Opacic v R

[2013] NSWCCA 294

Court of Criminal Appeal

New South Wales

Case Title:	Opacic v R
Medium Neutral Citation:	[2013] NSWCCA 294
Hearing Date(s):	14 November 2013
Decision Date:	26 November 2013
Before:	Macfarlan JA at [1] Latham J at [2] R A Hulme J at [3]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - aggravated impersonation of a police officer - indecent assault - offender coerced sex worker into his vehicle under pretence of being undercover officer - indecent assault committed in vehicle in isolated location - asserted failure by sentencing judge to adequately characterise the seriousness of the offences -seriousness dealt with succinctly after submissions on sentence and discussion - real question whether offences so serious as to impose full time custody - error not made out - asserted manifest excess - new aggravated impersonation of a police officer offence not assisted by statistical comparison - indecent assault serious - substantial concurrency of sentences - sentences not manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Police Act 1900 (NSW) Police Amendment (Miscellaneous) Act 2006 (NSW)
Cases Cited:	Belghar v R [2013] NSWCCA 245 BT v R [2012] NSWCCA 267 Corby v R [2010] NSWCCA 146 House v The King (1936) 55 CLR 499 Huntington v R [2007] NSWCCA 196 Jiang v R [2010] NSWCCA 277 Lipchin v R [2013] NSWCCA 77 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Hibberd [2009] NSWCCA 20 R v McEvoy [2010] NSWCCA 110 Speechley v R [2012] NSWCCA 130 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Robert Orlando Opacic (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: Mr M Johnston (Applicant) Ms S Herbert (Respondent)
- Solicitors:	Solicitors: Bannisters Lawyers and Attorneys Solicitor for Public Prosecutions
File Number(s):	2011/18732
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Solomon DCJ
- Date of Decision:	05 October 2012
- Court File Number(s):	2011/18732

JUDGMENT

1. MACFARLAN JA: I agree with R A Hulme J.

2. LATHAM J: I agree with R A Hulme J.

3. R A HULME J: Robert Orlando Opacic ("the applicant") applies for leave to appeal against sentences imposed upon him by his Honour Judge Solomon in the District Court at Sydney on 5 October 2012.

4. The applicant had pleaded guilty to two offences. One was aggravated impersonation of a police officer, contrary to s 546D(2) of the Crimes Act 1900 (NSW) for which there is prescribed a maximum penalty of imprisonment for 7 years. The offence is aggravated where the offender has an intention to deceive and purports to exercise the powers and functions of a police officer. The other offence was indecent assault which is contrary to s 61L of the Crimes Act and has prescribed for it a maximum penalty of imprisonment for 5 years.

5. For the impersonation of a police officer the judge imposed a sentence of 2 years 9 months with a non-parole period of 1 year 6 months and for the indecent assault there was a sentence of 2 years 6 months with a non-parole period of 1 year 3 months. The second sentence was accumulated by 6 months upon the first sentence so that the total effective sentence was one of 3 years with a minimum custodial component of 1 year 9 months commencing 4 October 2012. Parole release arises upon the expiration of the second non-parole period on 3 July 2014.

Facts

1. According to a statement of agreed facts, on the night of 21 December 2010 the victim, ND, was working as a prostitute in Bourke Street near the corner of William Street, Darlinghurst. She noticed a car that drove past her on about four occasions. Eventually it stopped and its driver, the applicant, negotiated a price for sex. He then drove away but returned. There was some further conversation about sex before the applicant said, "Honey, I'm a police officer, you're in quite a bit of trouble and I suggest you sit in the car for a chat". ND complied. She was too frightened to ask to see a badge or any police identification but believed that he was who he said he was. The applicant then told her he was going to issue a $500 on the spot fine and that she would also be taken to court and be given another fine of $1000.

2. ND had a Scottish accent. The applicant asked her what type of visa she had and she replied that it was a working holiday visa. He told her that her visa would probably be cancelled and she would be deported. She was shaking and was scared and said she did not want that.

3. The applicant asked ND for identification and she provided a Scottish provisional driver's licence. He questioned whether it was hers and said he would be really annoyed if she was lying to him.

4. The applicant then drove off, telling ND that he was taking her to the police station. She recognised that the car was driven through the Surry Hills area but after that she became lost. The conversation during the journey included the following:

   Applicant: Is there anything you would do so you won't be in trouble?

   ND: I don't understand.

   Applicant: Have a think. What would you do to make this go away?

   ND: I would do anything but I don't know what you are getting at.

   Applicant: What about if you give me favours, just me, whenever I want?

   ND: If I agree to that it will just get me into more trouble.

   Applicant: No, it will just be between us.

5. At the applicant's request there was an exchange of phone numbers. He then asked her, "Would I be able to use this number whenever I wanted so you would be at my beck and call when I want favours?" ND understood "favours" to be a reference to providing sexual services for no charge. She was non-committal in response and he replied, "Think about it and you can make all this go away".

6. A short time later the applicant stopped and parked the car. ND did not know where they were but later identified the place as Heffron Park in the eastern Sydney suburb of Hillsdale, about 10 kilometres from the point where the journey had begun. The car was parked in the car park for the Matraville Tennis, Squash and Indoor Cricket Centre.

7. ND was wearing a low cut vest and trousers. The applicant touched her right breast inside her clothing and asked, "Are you going to play along and make it easier for yourself"? She did not reply but started shaking. He said, "You need to calm down a bit and take a minute or we will go to the police station now".

8. The applicant then pulled his shorts and underwear down, exposing his penis. He grabbed ND's right hand and placed it on his erect penis. She pulled her hand away.

9. There was some further conversation, in the course of which the applicant said, "You are not going to cause any trouble for me are you?" He then touched her breast again, rubbed her leg, and moved her hand back to his penis, saying "Are you having a good time?"

10. At this point ND realised that her door was unlocked. She opened it, alighted and fled. Eventually she obtained a lift from a stranger back to the city.

11. ND reported the matter to police on 23 December 2010 after she had received advice from a friend and a counsellor. The subsequent investigation involved ND having telephone conversations with the applicant; the calls were initiated by her under police supervision and the conversations were recorded. The applicant continued with the pretence that he was a police officer. The conversations led to his arrest at a supposed meeting with ND on 13 January 2011.

12. In a recorded interview the applicant made admissions to having met with ND on the night of 21 December 2010 but claimed that he did so as a customer of a sex worker. He said that after they had driven to Heffron Park she became angry and left his car when he told her that he did not have the required amount of money to pay her. He denied impersonating a police officer.

Victim impact statement

1. ND provided a victim impact statement which she read. There was no objection to the judge taking the contents of the statement into account. It was lengthy, detailed and eloquent of the substantial emotional and psychological suffering ND had experienced as a result of the applicant's conduct. It is clear that recovery will be a slow process for her and only time will tell whether it will ever be complete.

Personal circumstances of the applicant

1. The applicant was born in 1979 and so was aged 31 at the time of the offences.

2. He had a criminal record with no entries of any real significance.

3. The judge said in his sentencing remarks that there were "significant subjective matters" to which he had regard. The first that he mentioned were the applicant's pleas of guilty shortly before his trial for which he allowed a reduction of sentence in the order of 10 per cent.

4. His Honour described the applicant's background as "indeed sad". He was brought up in a dysfunctional family. His father was physically and verbally aggressive towards the applicant and his mother. From an early age the applicant had problems with obesity; he suffered from anxiety and depression; and he was unable to form friendships at school or to participate in sporting events. In adult life he experienced problems in obtaining and maintaining employment.

5. His parents separated. His father took him to Queensland and ordered him not to speak with his mother. His father was subsequently gaoled and the applicant returned to New South Wales. His mother attempted suicide. He was living with his mother at the time of sentence.

6. The applicant was in part-time employment as a carer and in receipt of a carer's pension. The judge noted the hardship that would be occasioned to the recipient of this care, who was heavily dependent upon the applicant, by the applicant's incarceration.

7. The applicant was under the care of a psychiatrist and a psychologist in relation to his problems with severe depression and impulsivity, although the judge did not find that these conditions were causative of the offences. He did, however, allow for the fact that he would find his time in gaol more difficult because of his depression.

8. The applicant was undertaking a specialist sex offender program (he attended the first session on the morning of the sentencing hearing). He had indicated his remorse to a psychologist and an officer from the Probation and Parole Service and there were various testimonials attesting to the applicant's otherwise good character.

9. The judge found that the applicant had good prospects of rehabilitation and was unlikely to re-offend. Special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found that warranted a reduction of the minimal custodial proportion of the sentences. These were that the applicant required ongoing rehabilitation in the community; that he had no significant prior record; and that the sentences for the two offences would be partially accumulated.

Grounds of appeal

1. The sentencing judge erred by failing to characterise the seriousness of the offences

1. Counsel for the applicant in written submissions referred to the following passage of the sentencing remarks:

   The offences are serious offences. The seriousness of the offences is reflected in the maximum penalties contained in the Crimes Act 1900. All persons in this community must be protected by the courts and the sentences I impose today will have within them a significant degree of both individual and general deterrence.

2. It was submitted to have been erroneous for the judge not to "characterise the seriousness of the offences" or to make an assessment of their objective gravity. It was also noted that there were "no specific findings in relation to the presence of aggravating or mitigating factors under section 21A of the Crimes (Sentencing Procedure) Act or the common law. It was submitted, "In short, there was no formal attempt to analyse the seriousness of the offence other than by reference to the maximum penalties".

3. Reference was made to Zreika v R [2012] NSWCCA 44 at [46] and Speechley v R [2012] NSWCCA 130 at [83], both per Johnson J, as authority for the proposition that an assessment of the objective gravity of an offence is an important part of the sentencing function.

4. Counsel referred to competing submissions that were made in the District Court as to the objective gravity of the offences and complaint was made that the judge made no finding to resolve that contentious issue. Reiterating that there was a failure to make findings as to aggravating and mitigating factors in ss 21A(2) and (3) that were relevant to the case, counsel submitted that there was an error in the exercise of the sentencing discretion by virtue of a failure to take into account material considerations, citing House v The King (1936) 55 CLR 499.

5. All of this was said to have resulted in the judge placing too great an emphasis on personal and general deterrence, imposing sentences that exceeded the objective gravity of the offences and which were higher than were warranted at law.

6. These submissions were further developed during the hearing of the application. Reference was made to the judgment of Johnson J in Corby v R [2010] NSWCCA 146 where a similar ground of appeal was raised. It was submitted in that case that various issues had been raised by counsel for the applicant in the District Court that bore upon an assessment of the objective seriousness of the offences, but that these submissions were not referred to in the remarks on sentence, nor were any findings made by reference to them. The Crown accepted that this was so, but countered that the judge's assessment of the objective seriousness of the offences could be inferred from the sentences actually imposed.

7. Johnson J referred (at [49]) to authority for the proposition that, aside from any need for an assessment of the objective seriousness of offences for which a standard non-parole period was prescribed (this was pre-Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120), there was a common law duty to make an assessment of the objective seriousness of an offence.

8. But his Honour also referred (at [50]) to the judgment of Simpson J in R v McEvoy [2010] NSWCCA 110 at [89] where her Honour referred to an omission to make a finding concerning the position of an offence on the range of objective seriousness as "an error of process" not necessarily indicating that there was error in the imposition of the sentence. Such an error of process may occur but the sentence may lie nonetheless within the range of the sound exercise of sentencing discretion. His Honour also observed (at [51]) that there is a need for this Court in assessing remarks on sentence to place an emphasis upon substance rather than form. Ultimately, he concluded (at [55]) that the sentencing judge in that case had failed to comply with the requirements of the law to give reasons for sentence. In his reserved sentencing judgment, the judge had only made general statements concerning the class of offending, despite submissions that had been made concerning matters relevant to the assessment of the level of seriousness of the offences.

9. For the Crown it was submitted that the sentencing judge did characterise the seriousness of the offences in that he said, "The offences are serious offences". This was consistent with something he said during the submissions on sentence: "Yes, the offences are very serious offences". He had also observed during the course of the Crown's submissions that the impersonation offence was "sophisticated".

Determination of Ground 1

1. The can be no question that the objective seriousness of an offence is a fundamental consideration in the assessment of sentence. But the degree to which it is an issue that needs to be analysed, discussed and determined varies according to the circumstances of the case. In Belghar v R [2013] NSWCCA 245, this Court rejected a contention that a sentencing judge was required to express a conclusion as to where in the objective range the offending fell by reference to the maximum penalty for the offence. But, after referring to considerable authority on the subject, both before and after the decision in Muldrock, Gleeson JA concluded (at [60]) that "any sentencing decision calls for attention to be paid to the objective gravity of the offending" but "it is not necessary for the sentencing judge to have made a finding as to where precisely it lay in the spectrum of offending".

2. The submissions made to the sentencing judge by counsel then appearing for the applicant were primarily devoted to subjective matters in an attempt to persuade his Honour to impose something other than a full-time custodial sentence. The only submissions she made that were relevant to the objective seriousness of the offences were that there should be a finding that the applicant's actions were "impulsive" and that "the indecent assault was of brief moment".

3. The Crown Prosecutor made more elaborate and detailed submissions about matters bearing upon the seriousness of the offences. She presented a reasoned argument as to why the offences should not be found to be impulsive. She submitted that there was "a degree of menace involved" by virtue of the threats made by the applicant. The complainant was so disturbed and in such fear that she was shaking. An aspect that rendered the indecent assault more serious was that the applicant had taken the complainant to an isolated location; and it only ceased when she managed to flee. Accordingly, it was submitted that the objective seriousness of the offences, although not "high range or anything of that nature", was at such a level that nothing less than a full-time custodial sentence was warranted.

4. In response, counsel for the applicant submitted that the judge should not find that the impersonation offence was sophisticated, and, in the context of the complainant being a sex worker, should not conclude as the Crown had submitted that she had been "lured" into the applicant's car.

5. There was only one aspect of the applicant's subjective case that was the subject of any submission by the Crown Prosecutor. She did not dispute that he suffered from depression but contended that this should not operate to reduce the significance of general deterrence. Otherwise there was no dispute as to any of the favourable findings that were available to be made by his Honour concerning subjective circumstances.

6. The practical reality of the proceedings on sentence was that a single question was being posed for his Honour's determination. That was whether, despite the favourable subjective matters (pleas of guilty, lack of significant prior convictions, remorse, good prospects of rehabilitation, unlikelihood of re-offending, unfortunate circumstances of the applicant's upbringing, and his depression and impulsivity) the offences were at such a level of objective seriousness that only a full-time custodial sentence could be imposed. It is obvious that the judge answered that question in the affirmative.

7. It was submitted by counsel for the applicant that "the indecent assault was of brief moment". His Honour did not directly refer to this, but his recitation of the facts was an ample response. The gravity of that offence was not to be measured so much by the time that it took but by what the applicant actually did and the context in which he did it.

8. The other contentions raised by counsel for the applicant were answered by his Honour during submissions. There he expressed his view that the impersonation offence was "sophisticated", the antithesis of impulsive. He explained:

   [I]t was sophisticated in relation to the conversations that were held between himself and the victim, the manner of speaking, the knowledge that he had about the places where prostitutes were permitted to work and not permitted to work, the fact that he wasn't going to [s]how his name because he was acting undercover, the fact that he had an explanation as to why the car did not have a siren, that style of conversation was a sophisticated style of conversation. (POS 22.5)

1. His Honour expressly rejected the submission that the complainant was not "lured" into the applicant's car. (POS 23.18)

2. In the assessment of the adequacy of his Honour's reasons it must be borne in mind that his Honour proceeded immediately to deliver judgment upon the conclusion of submissions. In those circumstances it would be both unrealistic and impractical to expect a judge to slavishly repeat every conclusion he or she had reached and announced only minutes before.

3. A final matter to deal with is the submission in this Court that there was a failure of his Honour to refer to matters in s 21A of the Crimes (Sentencing Procedure) Act. The issue of whether the offences were planned or were sophisticated (in the sense explained by his Honour) might have been matters relevant to ss 21A(2)(n) and (3)(b), whether or not they were "part of a planned or organised criminal activity". No other matter mentioned in s 21A that was relevant to the objective seriousness of the offences was raised for his Honour's consideration. There was no requirement for his Honour to discuss and decide matters that were not relevant or not in issue.

4. I would reject this ground.

2. The sentences imposed, both individually and jointly, were manifestly excessive having regard to the objective and subjective circumstances

1. With the nominated "discount" for the utilitarian value of the applicant's pleas of guilty, it was submitted that the starting point for the impersonation offence must have been slightly in excess of 3 years and that for the indecent assault, a little in excess of 2 years 9 months. When considered against the maximum penalties for these offences of 7 years and 5 years respectively, it was contended that these starting points were excessive.

2. The written submissions for the applicant included reference to Judicial Commission sentencing statistics. However, because the offence of aggravated impersonation of a police officer had been only recently created, it was conceded that the limited number of cases in the statistical database meant they were of "limited value".

3. The Crown had submitted to the sentencing judge that the impersonate offence was objectively serious but the prosecutor said, "I'm not submitting it's high range or anything of that nature". Based on that submission, counsel for the applicant reiterated his contention that the starting point of just over 3 years was manifestly excessive.

4. It was submitted that the objective seriousness of the indecent assault offence should have been found to be below the middle of the range. There was a touching of the breast and a placing of the victim's hand on the applicant's penis. There was little or no planning and the incident was relatively brief.

5. Other factors that were said to be relevant were that the applicant had no significant prior convictions, there was no physical violence or threats of violence, the applicant was not in a position of trust, the victim was not in a particular category of vulnerable persons, there were pleas of guilty, and the applicant was found to have good prospects of rehabilitation.

6. The applicant's counsel referred to a number of other cases in this Court in an endeavour to make good this ground in respect of the indecent assault offence. It was accepted that caution was required for two reasons. Often this offence is finalised in the Local Court, and when finalised in the District Court, it is often in association with other and more serious offences. Accordingly, when the offence of indecent assault has come to be considered by this Court on appeal from the District Court, there are few cases that are comparable to the present.

Determination of Ground 2

1. The offence of impersonation of a police officer was formerly in s 204 of the Police Act 1990 (NSW). The maximum penalty was 6 months imprisonment and/or a fine of 100 penalty units. Section 204 was deleted on 1 July 2007 when amendments made by the Police Amendment (Miscellaneous) Act 2006 (NSW) took effect. A new s 546D was inserted in the Crimes Act providing in sub-s (1) the same basic offence of impersonating a police officer but increasing the maximum penalty of imprisonment to 2 years while retaining the same level of additional or alternative fine. A new aggravated form of the offence was provided in sub-s (2) involving the additional elements that there was an intention to deceive and that the offender purported to exercise a power or function of a police officer. The maximum penalty is imprisonment for 7 years. It may be taken that these amendments by Parliament indicated that such offences were to be regarded as more serious and warranted a higher level of criminal sanction than was previously the case.

2. The sentencing statistics for the impersonation offence are of no assistance. There have only been 10 cases involving the aggravated form of the offence and they were all dealt with in the Local Court. In relation to the indecent assault offence they simply demonstrate that the sentence imposed was towards the higher end of sentences that have been imposed in the past: in the current iteration of the statistics, where there had been a plea of guilty, 82 per cent of full-time custodial sentences were of 2 years 6 months or less with the median sentence being 2 years. The majority of cases where indecent assault is the primary offence are dealt with in the Local Court.

3. These statistics do not assist the applicant. That is particularly so when it is borne in mind that his Honour was not sentencing for two offences in isolation. There was a substantial overlap in the circumstances of the offences. And it must be remembered that there was a substantial overlap in the sentences themselves; 1 year out of the 1 year 3 months non-parole period of the indecent assault sentence is to be served concurrently with the non-parole period for the impersonation offence.

4. The cases involving sentencing for indecent assault offences that were relied upon in support of this ground do not assist the applicant either. The facts in each case were markedly different and/or less serious than in the present case.

5. Lipchin v R [2013] NSWCCA 77 involved a number of sexual offences, two being aggravated indecent assault contrary to s 61M(2). They involved significantly less serious conduct (a mature woman in her own home kissed a 15 year old friend of her son and rubbed his crotch through his underpants). For these offences the sentences were 1 year and 2 years respectively.

6. Jiang v R [2010] NSWCCA 277 involved a sentence for indecent assault committed at the same time as two offences of sexual intercourse without consent. A 6 month fixed term sentence was entirely subsumed by the sentences for the other offences. The application in this Court did not require consideration of the appropriateness of the sentence for indecent assault.

7. In Huntingdon v R [2007] NSWCCA 196 it was held that a sentence of 20 months for indecent assault was not manifestly excessive. The offender grabbed the arms of a woman who was being held down and who was partially clothed and covered with a blanket, he removed the blanket and her underwear and urged another person who was present to look at her breasts and genitalia.

8. In R v Hibberd [2009] NSWCCA 20, there was an indecent assault committed as a culmination of a series of physical and sexual assaults over a number of days by an offender against his 8 month pregnant partner. After a physical assault, the offender referred to the victim as "a dirty slut", urinated upon her and said "take that". This indecent assault brought a fixed term sentence of 12 months that was entirely subsumed by other sentences where the overall term was one of 9 years. The indecent assault sentence was not manifestly inadequate but one of the other sentences was; the overall term was increased to 10 years.

9. BT v R [2012] NSWCCA 267 concerned a sentence of 2 years 6 months for an indecent assault which was subsumed by sentences for aggravated sexual assault inflicting actual bodily harm and sexual intercourse without consent. The overall term imposed upon the juvenile offender was 10 years. The offences were committed by two juvenile detention centre inmates upon a fellow inmate on successive nights. The indecent assault involved using duress to require the victim to masturbate the offenders prior to the commission of the aggravated sexual assault offence. The appeal, which was dismissed, was not at all concerned with the appropriateness of the indecent assault sentence.

10. The indecent assault offence in the present case may have involved physical activity that was of a lesser level of seriousness than encountered in other cases. But it was rendered more serious by virtue of the circumstances. The complainant had been lured into the applicant's car and driven to a relatively isolated location in the middle of the night by a man who indicated that he wanted sexual services to be provided to him on his own terms. The fear she experienced was apparent from the description in the statement of facts of her shaking and the applicant telling her to "calm down" and from the fact that she ran from the car as soon as she became aware of the opportunity to do so.

11. The impersonation was significantly serious as well. The target of the applicant's deception was a young woman whose vulnerability was exploited for his own sexual gratification. The offence could not possibly have been characterised as impulsive, as counsel submitted in the District Court. The facts included that the applicant drove past the complainant about four times before he stopped to engage her in conversation, purporting to be a potential customer. He then drove off and returned and engaged in similar conversation before claiming to be a police officer. In the telephone conversations with the complainant about three weeks later, the applicant maintained his pretence. The submission that it was impulsive was rightly rejected by the judge.

12. In my view the contention that the sentences, individually and collectively, are manifestly excessive is not made out.

Orders

1. I propose the following orders:

   1 Leave to appeal granted.

   2 Appeal dismissed.

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