R v TA

[2003] NSWCCA 191

Reported Decision: 57 NSWLR 444
139 A Crim R 30

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v TA [2003] NSWCCA 191
HEARING DATE(S):	30 June 2003
JUDGMENT DATE:	25 July 2003
JUDGMENT OF:	Spigelman CJ at 1; Dowd J at 14; Adams J at 16
DECISION:	Leave to appeal granted, appeal allowed, sentences quashed and substituted therefor the following - (i) Count 2: five years to commence on 16 February 2000 and expire on 15 February 2005 (ii) Count 1: four years to commence on 16 February 2004 and expire on 15 February 2008; and (iii) Count 3: six months to commence on 16 February 2004 and expire on 15 August 2004. Eligible to be released to parole on 15 February 2006.
CATCHWORDS:	Conviction appeal - complainant drugged - no memory of assaults which were videoed - opinion as to whether she consented or appeared to consent irrelevant - s79 Evidence Act 1995 - also rightly rejected as oppressive - sentence appeal - substantial accumulation appropriate where substantive additional offence
LEGISLATION CITED:	ss 41, 78, 79 Evidence Act 1995 s44(2) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Browne v Dunn (1894) 6 R (HL) 67 M v The Queen (1994) 181 CLR 487 Pearce v The Queen (1998) 194 CLR 610 R v Leung and Wong (1999) 47 NSWLR 405 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50.
PARTIES :	The Crown (Respondent) TA (Appellant)
FILE NUMBER(S):	CCA 60567/00
COUNSEL:	P Ingram (Crown) P Byrne SC with N Mikhaiel (Appellant)
SOLICITORS:	S E O'Connor (Crown)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70075/98
LOWER COURT JUDICIAL OFFICER :	Sperling J

60567/00

SPIGELMAN CJ
DOWD J
ADAMS J

FRIDAY 25 JULY 2003

REGINA v TA

Judgment

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Adams J in draft. I agree with his Honour’s orders and his Honour’s reasons. I add a few additional observations.

2 The submissions for the Appellant on the admissibility of the line of questioning which Sperling J rejected were as follows:

“… [A]n opinion expressed by the complainant as to whether she appears to have been at different times in various states of mind is admissible because her opinion in that regard is based on what she has seen of the events in question as they are recorded on the videotape and evidence of her opinion is necessary to obtain an adequate account of her perception of the events recorded in the videotape. Putting this another way, it is necessary to obtain evidence of the complainant’s opinion as to the events recorded on the videotape in order to understand whether, ultimately, she may have been consenting to the administration of the drugs and in turn consenting to the sexual activity in which she apparently was involved with the Appellant.”

3 The first way in which the submission is put is that the opinion is “necessary to obtain an adequate account of her perception of the events recorded in the videotape”. The perception of the complainant as to the events recorded in the videotape is completely irrelevant to any fact in issue.

4 The alternative way in which the submission is put is that in some way her “opinion as to the events recorded on the videotape” would assist in the understanding of whether she may have consented either to the administration of drugs or to sexual activity. I can see no rational relationship between an opinion about what appears on the videotape and the issue of consent.

5 Mr P. Byrne SC, who appeared for the Appellant, submitted that the complainant was in a better position than the jury to draw inferences regarding her state of mind from what was said and recorded on the videotape. At one stage, it was even submitted that this was based on her own knowledge of her own behaviour. That submission was in effect withdrawn but, if it was not, should be rejected. There is no proper basis for that kind of opinion evidence.

6 The complainant is in no better position than the jury to assess what is observable to any person on the video. The position is indistinguishable from the police witnesses who sought to give opinion evidence about the identity of a person depicted on photographs in Smith v The Queen (2001) 206 CLR 650.

7 By reason of my conclusion on relevance, it is not necessary to determine whether or not a lay opinion under s78 of the Evidence Act 1995 extends to a “matter or event” which is not itself relevant. (Compare R v Leung and Wong (1999) 47 NSWLR 405 at [31]-[34] and see at [1] and [67]; Smith v The Queen, supra at [60]; Odgers, Uniform Evidence Law (5th ed) Law Book Company 2002 at para 1.3.4180; Anderson, Hunter and Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Act, Butterworths 2002 at para 78.15).

8 In any event, in my opinion, his Honour was entitled to reject the line of cross-examination by applying s41 of the Evidence Act. The difficulties encountered by complainants in sexual assault cases in the criminal justice system has been a focus of concern for several decades. Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.

9 It is rare indeed for virtually the whole of a criminal offence to be recorded on videotape for presentation as evidence in a trial. That is what happened in this case.

10 Perhaps there was some scope for suggesting that the criminality of the conduct transparently revealed on the videotape was somehow modified by something that occurred between the short period recorded when the complainant and the Appellant appeared fully clothed and the long course of subsequent sexual activity, during which the Appellant periodically topped up the stupefying substances which plainly rendered the complainant incapable of consent. Nothing in a cross-examination directed to what actually appeared on the videotape, in my opinion, had any relevance to what occurred during any such period.

11 However, even if I were wrong as to the issue of relevance, the line of questioning involving the complainant interpreting her own conduct was, in my opinion, unduly harassing, offensive and oppressive within s41(1)(b) of the Act.

12 Section 41, of course, operates on the assumption that there is an element of relevance in the line of questioning. Even assuming, contrary to the opinion I have expressed, that there was some relevance, its probative force was so slight that even a small element of harassment, offence or oppression, would be enough for the Court to exercise its discretion under s41(1)(b). However, in the present case, the line of cross-examination inviting the complainant to interpret the transcript of the videotape in which she was depicted, but of which she had no material recollection was, on any objective analysis, highly distressing.

13 The words of s41 direct attention to the effect of questioning upon the witness. In a sexual assault matter, it is appropriate for the Court to consider the effect of cross-examination and of the trial experience upon a complainant when deciding whether cross-examination is unduly harassing, offensive or oppressive. In the present case, that standard was clearly exceeded.

14 DOWD J: I have had the advantage of reading the draft judgment of Spigelman CJ and Adams J.

15 I agree with the proposed orders of Adams J and his reasons therefor. I also agree with the reasons of Spigelman CJ.

16 ADAMS J: On 5 April 2000 the Appellant was convicted after trial of offences of having sexual intercourse without consent, administering a stupefying drug with intent to commit an indecent assault and indecent assault. The sexual intercourse was cunnilingus and the third the touching of the complainant’s genitals. In respect of the sexual intercourse offence the Appellant was sentenced to a fixed term of four years’ imprisonment commencing on 16 February 2002, in respect of the indecent assault to a fixed term of six months also commencing on 16 February 2000 and, in respect of the drugging offence, to a term of eight years’ imprisonment commencing on 16 February 2000, with a non–parole period of six years, expiring on 15 February 2006. The Appellant appeals to this Court against his conviction and seeks leave to appeal from his sentence.

The conviction appeals

17 It was uncontested that much of the relevant interaction between the complainant and the Appellant had been recorded by the use of a portable video camera. The prosecution relied on this recording, discovered by police after the Appellant’s arrest, for the purpose of proving the sexual conduct, the administration of the drugs and the their effect on the complainant. The defence relied on the recording to prove that the complainant consented both to the administration of the drugs and the sexual activity she later complained about. At the time of the offences, the Appellant, then twenty-seven years old, was in his first year as a medical resident at Liverpool Hospital and had lived as a boarder for over a year at the home of the complainant’s mother, where also the complainant lived. He had, on several occasions, treated members of the complainant’s family, including the complainant, with injections for various conditions. The complainant, who was twenty-one years of age, worked as a carer for elderly persons.

18 The complainant denied that she had any romantic interest of any kind in the Appellant and emphatically denied suggestions put to her in cross-examination that there had been prior sexual contact between them. She had a boyfriend at the time of the offences. The Appellant did not give evidence and there was no evidence from which it could have been inferred that the complainant’s evidence in this regard was untrue.

19 On the evening of 8 June 1996, the Appellant returned earlier than expected from a trip to India, while the complainant’s mother was herself overseas. He brought some trinkets as gifts, including a sari, for the complainant and gave them to her that evening. She put the sari on and watched a video of his trip in his bedroom. He made a short recording of the complainant and himself sitting on his bed in his bedroom. This showed some signs of physical affection, but no sexual conduct. The Appellant asked the complainant to marry him, but she refused, saying that she was too young and not interested in marriage. They talked for some hours, the complainant eventually going to bed, in her own bedroom, at about 6am. The complainant eventually rose at about 2pm. The Appellant told her that he should give her an injection. Before he went overseas he had mentioned that, when he returned, he would need to vaccinate her against the possibility of becoming infected with any disease that he might pick up whilst in India, saying that she might pass it on the old people she worked with. Accordingly, she agreed. He injected her in the upper arm and gave her some tablets to take to relieve the pain from the injection. The complainant said that, from that point, she had no memory of what occurred except waking up briefly twice. On the first occasion, she found a cannula taped to the back of her wrist, asking what it was for and being given tablets to take. The tablets were “very similar”, she said, to the oxazepam tablets that had been tendered. (Shortly after the complainant went to the police, a blood sample was taken, showing oxazepam residue.) The complainant said she felt “sort of semi-conscious”. She recalled she was on the floor in the Appellant’s bedroom, wearing only a tee-shirt. On the second occasion, she said she found herself lying on the floor and said to the Appellant that she had to go and wash her hair. He told her not to move since she had “sort of had a cardiac arrest and you have stopped breathing”. She said she did not believe him and recalled that the Appellant rewound the video and showed her the part where he was trying to resuscitate her. The complainant said she remembered nothing else.

20 In fact, the complainant had been in the Appellant’s company, he naked and she almost so, for something in the order of two hours. He had performed oral intercourse and other acts of sexual intimacy on her during this period. As I mentioned, this was video recorded. There was also some conversation between them. If one considered only the words spoken as appeared in the tendered transcript, it might be possible to make a strong case that the complainant was, at some points, both able to and did give consent to ingestion of some drug and acts of an intimate character, such as caressing her breasts and masturbating the Appellant. However, the depiction in the video recording gives an altogether different picture of events, especially if the jury accepted, as they were certainly entitled to do, the evidence of the complainant, in substance, that although she did voluntarily take what she thought was a vaccination and pain-killing tablets at the outset, at the Appellant’s suggestion, she was thereafter so affected that she was unaware and had no memory of the insertion of the cannula, later administrations of other drugs and the sexual conduct performed on her by the Appellant. Traces of propofol were found in the complainant’s blood sample, whilst the Appellant himself identified midazolam as being injected via the cannula. The undisputed medical evidence was that the drugs administered by the Appellant would have a profound effect on the ability of the person to whom they were administered to retain memories, especially short term memories, so that he or she would not be expected to remember very much of what had happened while the drugs were being ingested for a period of probably an hour or two after the last dose. Even memory of what occurred in the minutes or even hour leading up to the first dose may be adversely affected. Generally speaking, the drugs that were administered to the complainant were sedatives used, amongst other things, to make patients cooperative, suggestible and compliant (behaviour very evident on the video), especially when it is proposed to undertake painful procedures, such as relocating a dislocated shoulder, that a patient might otherwise resist; the ability to make rational decisions will also be markedly impaired and the patient become confused and disorientated. However, the actual effects of the drugs on particular individuals was, to some extent, uncertain and the degree to which their higher or cognitive functions – those dealing with knowledge and consent – were impaired varied, possibly significantly. Considering the nature of the drugs, it strikes me as fantastic to suggest that the complainant willingly took them as some kind of experiment. Nor was it suggested in cross-examination that there had been a prior conversation in which this experiment had been agreed to, let alone that the nature and likely effects of the drugs had been explained to the complainant. It goes without saying that no such conversation was recorded: the video commences with the complainant almost naked and the Appellant completely so, except for his socks.

21 Counsel for the Appellant at trial, Mr Zahra SC, cross–examined the complainant extensively, amongst other things, on the activities depicted in the video recording. A number of matters were put to her as having occurred during that period. In substance, the complainant’s response was that she was unable to remember whether they occurred or not. It was suggested to the complainant on a number of occasions that she remembered more than she claimed and was lying about the extent of her memory loss. The complainant denied these allegations. Mr Zahra put it to the complainant that she had consented both to experimenting with drugs and the acts of sexual intimacy that occurred between her and the Appellant. The complainant emphatically denied these suggestions.

22 Mr Zahra then put to the complainant a number of incidents as set out in the transcript of the video recording, asking, in effect, whether they showed that she was aware of and consenting to what had occurred. Sperling J, in the absence of the jury, pointed out that asking the complainant to express an opinion about her own state of mind that depended, not on her own recollection (of which, she said, she had none) but on the transcript and her recollection of the video did not appear to him “to be an approach designed to adduce evidence of any fact or…admissible lay opinion evidence.” Mr Zahra submitted that the line of questions was “only embarked upon…with a view in fairness of giving [the complainant] the opportunity to…say something different about what is represented on the tape.” Mr Zahra said, in effect, that if the prosecutor did not suggest to the jury that his foreshadowed submissions that the video tape demonstrated that the complainant had indeed consensually participated in the events depicted, were not fair because the particular matters relied on had not been put to her, he would not need to persist with the questions. The prosecutor so indicated. It appeared that Mr Zahra agreed that it was unnecessary for him to press his questions. However, following the afternoon adjournment Mr Zahra revisited the matter. He indicated that he wished to take the complainant to portions of the transcript where, for instance, she requested further drugs and put it to her that this indicated that she was indeed intending to experiment with drugs. The prosecutor objected to such questions and others of the same import upon the ground, in substance, that the complainant was being asked to give an opinion about her state of mind when under the influence of the drugs, an opinion which she was not qualified to give, rather than being asked about her recollection of her state of mind. Mr Zahra did not submit that this characterisation of the proposed line of questioning was inaccurate or unfair or that he should, in fairness to his client, have been permitted to cross–examine as foreshadowed or that the defence was precluded from any forensic advantage that might otherwise have been reasonably and properly derived from it. It was no doubt implicit in his submission that the questions were proper but he advanced no process of reasoning that sought to demonstrate what might be gained from the complainant’s opinion about her state of mind that was relevant to the issues in the trial.

23 Sperling J ruled that the prosecutor’s objection coincided with his own view and, hence, that the line of questioning was inadmissible. This ruling gave rise to the first ground of appeal –

The learned trial judge erred in deciding that counsel for the Appellant could not examine the complainant on aspects of the videotaped recording in which she was depicted together with the Appellant.

24 In this Court it is submitted that Sperling J erred in precluding cross–examination of the complainant designed to elicit her opinion of her state of mind as demonstrated by the transcript and the video recording. It is argued, in effect, that confronting the complainant with what appears to be her consensual and voluntary conduct as demonstrated in the transcript and, if she wished it, on the video and obtaining her opinion about it, hopefully to the effect that it seemed as though she was, in fact, consenting to what was happening and was not so adversely affected by drugs as to render her involvement involuntary, was an appropriate forensic undertaking of potentially significant assistance to the defence. To my mind, the mere statement of the argument is sufficient refutation of its validity. An opinion as to the possible conclusions of an observer is an opinion about an irrelevant matter. The opinion gains nothing by being expressed by a participant who has no recollection of the events, even though it is that participant’s state of mind which is in issue. The question must assume that the participant either has no recollection or that she does have a recollection. In both events, the answer is useless: in the former case, because the lay opinion is irrelevant; and, in the latter case, because the question does not seek her recollection. Moreover, asking a question that assumes a fact that has been denied by the witness will almost certainly be unfair and, in the circumstances here, would have also have been oppressive. I respectfully agree with the observation of Sperling J that, however cast, the proposed questions invited irrelevant answers.

25 In this Court, Mr Byrne SC, for the Appellant, submitted that the opinion of the complainant as to her state of mind as shown on the video, as distinct from her personal awareness was admissible under s79 of the Evidence Act 1995, which provides –

“79. Exception: opinions based on specialised knowledge
If a person has specialised knowledge based on a person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

26 Mr Byrne submitted, in substance, that the complainant had experience of her own thoughts and behaviour and was thus well placed to give an opinion about what she was experiencing from observing her behaviour on the video, although she had no memory of it. The relevant issue was the extent to which she was able to and did consent to what occurred. The assumption was that she had no actual knowledge of her experience at the relevant time. There was no basis for inferring that the complainant had ever seen people apparently affected by drugs, let alone having herself been in such a situation before. Her opinion was thus no better than any other lay witness and, certainly, could not inform the jury as to the judgment that it needed to make on the matter. Moreover, the complainant’s evidence was irrelevant. In Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) held that evidence of police officers, who had previous dealings with the Appellant, that his face was depicted in a blurred security camera photograph was irrelevant, it being clear that the circumstances of those dealings gave them no advantage over the jury in making the comparison between the Appellant and the person shown. Once it is understood that the complainant was being asked to interpret the transcript or the video depiction upon the (inevitable) assumption that she had no recollection – or no relevant recollection – of the events herself, so that she was a mere lay observer, the irrelevance of her opinion is manifest. The nature and extent of psychological effect shown on the video was a matter for medical and not lay evidence; whether the video showed free and voluntary consent or otherwise was not a matter for opinion evidence. The proposed questions would not only have deflected the jury from the true issue, namely, the effect of the drugs on the complainant, to a false issue, namely whether the complainant thought that it seemed as though she was consenting, but would have been oppressive and unfair to the complainant. It is, perhaps, worth observing that counsel never sought – for obvious reasons, I think – to play each part of the video to her and ask if her memory of the events was refreshed, although the transcript, considered alone, gives a very partial and misleading representation of the actual events. I also think it fair to observe that, having watched the video myself, I do not see how any fair-minded person could have concluded, having regard also to the medical evidence, that it was reasonably possible that the complainant’s ability to give free and voluntary consent was not completely compromised by the drugs that were administered to her by the Appellant. I am sceptical that Browne v Dunn (1894) 6 R (HL) 67 required Mr Zahra to put to the complainant that it seemed from the transcript or from the video that she had consented. However, that issue was very sensibly disposed of by the prosecutor’s concession. Mr Byrne submitted that that the relevance of the line of questioning for which he contended was that it had been undertaken in the committal proceedings and the Magistrate refused to commit for trial, referring to the complainant’s opinion that the video showed that she was apparently consenting. In fact, this is to misconstrue the learned Magistrate’s observation. At all events, Mr Byrne pointed to no particular answer given by the complainant that had any utility. It should be self-evident that the Magistrate’s view about the complainant’s opinion is irrelevant. In the end, Mr Byrne’s contention was no more than that the Appellant lost the advantage of an advocate’s flourish.

27 The second ground of appeal against conviction was –

The verdict of the jury was unreasonable, having regard to the evidence.

28 No separate argument was directed to this ground of appeal. I do not propose to rehearse the evidence. It is clear enough from what has already been set out that the prosecution case was a strong one. The prosecution’s case was not that the complainant was drugged into insensibility but that her mental functions were so impaired that she did not give free and voluntary consent to what the Appellant did to her. The extent of that impairment, or lack of it, was to an large degree depicted on the video. However, its true significance could not be assessed without reference to the other evidence in the case, including in particular both the complainant’s evidence as to what preceded the recording, what her own recollection was in those brief moments she actually recalled and the medical evidence, which was not materially challenged. The credibility of the complainant was not adversely affected in any significant respect either by cross-examination or any of the other evidence in the case. The jury was entitled to believe her and interpret the video as providing substantial support for the prosecution case. Having come to this conclusion, the circumstances did not permit, in my view, of any doubt that the Appellant knew well that such consent as the complainant might have given was neither free nor voluntary. In the result, I am quite satisfied that “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487 at 493.

29 I propose, therefore, that the appeal against conviction should be dismissed.

The sentence appeal

30 The applicant also seeks leave to appeal against his sentence. The grounds are that the learned sentencing judge erred in giving little weight to the applicant’s loss of prospects of employment as a doctor, that the principles in Pearce v The Queen (1998) 194 CLR 610 were not correctly applied, that his Honour should have found that special circumstances were present justifying a departure from the statutory calculation of the non-parole period and that the sentence overall was excessive in all the circumstances, including the relevant subjective features.

31 It was submitted that that the applicant’s position was markedly different from that of the medical practitioner who has abused his or her position of trust in relation to the patient. It was argued that the real association between the applicant and the complainant was not that of doctor and patient but merely that they shared the same house. Sperling J said the applicant’s conduct was an “abuse of the professional privilege of access to these drugs and abuse of a professional role…to trick the victim into what occurred”. His Honour summed up the position as “the abuse of a position of trust, both professional and personal on a family level”, noting that “the bare fact of the administration of a general anaesthetic agent by a medical practitioner in order to enable him to perform a sexual act without consent leaves one aghast”. To my mind, his Honour’s characterisation of the applicant’s offences was entirely justified. It was also and obviously dangerous.

32 Mr Byrne SC further submitted that it was necessary for Sperling J to take into account in reduction of the term of imprisonment the loss by the applicant of his future career prospects as an important consequence of his conduct. Certainly, loss of professional prospects is a real and significant aspect of punishment and should not be ignored. His Honour adverted to this matter but observed that, where the offences involved the abuse of the offender’s professional position, the loss of the privilege was a “collateral penalty” and was not “significant mitigation” in the sense, as I understood him, that it should reduce by much the sentence that was otherwise appropriate in the circumstances of this case. I would not infer that Sperling J disregarded entirely the loss of professional status. Since abuse of the applicant’s professional position is (unarguably) a serious aggravating factor, I do not see how the fact that this position will be foreclosed to him should be a significant mitigating factor. It is a necessary consequence of the requirement that the responsible professional body ensure that the public is protected, and is not imposed as a punishment. I would reject this ground.

33 So far as the Pearce point is concerned, Sperling J said –

“I am required to determine, first, the sentences I would fix for each offence in isolation. The offences were so closely related that the exercise is virtually impossible and certainly futile, but I am obliged to do it as best I can. Were I sentencing for each offence in isolation, I would fix a sentence of imprisonment for four years, five years and six months respectively for the offences in order of the charges.”

34 Mr Byrne SC submits that the offences were all part of the same episode and thus should have been imposed as concurrent sentences but that, if some accumulation was necessary, the process should not have resulted in such an increase as the head sentence of eight years represents, being almost the entire accumulation of the first two sentences. He submitted that, on the assumption that the individual sentences for all offences were rightly assessed by his Honour, the principle of totality should have resulted in a significantly more modest accumulation than was imposed. In my opinion, this submission does not give sufficient weight to the consideration that the two sexual assaults, especially the act of sexual intercourse, were not only serious offences but were substantially different in kind from the second count, which did not contain as an element any act of sexual intimacy. The mere fact that a number of offences are committed in the course of a single episode of criminality does not mean that sentences should necessarily be concurrent: it means that the ultimate effect of the sentences should not exceed the total criminality involved. Much depends on the crimes actually committed. To my mind, committing sexual offences whilst the victim has been drugged adds a significant degree of culpability to the administration of the drug intending to commit the offence. It is also relevant to note that the intended offence alleged in the second count was indecent assault, whilst the applicant committed both sexual intercourse and an indecent assault. The applicant’s criminality was all the more grave, in my view, because the administration of the drugs was potentially injurious of itself and in fact caused so serious a degree of unconsciousness as to necessitate resuscitation. Furthermore, the deterrent effect of a slight accumulation, as proposed by the applicant, would be significantly eroded. Having administered the stupefying drug, the offender would then suffer little more punishment by moving to the next step and actually committing the intended or other sexual assaults. I consider that the distinction between the offences is real and punishment for both should reflect the considerable additional criminality involved in fulfilling the intention with which the drug is given.

35 The sentence of five years (as initially proposed by his Honour and ultimately increased to eight years) in respect of the second count is, to my mind, lenient, especially having regard to the danger of causing serious injury as evidenced by the complainant’s collapse. However, there is no appeal by the Crown against this sentence and it is not necessary to consider whether it is manifestly too lenient. I have no doubt that the effective overall sentence imposed by Sperling J of eight years’ imprisonment was no more than appropriate. However, it seems to me, with respect, that the structure of the sentence – the penalty imposed on the second count clearly covering the offences in the first and, possibly the third counts and thus doubling up – did not comply with the requirements set out in Pearce. Accordingly, I propose that leave to appeal be granted and the appeal allowed, the sentences quashed and substituted therefor the following sentences –

(i) on the second count: a term of imprisonment of five years to commence on 16 February 2000 and expire on 15 February 2005;
(ii) on the first count: a term of imprisonment of four years to commence on 16 February 2004 and expire on 15 February 2008; and
(iii) on the third count: a term of imprisonment of six months to commence on 16 February 2004 and expire on 15 August 2004.

36 Sperling J did not find that there were special circumstances that justified a departure from the calculus prescribed in s44(2) of the Crimes (Sentencing Procedure) Act 1999. It is submitted that the offender’s relatively young age (thirty-one at the commencement of his term of imprisonment), his clear past record, his personality issues connected with deficient social skills, the physical disability associated with his protruding teeth and the difficulty of coping with the gaol environment were special circumstances that required a reduced non-parole period. I am not persuaded that his Honour erred in declining to find, in effect, that there were special circumstances justifying such a departure. To the contrary, I consider that the period of two years’ parole allowed by his Honour was appropriate in all the circumstances. I would propose, therefore, that the offender be eligible to be released on parole on 15 February 2006.

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Last Modified: 07/31/2003