R v Smith

[2000] NSWCCA 148

CITATION:	R v SMITH [2000] NSWCCA 148
FILE NUMBER(S):	CCA 60103/99
HEARING DATE(S):	10 April 2000
JUDGMENT DATE:	10 April 2000
PARTIES :	Regina Timothy Edward SMITH
JUDGMENT OF:	Hulme J at 1; Dowd J at 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/51/0117
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

COUNSEL :	Crown: MC Marien Appellant: CB Craigie
SOLICITORS:	Crown: SE O'Connor Appellant: TA Murphy
DECISION:	Leave to appeal granted; That that part of His Honour's sentence as commenced "the parole period is continued" be quashed but that otherwise the appeal is dismissed

- 9 -

IN THE COURT OF
CRIMINAL APPEAL
No: 60103/99


HULME J
DOWD J

Monday, 10 April 2000
REGINA -v Timothy Edward SMITH
JUDGMENT

1    HULME J: On 17th February 1999 the above-named applicant for leave to appeal pleaded guilty to a charge that on 5 May 1998 he had sexual intercourse with the complainant without the consent of the complainant and knowing that she was not consenting thereto. On the following day Twigg QC DCJ sentenced the appellant to penal servitude for a minimum term of four and a half years, commencing 15 May 1998, the day after the appellant's arrest, together with an additional term of two and a half years commencing on 15 November 2002. His Honour found special circumstances in the need for the prisoner's rehabilitation.

2    The grounds of appeal are:

"(1) That the learned sentencing Judge erred in assessing the objective seriousness of the offence at an inappropriate level of gravity.
(2) That the learned sentencing Judge erred in selecting a starting point for calculation of the sentence which was too high.
(3) That the learned sentencing Judge erred in taking into account facts which were not properly before the court.
(4) That the learned sentencing Judge gave inadequate weight to subjective factors which included:
(a) the value of the applicant's plea in the particular circumstances of the Crown case;
(b) general and specific disabilities flowing from the applicant's aboriginality;
(c) contrition, insight and prospects of rehabilitation;
(5) Having regard to all of the above and as a result of errors impacting upon the exercise of the sentencing discretion, the sentence was manifestly excessive."

3    It is convenient to quote what his Honour said concerning the offence and other matters. Under a heading "The Facts" his Honour said:

"The facts show that Mr Smith had been drinking extensively, as he conceded when he gave evidence on sentence. During the night of Monday 4 May 1998 the victim was accosted by the offender and dragged to the laundry where the victim got away and ran out of the front door.
On the following day in the morning of Tuesday 5 May 1998 the victim was in the lounge room and the offender was there also. Others had left the house leaving the victim, the offender and the owner of the house there. They watched a midday movie and later when the victim went to the toilet the owner of the house was asleep on the lounge. When the victim left the toilet the offender was standing near the lounge room door and thereafter the offence was committed.
The offender inserted his penis into the victim's vagina without her consent and he did other things to her and she left the room and went to the lounge room where the owner of the house was. Others returned and she made immediate complaint and...
Although in her statement the victim refers to the use of a knife the circumstances surrounding that lead me to the conclusion that I should not take into account any suggestion that there was a knife used..."

4    Under a heading "Objective Factors" his Honour also said:

"It is clear that there was a situation for this victim which was harrowing to her and caused her extensive embarrassment and harm. I can understand her horror and fear and I can understand the effect that it must have had on her by this attack. There must be given to the community a general deterrence to avoid these sorts of matters occurring".

When dealing with the subjective factors, his Honour observed that the appellant was an aboriginal and had had difficulty with alcohol since young. The appellant himself referred graphically to this:

"Well I live where my family is and like people I went to school with and all that and you seem to be - you're in the same you know surroundings all the time and you know, the old saying is you can lead a horse to water, you can't make it drink, but if you're out there amongst them like, they're doing it everyday...well I sort of find that I've got to joint them sort of virtually because it is always there, the grog, and you need to get away from the area where you come from to...get off the
grog."

Asked whether, among people he had known all his life, pressure was applied he said:
"Well, it's the old saying, you know, like if you're not drinking because you want to keep your marriage going and that, they're all singing out, "you're under the thumb and the woman controls you" and things like that... You get in a lot of pressure that way and if the boys are calling on you to come...have a drink and you know you sort of - you just sort of can't break the..."

5    On the other hand, there was evidence in a pre-sentence report to which his Honour specifically referred, that the applicant had failed to keep appointments on at least two occasions with the Macquarie Drug and Alcohol Service. In that report the author observed that the Probation Service records indicate that at any time the appellant was not drinking, his cooperation with the Probation and Parole officers was excellent but that the appellant's problems with alcohol were of major proportion. The report doubted the appellant's motivation to reform in that area.

6    The report also went on under the heading of "Alcohol and Other Drugs" to refer to the fact that the appellant indicated that he was severely affected by alcohol on each occasion to which the report refers, adding that such had been the case at each time he had offended in the past.

7    It may be inferred that it was these references which in part led his Honour, after saying that he had the guidelines stated by Wood CJ at CL in Stanley Edward Fernando (1994) 76 A Crim R 58 ringing in his ears, to observe that there was also to be balanced "other community factors, particularly those who do nothing to take into account alcohol as their problem".

8    Under the heading "Conclusion", his Honour referred to the circumstance of the offence as very serious, although not at the upper end of the range. He said the prisoner was entitled to a substantial discount for his plea, which his Honour found had occurred at the earliest opportunity. His Honour also said he took into account the appellant's contrition and remorse but there was a need to have regard to both general and particular deterrence and an extensive record which the appellant had, including a similar offence for which the appellant had been sentenced to three and a half years imprisonment in April 1992.

9    To appreciate some of the grounds of appeal, it is necessary to have regard to some further matters. Not only did the complainant allege the applicant had threatened her with a knife, she also had said the applicant had put fingers into her anus and committed cunnilingus before having penile-vaginal intercourse.

10    Each of these activities is, or is capable of amounting to, sexual intercourse as that is defined in s 61H of the Crimes Act 1900 and initially the Crown had charged the applicant with three counts of aggravated sexual intercourse without consent. However, ultimately a fresh indictment charging the applicant with only one offence was preferred. Regrettably there was no specific identification of which of the acts was relied on by the Crown as the subject of the charge. It may, I think, be inferred that it was the act of penile-vaginal intercourse but at least in the absence of some agreement - and there was none - it was not appropriate to regard the charge as embracing all of the acts of penetration which the complainant had alleged.

11    There was also further evidence of events during the previous night. In her statement the complainant said that after she escaped from the applicant in the laundry she was again grabbed by him near the front door before again escaping. The applicant gave evidence that consensual sexual intercourse had occurred in the laundry.

12    I turn to the grounds of appeal. It is convenient firstly to deal with ground 3. It is submitted his Honour's reference to the plaintiff being "accosted and dragged to the laundry" on the previous night and the statement that "he did other things to her" indicates that his Honour took into account against the applicant matters he was not entitled to.

13    The reference to the applicant accosting the complainant on the previous night was in the course of an abbreviated chronology of events. So irrelevant was that incident to the applicant's criminality on the following day that I would not readily infer that his Honour took it into account in assessing the penalty he imposed on the applicant. Particularly is this so in light of the fact that his Honour did not advert expressly to the difference between the complainant's account of events in the laundry and that of the applicant.

14    On the other hand, the reference to doing "other things" occurs in the only sentence in which his Honour described the actual offence and it does not seem to me that the same approach can be taken as readily. Furthermore, I am unable to see in the complainant's statement, reference to any matters of significance occurring in the bedroom other than the presence of and threats with a knife and the incidents of other sexual intercourse to which I have referred. In those circumstances, it seems to me impossible to avoid the conclusion that his Honour's reference to "other things" was a reference to the anal penetration and cunnilingus.

15    There was, of course, no reason why in an account of what occurred his Honour should not have referred to these matters. However as, if they occurred, they constituted further offences committed by the applicant and were not the subject of any charge for which the applicant stood for sentence, they could not, at least in the absence of agreement, be taken into account in determining the sentence to be imposed for the offence which was charged. The difficulty lies in determining whether his Honour did so take them into account. His Honour did not say whether he did or did not and the matter must be judged solely by the context in which the "other things" are mentioned. Although the matter is not clear, I think the more likely inference is that his Honour did take those matters into account. He should not have done so R v De Simoni (1981) 147 CLR 383.

16    There is another observation of his Honour which is also of concern and that is his reference as to the impact of the offence on the complainant. While the courts can and do take judicial notice of the likely impact of offences on victims of them, not all victims are affected the same way and the criminal onus of proof imposes constraints on how far a court is entitled to go in a particular case or in reference to a particular victim. His Honour's references under the heading "Objective Factors" to "her extensive embarrassment and harm" and "her horror" are expressed in terms which would require specific evidence to justify. There does not seem to have been any such evidence and in this respect also his Honour seems to have taken into account matters he was not entitled to.

17 But for these matters, I would have found no error in his Honour's sentence. The offence to which the applicant pleaded guilty carries, pursuant to s 61I of the Crimes Act, a maximum penalty of 14 years imprisonment. The full term of 7 years imposed on the applicant is but half that and it is his second offence. The leniency extended to offenders for first offences or the first offence of an uncharacteristic type has a corollary in that repeat offenders must expect a significantly greater sentence for further or subsequent sentences. Furthermore, although his Honour did not refer to the fact and presumably did not take it into account against the applicant, the applicant was subject to a recognisance at the time, a matter of significant aggravation.

18    In stressing the view which I have, I do not neglect the submission made on behalf of the applicant to the effect that his Honour did not give adequate attention to the principles for which Fernando's case is commonly cited. I disagree. Although his Honour's reference to that case was slight, it is clear that his Honour was fully conscious of the applicant's aboriginality and of the impact, particularly in terms of drinking, of that aboriginality upon him. It was not, I think, necessary for his Honour to go in any more detail than he did to this topic. I see no reason why one should not treat his Honour's reference to Fernando's case as meaning exactly what it said.

19    Given his Honour's errors, the question before this court is whether "some other sentence whether more or less severe is warranted in law and should have been passed" (see Criminal Appeal Act s 63). In my view this question should be answered in the negative. The fact that the offence was committed on recognisance and it was the applicant's second offence of rape, means that a total sentence of not less than 7 years, as I said, half the maximum provided for, was appropriate.

20    Subject to one matter, I would grant leave to appeal but dismiss the appeal.

21    The one matter to which I have referred was an order by his Honour to the effect that the parole period to which he had referred earlier in his remarks was conditioned in a number of respects. Given the terms of s 24 of the Sentencing Act, and the length of the non-parole period, his Honour had no power to impose conditions on the grant of parole. That was a matter for the Parole Board.

22    In the result, I would propose that leave to appeal be given, that that part of his Honour's sentence as commenced "the parole period is conditioned" be quashed but that otherwise the appeal be dismissed.

23    DOWD J: I agree with his Honour the presiding Judge's reasons for the proposed orders and the proposed orders.

24    HULME J: The orders of the court will be as I have stated.