Regina v Cutmore

[1999] NSWCCA 132

Reported Decision: 108 A Crim R 155

New South Wales

Court of Criminal Appeal

CITATION:	Regina -v- Cutmore [1999] NSWCCA 132
FILE NUMBER(S):	CCA 60672/98
HEARING DATE(S):	28/05/99
JUDGMENT DATE:	28 May 1999
PARTIES :	Crown Jason Dallas Sean CUTMORE
JUDGMENT OF:	Ireland J at 1; Kirby J at 46; Carruthers AJ at 47

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Johnston, Acting DCJ

COUNSEL:	Crown - LMB Lamprati Respondent - PM Strickland
SOLICITORS:	Crown - CK Smith Respondent - TA Murphy
CATCHWORDS:	Crown appeal, inadequacy of minimum term of 4 yrs in total sentence of 9 yrs - kidnapping of 12 year old girl with serious sexual assaults involving some physical injury - undervalue of objective circumstances and public deterrence - overestimation of the significance of subjective features demonstrating manifest error in sentencing.
ACTS CITED:	Sentencing Act, 1989 Crimes Act, 1900
CASES CITED:	R -v- Fernando (1992) 76 A Crim R 58 R -v- A. Jones (NSWCCA 30/06/94) R -v- Allen (NSWCCA 04/07/94) Regina -v- Khoury (NSWCCA 05/12/94) Tindall & Gunton 74 A Crim R 275 @ 277 Rushby (1977) 1 NSWLR 594 @ 597-598 R -v- Withers (1925) SR 382 at 394; Whittaker -v- The King (1928) 41 CLR 230 @ 248-9 Griffiths -v- The Queen (1977) 137 CLR 293 @ 310 Regina -v- Gulam Mohammad Khan (NSW CCA 27/05/96
DECISION:	Crown appeal allowed; sentence imposed on 4 September, 1998 of 4 yrs minimum term and 5 yrs additional term quashed, in lieu minimum term of 6 yrs with additional term of 3 yrs imposed.

IN THE COURT OF
CRIMINAL APPEAL

60672/98

IRELAND J
KIRBY J
CARRUTHER AJ

Friday, 28 May, 1999

REGINA -v- Jason Dallas Sean CUTMORE

JUDGMENT

1    IRELAND J: This is a Crown appeal against alleged inadequacy of sentence imposed upon Jason Dallas Sean Cutmore, the respondent, by his Honour Acting Judge Johnston, QC on 4 September, 1998 at the Inverell District Court.

2 On 24 August, 1998 the respondent pleaded guilty to one count of kidnapping in contravention of S 90A of the Crimes Act, 1900 and one count of aggravated sexual assault in contravention of S 61J of the Crimes Act.

3    Each of these offences carries a maximum penalty of penal servitude for 20 years.

4    The respondent was sentenced in relation to both counts to penal servitude for a minimum term of 4 years and an additional term of 5 years, the sentences to be served concurrently.

The Crown Case:

5    The Crown case in respect of the charges to which the respondent pleaded guilty may be briefly stated as follows.

6    Between 11 pm on Monday, 15 December, 1997 and 1 am on Tuesday, 16 December of that year, the victim, a twelve year girl, was asleep in her bedroom in her home situated in Clarke Street, Glen Innes. The victim’s bedroom, at the front of the house, had a window opening on to a verandah. The respondent entered the victim’s bedroom through the window, stating in evidence that his intention was to rob the house.

7    Finding the victim asleep in her bed, the respondent resolved to sexually assault her and to this end, placed his hand over her mouth and carried her from the house, out through the window and down the street. At the street corner, the respondent put the victim down and said to her “Just keep walking and shut up”.

8    A short time later, a car came down the street and the respondent placed the victim over an adjacent fence, behind which he also concealed himself, until the car passed. The victim complained that the respondent kept his hand over her mouth so tightly that she could hardly breathe.

9    After the car passed, the respondent and the victim climbed back over the fence, whereupon the respondent said to the victim “run” and in this manner they both proceeded towards the Glen Innes Showground.

10    At the showground the victim was taken to the sheep shearing pavilion where the respondent ordered the victim to “get your clothes off”. The victim at first refused, but eventually did remove her clothes. She was ordered by the respondent to “lay down” and to “open your legs”.

11    The respondent kissed the victim on the mouth and thereafter she felt the respondent’s finger in her vagina which caused her pain. The victim cried out and the respondent removed his finger. He said “Do what I say and it won’t happen again”. The respondent then forced the victim’s legs apart and licked the victim’s vagina.

12    When the respondent ceased this activity, the victim sat up and saw that the respondent was not wearing any pants. The respondent took hold of the victim’s hand and tried to force her to touch his penis. The victim tried to run away and the respondent grabbed her by the hair and pulled her back. The victim was forced to perform oral sex on the respondent, who thereafter lay on top of the victim and kissed her again on the mouth. The respondent ejaculated on the floor of the pavilion. He then allowed the victim to dress and leave, saying to her “If you tell anyone I’ll come back and kill you”.

13    The victim ran home and told her mother of the events which had occurred. The respondent was initially interviewed by police on 16 December, 1997 and denied committing the offences. A blood sample was taken from the respondent. Analysis of the semen found on the pavilion floor at the showground was compared with the blood sample and demonstrated a match. The respondent was arrested on 22 January, 1998 and declined to participate in an interview.

14    Upon medical examination of the victim, a large amount of blood was found in the vagina and there were a number of hymenal tears found in the hymen and in particular, a large tear posteriorly which dissected through the vaginal ring and through the vaginal skin in to the muscle layer. This tear required surgical repair under anaesthesia.

15    On 22 January, 1998 the respondent was arrested hiding under a bed at 47 Wentworth Street, Glen Innes.

16    At the hearing on 2 September, 1998, the respondent gave evidence and called evidence from his brother and his mother.

17    Subjectively, the respondent was born on 15 May, 1975 and was aged twenty two and a half years at the date of the offences. He was aged twenty three at the time of sentence. He is the youngest in a family of eight children, which is comprised of four brothers and three sisters, as well as the respondent.

18    The family background of the respondent, which was taken into account by the sentencing judge, included the fact that the respondent and his family resided for some years in a two room tin shack before being granted tenancy of a Housing Commission premises. Alcohol abuse was prevalent within the family with seven of the eight children having a recognised alcohol problem. At twelve years of age in his evidence and at fourteen years, on his mother’s testimony, the respondent developed a serious drinking problem, which is reflected in a number of alcohol related offences in his criminal history.

19    At the time of the offences in question, he was on parole, having been released from custody some three weeks earlier.

20    The evidence of the respondent’s brother, Phillip Cutmore, a drug and alcohol worker with the Department of Corrective Services, discloses that the family background was one of violence between the parents of a serious nature. This witness expressed the view that the respondent’s drinking was, to an extent, influenced by the behaviour of his brothers in this regard.

21    Somewhat in contrast to this evidence, the respondent’s mother testified that although the respondent did drink with his brothers, he did not do so all that often and that she had never seen him drunk at home, in that he would leave the home sober and always came back sober.

22    The respondent has a long criminal history, reaching back to the age of eleven, with numerous appearances before the Local Court on charges of dishonesty, assault, drug possession and administering drugs. He has served a number of prison sentences for these offences. The respondent had a period of employment as a farm hand at a property described as “an Aboriginal property”, prior to his employment being terminated. He was in a relationship with a female for some years and there are two children of that union, one aged four and the other one and a half at the time of sentence.

23 The subjective matters were all referred to and taken into account by the sentencing judge, who also made specific reference to the fact that the pleas of guilty had spared the young victim the ordeal of giving evidence in which she would be required to relive the terror of the events. His Honour accepted that the respondent’s expression of remorse was genuine and placed particular emphasis upon the respondent’s aboriginality and his history of alcohol abuse at an early stage in life citing in part the judgment of Wood J (as the Chief Judge at Common Law then was) in R -v- Fernando (1992) 76 A Crim R 58.

24    A consideration of these factors led the sentencing judge to the conclusion that there were special circumstances within the meaning of S 5(2) of the Sentencing Act and I will return to that aspect of the sentence shortly.

25    In his remarks on sentence, the sentencing judge recognised that the offences, for which the respondent was being sentenced, were serious offences involving a young child who was abducted from her bedroom, taken to a remote area where she was subjected to humiliating and traumatic sexual acts. He noted that “I have no doubt that the terror and memory of this night will not be forgotten by the victim. One can well imagine the long term effect these events will have on the young victim. The community’s abhorrence of these events must be reflected in the aspect of general deterrence.”

26    The submissions made on behalf of the Crown lay emphasis upon the objective seriousness of the respondent’s criminal activity which must be regarded as very high when involving the forcible removal of a twelve year old girl from her bed in her home in the middle of the night and subjecting her to serious sexual abuse and violence in the various offensive and humiliating sexual acts perpetrated upon her, one of which caused her serious pain and left her in need of surgical repair to her genital region.

27    In addition, reliance is placed upon the serious aggravating factor that the respondent was on parole at the time of the offences - see R -v- A. Jones (NSW CCA - 30 June, 1994 - unreported) and R -v- Allen (NSW CCA - 4 July, 1994 - unreported) - as well as the respondent’s bad criminal record involving numerous convictions for break, enter and stealing and convictions also involving violence.

28    The respondent’s plea of guilty, whilst appropriately taken into account, must nevertheless be considered in the light of the strong evidence in the Crown case relating to the DNA testing of the semen sample matched with that derived from the blood sample of the respondent.

29    It is not submitted, on behalf of the Crown, that the respondent’s aboriginality and his background were not matters of significance to be taken into account in sentencing, however, the submission is made that these are factors which needed to be kept in proportion. The distinction is drawn between the facts in Fernando’s case, which relate to a family disputation in which the offender and the victim had a long standing association of many years, against the background of substantial drinking sessions leading to a long series of violent scenes associated with intoxication following excessive consumption of alcohol by a number of people.

30    I accept the Crown submission that it is difficult to gauge the effect which alcohol played in the respondent’s criminal conduct in the present case.

31    Significant is the conduct of the respondent, as disclosed in the victim’s statement, which demonstrates a high degree of awareness of the need to avoid detection by hiding from a passing car and maintaining his hand over the victim’s mouth and ordering her to keep her voice down. The physical capacity exhibited by the respondent in removing the victim from her bed through the window of the house, and by placing her over the fence when the car emerged, all seem to indicate mental awareness and physical capability inconsistent with severe intoxication. In this regard I note the respondent’s evidence that he had been drinking throughout the day and the evening and his response to the leading question, put without objection to him, at p. 3.55 of the transcript of 2 September, 1998 “Q. Were you drunk by the time you went into the house? A. Yes”. This question and answer must, however, be seen in light of the following questions:-

“Q. You have recently got out of Cessnock gaol, is that right?
A. Yes.

Q. About three weeks before?
A. Yes.

Q. Had you been drinking since you got out of gaol?
A. Yes.

Q. How heavily had you been drinking since you got out of gaol?
A. From the time I woke up to the time I went to sleep.

Q. How often?
A. Mostly every day.

Q. Why were you doing that?
A. More or less just catch up on time I missed.”

32    It is patently obvious that if this evidence were to be taken literally, the respondent would be, on any view, incapable of the acts which he performed on the night of the offences.

33    The Crown does not contend that the total sentence was inadequate, but that manifest inadequacy is demonstrated in that the minimum term of 4 years imposed upon the respondent as a proportion of the overall sentence imposed, is far too low.

34    Mr Strickland, on behalf of the respondent, submits that in structuring the sentence imposed, the sentencing judge properly took into account the gravity of the offences, as well as the opportunistic nature of them in that the respondent broke into the house intending to steal money or electrical goods and decided to have sexual intercourse with the victim when he saw her lying in bed.

35    The further submission has been made by Mr Strickland that the impulsiveness with which the respondent committed the offences is explained by his drunkenness. With respect, I do not accept this submission. The sequence of events which transpired after the respondent observed, on his own evidence, the victim in her bed, is demonstrative of a structured plan to get her away from her home, undiscovered by passers by or other persons to a location where he could carry out his planned sexual assault.

36 Whilst the importance of rehabilitation in a case such as the present is a matter of significance, in this court and elsewhere it has been made plain that the most fundamental principle in the sentencing process is that of deterrence. The issue of rehabilitation should never predominate over the question of public deterrence. Regina -v- Khoury (NSW CCA - 5.12.94 - unreported at 8-9); Tindall and Gunton 74 A Crim R 275 at 277; Rushby (1977) 1 NSWLR 594 at 597-598.

37 In determining a minimum term of 4 years, the sentencing judge has, in my view, failed to give due weight to the objective circumstances of the criminal offences to which the respondent pleaded guilty and in this regard, the sentence is manifestly inadequate and the trial judge has fallen into error - see Dodd 57 A Crim R 349.

38    The error lies not in the overall sentence imposed, but in the division of that sentence into minimum and additional terms. In my view there are special circumstances within the meaning of S 5(2) of the Sentencing Act, 1989 which warrant a departure from the statutory ratio. These include in particular the respondent’s relative youth, his need for rehabilitation as to alcohol abuse and his need for ongoing supervision.

39 In structuring the minimum and additional terms of the sentence, the sentencing judge has undervalued the important aspect of public deterrence and overestimated the significance of the subjective features thereby demonstrating error. See R -v- Withers (1925) SR 382 at 394; Whittaker -v- The King (1928) 41 CLR 230 at 248-249; Griffiths -v- The Queen (1977) 137 CLR 293 at 310.

40    In a Crown appeal which inevitably embraces considerations of so called double jeopardy, there is great reluctance to interfere with a sentence imposed. Nevertheless in the words of Allen J in Regina -v- Gulam Mohammad Khan (NSW CCA 27.5.96) with Gleeson CJ and Sperling J agreeing at p 2, it was said:-

“… it is the duty of this Court to interfere where it is necessary to avoid such a manifest inadequacy in sentence or inconsistency in sentencing standards that the error which has occurred in the sentence being reviewed, is of such gravity that it is essential in the administration of justice that the error be corrected”.

41    These considerations are apposite in the present case and the Crown appeal should be allowed.

42    I would propose the following orders:-

43    1. The appeal is allowed.
44    2. The sentence imposed on 4 September, 1998 is quashed.
45    3. In lieu the respondent is sentenced to penal servitude for 9 years, comprised of a minimum term of 6 years deemed to have commenced on 22 January, 1998 and to expire on 21 January, 2004 with an additional term of 3 years commencing on 22 January, 2004 and to expire on 21 January, 2007.

46    KIRBY J: I agree with the orders proposed and the reasons given for those orders.

47    CARRUTHERS AJ: I also agree.

48    IRELAND J: The orders of the court will be as I have proposed.

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