R v Doolan

[2006] NSWCCA 29

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Isaac Robert Doolan v Regina [2006]  NSWCCA 29

FILE NUMBER(S):
2005/2116

HEARING DATE(S):               13 February 2006

DECISION DATE:     17/02/2006

PARTIES:
Isaac Robert Doolan - Applicant
Regina - Respondent

JUDGMENT OF:       McClellan CJ at CL James J Buddin J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/61/0088

LOWER COURT JUDICIAL OFFICER:     Nield DCJ

COUNSEL:
Ms H Cox  - Applicant
Dr P Power SC - Respondent

SOLICITORS:
Sydney Aboriginal Corporation Legal Service - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

CATCHWORDS:
Offences of aggravated sexual intercourse without consent and sexual intercourse without consent - whether sentencing judge erred in considering various aggravating factors - whether less severe sentences warranted

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act

DECISION:
Leave to appeal granted.  Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2116

McCLELLAN CJ at CL
JAMES J
BUDDIN J

FRIDAY 17 FEBRUARY 2006

ISAAC ROBERT DOOLAN v REGINA

1. McCLELLAN CJ at CL:     I agree with Buddin J

2. JAMES J:             I agree with Buddin J.

3. BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court after he was found guilty of six offences by a jury. Two offences were of common assault which attracts a maximum penalty of two years imprisonment. There were also three offences of sexual intercourse without consent, contrary to s 61I of the Crimes Act, each of which attracted a maximum penalty of 14 years.  The final offence was an offence contrary to s 61J(1) of aggravated sexual intercourse without consent.  The circumstance of aggravation was a threat with an offensive implement issued by the applicant to the complainant immediately before intercourse.  That offence attracts a maximum penalty of 20 years imprisonment.  A standard non-parole period of 7 years applies in relation to each of the offences of sexual intercourse without consent and a standard non-parole period of 10 years applies in relation to the aggravated sexual assault offence.

4. The offences occurred on 21 February 2004.  The applicant was arrested the following day and taken into custody.  Between that date and 21 August 2004 the applicant was serving a sentence imposed in respect of unrelated offences albeit that they involved offences perpetrated against the same complainant.  It was against that background that the applicant came to be sentenced for the present offences.

5. In respect of each of the two offences of common assault, the applicant was sentenced to fixed terms of four months imprisonment to be served concurrently with each other, commencing on 22 August 2004 and expiring on 21 December 2004.  In respect of each of the three offences of sexual intercourse without consent he was sentenced to fixed terms of four years’ imprisonment commencing on 22 August 2004 and expiring on 21 August 2008.  In respect of the offence of aggravated sexual assault, the applicant was sentenced to a non-parole period of 5 years commencing on 22 August 2006 and expiring on 21 August 2011, with a balance of term of 3 years commencing on 22 August 2011 and expiring on 21 August 2014.  The effective non-parole period is thus one of 7 years with the total term being10 years.

6. The applicant and the complainant had lived in Bathurst in a de facto relationship for a period of about two years.  In October 2003 the complainant obtained an apprehended violence order against the applicant.  He subsequently breached that order as a result of which the complainant terminated the relationship.  The applicant was charged with various offences arising from that incident, including assault occasioning actual bodily harm.  For that offence he received a sentence of imprisonment.  The non-parole component of that sentence, to which reference was made earlier, commenced on 22 February 2004.  It is to also be observed that the applicant was on bail for that offence at the time he committed the offences which are the subject of the present application.

7. After their relationship ended, the complainant moved to Cowra but continued to travel back to Bathurst for work.  The applicant also worked in Bathurst but had family and friends in Cowra including his young son (the applicant has subsequently had another child).  On Friday 20 February 2004 the applicant travelled to Cowra as did the complainant.  The complainant spent the evening drinking at various locations in that town.  At about 3 am the applicant approached the complainant as she was sitting on the step of a hotel.  After a brief conversation the complainant set off towards her home.  The applicant pushed her in the chest and grabbed her by the hair (this incident gave rise to the first of the charges of assault).  They then went to a schoolyard where they talked for a few minutes before departing.  A short while later they then returned to the schoolyard where the applicant proceeded to sexually assault the complainant.  The first such act consisted of penile/vaginal intercourse.  The applicant then threatened to strike the complainant with a brick as she was lying on the ground.  Immediately after threatening her, he digitally penetrated her vagina (this incident gave rise to the offence of aggravated sexual assault).  The complainant indicated that she wanted to go home.  She and the applicant then walked together to her flat.  Upon reaching the flat the complainant told her flatmate about what had occurred and also informed the applicant that she was going to call the police.  She then did so. Following the phone call, the applicant pursued the complainant and struck her on the arm with a stick (this was the second offence of assault relied upon by the Crown).

8. A little later the applicant and the complainant went to Bathurst in the complainant’s car which the applicant drove.  There they briefly went to the applicant’s premises.  Later still, they went down to the river where the applicant committed two further acts of sexual assault upon the complainant.  One such act was constituted by digital penetration and the other involved an act of penile/vaginal intercourse.

9. Following those assaults the complainant then drove herself back to Cowra where she made a further complaint to her flatmate.  She then reported the matter to police  She was medically examined and although she had no injuries to her genitalia, she did have minor abrasions and light bruising to her body.  Apart from the injuries observed by the doctor (which were consistent with the complainant’s account), there was other evidence which demonstrated that the complainant and the applicant had been together during the period of time in question.  The applicant denied all but one of the acts of intercourse, which act he claimed was consensual.  The sentencing judge nonetheless described the Crown case as being “strong”.

10. The sentencing judge concluded that during the time that they were together, which was “about seven hours in all, the offender kept the complainant under his control and he subjected her to two physical assaults and four sexual assaults”.  Regarding the applicant’s motivation, his Honour concluded that “it was not to obtain sexual gratification, it was to control her and teach her a lesson”.

11. The applicant was aged 24 at the time of the offences.  He is of Aboriginal descent.  He grew up in the country and appears to have had a difficult upbringing. His parents separated shortly before he was born. His mother was unable to care for him because she was suffering from the effects of alcoholism.    He was raised, for all practical purposes, by his aunts, one of whom has since died.  The applicant left school when he was 15.  After leaving school he undertook and completed a number of trade courses at TAFE colleges.  Is to his credit that he has been in regular employment since leaving school, mainly as a labourer.  At the time of the offences he was working in a childcare centre in Bathurst and the evidence indicates that he was regarded as a hardworking and respected employee.  The applicant suffered a collapsed right lung at the age of 17.  His other lung collapsed when he was 22.  The evidence indicated that he nonetheless was a keen and active sportsman.  The applicant admitted that he was intoxicated on the night of the offences and conceded that he was a “binge” drinker on weekends.

12. As I have indicated, the applicant has a criminal record.  Apart from the matter to which reference has already been made, the only offences of any moment occurred in 1999 when he was placed on a recognisance in respect of matters of common assault and assault occasioning actual bodily harm.  None of the other matters on his record had attracted a custodial sentence.

13. As I have said, apart from the matters of common assault, standard non-parole periods applied to the offences in question.  The sentencing judge explained his reasons, as the relevant legislation required him to do, for not setting those periods.  His Honour said:

    I consider that, viewed objectively, the offences of sexual intercourse without consent and the offence of aggravated sexual intercourse without consent committed by the offender upon the complainant for (sic) below the mid range of offences of those kinds.  That is not to say that the offences committed by the offender were not serious offences.  They were obviously objectively serious offences.  However, they were not planned, being opportunistic, and the injuries suffered by the complainant were relatively minor, albeit that, as I have said, forced sexual intercourse, whether aggravated or not, causes a substantial emotional harm.  Because I consider that the offences fall below the mid range of objective seriousness for those kinds of offences I need not set the standard non parole period for the offences.

14. His Honour found “special circumstances” but only by reason of the fact that he was imposing sentences that were partly accumulated.

15. At the forefront of the applicant’s submission is a complaint that the sentencing judge had regard to various aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act in a manner that was impermissible.  Upon this aspect of the matter his Honour observed:

    Having regard to what I have said about the offences and the offender, in so far as the aggravating factors are concerned, they are those lettered (d), (g) because I regard forced sexual intercourse as causing substantial emotional harm, (j) and (l) because the complainant was alone at night when she was confronted by the offender, in subs 2 of s 21A of the Crimes (Sentencing Procedure) Act.

16. The first complaint is that the sentencing judge regarded the applicant’s prior criminal record as an aggravating factor.  Of a similar submission in R v Blair (2005) 152 A Crim R 462, Grove J (with whom James and Barr JJ agreed) said:

    I would suggest that it is unfortunate that the legislature has included “a record of previous convictions” in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualification in s 21A(4) that a court does not have regard to any such factor as specified if it is contrary to “rule of law” to do so. “Rule of law” is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution, deterrence or community protection Veen v The Queen (No 2) 1998 164 CLR 465; R v Wickham [2004] NSWCCA 193. (at par 53)

17. In R v Hathaway [2005] NSWCCA 368, McClellan CJ at CL pointed out that such an approach had also been adopted in R v Shankley [2003] NSWCCA 253; R v Johnson [2004] NSWCCA 76; R v Berg [2004] NSWCCA 300; R v McQueeney [2005] NSWCCA 168 and R v Bellamy [2005] NSWCCA 329.

18. His Honour then continued:

    In Veen v The Queen (No 2) (1988) 164 CLR 465 the High Court considered the correct approach when sentencing an offender with previous convictions. Veen was, of course, decided before s 21A was enacted. In the well known passage in the joint judgment of Mason CJ and Brennan, Dawson and Toohey JJ at p 477 their Honours provide a statement of the principles relevant to the sentencing of an offender with an antecedent criminal history.

    Their Honours identify the following elements:

    1.            Antecedent criminal history of an offender is a relevant consideration in determining the sentence to be imposed.

    2.            Although the antecedent criminal history is relevant the penalty imposed must remain proportionate to the gravity of the instant offence.

    3.            Antecedent criminal history is relevant to whether the offence should be characterised as aberrant behaviour by the offender or whether it is part of a continuing attitude of disobedience of the law which may, having regard to the need for retribution, deterrence and protection of society, indicate a more severe penalty is warranted.

    4.            Antecedent criminal conduct may reveal the moral culpability of the offender.

    5.            Antecedent conduct is not only relevant to a claim for leniency (however this statement may not be consistent with Gummow J’s comment in Ryan v The Queen (2001) 206 CLR 267 at [67]).

    It has been suggested, and the Crown submits in the present appeal, that elements three and four should be understood as acknowledging a role for the offender’s record when determining the objective circumstances of the offence (see Hunt D and Donnelly H, “The Objective Circumstances of the Case and Prior Record” (1995) 7 Judicial Officers Bulletin 57 where reference is made to R v Smith unreported, NSWCCA, 16 December 1993). In Smith Allen J (with whom Hunt CJ at CL and Newman J agreed) stated that an offender’s record is material “to the assessment of the objective gravity of what he did” at 8-9; R v Thorp, unreported, NSWCCA, 16 December 1993 at 11; Camilleri’s Stock Feeds Pty Ltd v EPA unreported, NSWCCA, 17 December 1993, at 32; consideration of the matter was also given in R v Mulholland (1990) 1 NTLR 1 and there is a statement to similar effect in the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 at [48]. (at pars 31-33)

19. Spigelman CJ observed:

    This is not an appropriate case for this Court to review the consistent recent line of authority on the relationship between s 21A(2)(d) and s 21A(4) of the Crimes (Sentencing Procedure) Act 1999.  If it is to be reviewed by reason of the submission that the Crown has advanced in this case that there is an inconsistency with earlier authority, particularly with the passage in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478, then that is a matter, in light of the consistency of recent cases, that needs to be determined by a Bench of five.  (par 2)

20. In my view the applicant’s prior record could not be described as demonstrating a “continuing attitude of disobedience of the law” or as revealing “the moral culpability of the offender” in the sense in which those expressions were used in Veen v The Queen (No 2) (1988) 164 CLR 465. Accordingly, the sentencing judge fell into error. That being so, it is unnecessary to further consider the issue raised in Hathaway (supra).  However, it is worth reiterating what this Court said in R v Walker [2005] NSWCCA 109 in which the view was expressed that it was unsatisfactory for a sentencing judge to make only a passing reference to the sub-section in question without indicating the precise manner in which the matter was taken into account.

21. The second basis upon which error is asserted lies in his Honour’s conclusion that s 21A(2)(g) (“the injury, emotional harm, loss or damage caused by the offence was substantial”) was attracted. The challenge is to his Honour’s observation that he regarded “forced sexual intercourse as causing substantial harm”. Later his Honour said that “forced sexual intercourse, whether aggravated or not, causes a substantial emotional harm”.

22. So much may be immediately accepted.  The distressing consequence of acts such as those engaged in by the applicant constitutes the essence of the offence and is a major reason why severe criminal penalties are attached to offences such as the present ones.  However, that is not the issue to which the particular provision is directed.  In R v Youkhana [2004] NSWCCA 412, Hidden J (with whom McColl JA and Levine J agreed) said:

    However, before a judge could find “substantial emotional harm” within the meaning of s21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There was no such evidence here. (par 26)

23. In R v Solomon [2005] NSWCCA 158, Howie J (with whom Grove and Latham JJ agreed) said:

    Because the court assumes, without evidence, that the victim of a robbery would be affected both physically and psychologically from the commission of the offence and because that consequence of the offence is taken into account generally in determining that the offence is to be considered as a serious one requiring condign punishment, it would be unfair for the court to take into account as an additional aggravating factor under s 21A(2)(g) the fact that the victim of an armed robbery suffered the type of harm that is assumed to be the case for any victim of that offence: there would be in effect a double counting of an aggravating feature of the offence. Therefore, in order to take into account the effect upon the victim of the offence as an aggravating feature over and above that which applies to armed robbery offences in general, something more is required than that which the court has assumed to be the case.

    Nothing in Youkhana should be taken to suggest that the normal or assumed effects of an armed robbery upon a victim are not substantial. The case is simply authority for the proposition that, in order to avoid double counting of aggravating factors, the court cannot take into account as an aggravating feature of a particular crime the effects upon a victim that would be expected to result from the commission of that type of offence. There may be cases at the margin where some judgment might have to be made about whether the severity of the effect of a particular offence on a particular victim is such that the offence should be considered to be aggravated. But the present case is not one of them. In my opinion from the passages of the victim impact statements set out above it is clear that it was open for the Judge to find that the offences were each aggravated by the effect that they had upon the relevant victim. (pars 19-20)

24. The same process of reasoning should apply equally to the present offences.  There was evidence that the complainant was distressed but regrettably that was precisely what was to be expected.  There was nothing however in the evidence to suggest that the harm was “substantial” in the sense to which the authorities direct attention.  Putting the matter another way, there was no evidence that the effect of the crime upon the complainant was other than was to be anticipated from the commission of what were undoubtedly very serious offences.    Error has thus been established.

25. The final matter relates to the vulnerability of the complainant.  In R v Tadrosse [2005] NSWCCA 145, this Court said:

    Before s 21A(2) was enacted, the common law recognised that there were certain categories or classes of persons who needed to be especially protected because they were particularly vulnerable to criminal offences generally or a criminal offence of a particular type. Of course the purpose of sentencing is to protect the community generally and this is achieved by each of the aims of sentencing such as deterrence, denunciation and rehabilitation. But an aggravating factor is something that operates over and above the general considerations that indicate that a particular class of offending should generally be dealt with in a particular way.

    It may well be the case the persons generally in the community would be vulnerable to a proficient fraudster armed with forged documents such as a driver’s licence because it is common to rely upon such documents as proof of identity. But that fact does not give rise to an aggravating factor under s 21A(2)(l). That provision is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender.

    In R v Williams [2005] NSWCCA 99 this Court held that a sentencing judge was in error in taking into account as an aggravating factor under the section that the victim of a manslaughter offence was vulnerable. Buddin J with whom the other members of the Court agreed stated:

    [40]……………The sentencing judge concluded that the deceased was vulnerable, as I understand his Honour’s reasons, upon the basis that the applicant was a powerful man who had violent tendencies, whereas the deceased did not have those characteristics. That was clearly a matter that was relevant to an assessment of the objective gravity of the offence. It should not however have been treated as a factor which further aggravated the offence.

    [41] In any event all victims of a homicide can be said to be vulnerable. In my view, s 21A(2)(l) is not directed to vulnerability in that generalized sense. Indeed, the examples set out in the subparagraph suggest that it is vulnerability of a particular kind that attracts its operation.

    The Judge in the present case was in error into taking into account in any manner that the victims of the applicant’s offences were vulnerable. (pars 25-27)

1. It is true that the complainant, an adult woman, was subjected to serious sexual indignities late at night.  She was not however vulnerable in the sense in which the section contemplates.  In my view, and as I understand the situation the Crown conceded as much, the sentencing judge has fallen into the same kind of error that was identified in Tadrosse. 

2. The question remains as to what consequence flows from those errors. The issue which now presents itself is whether pursuant to s 6(3) of the Criminal Appeal Act “some other sentence[s]…less severe are warranted in law and should have been passed”.  In approaching that question it is necessary to bear in mind the observations of Spigelman CJ in R v Simpson (2001) 53 NSWLR 704, in which his Honour said that the “primary perspective should be the length of the minimum period of actual incarceration” (at 717).

3. Notwithstanding the sentencing judge’s conclusion that the standard non-parole periods did not apply, it is clear that the periods thereby specified provide a “guidepost, or benchmark, against which the case [under consideration can] be compared”:  R v Way (2004) 60 NSWLR 168 (at 193). Moreover, this was a case in which the applicant was not able to rely upon a plea of guilty or any demonstration of remorse. On the contrary, he continued to maintain his innocence when he gave sworn evidence during the course of the sentence proceedings. He told the author of a pre-sentence report that he was “disgusted” about the complainant’s behaviour in “distorting what he considers to be the truth of what happened between them”. The offences of which the applicant was convicted spanned a not inconsiderable period during which time, as the sentencing judge found, the complainant was under the applicant’s control. The most serious offence was accompanied by a threat of violence. On two separate occasions the applicant also subjected the complainant to physical violence. Finally and significantly the applicant, as I have said, was on bail at the time of these offences in respect of other acts of violence perpetrated upon the same complainant. That is a matter which aggravates the present offence: see s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999; R v Richards [1981] 2 NSWLR 464; R v Fernando [2002] NSWCCA 28; R v Cicekdag [2004] NSWCCA 357.

4. In light of those considerations, and after giving due consideration to the standard non-parole periods provided for by the legislature in respect of these offences, I am of the view it is not open to conclude that some less severe sentences should have been passed. 

5. For similar reasons the challenge to the sentences as being manifestly excessive must also fail.

6. I propose that leave to appeal should be granted but that the appeal should be dismissed.

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LAST UPDATED:               17/02/2006