Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: ZZ v R [2013] NSWCCA 83
• Hearing dates: 1 August 2012
• Decision date: 19 April 2013
• Before: Hoeben CJ at CL at [1]; Johnson J at [2]; Button J at [150]

Decision

1. Leave to appeal granted.

2. Appeal allowed in part.

3. Confirm sentence passed on 17 June 2011 for the offence of obtaining a valuable thing by deception (taking into account the Form 1 offences referrable to this count).

4. Sentences for the offences under s.61I and s.61J Crimes Act 1900 quashed.

5. In their place:

(a) for Count 1, the offence of sexual intercourse without consent contrary to s.61I Crimes Act 1900, the Applicant is sentenced to imprisonment comprising a non-parole period of three years, four months and two weeks commencing on 13 August 2011 and expiring on 26 December 2014, with a balance of term of one year, one month and two weeks commencing on 27 December 2014 and expiring on 9 February 2016,

(b) for Count 2, the offence of aggravated sexual assault contrary to s.61J Crimes Act 1900 (taking into account the s.61J offence on the Form 1), the Applicant is sentenced to imprisonment comprising a non-parole period of four years and eight months commencing on 13 August 2012 and expiring on 12 April 2017, with a balance of term of two years and four months commencing on 13 April 2017 and expiring on 12 August 2019.

6. The earliest date upon which the Applicant will be eligible for release on parole is 12 April 2017.

7. In accordance with s.25C(1) Crimes (High Risk Offenders) Act 2006, the Applicant is advised of the existence of that Act, and its application to the sexual assault offences for which he has been sentenced.

• Catchwords: CRIMINAL LAW - sentence - pleas of guilty - sexual intercourse without consent - aggravated sexual intercourse without consent - intoxicated offender - offences committed against then partner following consensual sexual activity - significant injuries to victim - standard non-parole period offences - whether error in approach after Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - error demonstrated - whether lesser sentences appropriate under s.6(3) Criminal Appeal Act 1912 - substantial custodial sentences appropriate - significant domestic violence offences - relevance of self-induced intoxication - claim that offences out of character - discount for assistance to authorities - penalties imposed not to be unreasonably disproportionate to nature and circumstances of offences - lesser sentences warranted under s.6(3) - Applicant resentenced
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Crimes (High Risk Offenders) Act 2006
• Cases Cited: Morrison v R [2009] NSWCCA 211; 197 A Crim R 103; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; R v Coleman (1990) 47 A Crim R 306; R v Way [2004] NSWCCA 131; 60 NSWLR 168; Butler v R [2012] NSWCCA 23; Bourke v R [2010] NSWCCA 22; 199 A Crim R 38; R v Mendes [2012] NSWCCA 103; Essex v R [2013] NSWCCA 11; Truong v R [2013] NSWCCA 36; Baxter v R [2007] NSWCCA 237; 173 A Crim R 284; R v Mason [2001] VSCA 62; NM v R [2012] NSWCCA 215; Heine v R [2008] NSWCCA 61; R v Hamid [2006] NSWCCA 302; 164 A Crim R 179; R v GWM [2012] NSWCCA 240; Hasan v R [2010] VSCA 352; 31 VR 28; Stanford v R [2007] NSWCCA 73; BP v R [2010] NSWCCA 159; 201 A Crim R 379; Zreika v R [2012] NSWCCA 44; R v Stephens (1994) 76 A Crim R 5; R v Mosegaard [2005] NSWCCA 361; Graham v R [2009] NSWCCA 212; Yang v R [2012] NSWCCA 49; Markarian v The Queen [2005] HCA 25; 228 CLR 357; SZ v R [2007] NSWCCA 19; 168 A Crim R 249; Hillier v Director of Public Prosecutions [2009] NSWCCA 312; 198 A Crim R 565; Jackson v R [2013] VSCA 14
• Texts Cited: ---
• Category: Principal judgment
• Parties: ZZ (Applicant); Regina (Respondent)
• Representation: Counsel: Mr S Odgers SC (Applicant); Ms S Dowling (Respondent); Solicitors: Kp Lawyers and Barristers (Applicant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2010/57823; 2010/395348
• Publication restriction: A non-publication order has been made with respect to the Applicant's identity under the Court Suppression and Non-Publication Orders Act 2010 - this order does not restrict publication of the judgment as the Applicant is not identified in the judgment

Decision under appeal

• Citation: ---
• Date of Decision: 2011-06-17 00:00:00
• Before: Freeman DCJ
• File Number(s): 2010/57823; 2010/395348

Judgment

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

2 JOHNSON J: The Applicant, ZZ, seeks leave to appeal against sentences imposed by Freeman DCJ in the Sydney District Court on 17 June 2011. A pseudonym is used in this judgment to describe the Applicant because of evidence before the Court concerning his assistance to authorities with respect to matters unrelated to the offences for which he was sentenced.

The Offences

3 Following pleas of guilty, the Applicant was sentenced as follows:

 

 

Offence	Maximum Penalty and Standard Non-Parole Period (“SNPP”)	Sentence
Court Attendance Notice offence - Between 29 July 2009 and 10 August 2009 obtaining a valuable thing by deception contrary to s.178BA(1) Crimes Act 1900	Imprisonment for five years No SNPP	Fixed term of imprisonment for 18 months commencing on 13 August 2010 and expiring on 12 February 2012.   Taken into account on sentence for this matter on a Form 1 were four charges of passing a valueless cheque contrary to s.178B Crimes Act 1900 (maximum penalty imprisonment for 12 months)
Count 1 - On 4 March 2010, having sexual intercourse without consent, knowing that the victim was not consenting, contrary to s.61I Crimes Act 1900	Maximum penalty imprisonment for 14 years with SNPP of seven years	Imprisonment comprising a non-parole period of four years and six months commencing on 13 August 2011 and expiring on 12 February 2016 with a balance of term of 18 months commencing on 13 February 2016 and expiring on 12 August 2017
Count 2 - On 4 March 2010, having sexual intercourse without consent, knowing that the victim was not consenting, in circumstances of aggravation in that he recklessly inflicted actual bodily harm to the victim at the time of the commission of the offence, contrary to s.61J(1) and (2)(a) Crimes Act 1900	Maximum penalty 20 years’ imprisonment with SNPP of 10 years	Imprisonment comprising a non-parole period of five years commencing on 13 August 2012 and expiring on 12 August 2017 with a balance of term of two years and six months commencing on 13 August 2017 and expiring on 12 February 2020.   Taken into account on sentence for this matter on a Form 1 was a charge of aggravated sexual assault contrary to s.61J(1) and (2)(a) Crimes Act 1900.

4 The total effective sentence comprised an aggregate head sentence of nine years and six months with a non-parole period of seven years. The earliest date upon which the Applicant will be eligible for release on parole is 12 August 2017.

5 In reaching these sentences, the sentencing Judge applied a combined 50% discount for the Applicant's pleas of guilty and his assistance to authorities.

Grounds of Appeal

6 The Applicant's challenge was confined to the sentences passed for the sexual assault offences.

7 The Applicant pressed the following grounds of appeal at the hearing before this Court:

(a) Ground 1 - The sentencing Judge erred in the assessment of the objective seriousness of Count 1.

(b) Ground 2 - The sentencing Judge erred in the way the applicable standard non-parole periods in respect of the sexual assault offences were taken into account.

(c) Ground 3 - The sentences in respect of the sexual assault offences are manifestly excessive.

 

Facts of Offences

8 A Statement of Agreed Facts was tendered on sentence.

9 The dishonesty offence under s.178BA(1) Crimes Act 1900, and the Form 1 offences taken into account on sentence on that matter, are quite separate from the sexual assault offences. It is sufficient to note that they relate to the dishonest obtaining from Cerrone Jewellers in 2009 of diamond jewellery worth $31,000.00 by the passing of four valueless cheques. As there is no challenge to this sentence or to the degree of accumulation for that offence, it is not necessary to expand upon the facts of that offending conduct.

10 The facts of the sexual offences may be described in the following way. In November 2009, the Applicant (then aged 33 years) and the victim (then aged 29 years) commenced an intimate relationship. By March 2010, the Applicant and the victim had discussed moving in together and marriage.

11 On the evening of 2 March 2010, the victim and the Applicant engaged in SMS conversations in which they discussed their proposed sexual activities the following evening. The sentencing Judge described the SMS messages accurately as "the exchange of some sexually explicit and provocative text messages" (ROS2).

12 On 3 March 2010, the victim and the Applicant checked into an apartment in the city. They had dinner and then bought some cocaine. They both drank significant quantities of alcohol and had several lines of cocaine.

Count 1

13 At one stage during the evening, the Applicant and the victim went onto the apartment balcony. They engaged in consensual fellatio. The Applicant then asked the victim to drink his urine. The victim was unsure about this, but the Applicant urged her to "just try it". The Applicant then urinated in her mouth.

14 The victim, who was disgusted, pulled her mouth away from the Applicant's penis. As she pulled away, the Applicant pushed her mouth back to his penis. He placed both hands on the back of her head and forcefully pushed her head back towards his penis so that it entered her mouth. The victim opened the bottom of her mouth so that most of the urine would pour out. She was gagging and nearly vomiting. The Applicant kept his hand on the back of the victim's head, preventing her from getting away.

15 The victim tried to pull away, however the Applicant would not let go of her head. After he finished, the Applicant pulled his penis out of the victim's mouth and asked if she liked it. Not wanting to upset the Applicant, the victim replied that she could take it or leave it.

Further Events Before the Second Sexual Assault

16 Further sexual activity then took place between the Applicant and the victim. She felt very intoxicated, and became increasingly distressed and uncomfortable. The victim was concerned that the Applicant would not stop having sex with her. Whilst the Applicant was penetrating her, the victim was fearful and telephoned a friend to tell her that "everything is going wrong" and that she was "not OK".

17 The victim then telephoned her mother and asked for help. She told her mother that the Applicant was raping her. During this conversation, the Applicant was digitally penetrating the victim's vagina and anus.

Count 2

18 The victim then ran towards the front door, planning to escape from the apartment.

19 As she reached the front door, the victim screamed "Help me!". The Applicant came up behind her and grabbed her left arm, pulling her forcefully back inside the apartment and shutting the front door.

20 The Applicant pushed the victim into the bathroom. He pushed her up against the bathroom wall and penetrated her anus with his penis so forcefully that she was pushed forward, smashing her head against tiles and suffering a deep four-centimetre laceration to her forehead. The Applicant continued to penetrate the victim's anus with his penis. Whilst the Applicant was penetrating the victim, the top of her head was crashing against the wall. The Applicant grabbed the victim by the hair and pulled it really hard so that her head lifted, whilst saying "Lift your head, slut". He then smashed her head against the wall. The victim felt dizzy and fell to the ground. The Applicant's penis slipped out of her anus. She felt that she must have lost consciousness, but then heard the Applicant say "Get up, get up". He grabbed the victim's arm to pull her up from the ground saying "Get up, you filthy slut". This conduct constituted Count 2 on the indictment.

Form 1 Offence on Count 2

21 The Applicant pulled the victim to her feet and continued to push her against the wall. The victim could see a lot of blood on the ground and felt dizzy and sick in the stomach. She could not move.

22 The Applicant pulled her up and again anally penetrated her with his penis. The victim did not want him to do this, but could not stop him. She was saying "No, no, no". This conduct gave rise to the Form 1 offence taken into account on sentence for Count 2.

23 The Applicant removed his penis from the victim's anus and walked her into the bedroom, where the victim looked into the mirror and saw blood on her face, and said "What have you done to me?" The Applicant said "God that turns me on, let's go again, I'm as hard as" whilst masturbating himself.

Events After the Offences

24 The victim started to cry and telephoned her mother. Whilst the victim was speaking to her mother and then her father on the mobile, the Applicant could be heard in the background prompting the victim to say that nothing was wrong.

25 The Applicant then told the victim "I gotta get out of here", as her parents had called "000". He started to dress himself. The victim's father had rung the Applicant, who stated, falsely, that he and the victim were in Kurri Kurri.

26 The victim, naked and bleeding, escaped from the apartment screaming for help. The Applicant followed her, trying to get her back inside. Occupants of a neighbouring apartment came out and assisted the clearly distressed and injured victim.

27 The male neighbour told the Applicant to "back off and let her go". Once inside the neighbour's apartment, the victim complained immediately "He bashed my head up against the wall and he raped me".

28 The victim was taken to hospital by ambulance. On examination, doctors observed lacerations to the victim's face, including a deep y-shape laceration to her forehead, bruising to the arms and legs, abrasions to the labia minora and fossa navicularis and extensive injuries to the rectum, with bleeding and yellowish discharge.

29 The following day, the Applicant rang the victim's mother and said to her "Tell [the victim] to call the police off". He also said that he did not remember what happened.

30 During a 30-minute period, the Applicant called the victim's mother four times, telling her he was going to commit suicide, and also stating that his mother had died that morning. He said "Tell [the victim] to stop the police action, I need to grieve for my mum". This was a lie. The Applicant's mother had not in fact passed away.

31 An examination of the apartment by police revealed a large quantity of blood in the bathroom.

32 Following discussions with police officers, not connected with this matter, the Applicant handed himself into police that afternoon.

33 The Applicant was arrested on 5 March 2010 in respect of the sexual assault offences, and was refused bail. He has remained in continuous custody since that time.

Effects of Offences on the Victim

34 The victim read a victim impact statement before the District Court. In addition, a report of the victim's treating medical practitioner was tendered by the Crown.

35 The medical evidence confirmed the significant physical injuries to the victim as a result of the sexual assault offences, together with ongoing psychological injury.

36 The sentencing Judge made the following findings concerning the effects of Count 2, and the Form 1 offence, on the victim (ROS4-5):

"The injuries sustained by the victim are certainly at the higher end of actual bodily harm and merit the description of substantial as that term is used in s 21A(2), that is beyond the level necessary to sustain the infliction of actual bodily harm as being an essential element of the charge.

Dr Norrie who examined the victim shortly after the assault noted extensive injuries to the rectum, multiple bruises and lacerations to her forehead and nose. She sustained an injury to her shoulder which still requires treatment and she is still suffering from the physical sequelae of this assault. Likewise the psychological harm done to the victim is substantial and in my view despite the Crown's submission this is what would ordinarily be expected in a case such as this, namely an upper mid range offence, merits a finding that this harm is substantial.

The harm done is consistent in my view with what one would expect from a high range aggravated sexual assault. The victim is unemployed and apparently unemployable some sixteen months after the event. The prognosis in these circumstances must be guarded and the aggravating element of substantial harm is made out."

37 No challenge was made to these findings before this Court.

The Applicant's Subjective Circumstances

38 The Applicant was born in December 1975, and was 34 years' old at the time of the offences and 35 years at the time of sentence.

39 He has an extensive criminal history for offences of fraud and dishonesty extending back to 1994. He has served sentences of imprisonment for offences of that class in New South Wales and Victoria.

40 The Applicant has no prior history of sexual assault offences.

41 On 22 May 2008, the Applicant was released to parole in Victoria with respect to sentences imposed in 2003 for multiple counts of obtaining financial advantage by deception. His parole period (34 months) was to expire on 22 November 2011. A condition of the Applicant's parole order stated that he must not leave the State of Victoria, without the written permission of the relevant authorities.

42 On 22 January 2010, a private hearing of the NSW State Parole Authority revoked the Applicant's parole with effect from 5 January 2010. However, at a public hearing of the NSW State Parole Authority on 13 April 2010, the revocation was not confirmed, and the matter was stood over pending determination of the proceedings for sexual assault. No subsequent determination was made by the State Parole Authority.

43 The sentencing Judge determined that substantial justice would be done if the sentences commenced on 13 August 2010, a date upon which the Applicant made an unsuccessful bail application in the Supreme Court. A ground of appeal which sought to challenge the selection of the sentence commencement date was abandoned by the Applicant.

44 The present offences were committed whilst the Applicant was subject to parole. However, applying Morrison v R [2009] NSWCCA 211; 197 A Crim R 103 at 113-114 [43]-[45], the sentencing Judge accepted that the Applicant was not then on "conditional liberty" for the purpose of s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999.

45 The sentencing Judge accepted that the Applicant was intelligent and held certain tertiary qualifications.

46 His Honour noted that the Applicant had been declared bankrupt in 1996 and had again been made bankrupt in 2010.

47 The Applicant's father gave short evidence at the sentencing hearing. The Applicant did not give evidence.

48 Included in the documentary evidence before the sentencing court were a presentence report and a risk assessment report prepared by officers of the Sex and Violent Offender Therapeutic Programs, Forensic Psychology Services within the Department of Corrective Services. The Applicant was placed in the moderate-low risk category on application of the STATIC-99R risk assessment.

49 As mentioned earlier, the sentencing Judge gave a combined 50% discount for the Applicant's pleas of guilty and his assistance to the authorities. The assistance comprised both past assistance and an undertaking to give evidence (ROS8).

Ground 1 - Suggested Error in the Assessment of the Objective Seriousness of Count 1

Submissions of the Parties

50 Mr Odgers SC, for the Applicant, submitted that the sentencing Judge had fallen into error in his characterisation of the objective seriousness of Count 1.

51 In the District Court, the Crown submitted that the conduct of forced fellatio, combined with urination by the Applicant in the victim's mouth, placed Count 1 "at the mid range of seriousness for an offence of this kind", involving an act of gross degradation of the victim.

52 Senior counsel appearing for the Applicant in the District Court (not Mr Odgers SC) noted the Crown submission in this regard and did not contest it (T8, 26 May 2011).

53 The sentencing Judge accepted the Crown submission concerning the classification of this offence as "being in the mid range of seriousness" (ROS3). However, when considering the relevance of the standard non-parole period, his Honour said (with respect to Counts 1 and 2) that given "the assessment I have made of the criminality of the offender's action being at the top of the mid range, the sentences after trial would have been greater than the standard" (ROS13).

54 Mr Odgers SC submitted that the latter reference related to the assessment of objective seriousness of Count 2, and not Count 1. The sentencing Judge had accepted that Count 2 represented "conduct in the upper mid range of objective seriousness for an offence of this kind" (ROS4), this being the common submission for the Crown and the Applicant at first instance. Accordingly, Mr Odgers SC submitted that error was demonstrated.

55 The Crown acknowledged the difference between his Honour's specific reference to the objective seriousness of Count 1, and the later apparently rolled-up reference to the objective seriousness of both counts expressed at a higher level of seriousness.

56 The Crown noted that the sentencing Judge had directed a substantial degree of concurrency as between Counts 1 and 2 and submitted that, even if the sentence on Count 1 was reduced to reflect the sentencing Judge's finding of mid-range objective seriousness, considerations of totality should lead to the proper level of accumulation remaining at 12 months.

57 In this way, the Crown submitted that no lesser aggregate sentence was warranted at law.

Decision

58 It is necessary to fairly read the remarks on sentence to determine whether an error has been made and, if so, to determine the extent and consequences of the error.

59 In many circumstances, it might be considered that the second reference by the sentencing Judge (at ROS13) was a slip, with his Honour's true finding being that made earlier in the remarks.

60 However, the non-parole period for Count 1, after a 50% combined discount for the Applicant's plea of guilty and assistance, was a period of four years and six months. The standard non-parole period for this offence was seven years. An undiscounted non-parole period would have been in the order of nine years.

61 In these circumstances, it is appropriate to conclude that his Honour sentenced the Applicant on Count 1 upon the basis of the second (and incorrect) assessment, and not the first assessment identified earlier in the remarks.

62 The first ground of appeal is made good. It will be necessary to return to this topic later in this judgment, and to consider the Crown submission concerning accumulation, in the course of determining what course this Court should take, for the purposes of s.6(3) Criminal Appeal Act 1912.

Ground 2 - Claim of Error in Taking Into Account the Standard Non-Parole Periods for the Sexual Assault Offences

63 It is appropriate to consider submissions made with respect to the second ground of appeal. This process will also assist a decision whether this Court should intervene under s.6(3) Criminal Appeal Act 1912, in light of the error established in the first ground of appeal.

Submissions for the Applicant

64 Mr Odgers SC submitted that the sentencing Judge had fallen into error in taking into account the standard non-parole period with respect to Counts 1 and 2. He submitted that the sentencing Judge's approach infringed the principles laid down by the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

65 Mention has been made earlier of the sentencing Judge's finding concerning Counts 1 and 2 (at [53] above).

 

66 The part of the remarks on sentence challenged, in the second ground of appeal, is as follows (ROS13):

"The standard non parole period is not a maximum. It is not applicable automatically because of the offender's plea of guilty (Way's case). Given the assessment I have made of the criminality of the offender's action being at the top of the mid range, the sentences after trial would have been greater than the standard. The sentences then are as follows."

67 His Honour then proceeded to pass sentences identified earlier in this judgment.

68 In support of the second ground of appeal, Mr Odgers SC submitted that the sentencing Judge's approach involved error for two reasons. Firstly, he submitted that it involved impermissible two-stage sentencing, where the sentencing Judge considered the application of the standard non-parole period by reference to the objective seriousness of the subject offence, and then added an increment to the standard non-parole period (in this case, before discount, an extra two years in the case of Count 1).

69 It was submitted that the same error had been made with respect to Count 2, with the consequence that the starting point sentence that should be imposed (before taking into account the combined discount for the Applicant's plea and assistance) was one year and three months above the standard non-parole period of 10 years.

70 In respect of both Counts 1 and 2, Mr Odgers SC submitted there was a further error. He submitted that the sentencing Judge appears to have given no weight to matters personal to the Applicant (other than the combined discount for his pleas and assistance) as distinct from the "objective seriousness" of the offences. That conclusion flowed, it was submitted, from the starting point non-parole periods. If they were based on a view that the objective seriousness of the offences was "at the top of the mid range", it was impossible to see that any mitigating effect was given to other factors bearing on sentence.

71 In this way, Mr Odgers SC submitted that his Honour had failed completely to engage in the required instinctive synthesis of relevant factors, with the standard non-parole period operating as a guidepost: Muldrock v The Queen at 132 [28].

72 In particular, it was submitted that a number of favourable findings by the sentencing Judge were not taken into account, including the finding that the sexual offences were "out of character" (ROS10), and that the Applicant was "completely disinhibited" when committing the sexual offences which "may be the result of his gross abuse of alcohol and his use of cocaine" (ROS11).

73 Mr Odgers SC submitted that the offences should be approached upon the basis that the Applicant was reckless as to the victim's lack of consent, but that it had not been established beyond reasonable doubt that the Applicant had actual knowledge of the victim's lack of consent.

74 With respect to the Applicant's intoxication, it was submitted that this was an unusual case where intoxication mitigates the Applicant's offences because he acted out of character by reason of intoxication: R v Coleman (1990) 47 A Crim R 306 at 320. It was submitted that there was reduced need for specific deterrence and enhanced prospects of rehabilitation in these circumstances, together with a need for greater emphasis to be given to rehabilitation than general deterrence.

75 Mr Odgers SC submitted that there was evidence of contrition and remorse before the sentencing Judge. He submitted that all these matters should have been taken into account in the Applicant's favour, as part of a process of instinctive synthesis prior to the determination of sentence, including the non-parole period, but that it appears that none were.

76 In approaching the matter in this way, it was submitted that the head sentence and non-parole period for each offence would have commenced at a significantly lower level than those identified by the sentencing Judge, before the 50% combined discount was factored in.

77 In these ways, the Applicant submitted that error had been demonstrated on the part of the sentencing Judge.

Crown Submissions

78 The Crown submitted that, whilst Muldrock v The Queen constituted a radical departure from sentencing practices in this State, merely showing that a Judge had sentenced in a manner which followed the approach prescribed in R v Way [2004] NSWCCA 131; 60 NSWLR 168 will not be sufficient to demonstrate error.

79 It was submitted that what must be ascertained in each case is whether reliance on R v Way has sufficiently infected the sentence with such error that this Court must intervene: Butler v R [2012] NSWCCA 23 at [26].

80 Given the conceded error concerning Count 1, the Crown did not direct submissions under this ground to that offence.

81 With respect to Count 2, the Crown submitted that it was necessary to keep in mind the Form 1 offence, a serious offence under s.61J Crimes Act 1900 involving anal penetration accompanied by actual bodily harm, which led to the imposition of a longer sentence than would have been appropriate had Count 2 stood alone.

82 It was submitted, as well, that s.23(3) Crimes (Sentencing Procedure) Act 1999 required a sentence imposed upon an offender who had assisted the authorities to not be unreasonably disproportionate to the nature and circumstances of the offending. Given the gravity of the two s.61J offences, the Crown submitted that a non-parole period of less than five years and six months would not adequately reflect the criminality of the offending.

83 With respect to the finding that the sexual offences are "out of character", the Crown submitted that the nature and extent of the Applicant's sexual offences must be kept in mind. It was submitted that the statement that the offences were "out of character" was not a matter which greatly assisted the Applicant and that the sentencing Judge had given it proper weight.

84 With respect to the submission that the Applicant should be sentenced upon the basis of recklessness as to consent, and not knowledge of lack of consent, the Crown submitted that knowledge of lack of consent was the appropriate finding. The Crown relied upon the victim's immediate resistance during the conduct giving rise to Count 1, and her telephone calls for help and her attempted flight from the apartment, accompanied by screams, as being clear and obvious indicators to the Applicant of her lack of consent.

85 To the extent that it was submitted for the Applicant that his comments to the victim (see [23] above) suggested a belief on his part that the victim was consenting and enjoying the activity, the Crown submitted that the Applicant's comments were more indicative of his own satisfaction at the victim's expense, arising from clearly non-consensual sexual assaults.

86 With respect to the Applicant's intoxication, the Crown submitted that this aspect did not assist him on sentence by application of common law sentencing principles, in particular given his actual knowledge of the victim's lack of consent.

87 To the extent that the Applicant relied upon the context in which the offences occurred, commencing with consensual activity with both parties intoxicated, the Crown submitted that this did not assist the Applicant in circumstances where the victim had made entirely clear, in a number of ways, her lack of consent to the activity which constituted the offences.

88 The Crown submitted that self-induced intoxication in a mature man increases rather than decreases his moral culpability for the predictable consequences of that choice: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at 44 [28]; R v Mendes [2012] NSWCCA 103 at [83].

89 It was submitted that the sentencing Judge's neutral approach to the Applicant's intoxication was in fact generous to the Applicant.

90 With respect to contrition and remorse, the Crown submitted that the Applicant's letter of apology carried no weight. The Applicant did not give evidence in the sentencing proceedings, and no submission was made in the District Court concerning remorse, so that no error had been demonstrated in this respect.

91 The Crown submitted that, given the objective gravity of Count 2 and the Form 1 matter to be taken into account on sentence for this matter, no error had been demonstrated in accordance with the second ground of appeal concerning this count.

Decision

92 There is force in the Applicant's submission that the sentencing Judge's approach to the standard non-parole period with respect to both sexual assault offences was unduly prescriptive, in light of the principles laid down subsequently in Muldrock v The Queen.

93 A fair reading of his Honour's remarks on sentence (see [66] above) supports a conclusion that the standard non-parole period played a greater role on sentence than as a guidepost, to be taken into account with other factors on sentence, arising from application of Muldrock v The Queen. His Honour's approach was indicative of one which involved giving the standard non-parole period undue significance, in an overly prescriptive way: Essex v R [2013] NSWCCA 11 at [31]; Truong v R [2013] NSWCCA 36 at [32]. The process of reasoning was rigid to the point of being inconsistent with Muldrock v The Queen: Truong v R at [34].

94 I am satisfied that what occurred here was, in truth, a form of two-stage sentencing which is not permissible in view of the decision in Muldrock v The Queen. The first submission advanced as part of the second ground of appeal should be upheld.

95 The second submission advanced under this ground involves an examination of aspects of the offences with the view to determining whether the sentencing Judge took them into account on sentence. In view of the findings which have been made concerning the first ground of appeal and the first submission advanced in support of the second ground of appeal, it is unproductive to consider further the separate aspects of the ground. In my view, the appropriate course is to move to consideration of the question whether lesser sentences should be imposed for the purpose of s.6(3) Criminal Appeal Act 1912. This process will involve an examination of factors relevant to sentence to permit the statutory question to be answered.

96 The third ground of appeal, a claim of manifest excess, should be put to one side for the moment as well. The process to be undertaken will allow conclusions to be reached with respect to the third ground of appeal as well as the determination of the s.6(3) issue.

Should Lesser Sentences on Counts 1 and 2 be Passed for the Purposes of s.6(3) Criminal Appeal Act 1912?

97 Under s.6(3), the Court re-exercises the statutory discretion taking into account all relevant statutory requirements and sentencing principles, with a view to formulating the positive opinion for which the subsection provides: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at 287 [19].

98 The process to be undertaken is one of instinctive synthesis, having regard to the objective gravity of the Applicant's offences, his subjective circumstances and other aspects which bear upon the question of sentence, including the maximum penalty and the standard non-parole period for each of Counts 1 and 2. In addition, it will be necessary to bear in mind the Form 1 offence to be taken into account in passing sentence on Count 2.

99 The objective gravity of the Applicant's offences needs to be assessed in the context of the relationship between the Applicant and the victim. In R v Mason [2001] VSCA 62, Winneke P (Tadgell and Buchanan JJA agreeing) said at [7]-[8]:

"[7] A rape committed in the context, and against the background, of a previous settled relationship may in certain circumstances be a factor which a court can take into account in mitigation where it can be seen that the impact upon the victim has, for that reason, been less traumatic than otherwise it might have been. But, equally, it is not difficult to imagine a rape, committed by a man who has been in a previous relationship with his victim, which would be every bit as frightening as a rape committed by a stranger. The one thing which the authorities to which this Court has been referred demonstrate is that the crime of rape, whatever the circumstances, and upon whomsoever committed, is regarded by the courts as a grave insult to its victim and a crime which can rarely give rise to a non-custodial sentence [Schubert [1999] VSCA 25; Latham [1999] VSCA 132].

[8] It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms. In a society in which there is an increasing number of couples becoming estranged, the courts have a heightened obligation to deter those who have previously lived in a stable relationship with a wife or partner from regarding such wife or partner as akin to a chattel devoid of rights or freedoms, and as an object readily available for their sexual gratification."

100 The decision in R v Mason was referred to by this Court in NM v R [2012] NSWCCA 215, where Macfarlan JA (McCallum J and Grove AJ agreeing) said at [59]-[60]:

"[59] In the present case, the complainant suffered considerable pain as a result of the forced anal intercourse and her text messages of 1 and 2 May 2009 indicate that she suffered considerable emotional trauma as a result of the sexual assaults. However, in light of her lengthy prior sexual relationship with the appellant and the intermittent sexual relationship that still existed at the time of the offences, I do not consider that the offences can be equated to those involving sexual assaults by strangers, which must almost inevitably give rise to extreme terror and fear in the mind of the victim. Here, the victim had been prepared until moments before the assaults to have sexual intercourse with the appellant, and the complainant had indeed, only three minutes before the appellant's arrival at her home, invited him over for that very purpose. My view is that in these circumstances the sentencing judge erred in characterising the offences as falling within the mid-range of seriousness. They were in my view well below that, although not at the bottom of the range.

[60] These comments are in no way intended to suggest that the appellant's offences were not serious. He committed serious criminal offences deserving of severe punishment. However, the sentences that the sentencing judge imposed, amounting to an overall sentence of nine and a half years with a non-parole period of six and a half years, were in my view manifestly excessive in light of the particular circumstances of the case."

101 In the present case, the Applicant and the victim were in a relationship and the events on the evening of 3-4 March 2010 commenced as a consensual sexual episode. However, the conduct of the Applicant giving rise to Count 1 involved movement of the encounter to a different form of sexual activity, with the victim demonstrating obviously her lack of agreement to the conduct which the Applicant found sexually exciting.

102 Thereafter, the Applicant physically attacked the victim in a manner which involved forced anal intercourse carried out with such a measure of violence that the victim's head was smashed against tiles causing significant injury to her. At the same time, the Applicant was speaking to the victim in a manner which emphasised the degrading, violent physical exploitation of her, with the Applicant demonstrating no concern for her wellbeing.

103 It is true that the victim was not being sexually assaulted by a stranger, in circumstances where a further element of terror and fear would be expected. However, what was expected to be a consensual sexual encounter with the Applicant, spun out of control because of the Applicant's violent and self-centred approach in a way that clearly struck fear into the victim and caused her significant injury. The fact that the victim knew the Applicant and had, until these events, no doubt trusted him, could provide little comfort when the Applicant launched the onslaught against her revealed in the agreed facts.

104 Count 2 (and the Form 1 offence) involved significant domestic violence offences. The fact that the offences occurred in a domestic context (as distinct from an attack by a stranger) does not lessen their gravity: Heine v R [2008] NSWCCA 61 at [40].

105 The offences involved the exercise by the Applicant of control and power over the victim, in violation of the trust that existed between them: R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 193 [77].

106 The victim suffered substantial injuries with long-lasting consequences (see [36] above).

107 The context of the relationship between the parties, in a case such as this involving significant violence and the infliction of injury, provides no real assistance to an offender on sentence.

 

108 Before moving to consider the relevance of the Applicant's intoxication, it is helpful to set out the sentencing Judge's findings in this regard (ROS7):

"It is convenient at this point to consider the subjective case made on behalf of the offender. He is now aged thirty-five with, as I said, a history of repeated offending in terms of dishonesty. Whenever given an opportunity in the past by way of bond or parole he has breached his obligations and ended up in prison. Such a record does not generate confidence in his ability to reform. The sexual offences are out of character but he will still require moderate intervention to address this type of offending and a long sexual offender's program is recommended.

There is no evidence that the offender suffers from any abnormality of mind. His actions on 4 March 2010 were completely disinhibited but this may be the result of his gross abuse of alcohol and his use of cocaine which he had been consuming in increasing quantities prior to that occasion. He will require drug and alcohol counselling as well. This is not his first time in prison. His family remain, he says, supportive but he still tends to minimise his role in these crimes."

109 The Applicant and the victim had consumed alcohol and cocaine so that both were affected by those substances. However, what followed involved a sustained physical and sexual attack by the Applicant upon the victim.

110 In R v GWM [2012] NSWCCA 240 at [78]-[82], this Court adopted and applied the decision of the Victorian Court of Appeal in Hasan v R [2010] VSCA 352; 31 VR 28 with respect to the very limited relevance of self-induced intoxication to sentencing for offences of violence, including sexual assault. It was said in R v GWM at [78] that "voluntary intoxication operates rarely (at best) to mitigate penalty". The "out of character" exception is "acknowledged to exist, but it has almost never been applied": Hasan v R at 33 [21]; R v GWM at [80]-[81].

111 In Hasan v R, Maxwell P, Redlich and Harper JJA said at 37 [33]-[34] (footnotes excluded):

"[33] Because the out of character exception has been so rarely applied, there has been almost no judicial exploration of the circumstances in which the exception might be applicable. It seems clear enough, however, that the circumstances must be quite exceptional before intoxication at the time of offending can mitigate the offender's moral culpability.

[34] On ordinary principles, the offender would bear the onus of showing that he/she did not know what effect alcohol would have on him/her. Given the widespread use of alcohol, and the fact that even a non-drinker would be well aware of its effects on a person who becomes intoxicated, this is doubtless a difficult burden to discharge. Moreover, an attempt to invoke the exception also carries with it the forensic risk that an investigation of the offender's drinking habits might lead to the conclusion that the state of intoxication was an aggravating rather than a mitigating circumstance."

112 Properly understood, in accordance with the principles in Hasan v R, the "out of character" concept is a narrow one which has rare application: R v GWM at [82]. This conclusion is supported by other decisions of this Court, including Stanford v R [2007] NSWCCA 73; Bourke v R at 44 [26], [28] and BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 392 [55], 397 [79].

113 In my view, these principles have equal application to the present case. It may be said that the Applicant's level of intoxication served to disinhibit him. At the same time, the Applicant's offences, and in particular Count 2 (and the Form 1 offence on Count 2), involved acts of substantial violence injuring the victim, in the context of clearly communicated lack of consent by her to the sexual acts being committed against her. The intoxication of the Applicant provides no real assistance to him on sentence.

114 Further, the Applicant was not a person of previous good character. He was a significant recidivist in the area of crimes of fraud and dishonesty. It could certainly be said that he had no prior offences of sexual assault. But that is as far as an "out of character" finding could go, and (in my view) that is as far as the sentencing Judge intended to go (see [108] above). And there were, of course, further dishonesty offences for which the Applicant was to be sentenced in the District Court.

115 The sexual assault offences contained in Counts 1 and 2 were objectively grave. At the hearing before this Court, Mr Odgers SC sought to advance a submission that concessions made by his predecessor in the District Court, with respect to the objective seriousness of the offences, were not correct. The very experienced senior counsel appearing for the Applicant at first instance had expressly agreed with the Crown submission that Count 1 lay at the mid-range of seriousness for an offence of this kind, and that Count 2 represented conduct in the upper mid-range of objective seriousness for an offence of this kind.

116 This Court should not lightly allow a concession made at first instance to be replaced by a different argument advanced by new counsel on appeal: Zreika v R [2012] NSWCCA 44 at [81]. This principle applies as much to the s.6(3) stage of an appeal as to the initial question whether error has been established. In any event, in my view, the submissions advanced by the Crown, and accepted by senior counsel for the Applicant in the District Court, were correct.

117 It was submitted for the Applicant in this Court that, in approaching the question of resentence, the Court should proceed upon the basis that the Applicant was reckless concerning the victim's lack of consent, rather than that he had knowledge of lack of consent. I do not accept this submission.

118 No such submission had been advanced at first instance. Moreover, the description of the offence in Count 1 in the Agreed Statement of Facts demonstrates that the actions of the victim communicated her lack of consent in an unmistakable way, and I am satisfied that the Applicant knew this at the time.

119 With respect to Count 2, the Applicant maintained his violent sexual pursuit of the victim, culminating in conduct described earlier in this judgment. These acts occurred against the background of the victim's clear communication of lack of consent to the Applicant's conduct which gave rise to Count 1. Once again, I am satisfied that the appropriate basis for sentence of the Applicant is knowledge of lack of consent concerning Count 2, and not recklessness.

120 The Applicant could have had no doubt that the victim was not consenting to these sexual acts. The degree of violence, the insults and the victim's protests (including an attempt to escape before Count 2) made it plain beyond any doubt that she was not consenting to this conduct: R v Stephens (1994) 76 A Crim R 5 at 7.

121 It is true that the SMS messages exchanged between the Applicant and the victim prior to events in the apartment had foreshadowed certain sexual activities. However, what may have been forecast as a form of sexual frolic quickly became a forceful and violent onslaught against the victim, to which she was clearly and obviously not consenting.

122 The Applicant's words expressed at one point (see [23] above) are indicative of his own one-sided approach to what was then an obvious sexual assault, disclosing his enjoyment of acts which degraded and injured the victim in a number of serious respects.

123 These were acts of knowing exploitation by the Applicant. His acts involved the subjugation, debasement and humiliation of the victim, including urination in the victim's mouth: R v Mosegaard [2005] NSWCCA 361 at [168]ff.

124 The sentencing Judge found that the Applicant still tended "to minimise his role in these crimes" (see [108] above), a finding that, in my view, was both open and correct. Further, the Applicant has a long history of recidivism with respect to dishonesty offences, including a chequered history of compliance with parole conditions and other sentencing orders. The fact that the Applicant has breached parole is relevant to an assessment of his rehabilitation prospects and the need for personal deterrence: Morrison v R at 114 [15].

125 The sentencing Judge proceeded upon the basis that a combined discount of 50% for the Applicant's plea of guilty and assistance should be allowed. It was not submitted that this Court should take a different approach if the Applicant came to be resentenced.

126 The Crown reminded the Court of the note of caution expressed in earlier decisions where an argument is sought to be based upon the starting point or notional sentence rather than the sentence actually passed, in particular, in cases where a significant discount for assistance has applied: Graham v R [2009] NSWCCA 212 at [40]-[45]; Yang v R [2012] NSWCCA 49 at [63]. However, this does not mean that reference to the starting point cannot assist the Court in assessing the submissions made.

127 In this case, the offence in Count 1 attracted a maximum penalty of imprisonment for 14 years, with a standard non-parole period of seven years. Prior to the application of the 50% discount, the sentence comprised a head sentence of 12 years with a non-parole period of nine years.

128 The offence in Count 2 attracted a maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years. Before application of the 50% discount, and taking into account the Form 1 matter, the head sentence was one of 15 years with a non-parole period of 10 years (11 years and three months before the adjustment for "special circumstances").

129 The recital of these periods assists the Applicant's submission, particularly with respect to the sentence for Count 1.

130 As mentioned above (at [97]-[98]), the s.6(3) test requires this Court to approach the question of sentence on these counts again.

131 The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing Judge identifying all the factors that are relevant to the sentence, and then making a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 131-132 [26].

132 For each offence, the standard non-parole period is to be taken into account, with the maximum penalty, as "two legislative guideposts" which are relevant to sentence: Muldrock v The Queen at 132 [27].

133 It must be kept in mind, however, that a lesser penalty imposed because of assistance to law enforcement authorities must not be unreasonably disproportionate to the nature and circumstances of the offence: s.23(3) Crimes (Sentencing Procedure) Act 1999. There is a bottom line beneath which a sentence cannot be set legitimately: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at 251 [4]-[6]. This consideration is an important one in this case, in determining the question of sentence for the sexual assault offences.

134 A significant offence is included on the Form 1 to be taken into account on sentence for Count 2, this being a further part of the episodes of sexual assault and violence directed by the Applicant towards the victim.

135 Having considered relevant factors, for the purpose of s.6(3), I am satisfied that lesser sentences are warranted on Counts 1 and 2.

136 Both Counts 1 and 2 warrant substantial sentences to reflect their significant objective gravity. The sentence on Count 1 is affected by two errors. Application of s.6(3) to that offence will see a greater reduction in sentence than on Count 2. The latter offence (and the Form 1 matter) are particularly serious examples of this class of offence.

137 To my mind, before application of the 50% discount, an appropriate sentence on Count 1 would comprise a head sentence of nine years. Application of the statutory ratio would see a non-parole period of six years and nine months.

138 Before application of the 50% discount, an appropriate sentence on Count 2 (taking into account the offence on the Form 1), would comprise a head sentence of 14 years. Application of the statutory ratio would see a non-parole period of 10 years and six months.

139 After application of the 50% discount, the sentence for Count 1 would comprise a non-parole period of three years, four months and two weeks, with a balance of term of one year, one month and two weeks.

140 After application of the 50% discount, the sentence for Count 2 (including the Form 1 offence), would comprise a non-parole period of five years and three months with a balance of term of one year and nine months.

141 In my view, a period of 12 months' accumulation as between Counts 1 and 2, as determined by the sentencing Judge, remains appropriate to reflect principles of concurrency, accumulation and totality.

142 Like the sentencing Judge, I would find special circumstances only as a result of the level of accumulation of the sentences.

143 To give effect to this limited finding of special circumstances, the sentence to be passed for Count 2 will comprise a non-parole period of four years and eight months, with a balance of term of two years and four months.

144 To my mind, no lesser sentences than these are appropriate having regard to s.23(3) Crimes (Sentencing Procedure) Act 1999 and the principles in SZ v R (see [133] above). For the purposes of s.23(4), the discount for assistance (of 25%) is apportioned, with 12.5% for past assistance and 12.5% for future assistance.

145 The commencement date for the sentence on Count 1 should remain as 13 August 2011.

146 Two observations are appropriate before moving to the orders which I propose.

147 Firstly, although the Applicant has demonstrated error with respect to Counts 1 and 2, and has made good an argument that lesser sentences should be imposed for the purposes of s.6(3), it will be observed that relatively modest reductions have been made to the sentences, in particular for Count 2. Further, the maintenance of the level of accumulation of one year means that there is no practical change resulting from the reduction of the sentence on Count 1. The sentence imposed on Count 2 results in an effective reduction of six months in the head sentence and four months in the non-parole period. These sentences result from the passing of sentences according to law. Although this Court should guard against tinkering with sentences, I do not consider that the course proposed here may be so characterised: cf Hillier v Director of Public Prosecutions [2009] NSWCCA 312; 198 A Crim R 565 at 576-577 [47]-[49]; Jackson v R [2013] VSCA 14 at [36].

148 Secondly, the conclusions expressed in this judgment reveal that the Applicant's claim of manifest excess has not been made good. The sentences have not been demonstrated to be unreasonable or plainly unjust: Markarian v The Queen at 370-371 [25].

149 I propose the following orders:

(a) leave to appeal granted;

(b) appeal allowed in part;

(c) confirm sentence passed on 17 June 2011 for the offence of obtaining a valuable thing by deception (taking into account the Form 1 offences referrable to this count);

(d) sentences for the offences under s.61I and s.61J Crimes Act 1900 quashed;

(e) in their place:

(i) for Count 1, the offence of sexual intercourse without consent contrary to s.61I Crimes Act 1900, the Applicant is sentenced to imprisonment comprising a non-parole period of three years, four months and two weeks commencing on 13 August 2011 and expiring on 26 December 2014, with a balance of term of one year, one month and two weeks commencing on 27 December 2014 and expiring on 9 February 2016,

(ii) for Count 2, the offence of aggravated sexual assault contrary to s.61J Crimes Act 1900 (taking into account the s.61J offence on the Form 1), the Applicant is sentenced to imprisonment comprising a non-parole period of four years and eight months commencing on 13 August 2012 and expiring on 12 April 2017, with a balance of term of two years and four months commencing on 13 April 2017 and expiring on 12 August 2019.

(f) the earliest date upon which the Applicant will be eligible for release on parole is 12 April 2017;

 

(g) in accordance with s.25C(1) Crimes (High Risk Offenders) Act 2006, the Applicant is advised of the existence of that Act, and its application to the sexual assault offences for which he has been sentenced.

150 BUTTON J: I agree with Johnson J.

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Decision last updated: 22 April 2013