R v Le Grange

[2015] NSWDC 187

District Court

New South Wales

Medium Neutral Citation:	R v Le Grange [2015] NSWDC 187
Hearing dates:	7 August 2015
Date of orders:	07 August 2015
Decision date:	07 August 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment. The overall effective sentence is one that consists of a non-parole period of 9 years and head sentence of 12 years.
Catchwords:	CRIMINAL LAW - Sentence - Cause grievous bodily harm with intent to cause grievous bodily harm – Sexual intercourse without consent – Vulnerable victim
Category:	Sentence
Parties:	The Crown Zachary Le Grange
Representation:	Counsel Mr B Queenan - Crown: Mr P Rosser - Offender   Solicitors: Director of Public Prosecutions
File Number(s):	2013/37683
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant.

SENTENCE

1. HIS HONOUR: On 3 February 2013 the offender Zachary Le Grange committed two offences of such savage cruelty that the only proper sentence which can be imposed will see him going to gaol for a very long time.

2. On that day, a 46 year old woman, Ms A, went to the Anna Bay Tavern with a friend. There too was the offender. He was drinking with one of his friends. Ms A had a bit to drink. Indeed at one stage staff at the tavern stopped serving alcohol to Ms A because of her state of intoxication. The offender on the other hand was not nearly as intoxicated. Staff members who observed him said that he was not unsteady and his speech was unaffected by alcohol. Indeed one staff member regarded him as sober at closing time.

3. During the course of the evening there had been some brief interactions between Ms A and the offender. As they left the tavern there were further brief interactions. It is apparent that the offender had, by this stage, determined that he would follow Ms A.

4. Ms A has a very poor recollection of what really occurred to her because of the violence inflicted upon her by the offender. She recalls walking down the road and being pushed or hit from behind. Her next recollection is of waking up to find herself lying in the street, dressed only in her singlet and shirt with her face bloody and swollen. In fact her face was so swollen she had trouble seeing through her swollen eyelids. She could not see well enough to retrieve her mobile telephone so she crawled on her hands and knees feeling around for her handbag. Eventually she located it and was able to call the triple 0 service and ask for help.

5. When police arrived they found Ms A naked from the waist down sitting with her head bowed. Her face was matted with blood. Her face was so swollen that police who obtained a photograph from her driver’s licence could not even identify Ms A. A paramedic asked Ms A if she thought she had been sexually assaulted but she said she did not know. She had difficulty in speaking and her speech was difficult to understand. She was taken to hospital where she was found to have a number of significant injuries. She had a significantly swollen left eye, a significantly swollen left side of her face with tenderness to her left jaw, a cut over her mouth, significantly swollen underjaw and neck, tenderness to the left side collarbone and ribs, tenderness to the back of the neck and lower back, bumpy swelling to the left temple visible on CT scan, fracture of the jaw bone in front of the left ear with dislocation of the joint and bruising to both eyes. Surgical intervention was required to correct the broken jaw. A plate and screws were inserted.

6. She was also found to have suffered a brain injury as a result of what the offender did to her. She had difficulty with speech articulation and swallowing. She had loss of sensation to the lower part of the left hand side of the face. Her traumatic brain injury was described as being of moderate severity and an extensive period of supervision was required.

7. Police investigations found her clothing, the offender’s thongs, a rock surrounded by a pool of blood and most importantly revealed semen inside Ms A’s vagina, the DNA of which matched a DNA sample provided by the offender when he was spoken to by police.

8. To say that the offences were serious is very much an understatement. The offender has now pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm and sexual intercourse without consent. The maximum penalty for the first matter is 25 years’ imprisonment. For the second it is 14 years’ imprisonment. They both have standard non-parole periods of seven years’ imprisonment attached to them. I have taken into account both the maximum penalties and standard non-parole periods in determining the appropriate sentence. My reasons for not imposing a standard non-parole period appear in these remarks on sentence.

9. It almost goes without saying, but it is worth repeating, that people should be entitled to go out to a pub and have a few drinks and walk the short distance to their home safely without being set upon by people such as the offender who, for reasons which are difficult to understand, thought it appropriate to rape Ms A and to bash her with a rock.

10. Not surprisingly, the effects of these offences upon Ms A have been significant. She has prepared a victim impact statement. Despite its brevity, it is one of the most eloquent victim impact statements I have ever seen. I will read it in its entirety. Ms A says:

“It’s affected my entire life. My trust. My personality. I no longer have confidence to do things I would normally do. I am lost. It’s affected everything.”

11. I can quite understand why Ms A expresses those sentiments. It is well known that offences of this kind have lasting and probably life-long effects on the victims of such offences.

12. Ms A was vulnerable when she was attacked by this offender. She was, as I have mentioned, intoxicated. She was alone. She was either unconscious while the offender had sexual intercourse with her or, at the very least, her mental faculties were diminished. There is no doubt that at some stage the offender hit her with a rock. Whether he did this beforehand, so that he could rape her, or afterwards as an act of completely unnecessary violence, we will never know. It is hard to know which alternative is worse.

13. It is also apparent that the offender simply walked off after having treated Ms A so badly, leaving her clearly injured with no apparent means of assistance. It was not he who rang triple 0, even anonymously. It was for Ms A who eventually regained consciousness to have to feel around for her phone in the manner I have described earlier.

14. These offences very much came out of the blue for the offender. He has only one relatively minor matter on his criminal history, an offence of common assault and, as the references tendered before me today attest, he is a man of good character in many respects. He did have some troubles, particularly with drugs, as he was growing up but he told a psychiatrist that he had given up drugs in the period leading up to these offences. His behaviour had changed in a positive way after his son was born. So it must have come as a complete surprise to those who thought they knew him that he was capable of acting in such a horrible and nasty way towards another human being.

15. The offender’s upbringing was less than perfect. His mother was a drug addict who apparently thought there was little wrong with using drugs in the presence of her children. On the other hand, he had a very good relationship with his father. His parents separated, I gather because of his mother’s drug use and other adverse behaviour, when he was relatively young. His father has remarried. Although there were some problems in the relationship between the offender and his stepmother these do not appear to have been anything out of the ordinary. He retains the support, very much so, of his father and other family members, despite the awful offences which he has committed.

16. He left school relatively early because he wanted to work for his father. He has been doing that and some of the references speak quite highly of his work ethic when working with his father.

17. Just before committing these offences he entered into a relationship which produced the child I spoke about earlier. Some time before these offences he was in trouble as far as his drug use is concerned. At times he was mentally unwell, attending mental health facilities for treatment and medication but what was described by his stepmother as a turning point for the offender apparently came about when he learnt that his partner was pregnant. He did change and so these offences did come out of the blue.

18. Quite why he committed these offences is difficult to determine. The offender claims not to have any memory of the events. I reject that immediately. His level of intoxication would not explain an absence of memory. He suffered no injury himself. I am satisfied that he knows exactly what happened and is refusing to tell people because he does not want to have to answer the question “why did you do it?”. I have no answer to that question. Psychologists suggest that perhaps this was misplaced anger in the context of some minor dispute with his partner but the truth is, no-one really knows. That is of course a relevant matter in determining the offender’s prospects of rehabilitation. How can Mr Le Grange be rehabilitated when no-one really knows why he committed the offence in the first place. I certainly cannot say his prospects of rehabilitation are good. I note that the static 99 test suggests he is in a high risk of offending. Of course whilst that test says something about populations, it says little about an individual offender. Perhaps more importantly, as I have said repeatedly, these offences came without warning and no-one really knows why he did what he did.

19. It is obvious that a substantial component of general deterrence has to be built in to any sentence imposed upon the offender. Similarly, personal deterrence is important. The offender needs to have brought home to him in a very concrete way just how wrong his conduct was.

20. He has expressed his remorse to others, although there are two qualifications to that. Firstly, he did not give sworn evidence today before me. I am left to rely on what he said to others and, secondly, his feigned inability to recall what happened suggests that there are some limits to the offender’s willingness to face up to the consequences of his behaviour.

21. In assessing the seriousness of the offence of sexual intercourse without consent, I take into account the nature of the form of intercourse penile/vaginal, the circumstance that the offender ejaculated inside Ms A’s vagina, that after the offence was completed he left her very vulnerable, semi-naked and injured at the side of the road, and that when he was actually having sexual intercourse with her she was either unconscious or at the very least not in full possession of her faculties.

22. I should speak about delay. It is apparent that this matter has been in the courts for some time, more than is clearly desirable, but a large part of the delay is due to applications made for adjournments on behalf of the offender as medical matters were investigated. As it turns out, nothing of significance was found. I do not at all criticise the lawyers for making such applications so that investigations can be made, but the reasons for the delay of which I have spoken suggest that there should be no significant mitigation of the punishment upon Mr Le Grange because of those delays.

23. Of course there needs to be a level of accumulation. A significant level too. Each of these offences, whilst committed at about the same time, focuses on a very different aspect of the offender’s behaviour. On the other hand it would be wrong for me to impose entirely concurrent sentences. There will be a substantial level of partial accumulation.

24. I will take into account the offender’s pre-sentence custody. It is agreed that the sentence I will shortly announce should commence on 15 February 2013. I do not consider that there are any special circumstances in this case beyond the necessity for a mathematical adjustment of the sentences to ensure that the overall sentence reflects the statutory ratio. As the Crown has accurately pointed out, the length of sentence which I must impose will provide a sufficient level of eligibility for parole and, in any case, the effective non-parole period I will announce is the minimum which properly reflects the objective gravity of the offender’s conduct.

25. I sentence the offender as follows. For the offence of inflicting grievous bodily harm with intent I impose a sentence of imprisonment consisting of a non-parole period of six years commencing from 15 February 2013 and a head sentence of nine years. For the offence of sexual intercourse without consent I impose a sentence of imprisonment consisting of a non-parole period of six years commencing from 15 February 2016 and a head sentence of nine years. The overall effective sentence I impose consists of a non-parole period of nine years commencing from 15 February 2013 and a head sentence of 12 years. The offender will become eligible to be released on parole on 14 February 2022.

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Decision last updated: 03 September 2015