R v Tonari
[2014] NSWCCA 232
•29 October 2014
Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: R v Tonari [2014] NSWCCA 232 Hearing dates: 20/06/2014 Decision date: 29 October 2014 Jurisdiction: Criminal Before: Johnson J at [1]
Harrison J at [2]
Garling J at [3]Decision: Crown appeal dismissed
Catchwords: CRIMINAL LAW - appeal - sentence - Crown appeal - five offences against Crimes Act 1900, s 61I - two offences against Crimes Act 1900, s 61L - aggregate sentence - head sentence 4 years - non-parole period of 2 years 6 months - CRIMINAL LAW - appeal - sentence - whether sentencing judge failed to give proper consideration to accumulation, concurrency and the principle of totality - indicative sentences - finding offences were part of overall act of sexual aggression - need to acknowledge separate harm done by different criminal acts - reasons for accumulation and concurrency explained by indicative sentences - reference to totality - no discrete error of law - CRIMINAL LAW - appeal - sentence - whether sentencing judge failed to give any weight to personal deterrence and general deterrence - not specifically identified - referred to objects of sentencing - particular of manifest inadequacy - no discrete error of law - CRIMINAL LAW - appeal sentence - manifest inadequacy; whether - specific and general deterrence - not likely to re-offend - good prospects of rehabilitation - delay after verdict - length and terms of bail - factors to be taken into consideration - strong subjective case - objective seriousness - not above mid-range - aggravating factors - offences occurred in victim's home - accumulation - each offence individually serious - variation of statutory ratio - manifestly lenient - error of law - CRIMINAL LAW - appeal - sentence - residual discretion not to intervene - evidence on appeal - hardship in custody - obsessive-compulsive disorder - no medical treatment - victim of assaults - limited English - difficulty communicating - lengthy and difficult time on bail awaiting sentence - residual discretion exercised - appeal dismissed Legislation Cited: Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022
Butler v R [2012] NSWCCA 23
Church v R [2012] NSWCCA 149
Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166
Tonari v R [2013] NSWCCA 232Category: Sentence Parties: The Crown (Appellant)
Nobutomo Tonari (Respondent)Representation: Counsel:
V Lydiard (Appellant)
H Dhanji SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Yukio Hayashi & Associates (Respondent)
File Number(s): 2011/195938 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2013-12-10 00:00:00
- Before:
- Phegan ADCJ
Judgment
Johnson J: I agree with Garling J.
Harrison J: I agree with Garling J.
Garling J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912, against an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months, imposed in the District Court by Phegan ADCJ on 10 December 2013.
The respondent, Nobutomo Tonari, was found guilty by a jury of five counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900, and two counts contrary to s 61L of the Crimes Act of indecent assault.
First Appeal
Mr Tonari appealed against his convictions with respect to all seven counts. For the reasons which were given, the Court of Criminal Appeal upheld the appeal with respect to Counts 1, 3, 4 and 5, involving the convictions of Mr Tonari for offences against s 61J(1) of the Crimes Act. In respect of each of those counts, it substituted a verdict of guilty of offences against s 61I of the Crimes Act of having sexual intercourse without consent: Tonari v R [2013] NSWCCA 232.
The Court of Criminal Appeal pursuant to s 12(2) of the Criminal Appeal Act remitted the whole of the proceedings to the District Court so that Mr Tonari could be sentenced for the five offences under s 61I of the Crimes Act, and the two offences under s 61L of the Crimes Act, in respect of which his appeal against conviction was dismissed.
Accordingly, when Mr Tonari came to be sentenced in December 2013 he was sentenced for five offences contrary to s 61I of the Crimes Act, and two offences contrary to s 61L of the Crimes Act. The maximum penalty for an offence against s 61I of the Crimes Act is imprisonment for 14 years. There is an applicable standard non-parole period of 7 years. The maximum penalty for an offence against s 61L of the Crimes Act is imprisonment for 5 years. No standard non-parole period applies to this offence.
Sentence Imposed
Phegan ADCJ imposed a single aggregate sentence in respect of all seven offences. That sentence was one of 4 years imprisonment commencing on 20 July 2013 with a non-parole period of 2 years and 6 months imprisonment expiring on 19 January 2016.
In respect of each of the seven counts, Phegan ADCJ gave indicative sentences. They were as follows:
Count No.
Short description of offence
Indicative sentence
1.
Sexual intercourse without consent on 12 May 2011
2 years 8 months imprisonment with a non-parole period of 2 years.
2.
Indecent assault on 12 May 2011
Bond
3.
Sexual intercourse without consent on 12 May 2011
1 year 6 months imprisonment with non-parole period of 1 year
4.
Sexual intercourse without consent on 12 May 2011
2 years 8 months imprisonment with a non-parole period of 2 years
5.
Sexual intercourse without consent on 12 May 2011
3 years 4 months imprisonment with non-parole period of 2 years 6 months
6.
Indecent assault on 12 May 2011
1 year imprisonment fixed term
7.
Sexual intercourse without consent on 12 May 2011
3 years 4 months imprisonment with non-parole period of 2 years 6 months
Crown Appeal
The Crown gave notice of its intention to appeal by filing a Notice of Appeal on 8 January 2014. At that time it contended that the sentence pronounced was manifestly inadequate.
On 15 May 2014, the Crown filed Amended Grounds of Appeal setting out five grounds. They are as follows:
(1) Having found that the objective seriousness of the offending behaviour was in the middle of the range, the sentencing Judge failed to have proper regard to the standard non-parole period of seven years.
(2) Having given an indicative sentence for each offence his Honour failed to give proper consideration to the issues of accumulation and concurrency and the principle of totality.
(3) His Honour failed to give any weight to personal deterrence and general deterrence.
(4) His Honour erred in varying the statutory ratio, having found special circumstances, to an extent that resulted in the non-parole period not properly reflecting the objective seriousness of the offending behaviour.
(5) The aggregate sentence imposed was manifestly inadequate.
Facts of the Offences
The following is a sufficient account of the facts, taken from the Remarks on Sentence of the sentencing Judge.
The victim, MT, was a 29 year old Japanese woman who had come to Australia at the beginning of 2011 for a working holiday in order to improve her English. The respondent, Mr Tonari, was at the time 28 years of age, and was a Japanese citizen who had come on a working visa to Australia.
The two first met at an organisation which had been set up for the purpose of helping Japanese visitors to Australia to improve their English language skills and any other matters upon which they required assistance.
Having met at that organisation, and having had further contact, Mr Tonari and the victim exchanged telephone numbers and made arrangements to meet for a cup of coffee on the afternoon of 11 May 2011.
After the cup of coffee, and a visit to a shopping centre, Mr Tonari and the victim went to the apartment where the victim lived. Mr Tonari had indicated that he would prepare an evening meal for them.
After the meal was concluded, and the two were talking in the living room of the apartment, Mr Tonari invited the victim to come and sit next to him on the sofa where he was already sitting. She complied with that request but when he made sexual advances to her, she resisted them.
The conversation continued until well beyond midnight when the victim suggested to Mr Tonari that it was time for him to go home. Mr Tonari left the apartment in order to catch a bus. Soon after there was a telephone call during which Mr Tonari informed the victim that there were no buses running and asked if he could to return to the apartment to sleep there for the night.
Mr Tonari was readmitted by the victim upon condition that he would sleep on the couch in the living room. The victim then showered and changed in readiness for bed, retired to her room for the evening and went to sleep.
Sometime later, after she had fallen asleep, the victim awoke to find Mr Tonari lying on top of her and pushing her down on the bed. There was some argument about money and threats were made by Mr Tonari.
The victim said she was scared of Mr Tonari and complied with whatever he told her to do. At one stage, she screamed whilst she was being held down by her neck. Mr Tonari punched her in the stomach in retaliation.
Mr Tonari then started to remove his jeans and continued, forcefully, to tell the victim to be quiet. He then forced the victim to engage in fellatio for about one minute. This incident constituted Count 1 on the Indictment.
Mr Tonari then lifted up the victim's nightdress and underclothing and exposed her breasts which he proceeded to lick for a short time. This constituted the first indecent assault which was contained in Count 2.
Whilst still lying on top of the victim, Mr Tonari digitally penetrated her vagina for a short time. This constituted Count 3.
Mr Tonari then kissed the victim on the mouth, in a particular way, which constituted the second act of indecent assault contained in Count 6 of the Indictment.
Again, during the course of this episode of assault, Mr Tonari forced the victim to engage in fellatio for a relatively short period of time of about one minute. This constituted the act of sexual assault referred to in Count 4 of the Indictment.
Following this, Mr Tonari removed his penis from the victim's mouth and engaged in penile/vaginal intercourse. During this episode of intercourse, he removed and reinserted his penis. This constituted the sexual assault referred to in Count 5 of the Indictment.
Finally, having removed his penis from the victim's vagina, Mr Tonari put his penis into the victim's mouth and ejaculated. This was the last act of the counts of sexual assault covered in the Indictment, and constituted Count 7.
According to the victim, after the last of these acts of sexual intercourse, Mr Tonari changed his mood, calmed down and soon after that fell asleep. The victim went to the toilet and noticed that there was some bleeding from her vagina. She contemplated escaping from the unit but feared that Mr Tonari would prevent her from doing so physically and she therefore returned to bed.
In the morning there was some further discussion in which the victim questioned Mr Tonari about why he would do to her what he did, following which Mr Tonari left the unit.
The victim telephoned her mother in Japan and reported what had occurred. She also reported the assault to her host mother in Sydney, who called the police. The police attended. She was taken to hospital where she was examined, and then later made a statement to the police.
The medical examination identified bruising to the victim's neck and other parts of the body and the existence of genital abrasion consistent with forceful penetration.
The case of Mr Tonari at trial, which the jury clearly rejected, was that all of the sexual contact between him and the victim was consensual. It was his case, which must also have been rejected by the jury, that the victim's allegations of non-consensual sex of various kinds was the consequence of her determination to obtain compensation on the basis of deliberately false allegations. This was, according to evidence given by a Japanese professor of law, a common practice in cases of alleged rape in Japan.
The sentencing Judge in his Remarks noted that both the issue of consent to the various counts of sexual intercourse, and the issue of a desire for compensation, had been rejected by the victim in evidence.
The verdicts of the jury necessarily meant that the account given by Mr Tonari was rejected. The sentencing Judge proceeded upon a determination of facts which also found that the account was incorrect.
Remarks on Sentence
Having recounted the history of the proceedings, the facts to which I have made reference and the first judgment of the Court of Criminal Appeal, his Honour proceeded to deal with the question of sentence.
He commenced by noting the maximum sentences and the existence of the standard non-parole period. Having referred to a number of authorities, his Honour expressed his approach as being one in which he treated the standard non-parole period as a guideline or a yardstick with respect to the appropriate sentence. His remarks in this respect were unexceptional.
His Honour then proceeded to make an assessment of the objective gravity of the overall offences and, in so doing, dealt collectively with all of the offences. His Honour noted that the offences had occurred over a relatively short period of time. He noted that the offences involved Mr Tonari physically restraining the victim and threatening her in a way which was sufficient to cause her to submit to the offences.
He also noted that on two occasions in the course of the sexual assaults, the offender had struck the victim.
His Honour then expressed the view that the objective seriousness of the offences, in total, would not
"... certainly rise above what used to be described, although these terms are now not necessarily used, the midrange of objective seriousness."
His Honour then considered various of the factors referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999. His Honour noted the following aggravating factors:
(a) the existence of verbal threats of violence: s 21A(2)(b);
(b) the offence was committed in the home of the victim: s 21A(2)(eb). His Honour noted that this was an aggravating factor because the victim was entitled to feel secure in her home. However, he noted that the entry by Mr Tonari into the victim's home was not a violent intrusion, but had occurred by consent; and
(c) his Honour noted the injury, emotional harm, loss or damage caused by the offence by reference to the Victim Impact Statement: s 21A(2)(g). His Honour expressed the view, having considered the Victim Impact Statement, that he did not think that this particular factor was a significant aggravating factor over and above the consequences which would otherwise be expected to occur.
His Honour then turned to consider the mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act. His Honour noted the following:
(a) the offence was not part of a planned or organised criminal activity, but was rather a spontaneous event: s 21A(3)(b);
(b) that Mr Tonari did not have any criminal record in Australia or in his home country of Japan, and that he was a person of good character: s 21A(3)(e)(f);
(c) his Honour then turned to consider whether Mr Tonari was unlikely to reoffend, whether he had good prospects of rehabilitation and whether he had shown remorse: s 21A(3)(g)(h)(i).
His Honour noted that these factors were interconnected. He further noted that although Mr Tonari maintained his innocence of the charges, and maintained that the episode was entirely consensual, he was able to assess his prospects of rehabilitation largely by reference to a Pre-Sentence Report of 1 November 2012. His Honour noted the assessment was that the risk of reoffending was low to moderate. His Honour found that the offender was likely to be responsive to attempts at rehabilitation. He said that he was satisfied that the likelihood of re-offending was very low. He noted that there had been no expression of remorse, but regarded that factor as being of no particular weight.
His Honour then turned to consider other matters which subjectively bore upon the sentence which was to be imposed. He noted the reports of a psychologist, Mr Anthony Diment. The first of Mr Diment's reports was dated 28 October 2012. The second was dated 29 November 2013.
The first matter which his Honour took into account was that Mr Tonari had a condition known as an obsessive compulsive disorder. This was apparently a condition which had emerged during his high school years, but which had been under control prior to the events in question. His Honour noted that the condition had re-emerged as a consequence of the offences, and the events which had occurred since that time.
His Honour noted that Mr Diment's view was that the condition required treatment and that such treatment was not available to a person in full-time custody. Whilst his Honour did not accept that treatment of an appropriate kind would not be available, he did accept that the consequence for Mr Tonari during any period spent in full-time custody was a negative one, namely that it would impact more harshly on his custody than would otherwise be the case.
His Honour also took into account, having regard to Mr Tonari's background and his limited language skills, and that this was his first time in custody, that the custody would be harsher than would otherwise be the case.
Additionally, his Honour had regard to the lengthy and protracted history of the proceedings and the fact that, having regard to the involvement of the Court of Criminal Appeal in the first decision with respect to conviction, the sentencing proceedings themselves took an extended period which was well over 12 months.
His Honour then went on to consider each Count and set out the indicative sentences which he proposed. Having set them out, his Honour then came to consider the process of evaluating the need for concurrency and/or accumulation. He said this:
"I have already noted in my description of the general circumstances of the offence that each of the acts were part of an unplanned and impetuous series of sexual acts all of which occurred over a relatively short period of time in rapid succession.
They were generally part of one overall act of sexual aggression and that therefore there is a justification for substantial concurrency in the sentences. Were that to be the end of the matter that would lead to an overall sentence of two and a half years non-parole period accompanied by ten months on parole, and I note in particular in that regard for that purpose all of the sentences for sexual assault under 61I are served concurrently and that the different sentences in the case of the two acts of indecency would require the sentence on count 6, that is the fixed term of imprisonment to be served concurrently with the non-parole period on the more serious offences and the s 9 bond to take effect from the commencement of the period on parole, that is on release from the non-parole period."
He went on to consider accumulation and said:
"In those circumstances I cannot accept that the sentence in that particular case [Count 5] can be totally absorbed in the sentences on the other matters and that therefore there should be an accumulation to the extent of an additional period of six months full-time imprisonment. That would therefore lead to a total, and again I emphasise at this stage taking a proper account of the principle of totality, a sentence of three years non-parole period accompanied by one year on parole."
His Honour then considered the question of special circumstances. He held that there were additional matters to those which he had taken into account on the sentence which justify an adjustment of the ratio between the non-parole period and the parole period. He noted that Mr Tonari was not fluent in English and that, on the evidence before him, this created difficulty communicating with Corrective Services officers and other inmates. He noted that Mr Tonari had difficulty in understanding announcements and instructions which were issued. He also noted that because of the nature of the offences, Mr Tonari had been placed in protective custody. He found that he was persuaded that Mr Tonari:
"... has found and will continue find full-time custody a disproportionately negative and difficult experience"
and held that this factor, together with the others, justified a finding of special circumstances.
His Honour further noted that given that Mr Tonari was a Japanese national who came to live in Australia on his own, imprisonment would take place in circumstances where his mother, father and wife, although they remained supportive of him, would be unlikely to be able to provide immediate support in the physical sense by visiting him more than once a year. His Honour then went on to say this:
"In all those circumstances, therefore, my view is that an appropriate sentence following all that I have already said and taking into account the special circumstances is a sentence of two years and six months of non-parole period and a further one year and six months on parole."
It is now convenient to consider each of the grounds of appeal of the Crown.
Although the grounds are specifically identified, the Crown Prosecutor, at the commencement of her oral submissions, acknowledged that:
"... in a sense they are particulars of ... ground 5 which is [that] the aggregate sentence as imposed was manifestly inadequate. What the Crown has sought to do is to identify how his Honour erred in coming to a sentence which ... is manifestly inadequate."
Thus, the ultimate question of substance for this Court is whether the sentence imposed was manifestly inadequate.
Ground 1 - Failure to have Proper Regard to the Standard Non-Parole Period
The Crown submits that, based upon the finding that the criminal conduct was in the mid-range of objective seriousness, the sentencing Judge
"... paid only lip service to the existence of a SNPP [standard non-parole period] which was applicable to five of the offences."
The Crown acknowledges in its submissions that the sentencing Judge in his Remarks highlighted the existence of the standard non-parole periods which were applicable, and the maximum sentences applicable.
The Crown also concedes that having done so, his Honour correctly identified the appropriate legal approach when he said:
"Taking into account what was said in those and other Court of Criminal Appeal decisions, in light of the High Court decision in Muldrock, I adopt the approach which does treat a standard non-parole period as a guideline or yardstick with regard to the appropriate sentence ..."
The submissions of the Crown seem to have two components. The first, the terms of the statute fixing the standard non-parole period, and secondly, a failure of the sentencing Judge to give adequate reasons for fixing a sentence significantly less than the standard non-parole period.
Ultimately, the Crown's submission on this ground is that in the circumstances:
"... the non-parole period as imposed for the aggregate sentence was manifestly inadequate."
The initial Crown submissions based upon the construction of the statute are in error and cannot be accepted. That is because the Crown, in its written submissions, has relied upon a version of s 54B of the Crimes (Sentencing Procedure) Act, which had been amended prior to the sentence being imposed, although the conviction had occurred earlier. During oral submissions, the Crown accepted that its reference to that version of the statute was erroneous.
The statute which existed at the time of the sentencing, and which the sentencing Judge was obliged to apply, simply required that the standard non-parole period for an offence is:
"... a matter to be taken into account by a court in determining the appropriate sentence for an offender ...".
The sentencing Judge clearly did. He said that he would, and did so, in accordance with the current legal approach.
The Court is required to make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period: s 54B(3) Crimes (Sentencing Procedure) Act.
The respondent submitted that the reasons which were given were entirely adequate. In fact, he submitted that the reasons, which were detailed and extended for over 30 pages, read as a whole, clearly indicated the basis upon which the sentencing Judge regarded the sentence which he imposed as one which was appropriate even though it was less than the standard non-parole period.
His Honour did not specifically describe one part of his reasons as being directed to complying with the Court's obligations under s 54B(5) of the Crimes (Sentencing Procedure) Act. Whilst an approach which does so has much to commend it, that is not required by the legislation. What is required is for this Court to determine whether it has, in the entirety of its reasons, complied with the provision. In my opinion, his Honour has done so, and the respondent's submissions on this issue should be accepted.
It is also appropriate to note that even if his Honour had not done so, such a failure does not invalidate the sentence: s 54B(7) Crimes (Sentencing Procedure) Act.
In my view, the sentencing Judge applied the correct test and took into account, in accordance with principle, the standard non-parole period. His Honour gave extensive reasons for arriving at his conclusion. I see no error of any specific kind as claimed in this ground of appeal.
The extent to which the sentencing Judge took the non-parole period into account, and the weight which he gave it, are matters that will ultimately be appropriately considered under the final ground of appeal dealing with manifest inadequacy.
I would propose that this ground of appeal be rejected.
Ground 2: Accumulation and Concurrency
The Crown submits by reference to the indicative sentences that, although the sentencing Judge expressly referred to the totality principle, the sentence ultimately imposed did not demonstrate that the sentencing Judge had given proper consideration to issues of accumulation and concurrency, and the principle of totality.
The Crown submits that the sentencing Judge's Remarks that an accumulation of 6 months between Counts 5 and 7, which were the most serious of the offences and which were both said by the sentencing Judge to be in the middle of the range of objective seriousness, was not addressed in the sentences actually imposed and that, in any event, there should have been a greater accumulation than a 6 month period. The Crown submitted that as the indicative sentences for each of Counts 5 and 7 were "light", they required a level of accumulation which would reflect the seriousness of the offending behaviour overall.
The Crown submits that the sentencing Judge adopted an unduly favourable approach for the applicant by finding that all of the conduct constituting the seven counts was:
"... generally part of one overall act of sexual aggression and that therefore there is a justification for substantial concurrency in the sentences".
It is always necessary, and the Crown so submitted, that when sentencing, the sentencing Judge recognises the need to acknowledge and have regard to the separate harm done by the different criminal acts of the offender. It is necessary when a court is sentencing for multiple offences for the sentencing court to have regard to the fact that there are multiple episodes of criminality. Often, but not always, total concurrency obscures the fact that different offences have been committed, and it does not necessarily recognise the total criminality involved. Thus, total or near total concurrency can often result in an overly lenient sentence.
For the Crown to succeed on this, as a separate ground of appeal, it needs to demonstrate an error of law.
His Honour clearly had regard to questions of accumulation and concurrency. He explicitly said so. He characterised the conduct in a particular way and applied, at least by reference to the individual indicative sentences, a degree of concurrency in reaching the total sentence which he ultimately imposed. The sentencing Judge achieved this result by increasing the non-parole period for one of the two more serious counts on the indictment (Count 7) by a period of six months.
In those circumstances it may be, as the Crown ultimately contends, the sentence imposed was manifestly lenient. However, I can detect no error of the kind alleged in his Honour's consideration of this question of accumulation and totality.
I would not be prepared to separately uphold the appeal on this ground.
Ground 3: Personal and General Deterrence
The Crown submits that his Honour gave no weight to factors of personal and general deterrence.
This ground is entirely based upon the sentencing Judge's failure to specifically identify general deterrence and specific deterrence as factors which he took into account. The mere failure to mention these undoubtedly relevant factors does not of itself, and without more, bespeak error. His Honour did refer in a general sense to the objects of sentencing in his Remarks on Sentence. This, at least by implication, suggests that his Honour had regard to general and specific deterrence.
This ground is best and appropriately dealt with as a particular of the final ground of manifest inadequacy.
I would not be prepared to separately uphold this ground, because I am not satisfied that the failure to mention these elements involved any error of law.
Ground 4: Variation of Statutory Ratio
The Crown submits that in circumstances where the sentencing Judge had found that special circumstances existed, his variation of the statutory ratio was to such an extent that:
"... the already inadequate sentence as proposed by his Honour was varied so that the aggregate non parole period in no way reflected the seriousness of the offending." (sic)
The Crown does not submit that a finding of special circumstances was not available to the sentencing Judge. Rather, it submits that by varying the statutory ratio to the extent which he did, the result is a sentence which is manifestly inadequate.
It is appropriate to regard this ground as being subsumed in the final ground of manifest inadequacy, and I will not separately deal with it here.
Ground 5: Manifest Inadequacy
This is the principal ground of appeal.
In persuading a court that sentences are manifestly inadequate, the Crown bears the obligation to show that the sentences are unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25: (2006) 228 CLR 357. It is insufficient for the Crown, in order to succeed on this ground, to show that the appellate court would take a different view from that taken by the sentencing Judge.
Any consideration of the sentence which was imposed, being a total sentence of 4 years with a non-parole period of 2½ years, needs to consider the context which has been discussed at length, namely the nature and extent of the criminal conduct involved in the seven counts, and that in respect of the five counts of conduct contrary to s 61I of the Crimes Act, that there is a maximum penalty of 14 years and a standard non-parole period of 7 years.
The Crown points to the fact that the respondent fell to be sentenced after a trial, and so there was no discount to be allowed by reason of any plea of guilty. Further, the Crown points to the fact that the sentencing Judge determined that the objective seriousness overall was, it submits, in the mid-range of objective seriousness.
With respect to this last submission, in the course of oral argument, the Crown accepted that the accurate way of describing the sentencing Judge's determination on this issue, was to say that he determined that the objective seriousness was not above the mid-range.
The Crown accepts that the sentencing Judge found, and that it was open to him so to do, that the respondent was not likely to re-offend and had good prospects of rehabilitation. However, the Crown submits that notwithstanding such a finding, the sentencing Judge is not entitled to ignore any issue of specific deterrence: see Butler v R [2012] NSWCCA 23 per Davies J at [18]; Church v R [2012] NSWCCA 149 per Button J at [48].
The Crown points in its submissions to the need not only for personal deterrence, but also general deterrence having regard to the nature of the offences. In addition, it submits that there was a substantial impact on the complainant and that all of these factors indicated that the sentence ultimately imposed was unreasonable or plainly unjust and, so, manifestly inadequate.
The respondent submitted that, although the sentence may be regarded as lenient, it was nevertheless within the bounds of the sentencing Judge's discretion.
The respondent pointed to the fact that there had been considerable delay after verdict, through no fault of the respondent, in imposing a sentence upon him. The respondent submits that delay is a potentially powerful mitigating factor on sentence: R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303. In particular, the respondent pointed to the fact that he was convicted on 27 August 2012, the sentencing proceedings commenced on 9 November 2012, but that he did not come back before the Court to be finally sentenced until 6 December 2013. The sentence was actually imposed a few days later on 10 December 2013. The respondent submitted that there was a period of about 2½ years which had elapsed between his arrest and his final sentencing for a large part of which (2 years and 2 months) he had been on bail.
The respondent submitted that the particular circumstances which attached to him during his period of bail should merit significant consideration. The respondent, noting that he was a Japanese national, submitted that during his period on bail he was not able to return home to Japan, and hence remained isolated from his wife and family. He was unable to work and was in effect largely confined to his residential accommodation.
Before the sentencing Judge, the Crown Prosecutor accepted that as a matter of principle, it was open to a sentencing Judge to take account of the length and terms of an offender's period on bail awaiting trial or sentence: R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166. In that case the Court was persuaded that there was:
"an obvious and significant disruption to the appellant's life and restrictions upon his liberty over a lengthy period as a result of the offence ...".
At [242] the Court said:
"We accept that in an appropriate case the length and terms of an offender's period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence."
The respondent, in submissions to this Court, also pointed to the strong subjective case which was advanced before the sentencing Judge. Mr Anthony Diment, a consultant psychologist, completed two reports which were before the sentencing Judge - the first in October 2012 and the second in November 2013. The first report was prepared after an interview with the respondent whilst he was in custody, and the second occurred whilst he was on bail.
Mr Diment took a history that since about the age 12 or 13, the respondent had been diagnosed with Obsessive-Compulsive Disorder ("OCD") which had been "controlled" prior to the respondent entering custody. OCD is a serious debilitating condition characterised by "obsessions" or thoughts that are intrusive and cause distress to an individual.
The respondent described his OCD in this way to Mr Diment:
"Mr Tonari stated that when aged about 12 he felt 'different' to others and told me for example if he ate a potato chip from a bag and someone else touched it he couldn't eat any more. He also was agitated if his belongings or possessions were not in' a nice and organised way'. He described 'compulsions' (repetitive behaviours which are attempts to reduce or neutralise the obsessions, often ritualistic in nature) involving 'lots of washing of hands'. ... Mr Tonari told me his cell-mate does not wash his hands after using the shared cell toilet and 'my anxiety goes way up as I don't want him to touch things - I have asked him to wash his hands on three occasions but he gets very irritated and I don't want to go any further than this. The food and cleaning here is not very good'."
With respect to his OCD, Mr Tonari told Mr Diment that he could control it much better when he was living by himself.
At the time he came to Australia, Mr Tonari had been married for four years to a woman who worked as a fashion model. They had no children. Because of her work, they spent a considerable time apart which seems to have caused some strain in their marriage.
According to Mr Diment, upon examination, testing and assessment, the respondent, by 2013 was in the moderate range of clinical anxiety and in the severe range for depression. Both of these assessments showed considerable deterioration from 2012. He was suffering a number of physical symptoms including sleep change and loss of appetite. Mr Diment recorded that throughout the period of time that Mr Tonari was on bail, he had not had any further treatment for his anxiety or depression, nor any medical management of his OCD. His ability was restricted to work on either a part-time or casual basis, and his shortage of funds meant that he was simply unable to afford any treatment for his psychological conditions and any likely medication costs.
Mr Diment concluded that Mr Tonari met the diagnostic criteria for Major Depression, and that the legal proceedings, the guilty verdict, and his period of incarceration had "re-triggered" his OCD which had previously been largely controlled.
Of this disorder, Mr Diment said:
"... he is at high risk of further serious de-compensation without professional intervention (psychiatric and psychological treatment on a continuing basis is the usual approach with this difficult to treat and debilitating condition). He is at risk in a custodial situation, given the nature of this disorder and the difficulty in enlisting the 'tolerant social support' required in its management and also of encountering difficulty with other in-mates in the strict Corrective Services regimes." (sic)
Senior counsel for the respondent pointed to the fact that any term of imprisonment would entail social and cultural isolation. He relied upon the fact that the respondent did not come to Australia for the purpose of committing crime, and hence there was no reason to reduce the weight which would otherwise be applicable to these matters. He submitted that it was open to the sentencing Judge to give this matter significant weight.
In all of those circumstances, senior counsel for the respondent submitted that it had not been demonstrated that the sentence was manifestly inadequate.
I am conscious that the power of this Court to substitute a sentence on the basis that the sentence pronounced by the sentencing Judge is manifestly inadequate, is not enlivened by reason of this Court considering that it would give greater weight to one or another element. I need to be satisfied that the sentencing Judge's discretion miscarried because in the result:
"... his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards." (references omitted)
Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022 at [24].
The objective seriousness of the conduct here was correctly regarded by the sentencing Judge as being no greater than the mid-range. The sentencing Judge correctly identified the aggravating and mitigating circumstances. It was of particular importance that the offence took place in the home of the victim into which the respondent had been invited but on condition that he remained on the couch during the night, a condition which he breached.
The offences for which the respondent was convicted, although they occurred in a relatively short space of time, nevertheless were each individually serious and needed to be considered in that respect.
Undoubtedly, the respondent had a strong subjective case. Taking all of these matters into account, I am unable to accept that the sentence imposed by the sentencing Judge was within a reasonable range. In my view, it was manifestly lenient.
In my view, in considering the question of totality of the criminality involved and giving due weight to each of the 7 counts, an overall sentence greater than that here involved was warranted and the imposition of the sentence demonstrates an error of law.
There are a number of reasons which justify this conclusion. First, some accumulation was required in order to achieve a proper sentence. Secondly, the subjective case, whilst important and weighty, needed to be properly balanced in the sentence and it appears to have been excessively weighted. Thirdly, the effect of the statutory non-parole period as a guidepost has not been given due weight. Finally, the sentence imposed does not pay due regard to general deterrence. These are all features which in combination have led to my conclusion of manifest inadequacy giving rise to an error of law of the requisite kind.
I would propose that this ground of appeal be upheld.
Residual Discretion
Under s 5D of the Criminal Appeal Act, this Court has a discretion to dismiss an appeal even though it has reached a conclusion that a particular sentence (or sentences) are manifestly inadequate.
The Court has, for the purpose of its consideration of this question, been provided with a number of affidavits. There was no challenge to the contents of the affidavits. The affidavit of the respondent, and also of his solicitor, provides ample evidence that the respondent's circumstances in custody are particularly difficult. He is visited rarely, and then only by one individual whose visa expired in August of this year. He has occasional telephone contact with his wife. He is unable readily to manage his OCD in custody, and finds his time in custody particularly stressful when dealing with that disorder. He gives this example:
"For instance I became very concerned to hear that the server of the food at the jail does not wear a mask. I also found a piece of plastic contained in my food. Those makes me feel that the food has been contaminated and I lose appetite. As a result, I often eat tinned food that I buy from the jail's shop with my limited money." (sic)
He also notes his difficulties managing his OCD when sharing a cell with an inmate, particularly one who has little or no regard for ordinary standards of cleanliness.
In addition, the evidence provided gives an example of how the respondent's OCD has led to a difficult circumstance with custodial staff, and he has been threatened with being put in a segregation cell because of his requests for accommodation suitable to his OCD.
He has significant difficulties in communicating with custodial staff, and carries with him a Japanese/English dictionary in order to help him communicate. He is able to take one 2 hour English language course once a week whilst in custody. With the exception of his English classes, the respondent does not have available to him any other education courses or other activities to occupy his time in custody.
As well, by reason of his racial background and his relatively slight build, the respondent has been the subject of a number of assaults, both sexual and physical, during his time in custody.
The respondent's family, including his wife, all live in Japan. They have not come to visit him since he has been in custody. There is no reason to think that will change in the future. He gets no treatment or medical assistance for his OCD whilst in custody, although he has requested it.
None of these facts were challenged by the Crown. There is no suggestion that his behaviour in custody has brought him to the notice of the custodial officers in terms of any failure to comply with jail discipline.
As well, as is apparent from remarks which I have earlier made and as the further evidence on the appeal demonstrates, the respondent's time whilst he was on bail awaiting the final determination of the offences was a particularly difficult one. He could not leave Australia, he was obliged to report to police daily, he was obliged to surrender his passport which meant that he had no form of identification which would have enabled him to obtain work, and as well, such visa as he has been allocated did not permit him to work.
He was unemployed, not in receipt of any income, other than by way of government assistance, and seemingly spent most of his days in his bedroom in shared accommodation. As Mr Diment's report indicated during this period, he became quite depressed.
Whilst it would not be fair to equate his time on bail as being the same as the time spent by a person who attends a residential rehabilitation course, and it is not strictly a circumstance of quasi-custody, nevertheless the delay between his being arrested and having his charges finally disposed of, involved a very lengthy period of almost 2½ years, in which he was not able to go about his business, and which represents an important consideration for this Court when considering the exercise of its discretion.
The respondent has now served over one half of the non-parole period which he is required to serve and has done so in circumstances of hardship as I have earlier described. As well, taking into account his period on bail before commencing custodial sentence, to now increase his sentence would significantly increase the hardship which he presently undergoes, and would be likely to exacerbate his OCD.
In all of the circumstances, in the exercise of the Court's residual discretion, I would not be disposed to uphold the Crown appeal.
Orders
I would propose the following order:
(1) Crown appeal dismissed.
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Decision last updated: 29 October 2014
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