Ronald Eatts v The Queen

[2013] NSWCCA 14

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ronald EATTS v R [2013] NSWCCA 14
Hearing dates:	28 September 2012
Decision date:	08 February 2013
Before:	McClellan CJ at CL at [1] Hidden J at [2] Adamson J at [21]
Decision:	Leave to appeal granted, appeal dismissed.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - sexual assaults in prison - sentences accumulated upon previous non-parole period - long custodial history of applicant - whether special circumstances should have been found because of accumulation
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	- Barrett v R [2011] NSWCCA 213 - R v Killick [2002] NSWCCA 1, 127 A Crim R 273
Category:	Principal judgment
Parties:	Ronald Edward Eatts (applicant) Regina (respondent Crown)
Representation:	Counsel: C Loukas (applicant) H Wilson (respondent Crown) Solicitors: Aboriginal Legal Service (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent Crown)
File Number(s):	2008/7260
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2009-02-04 00:00:00 Before: Bennett SC DCJ File Number(s): 2008/7260

Judgment

1. McCLELLAN CJ at CL: I agree with Hidden J.

1. HIDDEN J: The applicant, Ronald Edward Eatts, pleaded guilty in the District Court to the following charges:

two charges of sexual intercourse without consent, an offence under s 61I of the Crimes Act 1900 which carries a maximum sentence of 14 years imprisonment and a standard non-parole period of 7 years;

a charge of aggravated sexual intercourse without consent, an offence under s 61J of the Act which carries a maximum sentence of imprisonment for 20 years and a standard non-parole period of 10 years.

The applicant asked the sentencing judge to take into account on a Form 1, when sentencing him for the aggravated offence, two further offences of sexual intercourse without consent and one of indecent assault.

1. On 4 February 2009, the following sentences were imposed:

On each of the charges of sexual intercourse without consent, imprisonment for 9 years and 4 months with a non-parole period of 7 years, dating from 29 October 2008;

On the charge of aggravated sexual intercourse without consent, taking into account the matters on the Form 1, imprisonment for 12 years with a non-parole period of 9 years, also to date from 29 October 2008.

The overall sentence, then, was imprisonment for 12 years with an effective non-parole period of 9 years. The significance of the commencement date of 29 October 2008 will become apparent.

1. The applicant seeks leave to appeal against those sentences. The application is some 3 years out of time, and his application for extension of time is founded upon the material in an affidavit of his solicitor. In written submissions, the Crown prosecutor challenged the adequacy of the explanation proffered by that affidavit and argued that an extension should not be permitted. However, the issue was not addressed in oral submissions, counsel for the applicant and the Crown both dealing with the merit of the matter. Given the seriousness of the offences, and the length and practical effect of the sentences imposed, I would grant an extension of time.

Facts

1. The offences were committed in the course of a single episode at the Metropolitan Reception and Remand Centre at Silverwater, where both the applicant and the victim were in custody. The applicant was 26 years old at the time and the victim was 19. They shared a cell. The offences occurred in the late afternoon of 4 April 2004, while they were both in the cell after the evening lockdown. No purpose would be served by recounting the facts, which were dreadful. It is sufficient to say that during the episode the unfortunate victim was anally raped twice and forced to fellate the applicant on three occasions. There were accompanying indignities which need not be described. It was a sustained sexual attack of the most brutal and degrading kind.

1. It will be noted that the applicant was not sentenced until almost 5 years later. However, for reasons which are not apparent, he was not charged until September 2007, some 3 ½ years after the offences.

Subjective case

1. As I have said, the applicant was 26 years old at the time of the offences. He is now 34. He is of Aboriginal extraction. He had a disturbed upbringing, marked by the violence of his father, who served a number of gaol sentences. He had virtually no education, his schooling having ended after year 4. Not surprisingly, perhaps, he has a history of psychiatric illness and drug abuse. A forensic psychiatrist who examined him was of the opinion that he was suffering from a psychotic episode at the time of the offences, although he did not find a direct connection between the psychotic symptoms and the offending behaviour. The sentencing judge did not see in this material any reason to diminish the significance of specific and general deterrence. No issue was taken with that approach in this application. Nor was it argued that the aggregate sentence was manifestly excessive.

1. Of primary significance for present purposes is the applicant's criminal and custodial history. He has a formidable criminal record, commencing in the Children's Court in the early 1990s, although it contains no entry of the nature of the present offences. At the time of those offences he was waiting to be dealt with for serious robbery offences and receiving stolen property.

1. On 8 April 2004, 4 days after the present offences, he was sentenced to terms aggregating 8 years and 3 months with a non-parole period of 5 years and 3 months, dating from 27 July 2003, for two counts of armed robbery and one of receiving. That total sentence was to expire on 28 October 2011, and the non-parole period on 28 October 2008. On 10 June 2005, for an offence of aggravated robbery, he was sentenced to imprisonment for 7 years with a non-parole period of 3 years, dating from 29 October 2005. That sentence was to expire and the non-parole period also expired on 28 October 2008. The sentencing judge in the present case directed the sentences he imposed to commence upon the expiration of that existing non-parole period, that is, on 29 October 2008.

1. It is necessary also to have regard to the applicant's earlier history of incarceration. It need not be examined in detail. What it discloses is that, as a result of earlier sentences and the revocation of parole, he had been in virtually continuous custody in adult institutions since 1 July 1997. This period was punctuated by brief periods on parole: 56 days between 9 March and 14 May 1999, 27 days between 1 June and 28 June 1999, and 47 days between 12 June and 29 July 2003: a total of 130 days, roughly 4 months. The effective non-parole period for the present offences will expire on 28 October 2017. By then, putting aside his brief periods of liberty, he will have been in custody for almost 20 years and 4 months.

The application

1. Hence the present application. The overall sentence of 12 years with a non-parole period of 9 years preserves the statutory proportion between sentence and non-parole period. The complaint is that his Honour should have found special circumstances, so as to vary that proportion in the applicant's favour, because of the accumulation of that sentence upon the non-parole period associated with the sentences he was then serving, and having regard to his lengthy custodial history.

1. In written submissions filed in support of the application it was pointed out that, if one had regard to the non-parole period of 5 years and 3 months upon which the present sentences were accumulated, the aggregate term would be 17 years and 3 months with a non-parole period of 14 years and 3 months. The proportion between non-parole period and sentence in that event is about 82.5%. If one were to have regard to the total period of virtually continuous custody from 1 July 1997, the 12 year sentence, expiring on 28 October 2020, would terminate roughly 23 years and 4 months after the commencement of that period. The period of 20 odd years which the applicant would have served by the time he became eligible for parole would represent about 87% of that total term.

1. It was contended that on either approach the 9 year non-parole period should have been reduced so as to achieve a ratio of 75% of the overall sentence. The second approach, having to regard to the whole period of custody from 1997, was put as the preferable course. In that way, it was argued, the proportion between effective non-parole period and total term would be such as to achieve a beneficial period of parole eligibility, and guard against the risk of the applicant becoming institutionalised.

1. The application was argued before us by Ms Loukas of counsel (now senior counsel.) She referred to a passage of my judgment in Barrett v R [2011] NSWCCA 213 at [29], in which I did no more than summarise the effect of existing authority:

"It is well established that accumulation of sentence, whether by reference to sentences passed on one occasion or to a sentence which the offender is already serving, is a basis for a finding of special circumstances. Equally, it is well established that whether special circumstances are found for that reason is a matter for judgment in each case. Certainly, there is not a general requirement that the proportion between effective non-parole period and aggregate sentence should not exceed 75%. Nevertheless, where it does, one would expect the sentencing judge to articulate his or her reasons for doing so and, in the absence of such reasons, the inference might be drawn that the practical effect of the accumulation was overlooked: R v Nightingale [2005] NSWCCA 147, per Tobias JA (with whom Buddin and Hall JJ agreed) at [39] - [46]."

1. The risk of institutionalisation as a basis for a finding of special circumstances also arose for consideration in that case, and authorities on that matter were referred to at [30] - [31].

1. Ms Loukas referred to a passage early in the remarks on sentence in which his Honour noted that the sentences which the applicant was then serving provided for parole eligibility in October 2008 and would expire in their entirety in October 2012. He said that he proposed to commence the sentences he was to pass at the expiration of the non-parole period, noting that it would be "unfair" to delay the commencement of those sentences until the "conclusion of the parole period in 2012." Ms Loukas noted that, because of s 55 of the Crimes (Sentencing Procedure) Act 1999, that latter course would not have been available. She cited R v Killick [2002] NSWCCA 1, 127 A Crim R 273. That his Honour thought the sentences could be post-dated in that way, she submitted, conveyed that he was not attentive to "the relevant principles in relation to accumulation" and underlined her central argument that he overlooked the practical effect of the measure of accumulation which he did impose.

1. I do not find this argument persuasive. The fact remains that his Honour accumulated the sentences he imposed upon the previous non-parole period, in conformity with s 55. Moreover, other observations in the remarks on sentence demonstrate that his Honour was well aware of the practical effect of the course he was to take. He observed that the applicant had "spent an extraordinary part of his life in custody." Later, he said:

"The courts have employed all sentencing options in the management of this offender but he has persisted. ...

His custodial history presents a dismal picture. ... Upon my calculations this thirty-year-old man has been at large for less than 6 months of his adult life."

1. Finally, having indicated that he proposed to make the sentences he was to pass concurrent, his Honour said:

"I am concerned that this offender is reaching a point in his life where some care has to be taken to avoid the risk that he will become entirely institutionalised. He is thirty years of age. There may yet be some hope that within the next ten years of his life he may be assisted to reach a point where he can make an adjustment so that he can transition from where he is into the community. A sentence beyond what I believe is appropriate in this case is likely to have such a crushing impact that he will be, for all intents and purposes, suitable only for life within the prison system or the Justice Health facilities that will be available to him there. It is for those reasons that I believe I should order that these sentences be served concurrently."

1. While expressed as a reason for concurrence of sentence, that last passage demonstrates that his Honour was well aware of the implications of his sentencing order upon a man who had already spent so much of his adult life in custody. The issue of institutionalisation was expressly addressed. Although he did not refer in terms to accumulation as a possible basis for a finding of special circumstances, I would not infer that his Honour overlooked the practical effect of his accumulation of sentences upon the applicant's previous non-parole period. The applicant, with a substantial criminal history behind him, stood for sentence for appalling crimes. His Honour gave him the benefit of concurrent sentences for those crimes, and structured the sentences in such a way as to provide for a substantial period of parole eligibility, 3 years. I have given anxious consideration to this serious and unusual case, but I am not satisfied that in this approach his Honour fell into error.

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

1. ADAMSON J: I agree with Hidden J.

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Decision last updated: 14 February 2013