Regina v Daley - [2002] NSWSC 148

No judgment structure available for this case.

CITATION: Regina V Daley [2002] NSWSC 148

FILE NUMBER(S): SC 70001/01

HEARING DATE(S): 02/04/02
10/04/02
12/04/02

JUDGMENT DATE: 26 April 2002

PARTIES :

Regina
Anthony James Daley

JUDGMENT OF: Simpson J

COUNSEL : J Kiely SC (Crown)
E Wasilenia (Defendant)

SOLICITORS: S Grodzicki (Crown)
M Churchill (Defendant)

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Regulation 2000

CASES CITED: R v M A [2001] NSWCCA 30; unreported, 21 February 2001
Cameron v R [2002] HCA 6; unreported, 14 February 2002
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v AEM Senior; R v KEM; R v MM ; [2002] NSW CCA 58; unreported, 13 March 2002 at [113]-[118]
R v Bloomfield, unreported, NSWCCA, 15 July 1998
R v Graham James Kay, unreported, 26 July 2000
R v Lemene [2001] NSWCCA 5, 118 A Crim R 131
R v Harris [2001] NSW CCA 332, unreported, 5 September 2001
R v Perese [2001] NSWCCA 478; unreported, 13 December 2001
Pearce v R (1998) 194 CLR 610
R v Morgan (1993) 70 A Crim R 368
R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152
R v Barton [2001] NSWCCA 63

DECISION: Refer paras 88 and 89

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SIMPSON J

Friday 26 April 2002

70001/01 REGINA v Anthony James DALEY
REMARKS ON SENTENCE

1 HER HONOUR: Anthony James Daley appears for sentence following his pleas of guilty, on 24 May 2001, to each of six counts on an indictment. The counts to which he pleaded guilty were:

Crimes Act, s61J);

Crimes Act, s97(1)

Crimes Act, s90A).

2 In addition he has admitted his guilt of a further thirteen offences and has asked that those thirteen offences be taken into account pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”). Those offences are listed on the form (“the Form 1”) prescribed by Clause 5 of the Crimes (Sentencing Procedure) Regulation 2000 (“the Sentencing Procedure Regulation”). On the Form 1 are:

Crimes Act

3 Offences against s61J and s97(1) carry a maximum penalty of imprisonment for twenty years. Offences against s90A likewise carry a maximum penalty of imprisonment for twenty years unless the court is satisfied that the victim was liberated without sustaining any substantial injury, in which case the maximum penalty is imprisonment for fourteen years. Offences of indecent assault (s61L) carry a maximum penalty of imprisonment for five years. In each s61J count the circumstance of aggravation was a threat to inflict actual bodily harm on the victim.

4 The offences were committed over a period of twenty-two months, beginning on 5 September 1998. The last of the offences were committed on 7 July 2000. The offender was arrested and charged on 31 July 2000 and has remained in custody since that date.

5 In all, seven women were the victims of the offender in the series of offences. The offences committed against all victims followed a fairly distinctive pattern, with quite definite hallmarks. It will be necessary shortly to outline the nature of the offences against each victim individually. Each offence was committed after dark, the victim being a woman alone. In each case the offender accosted the victim, spoke to her, produced a knife or similar weapon (in two cases, a screwdriver), threatened her, demanded money, and demanded that she perform fellatio upon him. There were individual variations in the attacks, as will be seen from the accounts of each set of offences, to which I will shortly turn. I will refer to each of the victims only in that way, and without personal identification, for the purpose of preserving privacy, and with no wish to depersonalise the crimes committed by the offender. The effect of the offences on the victims is a very significant factor in the sentencing decision. I propose to recount the facts of the offences chronologically.

The first attack

6 Having ejaculated, the offender dressed himself and told the victim to dress herself. He demanded her key card and then her PIN. He asked if she had anything gold and took a gold signet ring she was wearing. He told her to lie face down on the ground, not to move or make a sound and yet again threatened to hurt her if she disobeyed. He began to run off, telling her to remain where she was until he had gone. After about twenty seconds the victim began to get up, but the offender was still nearby and told her to remain on the ground. He left the scene.

7 It will be seen from the foregoing account that there were, in fact, two separate acts of sexual assault, constituted firstly by the act of forcing the victim to perform fellatio, and secondly by the act of penile/vaginal rape. The offender has been charged with only one such offence. It is not necessary to determine which of the acts is the act which is the subject of the charge; either act constitutes the offence; neither is, in my opinion, more nor less heinous than the other, and both are available to be taken into account as part of the overall circumstances. The circumstances of aggravation were the production of the knife, and the threats to use it to secure the victim’s compliance. Either of these acts is therefore sufficient to constitute the offence referred to in the first count on the indictment – that is, the offence of sexual intercourse without consent in circumstances of aggravation, contrary to s61J of the Crimes Act. The second offence on the indictment, the armed robbery, was constituted by the demand for and the taking of money and jewellery, accompanied by the production of, and the threat to use again, the knife. The third count on the indictment (detention with intent to hold for advantage) was committed over the whole of the period outlined.

The second attack

8 The second victim was attacked at about 12.35 am on 30 October 1998. She had travelled by bus from the city to Leichhardt, where she lived, and was walking from the bus stop to her home. The offender approached her, holding a large screwdriver at his head height. He told her not to scream, indicating the screwdriver, and said that he needed money. The victim offered him her handbag. He continued to talk about money and said repeatedly that he was “desperate”. He returned the handbag to her, apparently not at that time having taken any money from it, and she told him that, if it was money he wanted, to take it. He put his hand on her head and pushed her to the ground. He pulled down his shorts and exposed his penis which was not erect and told her to “suck on it”. He forced his penis into the victim’s mouth. He sought to engage her in conversation about sexual practices. The victim said she was going to be sick and indicated where she lived which was close by. The offender told her to come back, and finish the interrupted fellatio. She said “anything but that”, and again offered him her handbag, and began to cry. He told her not to scream, again indicating the screwdriver. She gave him the handbag and ran towards her house.

9 The forced act of fellatio, with the threat of the knife (an offence of aggravated sexual assault), and the robbery of the handbag, also with the threat of the knife (an offence of armed robbery) are, respectively, the first and second offences contained on the Form 1. The victim of these offences was twenty-two years of age.

The third attack

10 The offender attacked the third victim at about 10.45 pm of 5 November 1998, a Thursday, also in Leichhardt. This victim, then aged forty, had also travelled from the city by bus and was walking from the bus stop to her home. The offender approached her and asked the time, which she told him. He produced a knife, the blade of which he pointed at the victim, and told her not to scream or he would “jam the knife in [her] throat”. He demanded her bag. She took her wallet from her handbag and gave it to him. He asked if there was much money in the wallet, saying he was “desperate”. She said that the wallet contained a couple of hundred dollars. He demanded the handbag as well and she told him that it contained nothing.

11 He then ordered her to get on her knees. She refused and asked why. He replied: “I want a head job”. He continued to push her shoulder and demand oral sex. She told him that her dog was nearby and that she thought it would bite him. She told him, in forceful terms, that she was not going to comply with his demand. He reiterated the demand, again saying that he was “desperate”. She declined again, telling him to use the money he had stolen to buy what he wanted. She opened her front door revealing her dog in the doorway. The offender ran off.

12 The robbery of the money, with the threat of the knife, constitutes the third offence (armed robbery) on the Form 1. The demands for fellatio with the implied threat of violence, constitute an attempted sexual assault, in circumstances of aggravation, the fourth offence on the Form 1.

The fourth attack

13 The fourth victim was attacked on 20 April 2000 at Parramatta. At about 10.50 pm that evening, the victim, then aged thirty-four, parked her car in the garage of her home unit block. The offender appeared and asked the time. She told him the time and told him to go away. He told her to “hang on a minute”; she told him not to come any closer. He threatened to stab her if she did not shut up, and held up an object which she took to be a knife, but which later proved to be a screwdriver. He ordered her to do as he said, with the threat that, if she did not, he would stab her to death. He walked towards her and demanded her handbag. She told him to take her money, which amounted to about five hundred dollars, but to leave the handbag. He ordered her to shut up and give him “the lot”. She gave him the handbag. He ordered her to get onto her knees and to perform fellatio upon him. She refused and he reminded her of his earlier threat. He unzipped his fly and exposed his penis, grabbed her head from behind, and forced his penis into her mouth. He asked her questions about her personal circumstances and asked if she performed fellatio upon her partner, and whether she had previously engaged in that form of sexual activity or whether this was the first time she had done so.

14 The victim realised that the weapon the offender had brandished was not a knife but a screwdriver and pushed him away from her. He ran off, turning to say “thanks for the head job”. The sexual assault, and the robbery, each with the threat of the use of the screwdriver are, respectively, the fifth and sixth offences on the Form 1.

The fifth attack

15 The assault on the fifth victim took place at about 11.30 pm on 12 May 2000 at Westmead. This victim, like the fourth, had driven her car into the garage of her home unit block and was walking towards her home unit. She was confronted by the offender who asked how much money she had and produced a knife. She told him to take what money she had, which was five dollars. With his left hand on the victim’s shoulder, he held the knife to her throat in his right hand and threatened that, unless she did as he told her, he would cut her throat. She agreed to do as he said and asked him not to hurt her. He lowered the knife to her ribs and forced her out of the garage. She was crying, begging him not to hurt her and asked him what he wanted. He again threatened to hurt her unless she complied with his orders. She continued to plead with him. He told her that he wanted oral sex. He forced her to squat, and pulled down his shorts, exposing his penis which was semi erect, and ordered her to take it into her mouth and start sucking. He continued to hold the knife. He insisted that she perform more actively than she had done, and threatened her again. He asked her some personal questions, including questions about her sexual history. He continued to insist that she do more, and to threaten her. He ordered her to lie on the ground, so that he could have penile/vaginal intercourse with her. She refused. He again forced his penis into mouth and ordered her to keep sucking, threatening to hurt her if she did not. He ejaculated in her mouth and ordered her to swallow the semen. This was accompanied by another threat of injury with the knife.

16 The offender then demanded money and took the victim’s briefcase. He walked off, telling her not to turn around and not to follow him. This victim was thirty-four years of age.

17 The offences against this victim – aggravated sexual assault, armed robbery, and detaining for advantage – constitute the fourth, fifth and sixth counts in the indictment.

The sixth attack

18 The sixth attack was again at Westmead. At about 6.30 pm on 23 June 2000, a Friday, the victim left her employment at a child care centre and walked to her car. She was about to drive off when the car door was opened by the offender, who was squatting on the ground beside the car, brandishing a knife. He told her that he was not joking and ordered her to get into the back of the car. She complied, and he took control of the car and drove off, telling her to keep down and shut up. She pleaded with him not to hurt her. He told her to stop crying and said that if she were “a good girl” everything would be “OK”. He asked if she had any money and she said she did not. He asked if she had any money in the bank and she said she did not. He asked her name, and repeated that if she obeyed his instructions, everything would be all right.

19 The offender threatened the victim with injury unless she complied with his orders. He drove for a time and then returned to the victim’s place of work and told her to get out of the car. He told her to hurry, not to do anything stupid, that he would not hesitate to hurt her and that he had a knife. She alighted from the car, he held her left should with his left hand, and held the knife at her back with the right hand. He walked her towards the back of the child care centre and told her to get on her knees. She was crying and begging him to desist. He pushed her to her knees, exposed his penis, which he inserted into her mouth, and ordered her to perform fellatio. He maintained this position for a couple of minutes. He then told the victim to lie on the ground. He removed her underwear. She asked him not to hurt her. He began to insert his penis into her vagina. He ceased this, and threatened the victim with anal rape. She begged him not to do this and he pulled her to her knees and ordered her to complete the fellatio. He asked her about her personal life and the nature of her sexual relations with her partner. He ejaculated and ordered her to swallow the semen, threatening that if she spilled any of it he would hurt her.

20 He then forced the victim to lie face down on the ground and asked again if she had any money. He told her to get up, threatening her yet again against attempting to escape. He forced her to walk back to the car, with more threats, this time telling her that she was not the first girl that he had done this to.

21 At the car the offender demanded money, taking between two hundred and two hundred and fifty dollars. He ordered the victim to empty the contents of her bag onto the seat of the car and told her to lie down on the back seat. He asked questions about her relationship and told her that her partner could be blamed for what had happened. He wiped down those parts of the interior of the car that he had touched and told the victim to remain where she was and give him a couple of seconds to get away. He ran off. The victim of this offence was twenty-five years of age.

The seventh attack

22 The last attack in the series occurred on 7 July 2000 at Westmead. The victim, then aged twenty-one, travelled by train to Westmead station where her car was parked, arriving at about 6.25 pm. When she entered her car she discovered that the rear passenger quarter window had been smashed. She got out of the car to examine the damage and was approached by the offender who asked if she owned the car. He said he had seen two men smash the window and run off a few minutes earlier. He then grabbed the victim by the right shoulder and told her that he had a knife and that she was to do as he said. From behind her he held a knife to the front of her throat. He forced her away from the car, telling her again to obey his directions and saying that he was not afraid to kill her. She repeatedly asked where he was taking her and what he was planning to do but he did not reply. He directed her to a narrow passage at the rear of a house and turned her to face him, holding her right shoulder with his left hand and still holding the knife in the other. He told her to get down on her knees and when she asked why he said: “I want you to suck me”. She refused. He told her to get down, she declined again, and he told her he was not afraid to kill her. He asked “do you want me to fuck you?” She said that she did not, and he then insisted that she perform fellatio and repeated that he was not afraid to kill her. She asked why he could not pay for such services and he asked how much money she had. She said that she had twenty to thirty dollars to which he replied, “don’t bullshit me”, but the victim repeated that this was all the money she was carrying. The offender then asked the victim to kiss him, and said that, if she kissed him properly, he would leave her alone. He kissed her on the mouth, still holding the knife, which he then moved towards her. She screamed. The offender returned to the victim’s car and took her handbag which contained twenty or thirty dollars in cash and various other items valued at about seven hundred dollars. He walked away.

23 The act of kissing the victim is the offence of indecent assault, the tenth offence on the Form 1; the attempt to force the victim to perform fellatio upon him is the offence of attempted aggravated sexual assault, the eleventh offence on the Form 1; the taking of the handbag together with the threat to use the knife, is the twelfth offence (of armed robbery), and holding of the victim and forcing her to the passageway behind the house is the detaining for advantage, the thirteenth offence on the Form 1.

24 Pursuant to s28 of the Sentencing Procedure Act, I received victim impact statements made by the fifth, sixth and seventh victims. I consider it appropriate to take the contents of the statements into account.

25 The fifth victim wrote of fear, anxiety, anger, panic, isolation, lack of trust and an inability to forgive, which are now features of her personality, and which, she said, contribute to a feeling that she is of little worth. She said that the attack had adversely affected her personal relationship with her partner, because she has withdrawn emotionally. She wrote of a personality change, episodes of reflection and depression which can last for days at a time. She fears being out after dark, is security conscious and is unable to bring herself to use the garage where she was confronted. Her professional life (as a nurse) has been adversely affected because she does not trust herself to react appropriately to some patients’ needs.

26 Annexed to this victim’s victim impact statement was a report of a social worker.

27 Despite the doubts about the admissibility of such a report expressed by Hulme J in R v M A [2001] NSWCCA 30; unreported, 21 February 2001, I have come to the view that the definition of “victim impact statement” contained in s26 of the Sentencing Procedure Act is broad enough to permit its reception. In this regard cl 9 of the Sentencing Procedure Regulation is material. However, the report adds little to the statement made in her own words prepared by the victim, except that the author purports to diagnose post-traumatic stress disorder, a diagnosis I doubt her qualifications to make. I propose to treat the report as part of the victim impact statement prepared by the victim herself, as confirmatory of the experiences related by the victim, and as evidence that the victim is undergoing continuing treatment and counselling as a result of the attack upon her.

28 The sixth victim similarly wrote of changes to her life since the offences committed upon her. She has, for the first time, difficulty sleeping, difficulty with her memory, and has been treated for depression. She, too, has undergone personality change, and experiences mood swings, anger, frustration and sadness. Her social life has been affected; she is unable to take pleasure in her social contacts. She has had only one, short-lived, relationship since the offences. She lacks motivation to go to work, although she forces herself to do so. She is fearful and security conscious. She no longer enjoys being alone. Her statement was made on 23 July 2001, a little over a year after she was attacked.

29 The seventh victim wrote of similar experiences. Her statement was made on 10 July 2001, almost exactly a year after her attack. She wrote of a constant state of terror for several days after the attack, her constant need for company, and an awareness that the offender was at large and knew where she lived. She had four weeks off work, and on the day she was to return to work, although ready and fully dressed, she found herself too frightened to walk out the door. She was afraid of a repetition of the attacks upon her. She cried herself to sleep at night, feeling isolated. That feeling had persisted, at least to the time when the statement was made, although it was diminishing in intensity.

30 This victim underwent weekly counselling for about three months to assist her to come to terms with the events, and to help her cope with everyday living. Her work performance was affected. Reminders of the offences brought her to tears. She feels that she has restricted personal freedom, has lost independence, and makes a point of travelling with a friend or family member to the railway station.

31 Her difficulties with transport to work, together with the association between the attack and her work, have led to a decision to change her job. She gave instances of the effect upon her daily perceptions of the world, and her relationships with other people.

32 This victim impact statement was also supported by a report, this time from a registered psychologist to whom the victim was referred by her general practitioner. Once again, the report (unsurprisingly) is largely confirmatory of the victim’s own account. This victim also was diagnosed as suffering post traumatic stress disorder at a chronic level, mild stress, moderate depression and extremely severe anxiety.

33 Bearing in mind the facts of the offences, as I have recounted them earlier, there is nothing in any of these statements or reports that causes the slightest surprise. Indeed it would be surprising if all victims did not suffer at least some of the symptoms and consequences described in these statements. I am prepared to infer that the lives of all the victims have been affected in at least some of the respects described by these three.

34 There was evidence of the immediate effect on each of the victims, and the state of fear and anxiety in which they reported the attacks. This, again, is no surprise.

35 I earlier recounted the circumstances of the offences at some length and in some detail because, it seems to me, it is only by doing so that the full horror of each of the attacks and the brutality and callousness with which they were committed can properly be appreciated. It is also of some significance to identify the common features of the attacks to show the repetitive nature of the offender’s behaviour and the pattern of conduct that emerges. This has some relevance for sentencing purposes.

36 Objectively, the gravity of each attack is manifest. Each victim was subjected to a sustained and terrifying ordeal, to the humiliation and degradation of completed or threatened or attempted sexual assault of the most intimate kind; was threatened at the point of a knife or equivalent weapon; and was, finally, robbed. Some were explicitly threatened with murder. The commission of offences of this kind can and often does destroy the even tenor of victims’ lives for many years, sometimes permanently. Many victims of offences such as these never recover from their psychological effects. Moreover, attacks of this kind (as with many other offences) have ramifications going beyond those which affect the individual direct victims. They affect the freedom of all women to use public streets, particularly after dark, and create justifiable fear in those who have no alternative but to use public transport, and public streets, at night. These considerations may properly be reflected in the sentences to be imposed, as relevant to the issue of general deterrence.

37 Against these factors must be balanced what is known of the offender’s personal circumstances. He was born on 14 August 1974, and was, therefore, twenty-four years of age at the time of the first offences, a little short of twenty-six at the time of the last. He was born and raised in Moree, a member of a large Aboriginal family. His parents separated when he was eleven or twelve years of age. At times he lived with his grandmother. He went to school in Moree, but was not very successful in his studies, and left school at about the age of fourteen. At that time he could write his name but little else. He came to Sydney in about 1995 and had considerable success as a sportsman, playing professional rugby league. He was able to obtain work during the Olympic Games.

38 He has a lengthy criminal record, beginning in 1988 when he was fourteen years old, and covering a range of offences. Of significance for present purposes are no less than nine convictions for assault (although the penalties imposed in relation to some of these convictions would suggest that the offences were not the most serious of their kind). Also of significance are two convictions for breaches of domestic violence orders. It is worth noting, however, that the offender has never been convicted of any offence remotely approaching the gravity of those for which he stands to be sentenced, nor of any offence that has an obvious element of sexual violence.

39 From soon after leaving school the offender has lived in a de facto relationship with Alison Duke, with whom he has three children, aged eight, five and two years. Ms Duke gave evidence on his behalf. She and the children visit the offender in prison, and she intends to continue to do so. Likewise, the offender’s uncle, Noel Whitton, gave evidence on his behalf. His evidence was that, following previous periods of incarceration, the offender had accepted his advice, and had in fact lived with Mr Whitton and his family for a time. Mr Whitton is prepared to offer the offender some assistance and supervision on his release, and to maintain contact with him during the inevitable period of imprisonment.

40 This evidence was led, presumably, to establish that the offender has some prospects of rehabilitation, and is to be taken into account on that basis. However, it can, in the circumstances, be given only limited weight. It is obvious that the offender is facing a lengthy term of imprisonment.

41 He declined to cooperate in the preparation of a psychiatric report and refused to speak to the psychiatrist who was retained by his former solicitors to examine him in the gaol. There is therefore relatively little material of a subjective character to consider in mitigation of these very serious offences.

42 In the ordinary course, an offender who pleaded guilty to an indictment would be entitled to expect a significant reduction in sentence in recognition of his decision to enter such a plea (see Sentencing Procedure Act, s22). There are a number of rationales advanced for this. They include that the plea of guilty signifies an acceptance of responsibility and a willingness to facilitate the course of justice (Cameron v R [2002] HCA 6; unreported, 14 February 2002); that the victims have been spared the ordeal of recounting, in a public forum, their experiences of sexual assault; and that the plea of guilty may be some evidence of contrition. Neither the first nor the third of these considerations here exists.

43 The offender entered his pleas of guilty at a very late stage, and only after challenging the admissibility of almost the whole of the Crown case, in a voir dire that was conducted over a two week period. A number of the victims were required to give evidence, generally relating to their identification of the offender or of clothing or other items associated with the attacks. True, they were not required to give detailed evidence of the assaults upon them, but they were subjected to cross examination and they lived with the expectation that they would be required to give, in open court, and in the presence of the offender, intimate details of their ordeals – ordeals they have, no doubt, been endeavouring to put to the back of their minds.

44 Finally, the offender’s willingness to facilitate the course of justice, as evidenced by the pleas, was short lived indeed. The pleas were entered on 24 May 2001. Sentencing submissions were scheduled for hearing on 23 July 2001. On that day the offender appeared unrepresented, having terminated the instructions of his legal representatives. At that time he claimed to have been pressured into pleading guilty to crimes he had not committed, and sought adjournment of the proceedings to enable him to obtain alternative representation. He was granted that adjournment. The following week, he having obtained alternative representation, I was informed that the offender proposed to apply to withdraw the pleas of guilty. A Notice of Motion to that effect was filed on 15 October 2001. In support of the application, the offender gave oral evidence, during the course of which he repeatedly denied his involvement in the offences. By judgment dated 6 February 2002 I refused the application. The offender has, nevertheless, maintained his position to the present day. Further, in order to found a challenge to the strength of the Crown case, and relevant to the weight to be given to the pleas of guilty on sentence, the offender required the attendance of three witnesses involved in the obtaining and analysis of DNA evidence. In my opinion, that evidence only reinforced the view I had already expressed, when refusing leave to withdraw the pleas, that the Crown case against him was very strong. The offender, therefore, obtains no benefit on sentence by reason of having pleaded guilty to a Crown case which had only slim prospects of succeeding.

45 The offender was well within his rights in taking each of these steps, and his punishment is not to be increased because of his having done so. The history I have outlined is relevant only as throwing light on the extent to which the offender has demonstrated a willingness to facilitate the course of justice, an acceptance of responsibility, and the presence or absence of remorse or contrition. I conclude that the offender has failed to show that his pleas of guilty entitle him to any reduction in sentence on any of these bases.

46 It is appropriate here to mention another matter that goes to the absence of contrition.

47 At the conclusion of the offender’s case on sentence, and after Mr Whitton and Ms Duke had given evidence, the Crown called, in reply, evidence from the fifth victim. She had been present in Court on 24 May 2001, when the offender entered the pleas of guilty and acknowledged his guilt of the offences on the Form 1. She said that, at the conclusion of the proceedings and as the offender was leaving the court, he turned towards where she and some other victims were seated, and winked and smiled in their direction. Evidence of this kind, even if accepted, cannot and does not go to the aggravation of the offences. Even if it could, I could not be satisfied beyond reasonable doubt that the offender engaged in such conduct deliberately or maliciously. I have already held that, by reason of other evidence, the offender has demonstrated no contrition or remorse. This evidence does not in any way advance that proposition. Accordingly, the evidence of the offender’s conduct subsequent to his pleas of guilty goes nowhere, and, for sentencing purposes, I disregard it.

48 Evidence was also adduced to the effect that, after the offender had come under suspicion and surveillance, Ms Duke reported that her car (to which the offender had had access) had been stolen. The effect of the evidence was to provide a foundation for an inference that Ms Duke, aware that the offender had been sighted in the vehicle acting suspiciously, had falsely reported the theft of the vehicle in order to deflect suspicion from the offender. It may or may not be that Ms Duke did do so: as to that I make no finding and no comment. All that need here be said is that the evidence is insufficient to link the offender with any such artifice. That evidence is immaterial to the sentencing process.

49 The Crown also referred to evidence of other similar conduct on the part of the offender prior to his arrest. It is sufficient to say that, for sentencing purposes, I disregard that conduct also. He is to be sentenced for the specific offences on the indictment, taking into account the offences on the Form 1, and not for other conduct that may indicate an intention or wish, or even an attempt, to engage on in conduct of the same sort on other occasions.

50 Counsel for the offender argued that, notwithstanding some acknowledged difficulties, the offender is entitled to credit for the utilitarian value of the pleas of guilty. For the reasons I have given, I reject that argument.

51 The offender was arrested on 31 July 2000 and interviewed by police. The interview was electronically recorded. The offender denied any involvement in the offences. He has remained in custody since the date of his arrest.

52 In written submissions provided on behalf of the offender, a number of points were made, relating, in some instances, to matters I have not already touched upon. Reference was made to statistics maintained by the Judicial Commission, which, it was put, establish that:

(i) In respect of s61J offences, 96% of offenders are imprisoned; the median head sentence is about 6 years; the median minimum term (non-parole period) is about four years;

(ii) In respect of s97(1) offences, and following the decision of the Court of Criminal Appeal in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, 87% of offenders are imprisoned; the median head sentence is three and a half years; the median minimum term is about two and a half years;

(iii) In respect of s90A offences 68% of offenders are imprisoned; the median head sentence is about four years; the median minimum term is about two and a half years.

53 I am prepared to accept that the statistics do establish a pattern of sentencing in accordance with the propositions stated. However, the limited value of these statistics has frequently been the subject of comment by the Court of Criminal Appeal: see, perhaps most recently, the decision of that Court in R v AEM Senior; R v KEM; R v MM ; [2002] NSW CCA 58; unreported, 13 March 2002, at [113]-[118]. It is unnecessary here to repeat what was there said. One matter worth observing is that the proposition drawn from the raw statistics tends to compartmentalise offences of each type. Here, offences against s61J, s97(1) and s90A were committed concurrently against each of the two victims named in the indictment, and most, if not all, of the victims the subject of the offences on the Form 1. That in itself means that each offence is aggravated by reason of the concurrent commission of the two other offences. That may also be so in relation to some of the individual cases which constitute these statistics, but, even if it is so, it is not apparent.

54 Moreover, sentencing practice in relation to serious sexual assault has been comprehensively reviewed by the Court of Criminal Appeal in the recent decision of R v AEM and others to which I have already referred. Inter alia, the Court held that issues of general deterrence and public denunciation are of primary importance in sentencing for offences against s61J. The Court considered that, often, greater guidance can be obtained from a review of comparable cases, citing as authority the judgment of Spigelman CJ in R v Bloomfield, unreported, NSWCCA, 15 July 1998.

55 In due course I propose to have particular regard to the facts and circumstances of the offences and offenders detailed in R v AEM; and in the remarks on sentence and sentences imposed by Hulme J in R v Graham James Kay, unreported, 26 July 2000.

56 Before moving on to those specific matters, however, it is necessary to mention some other matters.

57 There is some difference of opinion amongst sentencing judges of this Court, and those who constitute the Court of Criminal Appeal, concerning the proper approach to sentencing an offender for an offence in relation to which one or more matters are to be taken into account pursuant to Part 3, Division 3 of the Sentencing Procedure Act. The competing positions may be briefly outlined. Some judges, of whom I am one, have taken the view that the procedure provided for by that Division is one which provides an entitlement to an offender to expect a significant reduction in the sentence that would have been imposed had separate charges been prosecuted: see R v Lemene [2001] NSWCCA 5, 118 A Crim R 131; R v Harris [2001] NSW CCA 332, unreported, 5 September 2001. Others take a contrary view: see, for example, the discussion in the judgment of Hulme J in R v Perese [2001] NSWCCA 478; unreported, 13 December 2001 at [30] and following.

58 I adhere to the views I have previously expressed. However, as I there acknowledged, the fact that an offender is able to have offences dealt with by way of the Division 3 procedure instead of by separate prosecution, does not entail the result that he or she incurs no additional penalty. To suggest such a thing in the present circumstances would be ludicrous.

59 It is necessary to set out the terms of the relevant sub-sections of ss32 and 33 of the Sentencing Procedure Act.

60 S32(1) provides:

“(1) In any proceedings for an offence (the "principal offence"), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.”

61 ss33(1), (2) and (3) provide:

“(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.

(b) if, in all of the circumstances, the court considers it appropriate to do so.

(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.”

62 It seems to me that the effect of ss 32 and 33 is that one of the counts on the indictment must be identified as “the principal offence”; and that, in sentencing for that offence, all of the offences listed on the Form 1must be taken into account.

63 When one considers that here there are 13 serious offences on the Form 1, it is obvious that the penalty imposed in relation to “the principal offence” must be very significantly greater than would have been the case had sentence been imposed only for that offence.

64 In Pearce v R (1998) 194 CLR 610, the majority in the High Court held that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality.

65 Where, in sentencing in respect of “one offence”, that is, the principal offence, and a judge is to take into account one or more other offences, the number and seriousness of the additional offences must have a bearing upon what is the “appropriate sentence” for “the principal offence”.

66 In R v Morgan (1993) 70 A Crim R 368, Lee CJ at CL, with whom Allen J and Loveday AJ agreed, said that, while s33(3) restricts the sentence that a judge sentencing in these circumstances may impose to the maximum sentence applicable to the principal offence:

“it is wrong in principle that there should only ever be little added by way of addition to the penalty imposed”

67 That passage has been restated and followed many times, including in R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 and again in R v AEM. See also R v Barton [2001] NSWCCA 63.

68 I propose, therefore, to sentence the offender in accordance with those principles. It will be necessary, in relation to each offence on the indictment, to fix an appropriate sentence reflecting the totality of their criminality (and taking into account such mitigating factors as exist), including, in respect of the offence in relation to which the Form 1 offences are to be taken into account, those offences; but bearing in mind that the implementation of the Part 3 Division 3 procedure entails a greater reduction in that sentence than would be allowed had the offender been separately prosecuted.

69 The principles that I propose to apply in fixing sentence are these:

(i) an appropriate sentence in respect of each offence on the indictment is to be fixed;

(ii) the sentence fixed in respect of the count on the indictment to be identified as “the principal offence” must contain an appropriate increment to recognise and take account of the thirteen very serious offences on the Form 1;

(iii) each sentence must acknowledge and reflect the subjective circumstances of the offender;

(iv) each sentence must likewise acknowledge and reflect the objective seriousness of the offence in respect of which it is imposed;

(v) general deterrence and public denunciation are to be given due, but not disproportionate, weight;

(vi) the structure of the sentences overall must take into account the totality of the criminality involved;

(vii) the decision concerning concurrence or cumulation will be guided by the application of the principle of totality.

70 I turn now to consider two previous cases from which some guidance may be obtained. In doing so I emphasise that I regard the sentences in neither of these cases as binding, nor as a precedent that dictates the sentences here to be imposed. Each is referred to as an instance reflecting “the collective wisdom of judges”. While the facts of each case have certain echoes in the present case, each, in many respects, differs from the present. I bear in mind both the differences and the similarities.

71 In AEM, the Crown appealed against the leniency of sentences imposed on three young offenders, identied as AEM, KEM and MM, following their pleas of guilty to two counts brought under s61J. The offenders had asked that certain offences be taken into account – in AEM’s case, there was one such offence, in KEM’s case there were two, and in MM’s case there were four. The judgment of the Court of Criminal Appeal does not identify the specific charges listed on the Form 1, but the account given of the conduct the subject of the Form 1 offences suggests that they were further charges brought under s61J.

72 All charges arose out of a single episode of criminality – but one marked in its brutality and depravity, and which continued over a period of more than four hours – in which two sixteen year old girls were abducted and each was subjected to repeated sexual assaults by each of the three offenders. The Court took into account six aggravating features. These were:

(i) the use of a knife to force each complainant separately to stop resisting sexual assaults;

(ii) other threats, including threats to kill;

(iii) two episodes of simultaneous sexual assaults against one complainant with more than one respondent;

(iv) the awareness that the complainant had already been sexually assaulted by another respondent;

(v) the awareness that one complainant was menstruating at the time of the offences;

(vi) the extended period of detention, occurring at night.

73 The first and second, and to some extent the sixth, of these also exist in the present case, at least in respect of some of the victims, and notwithstanding that in no case was the period of detention as long as four hours.

74 On appeal the sentences originally imposed were significantly increased, and separate sentences in relation to each of the two counts charged against each offender on the indictment were imposed, the second made partially cumulative on the first. It is only necessary to refer to the effective overall sentences eventually imposed. AEM was sentenced to a total effective term of thirteen years’ imprisonment with a non-parole period of nine years; KEM was sentenced to an effective overall term of imprisonment for fourteen years, with a non-parole period of ten years; and MM was sentenced to an effective overall term of thirteen years with a non-parole period of ten years. The offenders were, respectively, nineteen years and five months, sixteen years and ten months, and sixteen years and three months, as at the date of the offence.

75 There are other circumstances that need to be mentioned. Firstly, the three offenders in AEM were significantly younger than the present offender - while comparisons of sexual assaults are invidious, the account in the judgment of the violence of the attacks, the degradation of the victims and the ages of the victims, together with the length of detention, compels the conclusion that these offences were of even greater magnitude than the individual offences in respect of which I must sentence the present offender. Secondly, in contrast to the present case, the offences, horrific as they were, were committed on a single occasion. Thirdly, the sentences referred to above were imposed after a successful Crown appeal, and therefore must be seen as at the lower end of the scale appropriate to such offences.

76 The other case to which I have been referred is R v Kay. That case bears significant similarities to the present. The offender pleaded guilty to four counts of aggravated sexual assault under s61J, and asked that two further such offences, plus two of threatening to inflict actual bodily harm with intent to have sexual intercourse, be taken into account (s61K, which like s61J carries a maximum term of twenty years imprisonment).

77 That offender committed the series of eight sexual assaults over a period of exactly one year, between 23 December 1995 and 24 December 1996. His offences, too, followed a pattern. Generally late at night (one offence was committed at 8.30 pm and another at 9.50 pm, but the majority were committed after 10.00 pm and in the early hours of the morning) he accosted women walking alone in the suburbs, produced a knife, which he held to the victims’ throats or used as a threat, used a sock or piece of cloth as a gag to silence the victim; in most cases he used his hands and/or penis to penetrate the victims vaginally and in some engaged in other sexual acts. That offender was aged forty-three and forty-four at the time of his offences. He had what the sentencing judge described as “a small criminal record” but it did include a (rather old, 1970) offence of assaulting a female; another (1974) of indecent assault; and 1983 and 1987 offences of being near a building with intent to peep and pry. There was a further conviction for breach of a domestic violence order, but as the sentencing judge found that that occurred during a period of matrimonial disharmony, he regarded it as immaterial for sentencing purposes. Having regard to the nature of his prior offences, and notwithstanding the age of some of them, it is my view that Kay’s record was of more significance in sentencing than is that of the present offender. On the other hand, unlike the present offender, Kay was found to have some remorse for his actions.

78 Kay was entitled to a discount pursuant to s22 of the Sentencing Procedure Act in respect of his plea of guilty.

79 Further, I cannot overlook the circumstance that Kay stood to be sentenced in respect of eight counts, of which four were included in the indictment, the balance on a Form 1; that is to be contrasted with the present offender’s nineteen offences, of which six are on the indictment and thirteen on the form.

80 In the result, Kay was sentenced to an overall effective term of imprisonment of twenty years with a non-parole period of fifteen years. However, on two of the s61J charges, the subject of the indictment, Kay was sentenced to a fixed term of imprisonment of four and a half years and on the other to a fixed term of imprisonment of three years and nine months, each of these sentences to be served concurrently. The sentence in relation to the principal offence, in respect of which the Form 1 offences were taken into account, was a term of imprisonment of fifteen and a half years with a non-parole period of ten and a half years, the commencement of that sentence being deferred to a date four years after the commencement of all of the earlier sentences.

81 An argument was put on behalf of the present offender that his case may be distinguished, in his favour, from Kay’s, in a number of significant respects. It was said that:

(i) The Kay offences were accompanied by actual, brutal and indecent acts of violence which invariably resulted in actual injury to the victims;

(ii) many of the offences involved multiple discrete acts of indecency;

(iii) the victims were physically gagged during commission of the offences and at least one was also tied up;

(iv) many of Kay’s victims were quite young (aged sixteen, seventeen and eighteen);

(v) Kay’s threats of death/harm were expressed with far more violence and menace;

(vi) the manner of Kay’s application of his weapon to his victims created a far greater likelihood of death or serious injury to the victim;

(vii) most of Kay’s offences involved digital and/or penile penetration of the vagina;

(viii) Kay had a prior criminal record of deviant sexual behaviour.

82 I am prepared to accept that the third and eighth of these do distinguish Kay’s case, in its level of seriousness, from the present. Other than that, however, I see little between the two cases. Indeed, save for the chosen method of sexual activity, the two cases bear a dispiriting similarity to one another. In my opinion, the sentences imposed on Kay are available as evidence of a sentence imposed in a truly comparable though not identical case. I am, however, conscious that Kay has sought leave to appeal against the severity of the sentences imposed on him, and that application is still pending.

83 In my opinion, the sentences imposed on AEM and his co-offenders, after a successful Crown appeal, suggest that the first three sentences imposed on Kay were relatively lenient; and that that case confirms that the sentence imposed on the principal offence, taking into account the matters on the Form 1, was within the range legitimately open to the sentencing judge. With that in mind, I turn to consider the sentences that should be imposed on the present offender. Although I have had regard to the sentences imposed in relation to each of these cases, and the reasons and remarks on sentence, I have, nevertheless, exercised an independent discretion in reaching the sentences I have.

84 The first three offences on the indictment were committed against the first victim. On the first count, of sexual intercourse without consent in circumstances of aggravation, I consider that the appropriate sentence is one of ten years with a non-parole period of seven and a half years. On the second count, of armed robbery, which, like the first, carries a maximum penalty of twenty years, I consider that the appropriate sentence is one of eight years with a non-parole period of six years. On the third count, of detaining for advantage, it is necessary to consider whether the victim was liberated without sustaining any substantial injuries; if such a finding is made, the maximum penalty is reduced from twenty years to fourteen years. Since no argument was addressed to whether it is appropriate to be so satisfied, I consider that justice demands that the lower penalty of fourteen years be taken as the maximum. This was, nevertheless, a very serious offence, not least because of its duration and its being committed in conjunction with the other offences. On this charge also I consider that the appropriate sentence is one of eight years with a non-parole period of six years. It is appropriate to order that all of these sentences be served concurrently, commencing on the day the offender was taken into custody, that is 31 July 2000.

85 The second set of offences on the indictment, even leaving aside the question of the Form 1 offences, demands a significantly heavier penalty. This was the offender’s fifth victim: that is, by the time he committed these offences, he had attacked, in a similar manner, four other victims. I am not able, on the evidence, to find that these offences were actively or consciously premeditated, at least to any significant extent, but I am able to find, and I do, that the offender was well aware of his past history of sexual assaults and that the commission of the fifth attack was therefore a more serious matter. If I were sentencing the offender on the s61J charge, without the Form 1 offences, I would impose a term of twelve years with a non-parole period of nine years. On the second armed robbery charge, I would impose a term of ten years, with a non-parole period of seven and a half years; and on the detention charge, I would impose a term of ten years with a non-parole period of seven and a half years.

86 I would partially accumulate the sentences, so that the sentences on the fourth, fifth and sixth charges be served concurrently with one another, but overlap, to the extent of four years, with the earlier imposed sentences – that is, to commence on 31 July 2004. This would give an effective total sentence of eighteen years with a non-parole period of twelve and a half years.

87 However, it is necessary now to consider the appropriate increment to the overall effective sentence in recognition of the thirteen Form 1 offences, having in mind the offender’s total criminality. Allowing a significant reduction by reason of the principles stated by me in Lemene, (but recognising a certain inconsistency given that I have not considered it appropriate to reduce the sentences by reason of the pleas of guilty) I conclude that the effective overall sentence that should be imposed is imprisonment for twenty-two years with a non-parole period of sixteen and a half years. In order to achieve this, I will maintain the partial accumulation of the sentences. On count five, taking into account the Form 1 offences, the offender will be sentenced to imprisonment for eighteen years, commencing 31 July 2004 with a non-parole period of thirteen and a half years, expiring on 30 January 2017. The increment (of six years on the head sentence and four and a half years on the non-parole period) is significantly less than would ordinarily be imposed in respect of the thirteen Form 1 offences. This is to take account of the Lemene discount, and the principle of totality.

88 I have considered whether special circumstances within the meaning of s44 of the Sentencing Procedure Act exist such as to warrant departure from the ratio between the total sentences and the minimum terms contemplated by that section. Having regard to the length of the sentence, and the consequent lengthy period during which the offender will be eligible for release on parole, there are no reasons by way of the need for additional supervision that would justify such a finding. There are no other circumstances that would amount to special circumstances for such a departure and accordingly I will maintain that ratio.

is sentenced as follows:

1. count one: aggravated sexual intercourse without consent on 5 September 1998: he is sentenced to imprisonment for ten years, commencing 31 July 2000, with a non-parole period of seven and a half years;

2. count two: armed robbery on 5 September 1998: he is sentenced to imprisonment for eight years, commencing 31 July 2000, with a non-parole period of six years;

3. count three: detaining for advantage on 5 September 1998: he is sentenced to imprisonment for eight years, commencing 31 July 2000, with a non-parole period of six years;

4. count four: aggravated sexual assault on 12 May 2000, and taking into account the thirteen offences on the Form 1: he is sentenced to imprisonment for eighteen years, commencing 31 July 2004, with a non-parole period of thirteen and a half years;

5. count five: armed robbery on 12 May 2000: he is sentenced to imprisonment for ten years, commencing 31 July 2004, with a non-parole period of seven and a half years;

6. count six: detaining for advantage on 12 May 2000: he is sentenced to imprisonment for ten years, commencing 31 July 2004, with a non-parole period of seven and a half years.

89 The earliest date on which he will be eligible for release on parole is 30 January 2017.

**********

Last Modified: 04/30/2002

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Citations

Regina v Daley [2002] NSWSC 148

Most Recent Citation

Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518

Cases Citing This Decision

1

Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518

Cases Cited

9

Statutory Material Cited

2

R v MA [2001] NSWCCA 30

Cameron v the Queen [2002] HCA 6

R v Henry [1999] NSWCCA 111

CITATION:	Regina V Daley [2002] NSWSC 148
FILE NUMBER(S):	SC 70001/01
HEARING DATE(S):	02/04/02 10/04/02 12/04/02
JUDGMENT DATE:	26 April 2002
PARTIES :	Regina Anthony James Daley
JUDGMENT OF:	Simpson J

COUNSEL :	J Kiely SC (Crown) E Wasilenia (Defendant)
SOLICITORS:	S Grodzicki (Crown) M Churchill (Defendant)
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Regulation 2000
CASES CITED:	R v M A [2001] NSWCCA 30; unreported, 21 February 2001 Cameron v R [2002] HCA 6; unreported, 14 February 2002 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v AEM Senior; R v KEM; R v MM ; [2002] NSW CCA 58; unreported, 13 March 2002 at [113]-[118] R v Bloomfield, unreported, NSWCCA, 15 July 1998 R v Graham James Kay, unreported, 26 July 2000 R v Lemene [2001] NSWCCA 5, 118 A Crim R 131 R v Harris [2001] NSW CCA 332, unreported, 5 September 2001 R v Perese [2001] NSWCCA 478; unreported, 13 December 2001 Pearce v R (1998) 194 CLR 610 R v Morgan (1993) 70 A Crim R 368 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 R v Barton [2001] NSWCCA 63
DECISION:	Refer paras 88 and 89