R v Suey

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Suey [2005] NSWCCA 22

FILE NUMBER(S):
1998/3390

HEARING DATE(S): 03/02/05

JUDGMENT DATE: 03/02/2005

PARTIES:
Regina v Ronald James SUEY

JUDGMENT OF: Hunt AJA Grove J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/31/0200

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL:
C Davenport - Appellant
J Bennett SC - Crown

SOLICITORS:
Sparo's - Appellant
SE O'Connor - Crown

CATCHWORDS:
CRIMINAL LAW - sentencing - matter referred to Court for review of sentences past following inquiry - abduction, aggravated sexual assault and breaking and entering - applicant stopped one of his co-offenders from attacking the complainant with a wheel brace - this matter not known to sentencing judge - whether if sentencing judge had known it would have affected her findings on contrition - whether any basis for parity argument

LEGISLATION CITED:
Children (Criminal Proceedings) Act
Crimes Act
Criminal Appeal Act

DECISION:
The sentences imposed by her Honour Judge Morgan should stand.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

1998/3390
HUNT AJA
GROVE J
JAMES J
THURSDAY 3 FEBRUARY 2005

REGINA v Ronald James SUEY

Judgment

HUNT AJA: Mr Justice James will give the first judgment.
JAMES J: This matter was referred to the Court of Criminal Appeal by his Honour Greg James J for a review of the sentences imposed on Ronald James Suey (whom I will refer to as “the applicant”) by her Honour Judge Morgan in the District Court on 18 September 1998.
In a trial conducted before her Honour and a jury in September 1998 the jury found the applicant guilty on all nine charges in the indictment which had been presented against him. All of the offences had been committed on the night of 29 and 30 November 1996 in a remote rural area of New South Wales. The victim of most, but not all, of the offences was a fifteen-year-old girl, whom I will refer to simply as “the complainant”.
The various charges in the indictment were:
Count 1. A charge of possessing an offensive weapon with intent to commit an indictable offence, namely, armed robbery. This was an offence under s 33B(1)(a) of the Crimes Act, for which the maximum penalty was imprisonment for twelve years.
Count 2. A charge of breaking and entering a dwelling house and committing a serious indictable offence therein being assault occasioning actual bodily harm, in circumstances of special aggravation being that the applicant was armed with an offensive weapon (a shotgun) and the applicant maliciously inflicted actual bodily harm upon the victim, who was a young man named Steven Canfell. This was an offence under s 112(3) of the Crimes Act, for which the maximum penalty was imprisonment for twenty-five years.
Count 3. A charge of kidnapping under s 90A of the Crimes Act (since repealed) for which the maximum penalty was imprisonment for twenty years. The victim of this offence was the complainant.
Counts 4 to 9 in the indictment were all charges of having had sexual intercourse with the complainant without her consent, knowing that she was not consenting, in circumstances of aggravation, the circumstances of aggravation being that the applicant was in the company of other persons and that the complainant was under the age of sixteen years. This was an offence under s 61J of the Crimes Act, for which the maximum penalty was imprisonment for twenty years.
In sentencing the applicant for the various offences her Honour Judge Morgan following the sentencing practice which was commonly adopted in this State before the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 of assessing the total criminality of the applicant in all the offences and reflecting that assessment in the sentence for one of the offences (“the leading sentence”) and making the sentences for all the other offences fixed terms of imprisonment concurrent with part of the leading sentence.
Her Honour selected the offence charged in the second count of the indictment of breaking and entering a dwelling house and committing a serious felony therein, in circumstances of special aggravation, as being the offence for which she would impose the leading sentence. For that offence her Honour sentenced the applicant to a term of imprisonment of twenty years, with a minimum term of fifteen years and an additional term of five years. For the offence charged in the first count in the indictment her Honour imposed a fixed term of imprisonment of six years. For the offence charged in the third count in the indictment her Honour imposed a fixed term of imprisonment of ten years. For each of the offences of sexual intercourse without consent in circumstances of aggravation her Honour imposed a fixed term of imprisonment of fifteen years.
Her Honour ordered that all of the sentences commence from 17 November 1997. The applicant had been arrested on 30 November 1996 and had remained in custody up until the time he was sentenced. However, her Honour found in her remarks on sentence that the applicant’s custody up until 17 November 1997 had not been exclusively referable to the offences for which he was being sentenced by her Honour.
In her remarks on sentence her Honour stated the facts of the offences and, as the outcome of the review by this Court of her Honour’s sentences depends, to a considerable extent, on the degree of the objective gravity of the offences and there has been no challenge on this review to any of the facts stated by her Honour, I propose to incorporate in this judgment all of her Honour’s statement of the facts of the offences, substituting the expression “the complainant” for the complainant’s real name and also altering other names or expressions which would tend to identify the complainant.
At pp 2 to 8 of her Honour’s remarks on sentence her Honour said:-
“The facts of this case are that on about 19 November 1996 the complainant, who was then aged 15, left her home in Newcastle and went to Baan Baa to act as a nanny for the children of Mr Steven Atkin, also known as Buster Atkin, who is an old friend of her mother’s. The children were Angela, then aged 8, Steven, aged 6, and Jessica, 15 months old. It was intended that the complainant should act in this position to enable Mr Atkin to work during the cotton chipping season.
During the week prior to 29 November Mr Atkin was in Newcastle. When he returned to Baan Baa, he was accompanied by the complainant’s mother, who had come up to see her daughter and see how she was coping, and she intended to stay for a couple of days.
While Mr Atkin was in Newcastle the prisoner called at the house and asked to see Mr Atkin. He was told by the complainant that Buster Atkin was not there. At the same time the prisoner asked if there was any "goey", apparently referring to amphetamine or speed. As well, during Mr Atkin's absence in Newcastle some men arrived at the property very late at night in a Hilux utility and banged on the doors yelling out for Buster or his wife Tanya. Steven Canfell, a young man of 20 years who was also living in the house during the cotton chipping season, told them to go, as Buster was not there.
On Wednesday 27 November the prisoner came to the property just on dark in a white Hilux utility and spoke to Mr Atkin, who had by then returned from Newcastle. He told Mr Atkin that he wanted to buy some cannabis and that he had $500 to burn. Mr Atkin was acquainted with the accused through his former wife Tanya, who apparently had some involvement with cannabis and the supply thereof, but he had not seen or spoken to the prisoner since 1995. Mr Atkin told the prisoner he would make enquiries and to ring him on Friday the 29th to ascertain whether it was available. Mr Atkin said in evidence he had no intention of obtaining any drugs and was simply trying to get rid of the prisoner by telling him that.
On Friday 29 November, Mr Atkin was to drive the complainant’s mother home to Newcastle. They left the house at Baan Baa at about 10.20pm, leaving the complainant, the three children, and Steven Canfell at the house. After they left Mr Canfell went to bed, the complainant checked that the children were asleep and the house was locked, and then went to bed in the front bedroom where the youngest child Jessica was also sleeping.
Not long afterwards there was a loud banging on the back door. Steven Canfell went to the door carrying with him a rifle which contained one cartridge. The person at the back door was yelling out for Buster. He said he was Ronald Suey, and he wanted to see Buster. Mr Canfell could hear other people running around outside the house calling out for Buster and Tanya. Steven Canfell did not open the door but told the man outside that Buster was not there, that there were children in the house, and to go away.
Mr Canfell then looked up the hallway and saw the complainant coming out from the bedroom. She told him that there was someone at the front door. He motioned to her to go back into the bedroom and he moved towards the front door. He then saw the wood in the door splintering as if someone was kicking it. He then heard a gun shot and saw a flash of flame through the front door, and then felt pain in his foot. He was later treated for pellet wounds. The wounding of Mr Canfell was a circumstance of special aggravation in that offence of breaking and entering. Mr Canfell then discharged his rifle into the floor near the front door,in panic, as he said in evidence, and realising the seriousness of the situation, he jumped through a window and ran some hundreds of metres to a neighbour to summon assistance.
The complainant was in the bedroom when she heard the gun fire and saw flashes of flame coming from the front door. She picked up the baby, who was screaming, to comfort it. She then saw two men come into the bedroom, one a man in a black beanie who was the prisoner, and another man who she later heard called Mitchell, and whose name was Mitchell Woodhead. The prisoner was holding a shotgun and grabbed her around the neck and asked her, "Who fired the shot?" The other man was carrying a wooden tomahawk with which he smashed light globes in the bedroom and hallway.
The complainant, who was still holding the baby, was dragged from room to room through the house by the prisoner,who was looking for Canfell. The other two children were screaming and crying and she tried to comfort them by telling them everything would be all right. She was dragged outside house where she saw two other men, one younger than the other. That person was JW and the other was Leonard Talbot. The prisoner told her to hand the baby over to Angela, which she did, and she then said to the prisoner, "Don't hurt me. I am just the nanny, don't take me away". But she was told to, "Shut up and get in the truck".
She was forced into the Hilux utility which was then driven off by Mitchell Woodhead. Leonard Talbott was next to Woodhead, and the prisoner was next to the passenger door. The complainant was seated on the prisoner's lap. JW was in the tray of the utility. The shot gun was placed on the dashboard of the vehicle in front of her by the prisoner.
She said in evidence that she saw on the dashboard a digital clock which showed the time as 11.06. The vehicle was driven a couple of kilometres from Atkin's house and stopped on the side of the road. The complainant was forced out of the car, told to drop her pyjama pants and underpants, that was the clothing that she had changed into to go to bed before these men arrived. She refused, and one of the men pulled them down. She was then forced to fellate the prisoner, who was seated side-on in the driver's seat. This was the basis of the first sexual intercourse count, count 4.
While she was doing this she was being penetrated from behind both vaginally and anally, although she was unable to say by whom. Another man took the accused's place and she was forced to fellate him while again she was being assaulted from behind.
Another vehicle approached. The complainant was forced back into the motor vehicle which was then driven away down other roads until finally it was driven into a paddock and stopped some 300 metres from the road. Again she was forced from the car, her clothes were forcibly removed, and she again was forced to fellate the prisoner while he sat side on in the passenger seat. This is the basis for count 5.
At some stage she stopped and asked if she could be taken back to Baan Baa. Mitchell Woodhead then held a knife to her throat and told her she had three more to go. She was forced to perform fellatio on each of the other three men. Those are the acts relied upon for counts 7, 8 and 9, the accused being a participant in the joint criminal enterprise.
During the whole of this time she was crying and asking them not to hurt her and take her back to the children. She was told by the prisoner to climb on to the tray of the utility, and while she was sitting on the tray he forcibly had vaginal intercourse with her. This formed the basis of count 6.
She was then subjected to repeated sexual assaults by the men, in which her arms were held and her mouth and vagina concurrently penetrated. A final contemptible act was committed upon her whilst she was sitting on the tray when JW urinated over her, and in coarse language the prisoner abused JW for his action because they would then not be able to engage in further sexual activity.
The complainant's clothes were then thrown at her, she dressed, and was forced back into the utility which was driven out of the paddock. She was seated on the accused's lap and as the car was driven along the road towards Baan Baa she was forced to fellate the driver Mitchell Woodhead, and then Leonard Talbot, who was seated in the middle.
Shortly after this happened a police car drove past their car and then turned to follow the utility. The prisoner threw the shotgun out the window. The car continued down the road and it was stopped at a police road block. The complainant was told not to say anything, "Or we'll shoot you". The complainant got out of the utility and ran to the police. She was hysterical and crying uncontrollably. It took police officers some time to calm her.
The four men were arrested and later the prisoner declined to be interviewed. The shotgun was later recovered from the side of the road by the police and found to be loaded. In the motor vehicle police found a tomahawk, wooden club, and two knives, one of 14 centimetres long, the other a 13 centimetre double bladed knife.
At about 3 o'clock that morning, on the morning of 30 November, the complainant was examined by Dr Ramsay at the Narrabri Hospital. The doctor's findings noted that the complainant was upset and crying, dishevelled, and had difficulty walking. There were abrasions on her back, thigh, inner thighs, and bruises. There was dirt around her lips and a bruise on her posterior palate. Her external genitalia were very swollen and tender. There was also dirt in her vagina and anus. There were also abrasions to her perineum and the perineum skin. She said in evidence that her findings on examination were consistent with repeated forcible sexual intercourse.
In her statement given to police on 30 November and 1 December the complainant said she was sore, aching and tender in many parts of her body. She said that as a result of the offences committed against her she felt very embarrassed, scared, humiliated, and dirty all over. That she was having flashbacks of what happened and she was crying "heaps".
In her Honour’s remarks on sentence her Honour made further findings about the objective facts of the offences. She found that the applicant and the co-offenders had gone to Mr Atkin’s house on the night of 29 November 1996 with the intention of robbing him. Her Honour accepted that the offences committed against the complainant had not been pre-meditated when the offenders went to Mr Atkin’s house but that, when the complainant was taken from the house, the intention of the offenders was to sexually assault her.
Her Honour accepted a submission made by counsel for the applicant in the proceedings on sentence that the applicant was not to be regarded as having exhibited greater criminality than the other offenders. However, her Honour proceeded to say that the applicant could be considered to be one of the principals, in that it was he who had made arrangements to obtain drugs from Mr Atkin, it was he who, prior to 29 November, had made enquiries at Mr Atkin’s house, it was he who had broken into the house on 29 November, it was he who was holding the shotgun when he and Woodhead entered the house and it was he who had grabbed the complainant inside the house and had dragged her outside the house.
In her remarks on sentence her Honour referred to some of the subjective features of the applicant. At the time he was sentenced he was thirty-four years old. He had a large number of convictions in the Local Court, including convictions for assault occasioning actual bodily harm and common assault, for which he had received prison sentences. The applicant had conceded that he had a problem with alcohol and that he got into fights every time he drank alcohol. The applicant suffered from hepatitis C and an earlier trial before her Honour on the same charges had been aborted at an advanced stage, because of the sudden illness of the applicant from his hepatitis.
The applicant had, of course, pleaded not guilty to all of the charges. In the proceedings on sentence the applicant continued to deny that he had committed any of the offences and her Honour found that the applicant had not shown any contrition.
In the proceedings on sentence counsel for the applicant had submitted that, in accordance with the principle of parity in the sentencing of co-offenders, the sentencing judge should take into consideration the sentences imposed on the co-offenders Talbot and JW. Before referring to what her Honour said in her remarks on sentence about this submission, I will briefly outline the history of the criminal proceedings against the co-offenders.
JW who was a juvenile, pleaded guilty to the three charges preferred against him, which were of an offence under s 33B of the Crimes Act, an offence under s 89 of the Crimes Act (since repealed) of detaining a female with intent to carnally know her and an offence under 61J of aggravated sexual assault. JW was sentenced in the District Court to an effective sentence of four years with a minimum term of two years.
The co-offender Leonard Talbot pleaded guilty to the three charges which were preferred against him, of (1) breaking and entering a dwelling house in circumstances of special aggravation (2) taking away a female with intent to carnally know her and (3) having sexual intercourse without consent in circumstances of aggravation, the circumstances of aggravation being the same as those alleged against the applicant.
The primary sentencing judge imposed sentences on Talbot amounting to an effective sentence of seven years with a minimum term of four years. The Crown appealed to the Court of Criminal Appeal against the sentences which had been imposed on Talbot at first instance.
As it happens, the Bench of the Court of Criminal Appeal which heard the Crown appeal included Grove J and myself, both of whom are members of the present Bench. The Court of Criminal Appeal allowed the Crown appeal against the sentences passed on Talbot and, in lieu of the sentences imposed at first instance, imposed sentences amounting to an effective sentence of ten years with a minimum term of seven years. The leading judgment in the Court of Criminal Appeal was delivered by myself. The other members of the Bench Grove J and Simpson J concurred in the result of the appeal but each wrote a short separate judgment.
In his judgment Grove J stated that he considered that condign punishment for Talbot’s offences would have required even greater sentences than those which the Court of Criminal Appeal was about to impose but that it was appropriate for the Court of Criminal Appeal to exercise its usual restraint when re-sentencing after a successful Crown appeal against sentence.

In a separate judgment Simpson J stated that she had agreed with the sentences proposed by me, only after some hesitation, because of her concern about whether the sentences proposed by me were adequate to punish Talbot for the level of criminality that he had displayed.
In my judgment I noted, inter alia, that Talbot had been charged with only the three offences I have referred to; that the sentencing judge had found, as the Crown had conceded in the proceedings on sentence, that Talbot had not been the ring-leader or the “leading hand” and had played a less important role in the commission of the offences than that played by Woodhead or the present applicant and that the Court of Criminal Appeal was obliged to respect those findings of the sentencing judge; that Talbot had pleaded guilty at the earliest reasonable opportunity; that he had provided assistance to the authorities by participating in an electronically recorded interview in which he had answered over 800 questions, giving detailed accounts of the acts of the co-offenders Woodhead and the applicant, who had not pleaded guilty and who were to stand trial; and that in an interview on 31 July 1997 he had undertaken to provide further assistance by giving evidence at the trial of Woodhead and the applicant. Importantly, I said that in re-sentencing Talbot the Court of Criminal Appeal should observe the principle that, in re-sentencing after a successful Crown appeal, the Court should impose a somewhat lesser sentence than it considers should have been passed in the first instance.
The co-offender Woodhead pleaded not guilty and was committed for trial but he died in custody before any trial took place.
In her remarks on sentencing the applicant Judge Morgan held that she was not bound in any way by the sentences which had been imposed on JW and Talbot. As regards JW, her Honour referred to the part of my judgment in the Court of Criminal Appeal on the Crown appeal against the sentences passed on Talbot, in which I had said that JW was a child for the purposes of the Children (Criminal Proceedings) Act and, although in being sentenced he had been dealt with according to law, he had, nevertheless, to be sentenced in accordance with the principles stated in s 6 of the Children (Criminal Proceedings) Act and that, in any event, the role that JW had played in the commission of the offences was substantially less than that of any of the adult offenders. I said that the sentencing judge in sentencing Talbot had rightly rejected an attempted parity argument based on the sentence passed on JW.
As regards Talbot, her Honour Judge Morgan noted in her remarks on sentence that Talbot had pleaded guilty at the first opportunity, that he had provided assistance and had undertaken to provide further assistance and that all members of the Court of Criminal Appeal, including myself, had made it clear in their judgments that they had been restrained from imposing heavier sentences on Talbot by the special considerations applying to Crown appeals.
The applicant lodged an appeal to the Court of Criminal Appeal against his convictions and an application for leave to appeal against the sentences imposed on him. The grounds of appeal raised a number of issues of fact, including whether the Crown Prosecutor at the trial, defence counsel at the trial, solicitors, police officers and jurors at the trial had acted improperly. Pursuant to s 12(2) of the Criminal Appeal Act the Court of Criminal Appeal remitted these issues of fact for determination by a single judge of this Court, his Honour Greg James J.
A general question which then arose was whether the new evidence on which the applicant wished to rely would have to satisfy the conditions for the admissibility of evidence on an appeal as being fresh evidence. Apparently because of uncertainty about the admissibility of the new evidence on an appeal, the applicant made an application to the Supreme Court for the holding of an inquiry pursuant to pt 13A of the Crimes Act into his conviction and sentences. On 28 June 2001 Greg James J directed that such an inquiry be held and on the following day his Honour was formally appointed to conduct the inquiry.
It was, at least impliedly, a condition of any inquiry into his conviction being directed that the applicant should abandon his appeal against conviction. A formal notice of abandonment of the appeal against conviction was lodged on 8 March 2002.
An inquiry was conducted by Greg James J at various times in August 2001 and April 2002. His Honour prepared and submitted to the Chief Justice his report of the inquiry, which is dated 6 September 2002. The report is a lengthy document of 130 pages, including a number of appendices. For present purposes it is necessary to refer to only a few parts of the report.
In para 19.22 of the report his Honour said:
“The complainant gave evidence to the Inquiry of Suey rescuing her from an assault with a wheel brace which was to be carried out by one of the others. The evidence of Suey was that the wheel brace was being used by JW but I accept the complainant’s evidence that it was Woodhead who threatened her with the wheel brace. I do not consider the complainant’s account of the matter concerning the wheel brace cast any doubt on her general credibility particularly because it was not put to her at either trial. It is in reliance on her evidence that I refer this matter of the Court of Criminal Appeal for consideration on sentence, since her evidence in this respect raises a reasonable doubt as to the role of the applicant throughout the relevant events, as affecting the degree of his responsibility for the acts perpetrated and as to a matter of mitigation”.
In para 20 of his report his Honour said:-
”Section 474(H)(2)(b) provides in part that I may refer the sentence aspect of the matter to the Court of Criminal Appeal if ‘there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence’
The evidence of the complainant given at the Inquiry establishes that the applicant prevented one of the co-offenders, Mitchell Woodhead from placing a wheel brace in the complainant’s vagina. This does not reduce the gravity of what happened at the Atkin home nor the character of the sexual assaults which occurred throughout the course of the night. The applicant was sentenced on the basis that he was the leader or person in control on the night. The table produced by the Director of Public Prosecutions (Appendix 5 hereto) shows the relative severity of the sentence the applicant received. His actions with respect to the wheel brace showed that he used his power over the other offenders to prevent the sexual assaults being even more serious. His role that night was a most important consideration in respect to his sentence. I therefore conclude that this matter should be the subject of a reference to the Court of Criminal Appeal”.
In his conclusion in para 21 of the report his Honour said:-
“The Inquiry was directed because there were a number of real questions concerning the guilt of the applicant. Those questions are set out at the commencement of this report. I have specifically found that each of those doubts or questions should be resolved adversely to the applicant. To my mind the evidence placed before the Inquiry requires me to come to that conclusion. I am satisfied there has been no miscarriage of justice and that there is no reasonable doubt as to the applicant’s guilt with respect to all nine counts. I further find that there has been no relevant error or mishap in the trial process which had any practical implication nor anything to suggest that a fair trial did not take place.
Accordingly:-
(a)I report to the Honourable the Chief Justice that I do not consider there to be any doubt or question as to the applicant’s guilt of the offences for which he was convicted; and
(b)I refer to the Court of Criminal Appeal the matter for review of the sentences imposed on the applicant, since I am of the opinion that there is a reasonable doubt as to a matter which may have affected the nature or severity of the sentence, that is, the matter referred to at 19.22”.
Evidence about the wheel brace or tyre brace was given at the inquiry by the applicant and by the complainant. At pp 60 to 61 of the transcript of the inquiry the applicant gave evidence that he heard JW say, “’I’ll fuck her with this - right,’ talking about the tyre brace he had in his hands”. The applicant asserted in his evidence that he had said to JW, “What are you doing, you idiot” and that he had grabbed the tyre brace from JW.
The evidence from the complainant about the wheel brace at pp 641 to 642 of the transcript of the inquiry was:-
“Q.         And he (the applicant) said that JW at about the time that you were on the back of the utility, JW threatened you with a tyre lever or a wheel brace?
A.           To my knowledge, I remember, I remember it being Mitchell, not JW.
Q.           So you recall being threatened with some kind of tyre or wheel brace?
A.           Yes.
Q.           But your recollection, it was who that did it?
A.           Mitchell.
Q.           And Mr Ronald Suey then says he took the wheel brace off whoever had it and threw it into the back of the ute?
A.           I think so, yes”.
As appears from paragraph 20 of his report, his Honour’s decision to refer the matter to the Court of Criminal Appeal was based on the evidence of the complainant and not on the evidence of the applicant. In his report his Honour made a number of unfavourable findings about the credibility of the applicant.
The present reference to this Court is to review the sentences passed on the applicant, having regard to the matter that the applicant rescued the complainant from being assaulted with the wheel brace by the co-offender Woodhead.
On this reference it was submitted by counsel for the applicant that, if the sentencing judge had known that the applicant had intervened to prevent further harm from befalling the complainant, then the sentences her Honour would have imposed would have been significantly less and that, in comparing the sentences passed on the applicant with the sentences imposed upon the two co-offenders in the light of this new evidence, the applicant would feel a justifiable sense of grievance in relation to the sentences imposed on him.
A matter raised by the Court in the course of argument during this review was whether, even on this review, the evidence about the incident with the wheel brace, in order to be admissible, would have to meet the conditions for the admissibility of evidence as fresh evidence on the hearing of an appeal. The Crown did not submit, either in written submissions or in oral submissions, that the Court should dispose of the review on the basis that the evidence about the wheel brace did not meet the conditions for the admissibility of evidence as fresh evidence and the Crown urged this Court to deal with the review on its merits. In these circumstances, I will not decide and I do not express any opinion about, whether, where a matter has been referred to the Court of Criminal Appeal pursuant to s 474H(2)(b) of the Crimes Act for review of a sentence, new evidence can be relied on, without its having to satisfy the conditions for the admissibility of evidence as fresh evidence. For the purposes only of this review I am prepared to assume that the evidence about the wheel brace is admissible on this review.
I do not consider that either of the submissions made by counsel for the applicant should be accepted. The applicant engaged in criminal conduct which was aptly described by the sentencing judge as “appalling”. In her remarks on sentence, her Honour appropriately summarised the applicant’s criminal conduct as follows:-
“The facts of this case are truly appalling. This young girl was subjected to a terrifying ordeal in which she was continuously brutally violated over a period of some two hours by men, armed with a shotgun, tomahawk, and carrying sticks, who had earlier broken into a house where she was caring for three young children, where shots had been fired and she was forced into a motor vehicle by a man carrying a shotgun. It almost beggars belief the level of criminality involved and the despicable and callous behaviour exhibited by these four men towards a fifteen year old girl that night. The effect upon her both physically and emotionally as well as the probable serious long term impact upon her is immeasurable. That I will take into account on sentence”.
The fact that the applicant stopped one of his co-offenders from attacking the complainant with a wheel brace merely prevented a further offence being committed against the complainant by a co-offender and did not mitigate the criminality involved in the offences for which the applicant was sentenced.
It is clear that the applicant’s act of stopping the co-offender did not stem from any remorse on his party or from any empathy with the complainant. After this incident the applicant participated in the commission of further offences against the complainant. I do not consider that, if this matter had been known to the sentencing judge, it would have affected her finding that the applicant did not show any contrition.
Notwithstanding what is said in paragraph 20 of Greg James J’s report, the applicant was not sentenced by Judge Morgan on the basis that he was the leader or the person in control on the night of the offences. Judge Morgan merely found that the applicant was “one” of the principals and explicitly stated in her remarks on sentence that the applicant was not to be regarded as having exhibited greater criminality than the other offenders.
For the reasons given by me in my judgment on the Crown appeal against the sentences passed on Talbot, some of which were repeated by Judge Morgan in her remarks on sentence in sentencing the applicant, there was no basis for any parity argument between the applicant and the juvenile JW and the additional matter now relied upon is quite insufficient to give rise to any such basis.
For the reasons given by Judge Morgan, there was, and is, no basis for any parity argument based on the sentences passed on the offender Talbot. Talbot was sentenced for only three offences. He was sentenced on the basis that he had a lesser role than the applicant in the commission of the offences. Talbot pleaded guilty at the earliest reasonable opportunity and he provided significant assistance to the authorities. He was sentenced in the Court of Criminal Appeal, after a successful Crown appeal against sentence, to sentences which were less than the Court of Criminal Appeal considered should have been imposed in the first instance. The additional matter now relied upon is quite insufficient to provide any basis for a parity argument between the applicant and the offender Talbot.
I consider that, having reviewed the sentences imposed by her Honour Judge Morgan, this Court should hold that the sentences imposed by her Honour should stand.
HUNT AJA: I agree with the order proposed by James J, for the reasons which he has given.
GROVE J: I also agree. I would reserve to an occasion when it arises the question of whether on a review pursuant to s 474H(2)(b) of the Crimes Act 1900 this Court ought or should adopt the procedures and limitations applicable to the receipt of fresh evidence in an appeal or in application for leave to appeal under the Criminal Appeal Act 1912.The stance adopted by the Crown in the stated interests of fairness in this instance makes a decision on that issue unnecessary.
HUNT AJA: The order of the Court is as proposed by James J.

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LAST UPDATED: 23/03/2005

[2005] NSWCCA 22

3 February 2005