Ollis v R

[2011] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ollis v R [2011] NSWCCA 155

Hearing dates:

25 May 2011

Decision date:

14 July 2011

Before:

Macfarlan JA at [1]
Johnson J at [51]
Garling J at [118]

Decision:

(1) Grant leave to appeal against convictions.

(2) Dismiss appeal against convictions.

(3) Grant leave to appeal with respect to sentence.

(4) The sentence on the first count, being a fixed term of imprisonment for 12 months, is varied to commence on 11 December 2013 and to expire on 10 December 2014.

(5) The earliest date upon which the Appellant will be eligible for release on parole is 11 December 2014.

Catchwords:

CRIMINAL LAW - conviction appeal - whether verdict unreasonable or cannot be supported having regard to the evidence - alleged inconsistencies in complainant's evidence and contradictions between complainant's evidence and other evidence - whether opinion of trial judge and Crown prosecutor that Prasad direction should be given assisted appellant on appeal

CRIMINAL LAW - sentence appeal - failure to make findings as to objective seriousness of offences - failure to give reasons for setting a non-parole period that caused statutory ratio to be exceeded

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:

Ali v R [2010] NSWCCA 35
Briggs v R [2010] NSWCCA 250
Clarke v R [2009] NSWCCA 49
Corby v R [2010] NSWCCA 146
HJWG v R [2011] NSWCCA 50
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mohamed v R [2008] NSWCCA 45
Perrin v R [2006] NSWCCA 64
R v Dunn [2004] NSWCCA 346
R v McEvoy [2010] NSWCCA 110
R v Prasad (1979) 23 SASR 161
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Russell v R [2010] NSWCCA 248
SKA v The Queen [2011] HCA 13

Category:

Principal judgment

Parties:

Scott John Ollis (Appellant)
Regina (Respondent)

Representation:

Counsel:
G Jauncey (Appellant)
S Dowling (Respondent)
Solicitors:
Jack Rigg Solicitors (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s):

CCA 2008/15140

 Decision under appeal 

Citation:

R v Scott John Ollis

Before:

McLauchlan ADCJ and a jury of 12

File Number(s):

DC 2008/15140

Judgment

1. MACFARLAN JA : On 31 March 2009, at the conclusion of a trial in the District Court before McLauchlan ADCJ and a jury of 12, Scott John Ollis ("the appellant") was convicted upon the following charges to which he had pleaded not guilty:

"1. On 4 September 2005, at SYDNEY in the State of New South Wales, [the Appellant] detained [the Complainant], without her consent and with intent to obtain an advantage, namely, to have sexual intercourse with [the Complainant].

2. On 4 September 2005, at SYDNEY, in the State of New South Wales, [the Appellant] did have sexual intercourse with [the Complainant], without the consent of [the Complainant] and knowing she was not consenting.

3. On 4 September 2005, at SYDNEY, in the State of New South Wales, [the Appellant] did have sexual intercourse with [the Complainant], without the consent of [the Complainant] and knowing she was not consenting.

4. On 4 September 2005, at SYDNEY, in the State of New South Wales, [the Appellant] did have sexual intercourse with [the Complainant], without the consent of [the Complainant] and knowing she was not consenting".

1. On 25 February 2010 the trial judge imposed the following sentences upon the appellant:

"Count 1: Fixed term of imprisonment of 12 months to commence on 11 June 2014 and expire on 10 June 2015.

Counts 2&3: On each count imprisonment for 5 years to commence on 11 December 2009 and expire on 10 December 2014 with a non-parole period of 4 years to expire on 10 December 2013.

Count 4: Imprisonment for 6 years to commence on 11 December 2009 and expire on 10 December 2015 with a non-parole period of 5 years to expire on 10 December 2014".

1. The appellant appealed against his convictions upon the ground that they are "not supported by the evidence". This ground invokes the power conferred upon this Court by s 6(1) Criminal Appeal Act 1912 to allow an appeal if the Court "is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence".

1. In SKA v The Queen [2011] HCA 13, French CJ, Gummow and Keifel JJ described the principles to be applied in determining an appeal on this ground as follows:

"11. It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen ([1994] HCA 63; (1994) 181 CLR 487 at 493) by Mason CJ, Deane, Dawson and Toohey JJ:

'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.

12. This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen ([2002] HCA 53; (2002) 213 CLR 606 at 623-624) McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'.

13. The starting point in the application of s 6(1 ) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses ( M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ). However, the joint judgment in M went on to say [at 494].

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred'.

...

14. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA , the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality' ( Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ). In M , Mason CJ, Deane, Dawson and Toohey JJ stated [at 492-493]:

'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'".

1. Later in the joint judgment of French CJ, Gummow and Kieffel JJ, their Honours referred to the "central question" for the Court of Criminal Appeal as being "whether on the evidence the Court was satisfied that the applicant was guilty of the offences" (at [20]).

THE COMPLAINANT'S EVIDENCE

1. On 4 September 2005 the complainant was a 17 year old student from Japan who had been in Australia for about 20 weeks. During this period she had been studying to improve her limited command of English before commencing attendance at a high school in Bathurst. On the morning of 4 September 2005 she travelled by train from Woy Woy to Central Station, to catch a train to Bathurst to start her attendance at the school. Whilst at Central Station she was approached by the appellant, who was then aged 28 and whom she had not previously met. She accepted the appellant's offer to help her with her luggage, which included a large suitcase, a guitar, a backpack and a handbag. They talked as they walked towards the platform and the appellant helped the complainant to put her luggage on the train. Whilst waiting for the train to leave they sat on a bench on the platform and talked further. The appellant indicated to her that he had been to Japan and that he was able to speak some Japanese. The complainant gave evidence that she asked for the appellant's mobile phone number at this time "because he is being nice to me" (Transcript p 19).

1. The complainant said that whilst she was talking with the appellant on the railway platform the appellant said, in Japanese, words to the effect of "I want to lick your pussy". She responded with the words "[n]o kidding" by which she meant "don't be silly". When the appellant repeated his request a number of times, the complainant said "No". The complainant deposed that the appellant said that "he was being nice to me and he helped me so I have to - why I can't do what he want" (p 21), to which the complainant said she replied "[t]his is different, it is different".

1. The complainant then stood up and walked towards the train. The appellant followed her and, once they were on the train, stood blocking the door into the carriage compartment where the complainant's luggage had been placed. The complainant deposed that "he said to me 'Go into the toilet because he wants to speak with me in the toilet'" (p 25). The complainant said "No" and did not move. The appellant then said "if I don't listen to him he will take my luggage out from the train and then he will take the luggage to where we meet at first".

1. The complainant said that "I just wanted to escape from that situation but I couldn't find anyone near me. There was no one at all looking at us or listening to us. ... And then he pulled my jumper which red and black striped jumper and then he forced me to get into the toilet". She said that he dragged her into the toilet and she said "something similar to no but I just can't remember exactly". The appellant came into the toilet also, and shut and locked the door.

1. The complainant said that the appellant then committed various types of sexual assault being cunnilingus (Count 2), fellatio (Count 3) and penile/vaginal intercourse (Count 4). At one stage the complainant tried to unlock the door but said that the appellant told her not to and that, as she was scared, she stopped trying. The detention of the complainant in the toilet was the subject of Count 1 of the charges against the appellant.

1. After a period of "about 20 to 30 minutes" the appellant allowed the complainant to leave the toilet. The train had commenced to move whilst they were in the toilet. The complainant went to the seat for which she had a ticket and the appellant came and sat in the aisle seat next to her. The complainant said that she had commenced to cry in the toilet and was still doing so. A conductor came to check their tickets.

1. After some time the train stopped and the appellant left, saying "I'll call you later". Soon after this occurred the conductor came by again and on seeing the complainant crying asked her whether something was wrong. She said that there was and, in a carriage away from the other passengers, she told him that she had been raped. After arriving at the school she told a Japanese assistant teacher that she had been raped and then said the same to the School Principal, to whom she was taken by the assistant teacher. The complainant was then taken to Bathurst Hospital where she was examined by a doctor.

1. Counsel for the appellant cross-examined the complainant at considerable length. He did not suggest to the complainant that the sexual activity did not occur. Rather, he put to her that she had consented to it.

OTHER EVIDENCE AT THE TRIAL

1. Mr Powell, the train conductor to whom the complainant referred in her evidence, was called to give evidence. He recalled seeing the complainant and the appellant at the platform on Central Station and again on the train when he asked for their tickets. His observation of the complainant on the latter occasion was that "[s]he was very quiet" (p 149).

1. Mr Powell said that he saw the complainant and the appellant again later and noticed that the complainant was crying. He asked her if she was "okay". He said that "[s]he didn't really reply anything she just kept her head down and kept on crying" (p 151). Later again he saw the complainant sitting on her own. He deposed that:

"I asked her if she was okay again she didn't say anything. I asked her if the gentleman was still on board with her. She shook her head. At that stage I was very worried about her. She seemed like she was - I felt like she was like scared or she had something really bothering her so I asked her to stand up and walk with me to the next carriage. I took her bags for her" (p 152).

1. When they reached the next carriage, the complainant told Mr Powell that she had been raped.

1. Statements of the School Principal and a student at the school to which the complainant was travelling were read at the trial. Both described complaints of rape by the complainant after her arrival at the school.

1. The only other evidence of present significance was a handwritten statement of Dr Michael Thompson that was tendered. Dr Thompson examined the complainant at about 5.45 pm on 4 September 2005. His report included the following in his account of what the complainant said to him:

"A man in Sydney (unknown to her) helped her to carry her gear to the train. The train was still stationary he said, 'I've helped you so you must help me'. She said no. He told [the complainant] he had a very powerful position in Government and that if she did not have sex with him his father would make her go back to Japan. Then he said 'no you cannot make this decision - he told her then he just wanted to talk to her ... ".

1. In addition to the sexual assaults of which the complainant gave evidence, Dr Thompson recorded that the complainant told him that the appellant had "digitally penetrated her anus".

1. The appellant did not call any evidence.

THE APPELLANT'S SUBMISSIONS

1. In his Written Submissions counsel for the appellant contended that the Crown's case was "deeply flawed" because the complainant's evidence, upon which the Crown relied "almost exclusively" was "seriously undermined" by what he said were inconsistent versions of events given by the complainant and contradictions between her evidence and other evidence at the trial.

1. He submitted further as follows:

"Particular heed was had to the issue of the demeanour of the witness. It is submitted that it is evident from the transcript that the [complainant] was prevaricating in answering questions, that she sought to be evasive and failed to respond to questions in an appropriate way. It is further submitted that this cannot be explained merely by reference to the fact that English was her second language, there is the evidence of at least one witness that she spoke [quite] good English and that there is nothing to suggest she required an interpreter when speaking to police or the doctor at Bathurst hospital. Further, a great deal of her evidence was given in English without the assistance of an interpreter.

Further, the transcript evidence is supported by observations and concessions of the Crown and the trial judge.

When one takes this weakened evidence and combines with the evidence of the actions of the [appellant] on the day - providing her with his phone number, remaining on the train until Katoomba, giving her his passport, and later telephoning her later that evening - and take into further consideration that even on the basis of the evidence of the complainant that her only response to the crudery of the accused was "You're kidding" or "This is different" and that there is no evidence of any violence or any threats of physical violence, coupled with the lack of any violence, that this is clearly a case where a reasonably jury ought to have had a reasonable doubt".

THE COMPLAINANT'S EVIDENCE - ALLEGED INCONSISTENCIES

1. Counsel for the appellant submitted that the inconsistencies in the complainant's version of events included both internal inconsistencies and inconsistencies between the complainant's evidence and other evidence. The primary areas in which the complainant's evidence was asserted to be inconsistent are dealt with below.

Inconsistencies with CCTV evidence

1. Counsel for the appellant referred in his written submissions to the complainant's evidence that the appellant had followed her back to the train, and submitted that this evidence was inconsistent with the CCTV evidence of the complainant and the appellant on the platform, which "clearly showed that [they] walked together to the train". This was a minor point as walking with someone could well be regarded as following them, depending on the circumstances.

1. In both oral and written submissions counsel for the appellant said that the complainant gave evidence that whilst she was on the platform with the appellant there was "nobody else around" and that this was also inconsistent with CCTV evidence. Although requested by the Court to do so, counsel did not give a reference to the point where he alleges that the complainant gave that evidence. As best I can determine he appears to have in fact had in mind the complainant's evidence that when the appellant "cornered" her after they got on the train that there was "no-one around" (p 56). While there was CCTV evidence played to the complainant in cross-examination that depicted a number of people getting on the train at roughly the same time as the appellant and complainant, there was no CCTV evidence of the location of those passengers once inside the train to contradict the complainant's evidence that there was no-one around when the appellant "cornered" her.

Whether people were around after the complainant left the toilet

1. Counsel for the appellant submitted that the complainant had given evidence that there was no-one around after she left the toilet but that other evidence indicated that not to have been the case. He said that the passenger manifest in evidence, and the evidence of Mr Powell, indicated that there were over 20 people in the carriage at the relevant time. The manifest however also indicated that there were some 68 seats in the carriage. There was not necessarily any inconsistency between that evidence and the complainant's evidence in circumstances where there was no evidence as to how the people were distributed in what was clearly a carriage of substantial size.

1. Furthermore, the complainant did not adamantly assert that there was no-one around. She was willing to concede that there were a number of people in the carriage, but said that she would not in any event have complained to them "because [she] was too scared because [the appellant] was beside [her]". In any event, the complainant's explanation for any inability on her part to accurately recall the number of passengers in the carriage was a reasonable one, namely that "she was too upset and... couldn't notice any of it". The trauma that the complainant alleges that she had just experienced was hardly conducive to accurate recollection.

When the appellant left the train

1. Counsel for the appellant submitted that the complainant said that the appellant left the train at the "first stop" when objective evidence showed that he did not do so until a number of stops had passed. However some of the stops may have occurred whilst the complainant and the appellant were in the toilet. In any event any deficiency of recollection of the complainant in this regard is of no significance bearing in mind the trauma that she had allegedly experienced.

Phone calls made by the complainant

1. Counsel for the appellant submitted that the telephone records in evidence showed that the complainant made a number of mobile phone calls after the sexual assaults had occurred and whilst the appellant was sitting next to her on the train. In contrast, the complainant's evidence was that she made the calls after the appellant got off the train.

1. The complainant gave her evidence in March 2009, that is, some three and a half years after the events in question. That lapse of time and the trauma that the complainant had allegedly experienced rendered insignificant any deficiency in the complainant's evidence in this respect. A conclusion that, contrary to her recollection, the complainant made the phone calls whilst the appellant was present would not raise any serious concerns about the veracity of the complainant's evidence as a whole because, as the Crown suggested on the appeal, the complainant may well have seen her mobile phone as a "great ally" in a situation where she had no choice but to remain in the company of the appellant.

The Doctor's statement

1. Counsel for the appellant alleged that two major inconsistencies in the complainant's evidence arose out of the report of Dr Thompson.

1. The first concerned the complainant's reason for going into the toilet with the appellant. The complainant gave evidence that the appellant dragged her into the toilet (Transcript pp 25-26), that he threatened that he would take her luggage off the train (pp 25 and 74) and that the "biggest reason" that she went into the toilet with the appellant was that she was scared of him (p 75). As the appellant's counsel pointed out, she did not give in her evidence, as one of the reasons, the reason recorded by the doctor, which was that the appellant said that "he had a very powerful position in government and that if she did not have sex with him his father would make her go back to Japan".

1. The second inconsistency related to Dr Thompson's reference in his report to the appellant having "digitally penetrated her anus", which was an allegation that the complainant did not make to the police or in her evidence in chief.

1. These are matters of more significance than the other matters to which counsel referred. However for a number of reasons I do not consider that these discrepancies seriously undermined the complainant's evidence.

1. First, the complainant's evidence at the trial was given three and a half years after the events in question. Deficiencies in recollection after such a period are to be expected. Secondly, the appellant's point relates to what occurred in the course of an event that, on the complainant's evidence, was highly traumatic. There were at the time obviously a number of statements being made by the appellant and physical contact involving him dragging the complainant into the toilet was occurring. It is not surprising that her recollection about that incident might be deficient and might vary at different times. Thirdly, it is not a point that suggests any dishonesty in the complainant's evidence. At most it points to a deficiency in her recollection. It does not in any way affect the consistently maintained import of her evidence that the sexual intercourse occurred without her consent. Fourthly, the complainant spoke to Dr Thompson on the day of the alleged sexual assaults in the context of a criminal investigation. It is entirely possible that the complainant believed that anything she had said to the doctor (to whom she spoke prior to giving her statement to the police) would be passed on to the police.

1. As pointed out by McClellan CJ at CL in Mohamed v R [2008] NSWCCA 45 at [18]:

"18 Merely because there are inconsistencies in the evidence of a witness it does not follow that it should be rejected either in whole or in part. There are many reasons why inconsistencies may emerge in an account of an event by a person who has been physically threatened and subject to inordinate stress at the time the events occur. See "Who is telling the truth? Psychology, common sense and the law." (2006) 80 ALJ 655; see also R v Tubou [2001] NSWCCA 243 at [38]".

1. To similar effect were the following comments that McHugh J made in M v The Queen [1994] HCA 63; (1994) 181 CLR 487. The force of his observations are not in my view affected by the fact that his Honour dissented as to the outcome of that appeal and that the majority took a different view to McHugh J concerning the significance of the particular inconsistencies evident in that case:

"It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment" (at 534).

1. In my view, whether taken individually or together, the alleged inconsistencies in the complainant's evidence and with other evidence did not cast doubt upon the veracity of her evidence that she had not consented to the sexual activity.

CONSIDERATION OF THE APPELLANT'S OTHER SUBMISSIONS

1. Contrary to the appellant's counsel's submission, the complainant was not, on my reading of the transcript of her evidence, guilty of prevarication or evasion such as to cast serious doubt on her evidence. The jury, which heard the complainant give evidence and was thus in a better position than this Court to consider such a submission, must ultimately have reached a similar conclusion.

1. In written submissions, counsel submitted that "[t]here is no evidence that [the complainant] expressed any dissent in relation to the earlier two acts of intercourse" (that is, the acts that were the subject of Counts 2 and 3). In respect of Count 4, counsel submitted that "when she said to the [appellant] to stop, he did stop". These submissions do not in my view take proper account of the complainant's evidence in chief. In respect of Count 2, the complainant deposed that the appellant said to the complainant when they were in the toilet "I want to lick your pussy again", to which she responded "No" (Transcript p 30). In respect of Count 3, her evidence (through an interpreter) included the following:

"Well he first grabbed my head or the knot possibly and bring - brought my head into his penis then. And he put his penis into my mouth. Well I didn't move myself so he made me move back and forwards" (p 33).

1. In respect of Count 4, the complainant's evidence was that "I was crying and I said nearly 'stop, stop' and like 'no' like those kind of things. I can't remember the exact words but similar to 'no' and 'stop'." When the Crown prosecutor asked the complainant whether the appellant stopped when she used words to that effect, the complainant responded "not at that stage".

1. Reference should also be made to the complainant's evidence of her initial rejections of the appellant's sexual advances (see [7] above) and of the appellant's use of force to drag her into the toilet (see [9] above).

1. Contrary to the appellant's counsel's submission that the complainant did not make her lack of consent plain, the complainant's evidence (assuming it is to be accepted) clearly showed that she did.

1. The "observations and concessions of the Crown and the trial judge" referred to in the appellant's submissions (see [22] above) were, in effect, the decision of the trial judge to give a Prasad direction (see R v Prasad (1979) 23 SASR 161) and the Crown's concession that such a direction was appropriate. In my view these matters are not of assistance to the appellant on this appeal. So far as this Court is concerned, its task is to make an independent assessment of the evidence. In SKA v The Queen the trial judge's opinion, expressed in his report of the trial, that the jury acting reasonably could not have been satisfied beyond reasonable doubt, was not regarded as impinging upon the Court of Criminal Appeal's task (see [115]). What occurred at the present trial fell well short of the opinion expressed by the trial judge in relation to that trial.

1. The effect of the Prasad direction was to put before the jury a number of areas of potential concern in relation to the complainant's evidence. It ensured that the jury was equipped to reach a well-informed view about the complainant's evidence. It does not assist the appellant in this appeal. If anything, it gives confidence in the jury's verdict.

1. In his submissions, counsel for the appellant referred (see [22] above) to evidence that the appellant provided his telephone number to the complainant, remained on the train for a period of time after the alleged sexual assaults, showed the complainant his passport and later telephoned her. I accept his submission that these are matters to be weighed in the balance, as I have done, in making an independent assessment of the evidence. However, these matters could not of themselves be regarded as compelling indications of the appellant's innocence.

INDEPENDENT ASSESSMENT OF EVIDENCE

1. As well as considering the particular points referred to above that were raised by the appellant's counsel, I have reviewed the whole of the evidence given at the trial and considered whether the evidence established the appellant's guilt beyond reasonable doubt. In my view it did. It follows that my view is that it was open to the jury to find that the Crown had proved its case in respect of each of the charges beyond reasonable doubt.

1. The complainant adhered, throughout the long and testing cross-examination of her, to her evidence as to her lack of consent to sexual intercourse. The circumstances in which the intercourse occurred did not of themselves suggest the likelihood of consent. Rather, they pointed in the opposite direction. The complainant was a young girl with limited command of English, in a foreign country, and on her way to start high school in Australia. The sexual intercourse commenced in a train toilet within an hour, or perhaps considerably less, of the complainant having met the appellant. The complainant complained to the train conductor that she had been raped as soon as the appellant left the train. The conductor observed the complainant to be greatly distressed at that time. The conductor had also observed that the complainant was crying prior to the appellant leaving the train. Independent witnesses gave evidence of further complaints by the complainant upon her arrival at the school. The fact that there may have been some inconsistencies within the complainant's evidence and between her evidence and the objective evidence is not surprising and did not engender any disquiet as to the veracity of her evidence as to her lack of consent to sexual intercourse.

ORDERS

1. As the appellant's appeal was not on a ground "that involves a question of law alone", he required leave to appeal ( Criminal Appeal Act 1912, s 5(1)). In my view that leave should be granted but, for the reasons I have given above, the appellant's appeal against his convictions should be dismissed.

1. I agree with the judgment of Johnson J in relation to the appellant's application for leave to appeal, and appeal, against the severity of the sentences imposed upon him.

1. JOHNSON J : For the reasons given by Macfarlan JA, I agree that leave to appeal against conviction ought be granted, but that the appeal should be dismissed.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

1. I turn to consider the Appellant's application for leave to appeal against sentence.

1. The facts are set out in the judgment of Macfarlan JA.

1. Following conviction by the jury, the Appellant was sentenced on 25 February 2010 to the following terms of imprisonment:

(a) Count 1 - detain for advantage contrary to s.86(1)(b) Crimes Act 1900 (maximum penalty 14 years' imprisonment) - fixed term of imprisonment for 12 months to commence on 11 June 2014 and expire on 10 June 2015;

(b) Count 2 - sexual intercourse without consent contrary to s.61I Crimes Act 1900 (maximum penalty 14 years' imprisonment; standard non-parole period seven years) - non-parole period of four years commencing on 11 December 2009 and expiring on 10 December 2013, with a balance of term of one year commencing on 11 December 2013 and expiring on 10 December 2014;

(c) Count 3 - sexual intercourse without consent under s.61I Crimes Act 1900 - non-parole period of four years commencing on 11 December 2009 and expiring on 10 December 2013, with a balance of term of one year commencing on 11 December 2013 and expiring on 10 December 2014;

(d) Count 4 - sexual intercourse without consent under s.61I Crimes Act 1900 - non parole period of five years commencing on 11 December 2009 and expiring on 10 December 2014, with a balance of term of one year commencing on 11 December 2014 and expiring on 10 December 2015.

1. The total effective sentence comprised a non-parole period of five years and six months commencing on 11 December 2009 and expiring on 10 June 2015, with a balance of term of six months commencing on 11 June 2015 and expiring on 10 December 2015.

THE APPELLANT'S SUBJECTIVE CIRCUMSTANCES

1. The Appellant was 28 years' old at the time of the offences and 32 years' old at the time of sentence.

1. The Appellant's criminal history recorded low-range PCA offences in 2000 and 2001, and offences of driving whilst suspended (2000), driving whilst disqualified (2001) and driving whilst licence cancelled (2001). For the 2000 offences, he was fined and disqualified. For the 2001 offences, the Appellant was ordered to perform community service and was further disqualified from driving.

1. His Honour approached sentence on the basis that the Appellant had no relevant prior criminal history.

1. Before the District Court on sentence were a presentence report dated 10 August 2009, a psychological report dated 25 June 2009 prepared by Forensic Psychological Services with the Department of Corrective Services and a report of Rima Nasr, psychologist, dated 10 December 2009.

1. The Appellant suffers from epilepsy for which he has been treated for some years. He has no history of psychiatric disorder.

1. The Appellant left school prior to completing Year 12. After working initially in a family business, he travelled overseas and worked as an English teacher in Asia and also performed restaurant and bar work. He asserted that he had also worked in commodity training. Ms Nasr observed that the Appellant "impressed as a superficial individual socially, whose responses often related to social image and financial subject matter" .

GROUNDS OF APPEAL ON SENTENCE

1. The Appellant relied upon the following grounds of appeal with respect to sentence:

(a) Ground 1 - his Honour erred in failing to make a finding as to the objective seriousness of the offence in respect of Counts 2, 3 and 4;

(b) Ground 2 - his Honour failed to give reasons for declining to set a non-parole period in respect of Count 1;

(c) Ground 3 - his Honour erred in finding that there was an aggravating factor in terms of s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999 that the "injury, emotional harm, loss or damage caused by the offence was substantial ..." ;

(d) Ground 4 - his Honour erred in finding as an aggravating feature that the victim was a vulnerable person;

(e) Ground 5 - the sentences were manifestly excessive.

1. At the hearing of the appeal, the Appellant was granted leave to rely upon the following additional ground concerning sentence:

Ground 6 - that his Honour erred in setting a measure of accumulation and concurrency such that the non-parole period exceeded 75% of the total head sentence.

GROUND 1 - FAILURE TO MAKE FINDINGS AS TO OBJECTIVE SERIOUSNESS OF OFFENCES CARRYING STANDARD NON-PAROLE PERIODS

1. The second, third and fourth counts on the indictment each alleged an offence of having sexual intercourse with the victim without her consent, knowing that she was not consenting, contrary to s.61I Crimes Act 1900 . The maximum penalty for each offence was imprisonment for 14 years, with a standard non-parole period of seven years.

1. The second count related to the act of penetration in the form of cunnilingus, the third count involved penetration in the form of fellatio and the fourth count, penetration by way of penile/vaginal sexual intercourse. Each of the offences was committed in the course of the sustained sexual assault by the Appellant upon the victim in the toilet of the train.

1. Following conviction, the Crown submitted on sentence in the District Court that each of the s.61I offences were at, or just below, the middle of the range of objective seriousness (AB398-399). Defence counsel in the District Court submitted that the offences did not lie in the middle of the range of objective seriousness, as there was not "some sort of gross physical force, trauma, punching, slapping or threat with a weapon etc" nor any "apparent gratuitous violence or violence of any form" (AB403-404). A little earlier, defence counsel had submitted (by reference to the victim impact statement) that, although there was emotional trauma, there was "no physical harm as a result of violence threat, there's no bruising there's no punching bashing any of the indicia which are common in matters like this" (AB403).

1. In passing sentence, his Honour made no finding concerning the level of objective seriousness of each of these three crimes. As the Appellant had been convicted after trial, the standard non-parole period required direct consideration and not merely as a guidepost to be used on sentence following a plea: R v Way [2004] NSWCCA 131; 60 NSWLR 168.

1. His Honour observed (AB53) that the offence involving penile/vaginal intercourse was "more serious involving, as it does, a more serious and degrading violation of the body and person of the victim" . His Honour adverted to the maximum penalties and stated correctly the standard non-parole period applicable to the second, third and fourth counts.

1. His Honour observed that the "standard non parole period represents the non parole period for an offence in the middle range of objective seriousness, and the court is required to set the standard non parole period as the non parole period in the case before it, unless it determines that there are reasons for setting a longer or shorter non parole period" with those reasons emanating from s.21A Crimes (Sentencing Procedure) Act 1999 (AB53). His Honour then referred to potential aggravating and mitigating factors in s.21A, before stating (AB55):

"Weighing the aggravating and mitigating factors, I consider there is sufficient reason to depart from the standard non parole period in counts 2, 3 and 4. The matter to which I have particular regard in that respect is the matter last mentioned [his Honour accepted that the Appellant had 'a disability which prevented him from being fully aware of the consequences of his actions']. The standard non parole period nevertheless remains relevant in setting a non parole period for these offences."

1. It may be inferred from this that his Honour was placing these three offences at, or close to, the middle of the range of objective seriousness. However, there was no express finding to this effect. I am satisfied that his Honour's failure to make such an assessment constitutes an error of process: R v McEvoy [2010] NSWCCA 110 at [89]; Corby v R [2010] NSWCCA 146 at [49].

1. That said, his Honour proceeded to fix a non-parole period of five years with respect to Count 4, the offence involving penile/vaginal intercourse, and entirely concurrent non-parole periods of four years with respect to Counts 2 and 3, which involved cunnilingus and fellatio respectively.

1. As Simpson J observed in R v McEvoy at [89], an omission to make a finding concerning the position of an offence on the range of objective seriousness is an error of process, and it does not necessarily follow that the sentence imposed was erroneous. Even if such an error of process has occurred, a sentence may well lie within the range of the sound exercise of sentencing discretion: Corby v R at [50].

1. An error of process such as occurred here does not take this Court directly into the realm of resentencing the Appellant: HJWG v R [2011] NSWCCA 50 at [15].

1. The submissions of Mr Jauncey, counsel for the Appellant, in support of this and other grounds of appeal, repeated and sought to emphasise the submissions made by defence counsel at first instance, relying upon the suggested absence of non-sexual violence.

1. In Ali v R [2010] NSWCCA 35, with the concurrence of McClellan CJ at CL and RS Hulme J, I said at [37]-[38]:

"37 A significant part of the Applicant's argument related to the absence of non-sexual violence. It is not correct that substantial non-sexual violence is required before a s.61I offence moves above the middle of the range of objective seriousness. The victim was highly vulnerable given her intoxicated state and the Applicant took full advantage of it. He did not need to resort to threats or acts of violence to give effect to his criminal intent.

38 If, of course, the Applicant had intentionally or recklessly inflicted actual bodily harm to the victim at the time of, or immediately before or after, the commission of an offence of sexual intercourse without consent, or had threatened to inflict actual bodily harm by means of an offensive weapon or instrument, he would be liable for the offence of aggravated sexual assault under s.61J Crimes Act 1900, an offence punishable by imprisonment for 20 years and carrying a standard non-parole period of 10 years. The type of injury required to constitute actual bodily harm lies at a low threshold: McIntyre v R [2009] NSWCCA 305 at [44]. It would be wrong, in passing sentence for a s.61I offence, to have regard to the absence of a feature which, if it were present, would constitute a different and more serious offence under s.61J Crimes Act 1900: cf R v Burton [2008] NSWCCA 128 at [90]."

1. The observations in Ali v R at [38] are pertinent to this case. Further, unlike Ali v R , the present Appellant did resort to threats and the use of some degree of physical force which placed the victim in fear, and finally drew her physically into the toilet cubicle in the train. The offences contained in the second, third and fourth counts are offences of sexual violence. These were serious offences of this type, involving three different forms of penetration committed against a 17-year old girl whom the Appellant had only recently met. It is fair to observe that the Appellant had befriended the complainant, and then betrayed the friendship in a manner involving significant criminality on his part.

1. It was open to the sentencing Court to find that these offences lay at, or close to, the middle of the range of objective seriousness for offences of this type.

1. The non-parole periods of four years for the second and third counts were entirely concurrent and subsumed within the concurrent non-parole period of five years on the fourth count. Bearing in mind the applicable standard non-parole period of seven years, this approach to sentence was not unfavourable to the Appellant.

1. Although the sentencing Judge's findings may not have reached the point required by law, it has not been demonstrated that the non-parole periods imposed with respect to each of these offences discloses error.

GROUND 2 - FAILURE TO GIVE REASONS FOR DECLINING TO SET A NON-PAROLE PERIOD ON THE FIRST COUNT

1. The sentencing Judge imposed a fixed term of imprisonment for 12 months with respect to the first count, an offence of detain for advantage under s.86(1)(b) Crimes Act 1900 punishable by a maximum term of 14 years' imprisonment. There is no standard non-parole period for this offence.

1. With respect to this offence, his Honour said (AB53):

"The offence of detaining with an intent to obtain an advantage is generically different and in terms of the total criminal conduct of the offender was much less serious than the other offences. I think it should attract a term of imprisonment of 12 months."

1. His Honour imposed a fixed sentence of 12 months' imprisonment for this offence, without explaining why that course was being taken. As is apparent from the orders made, it is clear that his Honour took the view that an effective measure of six months' accumulation ought apply by reference to the first count.

1. Section 45(1) Crimes (Sentencing Procedure) Act 1999 provides considerable latitude for a sentencing Judge to decline to set a non-parole period, including (under s.45(1)(c)) "for any other reason that the court considers sufficient" . Section 45(2) provides that, if a Court declines to set a non-parole period for a sentence of imprisonment, it must make a record of its reasons for doing so. However, the failure of a court to comply with the requirements of s.45(2) does not invalidate the sentence: s.45(4).

1. A recognised circumstance where a court may decline to set a non-parole period is where an offender is being sentenced for multiple offences and some accumulation is appropriate. In these circumstances, fixed terms of imprisonment may be utilised because, if a sentence containing a non-parole period and a parole period was set for each offence, the parole terms of some sentences may be subsumed in the non-parole period or fixed term of other longer sentences: R v Dunn [2004] NSWCCA 346 at [161]. Although not stated in the remarks on sentence, it seems clear enough that this was the reason for his Honour utilising a fixed-term sentence in this case.

1. I am not persuaded that the course taken by his Honour, without expressing reasons as required by the statute, discloses error in the resulting sentence.

GROUND 3 - SUGGESTED ERROR IN USE OF VICTIM IMPACT STATEMENT

1. In the course of the sentencing proceedings, a victim impact statement was tendered by the Crown, without objection from counsel for the Appellant (AB392). The victim impact statement, written by the complainant on 13 May 2009, was in the following terms (AB119):

"After the incident, I was suffering on depression and panic disorder and have seen a counsellor and a psychiatrist for lest [sic] of my high school life which was 2 years.

I was cutting my wrist so many times due to the depression and I tried to suicide because I felt my life went wrong.

I have been scared to go to the toilet on train and I still cannot go even more than 3 years has past.

It is so hard for me now to believe any males and I still am suffering of depression and panic disorder. And also I am too scared of sexual intercourse so that I sometime have problem with my boyfriend and I am not sure if I am able to have a child.

The incident happened to me on 2005 gave me lots of suffering and I never be able to forgive the man who gave me such a stress and scared my heart. It affected my life a lot."

1. The sentencing Judge set out the victim impact statement in its entirety in his remarks on sentence (AB49).

1. Defence counsel in the District Court made submissions by reference to the victim impact statement, contending (as mentioned earlier at [66]) that it recorded "some psychological issues which are natural sequelae in this type of offence" (AB403).

1. In his remarks on sentence, the sentencing Judge referred to s.21A(2)(g), an aggravating factor where the "injury, emotional harm, loss or damage caused by the offence was substantial" and continued (AB54):

"This is a reference to emotional harm etc which exceeds what is to be expected from the nature of the offence. Significant harm is anticipated in offences of this kind and that is reflected to some extent in the provisions fixing a maximum penalty and a standard non-parole period. However there is in this case evidence in the form of a Victim Impact Statement that the victim suffers severe emotional harm going well beyond what might be reasonably anticipated and which is therefore an aggravating factor."

1. In this Court, Mr Jauncey submitted that the sentencing Judge should not have accepted uncritically the contents of the victim impact statement, given what were said to be concerns with respect to the credibility and reliability of the victim's evidence at trial. He submitted that the District Court should not have relied upon the victim impact statement without corroborative evidence concerning counselling or psychiatric treatment.

1. The victim impact statement was admitted without objection in the District Court. Further, the submissions made for the Appellant with respect to it did not include arguments of the type advanced to this Court. In particular, it was not contended that less weight ought be given to it because of the victim's evidence given at trial nor the absence of other evidence. In any event, the jury had clearly accepted the evidence of the victim, giving rise to the conviction of the Appellant on all counts.

1. In my view, it was open to the sentencing Judge to reach the conclusion which he did by reference to the victim impact statement. The contents of the victim impact statement go beyond what might be regarded as the type of harm expected from offences of this type.

1. Ground 3 ought be rejected.

GROUND 4 - SUGGESTED ERROR IN FINDING THAT VICTIM WAS VULNERABLE

1. In the course of the remarks on sentence, the sentencing Judge said (AB54):

"It is also an aggravating factor that the victim was vulnerable and subsection [21A](2)(l) gives examples of this. In this case the fact that the victim was of a foreign nationality, linguistically and culturally disadvantaged and relatively young, justifies the conclusion in my opinion that she was vulnerable in the situation which developed, although I would not regard this as a major factor."

1. Mr Jauncey submitted that, in the circumstances of this case, the finding of vulnerability was not open to the sentencing Judge. He pointed to the words of s.21A(2)(l) which provide for an aggravating factor of an offence if "... the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)" . He submitted that the complainant in this case was not "very young" and that there was no basis for concluding that she was vulnerable.

1. As the terms of s.21A(2)(e) make clear, the provision does not purport to be an exhaustive list of circumstances of vulnerability for the purpose of sentence: Perrin v R [2006] NSWCCA 64 at [35]. A combination of factors may operate, in a particular case, to render a victim vulnerable for the purposes of sentence. The fact that the complainant in this case was 17 years of age and not, in that sense, "very young" does not mean that she cannot be a vulnerable victim.

1. With respect, his Honour's analysis of the victim's vulnerability was both open and correct. She was a 17-year old girl from a foreign country who had come to Australia for the purpose of study. She was travelling alone on public transport. The Appellant, who could speak some Japanese, approached her in a manner which gave the appearance of friendship and assistance. Travelling on a public transport system in a foreign land, the adolescent victim no doubt felt somewhat at ease with the Appellant and trusted him. In this context, he sexually assaulted her. To my mind, the characterisation of the complainant as a vulnerable victim was entirely appropriate.

1. I would reject the fourth ground of appeal on sentence.

GROUNDS 5 AND 6 - CLAIM OF MANIFEST EXCESS AND OF ERROR IN SETTING A TOTAL EFFECTIVE NON-PAROLE PERIOD THAT EXCEEDED 75% OF THE TOTAL HEAD SENTENCE

Submissions

1. It is appropriate to consider these grounds of appeal together, although Ground 6 was only added, by leave of the Court, during the course of the hearing in light of the arguments advanced for the Appellant.

1. Mr Jauncey submitted that the sentences were manifestly excessive. With respect to Ground 6, he submitted that the sentencing Judge had fallen into error in imposing an effective sentence of mandatory imprisonment of five years and six months with a non-parole period of six months. He submitted that this did not comply with the requirements of s.44(2) Crimes (Sentencing Procedure) Act 1999 .

1. The Crown submitted that the sentences were not manifestly excessive and that the sentences imposed, in reality, operated favourably to the Appellant in that the balance of term was shorter than that which would have been appropriate in the circumstances of the case.

Decision

1. With respect to Ground 5, the question to be determined is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].

1. These were serious offences for which the Appellant was convicted by a jury. With respect to three offences, a standard non-parole period applied. The Appellant's subjective circumstances were taken into account by the sentencing Judge.

1. In my view, no error has been demonstrated in the non-parole periods imposed with respect to the second, third and fourth counts. The non-parole periods were entirely concurrent, with a longer non-parole period for the fourth count which was characterised as being of greater objective seriousness by the sentencing Judge.

1. It was open to the sentencing Judge to partially accumulate the sentence on the first count, that being an offence involving different criminality to the other counts, although related in time and context.

1. The sentences imposed in this case are, in one sense, unusual. Section 44(2) Crimes (Sentencing Procedure) Act 1999 provides that the Court is first required to set a non-parole period for the sentence, and that the balance of term of the sentence must not exceed one-third of a non-parole period for the sentence, unless the Court decides that there are special circumstances for it being more.

1. It does not appear that any submission was made to the sentencing Judge that a finding of "special circumstances" should, or should not, be made in this case.

1. The non-parole periods for the second and third counts represented 80% of the full term for each offence. The non-parole period for the fourth count represented 83% of the full term for that offence. His Honour did not refer at all to s.44(2) and the issue of "special circumstances" .

1. It has been said that there is no statutory requirement to give reasons where the statutory ratio is left unvaried at 75%: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 721 [86].

1. However, this Court has said that a sentencing Judge's silence as to the reason for increasing the proportion of the non-parole period relative to the full term above 75% may create an impression that the Judge has overlooked giving appropriate focus to the statutory ratio: Briggs v R [2010] NSWCCA 250. If the non-parole period exceeds the statutory relationship, some reasons should be provided to avoid an inference that there has been an error or oversight: Russell v R [2010] NSWCCA 248 at [41].

1. Indeed, in Briggs v R , this Court intervened when the Judge who sentenced the present Appellant approached sentence in the same way as in this case. Fullerton J (Hodgson JA and Price J agreeing) said at [34]:

"However, and despite the clarity of his Honour's sentencing remarks and his express finding that the non-parole period should be 8 years, his silence as to the reason for increasing the proportion of the minimum period in custody relative to the total term above 75 per cent leaves me with a sense of disquiet that he may have overlooked giving appropriate focus to the statutory ratio provided for in s 44 of the Crimes (Sentencing Procedure) Act. In the result, I am persuaded that error is demonstrated in this limited respect and that an adjustment to the non-parole period should be permitted."

I observe that his Honour sentenced the present Appellant on 25 February 2010, well before the judgment in Briggs v R was handed down on 5 November 2010.

1. Section 44 does not mandate a relationship between an overall non-parole period and the remainder of the overall sentence: Clarke v R [2009] NSWCCA 49 at [11]. Nevertheless, once a measure of six months' accumulation was applied on the first count, the effective non-parole period was one of five years and six months with a balance of term of six months. The aggregate non-parole period is approximately 92% of the aggregate total sentence.

1. Like the Court in Briggs v R at [34], I am left with a sense of disquiet that the sentencing Judge seems to have overlooked giving appropriate focus to s.44(2) in this case. I am persuaded that error is demonstrated in this limited respect, and that some adjustment to the effective non-parole period should be made. An effective reduction of six months ought be made.

1. There ought be a total effective non-parole period of five years with a balance of term of one year. This will see the aggregate non-parole period being 83% of the aggregate total sentence. I am satisfied that a total effective non-parole period of no less than five years is appropriate. This represents the minimum period which the Appellant ought spend in custody, having regard to all the elements of punishment including rehabilitation, specific and general deterrence, the objective seriousness of the offences and the Appellant's subjective circumstances: R v Simpson at 717 [59]. At the same time, provision for a 12-month parole period will allow a more realistic period of conditional liberty in the event that the Appellant is released to parole at the conclusion of the non-parole period.

1. I would uphold the sixth ground to the extent of reducing the total effective non-parole period by six months. This can be achieved by adjusting the commencement date of the fixed term of 12 months' imprisonment on the first count to 11 December 2013, to expire on 10 December 2014.

1. It has not been demonstrated that the sentences imposed upon the Appellant were manifestly excessive. I would reject the fifth ground of appeal.

CONCLUSION

1. I propose the following orders:

(a) grant leave to appeal with respect to sentence;

(b) the sentence on the first count, being a fixed term of imprisonment for 12 months, is varied to commence on 11 December 2013 and to expire on 10 December 2014;

(c) the earliest date upon which the Appellant will be eligible for release on parole is 11 December 2014.

1. GARLING J : I agree with Macfarlan JA and Johnson J.

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Decision last updated: 15 July 2011