R v Maher

[2000] NSWCCA 147

CITATION:	R v MAHER [2000] NSWCCA 147
FILE NUMBER(S):	CCA 60138 of 1999
HEARING DATE(S):	12 April 2000
JUDGMENT DATE:	12 April 2000
PARTIES :	Regina Craig Maher
JUDGMENT OF:	Hulme J at 1; Dowd J at 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/0337; 98/21/0127
LOWER COURT JUDICIAL OFFICER :	Karpin DCJ

COUNSEL :	Crown: PG Berman Appellant: TJ Golding
SOLICITORS:	Crown: SE O'Connor Appellant: TA Murphy
DECISION:	Leave to appeal granted; Appeal dismissed

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IN THE COURT OF
CRIMINAL APPEAL
No: 60138/99


HULME J
DOWD J

Wednesday, 12 April 2000
REGINA -v-Craig MAHER
JUDGMENT

1    HULME J: On 26 March 1999 Craig Jonathan Maher was sentenced to a fixed term of three years penal servitude commencing on 12 January 1998 in respect of an offence under section 61I of the Crimes Act committed on 22 October 1995 and a cumulative sentence consisting of a minimum term of five years penal servitude commencing on 11 January 2001 and an additional term of three years in respect of an offence against 61J of the Crimes Act committed on 1 January 1998.

2 An offence under section 61I renders the offender liable to a maximum penalty of fourteen years penal servitude. An offence under section 61J renders an offender liable to a maximum term of penal servitude - I use the expression, current at the time of this offence - of twenty years.

3    The circumstances of the first offence were as follows. The applicant lived in a caravan park. The complainant also lived there. On the evening of 21 October a window immediately adjacent to the entrance door of the complainant's caravan was smashed. In the early hours of the next morning the applicant unlocked the door and entered the caravan. The complainant who was lying on her side in bed said, can you leave, I don't want you here. The applicant forced her onto her back removed her track suit pants and underpants, and after something of a struggle forced his penis into her vagina and continued intercourse until he ejaculated. Shortly afterwards he got off and left the caravan. When interviewed by the police on 14 October 1995, he denied all knowledge of the offence and maintained he was not in the vicinity at the time.

4    The second offence occurred on the evening of 11 January 1998. The victim of this offence also at that time was living in a caravan in the caravan park. Her de facto husband was away. The applicant knocked on the victim's door. She opened the door to enquire what was wanted, the applicant pushed her backwards so that she fell striking her head on a refrigerator. The applicant entered the van and by pulling her legs out forced her to lie flat on the floor. She tried to stand up. The applicant punched her in the left eye causing her to fall again, striking her head on the refrigerator. The applicant pulled his own shorts down and lay on top of the victim pushing her nightdress up and again after some struggle, the applicant forced his penis into her vagina. He then continued to have intercourse until he ejaculated. At the end of the exercise the applicant stood up and asked the victim, “how was that”? He was arrested on 12 January and has been in custody since.

5    An unusual feature of both offences was that the applicant was known, and must have been aware he was known, to both of the women involved.

6    At the time of the second offence, he was on bail in respect of the first.

7    He pleaded guilty to the first offence on 1 June 1998, the date fixed as the commencing date for a trial in respect of that offence. On 14 December 1998 the applicant stood trial for the second offence. After the complainant, two police officers, and a medical practitioner who had examined the victim within a few hours of the offence, and who gave evidence of observing injuries consistent with a history of sexual assault, the applicant's counsel indicated that the applicant wished to change his plea and shortly thereafter a plea of guilty was entered.

8 A number of matters were advanced in support of the argument made on behalf of the applicant that the sentences imposed were excessive. One was that her Honour had not given the applicant adequate recognition for his plea of guilty to the first offence. Her Honour was of course required by section 439 of the Crimes Act to take into account in respect of both offences that the applicant had pleaded guilty and then to consider whether the sentence she would otherwise have imposed should have been reduced. She was not obliged as a matter of law, to deal with this matter expressly in her reasons.

9    When dealing with the first offence her Honour said:-

"The prisoner has now pleaded guilty".

10    Her Honour's use of the word, now, and the absence of any other reference to the fact that the prisoner had pleaded guilty in June 1998, was relied on in support of the proposition that her Honour had clearly misunderstood the timing of the applicant's plea and was thus inferred to have been given less weight than it was otherwise entitled to.

11    I would not draw that conclusion from her Honour's use of the word, now. Although on an analysis done subsequently it may be thought it would have been better had her Honour not included the word “now” in her reasons, it does not seem to me that on a matter of that nature one would draw the inference which the applicant seeks to have drawn.

12    Nor, in my view, can it be said that her Honour failed to take account at all, or properly, of the plea of guilty in respect of the first offence. The penalty imposed by her Honour in relation to that offence was significantly less than it was in relation to the second offence and although there are other possible explanations for that, I am by no means satisfied that the first grant of appeal relied on, is made out.

13    The second ground of appeal was that her Honour had failed to understand, and to make findings open to her on the evidence as to the likelihood of the applicant re-offending. In that regard, a psychologist's report was tendered before her Honour. In that report the psychologist recorded that a test had been carried out on the applicant for recidivism. On the results of that test the applicant's score was plus ten, and that it had been found that among people who scored in that range four out of five would not commit an indictable offence in the future.

14    Her Honour did quote another part of the psychologist's report to the effect that the age at which the applicant first offended in the way the subject of the charges, tended to suggest that he would have a lower likelihood of re-offending than otherwise and said that it was commonsense to reach that conclusion. Her Honour went on to say however, that conclusion could not support the proposition that the applicant had a low likelihood of re-offending. It is submitted that her Honour did not give adequate attention to those parts of Mr Taylor's report as dealt with the recidivism scale.

15    Again, it is may be said that it would have been preferable had her Honour dealt expressly with that part of Mr Taylor's report. But such a submission tends to ignore the fact that there is a limit on how many matters of detail a judge in the course of delivering judgment can reasonably be expected to cover. It is clear that her Honour directed attention to Mr Taylor's report. It is clear that she directed her attention, not just in relative terms but in absolute terms, to the likelihood of the applicant re-offending. In those circumstances I would not conclude that her Honour had not had in mind those parts of the report as referred to the recidivism scale.

16    Furthermore I would add this, that even had I taken the view that her Honour should have taken that aspect of the report into account and had not, it would not lead me to the conclusion that of itself any lower sentence was justified. When I read the summary of the nature of the scale recidivism which is included as an appendix to the report, I am led to the conclusion that the scale is in its very nature, loaded in favour of an applicant such as this one, who has no prior criminal history of significance and who offends at a later stage in his life. I am not persuaded that the scale is any more good a guide to the applicant's prospects of re-offending than the obvious inferences from his commission of the subject offences at the times and in the circumstances that he committed them.

17    The third ground of appeal was that her Honour was in error in considering that the applicant who had an IQ of 74 and functioned at the borderline intellectual level and was within the bottom four per cent of the population, was an appropriate vehicle for general deterrence. Her Honour did in her reasons record that the offences called for the application of the principles of both general and personal deterrence. Reliance was placed on that line of authority which indicates that the topic of general deterrence is of less significance in the case of those who suffer from mental disorders or abnormalities. But the very definition of disorders and abnormalities in that context requires as a starting point a selection of what is order or normal. There is nothing in the evidence in this case which persuades me that merely because the applicant fell within the bottom four per cent, his circumstances were such that less weight than usual should have been to the matter of general deterrence.

18    In any event, it is part of the principle relied on that considerations of general deterrence are not rendered completely irrelevant in circumstances where there is some disorder or abnormality. The significance of an offender's mental capacity has to be weighed and evaluated in the light of the particular facts and circumstances of the individual case.

19    When one has regard to the applicant's commission of the second offence, in the face of him being charged for the first, it seems to me that there are circumstances of the individual case which make both doubtful, and limit the weight that could be given to, any suggestion of some disorder or abnormality. That he had not offended apparently until aged about thirty-nine, also indicates that one would not readily infer that his intelligence level brings him within the principle to which I have referred.

20    Finally, it was submitted that the total sentence imposed was outside the range of sentences properly available in her Honour's discretion. This submission was not developed orally. In my view, it also must fail.

21    A sentence of eight years in totality for a second offence is by no means excessive for an offence of this nature. A sentence by way of a fixed term of three years for a first offence is on the light side and, I would have thought inadequate had it stood alone. It is clear from the difference in the sentences that her Honour took account of the principles of totality. It is clear to my mind that in allowing a three year non-parole period in relation to the second offence, her Honour gave adequate recognition to the factors arguing for a non-parole period and to the length of that period, and I see no error which leads me to the conclusion that the sentences imposed were manifestly excessive or otherwise not within the range of her Honour's proper sentencing discretion.

22    In my view, because of the length of the sentences imposed, leave to appeal against sentence should be given but the appeal should be dismissed.

23    DOWD J: I agree with the proposed orders of the presiding judge, and his Honour's reasons therefor.

24    HULME J: The orders of the Court are that the applicant shall have leave to appeal against sentence, but the appeal is dismissed.