Orchard v The Queen
[2013] NSWCCA 239
•25 October 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Orchard v R [2013] NSWCCA 239 Hearing dates: 11 October 2013 Decision date: 25 October 2013 Before: Gleeson JA at [1]
RA Hulme J at [2]
Adamson J at [3]Decision: Extension of time to file application for leave to appeal refused.
Catchwords: CRIMINAL LAW - whether extension of time should be granted - hopeless appeal - no arguable grounds - application to change plea- no error in refusal - whether sentence manifestly excessive or otherwise affected by error - no error in reasoning or result - extension of time refused Legislation Cited: Crimes Act 1900, s 38 s 61I, s 61J(2)(d), 61L Cases Cited: R v Fordham (1997) 98 A Crim R 359
R v Stephens (New South Wales Court of Criminal Appeal, 11 November 1994, unreported)
Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465Texts Cited: --- Category: Principal judgment Parties: Ronald James Orchard (Applicant)
Crown (Respondent)Representation: Counsel:
Self Represented (Applicant)
S Dowling SC (Respondent)
Solicitors:
Self Represented (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2006/12017 Publication restriction: Nil Decision under appeal
- Citation:
- ---
- Date of Decision:
- 2008-10-10 00:00:00
- Before:
- Finnane QC DCJ
- File Number(s):
- 2006/12017
Judgment
GLEESON JA: I agree with Adamson J.
R A HULME J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against the sentence imposed by his Honour Judge Finnane on 10 October 2008 in the District Court at Sydney.
The applicant pleaded guilty on 23 July 2007 to three counts on an indictment containing six counts, each involving sexual offences against the one victim on two separate occasions. The Crown accepted those pleas in full satisfaction of the indictment. He also asked that a further matter on a Form 1 be taken into account.
The applicant later applied to reverse the pleas. Hosking DCJ refused his application on 30 June 2008.
The applicant was sentenced to the following terms of imprisonment by Finnane DCJ on 10 October 2008:
| Count | Offence | Maximum/ SNPP | Sentence |
| 2 | Indecent assault on or about 7 October 2005 (rubbing the victim’s chest and breasts under her bra): s 61L Crimes Act 1900 | 5 years’ imprisonment | 4 years’ imprisonment with a non-parole period of 2 years to date from 27 March 2012 |
| 4 | Sexual intercourse without consent on or about 18 November 2005 (inserting a vibrator into the victim’s vagina for approximately 30 minutes): s 61I Crimes Act Form 1 - indecent assault on or about 18 October 2005 (rubbing his erect penis against the buttocks of the victim later on the same night as counts 4 and 6) to be taken into account: s 61L Crimes Act | S 61I: 14 years’ imprisonment; standard non-parole period: 7 years S 61L: 5 years’ imprisonment | 10 years’ imprisonment with a non-parole period of 6 years to date from 28 March 2006 (date of arrest) and to expire on 27 March 2012 |
| 6 | Sexual intercourse without consent on or about 18 November 2005 (cunnilingus performed on the victim for about 60 minutes immediately after count 4): s 61I Crimes Act | 14 years’ imprisonment; standard non-parole period: 7 years | 10 years’ imprisonment with a non-parole period of 6 years to date from 28 March 2006 (date of arrest) and to expire on 27 March 2012 |
The effective sentence imposed was a total term of 10 years with a non-parole period of 8 years after allowance for a discount of 14% for the applicant's plea of guilty.
The applicant filed a notice of application for leave to appeal dated 16 October 2008 that was received by the Registry on 22 October 2008. It expired on 11 December 2009. The Registry received a further notice of application for leave to appeal dated 14 January 2010 on 4 February 2010. No application for extension of time has been made in respect of either of those applications. Accordingly the present application is out of time.
Facts
An agreed statement of facts dated 23 July 2007 was tendered on sentence. It was signed by the applicant personally as well as by his counsel, Mr Rowe. It was summarised by the sentencing judge and can be further summarised here.
The applicant operated a business called 'Children's Fun time Promotions' which included selling toys and novelty items for children, making balloon sculptures and conducting face painting at shopping centres, children's parties, fairs and christenings. The victim, who was mildly intellectually delayed, was 16 at the time of Count 2 and 17 at the time of the remaining offences. She was introduced to the applicant by her uncle in 2004 and began working for the applicant soon afterwards. Her mother, with whom she was then living, stopped her from working with the applicant. In late September 2005, about six weeks before the offence in Count 2 was committed, the victim left home and moved into a refuge.
The applicant contacted the victim at the refuge and asked her to resume work with him on weekends. He arranged to meet her either at his unit at Enmore or elsewhere before they went to work together. He usually took her to dinner after work and paid her a daily wage of $50-$100. At times on weekends she would stay overnight. The refuge sought details from the applicant of the accommodation to be provided for her. He furnished such by fax. On two occasions she stayed with him at his unit for which he gave her the keys. He bought gifts for her, took her to restaurants and also to the zoo.
Count 2
On Friday 7 October 2005 the victim returned to the applicant's unit after work. She was lying on her side smoking a cigarette. He lay on the bed behind her and put his two hands under her T-shirt and massaged her back. He put one hand under the front of her T-shirt and rubbed her chest and breasts under her bra. She told him to stop. He did not stop and instead told her, "My one ambition in life is to have sex with you". She said, "There's no fuckin' way." He responded,"/ will and there's nothing you can do about it'. When she replied "I'll kill myself first', he told her, "I'll fuck you till you go cold". The victim got up and went outside. Later they went to work at another party after which he escorted her to the Formula One Hotel at St Peters where she stayed the night alone.
Count 4
Every weekend in October and November 2005, the victim worked for the applicant. He gave her a piece of paper for her to sign and told her that she was his business partner. As a result, the victim felt compelled to continue to work for the applicant. On 17 November 2005 the applicant advised the refuge by fax of the victim's working arrangements and that he had booked her into a hotel because of the expected late finishing time for her work that day. The victim met the applicant in the morning in the city. Later that day they went to his unit and watched movies. The applicant gave the victim a pre-mixed drink that contained alcohol. They went out to dinner and on their way home he bought a bottle of bourbon. On their return the applicant refilled the victim's glass of bourbon and coke several times until she had drunk about 10 glasses, by which time she was intoxicated.
The applicant produced a dildo or vibrator and rubbed it on her back. He removed her jeans and underwear and rubbed the device on the outside of her vagina. He rubbed her chest. He lubricated the device and inserted it into her vagina, which caused her pain. Although she repeatedly said "Don't" and "Stop", he ignored her and pushed the device in and out of her vagina for about half an hour.
Count 6
Immediately afterwards, he performed cunnilingus on her. She told him to "Stop" but he said, "What, can't a man have a bit of pleasure in his life with a beautiful girl". He continued for about an hour.
Form 1
After the applicant stopped the conduct that comprised Count 6, they went for a walk together. The victim consumed more bourbon and coke. When they returned to the unit the victim began to dance. Initially she was fully clothed, but later she wore only her underwear. The applicant was naked and dancing. He rubbed his body against her and at one stage he grabbed her from behind and rubbed his erect penis against her buttocks. When she told him that she needed some sleep, he asked her whether she had thought about doing bucks' parties. She dressed and went to sleep on the bed. The applicant slept on the floor.
The next weekend, the victim told the applicant that she would not be working for him again. On 22 November 2005 she complained to her carers at the refuge about the applicant. Shortly afterwards she told a friend who accompanied her the following day to a police station to report the applicant's conduct. When the police conducted a search of the applicant's unit they located the vibrator and a tube of lubricant cream. Testing of the tip of the vibrator indicated the presence of DNA that had the same profile as the victim's. This profile was expected to occur in fewer than 1 in 10 billion people in the general population. There was also a second contributor to the DNA found on the tip of the vibrator, which came from a male and was consistent with it originating from the applicant.
Remarks on sentence
The sentencing judge, after reciting the applicant's subjective features, including his age and medical history referred to the applicant's prior convictions.
Prior offending in 1993
In 1993 the applicant pleaded guilty to five counts and was sentenced by Court DCJ. The first three counts were unlawfully administering a stupefying drug, Normison, to the victim with the intent to enable himself to commit an indictable offence, sexual intercourse without consent: s 38 of the Crimes Act. The last two counts were sexual intercourse without consent in circumstances of aggravation, namely that the alleged victim was under the age of 16: s 61J(2)(d) of the Crimes Act. The victims were two girls aged between 12 and 14 years. The offending conduct took place between December 1991 and May 1992. A further 27 offences of a similar nature (involving the same two girls and a third victim, a 15-year old girl) were taken into account. His Honour described the offences as "a prolonged episode of bizarre, paedophilic activity" at various locations and "involved the presence of others, both adults and other juveniles, and the taking of scores of photographs effectively recording the depravity".
Court DCJ sentenced the applicant to concurrent minimum terms of 6 years with additional terms of 5 years. He was eligible for release on 18 June 1998. The sentence imposed by Court DCJ expired in 2003, two years before the present offences were committed. His application for leave to appeal was granted and this Court dismissed the appeal: R v Stephens (New South Wales Court of Criminal Appeal, 11 November 1994, unreported).
Other prior offending not taken into account
The applicant was convicted of carnal knowledge in 1982, for which he received a 12-month good behaviour bond in 1982. The sentencing judge did not take this matter into account since his Honour said that he proposed to treat the applicant as not having any relevant prior convictions apart from the matters dealt with in 1993.
Matters identified as important by the sentencing judge
The three matters that Finnane DCJ identified as being particularly important to the sentencing discretion were:
(1) The applicant's age (60 at time of sentence, 57 at time of offences).
(2) The applicant's prior offending and that he had previously served a lengthy period for serious sexual offences against children.
(3) The mental disability of the victim whom the applicant groomed and made intoxicated so that she was unable to resist his advances.
Grounds of appeal
Although there is no appeal against conviction, the applicant relied on a document entitled "Grounds of Appeal" in which grounds 1, 2 and 6 appear to challenge Hocking DCJ's refusal of the applicant's attempt to reverse his plea. Notwithstanding formal irregularities and non-compliance with time limits the Crown has addressed each of these grounds. I propose to do so too.
The grounds, said to be grounds of appeal, are:
(1) I was not allowed to change my plea from guilty to not guilty.
(2) My lawyer Legal Aid convinced me that I would get 22 years and that I couldn't call any witnesses even as I had letters from them. Also that I could not stop my priors coming before any jury therefore I had no chance in court. When I changed my plea it was not allowed and the judge called the Legal Aid lawyer a person he had known many years and wouldn't say the things he said to me.
(3) No course certificates were entered even as I had done many, many courses some that would help me.
(4) No medical reports were given even as they explained a few things.
(5) I wanted to have statements of people to be given to the judge but wasn't allowed.
(6) I went to court for 3 years and many times and asked for a lawyer not appointed by Legal Aid.
The applicant relied on 64 pages of material in support of his application that were paginated by the Registry.
Grounds 1, 2 and 6: unsuccessful attempt to reverse the plea of guilty
As referred to above these grounds do not appear to relate to an application for leave to appeal against sentence. They would appear to be relevant, if at all, to an appeal against conviction. There is no such appeal. Nonetheless my reasons for rejecting these grounds are set out below since the Crown's submissions addressed them.
The applicant was arrested on 28 March 2006. He entered a plea on 23 July 2007. The agreed statement of facts referred to above was tendered on that day. The matter was adjourned to 5 October 2007 for sentence. It was subsequently adjourned again to 16 November 2007 at the applicant's request, as he was unwell. When it came before the District Court on 29 February 2008, Mr Rowe, the applicant's then counsel, informed Sorby DCJ that his instructions and those of his instructing solicitor, Ms Tipper, had been terminated and that the applicant proposed to file a notice of motion to withdraw his plea of guilty.
The application to withdraw the plea was heard by Hosking DCJ on 30 June 2008. Mr Crawford-Fish of counsel appeared for the applicant. He relied on an affidavit affirmed by the applicant on 3 April 2008. He gave evidence in chief and was cross-examined. Mr Rowe, his former counsel, swore an affidavit on 28 May 2008 which was read by the Crown. He was cross-examined. Ms Tipper, the applicant's former solicitor, swore an affidavit which was read by the Crown in opposition to the application for withdrawal. She was not required for cross-examination.
Mr Rowe's affidavit annexed a series of documents, all of which, with the exception of the last, was signed by the applicant. The first, his written instructions dated 20 July 2007, set out in detail the advice he received from his legal advisers. The document concluded as follows:
I have carefully considered my position and listened to the advice I have received. I acknowledge that no pressure has been placed on me by my lawyers and that they have advised me that they will act on my instructions. They have also advised that they are prepared to commence the trial on Monday 23 July 2007.
I now instruct my lawyers that I wish them to approach the Crown Prosecutor and advise that I am prepared to plead guilty to Counts 4, 6 and 8 in the current indictment and that I am prepared to sign a Form 1 to have Count 10 on the current indictment taken into account at my sentence. Should the Crown Prosecutor receive approval for this arrangement I will enter pleas of guilty to Counts 4, 6 and 8 on the current Indictment and sign a Form 1 to have Count 10 on the current Indictment taken into account at my sentence.
The other documents annexed were:
(1) The statement of agreed facts referred to above;
(2) A handwritten document setting out the applicant's instructions that certain documents be tendered at the sentence hearing;
(3) A document dated 2 February 2008 terminating his lawyers' (Mr Rowe and Ms Tipper's) instructions; and
(4) Mr Rowe's file note created from his note of what he had proposed to tell the applicant in conference on 2 February 2008 relating to his proposed application to withdraw his plea which he later converted into the file note following the conference on that date.
In the reasons for refusing the application given on 30 June 2008, Hosking DCJ recorded that he did not believe what the applicant said and accepted the evidence of Mr Rowe and Ms Tipper. In conclusion his Honour said:
"I do not believe that the applicant agreed to enter pleas of guilty because he felt pressured into entering in them, it is clear to me that the applicant entered those pleas of guilty because he thought he was getting the best deal for himself in pleading to a lesser number of charges and much less serious charges in the face of what appears to be a very strong Crown case against him. Moreover in my view this whole application is not genuinely born of some genuine belief by the applicant that he is really not guilty of these charges or was improperly pressured into pleading guilty to them."
No error has been identified in Hosking DCJ's decision. The applicant was represented by experienced counsel, both prior to the plea of guilty, on the application for its withdrawal and on sentence. These grounds are rejected.
Ground 3: no course certificates were entered
Mr Crawford-Fish tendered a series of certificates, 32 in total, at the sentence hearing that showed courses that the applicant had undertaken while in custody, including courses in numeracy, mathematics, reading and writing for various purposes including debate and self-expression. A testimonial of Rev. Drury dated 13 September 2007 stated that:
I am told by the Crossroad Bible Institute people that he has completed so many courses that he is now doing Tier Three which is college entrance level.
Mr Crawford-Fish submitted on his behalf at the sentence hearing:
"He is attending church courses as the certificates demonstrate and he is doing all the studying that is available to him."
Accordingly, there is no substance in this ground.
Ground 4: no medical reports were given even as they explained a few things
The report of Dr van Rooijen of a CT scan of the applicant's brain taken on 28 April 2006 was tendered at the sentence hearing on behalf of the applicant. The report concluded that there was no evidence of residual or recurrent meningioma. The report of Ms Collins, forensic psychologist, dated 24 September 2007 was also tendered at the sentence hearing on behalf of the applicant. Mr Crawford-Fish summarised the report in his submissions at the sentence hearing and informed the sentencing judge that in 1990 the applicant was admitted to Adelaide Hospital where he had a brain tumour removed and that on being discharged from hospital he immediately returned to work.
The applicant relied on documents at pages 15-30 of his bundle. These documents comprised a CT scan dated 12 September 2006 as well as articles and extracts from the Internet relating to meningioma as well as the effects of Depo-Provera. These documents were not tendered at the sentence hearing.
The principles for receiving new evidence were summarised by Howie AJ (Hunt CJ at CL and Smart J agreeing) in R v Fordham (1997) 98 A Crim R 359. The additional material does not satisfy any of the tests for fresh evidence on appeal. Of principal importance is that it was not relevant, in light of the CT scan dated 28 April 2006 which was tendered at the sentence hearing. The later CT scan, dated 12 September 2006, recorded, under the heading "Comparison Examination":
The previous films are not available but comparison is made to the report from the prior CT dated 28/4/06.
. . .
There does not appear to be any change from the prior report.
Ground 5: I wanted to have statements of people to be given to the judge but wasn't allowed
At pages 57-64 of the applicant's bundle of documents there are several testimonials bearing dates in 2006, that appear to have been prepared in contemplation of the trial as going to the applicant's good character. They were not tendered at the sentence hearing. None of the references refers to his acknowledgement of guilt for the offences to which he pleaded guilty or to the sexual offences committed by him in 1982 and 1993 against young girls.
The advice that Mr Rowe gave the applicant about these references at the conference on 2 February 2008 was recorded in Mr Rowe's file note referred to above. Relevantly, Mr Rowe recorded:
I also pointed to the references he had from young people and their worth. I said that my previous advice was that they should not be used at trial because they would raise his character thereby allowing the Crown to raise his bad character. I again informed him that the Crown wanted all witnesses at the sentence hearing for cross-examination. I said that this was obviously because the references made no reference to his previous charges or his current charges. It was therefore likely that the Crown wanted to put his previous charges to them and his current charges to them, to see whether, in light of those facts, they were prepared to adhere to their original references.
The first impediment to the ground being made out is that there is no basis for the suggestion that he was not "allowed" to tender the references by Mr Crawford-Fish.
Secondly, the tender of the references was inconsistent with the submissions put on his behalf at the sentence hearing to the effect that the applicant acknowledged that he had a problem and wanted to address it by active treatment in custody. Mr Crawford-Fish submitted:
"Ms Collins assesses his likelihood of re-offending as being moderate to high. Against that in my submission she reports that he does show some insight into his behaviour. He acknowledges that he has a problem. He's open to the receiving of help, he's not ever had any psychiatric or psychological help in the past and is open to it, he's wanting it. He's applied he instructs me to participate in the CUBIT programme but until he's sentenced and reclassified he's not eligible to participate in that programme."
Thirdly, the references had little or no weight because their authors were apparently unaware of the nature or extent of the applicant's offending.
Unspecified ground: that the sentences imposed were manifestly excessive
The Crown has provided to this Court submissions that deal with a putative ground that the sentences imposed were manifestly excessive, although the applicant has not in terms articulated such a ground.
I do not see any basis for the suggestion either that the individual sentences were, or that the total sentence was, excessive. The antecedent criminal history of the offender was relevant to the sentence to be imposed: Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 at 477. The 14% discount for the plea of guilty must be regarded as the upper end of the available range since the utilitarian value of the plea was much diminished by its timing and the applicant's protracted, and groundless, attempts to withdraw it. The sentences for counts 4 and 6 were wholly concurrent. The matters on the Form 1, which were taken into account in the sentence for Count 4, led neither to the sentence for count 4 being greater than that for count 6, nor to any accumulation with count 6.
No error either in the process of exercising the sentencing discretion or in the result has been identified.
Whether extension of time ought be granted
For the reasons given above, there is no merit in any of the proposed grounds of appeal. Accordingly leave to appeal would have been refused if the application for leave had been brought within time. There is therefore no purpose in granting an extension of time for leave to appeal.
Proposed orders
I propose the following order:
(1) Extension of time to file application for leave to appeal refused.
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Decision last updated: 25 October 2013
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