Zahorsky v The Queen

[2013] NSWCCA 268

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Zahorsky v R [2013] NSWCCA 268
Hearing dates:	14 October 2013
Decision date:	12 November 2013
Before:	Hoeben CJ at CL at [1]; Johnson J at [2]; Bellew J at [66]
Decision:	Application for extension of time to appeal against sentence refused
Catchwords:	CRIMINAL LAW - sentence appeal - asserted Muldrock error - application for extension of time in which to appeal -Applicant convicted after trial in February 2010 - offences of causing a person to take an intoxicating substance with intent to have sexual intercourse without consent (s.38(b) Crimes Act 1900), indecent assault (s.61L) and having sexual intercourse without consent (s.61I) - s.61I offence only subject to standard non-parole period - sole ground of appeal asserted Muldrock error - no appeal in relation to sentences for other offences - Muldrock error demonstrated -whether some lesser sentence warranted in law - where challenge is made to only one of several sentences imposed at the same time - held no lesser sentence warranted in law - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Abdul v R [2013] NSWCCA 247 Ali v R [2010] NSWCCA 35 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Christie v R [2012] NSWCCA 228 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 Essex v R [2013] NSWCCA 11 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v TA [2003] NSWCCA 191; 57 NSWLR 444 R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 Shortland v R [2013] NSWCCA 4 Williams v R [2012] NSWCCA 172
Texts Cited:	---
Category:	Principal judgment
Parties:	Lubo Zahorsky (Applicant) Regina (Respondent)
Representation:	Counsel: Mr CJ Bruce SC (Applicant) Ms TL Smith (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2009/4674
Publication restriction:	---
Decision under appeal	Citation: --- Before: Knox SC DCJ File Number(s): 2009/4674

Judgment

1. HOEBEN CJ at CL: I agree with Johnson J and the orders which he proposes.

1. JOHNSON J: This is an application by Lubo Zahorsky for an extension of time to seek leave to appeal against one of three sentences imposed in the District Court in 2010.

The Sentences

1. Following a trial that proceeded between 1 and 12 February 2010, the Applicant was convicted by a jury of the following offences (all committed on 23 December 2007):

(a) causing a person to take an intoxicating substance with intent to commit sexual intercourse without consent, contrary to s.38(b) Crimes Act 1900 - maximum penalty 25 years' imprisonment;

(b) indecent assault contrary to s.61L Crimes Act 1900 - maximum penalty five years' imprisonment;

(c) having sexual intercourse without consent contrary to s.61I Crimes Act 1900 - maximum penalty 14 years' imprisonment with a standard non-parole period of seven years.

1. His Honour Judge Knox SC imposed the following sentences, initially on 26 March 2010 and as corrected on 10 August 2010:

(a) Count 1 (the s.38(b) offence) - imprisonment comprising a non-parole period of five years commencing on 12 February 2010 and expiring on 11 February 2015, with a balance of term of two years and six months commencing on 12 February 2015 and expiring on 11 August 2017;

(b) Count 2 (the s.61L offence) - imprisonment for a fixed term of two years commencing on 12 February 2011 and expiring on 11 February 2013;

(c) Count 3 (the s.61I offence) - imprisonment comprising a non-parole period of five years and eight months commencing on 12 February 2011 and expiring on 11 October 2016, with a balance of term of three years and four months commencing on 12 October 2016 and expiring on 11 February 2020.

1. The total effective sentence comprised a non-parole period of six years and eight months commencing on 12 February 2010 and expiring on 11 October 2016, with a balance of term of three years and four months commencing on 12 October 2016 and expiring on 11 February 2020.

1. The sentencing Judge was requested to proceed under s.166 Criminal Procedure Act 1986 to sentence the Applicant for possession of a prohibited drug (cannabis) and possession of ammunition without holding a licence or permit, on each of which a fine of $100.00 was imposed.

The Present Application

1. On 19 April 2010, a Notice of Intention to Appeal was lodged in the Court of Criminal Appeal. Following receipt of advice from persons both outside and inside prison, the Applicant did not proceed and the Notice of Intention to Appeal lapsed on 19 October 2010.

1. On 5 October 2011, the High Court of Australia gave judgement in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 ("Muldrock").

1. Thereafter, as a result of a review process undertaken within Legal Aid NSW by reference to standard non-parole period cases, the Applicant was provided with advice and, on 28 June 2013, a Notice of Application for Extension of Time for an Application for Leave to Appeal was filed in the Court of Criminal Appeal.

1. The sole ground of appeal relied upon (as refined in the Applicant's written submissions) is in the following terms:

"His Honour erred, as regards Count 3, by treating the provision of the standard non-parole period as having determinative significance in sentencing the Applicant."

1. It is clear that the present application is based solely upon the change in law flowing from the decision in Muldrock. The concept of Muldrock error was explained in Abdul v R [2013] NSWCCA 247 at [19]-[28]. Further, the only sentence challenged is that for the s.61I offence to which a standard non-parole period applies.

1. In Abdul v R at [42]-[53], the Court considered the principles to be applied where application is made for an extension of time to appeal in a case such as this. This approach has been adopted in determining the present application.

The Applicant's Offences

1. Although the Applicant seeks to challenge one only of the three sentences imposed upon him, it is, of course, necessary to outline the facts of all offences which were related, and which led to the imposition of significantly overlapping sentences.

1. The sentencing Judge made findings of fact which are not challenged on this application.

1. The victim, then aged 25 years, came to Australia from the Czech Republic in November 2007 to study English along with another Czech National, Ms B. Following their arrival, the two young women stayed at a hostel at Frenchs Forest operated by the Applicant and his mother. The Applicant, aged 48 years in 2007, had himself emigrated to Australia from Czechoslovakia in 1982.

1. Following their arrival in November 2007, the victim and Ms B had a number of social outings with the Applicant. The two young women worked for the Applicant for a period cleaning the hostel. They had been to his home (which adjoined the hostel) on a number of occasions, where they sometimes drank wine.

1. On 22 December 2007, the victim and Ms B went to a party in the evening. The Applicant collected them at about 2.30 am and brought them back to the hostel. The victim said that she had about four alcoholic drinks and that she was slightly intoxicated, but that she had no such effects the following morning.

1. On the morning of 23 December 2007, the victim and Ms B went shopping with the Applicant. On the way home, the two young women agreed to attend a barbecue that evening at the Applicant's home.

1. Following their arrival at the Applicant's home that evening, the victim and Ms B were making a salad in preparation for the barbecue.

1. The victim asked for a glass of wine and the Applicant suggested that she obtain a bottle from the refrigerator. The victim removed what appeared to be an unopened and sealed bottle of Lambrusco and proceeded to pour two glasses from it. Both young women drank from their glasses.

1. Shortly after drinking the wine, both women commented that the wine tasted bitter. The victim drank about one ordinary glass of wine and then returned to the kitchen. She felt her legs buckle from under her. Her head was spinning and she was feeling generally disorientated. She became dizzy in the kitchen and leaned against the bench. The victim had not reacted to a glass of wine in this way before. She rapidly developed blurred vision, dizziness and unsteadiness or buckling of her legs and she passed out.

1. Ms B (who was not the subject of any separate charge) drank half a glass of wine from the same bottle and also felt affected. She observed that the victim appeared drunk.

1. Ms B and the Applicant took the victim into an office and put her on a couch. There were three couches in the room, one of which (the one on which the victim was placed) being capable of conversion into a flat bed.

1. Some little time later, Ms B laid down on a separate couch in the office and lost consciousness. Ms B recalled, at one point, seeing the Applicant naked on the sofa next to the victim. Ms B felt that she could not raise her head.

1. The victim awoke to find the Applicant sitting on the couch naked and touching her on the vagina and trying to kiss her (Count 2 - indecent assault).

1. The victim's recollection of the incidents were subject to some disorientation - she felt as though it was all like a "bad dream". The victim recalled the Applicant masturbating at one stage, and also having penile vaginal intercourse with her (Count 3 - sexual intercourse without consent).

1. The victim did not ask the Applicant to stop or to do anything. Her recollection was that it was only after the Applicant stopped that she queried to herself why she could not stop him, and why her memories were "a little mixed up". The Applicant told her to put her underpants back on. At this stage, the victim began to cry and went outside. She went in the direction of her hostel room, looking for Ms B.

1. On the next day, 24 December 2007, the victim accused the Applicant of putting something in her wine, which he denied. He reminded the victim that it was she who opened the bottle, and that the glasses were always in her presence.

1. Later that day, there was a discussion between the victim and the Applicant, in which the Applicant denied having sex with the victim. Ms B then reminded him that she had seen him laying on the couch with the victim. The Applicant then admitted having sex with the victim, but asserted that it was consensual.

1. The victim rang her fiancé in the Czech Republic on Christmas Day. He suggested that she contact the police, advice fortified by her parents in a subsequent telephone conversation. The victim rang the Czech Consul General on 26 December 2007, and he arranged to see her. On 27 December 2007, the victim met the Czech Consul General, who observed her state of distress. The victim complained to him of what the Applicant had done to her.

1. Thereafter, the victim attended the Bondi Police Station where arrangements were made for a medical examination to be undertaken. The Applicant's DNA was found on swabs taken from the high vaginal area of the victim as well as on her underpants.

1. On 28 December 2007, police executed a search warrant on the Applicant's home at Frenchs Forest. A bottle of Lambrusco was located in a garbage bin outside the Applicant's premises. The bottle was identified as being similar to the one from which the victim had poured the drinks. The bottle contained chemical substances consistent with Rohypnol and Stilnox (Zolpidem). Both drugs are hypnotic, sleep-inducing drugs which cause memory loss, drowsiness and double vision. The effect of the drugs is made worse when combined with alcohol. Expert evidence was given at the trial concerning the effect of these drugs, and the consistency of those effects with the symptoms displayed by the victim and Ms B.

1. The Applicant had been prescribed both Rohypnol and Stilnox in the past. A brochure concerning Rohypnol (including its effects), written in the Czech and Slovakian languages, was located in the garbage bin in the Applicant's kitchen.

1. The issue at trial was consent. The Applicant gave evidence at the trial. The sentencing Judge described him as "an intelligent, quick-thinking individual". Plainly the jury rejected the Applicant's account, an unsurprising outcome given the strength of the Crown case, including the forensic evidence and evidence of drug analysis.

The Applicant's Subjective Circumstances

1. As mentioned, the Applicant was 48 years of age at the time of the offences and 51 years of age at the time of sentence. He had come to Australia from Czechoslovakia in 1982.

1. The Applicant was separated from his former wife and there was a teenage daughter of the marriage. At the time of the offences, he conducted the hostel with the assistance of his mother, who lived nearby.

1. A number of references were tendered which indicated that the Applicant was a generous and hardworking man and that the offences were said to be out of character.

1. The Applicant had no prior criminal history.

1. The Applicant suffers from diabetes, and had been receiving what the sentencing Judge described as appropriate care and supervision for this condition whilst in custody, through Justice Health.

1. The sentencing Judge noted that no remorse or contrition had been expressed by the Applicant, nor any acknowledgement of the consequences of his offences upon the victim. Nevertheless, the sentencing Judge accepted that there were good prospects of rehabilitation, given his prior good character and evidence concerning his work.

Has Muldrock Error Been Demonstrated?

1. Mr Bruce SC, for the Applicant, submitted that Muldrock error had been demonstrated in this case.

1. The Crown did not concede that Muldrock error had been established in this case.

1. The standard non-parole period (referrable to Count 3) was touched upon at several points in the remarks on sentence. His Honour said (ROS13):

"The maximum penalty for sexual intercourse without consent is fourteen years imprisonment. There is also a standard non-parole period for this offence of seven years. As was established in R v Way [2004] NSWCCA 131, I take this into account as a reference or guide-point; open to be departed from where circumstances justify such departure."

1. Having proceeded to address various aggravating and mitigating factors under s.21A Crimes (Sentencing Procedure) Act 1999, the sentencing Judge made the following further findings (ROS21):

"In my view, the level of criminality involved in the first offence was within mid-range. There is no evidence as to the dosage or the amount. There is no evidence of the drugs being intended for a wider group or that this was more than an isolated incident.

The criminality involved in the second and third counts was just below mid-range. I would have taken a different view had there been indicia of threats, violence or physical harm, or degrading or humiliating treatment. What occurred took place over the course of hours rather than days. Nevertheless, it must be stated that any act of sexual assault involves lasting feelings of violation and fear, compounded, in this case, by the sense of bewilderment still evident when the victim gave her evidence over two years later."

1. The particular passage which the Applicant contends displays Muldrock error is as follows (ROS24):

"I return to the fact that count 3 is an offence for which a standard non-parole period has been established.

The present matter proceeded on the basis of a verdict, not a plea. Further, I have found that the objective criminality involved was just below mid-range. In my view, it is appropriate to depart from the standard non-parole period established but only to a relatively limited extent. My reasons for that departure are firstly, my finding of below range criminality in relation to count 3, secondly - the relevant aggravating and mitigating factors which are present and indeed some which are not present, as I have earlier outlined, the facts of the offence and also the circumstances of the offender."

1. This Court has recognised that, when assessing a ground of appeal asserting Muldrock error, the approach is one of looking at substance and not form: Williams v R [2012] NSWCCA 172 at [2]. It is necessary to consider the remarks on sentence fairly and in their entirety, and not to focus unduly upon a discrete statement in the reasons: Essex v R [2013] NSWCCA 11 at [30].

1. In my view, a fair reading of the entirety of the remarks on sentence does reveal Muldrock error in this case. It is true that his Honour referred, at one point, to the standard non-parole period being "a reference or guidepost open to be departed from where circumstances justify such departure" (see [43] above). However, the operative error appears in the last extract from the remarks set out at [45] above. For understandable reasons given the then state of the law, and the fact that the Applicant was being sentenced after trial, the approach of the sentencing Judge in determining whether it was "appropriate to depart from the standard non-parole period" indicates a two-stage approach to sentencing, and an overly prescriptive use of the standard non-parole period in a manner which does not accord with the later decision in Muldrock.

Should the Court Grant an Extension of Time in this Case?

1. If the present application had been brought in time then, once error had been demonstrated, it would be necessary for the Court to consider whether the error was material and, if it was, whether some lesser sentence is warranted in law under s.6(3) Criminal Appeal Act 1912, in accordance with the principles in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284.

1. The Court re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles, with a view to formulating the positive opinion for which s.6(3) provides by reference to evidence placed before this Court on appeal: Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 176-178 [119]-[124]; Baxter v R at 287 [17]-[19].

1. However, the application is brought long out of time so that an extension of time is necessary. This Court's discretion concerning a grant of an extension of time involves consideration of the merits of the appeal itself. Accordingly, it is appropriate for the Court to consider at this point the merits of the application.

1. Additional evidence has been placed before the Court in the form of affidavits of the Applicant himself concerning his progress in custody, his health and other aspects of his family life which have transpired since sentence was passed. It is appropriate that the Court have regard to this material.

1. In addition, the Applicant seeks to rely upon statistical information and other sentencing decisions for s.61I offences. Material of this type is of limited assistance: Abdul v R at [66]-[68]. Amongst other things, a wide range of conduct is embraced in the definition of sexual intercourse and this limits greatly the utility of comparison with other unrelated cases: Ali v R [2010] NSWCCA 35 at [64].

1. Importantly, it is necessary to keep in mind that the challenge on this application relates to one only of three related offences.

1. This Court has observed that a narrow focus on one of several sentences imposed at the same time tends to introduce an element of artificiality into the case: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82]. Where an offender is sentenced for several offences so that the principles of concurrency, accumulation and totality are brought into play, it is necessary for this Court to take care where challenge is made to one particular sentence of those which are imposed. The Court must keep in mind the obligation of a sentencing court to fix an appropriate sentence for each offence in accordance with the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610. However, the selection of one sentence for challenge, from a range of several partly accumulated or concurrent sentences, requires particular caution on the part of this Court: Shortland v R [2013] NSWCCA 4 at [147].

1. In the present case, the s.38 offence, which bore a maximum penalty of 25 years' imprisonment, was the most serious crime for which the Applicant was to be sentenced. The s.61I offence carried a maximum penalty of 14 years' imprisonment, together with a standard non-parole period of seven years.

1. In the result, a sentence of seven-and-a-half years' imprisonment with a non-parole period of five years was imposed for the s.38 offence. An entirely concurrent fixed term of imprisonment for two years was imposed for the s.61L offence. These sentences are not challenged on this application.

1. The sentence imposed for the s.61I offence involved a term of imprisonment for nine years with a non-parole period of five years and eight months. However, this sentence extended by a period of one year and eight months only the non-parole period to be served for the s.38 offence.

1. Even if the Applicant could advance a submission that the actual sentence imposed for the s.61I offence ought, to some extent, be reduced, I do not consider that any reasonable complaint can be made by him concerning a level of accumulation of one year and eight months.

1. The commission of an offence of having sexual intercourse without consent is an entirely separate crime to the s.38 offence, and involves a very significant violation of the victim by the Applicant: R v TA [2003] NSWCCA 191; 57 NSWLR 444 at 453 [34]. A substantial level of accumulation for the s.61I offence was necessary as part of the sentencing process: Christie v R [2012] NSWCCA 228 at [56].

1. I have considered whether, applying all relevant principles (including Muldrock) by reference to the evidence before this Court, a lesser overall sentence for the s.61I offence is warranted. I am not satisfied that it is.

1. It should be kept in mind that, as the Applicant went to trial, there is no discount for pleas of guilty, nor is there any contrition or remorse on his part. The Applicant was a man of prior good character and this was taken into account by the sentencing Judge. However, this was planned criminal activity involving a mixture of powerful drugs and alcohol, which the Applicant well knew would have deleterious effects upon a person who consumed the drink. Indeed, this was his very purpose in mixing the wine and drugs, so that he could exploit sexually the victim in the manner in which he did. The Applicant was a man of mature years, who could not call in aid youth or immaturity for the purpose of sentence.

1. In my view, a total overall sentence comprising a non-parole period of six years and eight months, with a balance of term of three years and four months is an appropriate sentence to be passed for these offences, having regard to the circumstances of the offences and the circumstances of the Applicant. Applying relevant sentencing principles, including the need for specific and general deterrence, no lesser sentence is appropriate in this case.

1. I am not satisfied that a lesser sentence is warranted in law for the s.61I offence, having considered matters relevant to s.6(3) Criminal Appeal Act 1912.

1. The Applicant has not demonstrated that the application has merit. In these circumstances, there is no question of substantial injustice occurring if the sentences imposed upon the Applicant remain in place.

1. I propose that the application for extension of time to seek leave to appeal against sentence be refused.

1. BELLEW J: I agree with Johnson J.

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Decision last updated: 12 November 2013