Ragg v R

[2022] NSWCCA 150

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ragg v R [2022] NSWCCA 150

Hearing dates:

11 March 2022

Date of orders:

6 July 2022

Decision date:

06 July 2022

Before:

Beech-Jones CJ at CL at [1]
N Adams J at [60]
Lonergan J at [61]

Decision:

(1)   The affidavit of Brett James Ragg affirmed 1 March 2022 is rejected;

(2)   Grant leave to appeal;

(3)   Appeal dismissed.

Catchwords:

CRIME – sentence appeal – aggregate sentence of 24 years with non-parole period of 18 years for serious sexual assault and physical assaults – applicant brutalised partner over 11‑hour period – whether sentencing judge erred in assessing objective seriousness of sexual assault by reference to facts of other sexual assault committed shortly prior to and shortly after subject offences – facts of other offences relevant to vulnerability of victim and intention to commit further assaults – reliance on wrong maximum penalty and wrong standard non-parole period – error conceded – no lesser sentence warranted in law

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Criminal Appeal Act 1912

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

LN v R [2020] NSWCCA 131

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Archer [2015] NSWSC 1487

R v Ragg [2020] NSWDC 210

RO v R [2019] NSWCCA 183

Singh v R [2021] NSWCCA 96

Tepania v R [2018] NSWCCA 247

Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14

Greentree v R [2018] NSWCCA 227

Category:

Principal judgment

Parties:

Brett Ragg (Applicant)
Regina (Crown)

Representation:

Counsel:
PD Rosser QC; R Hussey (Applicant)
E Wilkins SC (Crown)

Solicitors:
Nicholas WJ Rolfe & Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2018/335871

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Ragg [2020] NSWDC 210

Date of Decision:

18 May 2020

Before:

King DCJ

File Number(s):

2018/335871

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant for leave to appeal pleaded guilty to 13 offences involving the bashing, attempted burning, extremely violent rape and intimidation of his partner. On 18 May 2020, the Applicant was sentenced by the District Court to an aggregate term of imprisonment for 24 years with a non-parole period of 18 years.

The Applicant and the victim had been in an “on and off domestic relationship for approximately 12 years”. They had three children together. The first 11 offences occurred between approximately 8:00am and 7:00pm on 30 October 2018. At around 8:00am on that day the Applicant and the victim were in a car when the Applicant accused the victim of sleeping with other men while he was in custody. After this verbal altercation the Applicant and the victim drove to various locations. At one point the Applicant attempted to burn her. The Applicant brutally physically and sexually assaulted the victim. The Applicant then drove off leaving the victim in a deserted area bleeding. At around 6:45pm the victim was found on a road naked and covered in blood. She was taken to hospital. The remaining 2 offences occurred on 31 October 2018 when the Applicant threatened the victim if she pursued the matter with the police.

The Applicant relied on five grounds of appeal. The first two grounds related to findings of objective seriousness with respect to four counts of aggravated sexual assault against the victim. The Applicant contended that the sentencing judge erred in addressing the objective seriousness of each such offence by reference to the other sexual assaults. The sentencing judge found that prior to committing the first of the four offences the Applicant formed the intention to commit all of them.

Grounds three and four of the application related to alleged errors of the sentencing judge in relying on a wrong maximum penalty for the offence of intimidation (ground three) and erroneous standard non-parole period for the attempt to inflict grievous bodily harm with intent offence (ground four). Ground five contended that the aggregate sentence was manifestly excessive.

On resentence the Applicant sought to tender affidavit evidence expanding on evidence placed before the sentencing judge that he was sexually assaulted as a juvenile. The sentencing judge had accepted that he had “a history of physical and sexual abuse” which had “normalised his offending behaviour and desensitised him to the anti-sociality of his crimes”.

The issues arising on the application were:

(i)   Whether the sentencing judge erred in assessing the objective seriousness of each individual offence of sexual assault by reference to the other offences?;

(ii)   Whether the errors in relation to the wrong maximum penalty and the wrong standard non-parole period were capable of affecting the aggregate sentence?;

(iii)   Whether the additional evidence sought to be adduced was admissible on resentence?; and

(iv)   Whether a lesser sentence was warranted in law?

The Court held, granting leave to appeal but dismissing the appeal:

As to issue (i), per Beech-Jones CJ at CL (N Adams and Lonergan JJ agreeing):

1.   There is no blanket proposition that the facts and circumstances of a related offence can never be relevant to the assessment of the objective seriousness of a subject offence. The real issue is how the facts and circumstances of a related offence might affect the assessment of the objective seriousness of the subject offence (at [38]).

2.   The objective seriousness of a subsequent offence can be affected by a consideration of the facts and circumstances of offences committed shortly prior in that the facts of the prior offences may show that the victim was increasingly vulnerable and was known by the offender to be increasingly vulnerable (at [44]).

3.   The objective seriousness of a prior offence can be affected by a consideration of the facts and circumstances of offences committed shortly after the subject offence where it was found that, from the outset, the offender intended to commit all the offences. An instance of rape committed with an intention to commit further (and more brutal) rapes afterwards is a worse offence than an instance of rape committed without that intention (at [45]).

RO v R [2019] NSWCCA 183; Singh v R [2021] NSWCCA 96 considered; LN v R [2020] NSWCCA 131 applied;

As to issue (ii), per Beech-Jones CJ at CL (N Adams and Lonergan JJ agreeing):

4.   Each of the error in relying on the wrong maximum penalty and relying on the wrong standard non-parole period had the capacity to affect the aggregate sentence (at [49] to [51]).

As to issue (iii), per Beech-Jones CJ at CL (N Adams and Lonergan JJ agreeing):

5.   The evidence was not admissible on the “usual basis”. The Applicant did not dispute the sentencing judge’s findings and nor did the Crown. Hence the evidence was not relevant. If what was sought was to expand on the finding made by the trial judge based on evidence of events that occurred before the Applicant was sentenced, then he would be conducting a different case on appeal (at [56]).

Betts v The Queen (2016) 258 CLR 240; [2016] HCA 25 applied; Greentree v R [2018] NSWCCA 227 considered;

As to issue (iv), per Beech-Jones CJ at CL (N Adams and Lonergan JJ agreeing):

6.   No lesser aggregate sentence was warranted in law.

Judgment

1. BEECH-JONES CJ at CL: This is an application for leave to appeal from an aggregate sentence of 24 years’ imprisonment consisting of a non-parole period of 18 years and a parole period of 6 years. The sentence was imposed for the gruesome bashing, attempted burning and extremely violent rape by the applicant of his partner. The facts of the offences which are summarised below are confronting. This case represents one of the most extreme cases of sadistic sexual violence perpetrated against a woman seen in this Court. This is exemplified by the fact that, of the many consequences for the victim of being sexually assaulted, she had to use a colostomy bag for six months after the reconstructive surgery that followed the attack.

2. As will be explained, despite the thoroughness of the judgment appealed from, there was an error in the sentencing judge’s approach which enlivens the Court’s obligation to re-sentence (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; “Kentwell”). However, I consider this to be a clear case where no lesser sentence than that imposed at first instance is warranted in law. Accordingly, I would dismiss the appeal (Criminal Appeal Act 1912, s 6(3)).

The Offences

3. On 2 July 2019, the applicant entered pleas of guilty in the Local Court to 11 offences committed against the victim, AP, on 30 October 2018 and two offences committed against AP on 31 October 2018. He adhered to those pleas in the District Court. On 18 May 2020, his Honour Judge King imposed the aggregate sentence noted above and published a comprehensive sentencing judgment (R v Ragg [2020] NSWDC 210; the “sentencing judgment”). In doing so, his Honour specified the indicative sentences for each offence in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (the “CSP”).

4. The offences, the maximum penalty, any applicable standard non-parole period, the sentencing judge’s finding of each offence’s objective seriousness, and the indicative sentences were as follows:

Seq.	Offence and section	Maximum penalty	Standard non-parole	Objective Seriousness	Indicative sentence
4	Common assault s 61 Crimes Act 1900	2 years	N/A	Lower end of the range	6 months
7	Aggravated detain with intent to assault and intimidate (aggravation: ABH occasioned) s 86(2)(b) Crimes Act 1900	20 years	N/A	Upper end of mid-range	8 years
8	Reckless wounding s 35(4) Crimes Act 1900	7 years	3 years	Below but towards the mid-range	3 years NPP: 2y, 3m
9	Intimidation s 13(1) Crimes (Domestic and Personal Violence) Act 2007	5 years	N/A	Mid-range	2 years
10	Use explosive fluid with intent to burn, disfigure or do grievous bodily harm s 47 Crimes Act 1900	25 years	N/A	Lower end of mid-range	4 years
12	Attempt to cause grievous bodily harm with intent s 33(1)(b) Crimes Act 1900	25 years	N/A	Mid-range	3 years NPP: 2y, 3 m
15	Attempt to cause grievous bodily harm with intent s 33(1)(b) Crimes Act 1900	25 years	N/A	Mid-range	3 years NPP: 2y, 3m
2	Aggravated sexual assault (aggravation: recklessly occasion ABH) s 61J Crimes Act 1900	20 years	10 years	Upper end of mid-range	9 years NPP: 6y, 9m
17	Aggravated sexual assault (aggravation; intentionally inflict ABH) s 61J Crimes Act 1900	20 years	10 years	Upper end of mid-range	10 years NPP: 7y, 6m
18	Aggravated sexual assault (aggravation: intentionally inflict ABH) s 61J Crimes Act 1900	20 years	10 years	Within the highest range	14 years NPP: 10y, 6m
19	Aggravated sexual assault (aggravation: intentionally inflict ABH) s 61J Crimes Act 1900	20 years	10 years	Within the highest range	14 years NPP: 10y, 6m
3 (s 166)	Contravene Apprehended Violence Order s 14(1) Crimes (Domestic and Personal Violence) Act 2007	2 years (s 166)	N/A	Below but approaching mid-range	9 months
20	Threaten witness to withhold evidence s 322(a) Crimes Act 1900	10 years	N/A	Mid-range	4 years

5. As this table demonstrates, the sentencing judge assessed the objective seriousness of each of the offences by reference to its position on a hypothetical range of relative seriousness for that offence. While I do not criticise his Honour for doing so, and accept that such an approach can further the objective of transparency in sentencing, I note that his Honour was not obliged to make assessments of that kind even for those offences that carried a standard non-parole period (CSP, s 54B(6)). As the argument on ground 1 of the appeal suggests, in some cases, such assessments can add unnecessary complexity to the sentencing process and have little utility, especially when they yield assessments such as a finding that an offence is “below but towards the mid-range” of objective seriousness. In cases such as this, where there are a number of serious offences committed within a confined period, it is sufficient to describe the seriousness of the offences in general terms.

The Facts of the Offending

6. The facts of the offences were set out in an agreed statement of facts that was tendered to the sentencing judge. They were reproduced in the sentencing judgment (at [5]). What follows is a summary.

7. As at October 2018, the applicant was 28 years of age and the victim was 30 years of age. The agreed facts record that they had been in an “on and off domestic relationship for approximately 12 years”. They had three children together. In May 2018, the applicant was released from Junee Correctional Centre. The victim collected the applicant and they resumed living together. From that point they both consumed drugs and the applicant was repeatedly violent towards her. The agreed facts record that at one point he stabbed her legs with a kitchen knife. The victims’ parents removed the children from their care.

8. On the evening of 29 October 2018, the applicant and the victim “stayed up all night smoking marijuana and ‘ice’”. The events the subject of the first 11 offences in the above table occurred the following day, between about 8.00am and 7.00pm. At around 8.00am on 30 October 2018, the applicant and the victim were in a car. The applicant accused the victim of sleeping with other men while he was in custody. He became angry and cut the victim’s hair before punching her three times to the chin and the lower lip area. The victim was crying and left the car, but the applicant called her to come back. The applicant then punched the victim to the head, forcing her head to hit the back of the windscreen. The punching of the victim was the offence that constituted sequence 4.

9. The applicant told the victim to get into the back seat. He told her “[e]very time you lie I will stab you”. He then asked the victim questions about her sleeping with other men. He stabbed her each time he received an answer he did not like. The medical evidence indicated that the victim had 30 circular bruises, approximately four of which had puncture wounds. She was stabbed near the left ear. He cut open her shirt exposing her breasts and stomach area. The stabbing of the victim was the offence that constituted sequence 8.

10. The applicant then threatened to cut the victims’ nipples off. At one point he removed the victim’s pants and put the scissors close to her “vagina/clitoris” and said, “[l]et’s cut this off”. These threats constituted the offence that was sequence 9, intimidation. The victim ran from the car and down to a riverbank. She saw the applicant leave the car with a “jerry can” containing diesel fuel. The applicant tipped diesel fuel over the victim which stung her cuts. The victim went into the river and attempted to wash the diesel from her hair. The pouring of the diesel over the victim was the offence that constituted sequence 10. As noted by the sentencing judge, by his plea of guilty, the applicant admitted that he did so with “intent to burn, disfigure or do grievous bodily harm to her”.

11. The applicant told the victim to get back into the car and tried to set her hair alight. The agreed facts record that the “victim could smell her burning hair and used her hands to pat the fire out”. The applicant lit the victim’s hair two further times knowing that she was still covered in diesel. This constituted the offence that was sequence 15.

12. The agreed facts record that the applicant continued to question the victim about whether she had sex with other men. The applicant drove the victim to a location where she could go to the bathroom. He then had the victim drive and threatened her so she would not attempt to drive off. He made the victim drive him to a take-away store, a shopping centre and then to a friend’s house where the victim showered. The applicant then directed the victim to drive to a location that the agreed facts describe as a “deserted scrub area” where they stopped. The applicant said to her “[t]ell me the rest of the story; if you lie to me, I’m going to stab you again”. The applicant told the victim to drive further and, according to the agreed facts, “they went down a dirt path through the bush until they came to a clearing”. The facts record that the victim was “attempting to tell [the applicant] a false story to keep the offender happy” which appears to relate to his questions about whether she had sex with other men. The applicant then said to her “[w]hy didn’t you say it was rape? You liked it, didn’t you?” The victim agreed with him out of fear. The applicant then said to her “[r]ight, I am going to do what they did to you”. He told her to get into the back seat of the car.

13. The agreed facts then record that the offender committed the four offences that are sequences 2, 17, 18 and 19. The appalling circumstances of those offences were that with sequences 2 and 17 the applicant raped the victim in the back seat of the car in an area of deserted scrub, first by inserting his penis into her vagina, and then inserting his penis into her anus. The victim cried and protested throughout. The circumstance of aggravation for sequence 2 was the reckless occasioning of actual bodily harm, although what injuries amounted to bodily harm were not specified in the agreed statement of facts. The circumstance of aggravation for sequence 17 was the intentional infliction of actual bodily harm. The agreed facts record that, while the victim was being anally raped, the applicant was touching and pressing her cuts from the “previous stabbing” causing her more pain and to cry out.

14. Sequences 18 and 19 occurred immediately afterwards. They involved the applicant inserting his entire fist into the victim’s vagina and then into her anus repeatedly. Throughout the ordeal the victim was crying and screaming in pain and begging the applicant to stop. The victim sustained blood loss. The actual bodily harm element of sequences 18 and 19 were injuries to the victim’s vagina and anus, being significant tearing and perforations. The consequences of those injuries are further described below.

15. At one point the victim could see blood on the ground, blood on the applicant’s hand up to his wrist, and blood running down her leg. The applicant washed the blood off his hand and arm. He tried to wash the victim’s vagina and legs with water. He then punched her in the throat and told her “I’m going to do that again. I meant to punch your face. I want to knock you out”. The applicant then drove off leaving the victim in a deserted area “crying and bleeding from her vagina and anus”. The victim walked towards a main road. At one point she was hallucinating.

16. At around 6.45pm the victim was found on a road approximately 68km from Deniliquin and 10km from Moama. She was naked and covered in blood and dirt. She was taken to hospital.

17. The detention of the victim by the applicant throughout the period from 8.00am to the early evening of 31 October 2018 was the offence that was sequence 7.

18. On the evening of 31 October 2018, police served an Apprehended Violence Order (“AVO”) on the applicant which precluded him from contacting the victim. While she was recovering in hospital, on 1 November 2018 the victim received a call from the applicant. He asked “[a]re you going to charge me? I’ve got the paperwork here are you going to charge me? Later he said to “[i]f you charge me, I will shoot your mum and dad”. This threat constituted the offence that was sequence 20. The breach of the AVO constituted the offence that was sequence 3. The applicant was arrested later that day.

6. The agreed facts record that at the hospital the treating doctor assessed the victim as suffering from numerous injuries. She had multiple bruises to the face, chin, nose, anterior neck and lower lip along with lacerations and grazes. Her chest had bruising and a “superficial stab wound”. Her abdomen was tender with multiple bruises. A laparoscopy revealed a haemorrhage that extended into both pelvic side walls. There was a 1cm stab wound to her hand and both hands were bruised. There were multiple stab wounds to her legs mainly in the thigh region. As noted, there were substantial tears and perforations to her vagina. She suffered significant anorectal injuries including substantial tears and perforations.

7. The injuries to the victim’s vagina and anus required her to undergo surgery on 1 November 2018. The agreed facts describe the surgery as involving “four phases”, the last of which was to insert a colostomy bag to protect the reconstruction of her vagina and anus. The agreed facts recorded that the victim “may suffer long term faecal incontinence and [may] be required to have a colostomy bag for a number of months … [and further] surgery to remove the bag in 2019”. As events transpired, she had a colostomy bag for six months. During that period it had to be changed at least daily. The sentencing judge described the relatively complex surgery that removed it (at [32]).

The Sentencing Judgment

21. After setting out the agreed statement of facts, his Honour addressed the objective seriousness of each of the offences. His Honour’s findings are set out in the above table at [4]. His Honour’s approach to assessing the objective seriousness of sequences 2, 17, 18 and 19 is the subject of challenge by grounds 1 and 2 of the applicant’s notice of appeal. His Honour then addressed the balance of the issues relevant to the applicant’s sentence. Seven matters should be noted.

22. First, his Honour noted the effect of the victim impact statement, including the victim’s statement that “[t]he smell and sight of blood, the smell of burning hair and the sight of her resultant scarring cause flashbacks to the offences” (at [52]). His Honour noted that the consequences of the offences will continue for the victim for a “significant period of time, if not for the balance of her life” (at [53]).

23. Second, his Honour referred to the proposition stated by Wilson J in R v Archer [2015] NSWSC 1487 at [176] that “[a] just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner”.

24. Third, his Honour noted that at the time of the offending the applicant was on bail for a charge of intimidation of his child’s schoolteacher (CSP, s 21A(2)(j)). He was subsequently convicted of that offence in which he threatened to “punch [her] head in” and “smash” her husband (at [56]).

25. Fourth, his Honour addressed the applicant’s extensive history of criminal convictions for personal violence offences, including four convictions for contravening an AVO, five convictions for staking or intimidation, convictions for assault and reckless wounding, and public justice offences such as threatening a witness (at [61]). As noted, he was released from custody in May 2018, having served a six-month sentence for break and enter a house with intent to steal. He served substantial periods in custody from 2014 to 2017 for firearms offences. The sentencing judge concluded that the applicant’s previous offences “demonstrate a continuing attitude of disobedience to the law and the need in the instant case for increased weight to be given to retribution, personal/specific deterrence and the protection of society” (citing Veen (No 2) v The Queen [1998] 164 CLR 465; [1988] HCA 14) (at [62]).

26. Fifth, his Honour addressed the applicant’s subjective case which included a history of family breakdown and State intervention, diagnosis with a mild intellectual disability at age seven which affected his reasoning and impulse control (at [68]), learning difficulties, being sexually abused by an older man when he was aged 15 or 16 (at [69]) and drug abuse (at [72]). A psychologist assessed his overall intellectual functioning as being in the bottom 2% of the population and found that he satisfied the diagnostic criteria for a Mild Intellectual Development Disability (at [75]). A psychiatrist concluded that the applicant met the diagnostic criteria for an “Antisocial Personality Disorder”; a “Substance Use Disorder”; and “Attention Deficit Hyperactivity Disorder” as a child (at [76]).

27. The sentencing judge accepted a psychologist’s opinion that the combination of the above matters had “normalised [the applicant’s] offending behaviour and desensitised him to the anti-sociality of his crimes, particularly those violent in nature”. His Honour accepted that the principles referred to in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 were engaged and the offender’s moral culpability was reduced (at [78]). However, his Honour also found that the matters identified by the psychologist and psychiatrist highlighted the need for significant weight to be given to specific deterrence and protection of the community (at [79]).

28. Sixth, his Honour concluded that he was “unable to find that there is any acceptable evidence of genuine remorse or contrition” (at [97]).

29. Seventh, his Honour found the applicant’s prospects of rehabilitation to be “extremely poor” and that his risk of reoffending was “medium - high” (at [98]).

Grounds 1 and 2: Findings of Objective Seriousness

30. Grounds 1 and 2 of the notice of appeal provide:

“Ground 1: His Honour the sentencing Judge was in error in holding, with respect to 4 counts of aggravated sexual assault [Crimes Act s 61J – sequences 2, 17, 18 and 19] that each individual count was relevant to the assessment of seriousness of each of the other three counts.

Ground 2: His Honour the sentencing Judge was in error in holding, with respect to four counts of aggravated sexual assault that their individual seriousness was aggravated by the offences that had already been committed upon her.”

31. The circumstances of sequences 2 and 17 to 19 are set out above. These grounds of appeal concern the following part of the sentencing judgment:

“22.   Given the terror which the victim was experiencing at this time, with all that had gone before and the discomfort she was already experiencing from previous assaults and violence, the remoteness of the location and the duration of her detention Seq 2 (penile/vaginal intercourse), Seq 17 (penile/anal intercourse), Seq 18 (vaginal “fisting” intercourse) and Seq 19 (anal “fisting” intercourse) must be regarded individually as very serious [incidents] of this type of offence.

23.   Each of … these offences [were] committed by a separate and different act of sexual intercourse as defined in s 61H (1) of the Crimes Act ... Each was committed as part of a single ongoing assault. Each of the individual offences is relevant to the seriousness of the other, whether committed before or after an individual offence, as are the overall circumstances of the commission of the offences.” (emphasis added)

32. Immediately after this part of the sentencing judgment, his Honour found that sequences 2 and 17 were at the upper end of the mid-range of objective seriousness although his Honour regarded sequence 17 as “more demeaning, degrading and humiliating than [sequence] 2”. His Honour then turned to sequences 18 and 19. His Honour described the shocking injuries that were occasioned by those offences including that for “six months the victim could only defecate into [a] colostomy bag”. His Honour then found (at [35] to [36] and [38]):

“35.   I find beyond reasonable doubt that the offender premeditated the further offences at the time he directed the victim to drive from Deniliquin, even if he had not determined their exact nature or the extent of the offending that would occur.

36.   I find beyond reasonable doubt that the offender committed sequences 18 and 19 as deliberate sadistic torture from which he took pleasure in the infliction of injury and pain while exercising his power to dominate and control the victim. They demonstrate a total lack of humanity and empathy towards his partner of some 12 years and the mother of his child. His then abandonment of her, naked and bleeding, at a remote deserted bush location at night further underlines his callous disregard and contempt for her welfare as demonstrated by the offences committed at that location.

…

38.   I find that sequences 18 and 19 fall easily within the highest range of objective seriousness.” (emphasis added)

33. The applicant’s submissions contended that paragraph 23 of the sentencing judgment reveals that his Honour regarded each of sequences 2, 17, 18 and 19 as affecting the assessment of the objective seriousness of each other offence. In both the applicant’s written and oral submissions, reliance was placed on RO v R [2019] NSWCCA 183 (“RO”) and Singh v R [2021] NSWCCA 96 (“Singh”) as precluding the use of one offence in assessing the objective seriousness of the other. It was contended that “[t]o use … offence X to aggravate the seriousness of offence Y is wrong in principle”.

34. The reliance on RO and Singh was misplaced. In RO at [54], the sentencing judge assessed the objective seriousness of an offence by reference to, inter alia, an offence included on a notice filed by a prosecutor pursuant to s 32(2) of the CSP (i.e., a “Form 1”) which concerned other criminal conduct committed on a different occasion. This was found to be erroneous in two respects.

35. First, it was “erroneous because the assessment of the objective seriousness of a criminal offence that carries a standard non‑parole period ‘is to be determined wholly by reference to the nature of the offending’ for that offence and not other criminal conduct engaged in on a different occasion” (at [56], citing Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]; “Muldrock”).

36. Second, it was found to be erroneous “because it [was] inconsistent with the [CSP] for Form 1 offences to be considered in this manner” in that they only demonstrated an “additional need for personal deterrence and retribution” (at [57]; citing Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); see also at [64] (Basten JA), at [104] (Hoeben CJ at CL), and at [154] (Garling J); and Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]).

37. In Singh, the sentencing judge also assessed the objective seriousness of an offence by reference to an offence included on a Form 1 that occurred at or around the same time as the substantive offence (at [43]). It was contended and conceded that the second of these errors was established (at [59]).

38. Hence, RO is authority for the proposition that it is erroneous to use an offence committed on another and completely different occasion as part of the assessment of the objective seriousness of the subject offence. Both RO and Singh are authority for the proposition that it is erroneous to use a Form 1 offence per se in assessing the objective seriousness of the substantive offence. This case does not concern a Form 1 offence. However, neither RO or Singh are authority for a blanket proposition that the facts and circumstances of a related offence can never be relevant to the assessment of the objective seriousness of the subject offence. There is no such proposition. The real issue is not so much whether the facts and circumstances of a related offence might be capable of affecting the assessment of the objective seriousness of the subject offence, but how they can affect that assessment.

39. Such facts and circumstances are sometimes considered as part of the context of the offending. Hence, in LN v R [2020] NSWCCA 131 (“LN”) at [54] Basten JA observed:

“So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender’s interests must be established beyond reasonable doubt.”

40. In LN, Basten JA, concluded that it was not erroneous to assess the objective seriousness of the murder of a child by making reference to a series of uncharged assaults on the victim which were committed by the offender in the period preceding the offence (at [55]).

41. In LN (at [151]), Hamill J noted the “fundamental proposition” that an offender “is not to be punished for offences with which they have not been charged” and that embraces the general proposition that “the seriousness of the charged offence should not be assessed by reference to the gravity of the course of conduct or pattern of offending”. However, the latter statement admits of qualification. Hence (at [159]), Hamill J identified four particular respects in which the uncharged assaults on the child in that case were available to be used in sentencing the offender for that child’s murder, namely:

“(1) To establish that the murder was not an aberration in an otherwise blameless life or to deny leniency on the basis that LN was otherwise a person of good character; … (2) To dispel any suggestion that the [murder] was an isolated incident; (3) [To support] findings as to the applicant’s motive and state of mind at the time of the murder …; and (4) To establish that the victim was vulnerable and that the offender knew that the victim was vulnerable because she and her co-offender caused that vulnerability by the commission of the earlier assaults.”

42. In relation to the third use, it has been accepted that an offender’s motive is part of the objective seriousness of an offence (Tepania v R [2018] NSWCCA 247 at [112]). Otherwise, I do not take the four circumstances listed by Hamill J as having been intended to be an exhaustive statement of the qualifications to the general principle. In LN, Hamill J concluded that the sentencing judge in that case had gone beyond those qualifications and contravened the fundamental principle that his Honour identified. Hamill J concluded that the offender in that case “was in effect punished for offences with which she was not charged or convicted” (at [171]).

43. The other judge in LN, R A Hulme J, accepted both Basten JA’s and Hamill J’s statements of the relevant principles, but disagreed that the sentencing judge erred in the manner found by Hamill J (at [98] to [99]).

44. Although LN referred to uncharged acts, there is no reason why the discussion in that case is not also applicable to the circumstances of this case, where the assessment of the objective seriousness of one offence refers to other offences committed closely in time. Bearing in mind Hamill J’s analysis in LN, the relevant passage of the sentencing judgment commences by noting that the “terror” the victim had previously experienced “with all that had gone before”. I understand that his Honour’s reference, to each of sequences 2, 17, 18 and 19 as being relevant to the seriousness of the other, as embracing the fourth use identified by Hamill J in LN, namely that by the time each appalling act of sexual violence came to be committed, the victim was increasingly vulnerable, and known by the applicant to be increasingly vulnerable, by reason of the previous appalling acts of violence and sexual violence that he had committed against her.

45. In oral submissions, Senior Counsel for the applicant contended that this does not account for how the objective seriousness of the earlier offences, such as sequence 2, could be affected by the later offences, such as sequence 19. These four offences were committed over a relatively short period. The sentencing judge found that the offender “premeditated” the further offences when he directed the victim to drive from Deniliquin (at [35]); i.e., at the time the applicant committed sequence 2 he was intending to commit sequences 17, 18 and 19. Thus, sequence 2 was not an isolated sexual assault that happened to result in the applicant escalating his further offending by his later deciding to commit sequences 17, 18 and 19. Instead, at the time the applicant committed sequence 2, he intended that rape to form part of the total brutalisation of the victim from a succession of violent rapes he intended to commit. An instance of rape committed with an intention to commit further (and more brutal) rapes afterwards is a worse offence than an instance of rape committed without that intention. This is either an instance of, or analogous to, the third use identified by Hamill J in LN.

46. In this case, his Honour’s findings at [22] and [23], as clarified by the finding at [35], do not involve any breach of the fundamental principle identified by Hamill J in LN and otherwise do not involve error.

47. I would reject both of grounds 1 and 2.

Grounds 3 and 4: Wrong Maximum Penalty for Sequence 9 and Erroneous Standard Non‑Parole periods

48. The applicant’s notice of appeal contends that:

“Ground 3: His Honour the sentencing Judge was in error in dealing with the offence of intimidation [Crimes (Domestic and Personal Violence) Act 2007 s 13(1) – sequence 9] on the basis that the maximum penalty was imprisonment for 7 years rather than 5 years.

Ground 4: His Honour the sentencing Judge was in error in assessing the objective seriousness of Sequences 12 and 15 [attempt to inflict grievous bodily harm with intent] upon the basis that standard non-parole periods applied to those offences.”

49. Sequence 9 was an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 of stalking or intimidating another person with the intention of causing the other person to fear physical or mental harm. The maximum penalty for the offence is 5 years’ imprisonment, or 50 penalty units, or both. At the commencement of the sentencing judgment, his Honour incorrectly referred to the maximum penalty for the offence as 7 years’ imprisonment. Even though the indicative sentence for this offence was only 2 years and the aggregate sentence was 24 years, the Crown effectively conceded that this was an invalidating error stating that “following Kentwell, once it is determined that an error in the maximum penalty for the offence is a material error, it is not permissible for an appellate Court to ask itself whether and to what extent the error influenced the outcome”. Acting on the basis of that concession, I would uphold ground 3.

50. In relation to ground 4, there were no standard non-parole periods prescribed for sequences 12 and 15. However, during the sentencing hearing, the Crown provided his Honour with a Crown Sentence Summary that specified standard non-parole periods of 7 years’ imprisonment for these offences. This was reproduced by his Honour in the sentencing judgment (at [2]). The Crown submitted that the sentencing judge clearly did not apply those periods, as his Honour indicated sentences for sequences 12 and 15 that were below the (non‑existent) standard non-parole period. Muldrock establishes that a standard non-parole period is one of the two “legislative guideposts” for the sentencing exercise, the other being the maximum penalty of an offence (at [27] and [31]). For my part, I would be slow to infer that his Honour fixed the indicative sentences for two of the offences in an erroneous way that fortuitously avoided the effect of a different error. In any event, the real question at this point is whether the error was “material”, in the sense of its capacity to have affected the aggregate sentence. It clearly had that capacity and hence this ground is made out as well.

49. I would uphold grounds 3 and 4.

Ground 5: Manifestly Excessive

52. Ground 5 contends that the aggregate sentence is manifestly excessive. In light of grounds 3 and 4 being upheld it is not necessary to address this ground.

Resentence and Whether Less Severe Sentence is Warranted in Law

53. If an error in the sentencing process is established, this Court must discharge the obligation imposed by s 6(3) of the Criminal Appeal Act, namely, determine whether a sentence more or less severe is warranted in law and should have been passed. In doing so, this Court must undertake an independent exercise of the sentencing discretion, although it is not required to resentence “in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal” (Kentwell at [43]).

54. On resentence, an affidavit affirmed by the applicant was sought to be read on the “usual basis” (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4]; “Betts”). In the affidavit, the applicant recounts being sexually touched by a Department of Community Services (“DOCs”) employee when he was in their care when aged eight, sexually assaulted while in juvenile detention when aged 16, and sexually assaulted by a group of inmates when aged 18 and detained in an adult jail. He stated that he told the neuropsychologist, who provided a report to the sentencing judge, about a different sexual assault when he was 16 and “a little bit about the Goulburn incident”, but he did not disclose the incident with the DOCs employee or what occurred in juvenile detention because he “found it very difficult and distressing to talk about my history of being sexually abused” and he provided no proof of those incidents.

55. The psychologist’s report which was provided to the sentencing judge recounted the applicant providing considerable detail about the occasion when he was sexually assaulted when he was 15 years of age, and also that the applicant “disclosed being sexual[ly] abused by a group of inmates while he was in custody at Goulburn Correctional Centre”. As noted, the sentencing judge accepted the psychologist’s conclusion that a combination of matters, including “a history of physical and sexual abuse” had “normalised his offending behaviour and desensitised him to the anti-sociality of his crimes”, which in turn had led his Honour to find that the applicant’s moral culpability was “accordingly reduced.”

56. Evidence tendered on the “usual basis” ordinarily (and perhaps exclusively) relates to the events that have occurred since the time of sentencing (Greentree v R [2018] NSWCCA 227 at [68]). In any event, a limiting condition on evidence sought to be tendered on the “usual basis” is that such evidence cannot be put forward to “run a new and different case” (Betts at [2]). The Crown contended that, in substance, the applicant’s affidavit was directed to that end. When pressed, Senior Counsel for the applicant confined the use of the affidavit to only “putting completely before the Court those matters as to which his Honour formed a favourable opinion.” Thus, all that is sought to be done is effectively reprove a finding of the sentencing judge that neither party now disputes. It follows that the evidence is not relevant. If what is truly sought to be done is to expand on the finding made by the trial judge based on evidence of events that occurred before the applicant was sentenced, then that truly is a different case on appeal. Either way, the evidence is inadmissible on the usual basis and I would reject it.

57. In addressing the exercise of the power conferred by s 6(3) of the Criminal Appeal Act, I adopt the findings of the sentencing judge summarised above. I agree with his Honour’s assessment of the objective seriousness of each offence, and that is so even if one disregards the offences that follow each particular offence and only considers the offences that precede it to determine the vulnerability of the victim and the applicant’s knowledge of that vulnerability. Overall, these were brutal and chilling acts of violence, torture, sexual assault and subsequent intimidation that appear to have been undertaken to thoroughly dehumanise the victim. Even if I were to confine myself to sequences 2, 17, 18 and 19, I would reach a conclusion that no lesser aggregate sentence was warranted in law. That conclusion is only reinforced when the other offences are brought to account.

58. I would dismiss the appeal.

Proposed Orders

59. Accordingly, I propose the following orders:

1. The affidavit of Brett James Ragg affirmed 1 March 2022 is rejected;

2. Grant leave to appeal;

3. Appeal dismissed.

   60. N ADAMS J: I agree with Beech-Jones CJ at CL.

   61. LONERGAN J: I agree with Beech-Jones CJ at CL

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Decision last updated: 06 July 2022