Regina v S.P.M

[1999] NSWCCA 338

CITATION:	Regina v S.P.M [1999] NSWCCA 338
FILE NUMBER(S):	CCA 60289/99
HEARING DATE(S):	20/10/99
JUDGMENT DATE:	20 October 1999
PARTIES :	Regina v S.P.M
JUDGMENT OF:	Mason P; James J; Kirby J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/61/0166
LOWER COURT JUDICIAL OFFICER:	Viney DCJ

COUNSEL:	CK Maxwell QC (Crown) P Segal (Respondent)
SOLICITORS:	SE O'Connor (Crown) Central-Southern Aboriginal Corporation (Respondent)
CATCHWORDS:	Criminal law and procedure - sentencing - Crown appeal against sentence
DECISION:	Allowed

IN THE COURT OF
CRIMINAL APPEAL

060289/99

MASON P
JAMES J
DAVID KIRBY J

WEDNESDAY 20 OCTOBER 1999

REGINA v S.P.M

JUDGMENT

1   MASON P: I will ask James J to give the first judgment.

2 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against sentences imposed on the respondent S.P.M by Judge Viney in the District Court on 19 April 1999, after a jury had found the respondent guilty of four counts of sexual intercourse without consent in circumstances of aggravation (s 61J(2)(a) of the Crimes Act) the circumstances of aggravation being the malicious infliction of actual bodily harm on the victim. The offences were all committed on 23 August 1998, the victim being the respondent's wife.

3   On the first count the respondent was sentenced to a fixed term of penal servitude of nine months to date from 24 August 1998. On the second count the respondent was sentenced to a fixed term of penal servitude of twelve months, also to date from 24 August 1998. On each of the third and fourth counts the respondent was sentenced to a sentence of penal servitude of four and a half years, consisting of a minimum term of eighteen months to date from 24 August 1998 and an additional term of three years.

4   On 3 May 1999 a letter was sent to the respondent notifying him that the Director of Public Prosecutions was considering appealing against the sentences. A notice of appeal was lodged and it was served on the respondent on 8 June 1999.

5   The following statement of the facts of the offences is taken, with some editing, from his Honour's remarks on sentence. As I have indicated, the respondent and the victim (or complainant) were married to each other. On the night on which the offences were committed they went out together drinking. They got home at around 2 o'clock in the morning of 23 August 1998. Each of them was well-affected by liquor. An argument arose between them. The respondent assaulted the victim in the lounge room of the house and then dragged her into the bedroom. The victim received a blow on the head but Judge Viney said in his remarks on sentence that this might have happened when her head hit the floor.

6   In the bedroom the offences were committed. The respondent removed the victim's clothing from the lower part of her body and had penile-vaginal sexual intercourse with her, without her consent. This conduct was the subject of the first count in the indictment. He then inserted what appears to have been a small metal bottle containing a body spray into the victim's vagina (the second count). He then inserted a long stick known as a "boondi stick", which was a piece of rope wrapped in tape with a rope handle, into her vagina (the third count). He then inserted the "boondi stick" into her anus (the fourth count).

7   The respondent and the victim left the bedroom There was a further argument between them during which his Honour said in his remarks on sentence, “he picked up a knife at some stage in the kitchen and she said he threatened her with it. The police arrived at the scene and the respondent was arrested, initially for breach of an apprehended violence order which was in force in favour of the victim.

8   On the following day, 24 August 1998, the respondent was charged with these offences. He remained in custody until he was sentenced and the sentencing judge made the sentences he imposed commence from 24 August 1998.

9   On 23 August the complainant was taken to a hospital where she was treated for her physical injuries, which appear to have been fairly minor.

10   The respondent when interviewed by the police said that he had no recollection of what had happened. However, he denied having committed the offences and defended the charges on the ground that he was sure that he would not have acted as he was alleged to have acted.

11   Evidence was given in the proceedings on sentence by the respondent's adoptive mother. Also admitted into evidence was a pre-sentence report, a report by a psychiatrist Dr McClure and a statement of an Aboriginal Outreach worker, who was also the mother of the victim.

12   In his remarks on sentence Judge Viney referred to a number of subjective circumstances of the respondent. The respondent is an Aboriginal man, who at the time of being sentenced was thirty-four years old. When he was only a few weeks old he had been taken from his natural parents and fostered out. Judge Viney found that the respondent grew up in a good household with two foster parents who later adopted him. As noted earlier, the respondent’s adoptive mother gave oral evidence in the proceedings on sentence.

13   The respondent left school early and took up the trade of a plasterer, which was the trade of his foster father, and he became a good tradesman, earning good money.

14   The respondent met the victim in about 1988 or 1989. They entered into a relationship and in 1991 they were married. Four children were born of the marriage. However the marriage was seriously dysfunctional. The respondent was often violent to his wife. She, for her part, was addicted to certain prescription drugs and had a drinking problem. The complainant returned to the country town she had come from and the respondent followed her, desiring to maintain the marriage. However, he could not obtain work as a plasterer in the country.

15   The respondent discovered the whereabouts of his natural parents and in 1997 had contact with his natural mother. His Honour found that the respondent suffered emotional turmoil as a result of this contact with his natural mother.

16   The Aboriginal Outreach worker gave evidence, which the sentencing judge accepted, that on the Friday before the offences were committed she had asked the respondent what was the matter with him and he had replied, "I just feel angry, real angry, I don't know why".

17   On the Saturday night the Outreach worker was asked to baby-sit the children of the marriage, so that the respondent and his wife could go out together drinking. She unsuccessfully counselled the respondent's wife against going out with the respondent for this purpose. To her the respondent appeared “strange” and she was afraid that something untoward might happen that night.

18   In his remarks on sentence Judge Viney referred to further subjective circumstances of the respondent. The respondent had some previous criminal convictions but his Honour observed, justifiably, that his antecedents were “not terribly serious”. All the respondent's previous convictions were in the Children's Court or the Local Court and he had never previously been sentenced to imprisonment. He had a few previous convictions for assault, which had resulted in fines, community service orders or recognizances. His Honour proceeded on the basis that some of these assaults had been committed against the complainant.

19   His Honour found that the respondent was devoted to his four children and that he had been their primary carer. The respondent, somewhat ironically, had commenced some kind of counselling service or program in the country town in which he lived for people afflicted by domestic violence and alcohol-related problems.

20   His Honour noted a statement made by the respondent's legal representative in the proceedings on sentence that the respondent was "in some sort of unbalanced mental state, perhaps attributable to a number of features of his background which had been unearthed, his drinking problems that he had been attempting to deal with and the serious dysfunctional matrimonial relationship that existed".

21   After noting this submission his Honour said, "It is difficult to know just precisely what was the state of mind of (the respondent) on this occasion". His Honour continued, "One could only suggest that he (the respondent) simply lost control of himself and inflicted these injuries, clearly when he was very heavily affected by liquor and possibly affected in some other way". His Honour concluded his account of the subjective circumstances of the respondent by saying:-

“Well it is a tragic story really, of a young man who started off life with some degree of deprivation, as one can appreciate, where a young child is taken from his natural family, with whatever good will that was done, and yet raised in a caring environment but then having all this emotional turmoil visited on him in the last ten years and the regrettably sad, dysfunctional marriage that eventuated which has led him to this pass.”

22   His Honour found special circumstances within s 5(2) of the Sentencing Act, mentioning inter alia that it was the first time the respondent had been in gaol, that the respondent had good prospects of rehabilitation, that the respondent had problems with alcohol for which he would need attention and that the respondent would feel keenly the separation from his children.

23   It was argued on behalf of the Crown that the sentencing judge made some specific errors in sentencing the respondent or alternatively that an error of principle was disclosed by reason of the sentence being manifestly inadequate.

24   I am not satisfied that any of the specific errors alleged by the Crown have been made out. It was submitted by the Crown that the use of a knife was a significant aggravating circumstance and had not been taken into account by the sentencing judge. As I have noted, his Honour did find that the respondent picked up a knife in the kitchen. His Honour also referred to evidence by the complainant in which she said that he had threatened her with it. It is not clear whether his Honour accepted this evidence by the complainant that the respondent had threatened her with the knife. In any event, any use of the knife by the respondent occurred after the commission of the offences for which the respondent was being sentenced.

25   It was submitted by the Crown that the sentencing judge did not take into account that the offences involved breaches of an apprehended violence order in favour of the victim. It was submitted by counsel for the respondent that this was not a circumstance which either the sentencing judge or this court could properly take into account. His Honour did refer to the apprehended violence order in his remarks on sentence and I would not infer that his Honour omitted to take this circumstance into account to the extent that he was entitled to do so.

26   It was submitted by the Crown that his Honour had accepted that at the time of committing the offences the respondent was in some sort of unbalanced mental state at least partly attributable to his consumption of alcohol and in saying this his Honour had incorrectly regarded the consumption of alcohol by the respondent as a mitigating circumstance. The Crown referred to R v Fletcher Jones (1994) 75 A Crim R 381.

27   However in the passage in the remarks on sentence referred to in the Crown's submissions his Honour was setting out, not a finding made by his Honour, but a submission made by the respondent's legal representative in the proceedings on sentence. His Honour went on immediately to say it was difficult to know what was the respondent's state of mind at the time of committing the offences. His Honour simply found that the respondent had lost self-control.

28   In my opinion, the outcome of the present appeal depends on whether the sentences should be regarded as manifestly inadequate and particularly whether the total minimum terms and fixed terms set by his Honour are manifestly inadequate. The minimum term of a sentence should be the minimum term that justice requires the offender should serve in prison having regard to all the circumstances of the offence. See R v Bugmy (1990) 169 CLR 525 at 536.

29   The principles which this court should apply in determining a Crown appeal against sentence are stated in a number of cases and there is no need to repeat them here. See for example R v Allpass (1993) 72 A Crim R 561 at 562-3.

30   It is accepted that a Crown appeal against sentence should not be upheld, simply because members of the appeal court consider that if they had been the original sentencing judge they would have imposed a heavier sentence. However, it seems to me that the effective minimum term of one and a half years imposed by his Honour was manifestly inadequate, having regard to the circumstances and particularly the objective facts of the offences. I have reached this conclusion, even allowing for the fact that the four offences should be regarded as part of one continuing episode of criminality, allowing for the respondent's unfortunate, or favourable, subjective circumstances and allowing for the restraint which this Court should exercise in determining whether a Crown appeal against sentence should succeed.

31   The objective facts of the offences were serious. The respondent had penile-vaginal sexual intercourse with the victim without her consent. As was conceded, it was not a circumstance of mitigation that the victim was his wife. The respondent then inserted two objects, one after the other, into the victim's vagina and the respondent then inserted one of those objects into the victim's anus. The victim received injuries for which she required some hospital treatment. The respondent had previous convictions for assaulting the victim and at the time of committing the offences was subject to an apprehended violence order in favour of the victim. An argument was addressed to us based on alleged double jeopardy that the sentencing judge should have disregarded, and that this Court should disregard, the existence of the apprehended violence order but I would not accept this submission. If any proceedings are taken against the respondent for breach of the apprehended violence order, then no doubt the sentence imposed on the applicant for these offences will be taken into account by any judicial officer punishing the applicant for breach of the apprehended violence order. The respondent did not plead guilty and hence is not entitled to the credit he would have received, had he pleaded guilty.

32   I do not consider there is any discretionary reason why this Court should refrain from upholding the Crown appeal.

33   Accordingly, the Crown appeal against sentence should be upheld and this Court is required to re-sentence the respondent. In re-sentencing the respondent this Court should impose lesser sentences than should have been imposed by the original sentencing judge. I would accept that in re-sentencing the respondent this court should find, as did the sentencing judge and for the same sort of reasons, that there are special circumstances under s 5(2) of the Sentencing Act.

34   Having regard to the principles of restraint which govern Crown appeals and having regard to the objective facts of the offences and the subjective circumstances favourable to the respondent, I would leave intact all of the sentences imposed by Judge Viney, except that I would quash so much of the sentences for the third and fourth counts as divided the total sentences into a minimum term of penal servitude of eighteen months and an additional term of penal servitude of three years. I would propose that the total period of each of those sentences of four and a half years be retained but that the sentences be divided into equal periods for the minimum term and the additional term.

35   I accordingly propose that the sentences imposed by Judge Viney on the third and fourth counts be quashed to this extent, that the orders made by his Honour dividing those terms into minimum terms and additional terms be quashed and that in lieu thereof on each of the third and fourth counts the respondent be sentenced to a term of penal servitude of four and a half years, consisting of a minimum term of penal servitude of two years and three months commencing on 24 August 1998 and expiring on 23 November 2000 and an additional term of two years and three months. The earliest date on which the respondent would be eligible for release on parole would be 24 November 2000.

MASON P: I agree.

KIRBY J: I also agree.
MASON P: The orders of the court will be as indicated.

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