R v McCann

[2004] NSWCCA 48

CITATION:	R v McCann [2004] NSWCCA 48
HEARING DATE(S):	3 February 2004
JUDGMENT DATE:	3 February 2004
JUDGMENT OF:	James J at 1, 40; Buddin J at 39
DECISION:	Leave to appeal granted - appeal dismissed
CATCHWORDS:	Criminal law - sentencing - aggravated sexual assault - indecent assault
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Criminal Appeal Act
CASES CITED:	Pearce v The Queen (19980 194 CLR 610
PARTIES :	Regina v Robert John McCann
FILE NUMBER(S):	CCA 60342/03
COUNSEL:	R Hulme SC - Applicant BJ Knox SC - Crown
SOLICITORS:	S E O'Connor - Applicant S Kavanagh - Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/0336
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

- 1 -

60342/03

JAMES J
BUDDIN J

Tuesday 3 February 2004
REGINA v ROBERT JOHN McCANN
Judgment

1 JAMES J : Robert John McCann has applied for leave to appeal against sentences imposed on him in the District Court by her Honour Judge Gibb on 13 December 2002, after he had been found guilty of four counts of aggravated sexual assault and one count of indecent assault. All of the offences had been committed on the same evening, the evening of 9 April 2001. The victim of all four of the offences was a young woman who was 27 years old at the time the offences were committed. I will refer to her simply as "the victim" or "the complainant".

2 The sentence imposed by her Honour was as follows:

Count 1, a term of imprisonment of six years with a non-parole period of four years.
Count 2, a similar sentence, that is a term of imprisonment of six years with a non-parole period of four years.
Count 3, a term of imprisonment of seven years with a non-parole period of four and a half years.
Count 4 (which was the charge of indecent assault), a fixed term of imprisonment of one year.
Count 5, a term of imprisonment of eight years with a non-parole period of four years nine months.


3 Her Honour made all of the sentences commence from the same date, 13 December 2002, which was the date of sentencing.

4 Sexual intercourse with another person without that person's consent in circumstances of aggravation is an offence under s 61J of the Crimes Act for which the maximum penalty is imprisonment for 20 years. The circumstances of aggravation relied on by the Crown in all of the four counts under s 61J were that at the time of committing the offences the applicant maliciously inflicted actual bodily harm on the victim. Indecent assault is an offence under s 61L of the Crimes Act, for which the maximum penalty is imprisonment for five years.

5 In her Honour's remarks on sentence her Honour stated the facts of the offences largely by quoting extensively from the evidence in chief of the complainant at the trial, which, as her Honour remarked, the jury at the trial must have accepted.

6 The victim, an overseas student, started to occupy a bedroom in the applicant's apartment in a Sydney suburb about a month before the offences were committed. She had answered an advertisement by the applicant offering the bedroom for renting.

7 On in the evening of 9 April 2001 the applicant returned home late and the applicant and the victim spent some time watching television. The applicant asked the victim whether she would take her clothes off. The victim refused. The applicant then said that, if the victim took her clothes off, she would not have to pay rent for the next week. The victim again refused. The applicant then said to the victim that, if the victim did not take her clothes off, she would have to move out of the premises. The victim asked if she could move out the following day but the applicant said she would have to move out that night. The victim went to her bedroom and started to pack her belongings. The applicant followed her to the bedroom. He again demanded that she take her clothes off and said that, if she did not do so, he would rape her. The applicant closed a window in the bedroom, which the victim had attempted to open. He punched the victim a number of times and forced her on to the bed. The victim's evidence continued.


“We were struggling and then he managed to grab my pants and pull it down so he pulled it off me, so I didn’t have anything on. And then he came on top of me and then he spread my legs open and he started licking my vagina. And then he put his finger in, he stuck his finger in and then after that he moved his underpants to the side and he pushed himself in several times. And then he got off me and he laid on the bed on his back with his legs open, wide open, and he had one leg to the door, and he said, ‘Suck my cock” and I did that.”

“..and I asked him several times if I can stop, I said, “Can I stop” and he said, “No” and then finally I asked him, “Can I stop” and he said, “Yes.””

“And I did that and then I said “Can I stop now?” and he said “No” and then several times and then he said “Take your top off” and I did, I took my top off, and then he grabbed me by the waist and then he started licking and sucking my left breast and then he pushed me onto the bed and then he spread my legs open and they were – they were up in the air and then he came on top of me and he was pushing me – he was pushing me roughly, pushing inside then he finally stopped.”

“He had his penis inside so he was pushing me.”

8 The victim ultimately escaped from the premises and went to the nearby house of persons she knew and made a complaint of having been sexually assaulted by the applicant. The victim was driven to a hospital, where she was medically examined. The doctor who conducted the examination gave evidence at the trial that the victim had bruising and swelling to her legs, arms and hands and that there was dried blood around her nose. The victim gave evidence at the trial that these injuries had been caused in the assault by the applicant upon her.

9 Count 1 in the indictment was based on the applicant's conduct in licking the victim's vagina. Count 2 was based on the applicant's digital penetration of the victim's vagina. Count 3 was based on the act of fellatio which the applicant compelled the victim to perform. Count 4 was based on the applicant's conduct in licking and sucking the victim's breast and Count 5 was based on the act of penile penetration of the victim's vagina.

10 The applicant's case at the trial, which the jury rejected, was that all sexual activity between the applicant and the victim had been consensual and that it had been the victim who had become violent after the sexual activity had ended.

11 In sentencing the applicant her Honour delivered fairly lengthy remarks on sentence. Her Honour listed the offences, quoted extensively from the evidence the victim had given at the trial, related the various counts to the victim's evidence and noted the version of events the applicant had given at the trial and in a statement made on 4 December 2002, shortly before he was sentenced.

12 In her remarks on sentence her Honour referred to the victim as having been in a "vulnerable position on the night of 9 April 2001 by reason of where she was, the time of night and the sheer physical size of the offender.” Her Honour said the victim was physically slight, whereas "the offender is 5 foot 11 and a half inches tall on his own estimation and appears to be an extremely large man, perhaps four times the weight of the victim, with a very imposing girth as well as appearing very tall.”

13 Her Honour referred to the impact of the offences on the victim, quoting from a report by a clinical psychologist who had counselled the victim. The psychologist's report said the victim "had displayed many symptoms of post traumatic stress disorder such as withdrawal, poor sleep, fear, anxiety, feelings of helplessness, over-sensitivity and some disbelief that it could have happened to her" but that her condition had improved emotionally and socially.

14 The subjective circumstances of the applicant were summarised in counse l for the applicant's written submissions as follows.

“The applicant was born on 16 May 1964. He was 36 years old at the time of the offences and 38 when sentenced.
He has a history of criminal convictions commencing in 1980. He has previously been sentenced to imprisonment. There are no sexual offences.
He was brought up in an environment in which he was exposed to paternal alcohol abuse and violence. He, in turn, developed problems with alcohol abuse. Despite this he generally managed to consistently maintain full-time employment. A long-term relationship terminated in 1997 and he began drinking excessively. At the time he stood for sentence he had settled into a new relationship that a probation officer described as “stable and supportive,” had curbed his alcohol intake and had attended Alcoholics Anonymous meetings. Psychological testing indicated a “substantial life-time risk of alcohol dependence.” He was assessed as having a “medium-low” risk of re-offending in relation to sexual offences. He was described as ‘a much over-weight person’ and he suffers from sleep apnoea.”

15 Her Honour referred in her remarks on sentence to parts of a report by a psychologist Dr Lennings. In his report Dr Lennings stated that

"Mr McCann is a much overweight person. He suffers from sleep apnoea. He tells me that his weight gain is recent and may relate to his unhappiness in the situation he finds himself in.”

16 On the basis of the applicant having held regular employment and having a stable relationship, her Honour found that the applicant had some prospects of rehabilitation. Her Honour found that no penalty other than imprisonment would be appropriate (see Crimes (Sentencing Procedure) Act s 5). In reaching this conclusion her Honour said,

"I am conscious that Mr McCann's physical size and his sleep apnoea, as well as what his fiance describes as snoring that is loud enough, "to wake the dead" are factors that will make any time spent in custody somewhat more difficult than it would be otherwise. Nonetheless, the only appropriate sentence for each of the five offences is a sentence of full-time custody.”


17 Her Honour found special circumstances within section 44(2) of the Crimes (Sentencing Procedure) Act by reason of the applicant's longstanding problems of alcohol abuse and his physical health.

18 Her Honour decided to make all of the five sentences concurrent, "given that the offences formed part of a continumum."

19 Three specific grounds of appeal were relied upon by the applicant. It is convenient to deal with the second and third grounds before dealing with the first ground.

Ground 2 The sentencing judge erred by increasing the sentences for counts 4 and 5 by 1 and 2 years respectively solely because the complainant repeated her request that the applicant desist.

The reference to count 4 in the statement of the ground should be a reference to count 3.

20 This ground of appeal is based on passages at pages 12 and 13 of her Honour's remarks on sentence, where her Honour was pronouncing her formal sentencing orders. In dealing with the third count her Honour said,

"This offence occurred and continued after the victim had again asked Mr McCann to desist. This offence warrants a longer sentence."


21 The sentence for the offence charged in the third count was one year longer than the sentences for each of the offences charged in counts 1 and 2.

22 In dealing with the fifth count her Honour said, "Again this offence followed another attempt by the victim to persuade the offender to desist." The sentence for the offence charged in the fifth count was one year longer than the sentence for the sentence charged in the third count and two years longer than the sentences for the offences charged in the first and second counts.

23 It was submitted that the sentencing judge had increased the sentences for the offences charged in counts 3 and 5 solely because these offences had been committed after the victim had again demonstrated her lack of consent to sexual activity and had again attempted to persuade the applicant to desist and that these increments were manifestly excessive. It was submitted that the circumstances that the victim continued to convey her lack of consent and continued to attempt to persuade the applicant to desist did not warrant any additional punishment or, if they did warrant any additional punishment, the increments in the sentences imposed by her Honour were manifestly excessive.

24 In my opinion, this ground of appeal should be rejected. I consider that it was open to her Honour to regard the criminality in the commission of the offences charged in the third and fifth counts as being aggravated by the circumstances referred to by her Honour and that the increased penalties imposed by her Honour were within the range of her Honour's sentencing discretion.
Ground 3 No, or insufficient, weight was given to the finding of the sentencing judge that custodial conditions for the applicant will be harsher than would otherwise be endured.


25 I have already quoted the part of her Honour's remarks on sentence in which her Honour referred to the applicant's physical size, sleep apnoea and snoring. It was submitted that her Honour had improperly limited the relevance of these matters in the sentencing of the applicant. Her Honour had referred to the applicant's physical size, sleep apnoea and his snoring, only in considering whether she was satisfied that no penalty other than imprisonment was appropriate and had not referred to these matters in determining the length of the sentences of imprisonment she should impose.

26 It is clear that any medical condition to which a person being sentenced is subject, which would have the effect of making imprisonment more than usually onerous for him, is relevant, not only in determining whether no penalty other than imprisonment would be appropriate but also, if such a determination is made, in determining what should be the length of the sentence of imprisonment to be imposed. However, I would not accept that the sentencing judge, having referred in her consideration of section 5 of the Crimes (Sentencing Procedure) Act to the applicant's physical size, sleep apnoea and snoring as being factors that would make any time spent in prison more difficult than it would be otherwise, ignored those matters when she proceeded to determine the length of the sentences she should impose. I would reject the third ground of appeal.

27 I turn now to Ground 1.
The sentences for the four counts of aggravated sexual assault involve multiple punishment for the common element of infliction of bodily harm.


28 As already noted, four of the five counts for which the applicant was sentenced charged offences under s 61J of the Crimes Act and in the case of every one of these counts the circumstances of aggravation were that at the time of the commission of the offence the applicant had maliciously inflicted actual bodily harm on the victim. It was submitted on behalf of the applicant that, in the case of each count, the conduct of the applicant relied on as constituting the malicious inflicting of actual bodily harm was the same and that the applicant should not have been punished more than once for the same conduct but that it could be inferred, from the sentences imposed and from her Honour's remarks on sentence, that her Honour had taken the same conduct into account in determining what sentence she should impose for every one of the offences of aggravated sexual assault.

29 Counsel for the applicant referred to the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610. In Pearce the indictment included inter alia two counts, inflicting grievous bodily harm with intent to do grievous bodily harm, an offence under section 33 of the Crimes Act (Count 9) and breaking and entering a dwelling house and while therein inflicting grievous bodily harm, an offence under section 110 of the Crimes Act (Count 10).

30 Pearce applied for a stay of proceedings on the grounds that the indictment was oppressive or an abuse of process, on the grounds that by the inclusion of counts 9 and 10 in the indictment he would be placed in double jeopardy. The application for a stay was refused. Pearce then pleaded guilty to several counts in the indictment including counts 9 and 10. The sentences passed on Pearce included sentences for the offences charged in counts 9 and 10, for each of which he was sentenced to imprisonment for 12 years (less time already served), the two sentences to be served fully concurrently but cumulatively on a sentence for another offence.

31 Counsel for the applicant referred to parts of the joint judgment of McHugh, Hayne and Callinan JJ in Pearce as follows.

“(40) To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap.
(42) It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by “excessive subtleties and refinements.” It should be approached as a matter of common sense, not as a matter of semantics.
(43) The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.”

32 In their joint judgment their Honours then considered whether Pearce should be regarded as having been doubly punished for the same act, even though the sentencing judge had ordered that the two sentences on counts 9 and 10 be served fully concurrently. Their Honours held that the sentencing judge should have fixed an appropriate sentence for each of the offences before considering questions of accumulation or concurrence and totality and that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the applicant for a single act, namely, the inflicting of grievous bodily harm, even though the two sentences were to be served fully concurrently.

33 Their Honours further held that for the sentencing judge to have made the two sentences wholly concurrent was erroneous, in that the sentencing judge had failed to take account of the differences in the conduct which was the subject of punishment in each count. The High Court remitted the case to the Court of Criminal Appeal, to be dealt with consistently with the reasons for judgment of the High Court.

34 In a further hearing in the Court of Criminal Appeal, (unreported Court of Criminal Appeal 18 December 1998) the Court of Criminal Appeal quashed the sentence for count 10 and substituted a fixed term of imprisonment of two years, to be served concurrently with the other sentences, but confirmed the sentence for count 9, because the Court was not satisfied, in accordance with s 6(3) of the Criminal Appeal Act , that some other less severe sentence was warranted and should have been passed.

35 In the present case it was submitted that the error which it was contended had occurred had infected three of the four sentences for aggravated sexual assault and that in the case of all four offences lesser sentences should have been passed.

36 During the course of argument on this application the Court informed counsel that it appeared to the Court that the first ground of appeal raised a difficult issue of principle on the application of Pearce , being an issue which it was not really appropriate for a bench of the Court consisting of only two judges to endeavour to resolve. The Court indicated to counsel that, even if the Court was minded to allow the first ground of appeal and to enter upon a consideration of what sentences should be imposed on the applicant, the Court would consider that the sentences which should properly be imposed on the applicant in any re-sentencing of the applicant would not be less severe in their effect than the sentences imposed by the sentencing judge. I have earlier in my judgment referred to the objective facts of the offences and the subjective features of the applicant.

37 In the light of this indication of the view the Court had taken, both counsel for the applicant and counsel for the Crown informed the Court that it was not necessary for this Court, constituted as it is, to endeavour to resolve the question of principle which is raised by the first ground of appeal.

38 In the circumstances I would simply propose that leave to appeal be granted, but that the appeal against sentence be dismissed.

39 BUDDIN J : I agree with James J

40 JAMES J : The orders of the court will be as proposed by me.

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Last Modified: 03/16/2004