New South Wales District Court CITATION: R v Andrew COLE [2009] NSWDC 255 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 21 August 2009 EX TEMPORE JUDGMENT DATE : 21 August 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: For the offence of detaining for advantage, fixed term of five years imprisonmet. For the offence of aggravated sexual assault, non-parole period of ten years and a head sentence of fourteen years. CATCHWORDS: Criminal law - Sentence - Aggravated sexual intercourse - Detaining for advantage CASES CITED: Veen v R (1979) 143 CLR 458 Veen (No 2) v R (1988) 164 CLR 465 PARTIES: The Crown Andrew Cole FILE NUMBER(S): DC 2009/11/0505 COUNSEL: Ms S Hall - Offender SOLICITORS: NSW DPP Legal Aid Commission JUDGMENT 1 Sometimes judges are faced with particularly serious offences. This is one of them. Indeed the facts in the present matter can be accurately described as "chilling". 2 It is the primary purpose of the criminal law to protect society and its members. Unfortunately it can usually only do this after offences have been committed. But when offences as serious as this are brought to the court's attention, it is incumbent upon the court to respond appropriately; to impose a sentence which will deter the offender, which will deter others and mark in a very concrete way the wrongfulness of the offender's conduct. 3 The events I am about to describe occurred on 29 July 2008. That evening the complainant was at home with her two children aged seven and ten. They had recently suffered some tragedy in their lives; the complainant was recently widowed. Shortly after midnight, so that it was now 30 July 2008, the complainant went to bed. She secured the premises, although for reasons which it is not necessary to describe, she was unable to do so completely. The children and the complainant went to bed and went to sleep. 4 The offender was in the vicinity. He was suffering from the effects of paranoia. He decided that he would enter the premises, which he did, so by pushing open a door which would not close. He was at one stage charged with the offence of breaking and entering and committing a serious indictable offence, but the Crown dropped that charge after receiving reports from psychiatrists that suggest that the offender would have a mental illness defence to that charge because of the paranoia he was experiencing at the time. For that reason it is no part of the sentencing decision I have to make to take into account the offender's decision to break into the home. However once there he remained there and committed two very serious offences for which he is morally responsible. 5 The first thing he did was to go to the room where the complainant's children were asleep. One of them woke up and the offender asked her where her mother and father were. The offender was thus taken to the room where the complainant was asleep. She was awoken by her daughter and she heard a male voice say "just keep quiet and you won't get hurt". She woke up to see the offender standing next to her daughter holding the family's pet dog. He then heard this person whisper to her daughter "get on the bed face down. Don't look at me". 6 He had first demanded money. The complainant gave it to him. She explained at the time that she was on a pension as she was a widow. One might have thought that anyone with an ounce of humanity might at this stage have reflected on what was going on. The offender responded simply by tying the complainant up, covering her mouth with a gag and blindfolding her. He threatened her too, saying "don't be stupid. Don't be a hero. You've got a young family. You don't want them to get hurt." He once again told the complainant's daughter not to look at him. 7 At this stage he left the bedroom and the complainant could hear him rummaging through items within the house. The complainant managed to free her arms and tried to call the police using her mobile phone, but as she was doing so the offender re-entered the room and became angry at what was happening. He threatened her and then retied her hands even tighter, causing pain and soreness to her wrists. (The complainant later said that her hands were going so blue that she thought they were going to fall off. ) She was finding it very hard to breathe. She asked the offender to loosen the ties which he was unable to do because they were tied so tightly. He did however obtain some scissors to cut her hands free. She remained blindfolded. 8 Because she could not see what was going on, she had to interpret what was going on from other senses. She smelt something like bleach. What was happening was that the offender was spraying household cleaner with bleach in it in an attempt to cover his traces and to remove traces of his DNA that he knew he was leaving behind. 9 At this point the complainant and the offender moved to the lounge room. The complainant asked the offender to leave and tried to persuade him to do so by telling him that she would not call the police. To this the offender responded that she would have to prove what she said by giving him a blow job. She asked the offender not to do it, but he responded "well if you don't, I will then do your children." It is hard to imagine the terror that the complainant must have felt on hearing this. 10 In response to the threat, she cooperated to some extent with the offender. He pushed her onto her knees before undoing his pants and removing his penis. The complainant performed fellatio on the offender until he ejaculated into her mouth. 11 At this stage the offender asked where various household items were in the house and went around collecting items. He also once again sprayed bleach to get rid of his DNA. Not surprisingly, the complainant still wished the offender to leave, but he would not do so. He made reference to "the government people" and "CIA" who were after him. 12 The complainant bravely began to talk to the offender. She was no doubt very scared about what might happen. Her two daughters remained in the house and the offender had demonstrated what he was capable of. The offender required that the complainant remain with him for some hours. 13 At about six o'clock in the morning, when it was becoming light, the complainant once again asked the offender to leave. It was agreed that the complainant would drive him where he wanted to go. The complainant refused to leave without her children. She was therefore required to wake her daughters and tell them that the man with her was her new boyfriend and that she had to drive him home. The four of them then got into the complainant's car and she dropped him reasonably close to where he was then living. 14 The complainant went straight away to the police station and reported what had happened to her. The offender was arrested a couple of days later. He conducted a record of interview with the police. It is significant that there is a close match of the events given by the complainant and the description of events given by the offender. The offender did tell the police that he was sorry for what he had done. There are indications also that during the course of the four hours, when the complainant engaged the offender in conversation, that he also then expressed his remorse for what he had done. 15 It is difficult to imagine a more serious offence. This gross violation of the complainant occurred in her home; a place where she was entitled to feel safe. As the offender knew, she had recently suffered the loss of her husband. There were children present and indeed the offender took advantage of that by threatening them with sexual assault in order to obtain the complainant's cooperation. The complainant is a woman who was asleep in her own home and was very vulnerable. The offender used her in a degrading way and obtained what he wanted by the use of both force and threats. Objectively, this is an offence well towards the upper range. 16 The offender has now pleaded guilty to an offence of aggravated sexual intercourse without consent, the circumstance of aggravation being the commission of actual bodily harm and detaining for advantage. The maximum penalty for both offences is twenty years, but the offence of aggravated sexual intercourse without consent carries with it the standard non-parole period of ten years. That of course is not of direct application, given the plea of guilty, but it remains as a guidepost to the sentence I should impose in the present matter. 17 The offender has a significant custodial history. Included within it are offences of abduction and sexual assault, as well as other serious offences such as armed robbery. As Ms Hall who appears on his behalf submitted, he has spent the best part of his adult life in gaol. 18 The offender's early history is recorded in a letter that I have received written by his sister. It was relatively unremarkable. True there were the usual problems that occur when parents separate acrimoniously, but things really began to fall apart as the offender's sister said, when he was around seventeen years of age. His criminal history is testament to what occurred thereafter. 19 Those problems and offences seems to have begun as offences related to drug use. The offender first used cannabis when he was fifteen, amphetamines from seventeen and heroin at twenty-two. He has not completed any drug and alcohol counselling or rehabilitation programs and so his addiction to drugs has been longstanding. 20 It is accepted apparently by the Crown that the offender suffers from a mental illness. He is at present a forensic patient due to his condition. A number of psychiatrists have seen him over the years and it is clear that the offender is mentally unwell. As I made clear, it was the offender's paranoia, believing that he was being followed by those who would harm him, which led him to entering the complainant's house in the first place. However it is difficult to see any connection between the offender's mental illness and his decision to force the complainant to perform fellatio upon him. There is no reason therefore to significantly moderate the sentence I will impose upon him for that offence. 21 The offender pleaded guilty at an early stage. That is consistent with his expressions of remorse which began very early in the piece. It also has utilitarian benefit to the criminal justice system. So the sentence I will impose upon the offender is twenty-five per cent less than it would otherwise have been. 22 One of the matters which was the subject of submissions today concerned the effect of the fact that the offender is a forensic patient on the sentence I should impose upon him. I do not consider that that circumstance affects the length of the sentence I should impose. Firstly he may not continue to be a forensic patient and so if I were to allow that factor to influence the sentence I impose, it may well be that the basis for that is removed in the event the offender loses forensic patient status. Even if he was to remain a forensic patient for the entirety of his sentence I will shortly impose, I cannot see how that should lead to a shorter or longer sentence. I consider that the true position is that I should ignore the consequences for the offender being a forensic patient in selecting the appropriate period which he will be required to serve. 23 I heard a victim impact statement read today by the complainant. It demonstrated the gravity of the consequences of criminal conduct such as that perpetrated by the offender. Those consequences were entirely foreseeable. It is not at all surprising to learn how the complainant was affected by the degrading, disgusting and humiliating experience to which she was subject. 24 She is to be congratulated for presence of mind during the course of that evening. She coped with a horrible situation in a way which protected her children. One can understand how the conduct has affected her relationship with her children, as she revealed in the victim impact statement. As I said these consequences are entirely foreseeable. The offender even, mentally ill as he is, must have known that if he was going to force sexual intercourse upon the complainant with her children being in the house, she was going to suffer and significantly so. 25 As Ms Hall said, it may well be that the actual bodily harm experienced by the complainant was not as bad as many cases that come before the courts. That is not enough to demonstrate that the aggravated sexual intercourse without consent offence is anything other than objectively at the high end of the range of objective seriousness for the reasons I have summarised earlier.The High Court in Veen v R (1979) 143 CLR 458 and Veen (no 2) v R (1988) 164 CLR 465 made it clear that the protection of the community is something which I am entitled to take into account. To be more specific; preventative detention is a relevant factor which I am entitled to consider. What I am not allowed to do, and what I will not do, is to allow the idea of preventative detention to lead to a sentence which is longer than would be objectively required. Within that constraint I have taken into account the likelihood that in the future offences such as this will be repeated. The offender's criminal history and the information I have about the offender suggests that the prospects of rehabilitation are not very good. Indeed the prospect of his release to the community one day is decidedly uncomfortable. 26 There are no special circumstances in this case. The period of eligibility for parole which I will shortly announce is such that if there is to be rehabilitation, I have allowed a sufficient period for it to occur. 27 It is not appropriate that totally concurrent sentences are imposed. The offence of detaining for advantage focuses on a different aspect of the offender's conduct and its effect upon the complainant when compared to the offence of aggravated sexual intercourse without consent. It would be quite wrong to, in effect, give the offender one of those offences for free. There will therefore be partial accumulation. 28 The offender was taken into custody on 31 July 2007. So the sentences I will now announce will commence from that date. 29 For the offence of detaining for advantage I impose a sentence of imprisonment. I set a fixed term of five years to commence on 31 July 2008. That sentence is a fixed term because of the sentence I will now announce on the other matter. For the offence of aggravated sexual assault, I set a non-parole period of ten years to commence on 31 July 2010 and a head sentence of fourteen years. That means the offender will be eligible to be released to parole on 30 July 2020. ********** 08/10/2009 - Typographical error - Paragraph(s) 8 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.