New South Wales Court of Criminal Appeal CITATION : Regina -v- Orth [2000] NSWCCA 126 FILE NUMBER(S) : CCA 60447 of 1999 HEARING DATE(S) : 10/04/00 JUDGMENT DATE : 10 April 2000 PARTIES : Regina Phillip James ORTH JUDGMENT OF : Dowd J at 1; Hulme J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Twigg DCJ OFFICER : COUNSEL : Mr M.C. Marien - Crown Mr C.A. Porter QC - Appellant SOLICITORS : S E O'Connor - Crown Djekovic Hearne & Walker CATCHWORDS : Sentence appeal - Sexual assault - Intoxication irrelevant Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Sentencing Act 1989 Regina -v- Pearce (1998) 103 A Crim R 372 CASES CITED: Regina -v- Fletcher-Jones (1994) 75 A Crim R 381 Regina -v- Coleman (1990) 47 A Crim R 306 DECISION : Leave granted;; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL No. 60447 of 1999 HULME J DOWD J REGINA -v- Phillip James ORTH 1 DOWD J: This is an appeal against a sentence imposed by Twigg QC DCJ on 13 July 1999 for two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 ("the Act") and one count of attempt sexual intercourse without consent pursuant to Ss 61I and 61P of the Act. 2 The applicant had pleaded guilty to each of these offences and was sentenced to 9 years imprisonment, consisting of a minimum period of 6 years penal servitude to commence on 9 July 1999 and to expire on 8 July 2005 and an additional term of 3 years to commence on 9 July 2005 and to expire on 8 July 2008. 3 The facts are that around 5.00 am on Sunday 22 March 1998 the complainant hailed a cab from her unit at Milsons Point, travelling to the Brooklyn Hotel on the corner of Grosvenor and George Streets in the city. She was intending to walk to a nightclub in Park Street where she was to join her boyfriend and her flatmate. She alighted from the taxi at the Brooklyn Hotel because she wanted to make sure she had enough money to get home. She had allowed her friends to go to the nightclub earlier, as she had felt unwell. 4 The complainant commenced to walk a short distance along George Street in the direction of the nightclub. As she neared the intersection of George and Hunter Streets she noticed the applicant walking behind her in the same southerly direction. She turned left into Hunter Street and walked to the intersection of Hunter and Pitt Streets. She turned right into Pitt Street and continued walking in a southerly direction on the eastern side of the street. Some 50 to 100 metres from the intersection of Hunter and Pitt Streets the appellant noticed that the applicant was again walking behind her and that he had narrowed the distance between them. In a conscious effort to separate herself from the applicant, the complainant crossed to the western side of the street and continued to walk in a southerly direction. However, as she neared the intersection of Pitt Street and Angel Place, the complainant crossed back to the eastern side of the street as she saw a group of about four or five people. The complainant then continued walking in a southerly direction along the eastern side of Pitt Street and crossed over Martin Place. Near to Martin Place she heard the squeaky shoes of the applicant close behind her. 5 As the complainant neared the Commonwealth Bank on Pitt Street she became conscious that the applicant was again following her. The complainant attempted to cross to the western side of Pitt Street, whereupon the applicant placed his hands around her mouth and waist and dragged her up Rowe Street. Whilst pulling the complainant, the applicant said to her, "if you scream I will fucking kill you". The complainant attempted to struggle free from the applicant's grasp but was unsuccessful. 6 The applicant pulled her further along Rowe Street, stopping eventually at a doorway that was located next to the entrance of the MLC Centre. There the applicant forced the complainant to her knees, then stood in front of her and said, "suck my dick". The complainant refused, saying under her breath, "you can't make me do that". The appellant pulled her to her feet and turned her around so she was facing the wall, he then pulled the complainant's dress off, ripped off her underpants, constrained the complainant with one arm around her shoulder, and inserting his other hand between her legs inserted two fingers in her vagina. This is the subject of the first offence. 7 The applicant then tore off the remainder of the complainant's clothes. Whilst the complainant was naked, the applicant forced her back on to her hands and knees and made her face the wall. He attempted to penetrate her anus with his penis. This is the subject of the third offence. 8 The applicant then inserted his penis into the complainant's vagina and proceeded to have intercourse with her for approximately three minutes against her will. This is the subject of the second offence. 9 As this was occurring, a security guard from the MLC Centre, looking down from a higher level, walked down and saw the complainant on her hands and knees with the applicant thrusting his pelvis up against the complainant. The complainant called out to the security guard accusing the applicant of raping her. The applicant stopped what he was doing and asserted to the security guard he had known the complainant for years. The applicant then fled down Rowe Street, turning right into Pitt Street, continued left up Martin Place and right into Wynyard and Carrington Street. The security guard chased the applicant over some considerable distance and the applicant was eventually located hiding under a truck in Carrington Street. With the aid of two council officers, the security guard forcibly took hold of the applicant and pulled him from under the truck. The applicant said, "sorry, sorry, it is not what you think. I was just scared". Shortly thereafter, the applicant was arrested by the police. 10 The applicant gave evidence on the sentence proceedings that he didn't remember much of what happened along George, Hunter or Pitt Streets and that he remembered almost nothing of what occurred at the scene of Rowe Street. The applicant was clearly well affected that night, having been drinking from Bondi to various places, having at least twelve full strength beers and bourbon and coke but I do not accept that he was as drunk as he made out. The applicant's recollection of the night varies, depending upon which version he gave, whether in his own evidence, whether in the record of interview or what he said to the security guard and the council officers. 11 It is submitted on the applicant's behalf that Twigg QC DCJ erred in his finding that intoxication exacerbated the offences. It is also further submitted in the written material that his Honour failed to give adequate weight to the evidence before him with regard to sentence and that the sentence is excessive, having regard to the fact of the applicant's previous good character; the fact that there was no likelihood of him offending again; the fact that there were no prior offences and that there was no premeditation. 12 It is further submitted that his Honour erred in placing the offence in the category of the most serious nature, tending towards the upper range of such crimes and in stating that the offences were of the worst type of rape or sexual intercourse without consent. It was also submitted that, in terms of special circumstances within the meaning of s 5(2) of the Sentencing Act 1989, his Honour failed to adequately determine a sufficiently lengthy additional term. 13 In terms of the subjective features, his Honour examined the applicant, who is clearly not unintelligent and was a hard-working person who achieved his Builder's Certificate at an early age and who then went into work and was a diligent worker. 14 The court in this matter is examining an appeal for what is not one offence but is a series of offences, although occupying a very short period of time. It is not clearly a case of the worst sort of premeditation, although there is obviously some premeditation in the following for some distance from George Street, Hunter Street, Pitt Street and into Rowe Street. However, each of these three offences carries 14 years imprisonment and although a total period of minimum and additional term of 9 years exceeds half of that maximum imprisonment, it must be remembered that the legislature has seen fit to prescribe these maximum penalties as an indication and indeed one factor to be taken into account when assessing penalty, as the Crown has put it. 15 The High Court in the Crown v Pearce (1998) 103 A Crim R 372 now obliges a sentencing Judge to take into account each of the offences and then look to the totality of the criminality involved and the objective seriousness involved. There is, of course, in the three separate counts, an element of artificiality in separating one from the other, however each of the offences has been found to have occurred, each of the offences was suffered by the complainant and each of the offences was subject to a plea of guilty. Clearly, in applying the principles of totality, a different result occurs than if there is a single offence of one particular nature. 16 In looking at his Honour's findings his Honour, in my view, erred in dealing with the question of intoxication. Although his Honour said he took intoxication into account, there is nothing in the particular nature of the intoxication except that there was obviously a conscious intention, for some time, for the applicant to get himself drunk. Nevertheless, there is nothing which obliged his Honour, in my view, to increase or for that matter, reduce the penalty as a result of that intoxication. Indeed, as the Crown has referred to the principle in Stephen Edward Fletcher-Jones (1994) 75 A Crim R at 381, the then Court of Criminal Appeal held that the comment in Graham John Coleman (1990) 47 A Crim R 306 at 327 was, in fact, misapplied. The comment made that intoxication can be an exacerbating or a mitigating factor is, of course, the case but there is nothing in the particular case here that obliged his Honour to increase the penalty as a result of that intoxication. 17 However, under Ss 5 and 6 of the Criminal Appeal Act 1912, the first duty of this court is to consider the question of leave under s 5(3) of the Criminal Appeal Act and if it determines to grant leave, to then look at the sentence itself and in this case the court has to determine that, if it is of the opinion that some other sentence, in this case less severe, is warranted in law and should have been passed, the court is obliged to quash the sentence and pass such other sentence in substitution therefor. 18 This penalty was imposed in terms of the legislative framework and in terms of the factors which counsel for the applicant Mr Chester-Porter Q.C. has ably argued: the lack of premeditation; the good character and the unlikelihood of offending again. It is put that it is not the most horrendous of cases within this category of offence and it must be remembered that, of course, the legislature has seen fit to create a series of separate offences and one cannot look, in looking at this offence itself, at some of the more serious aggravating factors which are covered by other parts of the statute. It is, however, necessary, in my view, to look effectively at the lack of contrition. 19 What was put to the complainant in the sentencing procedure was, in some terms, not offensively put by counsel but what was in fact put, for someone who was pleading guilty, must have been to her appallingly offensive. For an applicant whose memory of events varied considerably, he remembered enough or he was able to instruct his counsel and to indeed give evidence that suggested that, in some way, she was not averse to some form of contact of a familiar nature before the offences occurred. But the matter that concerns me, in terms of assessing whether a less severe penalty is warranted, is the fact that the offence was unprovoked and unwarranted. As his Honour found, the offence was brutal and offensive to the physical and psychological wellbeing of the victim, a matter of which his Honour could take proper notice. 20 The applicant told lies to exculpate himself. He ran from the scene, showing his guilt but in addition to the lack of contrition and balancing the objective seriousness of the offence against subjective factors, I consider that the court must take into account that in applying the principles of the High Court in Pearce, that it is necessary to not just look at this as one simple act of rape, that in fact his Honour was dealing with three offences and although within a relatively short space of time, nevertheless there were three offences and they were three offences of a different nature to which this complainant was subjected. 21 It is not good enough to treat it as just one offence and for that reason, it is my view that I do not consider that the sentencing task that his Honour undertook, notwithstanding that it is a high penalty in terms of the one count of the offence itself, warrants a less severe penalty when, in fact, the totality of the three offences which are the subject of his Honour's determination is taken into account. 22 I would therefore, in terms of this application, grant leave in terms of s 5 of the Criminal Appeal Act but would dismiss the appeal as I do not consider that a less severe penalty is warranted. 23 HULME J: I agree with the orders proposed by Dowd J and substantially with his Honour's reasons. I would add only this: That although, as his Honour indicated and I agree, the sentencing Judge did err in regarding alcohol as an aggravating feature, it is the applicant's commission of three offences particularly in the face of, as he admitted to the police, being asked several times not to do what he was doing and his persistence in ignoring those requests, that the sentence which was imposed was justified. 24 Accordingly, the orders of the court are, leave to appeal is granted but the appeal is dismissed. ********** 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.