R v JRB

[2006] NSWCCA 371

CITATION:	Regina v J.R.B [2006] NSWCCA 371
HEARING DATE(S):	2006/2227
JUDGMENT DATE:	29 November 2006
JUDGMENT OF:	James J at 1; Hidden J at 56; Hislop J at 57
DECISION:	Leave to appeal granted - sentence quashed; In lieu thereof set a non-parole period of fifteen months, commencing on 14 September 2006 and expiring on 13 December 2007, with a balance of term of one year nine months commencing on 14 December 2007 and expiring on 13 September 2009; The respondent to be released on parole on 13 December 2007.
CATCHWORDS:	Criminal Law: Sexual intercourse without consent - prisoners being denied access to medical treatment. - Whether too much weight was given to the sentencing judges previous experience
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
CASES CITED:	R v Crisologo (1997) 99 A Crim R 178 R v Hartikainen (unreported Court of Criminal Appeal 8 June 1993) R v May [1999] NSWCCA 40 R v Wall [2002] NSWCCA 42 Weininger v The Queen (2003) 77 ALJR 872
PARTIES:	Regina v J.R.B
FILE NUMBER(S):	CCA 2006/2227 CCAP
COUNSEL:	W Dawe QC - Crown SJ Odgers SC - Respondent
SOLICITORS:	Solicitor for Public Prosecutions - Crown -
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/41/0274
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ
LOWER COURT DATE OF DECISION:	14/09/06

2006/2227

JAMES J
HIDDEN J
HISLOP J

29 NOVEMBER 2006

Regina v J. R. B

Judgment

1 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent by his Honour Judge Goldring in the District Court on 14 September 2006. For an offence of having sexual intercourse without consent, of which the respondent had been found guilty at a trial, his Honour imposed a sentence consisting of a non-parole period of three months with a balance of term of two years nine months. The victim of the offence was a young adult woman, who I will refer to as the complainant.

2 Having sexual intercourse with another person without the consent of that other person knowing that the other person does not consent to the sexual intercourse, is an offence under s 61I of the Crimes Act for which the maximum penalty is imprisonment for fourteen years and for which there is a standard non-parole period of seven years.

3 The following objective facts of the offence, as found by his Honour in his remarks on sentence, were not the subject of any challenge on the hearing of this appeal.

4 The complainant had been friendly with the respondent and his family for many years, the complainant being about the same age as the respondent’s children. At the time the offence was committed the complainant was a single mother living with her young child.

5 The respondent carried on a part-time business supplying and servicing home computers. The respondent supplied a computer to the complainant and subsequently called regularly, approximately monthly, at the complainant’s home to service the computer. The complainant kept the computer in her bedroom and the respondent serviced the computer in the complainant’s bedroom.

6 On the night of 4 December 2003 the respondent arrived at the complainant’s home to service the computer. The complainant had been drinking heavily and continued to drink alcohol after the respondent arrived at her home. The complainant was wearing only a long T-shirt and was not wearing any underwear.

7 The respondent serviced the computer in the complainant’s bedroom, with the complainant being present in the bedroom. After some time the complainant lay down on the bed in the bedroom and went to sleep. The sentencing judge would appear to have accepted an assertion which had been made by the respondent that, as the complainant lay on the bed, her genital area was exposed and visible to him. The sentencing judge continued his statement of the objective facts of the offence by saying:-

“He took advantage of her state to have sexual intercourse with her. The complainant awoke during this episode, but did not say anything because of the shock and fear she felt. She pretended to continue to sleep. The offender ejaculated inside her, then got off and left the premises. The complainant continued to pretend to be asleep until she heard him leave the house”.

8 The complainant was shocked and distressed at finding a person “whom she regarded almost as a father” having intercourse with her. Apart from the force necessarily involved in the act of non-consensual intercourse, there was no force or threat of force by the respondent.

9 As soon as the respondent had left the house the complainant got up, washed herself and made a complaint on the Internet using her computer. A day or two later she made a complaint to her mother and her mother referred her to a Sexual Assault Unit. The complainant attended a hospital and swabs were taken from her vagina which revealed traces of semen.

10 The complainant made a complaint to police and on 19 February 2004 police interviewed the respondent in an electronically recorded interview. In answers given in the interview the respondent agreed that he had been at the complainant’s home on the night of 4 December 2003. However, when it was put to him that the complainant had alleged that on that night she had gone to sleep on her bed and had woken to discover that the respondent was having sexual intercourse with her, he replied “absolutely not. Absolutely not”.

11 On 19 February 2004 the respondent consented to the taking of a buccal swab from him for DNA analysis and a swab was taken from the respondent.

12 A DNA analysis was conducted of the swab taken from the respondent and of the traces of semen in the vaginal swabs taken from the complainant and it was found that the two DNA profiles were identical and would occur in fewer than one in ten billion individuals in the general population.

13 On 7 August 2004 police interviewed the respondent again and informed him of the DNA evidence. The respondent declined to make any comment about the DNA evidence or to say anything further until he had obtained legal advice. On 7 August 2004 the respondent was arrested and charged and then allowed bail.

14 Subsequently, the respondent admitted that he had had sexual intercourse with the complainant on 4 December 2003 but asserted that the complainant had consented to the sexual intercourse. He said that he had previously lied about whether he had had sexual intercourse with the complainant, because he had not wanted his wife to find out that he had been unfaithful to her.

15 A first trial of the respondent resulted in a hung jury. A second trial took place in June 2006 before his Honour Judge Goldring and a jury and on 9 June 2006 the jury returned a verdict of guilty.

16 Notwithstanding the verdict of guilty, Judge Goldring granted the respondent bail pending his being sentenced. The respondent was sentenced on 14 September 2006 and his Honour made the sentence he imposed commence from that date. The respondent had not served any pre-sentence custody.

17 In his remarks on sentence Judge Goldring observed that any offence of sexual intercourse without consent is a serious offence. However, his Honour noted a concession made by the Crown in the proceedings on sentence that the present offence was to be regarded as being at the lower end of the scale of seriousness for such an offence. His Honour pointed in his remarks on sentence to the lack of “any associated actual or threatened physical force” and to the absence of any evidence of planning. His Honour found that the offence had been an unpremeditated, spur of the moment event.

18 The respondent had maintained at his trial and had continued to maintain to the Probation and Parole Officer who prepared a pre-sentence report that the complainant had consented to the sexual intercourse. However, his Honour found in his remarks on sentence that, while the respondent did not admit that the intercourse was non-consensual, he did acknowledge that the intercourse was inappropriate and morally wrong, particularly having regard to the previous relationship between the complainant and the respondent and his family.

19 In his remarks on sentence the sentencing judge referred to the subjective circumstances of the respondent. At the time he was sentenced the respondent was fifty-two years old. He had been married for twenty-five years. His wife had forgiven him for the offence and was supportive. The respondent had been in continual employment during his adult life. He had no previous criminal history whatever and, hence, had never been in prison before.

20 There were before his Honour letters from Dr Robert Moses, the Director of the Illawarra Diabetes Service of the South Eastern Sydney & Illawarra Health Service.

21 In a letter of 19 July 2006 Dr Moses said:-

“(JRB) has been a patient of mine since 1998. He was diagnosed with type 2 diabetes in June 1995.
(JRB) has always exhibited a mature and responsible approach to the management of his diabetes. He has been community minded with a desire to help other people. He has participated in two major international diabetes clinical trials investigating the safety and efficacy of new products. The most recent of these only finished about 3 months ago. Since that time he has been treated with conventional therapy.
The majority of people participating in clinical trials have a desire to help other people, in this case with diabetes. It is a big commitment requiring regular review and blood testing. Over the course of a clinical trial (JRB) may have kept up to 30 appointments. On each of these occasions he has been seen by my clinical trial nurse, sometimes alone. There has never been a hint or suggestion of any impropriety.
It is important that all people with diabetes try and achieve and maintain as good diabetic control as possible. For this purpose (JRB) requires a diet and oral medication. If for any reason his diabetes was not to be under good control then he would be at markedly increased risk of adverse diabetes outcomes including myocardial infarction, cerebral vascular disease, blindness, kidney failure and peripheral vascular disease.
I hope that his need for ongoing treatment and his generosity in participating in research can be taken into account”.

22 In a letter of 29 August 2006 Dr Moses said that any increase in physical or emotional stress experienced by the respondent would lead to an increase in the level of stress hormones, which would have an anti-insulin effect and compromise the respondent’s own insulin resources, leading to a deterioration in the respondent’s control of his diabetes.

23 Apart from his diabetes, the respondent also suffers from hypertension.

24 In his remarks on sentence his Honour, after referring to and quoting from Dr Moses’ letters, referred to his own experience as a judge in other cases in which evidence had been given that prisoners who were diabetics had been refused access to insulin and these prisoners, while in court, had appeared to his Honour to demonstrate ill effects from being deprived of insulin. His Honour said that it was not always the case that prisoners within the correctional system who needed medical treatment received it.

25 In his remarks on sentence Judge Goldring, after some consideration of authorities including R v Hartikainen (unreported Court of Criminal Appeal 8 June 1993), R v May [1999] NSWCCA 40 and R v Crisologo (1997) 99 A Crim R 178 and after noting that by virtue of s 65B of the Crimes (Sentencing Procedure) Act a periodic detention order could not be made, proceeded to hold that a sentence of full-time imprisonment should be imposed. However, his Honour found special circumstance within s 44(2) of the Crimes (Sentencing Procedure) Act in the respondent’s previous good character and particularly in what his Honour found to be “the danger of serious risk to the offender’s life and health if he is in full-time custody for an unduly long period”.

26 A notice of appeal by the Crown against the sentence imposed by Judge Goldring was served on the respondent on 25 September 2006.

27 The sole ground of appeal is that the sentence was manifestly inadequate. However, a number of specific submissions were made in support of this general submission.

28 A number of the specific submissions made by the Crown can, in my opinion, be, fairly summarily, rejected.

29 Even if, as was submitted, the sentencing judge made some errors in his remarks on sentence in his account of what had happened in the complainant’s bedroom on the night of 4 December 2003 (being alleged errors not affecting the objective facts of the offence I have already stated), the particular errors suggested were not of any significance for the sentencing of the respondent.

30 I would reject a submission made by the Crown that the tenor of the sentencing judge’s remarks was that the complainant herself should be regarded as having substantially contributed to the offence which had been committed against her. I accept that in the part of the remarks on sentence relied on for this submission his Honour was merely making a finding that the offence had been unpremeditated. In his remarks on sentence the sentencing judge stressed that, notwithstanding that he had found that the offence was unpremeditated, it had been a serious criminal offence for the respondent to have sexual intercourse with the complainant.

31 I would reject a submission made by the Crown that it should be held against the respondent that, when on 7 August 2004 he was confronted with the DNA evidence, he declined to comment and did not assert, as he did subsequently, that the complainant had consented to the intercourse.

32 I would also reject a submission that the sentencing judge failed to have regard to the maximum sentence for the offence or the standard non-parole period for the offence, both of which were stated in his Honour’s remarks on sentence.

33 It was submitted that this Court should make a finding, contrary to the finding made by the sentencing judge, that the respondent’s offence was not at, but above, the lower end of the scale of seriousness for offences of having sexual intercourse without consent. However, the Crown had conceded in the proceedings on sentence that the respondent’s offence was to be regarded as falling at the lower end of the scale of seriousness for this offence. Such a finding was open to his Honour and cannot be successfully challenged in this Court.

34 The principal submissions made by the Crown related to his Honour’s consideration of the respondent’s state of health. It was submitted that in finding that the respondent while he was in prison might not receive the medical treatment he required for his diabetes and that, consequently, there was a danger of a serious risk to the respondent’s life and health if he was sentenced to a long period of full-time imprisonment, the sentencing judge had improperly relied on what his Honour said had been his experience in other cases of prisoners who were diabetics being denied access to medical treatment. It was further submitted that his Honour had then given too much weight to this factor in determining the sentence he would impose on the respondent and particularly the non-parole period of that sentence.

35 The principles applicable to the determination of Crown appeals against sentence were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] in a passage in his Honour’s judgment which has frequently been quoted in subsequent cases. His Honour said:-

“(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para58 and para109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para61 and para62, and Wong & Leung v The Queen at para109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court : R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para62.”

36 As regards the respondent’s state of health, the sentencing judge was clearly entitled to accept the unchallenged evidence of Dr Moses that the respondent suffers from diabetes, that it is important to endeavour to control the respondent’s diabetes by appropriate monitoring and treatment and that the respondent’s diabetes is likely to be aggravated by any stress. However, as was submitted by the Crown, there was no evidence before his Honour that there was a serious risk that the respondent, if imprisoned, would be denied appropriate treatment and monitoring. In the absence of any evidence in the instant case, his Honour relied on what he said had been his experience in other cases of prisoners being denied appropriate medical treatment and, on the basis of this experience, made a finding that there was a serious risk that the respondent, if imprisoned, might not receive appropriate monitoring and treatment.

37 In my opinion, at least in the circumstances of the present case, the sentencing judge was not precluded from relying on what he said had been his experience in other cases.

38 As has been recognised by the High Court (See, for example, Weininger v The Queen (2003) 77 ALJR 872 at par 21 per Gleeson CJ, McHugh, Gummow and Hayne JJ), sentencing proceedings are frequently conducted with a considerable degree of informality and matters are often taken into account which have not been proved by any evidence but which are not disputed. No direction was made under s 4 of the Evidence Act that the Act should apply to the proceedings for the sentencing of the respondent.

39 During the hearing of the proceedings on sentence in the present case Judge Goldring disclosed to the parties what his Honour said had been his experience in other cases. His Honour said inter alia:-

“For about the fifth time in the last six weeks I’ve had to deal with a person with serious medical problems who has not had proper medical treatment while they’ve been in custody”.

40 In my opinion, his Honour thereby put the parties, and particularly the Crown, on notice that he might take his experience in those other cases into account in sentencing the respondent. The Crown was thereby afforded the opportunity of objecting to his Honour taking his experience in other cases into account and of tendering evidence in the proceedings on sentence with a view to showing that the respondent would be able to receive appropriate treatment within the Correctional system. However, the Crown did not raise any objection and did not seek to tender any evidence.

41 I have held that, in the circumstances of the present case, the sentencing judge was not precluded from relying on information he had obtained from his experience in other cases. However, I consider that I should sound a number of cautionary notes.

42 In order to avoid an infringement of procedural fairness, a sentencing judge who intends to rely on information he has obtained in other cases, should disclose his intention to the parties in the instant case so as to afford the parties an opportunity of objecting or of taking other steps. If one of the parties objects, the sentencing judge should not use information obtained in other cases, unless the information is of matters of which judicial notice can properly be taken.

43 I consider that a sentencing judge should be cautious about using information obtained in other cases. Unbeknown to the judge, the other cases may not be truly typical or representative. It is unlikely that the legal representatives of the parties in the instant case would have any knowledge of the other cases and, consequently, the legal representatives would not be able to assist the judge in determining how much weight should be given to the information.

44 A sentencing judge should be cautious about using information obtained in other cases to the disadvantage of the person being sentenced.

45 A further submission was made by the Crown that, even if the sentencing judge could properly take into account his experience in other cases of prisoners being denied proper medical treatment and thereby properly make a finding that there would be a risk of the respondent’s health being endangered if he was sentenced to a long period of full-time imprisonment, his Honour had given too much weight to this factor and, as a consequence, both the total sentence and the non-parole period imposed by his Honour were manifestly inadequate.

46 I have already set out the objective facts of the offence and the subjective circumstances of the respondent as found by the sentencing judge. In my opinion, the total sentence of three years set by his Honour, while lenient, is not so definitely below the available range of sentences that this Court should, consistently with the principles stated in R v Wall, find that it was manifestly inadequate.

47 As regards the non-parole period set by his Honour, his Honour was clearly entitled, as seems to have been conceded by the Crown in the proceedings on sentence, to find that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act and to set a proportionally less than usual non-parole period. Even apart from the respondent’s ill health, the respondent had the benefit of previous good character and had never been in prison before.

48 However, in my opinion, the non-parole period set by his Honour of only three months, which is only one twelfth of the total sentence, for an offence of having sexual intercourse without consent, was manifestly inadequate, even after taking into account his Honour’s findings about the health of the respondent and the danger to the respondent’s health, if he was imprisoned. I would, accordingly, subject to any question of discretion, allow the Crown appeal so far as the non-parole period of the sentence is concerned.

49 Affidavits by the respondent and the respondent’s wife about events happening since the respondent was sentenced were provisionally received by the Court, to be used in the event of the Court having to decide whether it should exercise its discretion so as to refuse the Crown appeal or the Court having to re-sentence the respondent.

50 The affidavit by the respondent discloses that after he was sentenced, he was held for four days in holding cells at a police centre, during part of which he was denied medication and suffered two hyperglycaemic attacks, and that he was then held for nine days at a remand centre, where medication was supplied to him but difficulties arose because the evening medication was not supplied until some hours after the evening meal. However, the respondent has since been held at the Kirkconnell Correctional Centre, where he acknowledges in his affidavit that he has been supplied with equipment which enables him to monitor his blood sugar, he is supplied each day with the whole day’s medications and he has been placed in the medical unit, where all the inmates have health conditions and do not interfere with each other’s medical supplies. Since being at the Kirkconnell Correctional Centre the respondent has not had any hyperglycaemic attacks.

51 Apart from the respondent’s diabetes, the two affidavits deal with the hardship imposed on both the respondent and his wife by the respondent’s custody. The hardship is serious but not exceptional

52 In my opinion, the affidavits by the respondent and his wife do not disclose any discretionary reason why the Crown appeal should not be allowed, to the extent to which I have indicated. There is no other discretionary reason why the Crown appeal should not be allowed to the extent I have indicated.

53 As the Court is allowing a Crown appeal, the substituted non-parole period which I consider should be set will be less than the non-parole period I consider should have originally been set.

54 In my opinion, this Court should make the following orders:-

Crown appeal against the sentence imposed by Judge Goldring on 14 September 2006 allowed.

Sentence imposed by Judge Goldring quashed.

In lieu thereof set a non-parole period of fifteen months, commencing on 14 September 2006 and expiring on 13 December 2007, with a balance of term of one year nine months commencing on 14 December 2007 and expiring on 13 September 2009.

The respondent to be released on parole on 13 December 2007.

55 The Court makes a strong recommendation that the respondent continue to be kept at the Kirkconnell Correctional Centre until he is released on parole and that while in custody he be provided with appropriate treatment and medication for his diabetes.

56 HIDDEN J: I agree with James J.

57 HISLOP J: I agree with James J.

**********