R v HQ

[2003] NSWCCA 336

CITATION:	REGINA v HQ [2003] NSWCCA 336
HEARING DATE(S):	31 October 2003
JUDGMENT DATE:	31 October 2003
JUDGMENT OF:	Spigelman CJ at 1, 57; O'Keefe J at 51; Greg James J at 52
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence - attempt to strangle victim with intent to commit aggravated indecent assault - aggravated sexual intercourse without consent - weight to be given to circumstances of custody - relevance of psychiatric condition - existence of special circumstances - where non-parole period slightly higher than statutory proportion - whether error in partial accumulation of sentences - whether sentence manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 ss 37, 61J Crimes (Sentencing Procedure) Act 1999 ss 21A, 44 Criminal Appeal Act 1912 s 6
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Bo Too (unreported, NSW Court of Criminal Appeal, Hunt CJ at CL, Handley JA and Badgery-Parker J, 16 July 1992) R v Brindley (1993) 66 A Crim R 204 R v Fisher (1989) 40 A Crim R 443 R v GDR (1994) 35 NSWLR 376 R v Simpson (2001) 53 NSWLR 704 R v Totten [2003] NSWCCA 207
PARTIES :	Regina (Respondent) HQ (Applicant)
FILE NUMBER(S):	CCA 60233/03
COUNSEL:	P Boulten SC (Applicant) D Howard (Respondent)
SOLICITORS:	S O'Connor (Applicant) C K Smith (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0075
LOWER COURT JUDICIAL OFFICER :	English DCJ

60233/03

SPIGELMAN CJ
O’KEEFE J
GREG JAMES

Friday 31 October 2003

REGINA v HQ

Judgment

1 SPIGELMAN CJ: The Applicant pleaded guilty on arraignment in the Gosford District Court to three counts arising from an attack and sexual assault he committed on 19 January 2002. The victim (RJL) was the Applicant’s stepdaughter. He was the only father figure that she had ever known. She was 15 at the time of the attacks.

2 The three counts were:

(i) attempt to strangle the victim with intent to commit an aggravated indecent assault, contrary to s37 of the Crimes Act 1900 for which the maximum penalty is 25 years’ imprisonment.

(ii) attempt to strangle the victim with intent to commit aggravated indecent assault, contrary to s37 of the Crimes Act for which the maximum penalty is 25 years’ imprisonment.

(iii) sexual intercourse without consent in circumstances of aggravation contrary to s61J(1) of the Crimes Act 1900 for which the maximum sentence is 20 years’ imprisonment.

3 As will presently appear the counts related to a single course of events on the night of 19 January 2002. Nevertheless her Honour was obliged to impose separate sentences for each offence. The fact that there was a single course of events is reflected in the overlapping nature of the sentences imposed.

4 Her Honour imposed the following sentences:

Count 1 - a fixed term of imprisonment for seven years commencing on 22 January 2002 and expiring on 21 January 2009.

Count 2 - imprisonment for 11 years commencing on 22 January 2004 and expiring on 21 January 2015 with a non-parole period of eight years and three months commencing on 22 January 2004 and expiring on 21 April 2012.

Count 3 - a fixed term of imprisonment for 10 years commencing on 22 January 2002 and expiring on 21 January 2012.

5 The effective sentence imposed was 13 years with an effective non-parole period of 10 years and three months.

6 The relationship between the Applicant and the victim and her young age, to which I have already referred, manifest the gravity of the offences that were committed. The circumstances in which they were committed reinforced the seriousness of the offences. Her Honour’s findings in her remarks on sentence were as follows:

“During the early hours of the morning the offender entered the victim’s bedroom and sat on her bed. He woke her and asked her if he could touch her. She replied ‘No’. The offender then produced a knife which he held in front of her face. He told her to be quiet or he would kill her brother and cousin. He told her to go downstairs. She walked down the stairs behind him. He continued to hold the knife, she walked into the back room and sat on the sofa. He sat down very close to her. She stood up and attempted to move away but he stood in front of her, forcing her to step backwards, positioning her between the computer and the sofa. He attempted to touch her breast with one hand whilst holding the knife in the other. She was pushing him away and saying to him ‘Just leave me alone, don’t touch me’. He then said ‘You don’t understand. If any of these kids get up I’ll take them with me and it will be your fault. You’ll be the one who has to live with it. It will be on your hands.’ He grabbed her around the neck with two hands and squeezed her neck. She was punching him in the face with a closed fist and she was experiencing trouble breathing.
He then let go of her neck and held the knife in front of her face. She continually repeated ‘Just leave me alone, go away’ but he kept repeating ‘Just let me touch you once, just for five minutes and then I’ll go away’. She kept pleading with the offender to leave her alone and he said ‘You don’t understand, I just tried to kill you and you don’t even care’.
The offender then grabbed the victim with his two hands and attempted to strangle her again. She says she could not breathe, she attempted to punch him in the face. She could recall losing bladder control and the next thing she recalls is waking up on the floor next to the sofa. The offender was sitting on her stomach squeezing her throat with his left hand and pulling up her boxer shorts with his right. He said to her ‘Be quiet and don’t scream’. He let go of her throat, stood up and walked to his bedroom. After about five minutes, when she was able, she stood and went to her room. She heard his car driving away. She woke her cousin and they contacted her mother.”

7 During the period that the victim was in a state of semi-consciousness, before recalling waking up on the floor next to the sofa, an act of sexual intercourse was perpetrated. The Applicant penetrated the victim’s vagina with his penis and ejaculated. His semen was present on swabs taken from the victim’s vagina and vulva. Before this incident the victim was a virgin.

8 Her Honour made the following additional findings:

“The victim suffered from physical injuries as a result of the attempted strangulations. She suffered from subconjunctival bilateral upper and lower haemorrhage, her tongue was swollen, she had bruising on her neck, she had areas of bruising and swelling on her head which were tender, she had bruising over her clavicle and was tender in her thoracic and lumbar spines. She was tender in the area of her labia and the posterior fourchette was red and inflamed. She has experienced a devastating and humiliating attack upon her, an attack in the sanctity of her own home.
She describes the memories of the attack as horrific even eight months after the event. She is experiencing nightmares and flashbacks. She has undergone extensive counselling. She has been unable to remain in her family home where the attack took place. She has been required to move in with her grandparents, she has been forced to change schools and counsellors and she is taking anti-depressant medication.
She is a young girl who has been deprived of a normal adolescence from a person she regarded as her father. The thought of sexual intercourse to her is now abhorrent.”

9 Her Honour indicated clearly the seriousness of the offences in the particular circumstances in which they were committed. She set out the Applicant’s subjective circumstances, but emphasised the requirements of punishment and deterrence in the following passage from her remarks on sentence.

“Any such offence against children must be regarded by this Court, in its role of protecting the children within our society, as being of an extremely serious nature. It has been said time and time again that sexual assault upon children, especially by those who stand in a position of trust to them, must be severely punished and those who engage in this evil conduct must go to prison for a long, long time. Not only to punish them, but also in an effort to deter others who may have similar inclinations.”

10 There are six grounds of appeal, the last of which, with reference to some of the matters the subject of earlier grounds, is that the sentences are manifestly excessive.

11 The first ground of appeal is that her Honour erred by giving inadequate weight to the fact that the Applicant will serve his sentences in strict protective custody. It is well established that this is a material factor to be taken into account in determining the sentence. It was required to be taken into account by s21A(3) of the Crimes (Sentencing Procedure) Act 1999 as in force at the time the Applicant was sentenced.

12 Her Honour was well aware of the fact that this would occur. She said in her remarks on sentence:

“The offender finds himself in custody in harsh conditions with no contact with those whom he regarded as his children and his former partner. He is fortunate that his parents and brother have chosen to stand by him, however his future is bleak.”

Subsequently she said:

“He is being kept in strict custody. He has already been assaulted..."

13 There was no evidence before her Honour of the different kinds of protective custody which may occur. Cf R v Totten [2003] NSWCCA 207 at [43]. Her Honour’s reference to “strict custody” indicates that her Honour proceeded on the basis that the conditions of imprisonment would be harsh.

14 The only basis for suggesting that her Honour had given “inadequate weight” to the strictness of the Applicant’s confinement is the proposition that there is no obvious manifestation of a “substantial reduction” in sentence for this consideration. Specifically, there was no finding of special circumstances so as to reduce the non-parole period below the statutory proportion. Further, each of the sentences were, it was submitted, heavy, indeed said to be excessive.

15 These submissions manifest that this is not a separate ground of appeal at all. The element of protective custody was a factor to be taken into account in the overall sentence. It was not an item that required any kind of separate computation. Her Honour referred to it as one of a range of relevant considerations which she had taken into account. Unless there is some indication in the final head sentence or the non-parole period that of itself manifests error, there is no basis upon which it could be said that her Honour failed to give this consideration adequate weight.

16 The second ground of appeal is that her Honour erred by giving inadequate weight, if any at all, to the fact that the Applicant was suffering from a major depressive illness. Her Honour referred to the evidence before her in the following terms:

“He has been assessed as suffering from a major depressive illness with a moderate to severe adjustment disorder with depression. In the opinion of Dr Westmore he remains at high risk of self harm.”

17 Her Honour earlier referred to the occasion, shortly after the offences were committed, when the Applicant had surrendered himself to police in circumstances where he ingested rat poison. She also noted “he has attempted self harm whilst in custody”.

18 There is no doubt that the offender’s psychiatric condition is relevant to the sentencing task. Her Honour’s references to the psychiatric evidence indicate that she was well aware of this. In his written submissions Mr P Boulten SC, who appeared for the Applicant, stated:

“But, other than reciting these facts in her judgment, her Honour gave no indication of what weight, if any, she gave to these factors and, if so, what effect they had on the sentences she imposed.”

19 The submissions went on to refer to the length of the head sentences and the failure to find special circumstances as tending to indicate “that if these matters were considered as mitigating circumstances they received little or no weight in her Honour’s assessment of all the facts”.

20 Her Honour was under no obligation, in this respect as with respect to the first ground of appeal, to identify any particular “weight” given to these matters. The submission indicates that, in this case also, this is not truly an independent submission.

21 If the head sentence or the non-parole period is manifestly excessive then this consideration may be part of the explanation for it being so. Similarly, if the statutory proportion ought to have been varied there is possibly an explanation of some character to be found in this matter. As a separate ground of appeal however, it should be rejected. Her Honour took the matter into account and, subject to other grounds of appeal, there is no reason to conclude that it was not afforded such weight as was within her discretion to give.

22 The next ground of appeal is that her Honour erred by giving inadequate weight to the fact that the offences were uncharacteristic of the Applicant. Her Honour dealt with this matter in her remarks on sentence in the following way:

“I am asked to find that this was an out of character attack. His criminal antecedents do not disclose charges of a like nature, however his criminal record does disclose offences of malicious injury, common assault, assault occasioning actual bodily harm and alcohol related offences."

23 The written submissions for the Applicant submitted that, although there had been offences of violence, there had not previously been a conviction for any form of sexual misconduct. It was suggested that the “isolated nature of the offences” should have been identified “as a significant feature” attracting “specific comment” in the remarks on sentence and, particularly, a reference to leniency being attracted by a specific finding that “the incident was out of character”.

24 There is no magic in a finding, in terms, that a particular incident was “out of character”. Her Honour made it quite clear that she understood that there were no offences of “a like nature”, but that there had been significant offending, including acts of violence. In these circumstances this consideration, in the light of the seriousness of the particular offences, was entitled to be given minimal weight, as it appears her Honour did.

25 Ground four is that her Honour erred by failing to find that there were special circumstances within the meaning of s44 of the Crimes (Sentencing Procedure) Act 1999. It was submitted that her Honour failed to give consideration to the issue of special circumstances or if she did she erred by failing to find the particular circumstances did amount to special circumstances.

26 Reference was made to the judgments of Hunt CJ at CL in R v Brindley (1993) 66 A Crim R 204 and R v Bo Too, (unreported, NSW Court of Criminal Appeal, Hunt CJ at CL, Handley JA and Badgery-Parker J, 16 July 1992), in which his Honour suggested that a sentencing judge should refer to the issue of special circumstances, because a failure to do so may lead to an inference that no consideration was in fact given to varying the statutory proportion.

27 These observations of Hunt CJ at CL were made in a context where his Honour had a view as to the nature of matters capable of constituting special circumstances which was much narrower than has subsequently been accepted in this Court. This, undoubtedly, affected his Honour’s attitude to the advice he gave to sentencing judges in the passages relied upon by the Applicant in this case. In any event in R v Simpson (2001) 53 NSWLR 704 at [86], in a judgment with which Mason P, Grove and Sully JJ and Newman AJ agreed, I indicated that there was no obligation on a sentencing judge to give reasons for not varying the statutory proportion.

28 The Applicant made reference to a number of matters capable of constituting special circumstances including the fact that the Applicant will serve his sentence in strict protection and the depressive illness from which he suffers. Particular attention was drawn to the submission that alcohol played some role in the offending conduct and that, accordingly, there could be a need for an extended period of supervision following the Applicant’s release from custody.

29 As to the element of alcohol counselling to which reference was made, her Honour made express findings which contradict any suggestion that this was a matter entitled to substantial weight in the determination of whether special circumstances of a relevant character existed. Her Honour said:

“The evidence of the victim’s mother...describes the offender as a happy drunk, a man who only drank one night a week because he worked shift work. She does not give evidence of finding him out cold on a lounge room floor and throwing a rug over him, leaving him there, an account which he related to Dr Westmore.
The offender’s evidence as to his state of intoxication I find to be full of inconsistencies. Whilst he says he cannot remember what took place, he can remember his movements during the afternoon and leading up to the attack upon his stepdaughter. I find in this regard he is being less than frank with Dr Westmore and the Probation Service and, in turn, this Court.
I find he has put forward excessive intoxication as an excuse.”

30 It was also submitted that, as a matter of mathematical calculation, the relationship between the effective head sentence and the effective non-parole period was slightly higher than the statutory proportion at 78.84 percent.

31 The fact that the non-parole period actually imposed is marginally different to the statutory proportion is not such as to warrant the intervention of this Court. This is an inevitable consequence of the necessity to sentence for each offence in accordance with the High Court’s decision in Pearce v The Queen (1998) 194 CLR 610 where the Court sentences for multiple offences in circumstances where a degree of overlapping between the sentences is appropriate.

32 Furthermore, as I said in R v Simpson at [70]:

“This statutory guide or fetter or constraint operates in one direction. It is a hurdle to be overcome if a lower proportion than that for which the statute provides is to be determined. There is no hurdle for a sentencing judge if that judge wishes to impose a higher than statutory proportion. Indeed, at all times the sentencing judge has had a discretion to impose a fixed term without a non-parole period of any character...”

33 The statutory provision found in s44 imposes a “fetter” or “constraint” on what would otherwise be an unfettered and unconstrained discretion. (See R v GDR (1994) 35 NSWLR 376 at 379E and 381E-382B; R v Simpson at [61].) Nevertheless a decision as to whether or not to vary the statutory proportion is a discretionary decision. It is never sufficient, on appeal, simply to identify the factors that may be able to constitute “special circumstances”. The issue in each case is whether or not those factors are such, in the particular circumstances of the case, “as to justify a lower than statutory proportion”. (See R v Simpson at [68].)

34 The circumstances in which a successful appeal can be based on a failure to vary the statutory proportion are limited. As I said in Simpson at [73]:

“It will be a very rare case in which there is no fact capable as a matter of law of constituting a ‘special circumstance’. The decision is first one of fact - to identify the circumstances – and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.”

35 I can see no reason for interfering with her Honour’s decision in this case, unless the determination of the non-parole period is manifestly excessive. Nothing in the matters said to constitute a special circumstance on the facts of this case are of such a character that the sentencing judge was obliged to vary the statutory proportion. The refusal to do so was well within the exercise of her discretion.

36 The fifth ground of appeal is that her Honour erred by partially accumulating the sentence in relation to count two upon the sentences in relation to counts one and three. It was submitted that although there were two counts under s37 alleging that the Applicant attempted to strangle the victim with intent to commit an indecent assault, the two attempts to strangle occurred within a minute or so of each other and for the same purpose. It was noted that counts two and three were linked to each other because the “aggravated indecent assault”, which was the subject of count two was the sexual assault that occurred and became subject of count three. Nevertheless her Honour partially accumulated count two upon the sentences for counts one and three, which were completely concurrent with each other. The Applicant also submitted that the criminality in relation to count two, which resulted in an 11 year sentence was not significantly different from the criminality in relation to count one, which resulted in a seven year sentence.

37 Her Honour was entitled to determine that some partial accumulation ought occur. With respect to count one she imposed a fixed term because the sentence for that count would be entirely subsumed in the other count, which she described as “more objectively serious”. Her Honour was entitled to so find.

38 The element of accumulation which gave rise to a higher effective sentence was the overlap in the sentences for count two and count three.

39 The act of sexual intercourse without consent in the particular circumstances of aggravation was a significant offence of itself. It had been preceded by an attempt to strangle with intent to commit the conduct which constituted the second offence. However, the two offences were distinct in their criminality. It would, in my opinion, be rare that sentences for offences related in this way should be entirely concurrent. Her Honour was entitled, within the exercise of her discretion, to determine that each of these distinct offences should contribute separately to the effective punishment, so that one was not entirely subsumed within the other. I can see no error in anything that her Honour said or did in this regard. The sentences imposed do not offend the principle of totality.

40 The final ground of appeal is that the sentences are manifestly excessive. Counsel for the Applicant noted that, by reason of her Honour’s reference to a discount for the plea of guilty, her Honour’s starting point must have been well in excess of 15 years mandatory effective sentence. It was submitted that this was a manifestly excessive starting point. Furthermore, even when discounted, the period of 13 years was, it was submitted, itself manifestly excessive.

41 Particular attention was directed to the differences in sentences between counts one and two. The former attracted a fixed term of seven years whereas the latter attracted a head sentence of 11 years with a non-parole period of eight years and three months. The submissions for the applicant compared the head sentence of count two with the fixed term for count one. That is not appropriate where her Honour intended to make the fixed term cumulative with another sentence. A more relevant comparison is between the fixed term for count one and the non-parole period for count two, i.e. between seven years and eight years and three months.

42 The difference between the two offences was, it was submitted, simply one of timing and not a great deal of time differences was involved. In my opinion, the second count of strangulation was significantly more grave than the first. It was on the second occasion that strangulation led to the victim saying that she could not breathe. Furthermore, she first lost bladder control and then lapsed into semi-consciousness. Such differences indicate that the second count was a more serious offence than the first.

43 Counsel for the Applicant relied on a range of considerations, including those matters which were the subject of separate grounds of appeal and to which I have referred above. He relied on the fact that the sentence would be served whilst in strict protection, that the Applicant was suffering from a major depressive illness and was manifesting a tendency to harm himself and that the offending conduct was uncharacteristic.

44 With respect to each of the individual sentences and with respect to the effective head sentence by reason of accumulation, I am satisfied that no other sentence was warranted in law within the meaning of s6(3) of the Criminal Appeal Act 1912.

45 First, with respect to the degree of overlap between the sentences, the effect of the partial accumulation was to increase the effective sentence by two years. This was entirely appropriate. It was well within the range of her Honour’s exercise of discretion to differentiate between the offences to that degree. Her Honour was entitled to conclude that the attempted strangulation should be subject to punishment to some degree over and above the sexual assault, and vice versa. As I have said, each manifested different criminality.

46 Secondly, in my opinion notwithstanding the substantial considerations to which the Applicant has made reference on the appeal, each head sentence is well within the range of her Honour’s discretion. These were serious offences. But for the plea of guilty and the significant subjective considerations to which reference was made, particularly the existence of a depressive illness, together with the harshness of the protective custody in which the sentences will be served, these were offences which may have attracted sentences close to the maximum penalty of 25 years for the s37 offence in count two and 20 years for the s61J(1) offence in count three. The degree of violence involved, and the abuse of a close personal relationship in this particular manner, would be such as to warrant punishment of the highest order, so that a sentence towards the maximum would not have been outside the permissible range.

47 The considerations upon which reliance was placed, particularly the plea, the harshness of the custody and the psychiatric illness, are such as to justify a sentence significantly below the maximum but what her Honour did with respect to each count, as with respect to the degree of accumulation, was well within the exercise of her discretion.

48 The only matter which has given me some pause is the non-parole period. It will be served in the difficult circumstances of protective custody by a person suffering from a psychiatric illness.

49 Her Honour was well aware that being kept in harsh conditions of this character was the likely fate of the Applicant throughout his prison term. It could have justified her Honour exercising the discretion to vary the statutory proportion and to impose a lower non-parole period. The issue for this Court, however, is whether her Honour erred in not doing so, to the degree that the non-parole period should now be seen as manifestly excessive or that a finding of special circumstances was required. Given the seriousness of the offences I am not satisfied the exercise of her Honour’s discretion erred in this way.

50 I would grant leave to appeal but dismiss the appeal.

51 O’KEEFE J: I agree.

52 GREG JAMES J: This is regrettably, in my view, a matter where I differ from the conclusion reached by the Chief Justice and O’Keefe, J. as to the disposition of this appeal.

53 Section 6(3) of the Criminal Appeal Act 1912 provides that:-

“On an appeal under s.5(1) against a sentence, a court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal.”

54 I have come to the conclusion, in relation to the non-parole period and the effective overall non-parole periods, made up as it is in its totality by the imposition of fixed terms and non-parole periods, that the minimum time that the applicant must thereby spend in custody for these offences exceeds that which is warranted in law and should have been passed. I have come to that view when considering the non-parole period imposed in its context, having regard particularly to the plea of guilty, the value of that plea not only for utilitarian reasons but to avoid further trauma to the victim, the liability of the applicant to serve the sentence in the protective custody to which the Chief Justice has referred and the overall effect of the sentence, having to be served in that protective custody, on the applicant. That last consideration is most marked in its effect on the non-parole period which is the time the applicant must spend in custody. It is, however, only in respect of the length of the non-parole period that I do not share the views of the Chief Justice and O’Keefe J.

55 The offences which brought the appellant forward for sentence were, in my view, extremely serious. Nonetheless, as I have said, in my view, they were not such as would deprive him of the benefit of a real parole period and as to merit his being suitably punished by a sentence as long and to be served in conditions as onerous as this, at least so far as the non-parole period component of the sentence is concerned.

56 However, I am in minority on this aspect only of this appeal, and so, in my view it is unnecessary for me to proceed any further. I appropriately should take the course taken by Mathews, J. in similar circumstances in Regina v. Fisher (1989) 40 A. Crim. R. 443 of publishing my reasons for my dissent in short form as I do.

57 SPIGELMAN CJ: The orders are leave to appeal is granted but the appeal is dismissed.

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Last Modified: 11/26/2003