R v Kay
[2000] NSWSC 716
•26 July 2000
CITATION: R v KAY [2000] NSWSC 716 FILE NUMBER(S): SC 70084/97 HEARING DATE(S): 1.3.99; 17.3.99; 28.4.99; 25.6.99; 3.12.99 JUDGMENT DATE: 26 July 2000 PARTIES :
Regina
Graham James KAYJUDGMENT OF: Hulme J at 1
COUNSEL : Crown: RA Hulme
Prisoner: MJ Joseph SCSOLICITORS: Crown: SE O'Connor
Prisoner: Russo & PartnersCATCHWORDS: Criminal law - sentence - sexual assault - multiple offences DECISION: Imprisonment for 20 years including non-parole period of 15 years
- 51 -IN THE SUPREME COURT
NO: 70084/97
OF NEW SOUTH WALES
CRIMINAL DIVISION
Wednesday, 26 July 2000
HULME J
R v Graham James KAYREMARKS ON SENTENCE
2 I have been also asked to take into account in sentencing the Prisoner for the offence referred to in the third count of the indictment, four further offences on a schedule signed by the Prisoner. Two of these are identical in nature with the four previously mentioned. The other two are of threatening to inflict actual bodily harm with intent to have sexual intercourse. Section 61K of the Crimes Act prescribes that the maximum penalty for these offences also is 20 years imprisonment. The circumstances of the eight offences - of which I am satisfied beyond reasonable doubt despite a limited amount of evidence from the Prisoner to the contrary - were as follows.
1 The Prisoner has pleaded guilty to four counts of sexual intercourse without consent in circumstances of aggravation, viz. that at the time of the commission of the offence he threatened the victim with actual bodily harm. The offences arise under Section 61J of the Crimes Act and each renders the Prisoner liable to imprisonment for 20 years.
A. Indictment Count 1
3 At about 12.15 am on 23 December 1995 victim 1 was walking down the driveway of a block of units where she lived at Balgowlah. The Prisoner approached her from behind and placed one hand across her mouth and a scalpel or, as the Prisoner described it, a works knife, against her throat. He said “don’t say anything or I’ll cut you”, pushed her against a fence and said “where’s your money”. He stuffed what the victim thought was a dark sock in her mouth and fondled one of her breasts. The Prisoner then demanded the victim put her hands over the fence and she did. He then undid the belt and zip of the jeans the victim was wearing and put a hand down insider her underpants and rubbed her labia. He removed his hand and pulled the victim’s underpants down and returned his hand to her genitals, on this occasion inserting a finger into her vagina and thrusting it in and out for some time.
4 Then, still with the scalpel at the victim’s throat, he took his hand away from her vagina and undid his own belt and pants. With the front of his body against the victim’s back his hand again returned to her vaginal area and his hand movements became more frantic and forceful. He again moved his hand away and demanded the victim bend over. She did so and he sought to insert his penis into her vagina from behind. His penis was not erect and he failed.
5 Soon afterwards he stopped, pulled up his pants and said to the victim “I’m not going to rape you. I won’t rape you because I’ve had too much to drink and you’ve had to much to drink. So if you don’t move and don’t say a fucking word, you’ll be alright because I won’t hurt you.” The victim nodded her head. The Prisoner pulled the gag out of her mouth and walked up the driveway towards the street. The victim did not move for some little time then went to her unit and called the police. She felt that her attacker had had a balaclava on.
6 The victim was 25 years old at the time. Following the incident she had a light cut across the front of her throat, a small cut on the inside and outside of her upper lip and her mouth was sore and bruised. There were small scratches on the inside of her lower lip. When seen by a doctor later in the day, the victim was extremely distressed.
7 In oral evidence the Prisoner asserted that he was at Balgowlah on the day in question because he had dropped someone off. There was no evidence to the contrary. The Prisoner also said that either before or after seeing the victim he went out of his way, parked his car, alighted and followed her. When asked why, he could give no explanation beyond saying he lost control.
B. Indictment-Count 28 At about 10.40 pm on 28 March 1996 victim 2 alighted from a train at Artarmon Railway Station and walked to the block of units in which she resided in White Street, Artarmon. Shortly after arriving at the block she commenced walking up the stairs from the garage area. About half way up she saw and was passed by a man dressed in black walking down. Shortly thereafter she was pushed against the wall. The man asked “Do you have any money?” and “Are you a virgin?”. He shoved a thick sock or piece of rag a short distance into her mouth. It came out and fell onto the stairs. He said “If that happens again, I’ll kill you. Don’t do it again” and the victim felt something sharp and cold at her throat. Later she saw it was a knife like a hunting knife with a jagged edge on the blade. The victim could feel the knife push deeper into her throat with every move she made. The Prisoner pushed the sock back into the victim’s mouth - so far in she felt she was going to choke. He said “Don’t worry, I won’t hurt you”.
9 The Prisoner took the knife away and pushed the victim against the wall again. He pulled the pants and underpants she was wearing down to her ankles and returned the knife to her throat. He inserted his other hand between the victim’s legs from behind, rubbed around the labia and penetrated her vagina with one or more fingers. This or these he thrust in and out saying, inter alia, “Does this feel good?” and “Are you a virgin?”. His activities hurt. He removed his hands and the victim then felt what I infer was the Prisoner’s flaccid penis near her vagina. The victim turned, took the sock out of her mouth and said words to the effect “No. I’m not doing that”. The Prisoner turned her and again pushed her face and body into the wall ordering “Get your hands back up against the wall and don’t move”. The victim felt the knife go back against her throat and the sock back into her mouth. Then he penetrated her again. The victim said she was not sure whether it was with his hand or penis this time. She said the object felt hard and different from the first time she was penetrated and when whatever it was pulled out it was not as hard as when it went in and seemed slippery and wet. After the police were involved, the victim’s clothing and a vaginal swab were taken but the results of any testing of these are not in evidence. There is thus no basis for concluding that the Prisoner ejaculated but the evidence to which I have referred satisfies me that this further penetration was by the Prisoner’s penis.
10 After stopping, the Prisoner said “If you tell any one I’ll come back and I will find you and will kill you” and left. The victim then went to the unit in which she lived and told her sister and parents of what had occurred.
11 At the time the victim was 17 years old. When examined on the following day she was tearful and the doctor observed redness and tenderness on the heels of both hands, two parallel red lines about 8cm long across the front of her throat and redness and a small abrasion around the vaginal area.
12 Asked why he was at Artarmon on the occasion of this attack, the Prisoner suggested he might have been to TAFE that night but otherwise could give no explanation. A statement from the financial controller of his then employer, shows the Prisoner ceased work that day at 2.32 pm. The day was not one on which he had TAFE classes which, in any event, were held at Ultimo. The Prisoner also advanced the proposition that on some afternoons he played golf. That explanation also does not account for the time between dusk and 10.40 pm.
13 The Prisoner agreed it was possible he had spent some hours in the vicinity looking for a victim. Later, he said he was on his way home, there was a petrol station nearby and he thought he stopped to get petrol. He asserted firmly that on at least one occasion he obtained petrol at Artarmon. In other evidence concerning his presence at Artarmon he said it was an alternate way home from the city to Berowra or Kenthurst. Having regard to the geography and road system, that is an explanation I do not accept. Artarmon was not on any logical or normal route for the Prisoner to take when driving home. It might be possible, just, to go to Artarmon for petrol but the number of service stations on the Pacific Highway between North Sydney and Longueville Road, or adjacent to the intersection of the Gore Hill Freeway and the Pacific Highway and the presence of a “huge Shell service station” on Epping Road a few kilometres west of the Pacific Highway makes this unlikely and, given the movements of the Prisoner as disclosed in evidence, inconceivable as a reason for his presence there as often as he was.
14 The Prisoner said that on the night he was wearing a black hooded Sloppy Joe or tracksuit top and on alighting from his car put a hood over his head.
C. Form 1 - First Offence
15 At about 11.40pm on 6 May 1996 victim 3 arrived by train at Epping railway station and commenced to walk home. In Chesterfield Road she heard someone behind her, a hand went over her mouth and she was pushed into a brick fence. Her assailant demanded money. The victim offered her wallet and a little later a black sock or perhaps some other material was forced into her mouth. Her breasts were squeezed and the blade of what looked to her like a fishing knife was pressed into the right side of her back. She was then grabbed around the top part of her body and shoved down a driveway into some shrubs. She started to scream and the assailant became more aggressive. He said “Don’t scream, you’ll be alright. The victim noticed that the knife was on the ground. The assailant picked it up and held it against her again. He then pushed the victim back out towards the brick fence and placed her hands on it. He again raised the topic of money and credit cards. The victim showed him her wallet again. A little later he again fondled her breasts, undid a couple of buttons of her jeans and thrust his hand inside her underpants. According to the victim, he felt her clitoris and around the outside of her vagina. She had her periods, and a tampon was inside. Nevertheless, the terms of the charge and his plea mean he must have penetrated her genitalia. The victim described her assailant’s actions in this regard as firm but not really violent. The assailant told the victim “Right. Don’t scream. Don’t call the police cause otherwise I will hurt (or get) you” and ran off. The victim walked quickly to her home.
16 The victim was 18 years of age. She received a slight cut to her bottom lip. At the time of arriving home she was crying, shaking and hyperventilating and could not talk properly. She objected to her sister calling the police because “He’s going to get me”. Nevertheless, later they were called.
17 The Prisoner said he did not clearly recall this incident. The statement of the financial controller indicates that he did not work that day. There were no TAFE classes either. The Prisoner could not recall the day or where he had been. He denied sitting at the railway station looking for potential victims - evidence the accuracy of which, having regard to my views of the Prisoner’s credibility - I do not accept. He agreed he was wearing the same black hooded Sloppy Joe as that worn on 28 March and the knife was in the pocket of the Sloppy Joe. He had again put the hood over his head.
D. Form 1 - Second Offence
18 This offence was one under s61K of threatening to inflict actual bodily harm with intent to have sexual intercourse.
19 At about 10.55pm on 14 May 1996 the fourth victim was walking down Shirley Road, Wollstonecraft when she heard sounds as if she was being followed. As she opened the door to the foyer of the unit block in which she lived a man put one hand over her mouth and the other around her waist. He had a knife in one hand. He started to drag the victim through the foyer to some stairs at the rear leading down to the garage. This involved passing the door to another unit in the block which the victim kicked twice as she called for help. The assailant had forced the victim about half way down the stairs when she heard the door which she kicked being unlatched. Her assailant let go and ran off.
20 The victim, who was 39 years old at the time, suffered two small cuts to a lip and her chin, two distinct bruises and was left feeling sore all over. Her glasses costing $270 were damaged. When examined later in the evening by a medical practitioner, she appeared very anxious.
21 The victim of this offence was the only one from whom a victim impact statement was obtained and tendered. In it she discloses that she is unnerved still by the sight of a man in a hooded jacket, and by reports or jokes of rape and knife attacks; she re-lives what could have been the end of her life. She feels an inner turmoil and her heart pounds when in a crowded street.
22 The victim says that she has become withdrawn, depressed and frightened and illustrates this by detailed examples. At times, she has lost her appetite to the point where her skin was peeling because of malnutrition. Although she has had intercourse since the Prisoner’s attack, she has lost interest in the act and now feels it is dirty - so much so that after she has had intercourse she has showered numerous times and has had Dettol baths to cleanse herself.
23 The victim’s statements as to some of these effects are supported by a 1997 report from a sexual assault counsellor at the Royal North Shore Hospital. A letter from a Dr Chan indicates that prior to the attack the victim was suffering from a chronic pain syndrome, that significant progress was then being made but that the attack adversely affected her condition and since the attack occurred the victim has frequently needed pain-killers and injections of Valium to calm her down. I accept that the Prisoner’s attack has had an effect on the victim such as I have described.
24 The Prisoner did not work on 14 May but attended TAFE that night until, apparently, 8.30 pm. He saw the victim at the top of the hill, presumably on the Pacific Highway, and turned off, parked and followed her. He was wearing the same top and acknowledged that it was useful because it had a hood which could be put over his head. The Prisoner gave evidence that he desisted from his attack on this victim because he realised what he had done. That is a possible explanation although I am not disposed to rely on his evidence. The history of events satisfies me that the imminent intervention of a third person was at least a major contributing factor to the Prisoner’s desisting.
E. Form 1 - Third Offence
25 This is the second offence under s61K.
26 At about 8.30pm on 30 May 1996 the fifth victim was walking home from Artarmon railway station. When about 2 blocks from the station the Prisoner came up behind her, put his hand on her mouth and demanded money. He also demanded she open her mouth wider and be quiet and he then put a glove in it. He put a knife to her neck. Then some cars passed by and every time this occurred the Prisoner moved away from the victim and then returned. A voice was heard and the Prisoner then ran away.
27 The victim’s age was 24. She was a student from Japan. When she arrived home she was upset and started to cry but apparently suffered no physical injury.
28 On 30 May the Prisoner was stood down without pay and had no classes in the evening. He said that he could not recall why he was at Artarmon on this occasion.
F. Indictment - Third Count
29 On 17 September 1996 at about 9.50pm the sixth victim alighted from a train at Artarmon station. She walked to a key card machine directly opposite the station and withdrew $100 from the machine which she put in a bag she was carrying. She then walked along Hampden Road, across the bridge over the freeway, and into Taylor Lane. There a male voice called out from behind her “Give me your money or I’ll hurt you”. She screamed “Help!” and the male grabbed her. He said “Shut up. Shut up. Shut up or I’ll use my knife on you.” Understandably the victim became scared and began to shake. She handed the man the $100 and said “Please don’t hurt me. Please don’t hurt me.”
30 He pushed a dark coloured rag into her mouth and again said “Shut up or I’ll hurt you.” The victim saw him holding a knife which he then applied to her throat and pulled her down the lane saying “Give me all your credit cards” and “Give me all your cards”. The victim gave him a key card and her driver’s licence. During the course of this exercise he had put his hand under her jumper and fondled her breasts. There is a pedestrian tunnel which goes under Hampden Road (or possibly Herbert Street, which is a continuation of it). The tunnel is dark. The assailant dragged the victim about 5 metres into the tunnel still with the knife against her throat. She was crying “Please don’t rape me. Please don’t rape me”. He said “Shut up I won’t rape you.” He grabbed her hands and forced them behind her back and tied them up. The victim’s head hit the wall.
31 From behind, the assailant then unzipped her pants and pulled them and her underpants down to her ankles. He started to touch her vagina with his fingers. He put one inside and moved it around. Again she pleaded “Please don’t rape me” and again he said he wouldn’t. He then unzipped his fly and said “Just for a little bit” and the victim said she felt his penis go inside her vagina for a short time after which he removed it and again touched her vagina with his hands. He then put his penis back inside her vagina and started moving it in and out. The victim said “Please stop it I won’t tell anybody I promise, I promise”. After a short time the Prisoner withdrew his penis and pulled up his pants. At about this time he picked up and looked at the victim’s driver’s licence and said “I’m going to go. I know where you live, so if you tell any body I’ll come and get you, because I know where you live”. He untied the victim’s hands and lifted her jumper up over her head. He again placed a finger inside her vagina, then grabbed the rag out of her mouth and ran off. The victim picked up the bags and cards she had been carrying and ran straight to work.
32 When the victim arrived at work she was observed to be crying hysterically and complained to work mates of what had occurred. Examined at about 10.30 pm that night she was observed to be very tearful and to have, inter alia, swelling of, and abrasions to, her lips and a small abrasion to her finger. She also suffered a small graze on her neck.
33 This sixth victim was 23 years of age at the time. After the attack she moved from where she was living because she was frightened that her assailant knew where she lived. Some months later she still felt nervous and anxious and she did not go out at night: In December 1996 she said that she did not think she could live on her own again and “I haven’t been back to work since and I am being moved to another location by my employer as I feel to (sic) anxious to go back to Artarmon.”.
34 It is in connection with this offence that I am asked to take into account the offences referred to in the Form 1. On the day of this offence, the Prisoner had been to his TAFE classes which finished at 8.30pm. Again he said that he did not know, and could think of no reason, why he was in Artarmon on the occasion of this offence. He said he was not waiting but was driving in his car when he saw the victim. He agreed that he drove slowly behind, following her for quite some distance before he confronted her. His evidence that he had no plan of confronting her or attacking her is impossible to accept. He had again put on the black hooded Sloppy Joe. Although he had threatened this victim as I have recounted, the Prisoner asserted in evidence that he had no intention of hurting her (by way of carrying out his threat to come back if she reported the incident). I accept this evidence.
G. Indictment - Count 4
35 At about 10.30pm on 22 October 1996 the seventh victim arrived by train at Artarmon station. She walked down Frances Street and via an alleyway to the entrance of the block of units in which she lived. As she put her key in the door, the Prisoner came from behind and put a knife to her neck and a cloth deep into her mouth saying “Shut up, if you do what I say I won’t hurt you. All I want is your credit cards.” The victim gestured to her bag but the Prisoner forced her to a fairly secluded laundry drying area nearby. Inside he pushed the victim against the wall and pulled her jacket over her head. He then put his knife to her waist and with his other hand undid her bra and touched her all over including her breasts. He then pulled her skirt and panties down and fingered the victim’s vagina roughly, causing pain. He stopped, put the knife back to her neck and said “You have a choice. I can either rape you or you can give me a head job. Are you going to give me a head job?”. Faced with these alternatives the victim nodded to indicate she would provide the latter.
36 At the instructions of the Prisoner, the victim went down on her haunches and turned around, spitting the cloth out of her mouth. The Prisoner then forced his penis deeply into her mouth thrusting it in and out about 10 times. He then withdrew, turned to the side and ejaculated. He told the victim to face the wall which she did and asked had she any money. She gave him $10 and he said “Stay down. Don’t make a noise, and if you don’t tell the police or anybody else, I won’t hurt you. Are you going to tell the police?” The victim said “No”. The Prisoner said “If you do, I’ll come back and kill you” and then began to walk off. The victim began to say aloud words to the effect “Where’s my key? Where’s my key?” The Prisoner then walked back towards her and said “Your key is in the door”, and again walked off.
37 The victim then ran to her unit and then gave her flat-mate an account of what had occurred. He wanted to phone the police but the victim resisted saying “No, because he said if I do, he’ll come back and kill me.” So initially a friend in the police force was notified.
38 Examined later that night the victim was shaking and tearful. She had a slight swelling in her upper lip and a 5cm linear mark on her neck. There was redness around her vagina and an abrasion consistent with removal of a very small area of skin by a fingernail. At the time the victim was 22 years old. The Prisoner had a TAFE class scheduled for the night of this attack but was marked as absent. He said he thought he was driving around in the vicinity of the railway station probably looking for an attractive woman and again had the Sloppy Joe and knife with him.
39 When interviewed by the police the Prisoner admitted the commission of this offence but put something of a different gloss on it. Thus, for example, he said that the victim had helped and after he had ejaculated the victim “pecked” the end of his penis. I reject this evidence. It is inherently improbable and I was not impressed with the Prisoner’s credibility.
H. Form 1-Fourth Offence
40 At about 1.00am on 24 December 1996 the victim of this offence alighted from a bus and commenced to walk to her home in Eastwood. As she passed the Kent Road public school the Prisoner grabbed her from behind saying “Don’t scream. I’m not going to hurt you. I just want your money.” The victim collapsed onto the ground. He told her to get up and that he had a knife. He helped her up and pushed her into the driveway of the school. There he ordered her to open her mouth and put a gag in it. Then he forced her arms behind her back and tied them up. He then pushed her further into the school grounds by which time he had a knife to her neck. He said “I’m not going to rape you.” and “I’m going to search you.”. He put his hand up the victim’s blouse and fondled her breasts. He then undid the drawstring of her pants and put his hand inside her pants and underpants and inserted a finger in her vagina. Then he pulled her pants and underpants down, told her to bend over and pushed her back so that the victim bent at the waist. Then from behind he inserted a finger or fingers in her vagina and moved them around saying things like “Are you a virgin? I’m not going to rape you.” and “Have you ever given head?”. Somehow at that stage the victim managed to scream and the Prisoner then forcefully applied the knife to her throat and she thought she had been cut. Then the Prisoner undid the victim’s hands. She pulled her pants up and he said “Keep walking straight ahead.”. He then ran off. The victim ran home and told her father and the police.
41 At the time of the offence the victim was 16 years of age. She resisted being medically examined for some time. On 28 December she was seen by a doctor at Royal North Shore Hospital who observed as the only abnormality irregular marks on the front of her throat as if made by a serrated sharp object.
42 The Prisoner gave evidence that on the evening prior to this offence he had been at a Christmas party and was in the vicinity because he had chosen to drive past his mother’s home nearby to check on it. Given the hour of the day, 1 am, the last part of this account is inherently improbable and I reject it.
43 (In the above accounts of the Prisoner’s offences, I have referred to more than one instance of penetration of most victims. In some of the authorities, it is clear that different instances of penetration, have been the subject of separate counts. However, it has been agreed that I should treat each count and offence referred to in the Form 1 as encompassing all of the acts of penetration which occurred with the particular victim.)
Other Conduct Prior to Arrest
44 The Prisoner’s activities led to a police operation “Allier” directed to them. At some stage the Prisoner was suspected and surveillance of him commenced.
45 On 22 January 1997 for something over an hour in the late afternoon he was observed driving around a limited number of streets in the Macquarie Park area and within this period to watch one female walking along the street.
46 On 29 January 1997 during much of a period of about 2 hours after about 4.30 pm the Prisoner was observed driving up and down Glebe Point Road some 30 to 35 times at speeds between 5 and 30km per hour looking, on numerous occasions, at female pedestrians. From time to time he stopped his vehicle against the kerb for periods of between a half and two minutes. At about 7.30 pm he was observed driving three times around a route in the vicinity of Epping railway station.
47 On 30 January 1997 he was seen to be driving at between 5 and 10 kms per hour in the direction of a female undercover police officer. She turned into the driveway of a block of units. He stopped his vehicle at the driveway and appeared to be looking in the direction she had gone.
48 On 4 February 1997 on a number of occasions between 3.40 and 5.01pm and then later, the Prisoner was seen driving in a limited number of streets in the Macquarie Park area and looking at female pedestrians. At 5.09 pm, 5.16 pm and 5.18 pm he was observed looking at a female and child in a park. By 5.24 pm the female and child had left the park and were walking in a nearby street. They were still or again under observation by the Prisoner whose vehicle was travelling at 20kms an hour.
49 At 6.52 pm on the same day the Prisoner was followed to the Epping railway station area. There he was seen to be watching a female pedestrian in Oxford Street. She walked along that street to Norfolk Road and ultimately into Grayson Road - a distance of some few blocks. The Prisoner followed her in his vehicle, stopping on four occasions some 20 or 30 metres behind her and allowing her to advance somewhat further before driving on and again reducing the distance.
50 There is other evidence in the same vein. Of course the Prisoner does not stand charged with any offences arising out of his activities on these days when he was under observation and he is not to be punished in respect of them. The matters to which I have referred do however reinforce the conclusion which the combined circumstances of the 8 offences with which I have to deal would suggest, viz. that the attacks on at least some, and I would infer most, of the victims of those 8 offences were not chance happenings occurring on the spur of the moment, or perhaps more accurately, after he sighted his victims, but premeditated and planned events. I am satisfied to the requisite standard that they were.
51 Evidence contained in a statement from a Miss C leads to the same conclusion. Objection was taken to her evidence but when I ruled it admissible, counsel for the Prisoner took no objection to it being provided in the form of a statement from her. In the statement she describes in detail an occasion in winter 1996 being observed by a man in a car near Artarmon station and then, as she walked home, seeing him and his car some streets along her way, again watching and later following her - at a run after she began to run. About mid-August 1996, she saw the same car and man again driving in the area, and again observing and apparently following her. On Sunday 5 January 1997 she again saw the man in the same car apparently waiting and watching in the vicinity of Artarmon station. The car was that of the Prisoner. Although it is a matter of inference, I am satisfied beyond reasonable doubt from this fact and the other evidence in the case that the person in the car was the Prisoner. Although I do not need to rely on it, this conclusion reinforces that expressed above that there was premeditation and planning in at least most of the Prisoner’s attacks.
52 A more difficult issue to determine is which of the Prisoner’s offences involved premeditation and planning prior to him seeing the victim. Even if it was only then that his criminal intent was formed and implementation of it commenced, his criminality was high. However, in light of what the High Court said in Pearce v R (1998) 72 ALJR 1416, it seems to me that I should seek to consider in the case of each of the offences whether the Prisoner’s criminality extended to searching out a victim or only arose when he saw someone who might answer that description.
53 I have in recording the circumstances of the Prisoner’s eight offences largely set out his evidence as to his presence at the scenes of them. Particularly is this so in the case of the second offence concerning his presence at Artarmon where 4 of the offences occurred and where he was observed by Miss C on other occasions. Although it may help to account for times as distinct from his places, mention may also be made of evidence he gave that, at times, he just slept in his car -by inference wherever he was - due to tiredness. Relevant also is evidence he gave in answer to some questions of mine:-
HH Mr Kay, could I interrupt? The evidence before me suggests, and feel free to disagree, that on a number of occasions you seemed to have placed yourself with your car in the vicinity of railway stations at a time when people were walking home from the train?
A Yes.
HH That you then took an interest in one or more of those people walking home?
A Yes.
HH And followed them?
A. Yes. That’s correct.
HH Now, you said earlier that after the first attack with which I am concerned you had realised that on that occasion you were not in control?
A Yes.
HH Can you give any explanation why you kept on putting yourself adjacent to railway stations and those sorts of places, knowing what had occurred previously?
A No, I can’t explain my behaviour at all. All I can - as I said, I don’t know what triggered it. The first instance I had been drinking. It had been a Christmas function. I hadn’t had that much drink that I was intoxicated or couldn’t drive, but there was alcohol involved and I think I somewhat put it down to maybe that was a weakness, part caused, or added to it, or whatever, and I thought that I would be in control. Why it got to the stage of being in those places or putting myself in that position, I can offer no excuse or no reason. I would like to find out why. I don’t know whether it is subconscious or what. I honestly cannot answer.”
54 I can not be satisfied beyond reasonable doubt that there was any planning prior to the Prisoner seeing (at Balgowlah) the victim of the first offence with which I am concerned. Neither the evidence of later events or, given the length of the intervening period, the offences of years ago, or the two in combination would justify such an inference to the required standard. By similar reasoning and the fact that the second offence occurred at a quite different place, even though this was near Artarmon railway station, I reach the same conclusion in respect of that offence, notwithstanding the Prisoner’s evidence that “I had driven around before, but not necessarily looking for a victim as such”.55 By the time of the sixth offence, 17 September 1996, and which like the seventh offence and the following of Miss C in and after winter 1996 occurred in the vicinity of Artarmon Railway station, I am satisfied that the Prisoner was adopting a practice of actively looking for victims and locating himself where they were likely to be. Indeed I would infer that this was so by 30 May 1996 when the fifth offence occurred in the same vicinity. By that stage the Prisoner’s interest in the commission of such offences was clearly whetted and I do not accept his evidence to the effect that, presumably on happening to see his victims, he went out of control.
56 I am tempted to reach the same conclusion in relation to the 6 and 14 May, the time of the third and fourth offences which occurred at Epping and Wollstonecraft, but ultimately am not prepared to do so beyond reasonable doubt. There may well have been a legitimate explanation for his presence at the places where he first saw the victims. That said, it does seem clear that even at the time of these offences, the Prisoner was very ready to follow any young female he happened to see in dark and reasonably isolated places.
57 As I have said when recounting the circumstances of the second offence, the Prisoner did give as an explanation for being at Artarmon “at least on one occasion” the need to purchase petrol and while I did not find his evidence persuasive, I would not be prepared to conclude beyond reasonable doubt that this never occurred. Nevertheless, even if the Prisoner’s presence at Artarmon after winter 1997 was due to some need for petrol, I have no doubt that he took the opportunity to look for such victims as might be there available to him.
58 I have expressed my views on some of the evidence given by the Prisoner but I should say more. I accept that he may have had no detailed recollection of some of his offences and of the events of the day leading up to them. Nevertheless, I formed the firm view that he was inclined to down-play his premeditation and criminality. He provided no satisfactory explanation for his conduct. He said that after the first offence, he was disgusted with himself, ashamed and scared by what he had done. He said that on two occasions he was physically sick afterwards. He agreed or said that on some occasions he was out of control. Yet, as is both clear and admitted by him, on a number of occasions he deliberately sought to place himself in circumstances where he could commit similar offences.
59 I find it impossible to escape the conclusion that, during the period covered by his offences he was either not significantly remorseful for what he had done, or, was so driven by his instincts or other desires that any remorse was overcome. The argument that at the time of his offences, society needed protection from him is compelling.
60 Furthermore, it is clear that the Prisoner lied to the police when he denied involvement in any of the offences other than the one I have numbered 7. I am satisfied also that his account of the seventh incident was deliberately untruthful. His statements concerning that incident were calculated to suggest willing co-operation to the extent whereby the victim “pecked” the end of his penis after he had ejaculated in her mouth. Such ejaculation was asserted expressly or impliedly in answer to 3 questions, yet both the victim and, in the witness box, the Prisoner asserted his penis was not there when ejaculation occurred.
After Arrest
61 The Prisoner was arrested on 18 February, 1997 and has been in custody ever since. On that day he was informed that his arrest that day related to a number of serious sexual assaults committed upon women. He said “You’ve got the wrong man”.
62 Approximately 2 hours later at the Chatswood police station Detective Sergeant Jacobs spoke to the Prisoner and indicated he proposed to ask some questions about the offence that was committed on 22 October 1996 at Artarmon. The Prisoner was informed that semen was recovered from the woman involved. He was informed also that he had been under surveillance for some time and had been observed some few days earlier having sex with a prostitute, that a condom had been recovered from the location where that occurred and that a DNA examination of the semen in that condom was being conducted. The Prisoner was informed that at that stage the testing had excluded 1,999 out of every 2,000 members of the population and that testing which would exclude or include the Prisoner with a far greater probability was continuing. The Prisoner responded to the effect that he was responsible for the sexual assault on 22 October 1996.
63 Later, he was informed that the police were also making inquiries into a number of other sexual assaults in the North Shore area. He responded by asking whether there was any other DNA. Detective Sergeant Jacobs said he was not prepared to say and the Prisoner responded “Well I know nothing about those other matters”. Some time afterwards he re-affirmed that the only sexual assault he had committed was that of 22 October.
64 During the evening a formal ERISP dealing with the incident of 22 October 1996 was conducted and, although the Prisoner’s account varied in some respects from that set out above, he again admitted the commission of that offence.
65 On 28 August 1997 he was committed for trial on some 27 charges. Before and since his committal there was a deal of correspondence and some other matters on which reliance was placed on both the topic of the weight to be given to his pleas and admissions and on the issue of contrition or remorse. Some reference to these matters is accordingly required.
66 No later than 5 March 1997, the Prisoner instructed a solicitor who wrote on that day to the police asking for copies of charge sheets, statements and other documentation. There followed discussions and correspondence in which the police indicated that investigations were still continuing but in which, it would appear, they sought an indication of the Prisoner’s attitude. By letter of 21 July 1997, the Prisoner’s solicitor was informed of a number of charges involving the eight victims the subject of the offences with which I am concerned and others involving Miss C and two further victims.
67 The Prisoner did not plead guilty at the committal proceedings to any of the charges then brought although he instructed his solicitor “not to cross-examine any of the victims or to cause any harm to the victims”. The instructions not to cross-examine the victims continued least until 16 February 1999.
68 On 19 February 1998 the Prisoner’s solicitor wrote to the DPP advising that he had obtained instructions from the Prisoner to plead guilty to some of the charges and that it was imperative that these be completely determined and dealt with prior to the remainder of the matters being listed. On 10 June 1998 Mr Roots on behalf of the DPP wrote asking whether any decision had been made. The Prisoner’s solicitor replied on 23 June 1998 to the effect that the Prisoner had at that stage informed the Solicitor what charges he was prepared to plead guilty to but that the solicitor was obtaining written instructions. On 27 August 1998, the Prisoner’s solicitor wrote observing that the whole of the police brief had not yet been supplied and noting that it was listed on 18 September for callover. On the same day Mr Roots wrote again referring to the fact that the Prisoner had indicated he might wish to plead guilty to some charges and inviting discussions. It would appear that by 8 December when the DPP wrote again, no specification of these charges had been provided by the Prisoner’s solicitor.
69 On 18 September 1998 the matter was fixed for a trial commencing on 1 March 1999.
70 On 21 September, 22 December 1998 and 10 February 1999, additional statements were served. In the letter of 10 February, Mr Roots noted that he was yet to receive any indication whether the Prisoner was prepared to make any admissions, was prepared to dispense with the attendance of any Crown witness and whether any part of the ERISP would be the subject of objection.
71 On 18 January 1999 Legal Aid for the Prisoner’s trial scheduled to commence on 1 March 1999 was granted. The date from which the grant was said to take effect was 28 September 1998. On 17 February 1999 I was asked to adjourn the trial then listed for 1 March to enable the Prisoner to be psychiatrically examined, inter alia, on the questions of what intent the Prisoner may have had at the time of the offences charged and of his fitness to plead. Taking the view that any suggestion of a lack of intent was fanciful and there was no evidence on the application supporting such a claim or that the Prisoner might have been unfit to plead I refused the adjournment application. My reasons record that at that time it was envisaged that there would be something in excess of 20 counts involving some 11 victims. Statements from some 195 witnesses had been served although Counsel for the Crown indicated he intended to prune that list.
72 On 1 March 1999 the Crown preferred the four count indictment and the Prisoner pleaded guilty as I have indicated above.
73 The Prisoner is entitled to credit for the utilitarian benefits of his pleas and for his admission at an early stage of his guilt in relation to the offence of 22 October 1996. However, in determining the weight to be given to such pleas or admission, account must be taken of the strength of the Crown case apparent to a suspect - R v Winchester (1992) 58 A Crim R 345, R v Ellis (1986) 6 NSWLR 603. In that regard, Mr Joseph SC, appearing for the Prisoner submitted that, at least in the case of many charges, the Crown case was by no means strong. In that regard he drew attention to various statements of the victims relevant to the identification of their attacker. In the course of submissions he handed up a 20 page document summarising or drawing attention to these.
74 As is pointed out in the document, there are a substantial number of points of difference within the victims’ descriptions of their attacker. On the other hand, the modus operandi used in almost all of the attacks was very similar. Having considered all of the matters to which Mr Joseph drew attention, I nevertheless regard the Crown case in relation to each of the victims as strong.
75 The Prisoner’s sentence of course will be only in respect of the eight offences detailed at the beginning of these Reasons but the matters to which I have referred in this section indicate that the Prisoner’s admission of guilt in respect of seven of these matters occurred only at a late stage and that, even in respect of the offence of 22 October, his admission occurred in a context where he must have realised the Crown had a strong case. In this case in my view, the admission and pleas were at least substantially but a recognition of the inevitable. Furthermore, the history of events which I have recounted suggests to me that before the Prisoner pleaded guilty, he sought to obtain as much by way of concession from the Crown as he could in return. Such an approach, while not inconsistent with remorse, is hardly demonstrative of it.
76 In evidence the Prisoner expressed his apologies to the victims and said that all he had been trying to do for the last 2½ years was to find out what triggered his behaviour. He has sought during his incarceration to participate in a sex offenders’ program but until sentence this has been unavailable to him. He asserted that it has been hard to live with the question of what caused his behaviour unanswered. Dr Westmore gave evidence that he felt the Prisoner was genuine in his desire to know why he had behaved as he had although also said that the Prisoner seemed to have insufficient insight into the effect of his behaviour on his victims.
77 In the circumstances I am inclined to the view that the Prisoner probably does have some remorse extending beyond regret for the consequences he has, and must, suffer. However, in light of his past record and psychiatric assessments to which I refer below, the repetition of his offending, and his failure to seek treatment prior to his arrest, leads to the view that only limited weight should be given to this remorse which has only manifested itself since his arrest.
Subjective Circumstances
78 The Prisoner was born on 26th September 1951. He is thus now 48 and was a little over 45 when he went into custody. He was married in January 1974 and divorced in December 1995. He has two children aged 25 and 19 years. In about 1995 he commenced a de facto relationship which seems to have continued until his arrest. He passed his School Certificate exam. By trade he is a reprographics planner or graphic designer. He would seem to have had regular employment.
79 He has a small criminal record. On 29 December 1970 he committed an offence of assaulting a female and for this a 3 year good behaviour bond was imposed. In December 1974 he committed an indecent assault and again a 3 year good behaviour bond was entered into. In September 1983, and again in March of 1987 he committed offences against s547C of the Crimes Act of being near a building without reasonable cause with intent to peep or pry and in each case sentence was deferred upon him entering into a 2 year good behaviour bond. In August 1994, he was convicted of breaching a domestic violence order relating to his then wife. However in 1993 and 1994 the Prisoner was having matrimonial difficulties and I do not regard the offence committed that year as of any consequence for present purposes.
80 The other offences are of relevance. The 1970 offence occurred when the Prisoner saw a woman wearing a short mini-skirt waiting in the street. He stopped his car and walked close enough to her to place his hand up her dress on her thigh. The 1974 offence occurred after the Prisoner saw a 24 and a 15 year old female from his car. He stopped the car, alighted and, at least for a time, followed them. He entered the front yard of the premises of the older woman, who was apparently wearing a light or see-through dress, then turned around, approached her, placed his hand under her dress and on her crutch and then ran off.
81 The circumstances of the third offence were, according to the Prisoner, that while driving, he saw a woman in pyjamas or a negligee through a window of her residence. He stopped his car allegedly to go to the toilet. Seeing a light on in a flat he walked up the side of some property so that he could observe the woman inside. While watching he became sexually aroused and masturbated. The fourth offence was again a situation where the Prisoner had entered property because of an alleged need to urinate.
82 Following each of these offences the Prisoner saw psychiatrists although it would seem for the purposes of sentencing proceedings rather than treatment. After the first offence the Prisoner saw Dr Ellard who advised the Prisoner that if it happened again, he should find out the reasons behind his actions. After the second offence the Prisoner saw Dr Lucas who gave similar advice. Both doctors expressed the view that recurrence was unlikely, Dr Lucas saying also that he did not think the Prisoner would progress to a more serious offence. After the third offence the Prisoner saw a Dr Rumiz who recommended that the Prisoner consider seeking assistance. A condition of the bond given to the Prisoner after the fourth offence was that the Prisoner undertake counselling and treatment as required by the Probation and Parole Service. In fact the Prisoner saw a counsellor twice.
83 In evidence the Prisoner provided a number of excuses as to why he had not attended more often as had been required. Inter alia these included the demands of his work, and the movement of the counsellor whom he had seen into private practice which he said put her beyond his financial reach. However, like Dr Wong who gave evidence before me, I have no doubt that if the Prisoner had been motivated to pursue counselling he could have done so. He could not have been in any reasonable doubt that after 4 offences, he had a significant problem.
84 There are a number of other matters to which I should refer. The Prisoner gave evidence that at the end of 1992 he commenced an affair. He told his wife about it in early 1993 and she then left home. A reconciliation was attempted in October of that year but was unsuccessful. The matrimonial home was sold in July 1995 and soon after the Prisoner went to live with his girl-friend at her parents’ home. Divorce proceedings were commenced in August 1995 and finalised in December 1995.
85 Also during 1995 and 1996 the Prisoner was experiencing substantial problems with his sons who were then actively partaking of illicit drugs.
86 His employment was terminated in late April 1996. I am prepared to accept the Prisoner’s evidence to the extent of concluding that this termination was at least influenced by factors other than matters referred to as misconduct and that he felt stressed and upset by the event. He then participated in part time work for 6 to 8 weeks. For something of the order of 15 years the Prisoner was involved to a significant extent in the Volunteer Bushfire Brigade, rising to the rank of Senior Deputy Captain.
87 Since being incarcerated, all contact with his girl-friend has ceased, his father has died and it was felt that he should not attend the funeral. He has pursued a variety of courses in goal. As occurs with many sexual offenders, the Prisoner is in protective custody.
Psychiatric Evidence
88 Before me, evidence was called from 2 psychiatrists - in the case of the Crown Dr Wong and in the case of the Prisoner, Dr Westmore. Also placed before me were the reports of the psychiatrists I have previously mentioned. In his report Dr Wong, whose evidence overall, seemed to me much more persuasive that that of Dr Westmore concluded that “In summary, my opinion is that as things stand at the moment, there are sufficient negative prognostic pointers in the accused’s case to indicate very significant risks of re-offending.”
89 Dr Westmore was not as concise. Inter alia he concluded that the Prisoner did not suffer from any mental illness or personality disorder although he did say that the Prisoner needed “extensive psychiatric assistance to clarify the aetiology of his sexual offending”. In light of the whole of Dr Westmore’s evidence I think he meant “determine” rather than “clarify”. Dr Westmore also indicated that the Prisoner tended to minimise his behaviour and showed an extraordinary lack or insufficiency of insight into the effect of his behaviour on his victims. More importantly in my view, he did not disagree with Dr Wong’s view as to the Prisoner’s prospects of re-offending. I should perhaps add that, having regard to the Prisoner’s record and the offences for which he falls to be sentenced, this conclusion is one I would have arrived at even in the absence of psychiatric evidence.
90 Of course, recognition must be given to the fact that the Prisoner does not seem to have offended between March 1987 and December 1995 but in the absence of any satisfactory explanation for the Prisoner’s re-offending, that fact does not seem to me to deny a significant risk of further re-offending prior to, at least, a lengthy period of custody.
91 In that regard, it was suggested by counsel for the Prisoner that the Prisoner’s re-offending was due at least in significant measure to a history of some early sexual abuse of the Prisoner by a cousin and stress imposed on the Prisoner by the finality of the breakdown of his marriage, by difficulties in his employment and problems with his children. Dr Wong seemed to accept that at times stress may be a precipitating cause for sexual offending. However, I remain unpersuaded that the earlier sexual abuse or the stress arising from these matters or the factors in combination were, in any material degree, different from those operating at other times when he was not offending. My impression is that Dr Wong was also sceptical in this regard but be that as it may, my conclusion is as I have stated it. Furthermore, I am disposed to accept the evidence of Dr Wong that the sexual abuse the Prisoner had suffered was unlikely to have been a significant contributing factor to the Prisoner’s offending and that without something ingrained and deviant the offences would not have been committed.
92 Secondly, I am by no means satisfied that the Prisoner was entirely frank and accurate in his statement to Dr Wong and Dr Westmore. Indeed I would read into Dr Wong’s account of what the Prisoner told him of the current offences a significant minimisation of events.
93 I turn to the statutory provisions. Sections 61I, 61J and 61K of the Crimes Act provide:-
Crimes Act and Sentencing Principles
“61I Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.
61J (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2) In this section, “circumstances of aggravation” means circumstances in which:
(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby; or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument; or
(c) the alleged offender is in the company of another person or persons; or
(d) the alleged victim is under the age of 16 years; or
(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or
(f) the alleged victim has a serious physical disability; or
(g) the alleged victim has a serious intellectual disability.
61K Any person who, with intent to have sexual intercourse with another person:
(a) maliciously inflicts actual bodily harm on the other person or a third person who is present or nearby; or
(b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument,
is liable to imprisonment for 20 years.”
94 The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself. As was said in another context, “In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug” - R v Peel (1971) 1 NSWLR 247 at 262. The maximum penalty laid down by the legislature “is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v R (1987) 163 CLR 447 - Veen v R (No. 2) (1988) 164 CLR 465 at 478.95 Clearly, all of the Prisoner’s offences fall well short of a “worst case” under s 61J or s 61K. Although circumstances of aggravation exist if only one of the sub-paragraphs in Sections 61J(2) is fulfilled, it is not difficult to envisage circumstances where more than one will be. Furthermore, the counts on the indictment particularise the circumstances of aggravation relied on as a threat to inflict actual bodily harm, a circumstance which I would regard as commonly less heinous than the actual infliction of the same harm. Although in recounting what occurred I have mentioned bodily injuries in fact suffered by some of the victims, these are of a minor nature and, given both the terms in which the charges are framed and the magnitude of the threat which there was in each offence, I do not regard the actual bodily injuries which occurred as aggravating to any significant extent the Prisoner’s criminality.
96 In the Prisoner’s favour, it must also be recognised that his conduct, as distinct from his threats, was calculated to be less traumatic than many situations with which the court has to deal. In saying that, I wish merely to expressly recognise factors which the law requires be taken into account in judging where, on the scale of offences encompassed by the sections to which I have referred, his conduct falls. Regrettably, experience with in the Courts reveals depravity falling within the purview of sections 61(I) to (K) far, far worse in kind than that exhibited by the Prisoner. On the other hand, I do not for one moment underestimate the violation of the victims’ bodies which occurred nor the fear which his words or a knife against the throat were likely to engender. The Prisoner’s conduct was calculated to instil in at least some of his victims the fear of death with the concomitant loss of all that life holds, at least unless they bowed to his demands. Experience of life and experience within the courts demonstrate that not all persons readily recover from the traumatic events to which he subjected his victims. The victim impact statement of the fourth victim indicates that she has not.
97 His conduct also imposed a significant risk on his victims. He created circumstances likely to be charged with emotion, and experience within and without the courts shows that there is but a fine line between a threat and a weapon on the one hand and injury or death on the other. Although an offender who crosses that line may lay him or herself open to further charges, it is important that the courts impose real sanctions to discourage the creation of the risk. Indeed the reference to “offensive weapon” in s61J(2) (b) makes it clear that this is one of the reasons behind the increased penalty provided for in s61J compared with s61I.
98 It is necessary to bear in mind the legislative pattern revealed in the group of sections which I have quoted. Mere sexual intercourse without consent and with knowledge of that fact, but unaccompanied by any circumstances of aggravation renders an offender liable to imprisonment for 14 years. Ignoring any circumstances of aggravation, the objective circumstances of a number of the Prisoner’s offences were well up on the scale of conduct proscribed by s61I, albeit it must be acknowledged that matters such as the impact of an offence on a victim and the history and subjective circumstances of an offender have also to be taken into account
99 I have already referred to the question of pre-meditation. The fact that all but the first one were subsequent offences is in the case of the other offences to my mind also an aggravating circumstance. (Here of course I do not use that phrase in the sense defined in Section 61J(2).) Having succumbed to whatever inclinations or temptations caused him to commit one or more offences, the Prisoner allowed to develop, or put himself in, a situation to commit the others. It may be it is too much to expect that he would have surrendered himself to the authorities after the first offence but there is no suggestion that having committed it, or indeed the later ones, he sought treatment for his situation. I do not regard a second or subsequent offence as more serious than a first only if an offender is detected prior to the later offences although the fact of such detection and its consequences and an offender’s response may themselves further aggravate a subsequent offence.
100 Furthermore, particularly in light of his earlier offending, it must have been very apparent to the Prisoner, not later than the commission of the first of the offences with which I am concerned that he had a major problem with his sexual inclinations and self control.
101 So far as the offences on the Form 1 are concerned, it must be recognised that no separate punishment for them can be given. They are merely to be taken into account in the determination of the punishment appropriate for the offence the subject of the third count in the indictment, the maximum penalty for that offence remaining 20 years imprisonment. On the other hand, as was said by Hunt CJ at CL with the concurrence of Allen J and Loveday AJ in Morgan (1993) 70 A Crim R 368 at 372 “it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account pursuant to s21” of the Criminal Procedure Act 1986 (NSW). Indeed, subject to the limits imposed by s 21 itself, it seems to me that there is no basis in the statute or in logic for imposing a lesser penalty for such offences if they are taken into account than would have been imposed had they been the subject of additional counts in the indictment.
102 Of course the principle of totality must be borne in mind. “It is well established that in sentencing a person in respect of multiple offences, regard must be had to the total effect of the sentence on the offender” - Griffith v R (1989) 167 CLR 372 at 393. “When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable." - Gordon (1994) 71 A Crim R 459 at 466. It is not simply a case of determining the appropriate sentence for each offence in isolation and adding all together. Furthermore, as I have said elsewhere - R v Spiteri [1999] NSWCCA 3 - “I take the view that actual imprisonment for, say 10 years is more than twice as severe as imprisonment for 5 years. … (the longer period) is likely to have an impact on an offender’s life in terms of wife, children, job prospects and the like from which he may well never recover”.
103 Nevertheless, that said, it must also be recognised that one of the functions of punishment is the protection of the community, Veen v R (1987-88) 164 CLR 465 at 476, although this does not entitle the Court to impose a penalty by way of preventative detention going beyond the sentence appropriate to an offence - Veen at 473.
104 On this question of totality, there is one further matter to which I should refer. Even if I were wrong in my conclusion that the Prisoner’s criminality involved in each of the fifth to eighth offences included a practice of searching for victims, I would take the view that this practice is something I would be entitled to take into account against him in the course of reducing, pursuant to the totality principle, the penalties otherwise appropriate. There can be no doubt that this practice was part of the criminality of his offending. (Of course, it might not help the Prisoner if I concluded that his attacks were all spontaneous, uncontrolled or uncontrollable reactions to seeing a female in a vulnerable situation. The need of the community for protection from him would not obviously be less.)
Prior Authorities involving similar Offences
105 Statistics published by the Judicial Commission for the period January 1990 to July 1999 show that of 178 cases where imprisonment has been imposed for one count under s 61I, the median full term of imprisonment imposed has been 42 months and the median minimum or fixed term has been 24 months. Of 33 cases where there have been multiple counts, the medians have been 54 months and 36 months respectively. Combining these categories, the highest full term of imprisonment has been 10 years in one case and only 14 offenders received in excess of 7 years, half the statutory maximum. (In referring to these statistics, I do not overlook the fact that some of the periods have been rounded upwards.) Also one must recognise that, in the case of charges under sections 61(I) to 61(K), sometimes “multiple counts” reflect a number of acts of penetration on one occasion of only one victim.
106 Comparable statistics for offences under s61J where, as has been said, the maximum period of imprisonment is 20 years, show that of 191 offenders sentenced to imprisonment for one count, the median full term has been 5 years and the median minimum or fixed term has been 3 years. Of these offenders, 1 received a sentence of 20 years, 3 of 16 years, and 15 in all received sentences exceeding 10 years. Of 70 offenders involved with multiple counts, the median full term has been 7 years and the median minimum or fixed term has been 4 years. Combining the categories, the longest sentences have been 20 years imposed in 2 cases and 25 offenders received sentences exceeding 10 years.
107 The statistics for offences under s61K(b) available to me cover the period March 1991 to July 1999 but relate to only 11 offenders. The corresponding medians are between 3 and 4 years (full terms) and 18 months.
108 Devoid of detail concerning any individual case, these statistics can provide but a very rough guide but they do raise a question whether adequate attention has been paid to the significant increase in penalties provided by Parliament when those provisions of the Crimes Act dealing with sexual offences was substantially rewritten and penalties increased, effective from March 1991 - see R v Van Hung Truong (unreported, CCA, 8 December 1997).
109 I have also considered a number of individual decisions. I have included as a schedule to these Reasons a summary of some of those to which I have been referred by counsel and some of the others to which I have had regard in arriving at my decision in the case of the Prisoner. Many, of course, have features not present in any individual offence of the Prisoner. Some are cases where the Court of Criminal Appeal has increased a sentence and that imposed will thus have been at the bottom of the range or less than should have been imposed at first instance. However it does seem to me that of the cases included in the schedule, Agafili, Cochrane, Cutmore, Dawson and Harvey support the conclusion that a total sentence of 6 years is within the range of sentences appropriate for the worst of the Prisoner’s offences, considered in isolation but taking account of his subjective circumstances. Brennan, Carroll, Gilbert, Hemsley, Hickey, Miller, Pratt, Rivera, Russell (December 1995) and Russell (June 1996) support the conclusion that a total sentence of 7 years is within that range.
110 Given that the principle of totality will limit the total sentence to be imposed on the Prisoner I am content to proceed on the basis of these last mentioned cases although I should record that, judged by the terms of s 61I and 61J rather than by sentences in other cases, I would myself have thought that a sentence of longer than 7 years was appropriate for the worst of the offences committed by the Prisoner.
Conclusion
111 Having regard to what was said in Pearce v R (1998) 72 ALJR 1416 (see also DPP v Grabovac (1998) 1 VR 664 at 676-7) what I intend to do is to consider each case individually in the first instance, then to consider the minimum and total terms which seems to me appropriate to reflect the totality of the Prisoner’s criminality, and finally, structure the individual sentences so that those terms are not exceeded.
112 If the first offence is considered in isolation, the sentence which seems to me appropriate is one the total term of which would be 5 years imprisonment with a minimum term of 3¾ years. Factors which distinguish this offence from some of the others are that it was the first offence in the series, and the only penetration was digital penetration of the vagina.
113 If the second offence is considered in isolation, the sentence which seems to me appropriate is one the total term of which would be 6 years imprisonment with a minimum term of 4½ years. Factors which distinguish this offence from some of the others are that the penetration of the vagina was both digital and penile. Also, the victim was relatively young - 17.
114 If the third offence is considered in isolation, the sentence which seems to me appropriate is that indicated for the first offence, viz. one where there is a total term of 5 years imprisonment with a minimum term of 3¾ years. Factors which distinguish this offence from some of the others include the somewhat lesser degree of persistence, no evidence of more than minimal penetration but the victim was also relatively young - 18.
115 If the fourth offence is considered in isolation, the sentence which seems to me appropriate is one the total term of which would be 6 years imprisonment with a minimum term of 4½ years. A factor which mitigates this offence compared with some of the others is the nature of the offence - inflicting actual bodily harm with intent to have sexual intercourse. Although the Crimes Act provides for the same maximum penalty as for the first 3 offences, and the Prisoner’s lack of success was largely due to events beyond his control, the physical components of this offence was less heinous than if he had succeeded. On the other hand an aggravating feature is that the psychological impact on the victim was severe and greater than apparent in the case of the other victims. But for this factor, I would have regarded lesser terms as appropriate but a severe psychological impact is well within the reasonably foreseeable consequences of actions against which s61K is directed.
116 If the fifth offence is considered in isolation, the sentence which seems to me appropriate is one the total term of which would be 4 years imprisonment with a minimum term of 3 years. Some of the remarks made when dealing with the fourth offence apply here.
117 If the sixth offence is considered in isolation, the sentence which seems to me appropriate is one the total term of which would be 7 years imprisonment with a minimum term of 5¼ years. Factors which differentiate this offence from some of the others include the tying up of the victim, what seems to have been somewhat more or longer determination on the Prisoner’s part, more instances of penile-vaginal penetration, and, although the victim was older than some of the others, the impact upon her seems to have been greater than in some other instances.
118 If the seventh offence is considered in isolation, the sentence which seems to me appropriate is one the total term of which would be 6 years imprisonment with a minimum term of 4½ years. Although fellatio was to the victim the least distasteful of the options presented to her, and Hunt CJ at CL in R v O’Donnell (unreported, CCA, 1 July 1994) has said that fellatio is less heinous than vaginal intercourse, I do not regard the differences between this offence on the one hand and the second on the other as inspiring a difference in penalty. Had I taken the view that the orifice used by the Prisoner did mean that the penalty for this offence should be less than that for the second offence, I would have regarded the second offence as deserving a higher penalty. This offence merits a total sentence of 6 years.
119 If the eighth offence is considered in isolation, the sentence which seems to me appropriate is again one where the total term would be 6 years imprisonment with a minimum term of 4½ years. Although the nature and degree of penetration is less than in the case of some other of the offences, the victim was only 16. I should say more on that topic. Within the range of offences covered by s61J, all other things being equal - and I acknowledge they rarely, if ever, are - I would anticipate that the greater maturity which comes with age would make endurance of, and recovery from, an attack of the nature conducted by the Prisoner easier. Although Parliament has made an age of under 16 on the part of a victim itself a circumstance of aggravation, it does not seem to me that no distinction should be drawn between the likely situation of persons over that age.
120 In the case of the last 7 offences, I have given some weight - though I should say not great - to the fact that they were not first offences. However, consistently with treating the offences individually, I have otherwise ignored the Prisoner’s “continuing attitude of disobedience” or “dangerous propensity” as revealed by the number of offences he did commit - see Veen v R (No 2) at 477. Had I taken that factor into account, it would have lead me to increase the sentences beyond those indicated. However, given that the impact which the principle of totality has in this case, it seems to me unnecessary to further pursue these issues in respect of individual offences as opposed to taking account of them in determining the overall sentence.
121 There is nothing in the circumstances of the individual offences to justify any of them being made concurrent. They were unconnected, except insofar as the Prisoner participated in each. However, the principle of totality requires that they be not simply accumulated. One must recognise that they are incidents in one course of criminality of the Prisoner and consider what penalty is appropriate for that. That inquiry raises a number of issues. It seems to me that one relevant question is whether his offences deserve a greater punishment than is commonly imposed for murder - see R v Sharrock [1999] NSWCCA 289. The Prisoner had 8 victims and although there was at least one instance of what I would regard as serious psychological damage, none of the victims lost their lives. On the other hand, his offences were premeditated and planned and in that respect, his criminality was worse than that of some instances of murder. It is appropriate also to recognise that his course of conduct is likely to have affected more people than his individual victims. Contemporaneous press reports of his offences are likely to have led to a number of persons at say, Artarmon, changing their pattern of life to avoid the risks his conduct created. The public are entitled to be protected, not only against the risks, but also against the fear which his type of conduct is calculated to engender. That said, I do not suggest that the Prisoner’s sentence should be extended beyond that appropriate to his crimes - see Veen v R (No 2) (1987-88) 164 CLR 465 at 473.
122 The conclusion at which I have arrived is that the totality of the Prisoner’s criminality requires that a sentence of not less than 20 years, with a minimum term of 15 years be imposed. Given the nature and number of offences the Prisoner has committed, and the number of victims who have suffered at his hands, it does not seem to me that any lesser penalty is justified, particularly when one has regard to the maximum penalties provided by ss 61I, J and K. On the other hand, it must be recognised that the Prisoner’s offences all fell well short of the worst of their type. I do not regard his criminality as worse than that of many murderers who receive similar sentences, and if the Prisoner serves the longer of the periods I have mentioned, he will remain in prison until he is quite old, and there is a not unreasonable prospect that his sexual inclinations will have lessened.
123 I make it clear that it is the last two of these factors, and the enormity of terms of 15 and 20 years which have led me to limit the Prisoner’s sentence to these periods. I would adhere to these terms even if the appropriate sentences for individual offences were somewhat less than as indicated above.
124 The nature of the Prisoner’s offences, the importance of rehabilitation, and the time he must serve in prison make it desirable that the additional term be lengthy. It seems to me appropriate that it accord with that normally imposed where the minimum term is 15 years. As I intend to impose some fixed terms and the additional term will be imposed in respect of an offence or offences where the minimum term will be less than 3 times that period, there are special circumstances within s44 of the Crimes (Sentencing Procedure) Act.
125 I have not been referred to, and have not found, any case which is on all fours with this one. In any event the Court of Criminal Appeal has said on numerous occasions that the correct approach to sentencing does not involve merely a comparison of one case with another. However in coming to the conclusion as to what the Prisoner’s ultimate sentence should be I have again had regard to the statistics compiled by the Judicial Commission to which I have referred and to those cases in the schedule to these Reasons where there have been multiple victims or instances of offending.
126 Despite the remarks in the immediately preceding paragraph, there is one case in the Schedule to which I wish to refer. It is R v Presta [2000] NSWCCA 40 where the effective sentence imposed was one of 19 years including a minimum term of 14 years and 3 months - both periods less than I regard as appropriate here. Although there were only 5 victims in that case as compared with 8 here, the extent of offending was in my view worse. I wish to make it clear that in my view, insofar as there may be inconsistency in the sentences imposed in that and the instant case, it arises because the sentence in R v Presta was lenient and probably unduly so. In the Court of Criminal Appeal Greg James J described the sentence in that case as “very lenient” and while Grove J said that the sentences imposed were entirely appropriate, those remarks must be considered in light of the fact that the appeal was by the offender, contending that the sentence was manifestly excessive.
127 In order to effect the above conclusions, I decline to set a non parole period in respect of the offences the subject of the first, second and fourth counts of the indictment and the orders I make are as follows:-
128 In specifying the days on which the Prisoner will become eligible for parole and release, I have departed from the examples provided under s48 of the Crimes (Sentencing Procedure) Act, which reflect a misunderstanding of either simple counting or the law’s measurement of time. Absent special circumstances, the law does not take account of parts of a day. Seven days’ imprisonment commencing on a Monday expires at midnight on the following Sunday. The person is entitled to be released immediately thereafter i.e. on the next Monday, not on the Sunday as the first example states. Whether for ease of administration the authorities choose to release such an offender on the Sunday is, of course, a different matter entirely.
1. In respect of the offence the subject of the first count of the indictment, the Prisoner is sentenced to a fixed term of imprisonment of 3 years and nine months commencing on the day of his arrest, viz 18 February 1997 and concluding on 17 November 2000.
2. In respect of each of the offences the subject of the second and fourth counts of the indictment, the Prisoner is sentenced to a fixed term of imprisonment of 4½ years commencing on 18 February 1997 and concluding on 17 August 2001.
3. In respect of the offence the subject of the third count of the indictment, and taking into account those on the Form 1, the Prisoner is sentenced to imprisonment for 15½ years including a non parole period of 10½ years both such periods to commence on 18 August 2001.
4. The Prisoner will become eligible for parole on 18 February 2012 and entitled to release from custody on 18 February 2017.
R v Graham James KAYSCHEDULE
In R v Agafili (unreported CCA, 1 May 1996) the Court of Criminal Appeal increased to a minimum term of 6 years with an additional term of 2 years a sentence imposed for sexual intercourse without consent in circumstances of aggravation. Taken into account was another such offence and one of kidnapping. The victim had entered - whether voluntary or not was not determined - a vehicle containing the respondent and co-offenders. She was involuntarily detained in it for some 6 hours in the course of which she was raped vaginally and anally, escaped once, and had been forcibly dragged back to the vehicle.In R v Brennan (unreported, CCA, 29 May 1995) the respondent to a Crown appeal had been found guilty to 10 counts of aggravated sexual assault without consent and three counts of indecent assault. On the latter counts fixed terms of 2 years were imposed, to be served concurrently with sentences on the aggravated sexual assault charges. On these, concurrent minimum and additional terms of 3½ and 2½ years had been imposed. Carrying a butcher’s knife, the respondent had broken into the flat of the victim and subjected her to some hours of terror during which the offences, including fellatio and vaginal intercourse occurred. The respondent had kicked the victim, punched her, dragged her from one room to another and cut her deliberately.
The respondent had a relatively clear record and had not been in prison previously. The offences were regarded as out of character and it would seem that alcohol abuse had played some part. The Court of Criminal Appeal increased the sentences on the aggravated sexual assault charges to include a minimum term of 5 years and an additional term of 2 years although Sully J, with whose Reasons the other judges agreed, said that at first instance a total sentence of 10-12 years including a minimum term of 7½ to 9 years would not have been excessive. But for some additional evidence as to the Respondent’s prospects of rehabilitation which was before the Court, the minimum term would have been 6 years.
In R v Bus and AS (unreported, CCA, 3 November 1995), although there was no appeal against sentence the Court of Criminal Appeal said that the sentences imposed were within the applicable ranges. Each appellant had been found guilty of 2 counts of sexual intercourse without consent in circumstances of aggravation, viz. being in company, and one count of one of indecent assault. One victim was involved, she had had a sexual relationship or sexual intercourse with both offenders previously and all offences had occurred during one evening. The effective sentence imposed on Bus included a minimum term of 4 years with an additional term of 2 years although it is proper to recognise that 19 months of the minimum term was to be served concurrently with a sentence on a prior offence. Bus had a record for various dishonesty, driving and drug offences and was subject to a recognisance and a periodic detention order at the time of his offences. He was 20 at the time and some reduced weight was given to general deterrence in consequence of him having a very low IQ.
AS was 17¼ at the time of the offences and accepted by the sentencing judge to have been immature. He had been sentenced to a minimum term of 2½ years and an additional term of 2 years.
In R v Carroll (unreported CCA, 26 September 1995) the appellant was found guilty of aggravated sexual assault in consequence of inducing a victim to go to an isolated spot, hitting her such that she fell down, placing his hands on her throat and threatening to drown her and then having penile-vaginal intercourse without consent. The victim was left considerably affected psychologically and it was found this condition would continue. His sentence for this offence included a minimum term of 8 years penal servitude.
While on bail for that offence he committed an offence of aggravated sexual assault on a woman who had invited him into her home. The victim suffered a number of injuries not detailed in the report. For this offence he was given a cumulative sentence which included a minimum term of 4 years penal servitude and an additional term of 2 years.
These were the appellant’s first serious offences. The Court of Criminal Appeal thought the total excessive and varied one of the sentences so as to impose, effectively, a minimum term of 10 years and an additional term of 4 years.
In R v Cochrane (unreported, CCA, 7 October 1998) The Court of Criminal Appeal held that a sentence including a minimum term of 4½ years with an additional term of 1½ years was well within the range of the trial judge’s discretion. The appellant was a taxi driver who, instead of driving his victim home took her to a deserted area where he attempted fellatio and then had penile-vaginal intercourse after cutting her underpants, placing a knife at her throat and threatening to kill her. He was convicted of one count of aggravated sexual assault.
In R v Cutmore (unreported, CCA, 28 May 1999) the respondent to a Crown appeal had pleaded guilty to one count of kidnapping and one count of aggravated sexual assault. He had abducted a 12 year old from her bedroom and taken her to a nearby showground. There was one incident of digital-vaginal penetration and one incident of fellatio and he threatened the victim that if she told any one he would come back and kill her. There was tearing of her hymen and into the muscle layer adjacent.
The respondent was 22½ years with a long criminal history and on parole at the time. He was an aboriginal who had abused alcohol at an early stage of his life. Expressions of remorse were regarded as genuine. The sentence originally imposed included minimum and additional terms of 4 and 5 years respectively. The Crown did not contend that the 9 year period was inadequate but appealed against the minimum term. The Court changed the sentence to one including minimum and additional terms of 6 years and 3 years respectively.
In R v Dawson (unreported, CCA, 19 May 1998) the appellant was found guilty on counts of (i) assault occasioning actual bodily harm, (ii) sexual intercourse without consent in circumstances of aggravation, and (iii) sexual intercourse without consent. The aggravation consisted of holding a knife to the complainant and threatening to kill her if she screamed. Injuries she suffered included a loose tooth and extensive bruising. The appellant had had a sexual relationship with the complainant previously, which she had broken off although friendship continued. The offences occurred on the one occasion after the appellant broke into the complainant’s isolated home, woke her up with his hands around her neck and said “Prepare yourself to be bashed and raped tonight”.
The appellant had no record of violence. He had a borderline personality disorder and was a heroin addict. He came from a dysfunctional home where he had been subjected to physical and psychological abuse. The Court of Criminal Appeal said that having regard to the totality of his criminality the sentences which had been imposed were appropriate. They were (i) penal servitude for a minimum term of 2 years with an additional term of 8 months, (ii) penal servitude for a minimum term of 5 years and an additional term of 1 year 8 months, and (iii) penal servitude for a minimum term of 3 years and an additional term of 1 year. The sentences were concurrent. The Court of Criminal Appeal also said “This Court has repeatedly stated that offenders who use knives in sexual crimes can expect to be sternly punished.”
In R v Gilbert (unreported, CCA, 24 February 1994) the Court of Criminal Appeal reduced (by 1 year) to a minimum term of 6 years with an additional term of 2 years the effective sentence imposed on an offender who had grabbed an 18 year old victim from the street and taken her into adjacent toilets saying “I don’t want to hurt you or kill you - I just want to fuck you” and there committed a variety of indecencies upon her including fellatio, digital-vaginal penetration (twice) and penile-vaginal penetration. He had been convicted of 4 counts of sexual intercourse without consent and 2 of indecent assault. The victim had endured an hour of terror during which she feared for her life if she did not comply with the applicant’s demands. A report 15 months after the offences indicated that immediately after them the victim was seriously affected.
The offender was of good character, had no criminal record, his inhibitions may have been reduced by the ingestion of alcohol and because he was a prison officer would suffer greater hardship than usual in prison. There was no weapon and no premeditation.
In R v Hardy (unreported, Kirkham J, 27 November 1998), the offender was sentenced to an effective minimum term of 30 years and an additional term of 4 years and 8 months. His offences, to which he pleaded guilty were summarised by the judge as “twenty-nine serious offences, most of them violent sex offences, committed over a period of 6 months upon 10 people of both sexes and of varying ages and intellectual functioning”. In totality they rendered the offender liable to imprisonment for 462 years. Some 6 months prior to the first of the offences for which he was sentenced by Judge Kirkham he had been released from prison at the conclusion of some 9½ years imprisonment for similar offences.
The offender was born in June 1956 and the minimum term will expire in September 2027, when he is 71.
The offences against many of the victims followed a similar pattern and it will suffice if I summarise those against the first victim. He was a 16 year old boy who was induced to go with the offender into some bushes. There he told his victim he was a sex offender and to do what he was told or he would be killed. The boy started to struggle but the offender constricted the boy’s throat so he could hardly breathe. The offender then produced a knife. There was another threat of killing and the boy was forced to undress completely. The offender then committed fellatio on the victim and then forced the victim to do the same to him. The offender then put his fingers or penis into the victim’s anus and then his penis into the victims mouth. The Prisoner then masturbated to ejaculation. Evidence as to the effect on the victim of the offences showed, among other things, that he was very frightened of going into public places, suffered nightmares and poor impulse control and had developed a post traumatic stress disorder on top of a chronic psychosis.
In R v Harrison (unreported, CCA, 20 February 1997) in a Crown appeal the Court increased a lower sentence which had been imposed at first instance. The facts are complicated.
One group of offences occurred when the respondent picked up two hitchhikers, drove them to a secluded track, put a piece of string around the throat of one asking them whether they wanted him to hurt. The victim stabbed the Respondent. This conduct led to one charge of assault occasioning actual bodily harm and one of assault.
In 1992 he picked up another hitchhiker who he threatened to mutilate and then kill with a knife, whom the respondent then caused to be handcuffed, perform fellatio more than once and with whom he had penile-vaginal intercourse. He subjected her to other gross indignities over a period of almost 7 hours. She suffered a substantial emotional reaction to her experiences. These events led to four charges of aggravated sexual intercourse without consent and one charge of sexual assault by forced self manipulation. He pleaded guilty to these offences and those arising out of the earlier incident.
Two days later the respondent abducted another woman in Queensland and treated her somewhat similarly and with equal contempt. He was sentenced in Queensland in respect of his activities there. Then he was transferred to NSW and the Queensland sentence re-determined in this State as an effective total of 11 years and almost 4 months including a minimum term of 6 years. Then he came to be sentenced for the New South Wales offences to which I have earlier referred. He already had a criminal record for stealing, false pretences, stealing with violence whilst armed and assault occasioning actual bodily harm. There seemed to be some prospects of rehabilitation.
In arriving at a sentence of a minimum term of 12 years and an additional term of 4 years the Court of Criminal Appeal took the view that the principle of totality required that there be imposed a total sentence for the NSW offences which, together with the re-determined sentence relating to the Queensland offences represented the totality of his criminality for all of the crimes in Queensland and in New South Wales for which he was in custody.
In R v Harvey (unreported, CCA, 23 August 1996) the Court (by majority) allowed a Crown appeal and imposed a sentence including a minimum term of 4 years and an additional term of 2 years on one charge of aggravated sexual assault. The Respondent had broken into the house of his wife, from whom he was separated, after cutting the telephone wires and purchasing baby oil and carrying a knife. Having told her he intended to inflict pain upon her such as he was suffering, he followed her into the bedroom where he forcibly undressed her and, using the baby oil as a lubricant, had digital and penile-vaginal intercourse. The Respondent’s record disentitled him to leniency and he demonstrated no contrition.
In R v Heather (unreported, CCA, 1 August 1995) this Court reduced to a minimum term of 9 years and an additional term of 3 years the effective sentence imposed for one count of kidnapping and 3 counts of aggravated sexual assault. The circumstance of aggravation was that the victim was aged 11. She had been walking past the offender’s home. He forced her inside and to undress. She was subjected to forcible penile intercourse and 2 separate instances of oral intercourse.
The offender was 45 at the time of the offences and had prior convictions for robbery and assault prior to being sentenced in 1980 to 5 years penal servitude with an 18 month non-parole period of 2 counts of carnal knowledge of girls over the age of 10 and under 16 and attempted carnal knowledge of a girl under 10. The offender had also had multiple admissions to psychiatric hospitals. The basis on which the Court interfered was that the sentencing judge had made no allowance for the principle that general deterrence should be given less weight in the case of an offender suffering from psychiatric or intellectual disability than would otherwise be the case.
Referring to R v Horvath (unreported, CCA, 6 February 1986), Studdert J said “a person who uses a knife in a sexual attack must expect stern punishment” and that the sentence imposed in the Court of Criminal Appeal was less than he would have regarded as appropriate at first instance.
In R v Hemsley (unreported, CCA, 8 December 1995) the Crown case was that the complainant had been visited by the appellant and two others. The others left. The appellant then forced the complainant to submit to vaginal intercourse and then to perform fellatio. Early the next morning the appellant forced the complainant to submit again to vaginal intercourse and then left. He was convicted of 3 counts of sexual intercourse without consent and sentenced to a total of 9 years penal servitude, including a minimum term of 5½ years. Although there was no appeal against sentence Hunt CJ at CL with the concurrence of Smart and Studdert JJ said that there was nothing about the sentence to suggest it was otherwise than wholly appropriate in the circumstances.
In R v Hickey (unreported, CCA, 27 September 1994) the respondent to a Crown appeal had been convicted of one charge of detaining a female with intent to hold her for advantage and of 2 counts of sexual intercourse without consent. The victim was 17 at the time. She was walking through a car park when grabbed by the respondent and led to a place where his activities were less likely to be observed. There he forced her to perform fellatio on him twice. On the second occasion he ejaculated in her mouth. The respondent was on parole at the time for 4 counts of assault occasioning actual bodily harm and on one offence of inflicting grievous bodily harm with intent to have sexual intercourse. Years earlier he had been convicted of 3 counts of rape.
The respondent was a aborigine who had suffered substantial disadvantages in life. However the objective seriousness of the offences and other matters to which I have referred led the Court of Criminal Appeal to impose a sentence which included a minimum term of 4 years and an additional term of 2 years. That sentence was described as lenient and it was said that a minimum term at first instance could have ranged as high as 7 years.
R v Jones (unreported, CCA, 15 December 1993) (There is some difficulty in relating the sentences imposed to the statement of the counts in the judgment in the Court of Criminal Appeal and I have had recourse to the court file.) For offences of (i) sexual intercourse in circumstances of aggravation, viz. the infliction of actual bodily harm, (ii) the malicious of actual bodily harm with intent to have sexual intercourse, (iii) assault, (iv) assault, and (v) a second offence of sexual intercourse in circumstances of aggravation, viz. the infliction of actual bodily harm, sentences of (i) a fixed term of 6 years penal servitude, (ii) a fixed term of 6 years penal servitude, (iii) a fixed term of 1 years imprisonment, (iv) a fixed term of 1 years imprisonment and (v) a minimum term of 6 years and an additional term of 2 years penal servitude respectively were imposed. The first four sentences were concurrent, and the fifth cumulative on the first two. Thus an effective sentence of 12 years minimum term and 2 years additional term was imposed.
The fourth and fifth offences involved the same victim. Different victims were involved in the other offences. The second to fifth offences were committed within hours of each other and the first offence some 3½ months earlier. The violence of Jones was somewhat worse than that of the Prisoner Kay. Jones had an appalling record and at the time of his offences he was on parole following earlier convictions for rape and similar offences. There was no evidence to suggest any prospects of rehabilitation and this, the Court thought, made understandable the shortness of the additional term. Putting aside an argument based on Jones’ life expectancy, the only attack on the length of the sentence was that the proportion between the fixed and minimum terms on the one hand and the additional term on the other indicated error. Not only was this argument rejected, but all the judges of the Court of Criminal Appeal were of the view that the sentences were appropriate.
In R v Miller (unreported, CCA, 25 March 1997) the Court dismissed an appeal against a sentence including a minimum term of 7½ and an additional term of 3½ years on 6 counts laid under s61J of the Crimes Act and described in the report as either aggravated sexual assault without consent or aggravated sexual intercourse without consent. The applicant had seized a 16 year old girl without prior sexual experience while she was walking through a park and committed a number of indecencies upon her including digital-vaginal penetration, and 3 instances of fellatio. A little time afterwards the victim was described as screaming, crying and hysterical. The applicant’s record included, some 8 years earlier, a conviction from assaulting a person under 16 with an act of indecency for which he had been sentenced to 3 years penal servitude including a non-parole period of 12 months, 4 years earlier, entering a building with intent to commit a misdemeanour and an offence of indecent assault on which charges he had been sentenced to concurrent minimum terms of 14 months and additional terms of 4 months.
The applicant was 35 years at the time, diagnosed as suffering from an anti-social personality disorder not normally responsive to psychiatric treatment and would be serving his sentence on protection. He had pleaded guilty but only during the course of a trial. There had been a prior sentence indication hearing, sentence, successful Crown appeal and withdrawal of the plea of guilty.
In R v Pratt (unreported CCA 26 July 1996) the Court dismissed an appeal against a sentence consisting of a minimum term of 4½ years and an additional term of 18 months imposed for an offence of sexual intercourse without consent in circumstances of aggravation viz. the infliction of actual bodily harm. The victim had been on a “pub crawl”, she was the last passenger in a mini-bus and the applicant had taken the opportunity to grab her by the head, bash it hard against the bottom of the bus saying “I will knock you out if you want me to. We can do this the easy way or the hard way” and then had intercourse. He had no relevant record and the conduct was out of character.
In R v Presta [2000] NSWCCA 40 the Court of Criminal Appeal dismissed an appeal against an effective sentence of imprisonment for a minimum term of 14 years 3 months and an additional term of 4 years 9 months in respect of 5 counts of kidnapping and 21 counts of aggravated sexual assault. Again it will be sufficient to record the offences involving the first of the five victims as not untypical.
A 15 year old boy was walking home from a party. He passed near the Appellant who produced what appeared to be a handgun. He covered the victim’s eyes, forced him into a car and drove him to the offender’s home. There he was tied to a bed with his arms and legs spreadeagled. He was given 5 or 6 tablets and an alcoholic drink to wash them down. He then passed in and out of consciousness. There, among other things, he was struck with a belt, and forced to commit fellatio and to lick the offender’s anus. The offender had anal intercourse with the victim and inserted a baton into the victim’s anus. The victim was then taken back to the motor car, driven away and thrown out. He was located, unconscious, by a passer by. Much of this activity was recorded by the offender on video.
In R v Rivera (unreported, CCA, 19 February 1996) the Court dismissed an application for leave to appeal against sentences of a minimum term of 6 years and an additional term of 3 years and a concurrent fixed term of 4 years on 2 counts of aggravated sexual assault. The applicant had followed his victim out of an hotel, offered to walk her home. The offer seems not to have been accepted but he followed her and near a park grabbed her neck, took her inside the park and raped her twice, persisting in this activity to such an extent that after the police arrived he had to be bodily lifted from the victim.
He was on a good behaviour bond for a prior offence of sexual attack and had two earlier convictions for offences of violence. Prior to his offences, he had suffered head injuries and brain damage in a motor vehicle accident but the court regarded these injuries and their impact on the Applicant as a two edged sword. They made general deterrence of lesser importance but the protection of society and the deterrence of the Applicant of greater importance, than might otherwise have been the case.
In R v Roach (unreported, CCA, 29 September 1994) the applicant was found guilty of two charges of homosexual intercourse with a boy aged 7 - an offence which carried a maximum penalty of 25 years penal servitude. The offences arose out of the one occasion when the applicant was left alone with a child of a friend. In reliance on a review of prior decisions carried out in R v Moore (unreported, CCA, 12 April 1994) and on R v O’Donnell (unreported, CCA, 1 July 1994) the Court reduced the sentence from terms of 10 years and 3 1/3 years to minimum and additional terms of 8½ years and 2 years and 10 months.
In R v Roberts (unreported, CCA, 8 August 1994) the applicant had been sentenced to terms aggregating 13 years including an additional term of 2 years for a series of offences consisting of 5 counts of aggravated sexual intercourse without consent and 4 counts of indecent assault. Using a knife he had forced his way into his victim’s house and there engaged over an extended period in, among other things, oral, vaginal and anal intercourse, urinated upon her and left her naked and bound. He had a substantial criminal record including an offence of threatening to inflict bodily harm with intent to have sexual intercourse. The Court of Criminal Appeal took the view that the trial judge had given insufficient attention to the proportion between the effective minimum and the additional terms and altered them to 10 and 3 respectively. Gleeson CJ with the concurrence of the other members of the Court,] said that the applicant’s conduct came close to being a worst case.
In R v Russell (unreported, CCA, 15 December 1995) the applicant had sexual intercourse without consent with a girl he was walking home, and while on two recognisances. Shortly after his release on bail on that offence he, armed with a knife, approached a girl riding a bike in Redfern and forced her to a secluded area where he made her perform fellatio and had penile-vaginal intercourse with her. This incident led to one count for forcible abduction and two of aggravated sexual assault. Again released on bail, he was seen driving in a dangerous manner and sought to avoid arrest by forcing his vehicle against a police car.
On the first charge, a fixed term of 3 years penal servitude was imposed. Arising from the second incident he was sentenced to a minimum term of 4 years penal servitude with an additional term of 4 years. The sentence consequent on his attempt to avoid arrest was a fixed concurrent term of 2 years.
The applicant had a bad criminal record and was described as mildly intellectually handicapped. He also had a hearing disability and probably an associated learning deficit and immaturity. He was an aboriginal but, given the offences which he had committed, these matters were not regarded as entitling him to any significant discount. By majority, the Court of Criminal Appeal refused to interfere.
In R v Russell (unreported, CCA, 21 June 1996) the respondent to a Crown appeal had knocked on the victim’s door while masked. When the door was opened he forced his way in, grabbed her in a head lock, hit her when she screamed and dragged her to the bedroom. After a number of unsuccessful attempts he achieved anal penetration but was unsuccessful in vaginal penetration. The charges were aggravated sexual assault without consent and attempted aggravated sexual assault without consent. The victim suffered bruising in a number of areas and post-traumatic stress disorder, finding herself unable to live alone, distrustful of others, particularly men and found it impossible to live her life, including work, as she had done previously.
The respondent was 24, had an extensive criminal record since he was 12, six prior convictions for assault and assaulting police and was on parole at the time. He was aboriginal. Drug and alcohol seemed to have been involved.
The Court said there was a degree of planning and pre-meditation. After referring to a number of cases in the Court of Criminal Appeal which showed a pattern of sentences ranging from minimum terms of 6 to 9 years following a plea of guilty to similar offences, the Court allowed the Crown appeal and imposed concurrent sentences including minimum terms of 5½ and additional terms of 2½ years.
In R v Smith (unreported, CCA, 27 May 1996) the Court reduced the sentence for aggravated sexual assault from a minimum term of 4 years and an additional term of 2 years to one of a minimum term of 3 years and an additional term of 1 year. However the case was unusual in that the trial judge had made no relevant findings of fact and the Court of Criminal Appeal proceeded on the basis of only the facts implicit in the jury’s verdict i.e. digital penetration without consent and a threat with a knife. Subjective considerations were strong. The applicant was 54 and of unblemished prior character. He had been drinking prior to what was, for him, uncharacteristic behaviour.
In R v Truong (unreported, CCA, 8 December 1997) the Court of Criminal Appeal increased to a minimum term of 2 ½ years and an additional term of 2 years the sentence imposed on a charge of under s61J. the respondent had forcibly had penile intercourse with the complainant while driving her home, the circumstance of aggravation being that the respondent was in the company of another. The Respondent had no prior convictions and there were other favourable subjective considerations. According to a victim impact statement the complainant had suffered trauma and been prescribed anti-depressant medication, presumably in consequence of the attack upon her. The Court said that the sentence reflected the fact of double jeopardy and should not be seen as providing guidance to primary sentencing judges.
In R v Wap (unreported, CCA, 19 August 1996) the applicant went to the home of one victim, knocked and when the door was opened, brandished a knife and forced the occupant inside, then taking hold of the occupant’s wife. The occupant escaped, called for police assistance, and the appellant decamped. This conduct led to charges of entering a building with intent, and assault.
The applicant then proceeded to the home of his second victim where he again knocked and the door was opened. By this time not only was he carrying a large knife but was disguised with a black stocking mask. He forced his way in to the house. There he committed a number of penile penetrations of each of the victim’s vagina and anus, penetration of her vagina with an aerosol can and his fist, and of her anus with a carrot, and fellatio.
The applicant was 26 years at the time of his appeal with formidable criminal record commencing when he was 13 albeit there was only one earlier offence of violence and no prior sexual offences. The offences were committed within days of his release from custody and, one may infer, while on parole. To reflect his total criminality, he had been sentenced to imprisonment for a minimum term of 9 years and an additional term of 3 years. The Court of Criminal Appeal reduced the minimum term by one year for subsequent assistance to the prison authorities and, at least in part, in recognition that he would have to serve his sentence in strict protection.
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