Simon v R
[2013] NSWCCA 328
•20 December 2013
Court of Criminal Appeal
New South Wales
Case Title: Simon v R Medium Neutral Citation: [2013] NSWCCA 328 Hearing Date(s): 12 November 2013 Decision Date: 20 December 2013 Before: Macfarlan JA at [1]
Latham J at [126]
R A Hulme J at [130]Decision: (1) Application for extension of time to appeal against conviction refused.
(2) Application for extension of time to appeal against sentence granted.
(3) Application for leave to appeal against sentence granted.
(4) Appeal against sentence allowed in part.
(5) In relation to the sentences imposed in the District Court on 10 March 2011 (and corrected on 15 July 2011):
(a) Quash the sentences imposed in respect of Counts 13 and 15 and in lieu impose sentences comprising a non-parole period of 12 years 6 months to commence 12 November 2015 and expire 11 May 2028 and a balance of the term of the sentence of 5 years 6 months to expire 11 May 2033.
(b) The sentences imposed are otherwise confirmed.
(c) Accordingly, the applicant's sentences will expire on 11 November 2033, with the earliest date that he will be eligible for parole being 11 May 2028.
(6) Appeal against sentence otherwise dismissed.Catchwords: CRIMINAL LAW - conviction appeal - sexual assault and other offences - applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours - applicant claimed intercourse was consensual - Notice of Intention to Appeal and Notice of Appeal filed long out of time - s 10(1)(a) Criminal Appeal Act 1912, r 3A Criminal Appeal Rules - whether sufficient prospects of success to warrant an extension of time - extension refused
CRIMINAL LAW - sentence appeal - sexual assault and other offences - applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours - sentencing judge determined that offences fell "well above the mid-range and up towards the high range of objective seriousness" - applicant sentenced to total term of imprisonment of 22 years with 17 years 6 months aggregate non-parole period - whether sentencing judge erred in determination of objective seriousness - whether sentencing judge erred in assessing totality and in accumulating sentences by failing to find sexual assaults formed one episode of criminality - whether sentencing judge should have found special circumstances by reason of the effect of accumulation of sentences - whether sentence manifestly excessive - aggregate non-parole period reduced by 12 months - sentence otherwise confirmedLegislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995Cases Cited: Abdul v R [2013] NSWCCA 247
AD v R [2005] NSWCCA 208
Barrett v R [2011] NSWCCA 213
BCM v The Queen [2013] HCA 48
Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022
Darwiche v R [2011] NSWCCA 62
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Etchell v R [2010] NSWCCA 262
Evans v The Queen [2007] HCA 59; 235 CLR 521
Golossian v R [2013] NSWCCA 311
Green v The Queen [1971] HCA 55; 126 CLR 28
House v The King [1936] HCA 40; 55 CLR 499
Ibbs v The Queen [1987] HCA 46; 163 CLR 447
Hili v The Queen [2010] HCA 45; 242 CLR 520
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Munda v The Queen [2013] HCA 38; 87 ALJR 1035
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Eckermann [2013] NSWCCA 188
R v Bilal Skaf [2005] NSWCCA 297
R v Fleming (NSWCCA, 12 December 1989, unreported)
RPS v The Queen [2000] HCA 3; 199 CLR 620
SKA v The Queen [2011] HCA 13; 243 CLR 400
Stephens v R [2010] NSWCCA 93
Tonari v R [2013] NSWCCA 232
Vandeventer v R [2013] NSWCCA 33
Ward v R [2013] NSWCCA 46Category: Principal judgment Parties: Edward Roy Simon (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
M C Ramage QC (Applicant)
M M Cinque (Respondent)- Solicitors: Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)File Number(s): 2009/247912 Decision Under Appeal - Court / Tribunal: District Court - Before: Hosking DCJ - Citation: R v Edward Simon - Court File Number(s): 2009/247912
JUDGMENT
MACFARLAN JA: In December 2010 the applicant stood trial in the District Court on 19 criminal charges, including 12 counts of sexual intercourse without consent in circumstances of aggravation, they being threats by the accused to inflict actual bodily harm on the complainant by means of a knife. The Crown case was that the applicant followed the complainant home from where she had been working in Darlinghurst, gained entry into her apartment without her knowledge and sexually assaulted her over a number of hours, before taking her credit card and leaving her tied up. The accused pleaded not guilty to all counts, except Counts 18 and 19 which concerned use of the credit card. His defence was that the sexual intercourse that occurred was consensual. The jury returned a verdict of guilty on all counts.
On 10 March 2011 the trial judge imposed sentences in respect of each offence, amounting to a total sentence of 22 years imprisonment with a non-parole period of 17 years.
The applicant seeks leave to appeal out of time against his convictions and his sentences.
THE EVIDENCE AT THE TRIAL
The complainant's evidence
In October 2009 the complainant was 22 years old and lived with her younger sister at a unit in Hurlstone Park. She had a dancing qualification and in addition to doing dancing performances throughout Sydney for children, worked part-time in a cocktail bar in Oxford Street, Darlinghurst. After finishing work in Oxford Street in the early hours of 31 October 2009, she spent time with friends because the trains were not then running. At about 6.00 am she walked to Museum Railway Station and travelled by train to Hurlstone Park. CCTV footage showed the applicant walking some distance behind the complainant as she entered Museum Railway Station, boarding the same train in a different carriage, alighting from the train at Hurlstone Park and walking behind the complainant as she headed on foot to her home.
The complainant's sister was getting ready for work when the complainant arrived. She left between 7.00 and 7.30 am. The complainant got into bed and went to sleep, having set her mobile phone alarm for midday.
She awoke to find a man with a knife in his hand standing in her room. He had some type of mask on. He jumped on her, put his hand over her mouth and held the knife to her throat, saying "Don't scream or I'll slit your throat". He moved the knife from her neck to just above her eye and told her twice that he would slit her throat if she screamed. He kept repeating that.
Thereafter the applicant repeatedly sexually assaulted the complainant over a number of hours. The assaults were accompanied by threats of violence to the complainant, causing her to be in a state of extreme terror. In addition to penile/vaginal intercourse, the assaults included penile/oral penetration and attempts by the applicant to have anal intercourse.
At one stage the applicant said to the complainant:
"What am I going to do with you? I can, I can slit your throat and burn your house down or I can tie you up and leave you".
At another time, he said:
"Do you know how long it takes to die after your throat's been slit? ... three minutes, two minutes and 50 - something seconds, it's different for everyone".
Before leaving, the applicant tied the complainant up with neck ties and orange tape and said:
"Don't call the police. If you call the police, I'll kill your sister to get to you. I'll kill your sister, I'll kill your mum, I'll kill your dad, I'll kill your brother".
After the applicant left, the complainant was able to free herself. She ran to a neighbouring unit and called her mother and the police.
The remainder of the Crown case
The complainant's mother, neighbour and uncle gave evidence of complaints by the complainant consistent with her evidence. The neighbour spoke of the complainant shaking profusely, with her teeth chattering on a glass of water. Her uncle referred to her crying and trembling as he hugged her.
An ambulance officer gave evidence that she attended at the complainant's unit at about 2.10 pm on 31 October 2009 and the report of a doctor who examined the complainant at the Royal Prince Alfred Hospital on that day was tendered. It revealed minor lacerations, bruising and swelling.
A number of police officers gave evidence of their inspections of the unit. They did not identify signs of forced entry, although one of the bars on a window was observed to have come away from its frame and to be slightly protruding. The complainant's sister gave evidence that when she went back to the unit her birth certificate and passport were missing from it. She said that the state of disarray of the contents of the unit shown in photographs taken in the course of the police investigation on 31 October 2009 did not reflect their state when she left the unit that morning. Evidence was also given of the use of the complainant's credit card at a nearby cash card machine at about 1.32 pm.
An agreed chronology recorded that the complainant made her call to police at 1.39 pm which was the time at which CCTV film showed the applicant entering Hurlstone Park railway station. At 1.42 pm the applicant was filmed throwing some things onto the railway tracks. He boarded a train at 1.56 pm.
Evidence was given of the execution of a search warrant at the applicant's home at Daceyville. Items found included a green jacket and a screwdriver.
Evidence was also given that the applicant's DNA was detected in a vaginal swab from the complainant and on orange tape that was allegedly used to bind the complainant. It was also identified on a condom that was found on the railway tracks at Hurlstone Park Railway Station after an examination of the CCTV footage referred to above. Also found there was a Nokia phone battery.
The applicant's case
The applicant gave evidence that on the morning of 31 October 2009 he did not follow the complainant to Museum Railway Station but went there for the purpose of catching a train to visit his mother at Campbelltown. He said that he struck up a conversation with the complainant on the train and that she gave him cause to think that she was interested in him. He alighted at Hurlstone Park Railway Station because he saw the complainant get off. He said that he there had a further conversation with the complainant during which the complainant said that her sister would be going to work and "if you're that keen, well, you'd wait". Later, after a young woman, who the applicant assumed to be the complainant's sister, left the unit block, the complainant came out onto the street and she and the applicant walked into the unit together.
The applicant said that consensual sex then occurred and, after some time, he asked the complainant about having sex with her sister because he thought she was a virgin and he wanted to "break her in". According to the applicant, this caused the complainant to become annoyed and require him to leave. He said that he did so, taking a credit card and a piece of paper upon which the PIN for it was written.
He agreed that CCTV footage showed him entering Hurlstone Park Railway Station at 1.39 pm. He remembered hearing ambulance or police sirens but could not remember what he did at that point. He agreed that the CCTV footage showed him throwing things down onto the railway tracks.
The applicant's mother gave evidence that she lived in Pagewood but was, at the time, working in Campbelltown. She said that she had arranged to meet her son at Glenfield Railway Station on Saturday 31 October 2009.
EXTENSIONS OF TIME - CONVICTIONS AND SENTENCE
The applicant was convicted on 23 December 2010. He filed a Notice of Intention to Appeal against conviction and sentence on 28 March 2011. So far as his convictions were concerned, this was well outside the period of 28 days from his convictions allowed by s 10(1)(a) of the Criminal Appeal Act 1912. The papers before the Court do not disclose the date upon which the Notice of Appeal concerning the convictions was lodged but this appears to have occurred in April 2013, long after the expiration of the period of six months for which a (duly filed) Notice of Intention to Appeal is to have effect pursuant to r 3A of the Criminal Appeal Rules. If a Notice of Intention to Appeal is not filed within 28 days of the conviction a Notice of Appeal or Notice of Application for Leave to Appeal must be filed within three months after the conviction or sentence (Criminal Appeal Rules r 3B(1)(b)). This did not occur. Section 10(1)(b) gives the Court power to extend the time for filing a Notice of Intention to Appeal and under r 3B(2), the Court may extend the time for the filing of a Notice of Appeal or Notice of Application for Leave to Appeal.
The specification of time limits for the pursuit of appeals is based upon the principle of finality, described by the plurality in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [45] as "a fundamental and pervading tenet of the judicial system". In considering whether an extension of time should be granted, it is not only the interests of the applicant for leave that must be considered. Regard must be had to the interests of the Crown (representing the community) and to the administration of justice generally (Darwiche v R [2011] NSWCCA 62 at [39]). The longer the delay, the greater will be the justified expectation of the community, witnesses, victims and families of victims that the criminal proceedings are over (ibid at [38]). In considering whether to grant an extension, the Court has regard to the applicant's prospects of success on an appeal but should do so in a more summary fashion than if the applicant had brought an appeal or application for leave to appeal within time (Etchell v R [2010] NSWCCA 262 at [24] - [25]; Abdul v R [2013] NSWCCA 247 at [35]; and see generally Golossian v R [2013] NSWCCA 311 at [22] - 33]).
For the reasons given below, I consider that the applicant's proposed grounds of appeal lack merit, with the consequence that an appeal against his convictions would fail. As it would therefore be futile to grant an extension of time, it should be refused. I add that the solicitor's affidavit filed on behalf of the applicant does not in any event provide an adequate explanation for the delay. Some steps were taken to obtain legal advice but there were long periods when nothing happened.
The extension application in relation to the applicant's sentence is in a different position. His Notice of Intention to Appeal was filed well within the 28 days after his sentence on 10 March 2011 allowed for its lodgement but his Application for Leave to Appeal against sentence was lodged about 2½ months outside the six month period allowed. For the reasons given below, I have formed the view that the applicant's grounds of appeal against his sentences should be rejected. However as his delay was limited and his intended Application for Leave to Appeal arguable, I consider that an appropriate extension should be granted.
GROUNDS OF APPEAL AGAINST CONVICTION
Ground 1: The trial miscarried
In support of this ground of appeal the applicant did no more than rely upon the matters relied upon in support of his other grounds. It is not therefore an independent ground of appeal and should be rejected.
Ground 2: The trial judge erred in his directions to the jury on the criminal standard of proof
The applicant complained that in his Summing-Up the trial judge said, in referring to the standard of proof being beyond reasonable doubt, that those words required no explanation or elaboration by him and:
"Please note, members of the jury, as I said at the beginning, that the words are not 'beyond any doubt, they are simply 'beyond reasonable doubt'".
By this observation, the trial judge was not in my view attempting to explain the meaning of the expression "reasonable doubt" (compare Green v The Queen [1971] HCA 55; 126 CLR 28) but simply ensuring that the jury appreciated that the relevant test was in fact "beyond reasonable doubt". The observation did not have the effect of diminishing the standard of proof (Ward v R [2013] NSWCCA 46 at [49] - [51]) and was not objectionable.
In any event, no objection to the direction was taken at trial, with the result that the applicant is not entitled to rely upon this ground unless leave for him to do so is granted under r 4 of the Criminal Appeal Rules. As the ground lacks merit, I would refuse that leave.
Ground 3: The trial judge improperly commented on the evidence and the legal result of the evidence
This ground relates to the following passages in the trial judge's Summing-Up:
" ... my own view, and here I am expressing my own views about facts, as I am entitled to do, my own view is that on a proper analysis of [the complainant's] evidence she gave evidence capable of supporting each and every one of the charges in the indictment beyond reasonable doubt ...
...
Although not a great deal of evidence in terms of number of words is necessary from [the complainant] necessarily to convince you beyond reasonable doubt that the Crown has proven any given count in the indictment based upon her evidence, you must be satisfied that there is evidence, some evidence on which you can base a verdict of guilty, some evidence of each and every one of the elements".
As held in RPS v The Queen [2000] HCA 3; 199 CLR 620 at [42], "a trial judge may comment (and comment strongly) on factual issues". The trial judge's comments in the passages quoted were limited ones, conveying, in essence, a view that the complainant's evidence was capable of proving the Crown's case to the requisite standard. There can have been no doubt that this view was correct. Neither the applicant's trial nor appeal counsel suggested otherwise.
The issue for the jury at the trial was whether the complainant's evidence should be accepted. The trial judge's Summing-Up made this abundantly clear. As the applicant conceded that he was present at the complainant's home at the relevant time and that he engaged in repeated acts of sexual intercourse with her, the jury had to consider whether it was satisfied beyond reasonable doubt that, as the complainant asserted, the conduct was not consensual. The trial judge did not express a view to the jury on this question.
The absence of objection by the applicant's trial counsel to the passages in the Summing-Up now complained of tends to confirm that they were not such as would have caused the jury to be under any misapprehension. I would refuse to grant leave to the applicant under r 4 of the Criminal Appeal Rules to rely upon this ground of appeal.
Ground 5: The trial judge erred in refusing an application to have the complainant recalled
The complainant, who lived interstate at the time of the trial, gave evidence over three days concluding 15 December 2010. On 16 December Detective Senior Constable Kendrew and two other police officers gave evidence. DSC Kendrew deposed to her examination of the complainant's unit and her interview of her. On the next day, 17 December 2010, the applicant's counsel sought to have the complainant recalled to enable counsel to put to her alleged inconsistencies between her evidence and her account of events to DSC Kendrew as recorded in DSC Kendrew's police notebook. These comprised, at least principally, alleged omissions in what the complainant told DSC Kendrew. The notebook had only been produced to the applicant the day before. The Crown Prosecutor opposed the application, contending that there was no inconsistency.
The trial judge indicated to the applicant's counsel that his immediate reaction was "why don't you just tender it?" Counsel responded that she had thought about doing that but considered that the tender would be of limited value to her client because, in light of DSC Kendrew's evidence that she could not recall asking the complainant to give a complete account of the events, "there was probably no expectation of it containing all the significant acts". After further discussion, the trial judge expressed the view that, if recalled, the complainant was likely to say "I was upset, I can't remember exactly what I said" and that he was "singularly reluctant to bring [the complainant] back from another State for her to tell us that". The applicant's counsel had earlier agreed that it was likely that this was what the complainant would say. His Honour also said that "I think your client loses absolutely nothing, frankly that, in fact, he might gain something". The Crown Prosecutor added that he did not know whether the complainant had in fact yet returned home.
On appeal the applicant relied on Hunt J's observation in R v Fleming (NSWCCA, 12 December 1989, unreported) that "generally speaking" a judge should "always accede to a request to have a witness recalled for cross-examination upon a point of substance which has been overlooked - however incompetently - unless real and incurable prejudice is created for the party calling that witness". As there was no question of incompetence here, the applicant submitted that the observation applied a fortiori.
Notwithstanding Hunt J's observation as to what should generally occur, the trial judge had a discretion to accede to or reject the application. In my view, it was reasonable for the judge to conclude that the applicant would not suffer any prejudice by refusal of the application as it was open to his counsel to tender the notebook and address the jury on the supposed inconsistencies. That the applicant's counsel chose not to do this is not to the point. An alternative course open to her would have been to obtain agreement from the prosecution as to what the notebook did or did not contain and to tender a note of agreed facts in the same way that an agreed chronology had been put before the jury. Furthermore, there was in my view no error in the judge taking into account his reluctance to recall the complainant when she had completed a lengthy and arduous period in the witness box and had probably returned to her interstate home.
Ground 6: The trial judge erred in allowing the Crown to tender a metal grill
The grill came from a window of the complainant's unit. The Crown suggested in closing address that in light of damage to bars of the grill that it was possible that the applicant entered the unit through it. The applicant's counsel spent considerable time in her closing address seeking to refute this as a possibility. She had not however objected to the tender of the grill and no persuasive argument has been advanced on appeal as to why it was not properly admitted as an item of real evidence (see Evans v The Queen [2007] HCA 59; 235 CLR 521 at [20] - [21]). As there was no objection to the tender of the grill at the trial, the applicant requires leave under r 4 of the Criminal Appeal Rules to rely upon this ground. There is no good reason to grant such leave.
Ground 7: The trial judge erred in permitting inappropriate demonstrations in court and inviting demonstrations
The applicant complained under this heading of the Crown Prosecutor's movement, in front of the jury, of a bar of the grill. The applicant referred to s 53 of the Evidence Act 1995 relating to orders for demonstrations, experiments and inspections, but that section does not apply to those steps when conducted inside the courtroom (Evans v The Queen at [30], [63], [195] and [266]).
As earlier noted, the metal grill was properly admitted into evidence. I can see no reason why the applicant would have been prejudiced by what the Crown Prosecutor did, as the jury had the benefit of the applicant's counsel's immediate response as follows:
"I don't see how it assists the jury the Crown Prosecutor, weighing more and presumably being stronger than my client ever was, standing there bending the bars in front of them. They will have the exhibit, they can give it a go for themselves".
What occurred did not therefore have the prejudicial character that was found in Evans v The Queen to exist in the judge's direction that the accused put on a balaclava, overalls and a pair of sunglasses.
The reference in this ground of appeal to the trial judge "inviting demonstrations" is to the trial judge's statement that the "members of the jury can make their own examination". There was however nothing objectionable in this comment, particularly when the applicant's counsel had, moments earlier, said that the jury would have the exhibit and "they can give it a go for themselves".
There is no substance in this ground of appeal.
Ground 8: The trial judge erred in asking a question
The applicant contends on appeal that the trial judge should not have asked a police officer who gave scientific evidence whether it was difficult for him to cut the bars of the window grill referred to earlier with his hacksaw. The question was not objected to and in the context of the trial was innocuous. The highest the applicant puts his objection on appeal is that, first, the question and answer were meaningless without further information about the hacksaw and, secondly, the question and answer were likely to give a "false picture" because another police officer gave different evidence. Neither point suggests that the applicant was unfairly prejudiced by the question.
The applicant requires leave under r 4 to advance this ground. There is no good ground for granting it.
Ground 9: The trial judge gave incorrect and misleading directions in respect to the issue of breaking and entry and its importance in the trial
In his Summing-Up, the trial judge referred at two points to the applicant's allegedly unauthorised entry into the unit. His Honour said, in effect, that if the jury was satisfied that the accused gained unauthorised entry to the unit, it did not need to find exactly how that happened. During her final address at the trial, the applicant's counsel placed considerable emphasis on the absence of evidence of any damage to or tampering with any lock at the unit and advanced reasons why the jury should not conclude that the accused gained entry through the window grill that was tendered in evidence.
The only complaint that the applicant's counsel made at the trial in relation to the Summing-Up on this topic was that the judge did not ask the jury to consider whether the Crown had proved beyond reasonable doubt that the accused would have been able to gain unauthorised entry without leaving evidence of that having occurred. The judge declined to supplement his directions, saying in the absence of the jury:
"My point was simply this, you don't need to have done time at Long Bay, as an ordinary lay person, as a member of the jury, to know that it is possible to get into premises without necessarily leaving any discernible trace of it".
This was a commonsense approach which did not in my view involve any error. The jury was well able to weigh the strength of the Crown's case and consider whether it had been proved beyond reasonable doubt, notwithstanding that no evidence of unauthorised entry was identified. The applicant's counsel was effectively asking the judge to indicate to the jury that it could not find the Crown's case proved unless the Crown proved that unauthorised entry could have been gained without leaving evidence of it. This would have been inaccurate as the jury was entitled to bring its commonsense and experience to bear on this, as on other issues.
The applicant did not take any other point at the trial relevant to this ground of appeal and has not in my view raised any issue on appeal that would warrant the granting of leave under r 4.
Ground 10: The conduct of the trial judge prevented the accused from having a fair hearing
Ground 12: The trial judge was biased against the applicant
I have reviewed the record of the trial as a whole and in particular those aspects of it to which attention is drawn in these grounds. Ground 12 was formulated by the applicant and supported by written submissions prepared by the applicant himself. Senior counsel for the applicant on the appeal made it clear that he was not advancing Ground 12. As a result the applicant himself was given the opportunity to present oral submissions on it. I have concluded that there is no merit in either ground. As I am dealing with an application by the applicant to appeal long out of time, it is sufficient to make the following brief observations on the matters relied upon in relation to Ground 10. No additional matters of significance were raised in relation to Ground 12.
The first matter concerns the trial judge's observations in relation to the withdrawal of a former legal representative of the applicant. In the course of the appeal hearing, the applicant conceded that these observations were not made in the presence of the jury. Accordingly, the point has no substance.
Secondly, the applicant complained of interruptions by the judge in the course of the applicant's evidence. However, I do not consider these to have been excessive or inappropriate. Essentially, they were for the purpose of ensuring that responsive answers were given, or for clarification.
Thirdly, during the applicant's cross-examination, the Crown Prosecutor put a suggestion to him to which the applicant answered "How do I answer that, sir?" The judge then responded "Truthfully would be an idea, Mr Simon". Although the element of sarcasm evidently embodied in this remark was inappropriate, I do not consider that it could reasonably be regarded as having caused the applicant any prejudice.
Fourthly, the applicant complained of an exchange during his cross-examination when there was confusion as to how long he had been at the unit. In my view, nothing turned on this.
Fifthly, the applicant complained that the judge asked him a misleading question as to what, if anything, the complainant could see during the course of an episode of oral sex. Whether or not the judge's question was based upon a misunderstanding, the submission does not identify any unfair prejudice to the applicant.
Sixthly, the applicant submits that the judge's attitude to him when he gave evidence was very different from the politeness with which he treated the complainant. However I do not consider that there was any manifest difference which can fairly be regarded as having prejudiced the applicant.
Finally, the applicant claims that in a number of respects the trial judge in his Summing-Up misstated the applicant's case or failed to mention important evidence. None of these matters were the subject of complaint at the trial and none are of such significance as would warrant a grant of leave under r 4 to raise them.
Ground 11: The verdict was unreasonable
In considering this ground of appeal I have undertaken, as required by SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14], an independent assessment of the evidence at the trial, both as to its sufficiency and quality. In my view it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences with which he was charged (ibid at [11]). Further, I do not consider that it would be "dangerous in all the circumstances to allow the verdict of guilty to stand" (at [14]). My view is thus that the evidence supported the verdicts that were returned (BCM v The Queen [2013] HCA 48 at [31]).
The following aspects of the evidence are of particular importance in this respect:
(1)The applicant's behaviour before the alleged offences occurred, as recorded on CCTV film, whilst he was on Oxford Street and at Museum and Hurlstone Park Railway Stations. Taken together, the films give rise to the clear inference that the applicant followed the complainant at each of those places, keeping his distance so that she did not see him.
(2)The applicant's implausible explanation of why he travelled on a train to Hurlstone Park and implausible descriptions of his conversations with the complainant on the train, after alighting and near her unit.
(3)The applicant's implausible explanation of why neck ties, which the complainant alleged were used to tie her up, were found knotted with yellow tape.
(4)The applicant's implausible explanation of how he came to be in possession of the PIN number for the complainant's credit card. The complainant said that the applicant extracted it from her under duress and that she had had no need to write down the number in order to remember it. The applicant said that the PIN number was recorded on a note in the complainant's wallet, in which he found her credit card.
(5)The applicant's behaviour after the alleged offences, as recorded on CCTV, at the Hurlstone Park Railway Station at the time that he is likely to have heard police or ambulance sirens. He appears to move out of sight and then dispose of items, by throwing them on the railway track. The items were subsequently found to include a used condom with the applicant and complainant's DNA on it.
(6)The state of complete disarray of the unit as found on the police inspection was consistent with the complainant's evidence and was not satisfactorily explained by the applicant. The complainant's sister confirmed that the unit had not been in that state when she left it on the morning of 31 October.
(7)The evidence of police officers, the complainant's neighbour, and her mother, sister and uncle of the complainant's state shortly after the period of sexual intercourse that the applicant asserted was consensual, strongly supported her evidence.
(8)The evidence of those persons of complaints by the complainant shortly after the events in question. Evidence of a complainant's distress and the content, recency and spontaneity of her complaints can provide strong support for a Crown case (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [78] and [98]; Tonari v R [2013] NSWCCA 232 at [200]).
(9)The evidence of the complainant herself which appeared from the transcript to be highly credible.
I have taken into account also the verdicts of guilty returned by what I regard as a properly instructed jury. Having regard to all these matters, I am left in no doubt about the guilt of the applicant.
Three specific matters raised by the applicant in relation to this ground of appeal can be disposed of as follows.
First, the applicant contended that it was significant that the complainant did not mention any episodes of penile/oral intercourse during the accounts she gave on 31 October 2009. I do not consider that any significance is to be attached to this bearing in mind the extreme trauma which, on the complainant's evidence, she endured that day. It is unsurprising that if she endured hours of sexual abuse at the hands of the applicant that she may not, in the hours following the assaults, have given an entirely accurate and comprehensive description of all that had occurred.
Secondly, the applicant submitted that to the extent that the jury may have concluded that the applicant entered the unit through the window grill in evidence, the verdicts should be regarded as unreasonable. I reject this submission as there is no reason to conclude that the verdicts were so based. The Crown did no more than offer entry through the window grill as a possibility. It made it clear that the jury did not need to find precisely how the applicant gained entry.
Thirdly, the applicant submitted that there was no evidence to support the Crown's suggestion in address that, when at Hurlstone Park Railway Station after the time he spent at the complainant's unit, he was seen on the CCTV to move out of sight when a police car went by. However in my view there was a firm basis for this suggestion when the CCTV film was considered in light of the evidence of the times of the complainant's 000 call and the applicant's use of her credit card, and the applicant's evidence of hearing a siren whilst on the station platform.
SENTENCE APPEAL
The sentences imposed
As noted earlier, the trial judge imposed sentences totalling 22 years imprisonment with an aggregate non-parole period of 17 years 6 months. The following summary of the individual sentences imposed and the incompletely served sentences in respect of prior offences is taken from the applicant's written submissions:
"Count 1 (s. 113(2)) - break and enter with intent - a fixed term of 2 years imprisonment, commencing on 14 November 2011 and expiring on 13 November 2013.
Counts 8 and 12 - s. 61L - indecent assaults - in respect of both counts - a fixed term of 2 years imprisonment, commencing on 14 November 2011 and expiring on 13 November 2013.
Count 16 (s. 97(1)) - armed robbery - a fixed term of 1 year 6 months imprisonment, commencing on 14 November 2011 and expiring on 13 May 2013.
Count 17 (s. 86(1)(b)) - detain for advantage - a fixed term of 2 years imprisonment, commencing on 14 November 2011 and expiring on 13 November 2013.
Counts 18 and 19 (s. 178BA) - dishonestly obtain money by deception - in respect of both counts, a fixed term of 6 months imprisonment, commencing on 14 November 2011 and expiring on 13 May 2012.
Counts 2, 3 and 4 (s. 61J(1)) - aggravated sexual intercourse without consent - in respect of each count 18 years consisting of a non-parole period of 13 years 6 months, commencing on 14 November 2012 and expiring on 13 May 2026, with a parole period of 4 years 6 months, expiring on 13 November 2030.
Counts 11 and 14 (ss. 61J(1)/344A) - attempted aggravated sexual intercourse without consent - in respect of both counts 16 years, made up of a non-parole period of 12 years, commencing on 14 November 2012 and expiring on 13 November 2024, with a parole period of 4 years, expiring on 13 November 2028.
Counts 5, 6 and 7 (s. 61J(1)) - aggravated sexual intercourse without consent - in respect of each count 18 years made up of a non-parole period of 13 years 6 months, commencing on 14 November 2013 and expiring on 13 May 2027, with a parole period of 4 years 6 months, expiring on 13 November 2031.
Counts 9 and 10 (s. 61J(1)) - aggravated sexual intercourse without consent - in respect of both counts 18 years made up of a non-parole period of 13 years 6 months, commencing on 14 November 2014 and expiring on 13 May 2028, with a parole period of 4 years 6 months, expiring on 13 November 2032.
Counts 13 and 15 (s. 61J(1)) - aggravated sexual intercourse without consent - in respect of both counts 18 years made up of a non-parole period of 13 years 6 months, commencing on 14 November 2015 and expiring on 13 May 2029, with a parole period of 4 years 6 months, expiring on 13 November 2033.
The non parole period of 210 months represented 79.6% of the total period of 264 months.
As at 10 March 2011 (the date of sentence), the Applicant had been in custody since 10 November 2009 serving sentences in respect of several other unrelated offences. On 10 March 2011, just shortly before Hosking DCJ delivered sentence, the Applicant appeared before Blanch J on a severity appeal in respect of one of those unrelated offences; Blanch J reduced the sentence imposed, so that the Applicant's release date for that offence was varied from 16 January 2012 to 13 November 2011. Hosking DCJ set the sentences for the instant offences to commence on 14 November 2011.
Including the sentences imposed in respect of all of the earlier unrelated offences, the Applicant's total effective sentence is one of 24 years 3 days, with a non-parole period of 19 years 6 months 3 days. This is a ratio of non-parole period to total sentence of 81.25%" (Amended Submissions on behalf of Applicant on Application for Leave to Appeal on Sentence pp 1 - 3).
On 15 July 2011, the sentencing judge corrected the sentences under the slip rule by moving all dates for commencement and expiry back by two days. The date for expiry of the aggregate non-parole period thus became 11 May 2029 and that for expiry of the aggregate head sentence became 11 November 2033.
The sentencing judgment
After describing the conduct proved against the applicant, the sentencing judge noted from the complainant's Victim Impact Statement that, understandably, the offences had had a severe and lasting effect on her. The Statement indicated that she suffered from depression and crippling panic attacks, and was no longer able to do her work as a dancer for children.
His Honour then turned to the applicant's criminal record which commenced with a number of offences as a juvenile. As an adult, his criminal record began with a conviction for sexual intercourse without consent for which he was sentenced on 13 August 1992 to a total term of 21 months imprisonment. The offence involved a violent assault, resulting in the victim screaming for help, breaking free and running down the street and the applicant grabbing her, pulling her into a shed and again violently assaulting her. In the following years, the applicant had convictions for break, enter and steal, indecent assault, assault, assault occasioning actual bodily harm and assault with an act of indecency. The last two charges involved a violent assault on a victim, pursuit of her after she escaped, and a further violent assault accompanied by a threat to kill her.
In 1995, the offender was convicted of stealing a motor vehicle, being in possession of housebreaking implements, goods in custody, assault, larceny and assault occasioning actual bodily harm. In 1996 he was convicted of stealing from a person and using a weapon to resist arrest. For these offences he received a sentence of 6 years as a minimum term, with an additional term of 2 years. Further offences of possess housebreaking implements, stealing a motor vehicle, larceny, malicious damage and escaping from lawful custody followed.
In 2002 the applicant was convicted of take and drive a conveyance. In 2004 he was convicted of robbery, obtaining money by deception, receiving stolen property, aggravated break, enter and steal and break, enter and steal. In 2008 he was convicted of custody of a knife in a public place, of being armed with intent to commit an indictable offence and of contravening a domestic apprehended violence order. According to his Honour, in April 2009 he was convicted of larceny and in October 2009 of break, enter and steal and causing malicious damage. He committed a further break, enter and steal offence in 2010.
The judge noted that the applicant had not shown "even a shred of remorse" for his attacks on the present complainant and that whilst the judge was summing up to the jury at his trial, the applicant had made a gesture of contempt directed at the complainant.
His Honour described the offences as involving "horrific attacks against a young woman who was entitled to feel safe in her home. They were not by any means sudden crimes of passion but were carefully planned by the offender". His Honour then described how the applicant had clandestinely followed the complainant onto a train and then to her home and, after gaining entry to her unit, had threatened to cut her throat. He then stated that the applicant tormented the complainant over a period of hours "in a variety of ways all the while sexually violating her, including [doing] his best to even have anal intercourse with her".
His Honour continued:
"The offender has proven himself to my satisfaction, beyond any shadow of a doubt, to be and is a serious danger to society. The offender has learned nothing from his many previous periods of imprisonment. His criminal record shows that while he is at large he offends relentlessly, sexually assaulting women with violence, bashing people, robbing people, breaking into their homes, stealing their possessions, stealing cars and offending in numerous other ways. The offender, in my assessment of him, has shown himself to be without a shadow of a doubt an antisocial purely selfish man who cares nothing for the personal integrity and rights of others, in fact that is too mild a description. His long pattern of seriously criminal behaviour shows absolute contempt for both other people and for the criminal law in general. When eventually released the offender will almost certainly offend again. I rate his chances of rehabilitation at close to nil. I recommend that when the offender is eventually released that, as a convicted serious sex offender, he be continuously monitored as closely as possible. If possible the authorities should make the offender wear some kind of electronic tracking device twenty-four hours a day so that his movements can be monitored twenty-four hours a day.
It is clear from what I have said thus far that important factors in the offender's sentences are general deterrence, more particularly specific deterrence and protection of the community generally.
In terms of the various aggravated sexual assault counts I am obliged, because of the existence of the standard non-parole period, to assess where these offences stand in the overall scale of offences of this general kind. In my view a mid-range offence might involve the use of a knife with threats of wounding and a considerable degree of trauma occasioned to the victim. Here there were these following features as I have already noted:
(1) Threats of death by the offender slitting [the complainant's] throat.
(2) These assaults took place in her own home.
(3) The entire episode involved considerable pre-meditation and planning.
(4) In terms of injury and loss to [the complainant] herself, not only was she severely traumatised as might be expected but in addition she has effectively lost her own vocation".The sentencing judge then noted the following concerning the applicant's subjective circumstances.
The applicant grew up in Malabar, attending the local primary school and Matraville High School. He told a reporting psychologist that he began smoking cannabis and drinking alcohol at the age of 12. The psychologist's tests indicated that the applicant was well above average intelligence. Another report that was in evidence indicated that the applicant began intravenous use of heroin at the age of 21, soon progressing to daily use.
Having noted evidence that the applicant is an Aboriginal man who was born on 29 September 1972, the sentencing judge said:
"There is no adequate evidence before me that the offender had the kind of deprived background that was spoken of in the well known case of R v Fernando [Fernando v R (1992) 76 A Crim R 58]. It may have been, I will acknowledge, that his background at La Perouse and Matraville as a child was less than ideal but in my view there is no valid Fernando type factor that should operate here to reduce in any way the offender's sentences".
In concluding that the sentences for aggravated sexual intercourse should be 18 years imprisonment with a non-parole period of 13 and a half years, the sentencing judge described the offences as "well above the mid-range" for the reasons he had already given. He provided for accumulation as described in [98] below.
After concluding that the applicant's total sentence should be 22 years with a 17 and a half year non-parole period, his Honour said:
"In my view the sentence in total that I have just indicated, even by comparison to a sentence for murder is appropriate for various reasons including these six reasons. Firstly, I am dealing with multiple offences. Secondly, I am dealing with a standard non-parole period and the offender's aggravated sexual assaults fall well above the mid-range and up towards the high range of objective seriousness. Thirdly, there is the offender's appalling criminal record. Fourthly, there is, as I have said, his complete absence of any remorse. Fifthly, there is my assessment that if history is any guide the offender is highly likely to re-offend once released from custody. And sixthly, my assessment is, as I have said, that he represents a very serious danger to the general community".
I turn now to the applicant's proposed grounds of appeal, dealing last with Grounds 1 and 2 which raise issues of manifest excess.
Ground 3: The sentencing judge erred in his determination of objective criminality
The applicant submitted that the sentencing judge erred in concluding that the applicant's aggravated sexual assaults "fall well above the mid-range and up towards the high range of objective seriousness" (see [78] above).
As assessment of the objective seriousness of an offence involves an evaluative judgment, it is reviewable only in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499. Thus, unless a particular error in approach can be identified, the question is whether the sentencing judge's assessment was open to him (R v Eckermann [2013] NSWCCA 188 at [28]). In my view his Honour's assessment was not, to use the words of House v The King, "unreasonable or plainly unjust" (at 505) and it was thus well open to him, for the reasons that he gave (see [78] above). Particularly significant to my mind was the prolonged period over which the assaults occurred and the fact that they occurred in the complainant's home and that the applicant's presence and repeated threats to kill were calculated to, and understandably did, induce extreme terror in her.
Particular submissions made by the applicant, and my responses, are as follows.
First, the applicant submitted that, in assessing objective seriousness, the sentencing judge should not have taken into account the impact of the offences on the victim. In support of this, he cited Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27] which relevantly states:
"The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending".
His Honour did not depart from this principle. Consideration of the impact of the offences on the victim assisted in an assessment of the seriousness of what occurred. It did not involve consideration of the applicant's subjective circumstances.
Secondly, the applicant submitted that the sentencing judge made errors of fact in describing the period of the offences as five to six hours and in saying that the applicant tormented the complainant.
The precise period over which the offences were committed was not identified by the evidence. The period would appear to have been a maximum of about six hours, as the complainant's sister left home between 7.00 and 7.30 am and the 000 emergency telephone call was made by the complainant at 1.39 pm. However, based upon an estimate given by the complainant in evidence that she first saw the applicant "maybe an hour and a half to 2 hours" before her midday alarm went off, the period may have been closer to three hours. His Honour's statement that "over perhaps five or six hours the offender tormented [the complainant] in a variety of ways ... " may thus have overstated the period, but the error was not material. When the point was raised with his Honour after he had finished delivering his reasons, his Honour responded:
"My view is that whether it was 3 hours or 5 hours doesn't matter because the point is that it was over a number of hours and was equally terrifying whether it was 3 hours or 5 hours".
Furthermore, there was no error in his Honour describing the complainant as having been tormented over the relevant period. A primary meaning of the word "torment" is "to afflict with great bodily or mental suffering" (Macquarie Dictionary, 5th ed (2009) Macquarie Dictionary Publishers Pty Ltd). This is what the applicant did to the complainant.
Thirdly, the applicant submitted that the sentencing judge failed to take into account the following factors which should have led to an assessment of the offences as mid-range: the degree of force or coercion used was limited; there were no humiliating threats or insults; there were no (gratuitous) acts of degradation of the complainant other than the sexual acts themselves; the complainant was not cut at any stage or subjected to undue pain and discomfort; except when tied up, the complainant did not suffer any physical injury; the applicant did not bring a knife to the premises, having obtained one there; at one stage the applicant stopped his assault when the complainant became particularly distressed; his attempted acts of anal intercourse were of very brief duration; each episode of sexual assault was not unduly lengthy and, finally, there was only one victim.
None of these matters, whether taken individually or together, required an assessment of the offences as mid-range. The complainant was undoubtedly degraded by the repeated sexual assaults which occurred in her own home and repeatedly threatened with violent death by having her throat cut with a knife which the applicant brandished. The applicant's submissions amount to an attempt to have this Court re-assess the objective seriousness of the attacks, but the relevant question is whether his Honour's assessment has been shown not to be open to him. This has not occurred.
Ground 4: The sentencing judge erred in failing to distinguish between the objective criminality involved in Counts 3, 6 and 13 and that involved in the other aggravated sexual assaults
The sentencing judge imposed the same sentence in respect of each count of aggravated sexual intercourse without distinguishing between those offences involving penile/vaginal intercourse and those involving fellatio (Counts 3 and 6) and digital penetration (Count 13). The specification of the same maximum penalty for different types of sexual penetration does not mean that each type of penetration is to be treated equally seriously (Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 452). Thus, the type of penetration involved is relevant to the assessment of the objective seriousness of the offence (see for example R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [23] - [25]). That however is but one consideration. Also of importance are factors such as the place at which the offence occurs and whether it is accompanied by threats.
In my view, the present was a case in which the type of sexual penetration involved in the different offences assumed less importance than the other factors to which the sentencing judge referred in his assessment of objective seriousness. Thus in my view it was, as the sentencing judge recognised, of prime importance in the assessment of objective seriousness in this case that the various forms of sexual assault occurred after the applicant's unauthorised entry into the complainant's home and were perpetrated over a lengthy period during which the applicant subjected the complainant to extreme terror by repeatedly threatening to cut her throat with a knife that he brandished.
I do not consider that the applicant has demonstrated that the sentencing judge's assessment of objective seriousness was in error for the reason stated in this ground.
Ground 5: The sentencing judge erred in his appreciation of the effect of the standard non-parole period
The applicant did not refer to any part of the sentencing judge's reasons which he asserted reflected an error concerning the standard non-parole period. As a result, he has not established that any error was made.
To support this ground, it was not sufficient in this respect for the applicant to refer, as he did, to something said by the judge in the course of the sentencing submissions. In any event, the remark to which he referred was not objectionable.
The applicant referred to the Crown's comment in argument, attributed to Howie J in AD v R [2005] NSWCCA 208, that "parliament's introduction of a standard non-parole period of 10 years means that inevitably sentencing for offences such as this must increase", to which his Honour replied "that must be so". In fact Howie J said in that case (at [43]) that "the effect of the standard non-parole period will generally be to increase the level of sentencing for offences to which it applies". Howie J's observation is not dissimilar to that which the High Court made in Muldrock at [31] that "the likely outcome of adding the court's awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence" is an increase in sentences. The sentencing judge did not err in expressing a view along these lines.
Ground 6: The sentencing judge erred in sentencing the Applicant for the attempt offences
The two attempt offences (Counts 11 and 14) were constituted by the applicant's unsuccessful attempts to have anal intercourse with the complainant. In the course of his sentencing reasons, the judge erroneously referred to a standard non-parole period as being applicable to these offences. However when this was raised with him after he completed the delivery of his reasons, he indicated that he was aware that no standard non-parole period was applicable and attributed the contrary reference in his reasons to a slip of the tongue. The sentences his Honour imposed in respect of the attempt offences (16 years imprisonment with a non-parole period of 12 years) were less than those in respect of the completed assaults.
Assuming that the sentences for the completed assaults were not manifestly excessive, a topic which I address below, I do not consider that any error as contended for in this ground of appeal has been established. In particular, I do not consider that any inference favourable to the applicant's proposed appeal can be drawn from the fact that the difference in the sentences referred to was limited. As with the sentences in relation to the acts of fellatio and digital penetration, the precise nature of the act in question in relation to the attempt offences was only one of many circumstances relevant to the assessment of their objective seriousness. The context in which the attempt and other offences were committed justified their characterisation at not greatly dissimilar levels of criminality.
Ground 7: The sentencing judge erred in his application of the totality principle in respect of the accumulation of the individual sentences and accumulation on existing sentences
For the purpose of considering issues of concurrence and accumulation, the sentencing judge grouped the offences into five categories. The sentences for offences within each category were wholly concurrent with each other. Each of the four categories after the first was accumulated to the extent of one year over the preceding category, with the effect that the total accumulation was four years. The first category comprised the fixed term sentences in respect of Counts 1, 8, 12, 16, 17, 18 and 19. The remaining four categories comprised the offences committed during the four separate episodes of sexual assaults that were committed.
The sentences that his Honour imposed on 10 March 2011 commenced on 12 November 2011. Their commencement was deferred due to the applicant being in custody from at least 10 November 2009 serving sentences imposed in respect of offences unrelated to those concerning the present complainant. The last of the non-parole periods in respect of those sentences was due to expire on 12 November 2011.
His Honour declined to allow for any concurrency of the present sentences with the last to expire of the applicant's pre-existing sentences (this being the only one still to expire). He said that he could see no proper reason to do so.
The applicant complains, first, that the judge should not have accumulated the present sentences as he did because they formed 'a single episode of criminality'. However, in my opinion it was within his Honour's discretion to take the view that whilst the sentence for one offence within one of his Honour's categories comprehended and reflected the criminality involved in the other offences within that category, the sentences for offences in different categories did not have that effect in relation to the criminality of the offences within other categories.
Decisions concerning concurrence and accumulation are discretionary decisions to which the principles in House v The King are applicable. No error of principle having been identified, to succeed the applicant would have had to show that the judge's decision was "unreasonable or plainly unjust". In my view he did not do so.
The same reasoning is applicable to his Honour's decision not to make the sentences to any extent concurrent with the pre-existing, unrelated sentences. His Honour correctly took the latter sentences into account when considering the principle of totality, that is, that the aggregation of the sentences be "a just and appropriate measure of the total criminality involved" (Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 307 -308). That his Honour did not refer in this context to all of the pre-existing sentences is not of consequence as it is apparent from his review of the applicant's criminal history that he was well aware of those earlier sentences.
Ground 8: The sentencing judge erred in his approach to the offender and his prior criminal record
The applicant complains first of a comment made by the sentencing judge immediately after the applicant was convicted that "this will be the last time your client rapes anybody", his acceptance in the course of the sentencing submissions of the Crown proposition that the applicant was "a recidivist violent sex and property offender" and his comment in his sentencing judgment that the applicant's "criminal record shows that while he is at large he offends relentlessly - sexually assaulting women with violence, bashing people, robbing people etc." The first of these comments was unnecessary and inappropriately emotive but is not indicative of error in his Honour's subsequent sentencing decision. The second and third were justified by the applicant's criminal record.
Contrary to the applicant's submissions, the judge's further comment in his sentencing reasons that the applicant thought he had skill as a criminal was justified by the steps that the applicant took, whilst with the complainant at her home, to attempt to conceal his identity from the complainant and prevent it subsequently being ascertained.
Again contrary to the applicant's submission, there was no error in the sentencing judge's remark to the effect that the applicant had been treated with considerable leniency when sentenced in the past.
The sentencing decision here pre-dated the High Court decisions in Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 and Munda v The Queen [2013] HCA 38; 87 ALJR 1035. However his Honour considered whether the applicant, who is an Aboriginal man, had a deprived background and concluded that he had not. The evidence did not suggest otherwise.
The applicant further complains that the sentencing judge declined to grant an adjournment to enable preparation of psychiatric or psychological reports. However, it was within his Honour's discretion to do this as the Crown asserted, without contradiction by counsel for the applicant, that the Crown had subpoenaed the Justice Health file for the applicant and this showed that in none of the psychiatric and psychological reports tendered in his many past sentencing proceedings had he presented with any mental health problems.
Ground 9: The sentencing judge erred in finding that the offence had been aggravated by the offender's conduct in court
The applicant submitted that the sentencing judge increased the applicant's sentences as a result of the applicant's gesture of continuing contempt towards the complainant made during the Summing-Up. However, his Honour did not do that. He simply treated the conduct as demonstrating a complete absence of remorse, that being a factor which, if present, would have justified mitigation of the penalty. His Honour did not err in doing this.
Ground 10: The sentencing judge erred in failing to find special circumstances
The total effective non-parole period represented 79.6% of the aggregate sentence. The prima facie requirement imposed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 for the balance of the term of a sentence not to exceed one-third of the non-parole period for the sentence only applies to individual sentences and not to the aggregate effect of a number of sentences. However, a departure from that proportion in respect of the aggregate sentence is a basis for a finding of special circumstances. If a sentencing judge is not to find special circumstances in that situation, "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"(Barrett v R [2011] NSWCCA 213 at [29]).
Here the sentencing judge did not mention the issue in his sentencing reasons. When the Crown raised it at the conclusion of the delivery of those reasons, the judge adhered to the sentences that he had imposed but did not give any reason for not finding special circumstances, although he did say that "it is often impossible to comply with that ratio".
His Honour did not therefore articulate any good reason not to find special circumstances and to reduce the aggregate non-parole period to 75% of the aggregate sentence. I consider that such a reduction was appropriate and that his Honour was in error in not making it. The appropriate reduction to the aggregate non-parole period can be achieved by finding special circumstances because of the accumulation of sentences and thereby changing the non-parole periods and parole periods for Counts 13 and 15 to 12 years 6 months and 5 years 6 months respectively. This results in an aggregate non-parole period of 16 years 6 months which is 75% of the aggregate head sentence.
Ground 1: The sentences imposed in respect of counts 2, 3, 4, 5, 6, 7, 9, 10, 11, 13, 14 and 15 were manifestly excessive
Ground 2: The total sentence imposed was manifestly excessive
Sentencing decisions are discretionary judgments to which the principles in House v The King are applicable. Thus, "a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion" (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]). If no specific error can be demonstrated, an appellant cannot succeed unless he or she establishes that the sentence is unreasonable or plainly unjust, such that it can be concluded that some, albeit unidentified, error must have occurred (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]). This ground, referred to as one of manifest excess, is established where the sentence imposed "is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it (Hili v The Queen [2010] HCA 45; 242 CLR 520 at [60]; Bugmy v The Queen at [52]).
Departure from a range of sentences imposed in previous cases does not indicate that a sentence is manifestly excessive. "[P]revious sentences may be used to establish a range of sentences that have been imposed but not that the range is correct. In particular, the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'" (Munda v Western Australia at [39] citing Hili v The Queen at [54]).
The applicant referred to New South Wales Judicial Commission statistics in relation to sentences for s 61J offences as the foundation for his submission that he was "sentenced on the basis that his offences were far worse than other offences despite no finding having been made that they were so and the judge having found, at worst, that they [were] above the mid-range".
Bearing in mind the diversity of the conduct that can constitute an offence under s 61J, I do not consider statistics to be of assistance in the present case. To adapt an observation made by the plurality in Hili v The Queen at [48] in the context of federal offences, the limited number of offenders sentenced each year and the diversity of the circumstances of their offending and their personal circumstances render it "not possible to make any useful statistical analysis or graphical depiction of the result".
If any guidance is to be gained in relation to the resolution of the present ground of appeal from sentences previously imposed, it must come, if at all, from consideration of the features of particular cases decided in the recent past. I say recent because, as observed in R v Magnuson [2013] NSWCCA 50 at [117], "[o]ver the past 25 years, there have been a number of developments within the criminal justice system of New South Wales that have led to a lengthening of sentences to be served, both with regard to sexual offences and offences generally" (per Button J with whom McClellan CJ at CL and Bellew J agreed).
It is unnecessary to repeat the reviews undertaken in R v Bilal Skaf [2005] NSWCCA 297 at [48] - [52] and Stephens v R [2010] NSWCCA 93 at [60] - [64] of earlier, potentially relevant, sentencing decisions. It is sufficient to refer to the decisions in R v Reyes [2005] NSWCCA 218 and in Stephens itself.
The decisions reviewed in Skaf and Stephens were relied upon by the applicant in the present case to support the following submissions:
"Unlike Boatswain, Presta and AEM, there was only one victim; unlike Boatswain, Presta and Roberts, the applicant did not humiliate the victim by urinating on her; unlike AEM, the offences were not committed in company (although this is now a separate offence, attracting a maximum penalty of life imprisonment - s.61JA); unlike Presta, Reyes and CM implements were not inserted into the victim's body and she was not subjected to significant corporal violence; and unlike Reyes, the applicant did not inject the victim with an illicit drug; Eatts of course involved a prison assault - an area where the Courts have traditionally imposed heavier sentences because of the vulnerability of prisoners in gaol.
With respect to the attempt offences it is respectfully submitted that they could not appropriately be described as in any way more than serious".
In Reyes, the complainant was detained, at knife point and against her will, for a period of about 20 hours during which the offender sexually assaulted her repeatedly and injected her with amphetamines. Following a successful Crown appeal against the inadequacy of the sentence imposed in the District Court, this Court imposed total sentences of 18 years imprisonment with an aggregate non-parole period of 15 years. Grove J (with whom Wood CJ at CL and Hoeben J agreed) described the offences as falling "at least in the middle of the range of objective seriousness" (at [84]). The offender had a prior criminal record but it did not include any offences of violence or sexual assault.
In Stephens, the offender detained the complainant in her car for a period of time during which he sexually assaulted her in a variety of ways. He was sentenced in the District Court to an effective term of imprisonment of 20 years with a non-parole period of 14 years, after a discount of 25 per cent for pleas of guilty and partial accumulation. Fullerton J (with whom Latham and Schmidt JJ agreed) described the offences as "serious and easily characterised as offending in the mid-range", although not within the worst case category (at [65]). After identifying some specific errors in the sentencing process, the Court re-sentenced the offender to sentences totalling 18 years imprisonment, with an aggregate non-parole period of 12 years. It did so after taking into account a 25% discount for early pleas of guilty and notwithstanding that the offender had no prior criminal record.
It is true that the applicant here has been able to point to cases in which it is arguable that more lenient sentences than the present were imposed but that is of limited, if any, significance, because that will almost always be able to be done (see Vandeventer v R [2013] NSWCCA 77 at [45] - [46]). What is of more, although still limited, significance is that there are cases (Reyes and Stephens) in which sentences not wholly disproportionate to the present sentences have been imposed. Moreover the sentences imposed in those cases were, because they resulted from this Court re-sentencing, ones regarded by this Court as the appropriate sentences for the offences. They were not simply sentences imposed by a lower court that this Court allowed to stand because it had not been shown that they were manifestly excessive. It may be inferred therefore that the sentences which this Court would have considered able to be imposed by a lower court without being quashed on appeal for manifest excess would have included ones higher than the sentences imposed by this Court.
It is true also that one can, as the applicant has done (see [119] above), point to aggravating features that were present in other cases but not in this. That does not however mean that the present case, with its own aggravating features, in particular the subjection of the complainant to extreme terror over a period of hours in her own home, does not warrant the sentencing judge's description of the offences as "up towards the high range of objective seriousness". As I have held above, there was no error in his Honour so describing the offences.
In sentencing the applicant his Honour rightly had regard also to the multiplicity of offences, the applicant's "appalling criminal record", his absence of remorse, the high likelihood that he will re-offend and the "very serious danger to the general community" that he represents (see [78] above). Taking into account these factors, the maximum sentences stipulated (in particular that of 20 years for the s 61J offences) and the standard non-parole periods where applicable (in particular that of 10 years for the s 61J offences), I cannot, and do not, conclude that the sentences imposed in the District Court were manifestly excessive in the sense to which I have referred above. I would accordingly reject these grounds of appeal.
ORDERS
For the reasons above, I propose the following orders:
(1)Application for extension of time to appeal against conviction refused.
(2)Application for extension of time to appeal against sentence granted.
(3)Application for leave to appeal against sentence granted.
(4)Appeal against sentence allowed in part.
(5)In relation to the sentences imposed in the District Court on 10 March 2011 (and corrected on 15 July 2011):
(a)Quash the sentences imposed in respect of Counts 13 and 15 and in lieu impose sentences comprising a non-parole period of 12 years 6 months to commence 12 November 2015 and expire 11 May 2028 and a balance of the term of the sentence of 5 years 6 months to expire 11 May 2033.
(b)The sentences imposed are otherwise confirmed.
(c)Accordingly, the applicant's sentences will expire on 11 November 2033, with the earliest date that he will be eligible for parole being 11 May 2028.
(6)Appeal against sentence otherwise dismissed.
LATHAM J: I agree with the orders proposed for the reasons given by Macfarlan JA. Having reviewed all of the evidence adduced at trial, I also have no doubt that the applicant was rightly convicted on all counts.
Counsel at trial was confronted with a particularly challenging task. Faced with the irrefutable evidence establishing that the applicant had indeed had sexual intercourse with the complainant, the applicant's case necessarily focussed on the complainant's consent to a series of sexual acts with a virtual stranger whom she encountered on public transport in the early hours of the morning. As Macfarlan JA has noted at [59], there was a powerful body of evidence which rendered that account inherently ludicrous.
Notwithstanding this considerable forensic difficulty, counsel at trial conducted a vigorous and legitimate defence case. There was nothing more that could have been done, consistent with trial counsel's duty to the applicant and to the court, in all of the circumstances of the trial.
The appeal against conviction bears all the hallmarks of a trawl through the trial transcript, isolating evidence and directions from their context, in order to justify a challenge to these inevitable and entirely appropriate verdicts.
R A HULME J: I agree with the reasons, conclusions and orders proposed by Macfarlan JA.
I also agree with the additional observations of Latham J. My own assessment of the evidence leads me to the same conclusion that the verdicts of the jury were inevitable and entirely appropriate
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