning actual bodily harm but not in mitigation of the production of the knife.

16 In my view, the evidence sought to be relied on is of such little cogency, having regard to the issues on sentence, that it ought not to be received and I would reject it.

Subjective circumstances

17 The applicant was thirty-one years of age when he committed the offences. Leaving aside a number of convictions for driving offences, in 1990 he was convicted of assault and placed on a recognizance for twelve months. He was also convicted of indecent assault but the resulting prison sentence was reduced on appeal to a good behaviour bond for three years, in respect of which he was required to subject himself to the supervision of the Probation and Parole Service. He told Mr Smith that this offence was committed when he was drunk in the course of being given a lift home by a female friend. He said he grabbed her breasts and then took her handbag following a heated argument, this latter act resulting in a stealing charge. He later committed further offences and was sentenced to six months’ imprisonment for breaching the bond. In 2001, the applicant was convicted of breaching an apprehended violence order and sentenced to three months’ imprisonment, suspended on his entering into a good behaviour bond for three months. In May 2003, he was convicted of breaching an apprehended violence order, apparently in February of that year and again in May of the same offence with a further three months’ suspended sentence imposed. These offences were explained by the applicant to Mr Smith. The applicant said that, whilst the mother of his girlfriend was dying he felt that his girlfriend was not paying him sufficient attention and so, one night after he had been drinking, he had an argument with her and kicked in her mother’s screen door. Each of the mother and girlfriend took out an apprehended violence order which he confessed to breaching five times, culminating in July 2001, when he broke into the mother’s house when she was not there and waited for her to come home. For this breach he was given a nine-month sentence, which was suspended. As it happened, that sentence expired at midnight on 26 April 2002, the day of the present offences. It was therefore not regarded by the sentencing judge as having been in operation at that time.

18 The learned sentencing judge observed in relation to these matters –

“The offender appears…to have little respect for the law as evidenced by his serial breaches of the apprehended violence orders obtained by his ex-girlfriend and her mother.”

The applicant complains that, in fact, his girlfriend’s mother had not obtained an AVO against him. However, Mr Smith’s report recounts his stating –

“One night I lost it; I had a beer to drink and we had an argument and I kicked her mother’s screen door…they got an AVO…then I broke it five times because she wanted time out and I was afraid I would lose her so I would go to her work or to her home … “

There is nothing in this complaint and this would be so even if the sentencing judge erred as submitted.

19 The applicant also complains that a statutory application made by the applicant’s then girlfriend in March 2003 stating that she did not want to pursue the breaches of the orders because she was suffering from pre-menstrual syndrome at the time and, accordingly, had acted irrationally, was not tendered before the sentencing judge. Since the gravamen of the judge’s remarks was not directed to the reasons for the orders but the fact that they were repeatedly disobeyed, this material was irrelevant.

20 I have referred to the sentencing judge’s scepticism of the extent and genuineness of the applicant’s remorse. In his affidavit the applicant said that he had prepared a letter of apology for the purpose of his sentencing hearing which he showed to his barrister, Mr Wetmore. The applicant complains that Mr Wetmore did not use it in his submissions or tender it. This letter has not been produced and, in his affidavit dealing with other aspects of the proceedings (read by the Crown on the appeal), Mr Wetmore does not advert to it. However, use of such material is very much a matter of judgment. Often the terms of the letter do not assist an offender. The report of the psychologist referred to the remorse expressed by the applicant. The failure to use the letter does not suggest that the proceedings in any way went awry. I do not regard this complaint as significant.

21 So far as the applicant’s personal history is concerned, it is sufficient to summarise the sentencing judge’s remarks in this regard. Her Honour noted that the applicant was born in Australia of parents who emigrated from Turkey, that he reported having a good relationship with his mother and sister although it seemed that his father abused alcohol and was violent towards the applicant and his mother, obliging his mother to take out an apprehended violence order which his father frequently breached. The applicant was educated to year 10 at school and, having obtained his school certificate, worked in telecommunications, completing various certificates and further education courses associated with that work. He had worked as a sub-contractor in cable television installation. The applicant commenced smoking cannabis in his early teens and began to drink at about fifteen. At nineteen, he started using amphetamines and, as I have already mentioned, claimed that at the time of the commission of the offences he had been drinking, smoked large amounts of cannabis and taken Rivotril. Her Honour summarised Mr Smith’s opinion that the applicant had demonstrated features of a dependent personality when his girlfriend wanted to suspend their relationship while her mother was dying and increased his cannabis and alcohol consumption at this time. Mr Smith assessed the applicant as having high levels of personal skills for work and social life despite this emotional dependence. She noted Mr Smith’s view that the applicant needed counselling for what Mr Smith described as “depressiveness”. Her Honour referred to Mr Smith’s view that the applicant had the “insights to live a positive and productive lifestyle”.

22 It seems to me that the sentencing judge dealt with the subjective material adequately in the circumstances, although Mr Ramage submitted that her Honour’s scepticism about the extent of the applicant’s remorse was unjustified. In my view Her Honour’s opinion was entirely reasonable.

Other complaints

23 Mr Ramage QC submitted that the sentencing judge failed to take into account the physical and mental condition of the applicant as demonstrated by his claimed intoxication. It was submitted that this is a case in which that intoxication should mitigate the offence because the applicant was induced thereby to act out of character. In light of the applicant’s previous history, there is no basis for the submission that he acted out of character and, indeed, the gravamen of the very detailed report by Mr Smith is contrary to the contention. Her Honour noted the intoxication, as I have already mentioned, but as it could not, in the circumstances, be a significant mitigating factor, it seems to me that no more was required. There is no basis for thinking, at all events, that the sentencing judge did not consider the possible significance of intoxication on the question of culpability.

24 In written submissions it was contended that the sentencing judge erred in her estimation of the criminality involved. This argument was advanced by reference to strong remarks made by her Honour during submissions by Mr Wetmore on sentence. Her Honour’s remarks were in my view an apt response to counsel’s submission, which sought to minimise the criminality of the sexual assaults by contending that because they were not of themselves associated with physical injury, the offences were less serious.

Manifest excess

25 Overall, Mr Ramage QC submitted that the sentence imposed was unduly harsh, relying generally on the matters which I have already discussed together with statistics prepared by the Judicial Commission. Mr Ramage concedes that the total sentence was within the range demonstrated in these statistics but submits that, taking into account all the circumstances, the overall head sentence and non-parole period was too severe. I do not accept this submission. In my view, the conclusions drawn by the sentencing judge as to the particular relevant sentencing considerations were correct and that, overall, her Honour’s conclusion as to the appropriate sentences to impose was well within her discretion.

Conclusion

26 I propose that leave to appeal should be granted but the appeal be dismissed.

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