Stephens v R

[2010] NSWCCA 93

New South Wales
Court of Criminal Appeal

CITATION:	Stephens v R [2010] NSWCCA 93
HEARING DATE(S):	2nd October 2009
JUDGMENT DATE:	5 May 2010
JUDGMENT OF:	Latham J at 1; Fullerton J at 2; Schmidt J at 79
DECISION:	1. Leave to appeal is granted 2. The appeal is allowed in part 3. The sentences imposed on counts 1 and 2 are confirmed 4. The sentence on count 3 is quashed and in lieu, a non parole period of 5 years is imposed, to date from 14 January 2014, expiring 13 January 2019, with a balance of term expiring 13 January 2025. 5. The sentence on count 4 is quashed and in lieu, a non parole period of 4 years is imposed, to date from 14 January 2015, expiring 13 January 2019, with a balance of term expiring 13 January 2023. 6. The applicant is eligible for release to parole on 14 January 2019.
CATCHWORDS:	CRIMINAL LAW - SENTENCING - Appeal against the severity of sentences imposed in District Court - aggravated detain for advantage contrary to s 86(2)(b) of the Crimes Act1900 - aggravated sexual assault contrary to ss 61I and 61J(1) of the Crimes Act - take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act – - s 54A of the Crimes (Sentencing Procedure) Act 1999 – whether objective seriousness of act within mid range - R v Way [2004] NSWCCA 131 - 60 NSWLR 168 – whether sentence for aggravated kidnapping was manifestly excessive – whether three counts of aggravated sexual assault were offences of the worst type – whether approach to the calculation of sentence contrary to Markarian v R [2005] HCA 25 - 228 CLR 357 by failing to afford sufficient weight to the applicant's subjective circumstances – whether sentence is manifestly excessive by breaching the principle of totality -
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Way [2004] NSWCCA 131; 60 NSWLR 168 Markarian v R [2005] HCA 25; 228 CLR 357 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 R v Gilham [2009] NSWSC 138 R v Bilal Skaf [2005] NSWCCA 297 Boney v R [2008] NSWCCA 165 R v Anderson [2002] NSWCCA 304 Musgrove v R [2007] NSWCCA 21 CM v R [2008] NSWCCA 195 R v Reyes [2005] NSWCCA 218 Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 Leslie v R [2009] NSWCCA 203
PARTIES:	James Stephens - Applicant Regina - Crown Respondent
FILE NUMBER(S):	CCA 2008/5170
COUNSEL:	P Boulton SC - Applicant M Grogan - Crown Respondent
SOLICITORS:	Dom Velcic & Co - Applicant S Kavanagh (Solicitor for Public Prosecutions) - Crown Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Finnane QC DCJ
LOWER COURT DATE OF DECISION:	17 October 2008

2008/5170

LATHAM J
FULLERTON J
SCHMIDT J

7 MAY 2010

JAMES STEPHENS v R

Judgment

1 LATHAM J: I agree with Fullerton J.

2 FULLERTON J: This is an application for leave to appeal against the severity of sentences imposed after the applicant entered pleas of guilty in the District Court to four offences each involving the infliction of serious sexual violence (or offences committed with the intention of inflicting sexual violence) perpetrated against the same young woman in the early morning of 14 January 2007. The applicant also invited the sentencing judge to take into account a range of other sexual offences when imposing sentence on counts 2 and 3 on the indictment. Those offences were also committed against the same young woman in the same course of conduct.

3 After allowing a discount of 25 per cent for the pleas of guilty, and after ordering that the sentences be partially accumulated, an effective term of imprisonment of 20 years with a non-parole period of 14 years was imposed.

The sentences imposed

4 The first count on the indictment charged an offence of aggravated detain for advantage contrary to s 86(2)(b) of the Crimes Act 1900 (hereafter referred to as an aggravated kidnapping). Against the statutory maximum of 20 years imprisonment a term of 9 years imprisonment was imposed with a non-parole period of 5 years.

5 The second count charged an aggravated sexual assault contrary to s 61J(1) of the Crimes Act, the circumstances of aggravation being the infliction of actual bodily harm perpetrated in the course of the penile penetration of the complainant’s anus. Against the statutory maximum of 20 years and a standard non-parole period of 10 years, and after taking into account on a Form 1 three additional charges of sexual assault contrary to s 61I of the Crimes Act, each of which carried a maximum of 14 years and a standard non-parole period of 7 years, his Honour imposed a sentence of 14 years with a non-parole period of 9 years. The sentence on this count was partially accumulated on the sentence imposed on the first count.

6 The third count also charged an aggravated sexual assault contrary to s 61J(1) of the Crimes Act where actual bodily harm was again particularised as the circumstance of aggravation. On this occasion the harm was inflicted in the course of the digital penetration of the complainant’s anus. In imposing a sentence of 14 years with a non-parole period of 8 years his Honour took into account three further offences on a Form 1, namely take and drive conveyance, assault with an act of indecency and resist police, each carrying a maximum penalty of 5 years imprisonment. The sentence on this count was partially accumulated on the sentence imposed on count 2.

7 The fourth count, (fellatio) also laid contrary to s 61J(1) of the Crimes Act, attracted a term of imprisonment of 12 years with a non-parole period of 8 years. Bodily harm was again particularised as the circumstance of aggravation. This sentence was ordered to be served concurrently with the effective sentence imposed after the partial accumulation of sentences imposed on the first three counts on the indictment.

8 The applicant was also sentenced to a fixed and concurrent term of imprisonment for 2 years for the summary offence of driving whilst disqualified. That sentence was not the subject of challenge on the appeal.

9 The evidence on sentence comprised an agreed statement of facts, the applicant’s criminal record and an ERISP in which the applicant participated on his arrest. The applicant tendered a report from Mark Milic, clinical psychologist, a report from Dr Nielssen, forensic psychiatrist, and a number of character references.

10 The applicant’s sister and father gave evidence. His mother provided a testimonial.

The established facts for sentencing purposes

11 As at 13 January 2007 the complainant had been employed by a modelling agency as a part-time promotional model for approximately 17 months. On that day she was contracted to attend a private, male only, party at Bella Vista to perform the role of a topless waitress between midnight and 3am. A number of other young women were also contracted to provide the same service. The complainant drove to the premises in her own vehicle - a small four door sedan. She parked outside the premises and, after locking the car, put the keys inside a handbag that she took with her into the party.

12 As the complainant was getting changed in one of the upstairs bedrooms before she commenced work she saw the applicant in a nearby bathroom. This is the only occasion she had contact with the applicant at the party, and only then in passing conversation with another guest.

13 At 3am the complainant left the party and returned to her locked vehicle. She was in company with another young woman who had also been working at the party and whom she had offered to drive home. The complainant entered the driver’s side of the car and unlocked the front and rear passenger side doors from the inside. The other young woman sat in the front passenger seat and placed her personal belongings on the rear seat. Neither of the young women were aware that the applicant was at this time inside the boot of the complainant's vehicle having taken her keys, opened the car and then returned her keys to her handbag.

14 After dropping her passenger in Riley St Surry Hills the complainant continued in a southerly direction towards her home in the southern suburbs. As she was driving along South Dowling Street Waterloo the applicant pushed the rear seat forward from inside the boot compartment, and entered the rear passenger seat. He immediately placed his left hand around the complainant's mouth and placed a plastic fork to her head. He demanded that she turn into a side street and stop the vehicle to avoid being hurt. She complied with his demands and brought the car to a stop. She made an unsuccessful attempt to open the driver’s door and escape, and an unsuccessful attempt to dial 000, both attempts being thwarted by the applicant pushing down the lock on the driver’s door and throwing the mobile phone onto the floor of the car.

15 It was at this time that the applicant demanded that she fellate him under threat of him taking her into a park and physically and sexually assaulting her there. This course of conduct constituted aggravated kidnapping charged as the first count on the indictment. The harm inflicted up to that time, and thereafter until she made her escape, was particularised as the circumstances of aggravation.

16 The complainant offered to masturbate the applicant in the hope that this would subdue him and deflect him from assaulting her further. In the process of masturbating, or preparing to masturbate him, the applicant pulled the complainant’s head backwards and attempted to kiss her around the face and mouth and to place his mouth on her breast. He then directed that she apply a lubricant to his penis and masturbate him further. She complied under threat of harm. He referred to her in degrading and vilifying terms as she was masturbating him. He then pulled her into the passenger seat and forced her to remove her upper garments. He then removed her lower garments and undergarments such that she was naked. During this process the applicant continued his verbal abuse of her. The complainant repeatedly pleaded with the applicant not to harm her. This course of conduct constituted a charge of assault with an act of indecency. It was one of the matters taken into account by his Honour when imposing sentence on the third count on the indictment.

17 Despite the complainant’s attempts at physical resistance and her repeated pleas for the applicant to desist, she was then forced to lie on her stomach in the passenger seat whereupon the applicant sexually assaulted her by repeatedly penetrating her anus with his penis. The sheer physical force of that assault resulted in the complainant screaming and crying in pain. The applicant did not desist but persisted with the assault. By words that do not bear repeating he regarded her as deserving of the pain he was deliberately inflicting. This course of conduct was charged as the second count on the indictment, the circumstance of aggravation being constituted by the bodily harm inflicted by forced anal intercourse.

18 The complainant then turned onto her back and brought her legs towards her chest in an attempt to protect herself from any further penetrative sexual assault. The applicant then repeatedly inserted two fingers into her anus after which he then inserted his fingers forcibly into her mouth whilst laughing derisively. Again his language was humiliating and degrading. This course of conduct was charged as the third count on the indictment. Again the circumstance of aggravation was constituted by the bodily harm inflicted by forced anal intercourse.

19 The applicant then pulled the complainant towards him and repeatedly penetrated her vagina with his penis. This was one of the sexual assaults taken into account by his Honour when imposing sentence on the second count on the indictment.

20 The applicant then withdrew his penis and threw a bottle of water on the complainant and demanded that she fellate him. She was then subjected to his entire body weight on her as he forced his erect penis into her mouth while she was pinned between him and the passenger seat. During this assault he penetrated her mouth repeatedly to the extent that her breathing was compromised. This conduct was the subject of the fourth count on the indictment, the circumstance of aggravation being constituted by the bodily harm inflicted by forced oral intercourse.

21 The applicant then repeatedly penetrated the complainant’s vagina using his fingers starting with one finger to the extent of attempting to insert his entire fist into her vagina. She was screaming in pain throughout the assault. This conduct constituted the second charge of sexual assault taken into account when his Honour imposed sentence on the second count on the indictment.

22 The applicant again forced the complainant to lay face down on the passenger seat whereupon he repeatedly penetrated her anus with his penis and then ejaculated over her face, neck and hair. This conduct constituted the third charge of sexual assault taken into account when imposing sentence on the second count on the indictment.

23 He then demanded that she wipe her face. She climbed into the back seat of the car and wiped the applicant’s semen from her face on to her clothing. The applicant then demanded that she get dressed and said:

“If you try and make a runner I can run faster than you…You're not getting out of this car I'm driving you home”.

24 He was in the driver’s seat at this time. He then said he did not intend to take her home at all but would take her wherever he wished.

25 The complainant managed to escape through the rear passenger door at a time when the applicant was driving at a slow speed down a laneway with parked cars on either side. The complainant ran to a taxi, and was taken directly to Redfern police station. She was screaming hysterically and shaking uncontrollably on her arrival. The applicant’s commandeering of the complainant’s car, charged as a take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act, was taken into account when his Honour imposed sentence on the third count.

26 The complainant was taken by police to the Royal Prince Alfred Hospital for medical treatment. On examination a 0.5cm mucosal abrasion was detected on the left upper hard palate of her mouth. There was an abrasion of a similar size on her left toe. A haemorrhoid was located in her perianal region. These injuries constituted the aggravating feature of actual bodily harm on each of counts 2, 3 and 4. Her lower abdomen and inner thighs were revealed to be tender to palpation. The applicant’s semen was detected in her hair, her singlet and her underwear.

27 The complainant supplied information to police which enabled the applicant to be identified by other men at the party, he being the only Caucasian male in attendance. He was also wearing a distinctive football shirt.

28 The police executed a search warrant at the applicant's residential address and arrested the applicant at that address the following morning. As he was being removed from the premises in police custody he complained of feeling sick and having breathing difficulties. He was permitted to sit on the front fence and was provided some medication. After taking the medication he got up and ran. He was followed in a police vehicle and detained. A charge of resist police was also taken into account on the Form 1 on the third count on the indictment.

29 The applicant participated in an electronically recorded interview before being charged. Initially he claimed that the complainant had given him her car keys at the party and told him to wait for her to finish work and that she would provide a sexual service for money. He said that he only got into the boot when other men came out of the party. He agreed that he got out of the boot whilst the complainant was driving but said that she pulled to the side of the road voluntarily. He said that he had consensual intercourse with her but that she was angry when he did not have enough money to pay her. He denied having anal intercourse and could not recall if oral intercourse took place. He claimed that he was very intoxicated as an explanation for not being able to recall the events in any greater detail. He said that she left him with the car and that he drove to his home where he abandoned the car in a neighbouring street.

The applicant’s subjective circumstances

30 The applicant was aged 18 years and 9 months at the time he committed the offences. He had a criminal record, including offences of dishonesty committed as a juvenile and multiple convictions for driving whilst disqualified as a juvenile and as an adult. He had not previously been sentenced to any term of imprisonment. In light of his record his Honour regarded him as someone with a cavalier attitude to authority and a contemptuous attitude to the Road Rules. He did note, however, that there was nothing in his criminal antecedents to suggest that he had any proclivity for sexual offending or an attitude contemptuous of women. His Honour also noted that at the time of the offending he was in a stable sexual relationship with a young woman.

31 From the tendered reports and the evidence of the applicant’s sister and father his Honour concluded that the applicant had a troubled family life, but that he had proved himself to be intelligent, ambitious and capable of being well regarded as an employee and as a talented footballer. Although Dr Nielssen diagnosed a substance abuse disorder, largely on the basis of the applicant's self report of episodic hazardous alcohol intake, including amnesic episodes and the abuse of anabolic steroids, his Honour was not satisfied that the applicant was affected by drugs or alcohol at the time of the offending. There was no challenge to this finding on the appeal.

32 His Honour accepted that there was a sound basis in the evidence for concluding that the applicant had positive prospects of rehabilitation. His Honour also accepted that as a prisoner who was placed on protection as a result of conflict with other prisoners the applicant might have restricted access to jail facilities for some time but that the extent or duration of any restriction was uncertain.

The submissions on sentence

33 Each of counts 2, 3 and 4 on the indictment was subject to the operation of s 54A of the Crimes (Sentencing Procedure) Act 1999 which provides that the standard non-parole period of 10 years on each count represents the non-parole period for an offence in the middle of the range of objective seriousness. In approaching an assessment of objective seriousness in this case where the applicant entered pleas of guilty his Honour was required to have regard to the principles set out in R v Way [2004] NSWCCA 131; 60 NSWLR 168.

34 In submissions before the sentencing judge the applicant's senior counsel, who also appeared on the appeal, conceded that the objective criminality in relation to each of counts 2, 3 and 4 was at least in the mid range but that the injuries inflicted in the course of the sexual assaults charged on the indictment and particularised as circumstances of aggravation were low on the scale of seriousness being consistent with having been sustained in the course of the various acts of non-consensual intercourse to which she was subjected whilst being detained in her car.

35 The applicant’s counsel also conceded the objective seriousness of the aggravated kidnapping charged as the first count on the indictment, given that the circumstances of aggravation included the fact that the applicant hid in the boot of the complainant’s vehicle, and that after emerging he repeatedly attacked her, detaining her in the vehicle throughout the process until she managed to make her escape.

36 On sentence the Crown submitted that each of the offences on the indictment was properly described as offending in the worst category in that they were all committed in the course of a vicious, degrading and premeditated attack on a stranger and that each was accompanied by the infliction of bodily harm. The Crown also submitted that whatever the applicant’s state of intoxication he was not disabled from carrying through his intentions to sexually assault the complainant when the opportunity presented for him to emerge from the boot armed with the plastic fork which he used to force the complainant into submission.

The challenge to the sentence on count 1 as manifestly excessive

37 Despite finding that the aggravated kidnapping was a very serious offence, having been committed at night and against a stranger in her own car and where the complainant was detained, terrorised and sexually abused without respite, his Honour was not satisfied that it was an offence of the worst type for an offence against s 86(2)(b) of the Crimes Act. In coming to that view his Honour was mindful of the fact that the injuries the complainant sustained in the course of her detention were inflicted in the course of committing the aggravated sexual assaults charged as counts 2, 3 and 4 on the indictment (and/or the sexual assaults included on the Form 1) and that it was necessary for that conduct to be properly accounted for when imposing sentences on those counts.

38 On the appeal it was submitted that the sentence of 9 years with a non-parole period of 5 years for the aggravated kidnapping was manifestly excessive. The sole basis advanced in support of that submission was that the period during which the complainant was detained in the car was not extensive. Counsel did not seek to develop that submission. In the course of oral argument the further submission was advanced that in allowing the complainant to get dressed and offering to drive her home (as distinct, for example, from the applicant forcing her out of the car and leaving her on the side of the road), there was some alleviation of the objective seriousness of his conduct in detaining her for sexual advantage up until that time. I am not persuaded that there is any force in that submission. I regard the applicant’s offer (such as it was) as nothing more than a cynical ploy on his part to ensure his continuing control over the complainant until such time as he deemed otherwise. The fact that the applicant detained the complainant in her car as part of a calculated plan to ensure that she was held captive while he executed a premeditated and sustained series of sexual assaults upon her necessitated the imposition of a lengthy sentence. Against a statutory maximum of 20 years I am not persuaded that a sentence of 9 years with a non-parole period of 5 years is excessive. Accordingly, I am not satisfied that the challenge to the sentence on count 1 has been made out.

The challenge to the sentences on counts 2, 3 and 4

39 The sentencing judge classified each of the three counts of aggravated sexual assault as offences of the worst type. In the applicant’s submission his Honour arrived at that classification by reference to the nature of the assaults and, in so far as the second and third counts were concerned, because he considered that the seriousness of that offending was aggravated by the further sexual offences he was invited to take into account on the Form 1. Both his Honour’s conclusion that the offences were of the worst type, and the reasoning he employed in arriving at that decision, are said by the applicant to disclose error. This challenge was comprehended by the first ground of appeal.

40 His Honour also discriminated between the offending constituted by each of the three counts of aggravated sexual assault and concluded that the offending constituted by the second count was a worse offence than that constituted by the third and fourth counts. Proceeding on the basis that his Honour was entitled to regard the second count as objectively the most serious, and that he was required to impose a sentence on that count to reflect the three very serious sexual assaults included on the Form 1, the applicant submitted that the sentence for the third count failed to reflect that finding in that sentences of imprisonment of 14 years were imposed on both of counts 2 and 3, with only a slightly moderated non-parole period of 8 years on the third count compared with a non-parole period of 9 years for the second count. This was also said to constitute error and result in a manifestly excessive sentence on the third count.

41 There was a further challenge to the sentence imposed on the second count on the basis that his Honour’s approach to the calculation of sentence was contrary to the approach mandated in Markarian v R [2005] HCA 25; 228 CLR 357 and, in the result, that his Honour failed to give sufficient weight to the applicant's subjective circumstances resulting in a manifestly excessive sentence.

42 The fourth and final ground of appeal challenged the effective sentence of 20 years and the non-parole period of 14 years as manifestly excessive as being in breach of the principle of totality. It was submitted that despite the need for some accumulation of the sentences imposed on the individual counts, the fact that the offences were committed in a continuous course of criminal conduct ought to have resulted in a greater degree of concurrency than his Honour allowed.

Was his Honour in error in categorising the sentences on counts 2, 3 and 4 in the worst category of offending of the kind contemplated by the section?

43 Leaving aside the impact of the offences on the Form 1, a matter to which I will refer when considering the second ground of appeal, his Honour regarded the offending constituted by the second count as an offence of the worst type essentially because in his assessment it was a violent anal rape accompanied by brutality and cruelty causing the complainant considerable pain and internal injuries.

44 In so far as the third count was concerned his Honour considered that the degradation involved in his digital penetration of her anus followed by his digital penetration of her mouth were features warranting its classification as a worst case and in respect of the fourth count, because of the injury to the complainant’s mouth and what his Honour regarded as her near suffocation by reason of the forced oral intercourse.

45 In Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Mason CJ, Brennan, Dawson and Toohey JJ said at [15]:

“…the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category.”

Wilson J said at [17]:
“…It is often said that the maximum punishment prescribed for an offence should be reserved for the worst case of its kind but in these days of increasing violence the "worst case" may comprehend a substantial category of cases. The imagination is not required to ascend to great heights to identify the case which is to head the category as the worst case…”

46 It is well recognised, and often enough repeated in this Court, that it is not necessary to be able to identify particular features of the offending under question which are of very greater heinousness than features of the putative worst case before that offending is properly described as within the worst case category, however difficult it might be to arrive at a definitive statement of what a “worst case” means (see R v Gilham [2009] NSWSC 138 per Howie J). Nevertheless, before concluding that a case is in a worst case category there must be an absence of facts mitigating the objective seriousness of the offending under question (as distinct from subjective features of the offender mitigating the penalty to be imposed).

47 In R v Bilal Skaf [2005] NSWCCA 297 the Court said at [54]:

“It would be both undesirable and inappropriate to seek to define the requirements of the category of the worst class of case. Plainly, it is not necessary for a case to so qualify that the conclusion be reached that it would be impossible to conceive of a worse case. However, more is required than that the case be regarded as a very serious one.”

48 In seeking to distinguish each of the aggravated sexual assaults from a putative worst class of case under s 61J of the Crimes Act the applicant’s primary submission was that the bodily harm the complainant suffered in the course of the assaults, namely abrasions to the palate and the foot and a perianal haemorrhoid, were the features of aggravation for each of the three counts, it not being possible to appoint any particular injury as having been suffered in the course of any particular sexual assault. In addition, it was submitted that the injuries were inflicted incidental to, or as a product of, the acts of intercourse themselves. This is said to be in contrast to injuries inflicted by a punch or a kick or by the use of a weapon in other cases where serious breaches of s 61J of the Crimes Act were charged and, further, that while the injuries were not minor they were not severe or permanent. It was further submitted that in contrast to an offender who commits multiple sexual assaults on the same complainant separated by days or weeks, usually in the course of an abusive domestic relationship, these offences were opportunistic and committed in a single episode of offending.

49 After account is given for all these features of the offending the applicant submitted that none of the individual offences charged as counts 2, 3 and 4 could properly be categorised as within a class of worst case of an aggravated sexual assault for the purposes of fixing a sentence relative to the statutory maximum. Rather it was offending of at least in the mid range for the purposes of considering the imposition of the standard non-parole period as a reference point for sentencing purposes.

50 In support of that submission the applicant also relied upon a number of cases where this Court has had occasion to consider whether particular serious aggravated sexual assaults were within a worst case category.

51 His Honour’s remarks on sentence and the exchange with counsel as recorded on the transcript of proceedings make it patent that his Honour’s finding that the offences were in the worst case was influenced by the judgment of this Court in Boney v R [2008] NSWCCA 165. In that case the sentences imposed by his Honour at first instance were overturned on the basis that although the sexual offending for which that offender was sentenced included repeated breaches of s 61I and s 61J of the Crimes Act, committed over three successive periods of three days as part of what his Honour described as a long campaign of domestic violence, his Honour was in error in finding that the offences were more than mid range offending and in error in regarding them as in the worst case category.

52 The first group of offences for which the offender Boney was sentenced involved grabbing the complainant’s hair, punching her and generally assaulting her before she managed to escape. She was pursued by the offender and thereafter sexually assaulted. The second group of offences, committed days later, involved the offender punching the complainant, kicking her and jumping on her head and then forcing her to have intercourse after threatening her with a knife. The third group of offences were committed after an altercation with the complainant in the course of which the offender grabbed a stick and forced the complainant to have intercourse with him under the threat of harm.

53 In coming to the view that his Honour was in error in regarding that course of offending as in the worst case category Hulme J (with whom McClellan CJ at CL and Matthews AJ agreed) said:

“[105] In concluding that his Honour erred in concluding that each sexual intercourse offence was “more than a mid-range offence”, I am not unconscious of observations in this Court to the effect that the Court should be slow to depart from a sentencing judge’s conclusion as to where, in the range of objective seriousness an offence lies - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103. Nevertheless, a consideration of the evidence makes my conclusion of error inevitable. I have summarised that evidence early in these reasons and there is no need to repeat that summary here. It is sufficient to point out that the offences the subject of charges 5, 8, and 11, as distinct from the detain-for-advantage charges, commence little if any earlier than when the Complainant and Appellant went into a bedroom. For whatever reason, there the Complainant was compliant with the Appellant’s demands and little more relevant to the current issue occurred than the simplest form of non-consensual intercourse.

[106] It is also pertinent to bear in mind some circumstances that distinguish the offences here from others that arise from time to time. Although fearful of the Appellant the Complainant at least knew him and no doubt was capable of making some assessment of the situation. Also relevant is the fact that while the Appellant gave the Complainant cause to fear him, the situation was not one where she had to endure the terror of an unknown kidnapper. The fact that much of what was occurring was to the knowledge of others in the community of which the Complainant and Appellant were members, even if some of these others were the Appellant’s relatives, was a factor that made extremes of violence less likely. The case was not one where a victim walking through a lonely street or park at night is seized by a complete stranger about whom she knows nothing and who, for all the victim knows, may well kill her when the intercourse is over. There is nothing to suggest that the consequences of the Appellant’s conduct – see R v Way (2004) 60 NSWLR 168 at [85] - included an unwanted pregnancy or AIDS or other potentially life damaging illness or left the Complainant with any fear of these matters.

[107] Many of these remarks apply to the offences the subject of counts 7 and 10. These offences, although more serious than those the subject of counts 5, 8 and 11, fall to be judged by the standards expressed or implicit in s61J. The circumstances of aggravation therein referred to include not only threats of actual bodily harm but also the actual infliction of such harm, a circumstance that will often be far worse than threats.

[108] The circumstances of the intercourse part of the offence the subject of count 10 were no more serious than those the subject of counts 5, 8 and 11. The threat was the holding up of a stick accompanied by the demand that the Complainant stop crying. While I do not intend to trivialise the threat and no doubt the fact of it being made was calculated to influence the conduct of the Complainant thereafter, that threat was significantly less serious than many that form part of offences against s61J.

[109] The circumstances of the intercourse part of the offence the subject of count 7 were also no more serious than those the subject of counts 5, 8 and 11. However, an element of the count 7 offence was actual bodily harm occasioned by, according to the Complainant, the Appellant punching and kicking her and jumping on her head causing a tooth to chip. Clearly these matters aggravate the offence but without trivialising these events either, they fall considerably short of the conduct and injury that is liable to occur in offences under s61J. Thus it is that none of the offences involving sexual intercourse reached the mid-point of objective seriousness.
…
[111] A fortiori did his Honour err in characterising the sexual offences as “offences of the worst type”. His Honour went on to explain this characterisation because the offences “were committed in circumstances of degradation, violence and as part of a long campaign of violence against the same victim”. In fact the degradation involved in the sexual offences was little or any more than is inherent in such offences and was far less than occurs in many, perhaps most, offences against s61I and 61J. Furthermore, most of the violence exhibited by the Appellant was the subject of other charges and not the sexual offence charges. By comparison with many offences against these sections with which the courts have to deal, all of the individual sexual offences here fell a long way short of offences of a worst type.”

54 It is his Honour’s interpretation of the judgment of this Court in Boney when sentencing the applicant which the applicant submitted led his Honour into error in concluding that the offending was in a worst case category.

55 In his sentencing remarks his Honour said:

“The next problem is that of classifying the seriousness of the offences. As I said earlier, the Crown has submitted that all four offences were offences of the worst type.
Mr Boulten does not agree with this. He has submitted that the offences could be considered as less serious than the offences committed by Boney because Boney had engaged in a course of conduct against the complainant over a long period of time, had a bad criminal record, had spent something over three and a half years in gaol for other offences and at the time of the offences was quite a mature man, not young like the offender Stephens.
I have considered this submission but I do not accept it. I sentenced Boney and in doing so, expressed the opinion that his offences should be categorised as offences of the worst type. However, the Court of Criminal Appeal did not accept my categorisation.”

56 After referring to the judgment of Hulme J extracted above his Honour said:

“I feel obliged to accept that my assessment of Boney’s criminality was in error. I agree with his Honour’s characterisation of the seriousness of sexual assault attacks by strangers. I cannot accept that the present case is less serious than that of Boney. In fact it is very much worse.
It is clear that the offender here was a stranger about whom the complainant knew nothing or next to nothing. She might well have thought that he might kill her. He was also a stranger who secreted himself in her car.
Furthermore, he behaved in a very brutal and callous fashion towards her and treated her with the utmost contempt.
I have no evidence to suggest she became pregnant as a result of the vaginal rapes, but she might well have considered that to be a likelihood, just as she may have worried about AIDS or other sexually transmitted diseases. It would be surprising indeed if thoughts of all these matters were not going through her mind during the period of her kidnapping and defilement and afterwards.
I accept that he is young, but these were offences which require me to sentence him as an adult and to put the protection of the community as the primary object of the sentencing. At the time of these offences, the offender was 18 years and 7 months of age.”

57 The Crown submitted that it was open to his Honour to regard the applicant’s offending as objectively more serious than Boney’s offending despite the fact that the injuries inflicted by Boney were objectively more serious and that he used a weapon. The Crown submitted that the possibility that the injuries inflicted on the complainant might have been more serious does not of itself render the offending constituted by counts 2, 3 and 4 as less than a worst case.

58 The characterisation of an offence against s 61J of the Crimes Act as within the category of worst case is not solely dependent upon the particular characteristics of the circumstances of aggravation or the nature of the sexual assault. Equally the fact that the sexual assaults may be committed upon a person unknown to an offender, as compared with the victim being either in a domestic or extended filial relationship with the offender, is not a prerequisite to a categorisation of worst case offending. A careful reading of the expressed views of Hulme J in Boney do not suggest otherwise. In a case that calls for consideration as a worst case all features of the offending must be examined consistent with the principled approach to which I have already referred. The distinction between an assailant who is known to a complainant and one who is a stranger is a material consideration that may or may not carry particular weight in a given case. In particular, in the present case, the broader context in which the offending occurred, including the fact that the applicant was a stranger, is as significant as the discrete conduct involved in the commission of the succession of aggravated sexual assaults. The complainant in this case was in a real sense even more vulnerable than a woman preyed upon by an assailant while walking in a street or park. Not only was she entitled to feel safe entering and travelling in her own vehicle but, once detained within the confines of the vehicle, in the dark in a suburban street, any call for help was likely to be futile, as proved to be the case. In addition, given the verbal abuse, the violence and threats of violence to which she was subjected she had every reason to experience the very real terror that she may be seriously injured by the applicant. Moreover, the applicant was not only unresponsive to her pleas to stop but exhibited pleasure at the pain he was deliberately inflicting.

59 In considering the comparative cases to which Mr Boulten referred, it is important to emphasise that each case must be considered referable to the facts and circumstances of the particular offending under consideration together with the form of the indictment presented in the particular case, in particular the number of individual offences charged during an episode of sexual offending and the provisions of the Crimes Act under which the charges are brought. With that caveat, some comparison with decided cases reinforces my view that despite the very grave seriousness of the applicant’s offending his Honour was in error in categorising the offending in counts 2, 3 and 4 as within the worst case category.

60 In R v Anderson [2002] NSWCCA 304, the offender abducted a 50 year old woman in company with another offender. She was driven to a bushland location where she was threatened with a pair of scissors. Tape was used to cover her mouth and her hands tied with cord and a piece of rope. She was repeatedly sexually assaulted. She suffered abrasions and bruising to various parts of her body including the neck, shoulder, arms, lower back, right leg, left thigh, left ear, lips, throat, right wrist, left upper leg and both lower legs. She also suffered a dislocated left knee and a labial split on the introitus and mons. The sentencing judge sentenced the offender on the basis that the various breaches of s 61J of the Crimes Act fell just short of the worst case. A range of other offences were also charged.

61 The sentences imposed for the three counts of aggravated sexual assault were markedly less than the sentences imposed on the applicant. That said, the sentences were not subject to the operation of s 54A of the Crimes (Sentencing Procedure) Act. For that reason alone the case is distinguishable from the present case. However, as to the issue of worst case, Spigelman CJ (with whom Adams J and Blanch AJ agreed) held at [22]:

“The injuries were substantial, but the worst class of case of an attack of this character could involve injuries of a more substantial kind than bruising and abrasions and also, a higher level of threat, over a sustained period, instilling fear for the victim's life. I agree with his Honour that the offences in the present case fell "just short" of the worst class of case…”

62 The offending in Musgrove v R [2007] NSWCCA 21 involved an attack on an 18 year old woman in daylight at a secluded beach at Tweed Heads. She was sun bathing alone on the beach when the offender, armed with a knife, threatened to slit her throat. She was forced into the sand dunes, undressed and subjected to various forms of sexual intercourse under threat of the knife. The offender was, however, charged with only one count of aggravated sexual assault. A total term of imprisonment of 10 years and 6 months with a non-parole period of 8 years was imposed against the standard non-parole period of 10 years. Simpson J (with whom McClellan CJ at CL and Price J agreed) characterised the offence as a serious example of its type and greater than mid range offending and although her Honour noted that the sentence was relatively heavy by reference to the statistics from the Judicial Commission, she did not consider it was outside the range legitimately available. In her Honour’s view the departure from the standard non-parole period was justified by the plea of guilty, the sentencing judge not having expressly stated his reasons for the departure. I note that there was no finding at first instance or on appeal that the offending was referable to a worst case.

63 In CM v R [2008] NSWCCA 195, the offender was a juvenile aged 15 years at the time of the offending. He struck the complainant with a length of wood to the head and upper body inflicting injuries to her head, before she was compelled to have intercourse with him and before she was presented to two other men to whom the offender offered her for sexual intercourse. Thereafter the offender threatened her and struck her again with the length of wood and demanded that she have a shower. She was held captive for some time before escaping. She suffered a significant wound to her head requiring five sutures, a wound to the back of her head requiring two sutures, significant bruising to the face and head, a blackened left eye and large defensive bruises and welts to her inner upper thighs. The offender was sentenced on one count of aggravated sexual assault together with a range of other offences. The sentencing judge (correctly in the view of this Court) categorised the offending under s 61J of the Crimes Act as close to the worst category of offending. A non-parole period of 6 years and 6 months with a balance of term of 4 years was imposed. The sentencing judge determined that a departure from the standard non-parole period of 10 years was warranted given the age of the offender and his subjective circumstances. The sentence was not disturbed on appeal.

64 The offender in R v Reyes [2005] NSWCCA 218 forcibly detained the complainant at knife point and kept her against her will for about 20 hours in the course of which he cut her clothing from her, put her in handcuffs and restrained her hands behind her back. She was then blindfolded and had her pubic hair shaved. The offender inserted a large dildo in her vagina before injecting her with amphetamines. He then took her to an abandoned house where he again repeatedly assaulted her and injected her with amphetamines. He eventually abandoned her after which the complainant contacted the police. The offender was sentenced after trial to 13 years with a non-parole period of 10 years on an indictment charging multiple breaches of s 61J and s 61I of the Crimes Act and an aggravated kidnapping contrary to s 86(2)(b) of the Crimes Act. The Crown successfully appealed against the inadequacy of the sentence after which a sentence of 18 years with a non-parole period of 15 years was imposed. Grove J (with whom Wood CJ at CL and Hoeben J agreed) concluded at [84] that the offences fell at least in the middle of the range of objective seriousness without being urged to a finding that they were in the worst case category.

65 Although each of the offences under consideration on the appeal was serious and easily characterised as offending in the mid range, having regard to the cases to which the Court was referred I am satisfied his Honour was in error in characterising them as each within the worst case. However, when regard is had to the individual sentences imposed and the applicable standard non-parole period of 10 years as a reference point, I am not persuaded that the error in classification was, of itself, productive of error in the calculation of those individual sentences.

66 It is necessary to consider the applicant’s further ground of appeal, given that error of a different kind is said to have infected the sentences such as to justify this Court’s intervention.

Was there additional error in the approach to the finding of offending in the worst category of case on either of counts 2 and 3 because of his Honour’s reference to the offences on the Form 1?

67 It was submitted that his Honour’s categorisation of the second count as being of the worst type was based, in part, upon the impact of the Form 1 matters. In his Honour’s sentencing remarks he said:

“I consider that the second charge, the first violent anal rape of the complainant was accompanied by so much brutality and cruelty that it should be regarded as an offence of the worst type. When I also take into account the three sexual assault offences on the Form 1, I consider that my categorisation is clearly correct . Like all the offences, this offence was carried out by a stranger on a victim who was surprised and in a state of abduction at the time it was committed. The victim was completely at his mercy and was terrified. He caused her considerable, if not extreme, pain and he caused her internal injuries.” (emphasis added)

68 In so far as his categorisation of the third count as being of the worst type was also based, in part, upon the impact of the Form 1 matters his Honour said:

“The third offence, aggravated as it is by the Form 1 matters warrants a head sentence of 14 years and a non-parole period of 8 years. It was a particularly disgusting and degrading offence of forcing his fingers into her anus and then inserting them in her mouth.
This also was an offence of the worst type, and was aggravated by offences on the Form 1 which were in themselves serious. However, I consider he should receive a lesser non-parole period than for the second offence to emphasise that the second offence is a worse offence.” (emphasis added)

69 The Crown conceded error were his Honour to have proceeded to sentence on the basis that the offences on the Form 1 operated to increase the level of objective seriousness for the offending comprehended by counts 2 and 3. That concession was properly made. It is beyond question that the offences on the Form 1 required his Honour to increase the penalty that would otherwise be imposed for the offending charged on indictment, and by a measure appropriate to the level of seriousness for those offences, but not so as to inflate the objective seriousness of that offending and certainly not to elevate the classification to a worst case. This is in accordance with the approach mandated by this Court in Re: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 where Spigelman CJ said at [42]:

“The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences …. for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.”

70 In R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 Wood CJ at CL said:

“[30] When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL.

[31] There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose.”

71 In imposing sentence in respect of counts 2 and 3 on the indictment his Honour was required to take into account a number of allied sentencing principles. First it was essential that his Honour have regard to the maximum penalty of 20 years provided for each offence. In addition, it was required for him to acknowledge that a standard non-parole period of 10 years was stipulated, obliging him to genuinely give force and effect to that period of imprisonment before parole could be considered, as a guidepost or benchmark of an appropriate non-parole period in determining the sentences to be imposed. It was noted by Hoeben J in Leslie v R [2009] NSWCCA 203 at [46]:

“…This Court has on many occasions stressed the need for sentencing judges to not merely pay lip service to the existence of standard non-parole periods, but to genuinely give them force and effect as guideposts or benchmarks in determining appropriate sentences.”

72 Then his Honour was required to take into account the additional fact that the offences on the Form 1, particularly in regard to count 2 on the indictment, constituted serious and additional offending.

73 I am satisfied that his Honour has fallen into error in the use he has made of the Form 1 offences in imposing sentences on counts 2 and 3 and, as the applicant has submitted in support of the third ground of appeal, I am satisfied his Honour has also failed to properly discriminate between the sentences imposed on those two counts given the more serious offending constituted by the second count, given that three additional charges of sexual assault contrary to s 61I of the Crimes Act had to be factored into that sentence being the offences on the Form 1.

Re-sentence

74 For the purpose of re-sentencing the applicant, error having been made out, I do not propose to restate the applicant’s subjective circumstances. Suffice to note that he was a young man at the time of the offending and that the nature, gravity and extent of that offending was inconsistent with what his friends and family knew of him and what was revealed on forensic analysis by a psychiatrist and a psychologist. That said, and accepting that his offending was out of character, the course of the offending over several hours from the time he secreted himself in the complainant’s vehicle to the time she escaped from it having survived a gruelling ordeal, calls for the imposition of an effective sentence to reflect the totality of his criminality in what is appropriately described as offending of a very serious kind.

75 For my part, I would not interfere with the sentences imposed on counts 1 and 2, or the accumulation of those two sentences by two years in accordance with the orders made by the sentencing judge. Despite the error infecting the sentence on count 2, a sentence of 14 years for forced penile/anal intercourse, with further serious offences on a Form 1, is entirely appropriate and no lesser sentence is warranted. However, the conclusion at [73] above justifies an alteration to the sentence imposed on the third count, in order to properly reflect its criminality relative to the second count. A corresponding modest reduction ought be made to the sentence imposed on the fourth count, given the absence of further offences on a Form 1.

76 In the result, it is not necessary to deal with the fourth ground of appeal, since the proposed approach to re-sentencing will lead to a reduced aggregate sentence.

77 I would impose a sentence of 11 years on count 3 and a sentence of 8 years on count 4. Some partial accumulation of those two sentences, together with partial accumulation on the sentences for counts 1 and 2, is warranted. Consistent with the finding of special circumstances below, I would impose an aggregate sentence of 18 years imprisonment, with an aggregate non parole period of 12 years.

78 I propose the following orders :-

1 Leave to appeal is granted

2 The appeal is allowed in part

3 The sentences imposed on counts 1 and 2 are confirmed

4 The sentence on count 3 is quashed and in lieu, a non parole period of 5 years is imposed, to date from 14 January 2014, expiring 13 January 2019, with a balance of term expiring 13 January 2025.

5 The sentence on count 4 is quashed and in lieu, a non parole period of 4 years is imposed, to date from 14 January 2015, expiring 13 January 2019, with a balance of term expiring 13 January 2023.

6 The applicant is eligible for release to parole on 14 January 2019.

I agree with Fullerton J.

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