REGINA v Armand-Iskak

[1999] NSWCCA 414

CITATION:	REGINA v ARMAND-ISKAK [1999] NSWCCA 414
FILE NUMBER(S):	CCA 60399/98
HEARING DATE(S):	10/12/99
JUDGMENT DATE:	10 December 1999
PARTIES :	The Crown Sheon Alexander Armand-Iskak (Appl)
JUDGMENT OF:	Beazley JA at 39; Newman J at 1; Greg James J at 40

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/0457
LOWER COURT JUDICIAL OFFICER:	Karpin DCJ

COUNSEL:	M Grogan (Crown) J S Stratton (Appl)
SOLICITORS:	Director of Public Prosecutors (Crown) Brenda Duchen (Appl)
CATCHWORDS:
ACTS CITED:	Crimes Act 1900
CASES CITED:	R v Veen (No 2) (1987-88) 164 CLR 465 R v Bennetts, unreported, CCA, 17 June 1993 R v Scognamiglio (1991) 56 A Crim R 81 R v Siganto (1998) 73 ALJR 162
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60399/98

BEAZLEY JA
NEWMAN J
GREG JAMES J

FRIDAY, 10 DECEMBER 1999

REGINA v Sheon Alexander ARMAND-ISKAK

JUDGMENT

1    NEWMAN J: This is an application for leave to appeal against a sentence imposed by Karpin DCJ on the applicant at the District Court at Parramatta on 20 July 1998.

2 The applicant was indicted before her Honour on two charges, the first being that he maliciously inflicted actual bodily harm with intent to have sexual intercourse contrary to the provisions of s 61K(a) of the Crimes Act 1900 - a crime which carries a maximum penalty of twenty years penal servitude.

3 He was also indicted on a charge laid pursuant to s 114(1)(c) of the Crimes Act of disguising his face with intent to commit a felony namely sexual intercourse without consent. That crime carries a maximum penalty of seven years penal servitude. In the event the Crown accepted the applicant’s plea of guilty to the first count in full satisfaction of the indictment.

4    In the sentencing proceedings her Honour also took into account two charges of common assault contained on a Form One. Her Honour imposed a total sentence of eleven years consisting of a minimum term of six years penal servitude and an additional term of five years.

5    Her Honour, very properly, gave detailed findings relating to the objective facts of the matter. In summary the events which led to the commission of the offence occurred some time after 5 am on 21 September 1997. The applicant, who had been drinking with friends, had joined a westbound train at Bondi Junction. His female victim joined the train at Town Hall station.

6    The victim, having noticed the applicant staring at her, changed carriages at Redfern. The applicant followed her and after the train left Redfern station approached his victim and said “take your pants off” and then grabbed her by the hair. I should add that the victim and the applicant were the only person in the carriage. By this time the applicant had placed a bandanna handkerchief over his face, having torn eyeholes from the garment. Again, the applicant told his victim to remove her pants. She refused. The applicant then attacked his victim punching her on the forehead and face. She struggled with the applicant, during the course of which encounter he pulled her pants down to the floor around her ankles. She continued to resist, three times escaping and three times being seized by her jacked and hair by the applicant. The victim’s pants had come off during the struggle.

7    These events took place on the lower level of the train carriage. Eventually the victim managed to get herself up the stairs although the applicant was still holding onto her. She was defending herself by kicking at the applicant. However having reached the foyer of the carriage near the train exit doors the applicant pushed his victim to the floor and attempted to remove his victim’s underpants. Fortunately, she was able to kick the applicant in his groin just as the train arrived at Burwood station. The victim threw herself onto the platform but the applicant pursued her and grabbed her by the arms.

8    Members of the station staff and other passengers on the train then ran to her aid. The applicant then released her and was pursued by two passengers. Having left the station, the applicant was caught by the passengers. A struggle ensued in which the applicant punched one of the passengers and kicked the other. However they were able to restrain him. It was this latter encounter which gave rise to the two charges of common assault contained in the Form One. The police then arrived and arrested the applicant.

9    The victim received abrasions, bruising and swelling to her head, back and arms. The two passengers also sustained cuts, lacerations and bruising.

10    As her Honour rightly observed, on these facts, there is no doubt that it was the applicant’s intention to have sexual intercourse without consent with his victim. His attempt was foiled by his victim stoutly resisting and the arrival of the train at Burwood station.

11    Objectively this was plainly a serious breach of the criminal law. The offence itself, carrying as it does a maximum penalty of twenty years penal servitude, stands high in the criminal calendar.

12    I turn then to the subjective features relating to the applicant. He was born on 16 April 1974. His father is Indonesian and his mother Scottish. They had separated and the applicant has spent part of his life in Indonesia but I gather, the bulk of his life in Australia.

13    The applicant has a significant criminal history. At the time of the commission of this offence he was on parole for two similar offences. Her Honour very properly detailed the facts relating to those offences. I do not propose to repeat the detail of those offences here, but I merely observe that they involved two vicious sexual assaults with accompanying violence on two innocent females and they involved the offence of armed robbery accompanying one of those assaults and robbery and larceny with the other.

14    The two prior offences occurred in June and July 1990 and he was sentenced in 1991. I should perhaps add that the sentence imposed in relation to these offences was a sentence of ten years consisting of a minimum term of five years and an additional term of the same period. He escaped from custody in 1992 and was involved in a motor vehicle accident while at large suffering a closed head injury.

15    Julie Hendy, a neuro-psychologist reported that her neuro-psychological assessment indicated that the applicant had made an excellent recovery from his head injury. However she found that he had some loss of efficiency in his ability to hold information, manipulate it and deal with it. He had some weakness in his ability to retain complex material.

16    She also concluded that his behaviour in relation to sexual assault charges was better understood in terms of the applicant’s pre-injury personality and behavioural style.

17    A Dr J O’Dea, forensic psychiatrist, whose report was before her Honour, concluded that the applicant was requiring specific psychiatric and psychological input in helping to minimise further offending behaviour. He opined that the applicant’s history of offending, head injury, drug and alcohol abuse and his personality, point at present, to a significant risk of re-offending unless he is able to address these issues successfully.

18    The applicant is not uneducated. He attained the Higher School Certificate and, at the time of the offence and subsequently, has been undertaking a course at Southern Cross University with some success.

19    I should add that prior to the commission of the subject offence the applicant, who had been released on parole in 1995, had his parole temporarily revoked because of his failure to report.

20    Her Honour, while taking into account and saying that the applicant must receive some mitigation on sentence for his plea of guilty, observed that it was entered in the face of a strong Crown case and not until the matter became listed for trial.

21    Her Honour also found that there was “not a substantial strand of material upon which the court can support the proposition that the prisoner either shows genuine remorse or insight.”

22    Her Honour having taken into account all matters, concluded that the applicant represents as a person at significant risk of re-offending and that he had a propensity to commit offences of the type involved here. She concluded by saying “the prisoner presently represents a substantial danger. This is his third offence of a similar nature, the chances of re-offending are high.”

23    The applicant challenges the sentence on three grounds.

Ground 1: Her Honour erred in treating the appellant as having a dangerous propensity to prey on young women.

24    The nub of this submission was that her Honour had failed to apply the correct standard of proof, namely proof beyond reasonable doubt in so concluding.

25 It was conceded that her Honour correctly stated the principles embodied in R v Veen (No 2) (1987-88) 164 CLR 465 but as I have stated, erred in applying the appropriate standard of proof. I disagree.

26    Her Honour’s remarks on sentence are indicative of a very careful analysis of all matters before her and the conclusion that she reached that the applicant had a dangerous propensity to prey on young women was in my view, an inevitable conclusion.

27    I would thus reject this ground.

Ground 2: Her Honour gave insufficient weight to the plea of guilty.

28    Reliance here was placed upon the principle that a plea of guilty is normally some manifestation of remorse and contrition. The second principle is the pragmatic ground that a plea of guilty saves time and expense and it is thus the policy of the courts to encourage persons to plead guilty. See R v Bennetts, unreported, Court of Criminal Appeal, 17 June 1993 per Gleeson CJ.

29 Her Honour’s remarks which I have set out above do not constitute error. The plea was late and in the face of a very strong Crown case. It was submitted that had the matter gone to trial it was not inevitable that there would have been a conviction. The facts of this matter are such that I am of the view that the suggestion that there was a reasonable possibility that had the matter gone to trial the jury would not have found the applicant guilty of an offence under s 61K(a) but some lesser offence, to be fanciful.

30 It was also submitted that in sexual assault matters a substantial discount should always be accorded to any accused who pleads guilty because such a plea saves the victim from the embarrassment and distress of giving evidence. Reliance was placed on what had fallen from the High Court in R v Siganto (1998) 73 ALJR 162.

31    This is not the law. Certainly it is a matter to be taken into account but a plea of guilty in such cases does not automatically entitle the perpetrator to a substantial discount. For these reasons I reject this ground.

Ground 3: the sentence imposed by her Honour was manifestly excessive.

32    Reliance was placed upon statistics from the Judicial Commission which indicate that the applicant received the highest total sentence of all offenders and the equal highest minimum term.

33    It was submitted that the applicant’s plea of guilty, the fact that he did not actually have sexual intercourse with the victim, no weapon was used or death threats made and that the injuries suffered by the victim were not serious, were factors indicative that the sentence was manifestly excessive.

34    In addition, it was put that there was some evidence of contrition and that the applicant’s psychological problems created a situation where general deterrence carried less weight.

35 In my view the evidence of Ms Hendy and Dr O’Dea distance this case from the circumstances underlying this Court’s decision in R v Scognamiglio (1991) 56 A Crim R 81.

36    In my view this was a case where the offence being committed in circumstances of aggravation was one which did call for a condign punishment. Additionally, if ever there was a case where a sentence should provide specific deterrence to an offence, this is it.

37    Her Honour approached her sentencing task with great care and in my view not only did she not fall into error but in fact imposed an appropriate sentence. I thus reject this ground.

38    Because of the importance of the matter to the applicant I would grant leave to appeal but would dismiss the appeal.

39    BEAZLEY JA: I agree

40    GREG JAMES J: I do also.

41    BEAZLEY JA: The orders of the court are as proposed by Newman J.