Regina v B M T

[2000] NSWCCA 112

CITATION:	REGINA v B M T [2000] NSWCCA 112
FILE NUMBER(S):	CCA 60396/99
HEARING DATE(S):	15 March 2000
JUDGMENT DATE:	15 March 2000
PARTIES :	B M T - Applicant Regina - Respondent
JUDGMENT OF:	Simpson J at 1; Barr J at 20

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0558
LOWER COURT JUDICIAL OFFICER :	P J Phelan DCJ

COUNSEL :	J C Nicholson SC - Applicant D C Frearson - Crown Respondent
SOLICITORS:	T A Murphy - Applicant S E O'Connor - Crown Respondent
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Criminal Appeal Act 1912
CASES CITED:	R v Veen (No.2) 164 CLR 465
DECISION:	Application granted for extension of time within which to apply for leave to appeal.; Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60396/99

SIMPSON J
BARR J

Wednesday 15 March 2000


REGINA v BMT

Judgment

SIMPSON J :

1 On 25 October 1996 the applicant was sentenced by P Phelan DCJ in the District Court following his plea of guilty to a charge of aggravated sexual assault brought under s 61J of the Crimes Act 1900. At the applicant's request, pursuant to s 21 of the Criminal Procedure Act, 1986, in sentencing his Honour also took into account an offence of malicious damage. He sentenced the applicant to a total term of penal servitude for twelve years made up of a minimum term of nine years and an additional term of three years.

2 By application dated 25 June 1999 the applicant seeks leave to appeal against the sentence. By reason of the time limits imposed by s 10 of the Criminal Appeal Act 1912, he requires an extension of time to pursue the application. He also seeks to go behind the abandonment of an application for leave to appeal earlier filed. The Crown does not oppose the extension of time necessary, or the grant of leave that would enable the applicant to revive the original application for leave to appeal, and in my view, the appropriate leave and extension should be granted.

3    The sexual assault offence was committed early in the morning of 12 July 1996. It was aptly described by the sentencing Judge as "horrendous". It is unnecessary to go into the circumstances of the offence in minute detail. A short summary will suffice to demonstrate that nothing but a lengthy term of imprisonment would suffice to meet its objective gravity.

4    The applicant was released from gaol on parole on 7 September 1995. Whilst in custody he had for a time shared a cell with a man with whom the victim, S, was in a relationship. The applicant had met S on one or two occasions when she visited the gaol and at the home of a friend after his release. S lived in a home unit in an inner city suburb with her three-year-old son. At about 6.30 a.m. on 12 July they were at home in their beds. The applicant arrived and knocked on the door and S, recognising him, allowed him to enter. Initially he asked for a cup of tea and she agreed to this but shortly after he made plain that his intentions were to engage her in violent and non-consensual sexual activity with whatever degree of force was necessary to achieve that end.

5    He produced a large carving knife which he pointed at her. Thereafter, he subjected her to a series of degrading and violent sexual acts, which included penile and digital anal penetration, penile and digital vaginal penetration, cunnilingus and forced fellatio. He threatened her with other physical violence which she resisted. S was in tears, as was her son, who remained present in the apartment throughout the entire episode. On at least two occasions the applicant told the child to wait in another room.

6    Eventually S, with the child, was able to escape and ran to the home of a friend who lived nearby. She arrived there at about 10.10 a.m. This would indicate that the entire episode, therefore, had taken in excess of three and a half hours.

7    Police attended the premises but the applicant would not permit access. From 11 a.m. to 4 p.m. police negotiated with him and eventually used a mechanical robot called a Cyclops, of the kind which is used in bomb disposal, to explore the apartment. The applicant kicked the robot and slammed a door on it causing damage to the mechanics. This gave rise to the offence which was taken into account under the Criminal Procedure Act. Eventually the applicant was arrested at 4.15 p.m. and taken to the local police station where he was interviewed. He claimed to be unable to remember anything, including his name, his address or where he had been.

8    From the above outline of the facts it can be seen that the gravity of the offence can scarcely be over-stated. It clearly lies at the upper end of the scale of offences of its kind and calls for a very lengthy term of imprisonment indeed. It has to be noted that the grounds of the present application do not assert that the sentence at the time it was imposed was excessive and this no doubt explains the earlier abandonment of the application for leave to appeal. The applicant was liable to a maximum sentence of penal servitude for twenty years.

9    The applicant was born on 19 September 1947. He was forty-eight years of age at the time of the offence. As will be apparent from the history, he was on parole at the time, having been released from prison a few months earlier. He had spent something like twenty-one of the previous twenty-eight years in gaol. His lengthy criminal record includes, relevantly, an offence of buggery for which in 1969 he was sentenced to imprisonment for seven years with a non-parole period of five years; a 1978 conviction for rape, for which he was sentenced to imprisonment for eight years; sexual intercourse without consent in 1982, resulting in a sentence of imprisonment for four years; and indecent assault on a female in 1986, resulting in a sentence of nine months’ penal servitude.

10 The principal focus in the sentencing proceedings concerned the likelihood that the applicant presented a danger to society in the sense discussed by the High Court in R v. Veen (No 2) 164 CLR 465. Psychiatric evidence was to the effect that past violence is the most reliable indicator of future violence.

11    I should add for completeness, although it is not specifically relevant to the grounds argued on appeal, that the shocking circumstances of the offence were matched by a personal history that is, in its own way, equally shocking and which, while it cannot in any way excuse the crime, might go some distance in explaining the brutality displayed by the applicant.

12    He was the twelfth of fifteen children. His father was alcoholic and violent. His mother was also violent. He was a slow learner at school but received no remedial education. He has attempted suicide on a number of occasions since he was a child. He had symptoms of temporal lobe epilepsy. He has been assaulted in gaol, suffering serious head injury which left him in a coma for six to eight days, and it is believed that there is some degree of brain damage as a result. In April 1996, a few months after his last release, he sought medical help for panic attacks, depression, suicidal and homicidal thoughts. The clinical psychologist who assessed him wrote to the Probation and Parole Service drawing attention to his condition and his need for "management and rehabilitation".

13    Only one matter was argued on the appeal. It has two parts. In sentencing the appellant Phelan DCJ said:

"There are further aggravating features. Had I asked the Crown to address me, she would have undoubtedly drawn to my attention that this was committed whilst he was on parole and, secondly, would have drawn my attention to his record which shows that he was convicted of assault female with act of indecency on 28 May 1969, of buggery on 28 November 1969, of rape on 4 August 1978, of sexual intercourse without consent in 1982 and sexual assault in 1986."

14    There were many other matters on the applicant's record to which his Honour did not specifically refer but two are of importance. Importantly for present purposes, there were two offences for which he was convicted on 29 September 1988; one was of aid and abet assault occasioning actual bodily harm; the second of maliciously inflicting grievous bodily harm with intent to murder. On the second of these the applicant was sentenced to imprisonment for fifteen years with a non-parole period of eleven years. It was in relation to this sentence that the applicant was released on parole in November 1995.

15    In April 1999 these convictions were quashed by this Court and verdicts of acquittal were entered. It was therefore argued on behalf of the applicant that the weight given to his record in sentencing was excessive, being inevitably coloured by the misapprehension that he was guilty, not only of all of the other offences his record disclosed but also these two offences of which he is now recognised to be not guilty.

16    I cannot accept this argument. In the passage of the remarks on sentence which I have already extracted, the sentencing Judge was focusing his attention specifically on the applicant's previous convictions in matters of sexual violence. He made no express mention of the two charges of which the applicant was subsequently acquitted and it would, in my view, be wrong to conclude that, in relation to a violent sexual offence, those convictions operated on the Judge's mind to increase the sentence.

17    The second part of the argument concerned the weight that was also given to the fact that the applicant was on parole at the time of this offence. While no argument was put about the retrospective validity or otherwise of the parole order, having regard to the subsequent acquittal, it was put that, as is now known, the applicant ought not to have been on parole and that therefore the weight given to that otherwise aggravating circumstance was unfair. This argument has to be seen in light of the fact that, notwithstanding the subsequent acquittal, the applicant was undoubtedly subject to a valid parole order and conditions at the time and he was in breach of those conditions. Perhaps, more importantly, although his status as a parolee was regarded by the sentencing Judge as an aggravating factor, when that is taken in the context of the overall circumstances as I have outlined them, and the remarks on sentence, that fact can have made very little, if any, identifiable difference to the result.

18    As I have said, throughout the sentencing proceedings the focus of attention was on the extent to which the applicant presented a danger to society and also on the undoubted objective gravity of the offence.

19    I therefore propose the following orders:

1. The applicant be granted an extension of time within
which to apply for leave to appeal.
2. Leave to appeal be granted.
3. Appeal dismissed.

20    BARR J: I agree.

21    SIMPSON J: The orders will be as I have proposed.

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