Pratt v The Queen

[2021] NSWCCA 76

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Pratt v R [2021] NSWCCA 76

Hearing dates:

19 October 2020

Decision date:

23 April 2021

Before:

Hoeben CJ at CL at [1];
Harrison J at [75];
Bellew J at [76]

Decision:

(1)   Grant leave to appeal against sentence.

(2)   Dismiss the appeal.

Catchwords:

CRIMINAL LAW – sentence appeal – attempted sexual intercourse without consent – maximum penalty of 14 years imprisonment – assault on victim in train carriage – applicant under influence of methamphetamine at time of offending – no connection between mental condition and offending – applicant raised in environment of drug abuse and violence – previous conviction for producing child abuse material – finding of remorse – prospects of rehabilitation guarded – whether sentence manifestly excessive – limitations on use of comparative cases – leave to appeal granted but appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW) – s 61I

Criminal Appeal Act 1912 (NSW) – s 5(1)(c)

Cases Cited:

Adzioski v R [2013] NSWCCA 69

Al Mosawe v R [2012] NSWCCA 275

DAC v Regina [2006] NSWCCA 265

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

FV v Regina [2006] NSWCCA 237

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

JJ v R [2020] NSWCCA 165

Moodie v R [2020] NSWCCA 160

R v David Ford [2018] NSWDC 183

R v Nahn [2017] NSWDC 432

Smith v R [2020] NSWCCA 181

Vandeventer v R [2013] NSWCCA 33

Wright v R [2019] NSWCCA 134

Category:

Principal judgment

Parties:

Nathan Pratt – Applicant
Regina – Respondent

Representation:

Counsel:
S Fraser – Applicant
K Jeffreys – Respondent

Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s):

2018/237941

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 July 2019

Before:

Zahra SC DCJ

File Number(s):

2018/237941

JUDGMENT

1. HOEBEN CJ at CL:

Offence and sentence

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by his Honour Judge Zahra SC (the sentencing judge) at the Sydney District Court on 19 July 2019.

2. The applicant received a sentence of imprisonment for 6 years with a non-parole period of 3 years and 7 months for an offence of attempt sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offence attracts a maximum penalty of 14 years imprisonment. As the offence was one of attempt, the standard non-parole period of 7 years did not apply. The sentence commenced on 2 September 2018 and expires on 1 September 2024. The non-parole period is to expire on 1 April 2022. An offence of possessing less than a small quantity of a prohibited drug was taken into account on a Form 1.

3. The sentencing judge applied a discount of 25 per cent for the early plea of guilty. His Honour found special circumstances because the applicant required long term supervision upon his release to ensure continuing access to mental health treatment and abstinence from illicit drug use. The statutory ratio was varied so that the non-parole period represented 59.7 per cent of the head sentence. The sentence was accumulated by 1 month on the balance of parole served as a consequence of committing the offence.

4. The applicant relied upon a single ground of appeal, i.e. that the sentence is manifestly excessive.

Facts of the offence

5. There was agreement between the parties as to the facts giving rise to the offence.

6. At about 6:40pm on 2 August 2018, the victim boarded a train at Hurstville. The train was crowded at the time and the victim went to the lower deck of the carriage as the vestibule area was fully occupied. As the train headed towards Central Station, the applicant approached the victim and removed his semi erect penis and testicles from his pants. He grabbed the victim by the head with one hand and pulled her face towards his penis in an attempt to force her to perform oral sex. The victim pushed the applicant away and began to struggle. She yelled at him to “fuck off” but he continued to attempt to pull her head towards his penis. The victim placed her right hand over her mouth and felt his penis touch her hand. She called out for help. A male passenger intervened. The applicant attempted to grab the victim’s right wrist, but she was able to free her hand. The applicant jerked his head backwards and hit his head on the carriage ceiling.

7. The applicant then looked at the male passenger for 15 seconds before stepping backwards and away from the victim. He walked back to his seat, constantly saying “sorry”. Several passengers followed the victim and offered her assistance.

8. Police were called and boarded the carriage on arrival at Central Station. The applicant was lying face down on the floor with his hands on the floor. He repeatedly said to police “I did it, I did it, I'm sorry. They’re not allegations, I did it”. The applicant was arrested and co-operated fully with police. He told police that “It was an attempted sexual assault” and that “I thought it was in my head” and “Fuck. What’s wrong with me?” He said he had taken the drug ‘ice’ (methylamphetamine) two or three hours before. He volunteered that he was in possession of what was found to be .07g of that drug (offence on the Form 1).

9. Once at the police station, the applicant participated in a recorded interview and made full admissions to the offence. He said “[a]t some point during the trip, I’ve kind of nodded out and when I’ve woken up, for some reason, I thought nothing was actually happening. That I was invisible.” When asked whether he knew the victim did not want his penis in her mouth, the applicant said “[n]ot at first, but yes”. He said he could recall hearing the victim screaming. When asked what made him stop, he said “[r]ealising it was real”. He also accepted that the victim’s resistance may have been a contributing factor.

Proceedings on sentence

10. The applicant gave evidence in the sentence proceedings and was cross-examined. He said that he understood what consent was in the context of sexual intercourse. The applicant said the assault was “all blurry”, but he believed the victim was saying “no” and yelling for him to stop. The applicant agreed that he understood that the victim was not consenting and he continued anyway. He agreed that the victim made some effort to stop him but he kept going and it was only when another person pulled him off her that she was able to get away. The applicant was asked whether he was having rape fantasies immediately before the offence. He said “I don’t know, it’s all just a blur. Like it’s just, I was yeah”. The applicant agreed in cross-examination that the ingestion of ice cannot be wholly to blame for his offending.

Assessment of objective gravity of offending

11. The sentencing judge assessed the offending as objectively serious. His Honour noted from the police “Body-Cam” footage, taken soon after the offending, that the applicant was of substantial build by comparison with the victim. His Honour further noted from the statement of facts that the applicant stood over her and restricted her movement. His Honour characterised the offending as:

“The attack was a brazen and forceful attack upon a stranger who was entitled to go about her business in public in safety and without the threat of violence. Commuters using public transport must be protected from those who would perpetrate acts of violence and engender fear of such random acts of violence in public.” (Sentence judgment 4.3)

12. His Honour noted that the applicant heard the victim screaming during the attack yet he persisted despite her attempts to resist him. His Honour noted that apart from the considerable distress caused to the victim, the applicant only desisted in his attempt to sexually assault her when he was confronted by a passenger. His Honour inferred from the conduct of the applicant that he would have completed the act of oral intercourse but for the intervention of others.

13. Despite his Honour’s acceptance of the proposition that the attack was doomed to fail, he noted that “the gravity of the offending here is manifest in the degree of force and persistence of the conduct despite resistance of the victim”.

14. His Honour was fully aware that the applicant was charged with an “attempt” and said:

“Whilst it must be remembered at all times that the offender is to be sentenced on a count of attempt, and that he did not ultimately place his penis into the mouth of the victim, however, as I have indicated, the offending was almost complete and was only thwarted by the resistance of the victim and the intervention of others.” (Sentence judgment 5.2)

15. His Honour set out his findings as to objective seriousness when he said:

“The assessment of the objective gravity of the offending should not proceed upon some primary assessment of the nature of the sexual conduct attempted and placing the nature of the act in some hierarchy of sexual conduct. The nature of the sexual conduct is not the sole consideration. All the circumstances of the offending must be considered when assessing the objective gravity of the offending. The assessment of the objective seriousness would include the degree of violence; the physical hurt caused to the victim, the form of the forced intercourse, and the duration of the conduct.

Here the conduct occurred over a relatively short time period. I am unable to conclude other than that the conduct was impulsive and unplanned. It is probable the conduct occurred against the background of acute intoxication of illicit drug.

Courts have recognised that drug intoxication of itself cannot be a mitigating factor. The fact that an offence was committed whilst under the effects of illicit drugs does not generally deprive the crime of any of its seriousness, nor enable other than a custodial sentence to be imposed when the seriousness of the crime so demands.” (Sentence judgment 5.3-5.5)

16. His Honour noted that drug intoxication might provide an explanation for the commission of an offence and might well be relevant to considerations of rehabilitation. His Honour went on to note that as well as drug intoxication, “[a]dditionally there is evidence that the offender suffers from underlying mental health conditions of depression and anxiety” (Sentence judgment 5.9).

17. His Honour noted that in relation to mental health:

“Whether general or specific deterrence should be moderated in an individual case depends upon the degree of impairment, the extent of its contribution to the offence, the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both- whether or not the sentence can be seen to have a deterrent value, either specifically or generally.

However as the purposes of sentence point in different directions, even though a mental disorder may reduce a person’s culpability it does not necessarily follow that the presence of a mental disorder results in a lesser sentence. The resolution in the tensions between the various purposes of sentence in a given case may mean that greater weight needs to be given to the protection of the community.” (Sentence judgment 6.1-6.2)

18. His Honour found that it was difficult to determine the mental mechanisms that led to the offending in the way in which it was carried out. In particular, his Honour found it “difficult to determine the extent to which either the offender’s underlying mental health or drug intoxication, or a combination of both, operated to diminish the offender’s cognitive functioning and if so to what extent” (Sentence judgment 6.5).

19. There were medical reports available to the sentencing judge, but these had not been prepared in relation to this offence but in relation to sentence proceedings in 2014. Those offences involved the production of child abuse material. There were no updated reports. Despite the absence of such reports, his Honour found that “it is reasonable to presume that the offender has been suffering from underlying depression and anxiety for a considerable period prior to the offending and at the time of the offending” (Sentence judgment 6.7).

20. There was video footage, taken from police “Body-Cam”, moments after the offending which showed the applicant “in a highly disturbed and agitated state”. The sentencing judge found that presentation to be consistent with the erratic thoughts which were running through the applicant’s mind at the time of the offending and shortly thereafter.

21. It was on the basis of that material that the sentencing judge set out his conclusions as to objective seriousness:

“The offending can be understood in terms of impaired cognitive functioning arising from acute drug intoxication against a background of depression and anxiety. There is no evidence of symptoms of diagnosed thought disorder. The offender’s conduct was however deliberate. He was in a highly agitated state from the consumption of methamphetamine. The methamphetamine was voluntarily ingested. The offender’s history of drug abuse may have, as its foundation, symptoms of depression and anxiety however, in the absence of further psychological or psychiatric assessment, it is difficult to determine the extent to which the offending is causally connected to the offender’s underlying mental health conditions. It is difficult to determine the extent to which any underlying condition contributed to the offender’s impairment of cognitive functioning.

Counsel for the offender ultimately concedes that there is no direct causal connection between the offending and underlying depression and anxiety other than generally that the offender’s poor mental health arises because he has not received the same level of emotional guidance and therefore more vulnerable to offending and that this factor thereby operates to temper the role of general deterrence. ...

Ultimately I am of the view that the offender’s cognitive functioning was impaired by the ingestion of methamphetamine however I am unable to conclude that the offender’s cognitive functioning was substantially impaired. The offender’s ability to exercise judgment was affected by the ingestion of methamphetamine however his acts were purposeful and deliberate. Whilst his impairment is relevant to the assessment of the objective seriousness of the offending here I am of the view that the offender’s drug intoxication does not reduce the offender’s moral culpability to any substantial degree. ...

In my view the sentence must reflect a strong element of deterrence. Courts well understand the long term traumatic effect upon victims of sexual violence. The victim here and members of the public are entitled to go about their day to day business free of the fear of violence. There is an expectation the courts will impose sentences which will operate to ensure the community is protected.” (Sentence judgment 7.2-7.5)

22. Having completed his review of the facts, the sentencing judge concluded “that the offending falls within the broad description of middle of the range of objective seriousness for offences of attempt sexual intercourse without consent”.

Subjective factors

Background

23. The applicant provided a history in his affidavit which was read in the sentence proceedings. He is 31 years old and grew up in Warilla. His father was a car salesman before he lost his job due to his abuse of the drug ‘ice’. His father had also been diagnosed with schizophrenia. The applicant’s mother was unemployed. She smoked cannabis “a lot” and he described her as “often angry and up and down with her emotions”. The applicant’s parents separated when he was 10 or 11. Thereafter, he was raised by his mother and stepfather, who commenced a relationship with the applicant’s mother when he was aged 13. The applicant said that he did not get along with his stepfather, describing him as “an idiot [who] smoked a lot of cannabis too”.

24. The sentencing judge had before him a report of a psychologist, Ms Pratley, dated 14 May 2014. Although this report was prepared for use in the sentence proceedings relating to the charge of produce child abuse material, it contained in it a further history of the applicant. The following is taken from the history given to Ms Pratley by the applicant.

25. The applicant was subjected to violence at the hands of his father who used to beat him weekly. His mother did not intervene and she would on occasions also strike him. The applicant’s father suffered a psychotic episode when the applicant was aged 12 and was subsequently diagnosed with a substance induced psychosis. Thereafter, the applicant’s father experienced periodic psychotic episodes and was frequently hospitalised. The applicant reported that at times he was not provided with adequate food and clothing.

26. The applicant was able to care for himself from a young age. After being ejected from his mother’s home, he went to live with his father for a period of three years. During this period, the applicant witnessed his father experiencing a number of psychotic episodes. On one occasion, the applicant’s father attacked him with a samurai sword. Thereafter, the applicant left home and had been living in shared accommodation since then.

27. The applicant no longer has any contact with his mother. He speaks to his father over the phone about once per month and to his grandmother about once per week. The applicant has a good relationship with his younger sister but he had not spoken to her since entering custody for this offence. His sister was aware of his previous offending and had supported him, both financially and emotionally. The applicant was single and did not have children.

28. The applicant was bullied at school and did not have many friends. The bullying affected his self-esteem and made him retreat. He attended school until year 11. When he finished school, he worked as a kitchen hand and a labourer. The applicant said he started a landscape gardening apprenticeship when he was aged 24 and continued in that apprenticeship for 18 months until his arrest in 2014. He did not return to his apprenticeship due to his addiction to ‘ice’, which developed while he was in custody.

29. Ms Pratley reported that the applicant experienced significant difficulties at school. Those difficulties occurred in high school at a time when he was living with his father and essentially caring for himself, as well as managing his father’s mental illness.

Drug abuse

30. The applicant said he had never been a regular or heavy drinker and had started smoking cannabis at the age of 14. He used cannabis regularly for the next 10 years. He also used ecstasy and amphetamines occasionally during his teenage years and into his early 20’s.

31. When he first entered custody in 2014, his cellmate was addicted to ice. The applicant said that he started using ice about one week after entering custody. The applicant said that his cellmate gave him some ice which he said “helped him cope”. The applicant said that he did not then use a large amount but his usage increased when he was released from custody. The applicant said he did not seek help at the time because “I guess I did not really want to stop”. He said that when he first started using ice, he would smoke it. He then started injecting it from the age of 27. The applicant said that use of the drug ice has been his main drug problem over the last five years. He had never undertaken any rehabilitation programs for his drug addiction. The applicant said “I realise that my addiction is a real issue. It is not good for me or anyone else. I want to get rid of my addiction and hopefully lead a normal life”.

Mental health

32. In his affidavit, the applicant said he was diagnosed with ADHD when he was aged 12 and prescribed an anti-depressant. During his mid 20’s he would sleep a lot and did not do much. He said he “didn’t have much motivation and often felt anxious”. He said that he still feels anxious, has a low mood and has attempted suicide a number of times. He was prescribed a different brand of anti-depressant in 2016, but did not take it and entered custody shortly thereafter.

32. Ms Pratley noted, in the 2014 report, that the applicant’s account of his sexual history and offending behaviour “[s]uggests a level of hypersexuality, compulsive sexual behaviour, poor sexual boundaries and deviant sexual interests”. Ms Pratley opined that the applicant was likely to require a range of interventions to address those issues.

33. Ms Pratley noted the applicant’s history of suicidal ideation. The applicant advised that he had no history of hospitalisation for mental illness nor had he sought psychological assistance in the past. She noted, however, that while the applicant maintained he did not have any mental illness issues, he had experienced a range of distressing psychological symptoms over the course of his life and that “[t]hese experiences have not reached a point of clinical significance”. Ms Pratley concluded “Although Mr Pratt’s psychological functioning is below optimal, he does not meet diagnostic criteria for any psychological disorders”. She did, however, say that he “would benefit from psychological intervention in order to improve his low mood and general social functioning, reduce his suicidal ideation and compulsive behaviours, as well as targeting his deviant sexual interests”.

34. The applicant first offended in New South Wales on 7 July 2014, as a result of which he was sentenced for an offence of producing child abuse material between 28 November 2013 and 16 January 2014 and an offence of possessing child abuse material between 28 November 2013 and 16 January 2014. In relation to the offence of producing child abuse material, the applicant was sentenced to imprisonment for a period of 11 months and 18 days, with a non-parole period of 8 months and 21 days. In relation to the offence of possessing child abuse material, the applicant was sentenced to imprisonment for a period of 9 months and 9 days with a non-parole period of 6 months and 30 days. Those periods of imprisonment were served concurrently.

35. As a result of his convictions for the child abuse material, the applicant has been placed on the Child Protection Register and is subject to reporting conditions for a period of 15 years. The end of his reporting period will be 31 January 2031. Since his release from custody, the applicant has been charged with failing to comply with his reporting obligations on five occasions.

36. In order to assess the relevance of the applicant’s prior criminal history, the sentencing judge reviewed the facts upon which the convictions relating to the child abuse material were based. On 21 January 2014, police executed a search warrant at the home of the applicant and seized numerous items including USB storage devices, USB wireless internet dongles, burned CDs and DVDs, external hard drives and a total of four computers for further forensic analysis. Expert forensic analysis was conducted and a total of 66,815 images and 2,687 videos were located on the hard drives belonging to the applicant. Of this, 938 child abuse images and 13 child abuse videos were sampled as a reliable statistic of the child abuse material discovered.

37. During the forensic electronic analysis, investigators viewed a number of additional child abuse images with explicit sexually based narratives superimposed on them. From the sample provided, investigators viewed 26 of these pictures and narrative images. The narratives were sexually explicit in nature and described in detail the rape, physical assault, dismemberment, killing and necrophilia type activities to which the female children depicted were subjected. One of the narratives had the applicant’s name written twice into the narrative.

38. On 20 March 2014, the applicant was again arrested in relation to an offence of producing child abuse material. The applicant participated in an electronically recorded interview in which he had made partial admissions to possessing some of the 26 child abuse material images but denied producing the narratives superimposed over the images. The sentencing judge regarded the facts of the previous offending as relevant to the applicant’s prospects of rehabilitation.

Remorse

40. As set out in the factual background, the applicant repeatedly said he was sorry for the offending. In his sworn affidavit in the sentence proceedings, he said:

“I feel embarrassed and ashamed of what I did to the victim. I am sorry for my actions.”

41. In cross-examination, the applicant was asked what he meant by “sorry” and responded “I’m sorry to have done what I’ve done, to put her through that. It’s wrong”.

42. His Honour made the following finding in relation to remorse:

“Having observed the demeanour of the offender in the ‘Body-Cam’ footage and when giving evidence, I am of the view the offender is genuinely remorseful for his offending. I take the offender’s remorse into account when passing sentence.” (Sentence judgment 14.1)

Prospects of rehabilitation

43. The sentencing judge noted that Ms Pratley had opined that the applicant’s account of his childhood was indicative of exposure to significant neglect, physical abuse, parental substance use and mental illness. She concluded:

“Overall, Mr Pratt was raised in an unstable environment and it is clear that he was not provided with the physical and emotional security that children require. Subsequently, he did not develop secure attachments and this has undoubtedly had an impact on his relationships with others over the course of his life, as well as impacting his capacity for emotional regulation and his self-worth”. (Sentence judgment 14.2)

44. Ms Pratley concluded that the applicant had only a “superficial level of insight” into his behaviour in producing the child abuse material. The risk assessment, which she carried out for the preparation of the 2014 report, indicated that the applicant posed a moderate risk of recidivism and that he did not appear to be minimising his sexually violent behaviour. Ms Pratley further opined that there were factors which increased the applicant’s risk of reoffending. These included the use of child abuse material, including material containing violence.

45. In assessing the future risk of sexual recidivism, Ms Pratley concluded:

“Given Mr Pratt’s social deficits, it seems less likely that he would attempt to perpetrate a contact offence, although this cannot be ruled out given his history of seeking increasingly extreme stimuli for arousal.” (Sentence judgment 14.9)

46. The sentencing judge also had available to him records from Justice Health commencing February 2014 and extending through his period in custody. The records indicated observations of anxiety and depression. Although there were five requests for psychiatric assistance by the applicant, his Honour was not able to determine whether that assistance had been provided. He opined:

“It is unclear from the records whether the offender received treatment from a psychologist or psychiatrist other than possibly for the purpose of prescribing medication. It is noted numerous times that the offender was on a “waiting list” to see a psychiatrist. It is noted in December 2018 the offender was assessed by a mental health nurse and a psychologist and was prescribed mood stabilising and antidepressant medication consistent with persistent depressive illness.” (Sentence judgment 15.6)

47. His Honour had available a report Dr Haider, a general practitioner, who had treated the applicant. In April 2019, Dr Haider’s recorded that the applicant “has a long history of mixed anxiety and low mood, commencing in early adolescent [sic]” and “had certain stressful events that occurred throughout his life to adjust to such as, dysfunctional upbringing, abused drugs (cannabis) and jail [sic] for crime”.

48. His Honour had before him a 2014 report of another psychologist, Flavio DiBona. This was a pre-sentence report which confirmed the presence of a level of depression affecting the applicant through most of his life. When assessing the risk of reoffending, Mr DiBona predicted recidivism for child pornography offences as “higher given the presence of deviant sexual interests”. Mr DiBona assessed the applicant’s treatment needs to be high.

49. Having regard to all of the medical material before him, and with the up to date history given by the applicant, his Honour set out his conclusions as to the prospects of rehabilitation as follows:

“The offender’s life since entering custody for the first time in March 2014 has been chaotic. Since he first entered custody, some five years and four months ago, he has spent little time at liberty as he is quickly returns to custody upon his release. He has been at liberty for about eighteen months over that period of five years and four months. Most of the periods of liberty are about two months or less.

It is difficult to predict the offender’s prospects of rehabilitation. As I have indicated, it is difficult to determine whether the conduct here arises from inherent or underlying mental health conditions or from acute drug intoxication. The offender’s conduct here is disturbing. There is no further psychiatric/psychological opinion concerning the offender’s risk of reoffending. The offending here may be symptomatic of an escalation of sexually violent behaviour as considered by the psychologist Ms Pratley who prepared a report concerning the offender’s prior conviction relating to violent child abuse material. In part Ms Pratley observed, as I have previously noted:

‘Given Mr Pratt’s social deficits, it seems less likely that he would attempt to perpetrate a contact offence, although this cannot be ruled out given his history of seeking increasingly extreme stimuli for arousal.’

The offender has no prior convictions for offending involving physical violence. Regrettably the offender has received little or no treatment, after his return to the community after serving his last sentence of imprisonment, directed at addressing the mechanisms leading to the offending relating to the child abuse material.” (Sentence judgment 16.7-17.2)

50. The sentencing judge concluded that the applicant desired treatment but had not been receiving it. His Honour accepted that the applicant had some insight into his offending and in that regard, had expressed genuine remorse. His Honour concluded:

“The offender requires intensive psychiatric/psychological treatment in custody and on his release into the community. The offender requires close supervision in the course of his reintegration into the community. The offender requires long term supervision upon his release to ensure the offender is provided with continuing access to mental health treatment and to ensure he abstains from illicit drug use and to prevent relapse. For these reasons I find special circumstances. With continuing treatment the offender’s risk of re offending will be significantly reduced.” (Sentence judgment 17.7)

Hardship in custody

51. His Honour accepted that the existence of the applicant’s mental disorder may mean that serving his sentence would weigh more heavily upon him than for a person in normal health. His Honour also noted that the applicant had been victimised while in custody and had been assaulted. His Honour concluded that allowance had to be made for those matters when sentence was imposed.

Setting the sentence

52. Taking into account all of the above matters, the sentencing judge set out his conclusions as to an appropriate sentence:

“The principles referred to in the decision of Bugmy v The Queen (2013) 249 CLR 571 have relevance here. I have referred to the offender’s background and in particular to the histories he provided concerning the dysfunction of his parents and their inability to provide emotional support and appropriate care in his early life. The offender was exposed to parental drug abuse; exposed to violence in the home; exposed to his father’s mental illness and psychotic episodes, parental neglect and instability. The evidence of the offender’s social disadvantage places the offending here into some context. As I have indicated the offender’s use of drugs can be understood in terms of the offender’s chaotic early family life.

I am of the view that this is such a case where the circumstances in which the offender was raised mitigates the sentence because his moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in the way the offender’s life has been marred. It would be naïve to assume the effects of the offender’s profound deprivation have diminished over time even though one would normally expect the serving of a sentence of imprisonment would ordinarily have acted as a deterrent upon him.

The offender’s continuing recourse to illicit drugs can be understood against the background of the offender’s inability to resolve underlying depression and anxiety, the product of social disadvantage in early life and his limited exposure to psychological care and drug treatment and counselling. These are matters that directly bear upon the assessment of the offender’s moral culpability. Further the offender is still a young man and the ultimate sentence imposed must take into account the need to ensure the long term rehabilitation of the offender.

The tensions between the various purposes of sentence under section 3A of the Crimes (Sentencing Procedure) Act are difficult to resolve here. Here there is a significant tension towards rehabilitation which could only be achieved by psychiatric/psychological counselling whilst in custody and intensive treatment and supervision in the community.

I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

In sentencing the offender I am required to impose a sentence that properly reflects the objective seriousness of the offence and to fix a sentence that would ensure that the time the offender must spend in custody reflects all the circumstances of the offence including the objective seriousness, the need for general deterrence and to meet the fundamental purpose of punishment, namely the protection of society.” (Sentence judgment 18.8-19.7)

Ground of appeal

The sentence is manifestly excessive

53. The principles in relation to manifest excess, as stated in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 and elsewhere were summarised in JJ v R [2020] NSWCCA 165 as follows: (at [14]):

“14   ...

1 appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2 intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3 it is not to the point that this Court might have exercised the sentencing discretion differently;

4 there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5 it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

54. The applicant submitted that an offence within the middle of the range of objective seriousness for attempt sexual intercourse without consent must fall below the middle of the full scale seriousness for all offences contrary to s 61I and that given the several favourable findings made in relation to the applicant’s subjective case, “a sentence with a starting point more than half of the maximum penalty provided is on its face manifestly excessive”.

55. There are a number of difficulties with this submission. First, while a sentencing judge is required to have regard to the maximum penalty as an important guidepost in the sentencing process, there is no necessary correlation between an offence’s position in the range of objective seriousness and the proportion of the maximum sentence that is available as a head sentence. The standard non-parole period of 7 years applicable to a completed s 61I offence confirms this. It follows, therefore, that there is no prima facie difficulty with a sentence for a mid range offence having a notional starting point above half the maximum penalty.

56. While it may be accepted that in a given set of circumstances an attempted sexual assault is less objectively serious than the completed offence would have been (FV v Regina [2006] NSWCCA 237 at [60]-[62]), in the applicant’s case the offence came close to completion. His Honour inferred that the applicant would have completed the offence, but for the resistance of the victim (who pushed the applicant, struggled and put her hand over her mouth) and the intervention of the witness. The sentencing judge was clearly conscious that the offence was one of attempt. However, in the particular circumstances of this offending, the degree by which the objective seriousness of the attempt fell below what the completed offence would have been, was not great.

57. Moreover, the fact that some favourable findings were made in relation to the applicant’s remorse, degree of insight and reduced moral culpability did not automatically require a reduction in his sentence. In the applicant’s case there were significant factors that pointed in the other direction, particularly the fact that he committed the offence while on parole, his uncertain prospects of rehabilitation and the need to reflect a strong element of general deterrence.

58. These favourable findings had to be balanced against the adverse findings. These included the sheer violence and unprovoked nature of the offence, the concessions by the applicant that he well knew what he was doing and that the victim was vigorously resisting. These were all matters to be taken into account as part of the instinctive synthesis engaged in by the sentencing judge to produce a final sentencing outcome.

59. This was, as his Honour made clear, a very difficult sentencing exercise. While there were undoubtedly three important matters which entitled the applicant to some leniency, there were many countervailing considerations which required that a substantial sentence be imposed. That such a sentence should properly be imposed, emerged clearly from the detailed analysis by the sentencing judge of the objective seriousness of the offending:

“The offending can be understood in terms of impaired cognitive functioning arising from acute drug intoxication against a background of depression and anxiety. There is no evidence of symptoms of diagnosed thought disorder. The offender’s conduct was however deliberate. He was in a highly agitated state from the consumption of methamphetamine. The methamphetamine was voluntarily ingested. The offender’s history of drug abuse may have, as its foundation, symptoms of depression and anxiety however, in the absence of further psychological or psychiatric assessment, it is difficult to determine the extent to which the offending is causally connected to the offender’s underlying mental health conditions. It is difficult to determine the extent to which any underlying condition contributed to the offender’s impairment of cognitive functioning.

Counsel for the offender ultimately concedes that there is no direct causal connection between the offending and underlying depression and anxiety ...

Ultimately I am of the view that the offender’s cognitive functioning was impaired by the ingestion of methamphetamine however I am unable to conclude that the offender’s cognitive functioning was substantially impaired. The offender’s ability to exercise judgment was affected by the ingestion of methamphetamine however his acts were purposeful and deliberate. Whilst his impairment is relevant to the assessment of the objective seriousness of the offending here I am of the view that the offender’s drug intoxication does not reduce the offender’s moral culpability to any substantial degree. ...

In my view the sentence must reflect a strong element of deterrence. Courts well understand the long term traumatic effect upon victims of sexual violence. ...” (Sentence judgment 7.2-7.5)

60. The applicant seeks to draw support for his argument from the sentences imposed in six decided cases. That approach by itself does not assist the Court and tends to obscure those matters which render many cases entirely inappropriate for comparison to the present one. As Ierace J (with whom Bathurst CJ and Price J agreed) stated in Wright v R [2019] NSWCCA 134 at [52]:

“52   ... there are limitations to the use of comparative cases; the Court must take a ‘careful approach’ and needs to weigh the similarities and dissimilarities of the objective and subjective circumstances between each case: MLP v R [2014] NSWCCA 183 at [44]. Even so, a close alignment of such circumstances in comparative cases yielding lesser sentences is not determinative of manifest excess. Rather, it is inconsistency in the application of relevant legal principles that is significant: Vandeventer v R [2013] NSWCCA 33 at [43], [45]-[46].”

61. In Vandeventer v R at [45] Adamson J said:

“45   One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.”

62. Recent comments by this Court in Moodie v R [2020] NSWCCA 160 (in particular at [83]) and Smith v R [2020] NSWCCA 181 at [78] and [90]-[91] should be noted and are to similar effect.

63. With respect to attempted sexual intercourse without consent, the relatively small number of decided cases is confirmed by the sample size of 11 sentences in the statistics provided by defence counsel in the sentence proceedings. The applicant’s selection of six cases includes two first instance sentence judgments and four cases that involve the aggravated form of the offence for which the maximum penalty is 20 years rather than 14.

64. In any event, an analysis of the cases shows that they have little in common with the facts of this case. In Al Mosawe v R [2012] NSWCCA 275 the sentencing judge found in favour of the offender that there was no violence, the incident was not planned and Mr Al Mosawe desisted when asked. He was remorseful and contrite and at the time of sentence, was aged 48 and married with two children. He was being treated for post traumatic stress disorder and a range of other psychological disorders whose symptoms may have impacted upon his judgment at the time of committing the offence.

65. In R v Nahn [2017] NSWDC 432, the objective seriousness of the offending was found to be “just below the middle range of objective seriousness”, the victim was heavily intoxicated and was being sick at the time of the offence. The offender continued to maintain his innocence, had some prospects of rehabilitation and there was an absence of drug and alcohol or other addictions.

66. The sentence imposed in FV v R [2006] NSWCCA 237 was for one of a number of offences by a father against his natural daughter in circumstances where proportionality and totality had an important part to play in respect of the sentence passed for each offence.

67. Similarly, little assistance is provided by DAC v Regina [2006] NSWCCA 265. The applicant was convicted of a number of offences, one of which included an attempted aggravated sexual assault. A significant factor in that matter was that DAC was aged 14 at the time of the offending, had no previous criminal offences and came from a disadvantaged background.

68. In Adzioski v R [2013] NSWCCA 69 the applicant was highly intoxicated, had been diagnosed with schizophrenia, was non-compliant with his anti-psychotic medication, had a history of drug and alcohol abuse with a poor criminal history that included an offence of violence, but no sexual offending. He was found to be genuinely remorseful.

69. The facts of R v David Ford [2018] NSWDC 183 are of little assistance. The applicant was convicted of 18 historical child sexual assault offences committed against five complainants over 12 years. The sentences imposed were in accordance with sentencing practices at that time.

70. The six cases relied upon by the applicant cover a wide variety of offending with a wide range of subjective considerations. They do not demonstrate that the applicant’s sentence was so far outside the range of available sentences that the sentencing judge must be taken to have erred in some way. In general terms, the offenders who received a lesser sentence than the applicant had in many respects a more favourable subjective case. This meant that for the purposes of sentencing such as general and specific deterrence, denunciation and rehabilitation, there were different factors to be assessed and balanced when imposing a sentence. In particular, there were no elements of violence in any of the offending in those cases.

71. When those matters are compared to the instant case, the differences are stark. The offending took place in a crowded public train, it involved an attempt to force a penis into the mouth of the victim and was, as his Honour described it, “a brazen and forceful attack upon a stranger who was entitled to go about her business in public in safety and without the threat of violence”. The offending was persistent, and only ended when the applicant was confronted by a male passenger.

72. The applicant was on parole at the time of the offence and his criminal history disentitled him to the leniency that might otherwise have been afforded to a first offender. In the absence of any up to date psychological/psychiatric reports, the risk of him reoffending could not be assessed.

73. It follows that on the facts of this case, the sentence imposed on the applicant has not been shown to be manifestly unreasonable or plainly unjust.

74. The orders which I propose are:

1. Grant leave to appeal against sentence.

2. Dismiss the appeal.

75. HARRISON J: I agree with Hoeben CJ at CL

76. BELLEW J: I agree with Hoeben CJ at CL.

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Decision last updated: 23 April 2021