R v Anderson

[2002] NSWCCA 304

CITATION:	R v Anderson [2002] NSWCCA 304
FILE NUMBER(S):	CCA 60166/02
HEARING DATE(S):	14/06/02
JUDGMENT DATE:	14 June 2002
PARTIES :	Regina Ronald James Anderson
JUDGMENT OF:	Spigelman CJ at 1; Adams J at 52; Blanch AJ at 53

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/51/0105
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ

COUNSEL :	W Dawe QC (Appellant) C B Craigie SC (Respondent)
SOLICITORS:	S E O'Connor (Appellant) Pollack Greening Hampshire (Respondent)
CATCHWORDS:	CRIMINAL LAW - sentence - Crown appeal against leniency - whether sentences manifestly inadequate - detaining for advantage, aggravated robbery, aggravated sexual assault - whether adequate weight given to totality - whether method of accumulation appropriate.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v AEM [2002] NSWCCA 58 Veen v The Queen (No 2) (1998) 164 CLR 465
DECISION:	Appeal allowed. Sentences for aggravated sexual assaults and escape from lawful custody quashed. Sentences for aggravated sexual assaults made partially cumulative. Sentence for escape from lawful custody consequentially amended.

- 15 -IN THE COURT OF

60166/02

SPIGELMAN CJ
ADAMS J
BLANCH J

Friday 14 June 2002
REGINA v Ronald James ANDERSON

Judgment

1 SPIGELMAN CJ: This is a Crown appeal against sentence. The Respondent pleaded guilty to a range of offences which he committed over the course of 1 and 2 March 2001, together with a co-offender, commencing with escape from lawful custody and then a number of property and sexual assault offences.

2 The Respondent and his co-offender, Sydney Justin Bowtell, were inmates at the Grafton Correctional Centre. Both were serving lengthy sentences for crimes of violence. Some time on the evening of 28 February 2001 or the morning of 1 March 2001, the two prisoners escaped from the minimum security section unit and scaled the external wall of the Correctional Centre utilizing a homemade grappling hook.

3 By the evening of 2 March they had made their way to Sawtell Beach where the victim, a fifty year old woman, had the misfortune to be out for a walk. As she proceeded along a track near the beach, she was attacked by the two escapees. She was assaulted and, although screaming and fighting with her attackers, she was subdued, tape was used to cover her mouth and her hands were tied with a cord and a piece of rope. She was taken to her own motor vehicle and placed in the rear seat. The offenders drove off in the vehicle with her. The victim claims that during this period she was scared and believed she was going to be killed or tortured.

4 The car was driven to an area of bushland believed to be in the Bruxton State Park Forest. The victim was taken out of the car and placed on the boot lid. She was stripped naked by the two offenders. They took turns having penile/vaginal intercourse with her. The victim believes that each of the offenders had intercourse with her on about four or five occasions. She was also forced on one occasion to have oral intercourse with the Respondent.

5 During this period the victim remembers being threatened with a pair of scissors and the statement being made to her that the offenders would "fill you full of holes". There was also a reference to "we could slit your throat". The sexual assault on the boot lid of the car was the subject of one of two charges of aggravated sexual assault.

6 The two offenders then forced the victim into the car. The co-offender drove the vehicle at high speed along the bushland track. During this period the Respondent had further sexual intercourse in the rear seat of the vehicle with the victim. This was the subject of the second charge of aggravated sexual assault.

7 The victim's ordeal had not then ceased. She was driven to another unknown location where the Respondent again had penile/vaginal intercourse with her in the car. She was taken out of the car and the co-offender then had sexual intercourse with her again, whilst the Respondent kept a lookout.

8 During the course of the escapade the offenders had taken $20 from her wallet at one point to buy petrol. Subsequently she was taken to an automatic teller machine and forced to withdraw $50 with which the offenders purchased some cigarettes and drink. These two incidents were the subject of two charges of aggravated robbery.

9 Eventually the victim was released and the two offenders drove off in her car. She had been kidnapped and detained by he offenders from sometime in the evening of 2 March until about 11.00pm that night.

10 At about 11.30pm the vehicle was involved in a fail to stop accident with a State Emergency vehicle. The accident was witnessed by a police officer who attempted to stop the vehicle unsuccessfully. Grafton Highway Patrol intercepted the vehicle and a pursuit ensued. The cars travelled at high speed into the town of Grafton. The car was driven by the co-offender at speed and in a manner dangerous to the public and the police officers involved. The pursuit concluded when both offenders left the vehicle in a paddock area known as Bushgrove, situated on the Pacific Highway approximately 15 kilometers north of Grafton. An extensive search by police utilising specialist officers and air support, was undertaken, resulting in the arrest of the Respondent in a nearby paddock, some six hours after he had left the vehicle.

11 The Respondent had been incarcerated at Grafton Correctional Centre on two counts of inflicting grievous bodily harm with intent to inflict grievous bodily harm. He had been sentenced to ten years imprisonment on each count, commencing on 19 April 1994 with a minimum term of seven years and six months. The minimum term would expire on 17 October 2001 and the final release date would have been 18 April 2004. As will presently appear his Honour commenced a number of the sentences on 18 October 2001. Although, in the circumstances, it is inconceivable that the Respondent could have been released to parole on the expiration of his minimum term, it was nevertheless appropriate for his Honour to ensure that this was so.

12 On the count of stealing a motor vehicle contrary to s154AA(1) of the Crimes Act 1900, with its maximum penalty of ten years imprisonment, his Honour imposed a fixed term of three years commencing on 18 October 2001 and expiring on 17 October 2004. On the one charge of kidnapping, contrary to s90A of the Crimes Act 1900, for which the maximum penalty is twenty years imprisonment, his Honour imposed a fixed term of five years commencing on 18 October 2001 and expiring on 17 October 2006.

13 With respect to the two offences of aggravated robbery under s95(1) of the Crimes Act 1900, which has a maximum penalty of twenty years, his Honour noted that the circumstances of aggravation were the infliction of actual bodily harm on the victim and the deprivation of liberty. His Honour imposed a fixed term of four years commencing on 18 October 2001 and expiring on 17 October 2005.

14 The above sentences were concurrent with each other and commenced at the expiration of the minimum term of the Respondent's existing sentences. In the circumstances, it is, in my opinion, inconceivable that the Respondent would be released to parole on 18 October 2001. He would have served his full sentence until 18 April 2004. Accordingly, the consequence of partial accumulation in the manner his Honour adopted was, in substance, to reduce by two and a half years the effective sentence for each of these offences.

15 His Honour then dealt with the two counts of aggravated sexual intercourse. In the case of the single act of intercourse in the motor vehicle whilst the car was being driven along a bush track at high speed, he sentenced the Respondent to a fixed term of six years commencing on 18 October 2002 (i.e. a year after the commencement of the other sentences, but still eighteen months before the expiration of the full term for the sentences being served at the time of the escape). This sentence will expire on 17 October 2008.

16 For the other charge of aggravated sexual intercourse, namely, the repeated rapes on the boot of the car, the Respondent was sentenced to eleven years imprisonment, commencing on 18 October 2002 and expiring on 17 October 2013, with a non-parole period of six years, commencing on 18 October 2002 and expiring on 17 October 2008. Again, it is relevant to note that, on the assumption that I believe is entirely appropriate that the Respondent would not be released to parole for the charges on which he was serving a sentence at the time of the escape, the effective non-parole period for this offence is four and a half years

17 His Honour then came to sentence for the offence of escape from lawful custody. He referred to s57 of the Crimes (Sentencing Procedure) Act 1999, which requires the Court to impose such a sentence consecutively upon any other sentence of imprisonment, which the Respondent was serving at the time of the escape from lawful custody or which was imposed in the same proceedings. (In either case, the consecutive sentence is to commence on the expiration of the non-parole period of the sentence, or the term of the sentence, in a case where there is no non-parole period.) His Honour chose the latter of the two alternatives, that is, making the sentence for the escape, consecutive upon the other sentences upon which he was sentencing the Respondent at the time.

18 His Honour fixed a term of two years imprisonment consecutive on the non-parole period for the aggravated sexual intercourse offence and also, it appears, at the expiration of the fixed term of six years for the other aggravated sexual intercourse offence. Accordingly, the sentence for the escape from lawful custody offence will commence on 18 October 2008 and expire on 17 October 2010.

19 The effect of sentencing in this way was to have the sentence for escape from lawful custody expire on 17 October 2010, three years before the expiration of the head sentence for the longer of the two sentences for aggravated sexual intercourse. Although there was nothing in the history of the Respondent to suggest any serious prospect of being released to parole, it was appropriate to act on the assumption that there was some hope in this regard. Plainly, the future conduct of the Respondent would determine this matter.

20 His Honour accurately described the conduct of the Respondent and his co-offender as: "despicable, atrocious, dehumanising acts against the one female, who appeared absolutely helpless throughout the ordeal." The terror induced in the victim and the physical abuse to which she was subjected over a sustained period of time, indicated that the offences of aggravated sexual assault were of the highest gravity.

21 His Honour rejected the Crown submission that these offences were in the "worst category" of such offences. However, he did find that the aggravated sexual assault offences fell "just short of that category”. No doubt, in this regard, his Honour had in mind the degree of physical injury involved to the victim. That was substantial, involving abrasions and bruising to various parts of the victim's body, including the neck, shoulder, arms, lower back, right leg, left thigh, left ear, lips, throat, right wrist, left upper leg and both lower legs. She also had a dislocated left knee and a labial split on the introitus and mons. These injuries were a manifestation of the physical violence to which she had been subjected.

22 The injuries were substantial, but the worst class of case of an attack of this character could involve injuries of a more substantial kind than bruising and abrasions and also, a higher level of threat, over a sustained period, instilling fear for the victim's life. I agree with his Honour that the offences in the present case fell "just short" of the worst class of case. The issue is whether or not that was reflected in the sentence his Honour imposed.

23 His Honour summarised what was put before him in terms of the subjective circumstances of the Respondent, particularly in the form of a psychological report. This included his family history, particularly the point in time in his youth after the death of a sister when his father's behaviour changed to the extent that he was subject to significant beatings. He grew to hate his father.

24 He left school at the beginning of Year 8 and, initially, found a job. He commenced his long involvement with the criminal justice system at the age of nineteen with offences of break, enter and steal to obtain money for drugs. He subsequently had two relationships which produced three children. The psychologist's assessment noted that his "presentation and personality profile and his record of offences implies that he is dangerous and he is strangely aware of that himself".

25 There is nothing in the subjective circumstances of the Respondent to justify any substantial mitigation on the sentence that would be imposed on the basis of the objective gravity of the offences. The only element of hardship is his self-reported victimisation by his father as a youth. No doubt, that may have served, historically, as part of the explanation for his subsequent career of anti-social behaviour. It is not of a character that is entitled to significant weight by way of mitigation in the circumstances of the case. Whether or not it constitutes some form of explanation, as the psychologist suggested, it has long since lost significant mitigating effect.

26 The Respondent's criminal record commenced in 1982 with convictions for assault and possession of drugs, which were dealt with in the Local Court. In 1983, he was convicted of offences of goods in custody and three break, enter and steal matters, again dealt with in the Local Court.

27 In 1984, there were convictions for break, enter and steal, driving without a licence, failure to appear and a breach of recognisance. He was sentenced to a period of imprisonment.

28 In 1985, he was sentenced for further drug offences and a further false pretences offence In 1987, he was convicted of assaulting a female and released on a bond. However, later in that year, he was convicted in the District Court of the offence of supplying a prohibited drug and cultivating prohibited plants. He was sentenced to a period of imprisonment.

29 In 1987, he was convicted of a number of offences of stealing, break, enter and steal, failing to appear and possessing a prohibited drug and was sentenced to a number of terms of imprisonment, that were served concurrently with the longer term of imprisonment imposed by the District Court.

30 After his release in 1990, he was convicted of offences of unlawful entry, failure to appear, assault occasioning actual bodily harm, four counts of break, enter and steal, and seven counts of false pretences. He received various prison sentences.

31 In 1992, he was convicted of the offence of escaping lawful custody and sentenced to a short period of imprisonment. In 1994, he was convicted of two offences of maliciously inflicting grievous bodily harm with intent and, on each count, was sentenced to a minimum term of seven years and six months and an additional term of two years and six months. This was the sentence he was serving at the time of his escape. He described the offences as "nearly killing two people".

32 This disgraceful record of anti-social behaviour, demonstrating escalating violence, is such as to indicate that considerations of personal deterrence were entitled to substantial weight in the sentencing exercise. There is also the element of protection of the community, which was entitled to weight, particularly in the light of the psychologist's report, indicating that this particular offender remained a danger to the community.

33 As can be seen from his Honour's imposition of a term of eleven years imprisonment with a non-parole period of six years, his Honour varied the statutory proportion for the non-parole period under s44 of the Crimes (Sentencing Procedure) Act 1999, on the basis that there were "special circumstances" which justified a non-parole period less than three-quarters of the head sentence.

34 His Honour identified the following matters as constituting “special circumstances":

“A The prisoner's abusive childhood, upbringing.

B The prisoner's incarceration in the high risk unit, (HRMY) at Goulburn Correctional Centre.

C The prisoner's need for current and ongoing psychological and psychiatric assessment, counselling, treatment and monitoring.

D The prisoner's need for supervision and guidance for the duration of his parole period on release from custody.”

35 It is not clear to me on what basis his Honour found each of these matters to be special circumstances justifying a shorter non-parole period. This is particularly so as the effect of his Honour's imposition of the sentence of two years imprisonment for escaping from lawful custody to be served on the expiry of the non-parole period for the sexual assault offence, was such as to reduce by two years the maximum period of five years of potential release to parole under the major sentence his Honour imposed.

36 However, no separate challenge is made to his Honour's finding of special circumstances. The Respondent will need substantial assistance to integrate into the community upon his eventual release. That would justify a finding of special circumstances. Three years of supervision on parole is appropriate.

37 His Honour referred to the plea of guilty and particularly to the fact that it came at the earliest opportunity. His Honour gave particular weight to the utilitarian value of the plea and the fact that he allowed a discount of twenty-five percent on the sentence that he would otherwise have imposed by reason of this consideration.

38 His Honour accepted the psychologist's report which recorded a level of contrition on the part of the Respondent for the sexual assaults that he had committed. The Respondent described them as "a putrid crime".

39 It is worth noting some of the results of the psychological testing in the report before his Honour where, inter alia, the psychologist concluded:

· "This combination of attributes describes an individual who would have little genuine interest in others and very little depth of feeling. Emotional closeness, warmth and intimacy would be uncomfortable and solitary pursuits more attractive.”

· "The combination of Anti social and Aggressive personality attributes indicates a capacity to behave in a cruel, malicious and callous fashion. The expression of anti social feelings will be overt, direct and abusive. Humiliating others is a mechanism for relieving his own psychological pain. Relatively unaffected by punishment, he would be capable of reckless and anti social acting out.”

· "Schizotypal and Schizoid elevations together indicate an apathetic, detached individual who will be deficient in his capacity to experience emotion. Inherently emotionally unstable, rapid and extreme mood swings from euphoria to intense irritability, anger and destructiveness would be consistent.”

40 The psychologist concluded that the childhood abuse probably played a significant role in the development of his personality. The effects had been reinforced by the long periods of incarceration. He estimated that over a period of sixteen years, the Respondent has only been out of gaol for a total of twenty-one months. The psychologist concluded that he has been left "thoroughly institutionalised" and this has affected him "to the point where he feels more comfortable in custody than in the community".

41 The Crown submitted that his Honour erred in two respects. First, the penalties he imposed for the three sets of offences which carried a period of twenty years imprisonment, namely, detaining for advantage, aggravated robbery and aggravated sexual assault, were manifestly inadequate. Secondly, that his Honour failed to give sufficient weight to the principle of totality by the manner in which he accumulated the sentences, i.e. delaying the two charges of aggravated sexual assault for only one year after the commencement of other sentences. I note that no particular submission was directed to an alleged inadequacy of the two year sentence for escaping from lawful custody.

42 The Crown referred to R v AEM [2002] NSWCCA 58, as indicating the seriousness with which the offence of aggravated sexual assault must be regarded. In that case, the circumstance of aggravation for purposes of s61J was the fact that the offences were committed in company. That was also the case in the present proceedings, although the particular circumstances of aggravation relied upon in the present case was the infliction of actual bodily harm on the victim. In that regard, the present case was worse than that recently considered in AEM. Furthermore, the subjective circumstances in AEM were entitled to some mitigation and the offenders had nothing like the disgraceful record of crime over a sustained period of time, which the Respondent displays in the present case.

43 In AEM, the trial judge had rejected a submission that the offenders were in the "worst class", but indicated that "the offences were at the upper end of the scale of severity" (at [55]). This Court concluded:

“[75] It was submitted, however, that the objective gravity of these offences brought them very close to the worst category. Her Honour appears to have accepted that categorisation, considering the Crown’s submission to that effect was justified. Having done so and indeed, having referred to the various aggravating features upon which the Crown now relies as demonstrating error, her Honour imposed the sentences to which we have referred. None of the sentences exceeded a term of imprisonment of 6 years. The longest non parole period was four years.

[76] With respect to her Honour, sentences of that order wholly failed to address the objective seriousness of the offences and fell far short of what was necessary given her Honour's apparent acceptance that these cases were close to the worst class of case. It must follow, in our opinion, that her Honour failed to properly apply the principle of totality.”

44 A number of other observations made by the Court in AEM are also pertinent to the present case:

· "...the principles of general deterrence and institutional denunciation of the crimes involved must play an important, although proportionate, role." [92]

· "It must be stressed that all members of our society, including our young people, must be free to lawfully use the streets without fear of being subjected to either physical or sexual assault. The long term effects of the trauma invariably encountered by victims of either form of attack are well documented." [94]

· "… non-consensual sexual intercourse is an extreme form of violence. It is a crime which must and will be denounced by the courts by the imposition of appropriate sentences." [95]

45 Counsel for the Respondent submitted that his Honour's judgment indicated a careful assessment of the seriousness of the offences and of the various aggravating features. He relied on his Honour's detailed consideration of all of the relevant factors, broadly in the terms to which I have referred above. He drew particular attention to his Honour's determination that the sentences should be partially concurrent. He submitted that the Crown's reference to the psychologist's finding of dangerousness should be treated with caution, so as not to suggest that a form of preventive detention was being imposed. (See Veen v The Queen(No 2) (1998) 164 CLR 465, especially at 472-473.) Counsel also relied on the well-known restraints when dealing with a Crown appeal, including the approach referred to as the principle of "double jeopardy".

46 In my opinion, the conclusion to which this Court came in AEM is applicable in the present case. His Honour identified the circumstances of the two aggravated sexual assaults as falling "just short" of the worst case. However, the sentences he imposed do not suggest that his starting point for sentence approximated the upper range of the maximum permissible sentence. The circumstances of this case reveal virtually nothing in the way of mitigation. The long history of criminal conduct was only marginally alleviated by the history of child abuse. Other than in that respect, the subjective circumstances of the Respondent were not entitled to weight.

47 The one factor entitled to significant weight was the plea of guilty. In my opinion, his Honour was entitled to apply a top of the range discount of twenty-five percent. However, the head sentences his Honour imposed, on the more serious of the aggravated sexual assault offences, was eleven years. This suggested that his Honour adopted a starting point prior to the discount of the plea of something in the order of fifteen years. This does not reflect a starting point reflecting the objective gravity of the offence as "just short" of the worst case. On that basis, a starting point of something of the order of eighteen years would have been appropriate and a twenty-five percent discount for the plea would bring the head sentence down to about thirteen years and six months. Absent a finding of special circumstances, this would suggest a non-parole period of the order of about ten years.

48 Although this would have been appropriate at first instance, applying the principle of double jeopardy does not permit this Court to sentence on that basis. Assuming, for the reasons I have given above, the impracticality of any release to parole for the prior offences, the effect of his Honour's accumulation of the sentences and of the way in which his Honour imposed an additional sentence for the escape offence, was to impose upon the Respondent, over and above the sentence he was already serving, an additional head sentence of eleven years for the entire course of criminality with a minimum period of eight years. In this case, the principle of totality is of particular significance. That principle extends to encompass the period of incarceration prior to the escape.

49 In my opinion, given the totality of the conduct, the sentence was manifestly inadequate. Bearing in mind the principle of double jeopardy and that of totality, the additional term should be thirteen years, of which at least ten years should actually be served, with a period of three years potentially in the community under supervision on parole. The inadequacy arises from the way his Honour accumulated the sentences. In my opinion, the two sexual assaults should have been partially cumulative: they were separated in time and location, with the earlier and more serious incident being one of four or five acts in company and accompanied by threats to the victim's life.

50 Release to parole assumes that the Respondent's conduct over future years is such as, contrary to his past conduct, could lead to release on parole. For the reasons I have given above, it is appropriate to make a finding of special circumstances which permits the variation of the statutory ratio for which s44 provides.

51 I would not interfere with the sentences imposed by his Honour with respect to the charges of stealing a motor vehicle, kidnapping and aggravated robbery. Indeed, I did not understand the Crown to submit that that should be done. However, I would quash the sentences imposed for the two aggravated sexual intercourse charges in terms and dates, with a consequential need to vary the dates for the sentence of escape from lawful custody. The orders I propose are as follows:

1. The sentences imposed by his Honour with respect to the offence of stealing a motor vehicle, kidnapping and aggravated robbery (two counts) affirmed.

2. Quash the other sentences imposed by the trial judge and in lieu thereof impose the following sentences.

(i) For the offence of aggravated sexual intercourse in the motor vehicle whilst it was being driven along a bush track at speed, sentence the Respondent to a fixed term of six years imprisonment to commence on 18 October 2002 and expiring on 17 October 2008.
(ii) For the offence of aggravated sexual intercourse on the boot of the car, sentence the Respondent to a head sentence of eleven years commencing on 18 October 2004 and expiring on 17 October 2015 and fix a non-parole period of six years to commence on 18 October 2004 and expiring on 17 October 2010.
(iii) For the offence of escape from lawful custody, a fixed term of two years commencing on 18 October 2010 and expiring on 17 October 2012.
(iv) Affirm the trial judge's conditions for release to parole.

52 ADAMS J: I agree.

53 BLANCH J: I also agree.

54 SPIGELMAN CJ: The orders are as I have indicated.

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