New South Wales District Court CITATION: R v Anthony TALLY [2009] NSWDC 367 HEARING DATE(S): 10 December 2009 JUDGMENT DATE: 10 December 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: Sentenced to imprisonment for each offence. CATCHWORDS: CRIMINAL LAW - Sentence - Form 1 - Aggravated sexual assault - Break enter and steal LEGISLATION CITED: Crimes Act 1900 PARTIES: The Crown Anthony Tally FILE NUMBER(S): DC 08/11/1948 COUNSEL: Ms C Manuell SC - Offender SOLICITORS: Director of Public Prosecutions Crawford and Duncan Lawyers - Offender JUDGMENT 1 HIS HONOUR: Anthony Tally is to be sentenced today for a number of offences committed some distance apart in time. The first of those offences occurred as long ago as 17 August 1997. The reason that it is being prosecuted after such a lengthy delay is because that it was through the use of DNA analysis that the offender was detected as being the person responsible for the most serious offence and his DNA sample was only taken for comparison comparatively recently. The fact that it was committed so long ago and that I am sentencing him now after a lapse of more than twelve years produces a number of relevant considerations. 2 A victim impact statement was read by the victim of the matter. Her distress at the offence and the consequences for her of an offence committed so long ago was apparent even to this day. The reaction of Ms M, the victim of that offence and the consequences for her as reported in the victim impact statement confirm in a most graphic way the assumption that has been made by Judges from time to time that the consequences of offending of this type are long lasting and likely permanent. Ms M feels the results of the offenders conduct deeply to this day. It has affected her irrevocably. 3 What the offender did on 17 August 1997 was to approach her as she was walking along the street, threatened her with a screwdriver and forced her to have sexual intercourse with him. Ms M was only twenty-one years old that day. She was walking along a road in Strathfield when she turned around and saw the offender coming towards her with a screwdriver in his hand. She began screaming, not surprisingly, but instead of running away the offender was determined to have sex with her. He said "If you don't stop screaming I'll kill you". As a result of that most violent threat, Ms M did stop screaming. She offered him money but the offender replied succinctly "Shut up, I want to fuck you". He pushed her over a sandstone wall into someone's property and made her climb over a fence. He was holding the screwdriver to Ms M's throat as he did so. She tried to talk him out of it saying "You don't have to do this, you really don't have to do this". She told him that she had her period but the offender's response was simply "I really don't care". Eventually he undid her jeans and pulled them down. He made her take her tampon out, pushed her over and laid down on top of her. He penetrated her vagina with his penis, removing it after about five seconds. He stopped and told Ms M to go away. She did and went to a friend's house. Police were contacted and she was taken to Westmead Hospital. Forensic analysis of the material supplied as a result of the examination of Ms M revealed a DNA profile which was later shown to match that of the offender. 4 That as I said was in 1997. At the time of that offence the offender was on conditional liberty. In fact he was on parole at the time having been released from custody not that long before. Between 1997 and 2007, the offender committed some further offences but nothing even approaching the seriousness of the offence of aggravated sexual assault. 5 That brings us to the other offences which the offender is to be sentenced today. They are a series of break enter and steal matters committed in late 2007. Additionally there are other matters, one of larceny, one of aggravated break enter and steal and a number of other similar matters involving breaking and entering either to steal or with intent committed almost all in late 2007 (although there was one in 2003 and another one of larceny in 2006). He asks that I take those matters into account on a Form 1 when I sentence him for the offence of aggravated sexual assault. 6 The offender's modus operandi was to go to residential premises, use a rock to break through a window or a door, gain entry and take what he could find. It was a common practice of his also to take a drink from the fridge, have some and leave the bottle behind. Each time he did this, he left some of his DNA for the police to find and it was through those means that almost all of the 2007 offences were discovered. The break enter and steal offences were unremarkable. That description in itself is certainly not intended to suggest that the offences were not serious. It is distressingly common for householders to find that drug addicts such as the offender caring nothing about their rights and their feelings, break into their homes and take items of value which they then immediately sell so that they can support a drug habit. Simply because offences such as these were common place does not make them any less serious. 7 One of the important matters to take into account in assessing the objective gravity of offences such as the latter group of offences for which the offender is to be sentenced concerns the nature of the property taken. The offender on occasions took property of significant value, on one occasion taking jewellery to the value of $43,658.00. On occasions also property which must have had significant sentimental value was taken as well. The consequences and the harm caused by offences of break enter and steal do not only flow to the unfortunate householders who had their homes broken into and their property taken, but all of us suffer because of the prevalence of offences such as these through the need to install additional security on our homes, the need to pay higher insurance premiums, all because offenders such as Mr Tally choose to fund their drug addiction by the commission of serious criminal offences. 8 The maximum penalty for the aggravated sexual assault matter is twenty years imprisonment and the maximum penalties for each of the remaining offences for which the offender is to be specifically sentenced is fourteen years. One of the offences on the Form 1 carries a maximum penalty of twenty years with a standard non-parole period of five years but of course that standard non-parole period has no application given that the matter is on a Form 1. 9 Concern has sometimes been expressed by judicial officers at the placement on a Form 1 of matters carrying a standard non-parole period. In circumstances such as these, the offender can consider himself quite fortunate that the prosecution has chosen to do what it did. I also mention that there is no standard non-parole period for the aggravated sexual assault. Had the offence been committed today there would have been but at the time that the offence was committed the standard non-parole period had not yet been introduced. The age of the aggravated sexual assault matter is clearly an important consideration as I mentioned at the outset of these remarks. One particular aspect which the offender is entitled to rely on is that despite this offence occurring over twelve years ago, no similar offence appears on his criminal history. Nor, and I should say at this stage, is there an offence of that kind or any sexual offence of any nature anywhere on his criminal history. That tends to suggest that this offence may well be an isolated one. The same however cannot be said about the break enter and steal offences. 10 The offender was born in 1972. He has an extensive criminal history and a great deal of involvement with the criminal justice system generally and the Probation and Parole Service specifically. He has been supervised by the Probation and Parole Service on many occasions, sometimes satisfactorily and other times not so. 11 The offender is an only child. His parents separated when he was very young and he has had minimal contact with his natural father. His mother was only seventeen when she fell pregnant with him. The offender's upbringing was much less than satisfactory. The unfortunate circumstances surrounding his upbringing are well detailed in the many reports that were tendered on the offender's behalf. His upbringing was affected by external matters such as the many negative influences to which he was exposed whilst he was growing up and the absence of positive influences as well as matters internal to the offender who from a very young age exhibited symptoms consistent with Attention Deficit Hyperactivity Disorder. In recent times there may have been some doubt cast upon precisely what condition the offender suffers from but the symptoms which his mother described today are of significant problems controlling his impulses. Some of the psychological material suggests that it is entirely possible that as the offender ages his problems with impulsivity will reduce. Indeed the offence of aggravated sexual assault, the most serious offence for which the offender is to be sentenced today, related to just what I have been describing, impulsive behaviour and the offender remembers this offence well. He told a psychologist that he had the screwdriver because he was out breaking into cars but decided on the spur of the moment that he would sexually assault a young woman he saw walking down the street. 12 He has expressed his remorse for that offence to the psychologist and his mother although he himself did not give evidence today. That is one qualification to the finding of remorse. The other of course is that although he told the psychologist that he remembered the offence well, he denied that he had threatened the victim with the screwdriver, a matter he now admits. 13 The law is that when sentencing for an old offence I do not impose a sentence as if the offence was committed more recently and that the sentencing regime and sentencing ranges appropriate at the time are what should guide me. This, as has been recognised in the authorities can occasionally lead to some difficulties. On occasions, the Court of Criminal Appeal has suggested that Judges can use their own experience in criminal law to guide them, a matter which really only can be effective where the Judge has appropriate experience. Ms Manuell assisted me by obtaining statistics from the Judicial Commission. She was able to provide me with statistics showing sentences for offences under s 61J of the Crimes Act which were not subject to a standard non-parole period. They are a good indication of the sentencing regime and range which would have been appropriate in 1997. I also use my recollection of sentences that were imposed in the late nineties in determining what would have happened to the offender had he been dealt with for this offence of aggravated sexual assault at that time. 14 The 1997 offence I hope I have made clear, was a very serious one. Young women are entitled to walk the streets at night or even in the early hours of the morning without needing armed guards to protect them. Of course many young women are vulnerable but that is not their fault. The Courts must do what they can to protect women in the position that Ms M was that day. Sentences involving a substantial component of general deterrence are necessary and will be imposed in this case even despite the matters referred to in the various psychological reports. 15 The offender pleaded guilty to all of these offences at an early stage and so as is agreed by the Crown, the sentence should be twenty-five per cent or approximately twenty-five per cent less than it would otherwise have been. The High Court decision of R v Pearce [1998] HCA 57 of course applies and so the offender is to be separately sentenced for each offence taking into account the objective gravity of each different offence and the circumstances that relate to him. Clearly the offender, despite his lengthy criminal history, would benefit from an extended period of supervision on parole and so I will make a finding of special circumstances in the offender's favour. This is not as a means of extending leniency to him at all but results from the fact that one day the offender is to be released into the community and it is far better that upon that release he is given the assistance of the Probation and Parole Service in order to ensure as far as is possible that he commits no further offences. The community would thus benefit from that extended period of supervision on parole. 16 For the offences of break enter and steal numbered B and C on the Crown's sentence summary, the offender is sentenced to imprisonment, I set a fixed term of two years to date from 18 January 2008. For the break enter and steal matters D, E and F on the Crown's sentence summary, the offender is sentenced to imprisonment. I set a fixed term of imprisonment of two years to date from 18 January 2009. Those sentences are fixed terms because of the sentence I now announce on the aggravated sexual assault matter. For that offence the offender is sentenced to imprisonment. I set a non-parole period of four years to date from 18 January 2010 and I set a head sentence of seven years. This means that the overall sentence is one of nine years with a six year non-parole period. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.