Regina v Astles

[2001] NSWCCA 235

CITATION:	Regina v Astles [2001] NSWCCA 235
FILE NUMBER(S):	CCA 60110/00
HEARING DATE(S):	18 June 2001
JUDGMENT DATE:	29 June 2001
PARTIES :	Christopher Astles - Applicant Crown - Respondent
JUDGMENT OF:	Simpson J at 1; Smart AJ at 46

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/0203; 99/21/0202
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	P M Winch - Applicant M C Grogan - Crown Respondent
SOLICITORS:	D J Humphreys - Applicant S E O'Connor - Crown Respondent
CATCHWORDS:	Criminal law - sentence - appeal - whether manifestly excessive - guilty plea.
LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Traffic Act 1909
CASES CITED:	Pearce v R (1998) 194 CLR 610 R v Thomson and Houlton [2000] 40 NSWLR 383 R v Letteri (unreported NSWCCA 18 March 1992
DECISION:	Leave to appeal granted - appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60110/00

SIMPSON J
SMART AJ

29 June 2000
REGINA v Christopher ASTLES

Judgment

SIMPSON J :

1 On 12 November 1999 the applicant entered pleas of guilty to one count of detaining a person for advantage, two counts of sexual intercourse without consent and one count of aggravated break and enter and commit a felony. In addition he asked that three further counts of sexual intercourse without consent, one count of break, enter and steal, one count of stealing a motor vehicle and one of driving in a manner dangerous to the public be taken into account pursuant to s 21 of the Criminal Procedure Act 1986 (now s 33 of the Crimes (Sentencing Procedure)Act (1999).

2    On 2 March 2000 Judge Nield sentenced the applicant. Having regard to the requirements of Pearce vR (1998) 194 CLR 610, his Honour considered and fixed sentences in relation to each individual offence and then determined the questions of concurrence and totality. The precise mechanism by which he resolved this aspect of the sentencing will be detailed below. The total term of imprisonment he imposed was of thirteen years and four months made up of a minimum term of ten years and an additional term of three years and four months. The applicant seeks leave to appeal against the severity of the sentences.

The offences

3    The most convenient way to outline the applicant’s criminal episode is chronologically. It began on 2 May 1999. At about midnight on that day the applicant went to the home of a man he had known for ten years, and from whom he had, from time to time, received money for sexual favours. I will refer to this man as the first victim. The first victim was not at home. The applicant entered the house, he claimed by an open back door, and took and consumed some soft drink. He was still present when the first victim arrived home two hours later.

4 The first victim claimed that the back door had been forced, causing damage. The sentencing judge did not find it necessary to resolve the factual contest so presented. A physical altercation developed between the two men, during which the applicant sustained an injury to his head requiring eighteen stitches. The first victim gave the applicant the keys to the front door of the house and the applicant left. He later lost consciousness as a result of the head injury and was taken to hospital where he was treated. From there he was taken to the Merrylands Police Station, interviewed and charged. This was the offence of break enter and steal not separately charged but taken into account. By s 112(1) of the Crimes Act 1900 if separately charged the offence carries a maximum term of imprisonment for fourteen years.

5 The next group of offences were committed on 7 and 8 May 1999. On 7 May, a Friday, the applicant met the second victim (RG) in a bar. RG was twenty-two years of age. She and the applicant had a meal together and the applicant invited her to his home. She agreed to go. RG was somewhat intoxicated. The two travelled by taxi to a house at Castle Hill, the home of the applicant’s mother and step-father. The applicant did not live in the house. His mother and step-father had that day left for a holiday. RG told the applicant that she was tired and wanted to sleep. The applicant removed her clothes. He made it plain that he wanted to have sexual intercourse with her. She made it equally plain that she was not agreeable. He persisted and completed the act of intercourse. With his penis in her vagina he ejaculated. This constitutes one of the offences of sexual intercourse without consent taken into account. By s 61I of the Crimes Act, if charged separately it carries a maximum penalty of imprisonment for fourteen years.

6 The applicant then obtained three pieces of rope, which he used to tie RG’s ankles and wrists. He tied a piece of rope in and around her mouth and then tied up her head. The applicant left the room for a time, but returned and told RG that he was taking her to the mountains. Using a hacksaw, he removed a steering wheel lock from his mother’s car. He carried RG out of the house and put her inside the car. He drove off at high speed, drinking bourbon from a bottle as he did so. He told RG that he was going to Lawson. When RG asked if there was anything there he said there was nothing but water and the river. He drove for some time and arrived at a bushland area. At some point in the journey he released the ropes binding RG. He made RG alight from the car onto a gravel track and walk on while he investigated whether he could take the car further. He then told her to get back into the car, drove off, stopped the car and pushed her into the back seat. He removed her clothing and his own and, from behind, inserted his penis into her vagina. RG was crying, asking him to stop, and telling him that he was hurting her. He continued to force his penis into her vagina. He again ejaculated whilst his penis was in her vagina. He left her naked in the back seat. This is the offence charged as the second count on the indictment, again laid under s 61I of the Crimes Act, and again carrying a maximum penalty of imprisonment for fourteen years.

7    A short time later the applicant raped RG in a similar fashion to that just described. This gave rise to the third count on the indictment and also carries a maximum penalty of fourteen years’ imprisonment.

8    RG told the applicant that she wanted to ring her father. The applicant said he would take her to a service station but not until it was dark. She begged him to allow her to go home but he threatened to tie her up again. In order to avoid this she promised not to run away and she engaged the applicant in conversation about his personal life.

9    The applicant then drove to Lawson and told RG that he was going to take her to a place that involved four hours’ walk. She suggested that they go to a hotel for some water before setting off; he agreed to this, and drove to the Lawson Hotel. RG went to the ladies’ toilet. On her way she told a man (possibly a patron of the hotel) and a female employee of what had happened and asked them to get help. She remained in the toilets. The applicant realised that she had sought help and that police had been called, and left the hotel.

10 This occurred at about 2 pm on Saturday 8 May. RG had been, in effect, the applicant’s prisoner since sometime the previous evening. The act of holding her captive for his own sexual gratification constitutes the offence of detaining for advantage, the first count on the indictment. By s 90A of the Crimes Act it carries a maximum term of imprisonment for twenty years.

11    After RG secreted herself in the hotel toilets the applicant drove west until the car ran out of fuel. He slept in bushland and in fact remained in the bush for about four days.

12    On Thursday 13 May the applicant broke into the house of his third victim, PH. PH was a fifty-six year old woman who lived with her husband in a rural area near the Hunter Valley. She left her house during the morning of that day. When she returned at about 4.20 pm she found the applicant in the family room. In response to her queries about what he was doing and how he had gained entry he said that he had been watching the house for five days, that he knew when her husband would be home, and told her that he wanted her car. He told her not to do anything and that he was not going to hurt her. She saw that he had in his pocket one of her kitchen knives. He told her he had been in the house since 11 am. It later transpired that he had taken some of her husband’s clothing and a quantity of food and alcohol.

13    The applicant then ordered PH to go into the laundry which she did for a short time before walking back to the kitchen and offering the applicant a cup of coffee. She engaged him in conversation. He ensured that the knife was both readily available to him and visible to her. He told her that he had entered by buckling the screen on the bathroom window, that he had stolen a car in Sydney, and that he had raped another woman.

14 After some more conversation the applicant told PH that he was going to tie her up, and he proceeded to do so, using her own pantyhose and scarf. He took the money in her purse, $40, and drove off in her car, leaving her tied hand and foot. He took with him the clothing, food and alcohol in his possession. This offence is the offence of aggravated break enter and steal to which the applicant pleaded guilty. An offence of break enter and steal committed in circumstances of aggravation as defined in s 105A of the Crimes Act carries a maximum penalty of imprisonment for twenty years. There were, in fact, at least two circumstances of aggravation: the applicant was armed with an offensive weapon (the knife) and he deprived the victim of her liberty by tying her up. It was the latter on which the Crown relied.

15    The theft of PH’s car is the offence of stealing a motor vehicle taken into account. If charged separately it carries a maximum penalty of imprisonment for five years.

16    About 7.15 pm that evening Highway Patrol Police at Scone recognised and followed PH’s vehicle which the applicant was driving. They signalled to him to pull over. He ignored their signals and continued to drive. On the outskirts of the town he accelerated and was pursued by police. The vehicles reached speeds in excess of 150 km per hour. Other police vehicles joined the chase. The applicant led police through a number of country towns at high speed until he extinguished the lights on the vehicle and then skidded across the roadway and down an embankment. This was the offence of driving in a manner dangerous to the public taken into account. Such an offence, where charged separately, in accordance with the legislation then in force (the Traffic Act 1909) carried a maximum penalty of a fine together with imprisonment for nine months in the case of a first offence or a fine together with imprisonment for twelve months for a second or subsequent offences. The applicant had, in fact been twice previously convicted of such an offence. Following this incident the applicant was arrested. He immediately told police that he had tied up PH and had taken her car. Without identifying his earlier crimes, he acknowledged that he had done “something” in Sydney about which they would learn. He identified the clothing and other items he had stolen from PH’s house.

17    The applicant voluntarily participated in two interviews, each of which was electronically recorded. The first, which commenced at 1.12 am on 14 May, concerned the offences against PH. He told police that, after leaving the Lawson Hotel, he had spent four days in the bush before breaking into PH’s home. During that time he had used PH’s outside tap to supply himself with water and had made observations of her husband’s movements. This equipped him with sufficient information to break into the house with relative safety.

• • •

18    As the foregoing account clearly demonstrates, the applicant embarked upon a most horrifying criminal episode. There was quite extensive subjective material placed before the sentencing judge.

Subjective circumstances

19    The applicant was born on 30 December 1970. He was twenty-eight years of age when he committed the offences. He already had a substantial criminal record which, significantly, included three separate convictions for assault, two of which involved the infliction of actual bodily harm. In January and November of 1997 he committed assaults upon his then de facto wife. He has also been convicted of a number of driving and other offences. He has served four previous terms of full time imprisonment, one term of periodic detention (which was subsequently cancelled and converted to a term of full time imprisonment) and, according to his mother, a period of home detention.

20    The applicant himself did not give evidence in the sentencing proceedings. His mother gave evidence on his behalf. She is the Director of Nursing at a large Sydney Hospital and holds specialist qualifications in psychiatric nursing. She recounted a troubled family history. From her evidence, together with histories taken by Dr Robert Lewin (a psychiatrist), Ms Anita Duffy, (a psychologist), and a pre-sentence report prepared by the Probation and Parole Service, the following can be derived. By the age of eighteen the applicant had a history of abusing alcohol, to which he was introduced by his alcoholic father at the age of fourteen. In 1990, aged nineteen, he was diagnosed as having a mixed Personality Disorder with anti-social and borderline character traits. On four separate occasions he has overdosed on alcohol and/or other drugs. In 1999, in Long Bay Prison Hospital, Adjustment Disorder with Depressed Mood was diagnosed.

21    The applicant has made some attempts to deal with his obvious alcoholism, having undertaken a detoxification course in 1989, the William Booth Programme in 1995, and having intermittently attended Alcoholics Anonymous. While alcohol is his principal drug he has also used tobacco, marijuana, amphetamines, and occasionally heroin, without developing an addiction to the last. He has made a number of suicide attempts.

22    The applicant lived with his family in country NSW until the age of six, when his mother left her husband and brought the applicant and his sister to Sydney. This caused quite intense resentment in the applicant. In recent years he has told his mother of certain incidents of sexual abuse committed on him in his youth by the husband of a friend of hers.

23    He has two children, now aged about twelve and nine, the result of a previous relationship, with whom he has no contact. He has had at least one other de facto relationship, with the victim of the assault offences earlier mentioned. At the time of the offences he was in a de facto relationship with another woman. She was away on holiday at the time of the these offences.

24    He has commenced, but not completed, an apprenticeship as a motor mechanic but has been able to hold down employment at different times. He has, however, lost employment on many occasions because of his alcohol consumption.

The remarks on sentence

25    The sentencing judge had regard to all of the material before him, including the psychological, psychiatric and pre-sentence reports. He found no causal connection between the applicant’s background and upbringing and the commission of the crimes. He recognised that the applicant has psychological problems, particularly related to the sexual abuse as a child, but found that, except for his consumption of alcohol before the rapes of RG, these were not the cause of his behaviour.

26    He recognised, correctly, the need to discount the sentence by reason of the applicant’s pleas of guilty and that the discount was to be significant because the pleas obviated the need for the victims to relive their ordeals. He observed also, again correctly, that the value of the pleas was to be seen in the light of the strength of the Crown case, which was, in relation to each victim, very substantial indeed. However, sentencing before the decision of this court in R v Thomson and Houlton [2000] 40 NSWLR 383, his Honour did not quantify the extent to which he discounted the sentences as judges are, post Thomson, encouraged to do.

27    The sentencing judge firstly determined the sentences appropriate to each of the counts to which the applicant pleaded guilty. These he specified as follows:

1 The offences against RG: detain for advantage: imprisonment for a total term of nine years;
2. each of two counts of sexual intercourse without consent: imprisonment for a total term of nine years;
3. The offences against PH: aggravated break enter and steal: imprisonment for a total term of six years.

28    He determined that since the offences against RG and PH represented two quite separate incidences of criminality, no reason existed to make the sentences concurrent, and that, therefore, the sentences in relation to the offence against PH should be served cumulatively upon those imposed in relation to the offences committed on RG. Wholly cumulative sentences of the length previously mentioned would have resulted in a total term of fifteen years.

29    His Honour then considered the question of totality. He concluded the overall sentence appropriate to the entirety of the applicant’s criminality, balancing the subjective and objective circumstances, to be a minimum term of ten years with a total term of thirteen years and four months. This represents a reduction of the overall sentences, for totality considerations, of one year and eight months.

30    His Honour considered whether special circumstances existed justifying departure from the ratio mentioned in s 5(2) of the Sentencing Act 1989, but concluded that there were none.

31    The sentences he accordingly imposed were:

1 aggravated break enter and steal (PH): imprisonment for a fixed term of four years and four months, to commence 14 May 1999 and expire on 13 September 2003;

2 for the offence of detaining for advantage, and each of the offences of sexual intercourse without consent (RG): imprisonment for a total term of nine years, with a minimum term of five years and eight months and an additional term of three years and four months, these sentences to commence on 14 September 2003.

32    The sentences imposed for the offences relating to RG were therefore to be served concurrently with one another, but cumulatively upon that in relation to the offences relating to PH.

The application for leave to appeal

33    On behalf of the applicant it was argued that the overall sentence is manifestly excessive, having regard both to the objective criminality and the subjective circumstances. Counsel for the applicant relied upon a number of individual arguments. Firstly, he argued that the sentencing judge overstated the applicant’s criminal history.

34    His Honour said:

“Although the prisoner has assaulted a number of women, I cannot say that it is typical of the prisoner that when he is affected by intoxicating liquor that he has consumed he is prone to assault women. However, it is clear that the prisoner has learnt nothing from the previous convictions that he has suffered and the penalties imposed upon him for the offences that he has committed.
…

His criminal record contains convictions for assaults upon women and I fear that, as history has the habit of repeating itself, his assaults upon women will continue when he wants something that he does not have or has been denied.
…

The prisoner has shown in a past that he is prepared to assault women, particularly if things do not go his way.”

35    From these passages, it was argued, it can be seen that the sentencing judge perceived a “continuity” or “pattern” of offences not warranted by the record. I accept neither of the propositions contained in the submission. The first passage extracted in particular shows that the judge was stopping short of concluding that such a pattern existed. And, in any event, I do not think it could be said that, if his Honour had reached a conclusion that the applicant engaged in a pattern of such conduct, that conclusion would have been unwarranted by the evidence. In this respect it would be proper to have regard, not only to the offences against RG and PH, but to the statements of facts relating to the two assaults on the applicant’s former de facto wife in 1997.

36    I perceive no error in this respect.

37    Second, counsel argued that the sentences do not reflect a real discount for the pleas of guilty. In particular, he argued, recognition should have been afforded to the applicant’s very early confessions, coming as soon as he was apprehended, and in circumstances in which the applicant could not have known of the strength of the Crown case. There is some, but limited, force in this argument. True it is that the applicant did not know what evidence the police had accumulated, but he had committed the offences against RG at his parents’ home (which she was able to describe, and at which she had left a note seeking help), he had driven her off in his mother’s car (the registration number of which she had had ample opportunity to take), and he had not attempted to disguise himself from any of the victims. He was apprehended in the act of driving PH’s vehicle, and in possession of property stolen from her home.

38    Notwithstanding this, it is true that the applicant is entitled to a real discount. A trial (or trials) would have been lengthy and traumatic for the victims.

39    Nevertheless, I am not persuaded that inadequate account was taken of the pleas of guilty. His Honour specifically referred to his pleas at the earliest appropriate opportunity, to their relieving the victims of the burden of giving evidence, and to the savings of the time and costs a trial would have involved.

40    The third matter raised by counsel concerned the applicant’s expressed remorse. In this respect he referred to a letter written to the applicant’s solicitor by the woman who was his de facto wife until his incarceration (and who still apparently perceives himself in that role) and which was tendered in evidence on his behalf. She recounted her first visit to the applicant in prison, describing him as looking:

“so depressed, he couldn’t look at me, he didn’t speak for about ½ hour or so, and when he did, he was just start crying (sic), saying he was so ashamed, for what he had done he said he ‘was out of control’ and so remorseful, wish he could take it all back and start again.”

She claimed that he still cries and is ashamed of his actions.

41    There were also some expressions of regret in the reports of the interviews with the various professionals. In the Pre-Sentence Report the applicant is said to have to indicated “that he felt extremely remorseful after committing the offences”. However, these expressions of regret have also to be seen in the light of the applicant’s own words when interviewed. Particularly in relation to RG, these statements were not made in the immediate aftermath of the crime. His answers make clear that his intention was to have intercourse with RG regardless of her views. Perhaps most telling is an answer he gave after acknowledging that RG had told him to stop. He said he did not stop straight away and when asked why he said it was because:

“Just, I hadn’t finished yet.”

42    Notwithstanding this, the sentencing judge did find that there was some remorse, and he recorded his acceptance that the guilty pleas were an indication of remorse, he noted the expressions of remorse made to the applicant’s mother, to his de facto, and to Dr Lewin. His Honour noted, however, that in the absence of evidence from the applicant, he was in no position to assess for himself the genuineness of the stated remorse. He added that he did not reject the earlier such expressions.

43    In my view the evidence permitting a finding of real remorse was qualified, and this, in effect, is what his Honour observed. In any event, in my view, the value of remorse as a component in any sentencing decision for the purposes of mitigation lies primarily in its capacity to offer encouragement that the offender will not repeat the crime, and as evidence of insight into the offending behaviour, again, as a predictor of a reformed outlook. Here the judge was plainly not satisfied that the applicant’s expressions of remorse were of that character. In my view he was correct in that assessment. The remorse expressed was of limited relevance in this sentencing exercise.

44    The final matter argued on behalf of the applicant related to the medical and psychological opinions as to his emotional, psychological or psychiatric condition. Counsel for the applicant relied upon the principles stated in R v Letteri (unreported, CCA 18 March 1992) and similar cases. The nub of those cases is that, where an offender is shown to have been affected by reason of some disability in the commission of the offence, reduced weight may be given to the need for general deterrence as a factor in the sentencing decision. In my opinion this is not such a case. In a passage to which I have already referred, his Honour rejected the proposition that his emotional problems were the cause of this episode of criminality. Even without that express finding, I would not accept the proposition that the applicant’s culpability was in any way reduced, or that the need for the sentence to reflect the element of general deterrence was reduced. These offences were of a most serious kind. In my view, taking into account all relevant circumstances, the sentences imposed were well within the range available to the sentencing judge, and properly structured to take account of the requirements stated in Pearce.

45    I would grant leave to appeal but dismiss the appeal.

46    SMART AJ: I agree with Simpson J.

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