R v O'Grady - [1997] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v O’Grady [1997] NSWCCA 1
Decision date: 13 May 1997
Before: Gleeson CJ at [1]; Sully J at [2]; Hunt CJ at CL at [37]
Decision:
Appeal against sentence is allowed.

Sentences and orders imposed and made in the Court below are quashed.

In lieu thereof, the respondent is sentenced on count 2 of the indictment to penal servitude for five years, to comprise a minimum term of three years commencing 19 December 1996 and expiring on 18 December 1999, and an additional term of two years commencing 19 December 1999 and expiring on 18 December 2001.
On count 1 in the indictment the respondent is sentenced to penal servitude for a fixed term of three years to be served concurrently with the sentences imposed in respect of ground 2.
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 89
Category: Principal judgment
Parties: Regina (Appellant)
Dale Anthony O’Grady (Respondent)
File Number(s): 60037/97
Decision under appeal

Court or tribunal:

District Court

Before:

Dent DCJ

Judgment

GLEESON CJ: In this matter I will ask Sully J to give the first judgment.
SULLY J: This is a Crown appeal against penalties imposed on 19 December 1996 by his Honour Judge Dent QC sitting in the District Court at Penrith. The sentences were imposed upon Mr Dale Anthony O'Grady, ["the respondent"].
The respondent had earlier pleaded guilty to two counts in an indictment which had been presented against him. The first count to which he thus pleaded guilty was that he had, on 16 April 1996 at St Clair, detained against her will a named victim with intent carnally to know the victim. The second count in the indictment, and to which the respondent pleaded guilty, was that on the same date and at the same place he had had sexual intercourse with the same named victim, without her consent and in circumstances of aggravation, knowing that she was not consenting. The first of those two offences involves a contravention of s 89 of the Crimes Act 1900 and attracts a statutory maximum penalty of penal servitude for fourteen years. The second matter involves a contravention of s 61J of the Crimes Act and attracts a statutory maximum penalty of penal servitude for twenty years.
In addition to those two matters, the respondent asked the sentencing Judge to take into account, and account was taken accordingly of, two further scheduled matters, one of which involved an offence of common assault upon the named victim on the same day and at the same place as were alleged in the two counts in the indictment; and the second of which alleged a second such assault of the victim on the following day, that is to say, 17 April 1996.
In respect of count 1 in the indictment, that is to say in respect of the contravention of s 89 of the Crimes Act, the learned sentencing Judge deferred sentence on condition that the respondent enter into a recognisance himself in the sum of $5000 to be of good behaviour for a period of five years. The recognisance thus ordered was extensively conditioned in other ways, the fine detail of which does not seem to me to be particularly relevant for present purposes. In respect of the second matter, that is to say in respect of the breach of s 61J of the Crimes Act, the respondent was sentenced to penal servitude for three years, to be served by way of periodic detention to commence on 27 December 1996.
The respondent has, as I understand the fact, entered into the recognisance, and has duly reported for periodic detention in accordance with the order in that regard made in respect of count 2 in the indictment.
The relevant facts are conveniently summarised in the written Crown submissions put in in connection with the present appeal. The summary is as follows:

"The victim and the respondent met in early January 1995. In February 1995 they started a girlfriend and boyfriend relationship which included consensual sexual intercourse taking place between them. In February 1996 the relationship terminated, although the respondent kept attending the victim's home and they were seeing each other as friends. The respondent gambled heavily and the victim regularly provided him with money. This continued even after their boyfriend/girlfriend relationship broke down.
The respondent told the victim that he had a job in the city, as did the victim, and they began catching the same train to work. On 15 April 1996, whilst travelling to work, the victim became ill and she returned to her home where she lived with her parents.
The following morning, that is Tuesday 16 April 1996, the respondent went to the victim's home. The victim was not attending work that day because of her illness. She let the respondent in at about 7.20 or 7.30am. The respondent asked for another chance in their relationship but the victim refused. The respondent then reached into the bag he had brought with him and produced a knife and a roll of electrical tape. He pointed the knife at the victim and ordered her to go into her room. The victim complied because of her fear of what was going to happen. As demanded by the respondent, the victim sat on her bed where a conversation took place.
The respondent then ordered the victim to return to the loungeroom where he either made, or pretended to make, a phone call to an ex-girlfriend of his. When that telephone call was completed he pointed the knife at the victim's throat and ordered her to return to the bedroom. When they arrived in the bedroom the victim was ordered to lie on the bed. The victim was so terrified by what was happening that she was crying in fear. The respondent held the knife to her throat and the victim believed that the respondent was going to slash her throat with it. The respondent then tied the victim's wrists together with the electrical tape and began fondling her breasts and undoing her pyjama top. Despite the victim's protest, he continued to do so. He then removed her pyjama top and pants and underpants and had penile intercourse with her.
The victim was crying and screaming, although she stopped when she became afraid that he was going to gag her. During intercourse the respondent maintained possession of the knife.
After the respondent ejaculated, the victim asked to go to the toilet. She was allowed to do so by the respondent, although he held the knife at her back with the tip of the blade touching her as they walked to the toilet. When the victim had finished in the toilet, she was again escorted to the bedroom with the respondent holding the knife at her back. Eventually she was allowed to put her pyjamas on.
Thereafter, whenever the respondent and the victim moved throughout her home the victim was responding to demands by the respondent, who was carrying the knife in a threatening fashion. At one stage the victim had an asthma attack and she had difficulty breathing. At her request, the respondent obtained, firstly, a paper bag and then some medication for the victim, although he did nothing to alleviate the terror felt by the victim, saying, 'If you don't stop this you'll die anyway.'
At one stage the victim asked the respondent why he was doing this and he replied, 'I don't know I just couldn't help it.' An argument then developed over money, the respondent demanding money for what he said was his bus fare. When the respondent indicated he would take some of the victim's mother's books and ran into the victim's bedroom, she ran after him. Notwithstanding her earlier asthma attack, the respondent obtained a pillow and placed it over her face so that she couldn't breathe. The victim was screaming out, 'Stop stop' and the respondent pulled the pillow off her face. He then gathered together all the items he had brought with him, including the tape which he had used to tie the victim's hands together, and left the premises, saying as he left, 'I'll be back tomorrow morning with your money and rings.' It was about twenty past eleven in the morning when the respondent left.
The next morning the respondent returned. He asked to go to the toilet and the victim let him in. When she asked him to leave, he said, 'No.' Although he appeared to be leaving, when the victim went to shut the front door after him he pushed the door open and punched her in her mouth with his clenched right fist. The victim then ran to a neighbour's house and the respondent left. During the attacks upon her the victim believed that the respondent was going to kill her."

It need hardly be said that the and offences of the kind described in the facts as I have quoted them above are offences of the most serious kind. On their objective facts they were, on any view, offences of very high gravity. There were, of course, subjective features proper and personal to the respondent and requiring to be taken into account by the sentencing Judge. I will have, presently, something more to say about those.
The learned sentencing Judge commenced his remarks on sentence by observing:

"Count 1 in the indictment is really no more than the aggravating features of count 2 in the indictment but they serve a useful purpose in permitting the Court to take a pro-active stance in dealing with the offence and this offender."

In my respectful view, it is erroneous thus to conceptualise what was alleged in count 1 in this indictment. The forcible detention of somebody with intent to carnally know her, as was charged in count 1 in the present indictment, cannot be, in my view, simply, as it were, subsumed into the more serious matter alleged in count 2, and denominated as nothing more than ”the aggravating features of count 2." The detention with force was itself a discrete and most serious criminal offence apt to attract on its own merits a maximum statutory penalty of penal servitude for fourteen years.
I am uncertain, for my own part, what exactly it was that the learned sentencing Judge was intending to convey by his Honour's reference to "a pro-active stance." I infer that his Honour uses the word "pro-active" in the sense of flexible, or, perhaps, creative or imaginative. I myself readily agree that circumstances alter cases, and that there is a proper margin for manoeuvre, as it were, on the part of a sentencing Judge, to mould with common sense and common compassion, and in a proper case with proper imagination, a sentence appropriate to the given facts and circumstances with which that Judge is dealing.
I do think, however, that if one is going to use terms such as "a pro-active stance", it would be well to establish clearly and very distinctly indeed, that any such stance, in whatever sense the term is used, cannot justify action falling outside the clearly defined parameters of the relevant law as established by the legislature and by authoritative decision of this and other superior Courts. The notion of taking "a pro-active stance" ought not ever to be allowed to develop to a point where sentencing Judges are encouraged to think that they can, as it were, take a freewheeling approach that reflects particular personal or philosophical predilections of their own at the cost of complying faithfully and dutifully with the requirements of the law, not as the individual Judge might perhaps wish to see it, but as in fact it is.
His Honour proceeded in his remarks on sentence to canvass the general background to, and progress of, the relationship between the present respondent and the victim; and, having done that, his Honour expressed the following views:

"The offences which bring him before the Court are foreign to his normal character and in my view have their roots in the desperation that affects those afflicted by the scourge of compulsive gambling. I am quite satisfied he was not of normal mind when these offences were committed. The ugly conduct that brings him before the Court is not this prisoner's thing. It is an aberration committed by a young man who loved a young girl and I have no fear of its repetition."

I myself would agree that the evidence before his Honour, such as it was, was sufficient to support a finding that the offences which brought the respondent before his Honour were indeed "foreign to his normal character." I would not myself accept that the particular offences with which his Honour was dealing, and with which this Court has now to deal, can fairly be described as having had their roots "in the desperation that affects those afflicted by the scourge of compulsive gambling." Nor, indeed, do I think that one can, as it were, break down the objective seriousness of the offences here in question by describing them as in truth no more than "an aberration committed by a young man who loved a young girl."
I think that these offences, howsoever viewed, were extremely serious offences, which resulted, not in any real sense from the respondent's undoubted and unfortunate gambling addiction, but from the fact, not unfamiliar to the Courts, that he and the victim had broken up what had been previously an emotional relationship, a deeply intimate relationship, of some long standing; and that she had rejected outright requests by him to resume the relationship.
The Courts have said - although, indeed, it should not be necessary to emphasise the point at all - that it must be a feature of the way in which modern personal relationships are conducted that if, for whatever reason, they break down, then the woman who is involved in the relationship is entitled to feel that, whatever other consequences ensue, her personal safety will not be threatened at all, let alone threatened by the commission of criminal offences of the gravity of those with which we are now called upon to deal.
Later still in his remarks on sentence, and seeking to draw together, as it were, the reasoning which his Honour saw as justifying a non-custodial sentence - or, more precisely, a sentence other than one of full-time custody - his Honour said this:

"After lengthy consideration, and despite the prisoner's acceptance, I have come to the conclusion that the option of full incarceration in this case is not in society's best interests as it lacks disciplining effects. It is at common law the punishment of last resort. It carries with it other dangers to the young and attractive, which I will not dwell on other than to mention the acquisition of drug habits and fatal diseases from physical molestation and the like."

I observe that his Honour's reference to "the prisoner's acceptance" reflects a submission consistently made to his Honour throughout the hearing on sentence by counsel then appearing for the respondent, - (not being, I should add, counsel who appears for the respondent on the present appeal), -that a full time custodial sentence of some kind was indeed warranted by the circumstances of the present offences.
The respondent himself gave brief sworn evidence before the sentencing Judge, and himself, in terms, acknowledged during the course of that evidence that he understood that he was deserving of, and expecting to receive, a sentence of full time custody of some kind or other.
Once again, I confess to being uncertain as to what precisely the learned sentencing Judge was intending to convey by his reference to a lack of "disciplining effects." If his Honour meant to convey, as I suspect he might have done in the light of other things said by his Honour in his remarks, that full time imprisonment did not call for a degree of self-discipline of a kind which compliance with a recognisance of the kind his Honour eventually directed would entail, then I daresay a philosophical argument to that effect can be made readily enough. I would not have thought, however, that on the given facts, and in the given circumstances, of the present offences it could at all be argued that the imposition of a sentence of full time imprisonment of some kind could not reasonably be supposed to serve "society's best interests."
It is fundamental to the entire concept of curial sentencing that the paramount objective is the protection of the public. So far as is relevant for present purposes, that protection of the public entails precisely, as I earlier suggested, a need to make it crystal clear that women are not vulnerable to assault of any kind, let alone to be raped at knife point in forcible detention, in the aftermath of the break-up, however unhappy, of a previous personal and emotional relationship with the aggressor.
It has been argued for the respondent that even upon a view unfavourable to the way in which the learned sentencing Judge proceeded in the present case, the Court ought, nonetheless, as a matter of discretion not interfere. For myself, I think that the Court is duty bound to interfere.
It seems to me that the sentences imposed in the present case are manifestly inadequate, in that they are wholly inadequate to denounce properly a violent rape at knife point of a defenceless young woman in what ought to have been the safety and security of her own home. They are, likewise, wholly inadequate, in my view, properly to denounce her violent and prolonged detention for that purpose and, indeed, to denounce also the two subsequent assaults which were taken into account on the form 2.
The sentences imposed are, in my opinion, wholly inadequate to deter both the respondent and other young men in positions similar to his from being tempted to embark upon behaviour of the kind which we are now considering, let alone from embarking upon it in fact. Very importantly, in my own view, the sentences are hopelessly inadequate to ensure that there is maintained, in a proper sense and at a proper level, public respect for, and confidence in, current standards of criminal justice. I do not see, for my own part, that this Court can responsibly refrain from intervening.
A much more difficult question is the framing of a sentence appropriate to the circumstances of the respondent's case as those circumstances now present. The respondent is a young man. He was born on 25 January 1976, so that he was aged twenty years and some three months at the time of the offences; twenty years and some eleven months at the time of sentence; and is now aged twenty-one years and some four months. I observe that the victim was at all material times aged about eighteen years.
The respondent has no criminal antecedents and, as I have earlier said, it can be accepted, I believe, that these offences, serious though they were, were out of character. He will go to prison as a result of the intervention of this Court for the first time, leaving aside some month or so of pre-sentence detention when he was bail refused. He has obvious needs for proper counselling and supervision to ensure, first of all, that his gambling problem does not flare up again after his eventual release; and, more importantly, that he learns the lessons necessary to be learned in order to control any propensity in the future to a flaring up again of any incident of violent behaviour of the kind which has brought him to his present pass. He will need, as well, some general supervision to aid his smooth re-integration into the community.
It is, in addition, necessary to take account of the fact - and I do take account of the fact - that he has served a month in pre-sentence custody; and that since 27 December 1996, which is to say for some five months, he has served faithfully the terms of his periodic detention order as ordered by the sentencing Judge.
There is, of course, in this appeal, as in every Crown appeal, an element of double jeopardy which needs to be taken properly into account. It is an element that has, in my opinion, a special poignancy in the present case, in that the effect of what was done by the learned sentencing Judge, - contrary, as I have explained, to the then expectation of the respondent himself and those who were advising him, - has been to place the respondent in a position where, having been suffered at large on the recognisance and the periodic detention sentence ordered by his Honour, he, the respondent, now has to face up to a sentence of full time incarceration. This can be in the nature of things no easy thing for a man a little older than twenty-one years of age. I think that some sensibly compassionate view has to be taken of that particular aspect of the way in which the notion of double jeopardy comes into play in the particular circumstances of this respondent's case.

The personal features proper to the respondent, as I have earlier canvassed them, seem to me to constitute "special circumstances" in a sense that would justify the present framing of a sentence in a way entailing service by the respondent of a minimum term, actually to be served, somewhat shorter than usual; and his eligibility for, and in due course liability to, the opportunities and the constraints of an additional term somewhat longer than would be usual. In the sentence that I shall propose I have sought to reflect all of those considerations.
I propose that the sentence to be imposed will date from 19 December 1996, the date upon which the respondent stood for sentence before his Honour Judge Dent. There seems to be general agreement on the part of both learned counsel for the Crown and learned Senior Counsel for the respondent that such an approach to the question of dating a sentence now imposed will accord substantial justice in the particular circumstances of this case; that is, will sufficiently acknowledge and allow for the period that the respondent served in pre-sentence custody, and the period throughout which he has served dutifully in accordance with the periodic detention order.
Drawing together as best I can all of the considerations to which I have referred, I think that it would be appropriate in this case to impose on count 2 in the indictment a sentence of penal servitude for five years, apportioned between a minimum term actually to be served of three years and an additional term of two years. The minimum term of three years should commence on 19 December 1996 and expire on 18 December 1999; the additional term of two years should commence on 19 December 1999 and expire on 18 December 2001.
In relation to count 1 in the indictment, that is to say the account of unlawful detention in contravention of s 89 of the Crimes Act, I would impose a fixed sentence of penal servitude for three years to be served concurrently with the sentence that I have proposed in respect of count 2. In my opinion, therefore, the following orders should be made.
The appeal against sentence is allowed, and the sentences and orders imposed and made in the Court below are quashed. In lieu thereof, the respondent is sentenced on count 2 of the indictment to penal servitude for five years, to comprise a minimum term of three years commencing 19 December 1996 and expiring on 18 December 1999, and an additional term of two years commencing 19 December 1999 and expiring on 18 December 2001.
On count 1 in the indictment the respondent is sentenced to penal servitude for a fixed term of three years to be served concurrently with the sentences imposed in respect of ground 2.
I propose orders accordingly.
GLEESON CJ: I agree.
HUNT CJ AT CL: I also agree.
GLEESON CJ: The orders of the Court will be as proposed and the respondent will be eligible for release to parole on 18 December 1999.

Decision last updated: 31 March 2017

Medium Neutral Citation:	R v O’Grady [1997] NSWCCA 1
Decision date:	13 May 1997
Before:	Gleeson CJ at [1]; Sully J at [2]; Hunt CJ at CL at [37]
Decision:	Appeal against sentence is allowed. Sentences and orders imposed and made in the Court below are quashed. In lieu thereof, the respondent is sentenced on count 2 of the indictment to penal servitude for five years, to comprise a minimum term of three years commencing 19 December 1996 and expiring on 18 December 1999, and an additional term of two years commencing 19 December 1999 and expiring on 18 December 2001. On count 1 in the indictment the respondent is sentenced to penal servitude for a fixed term of three years to be served concurrently with the sentences imposed in respect of ground 2.
Legislation Cited:	Crimes Act 1900 (NSW), ss 61J, 89
Category:	Principal judgment
Parties:	Regina (Appellant) Dale Anthony O’Grady (Respondent)
File Number(s):	60037/97
Decision under appeal	Court or tribunal: District Court Before: Dent DCJ