New South Wales Court of Criminal Appeal CITATION : R v Sanderson [2000] NSWCCA 512 FILE NUMBER(S) : CCA 60470/00 HEARING DATE(S) : 26/10/00 JUDGMENT DATE : 8 December 2000 PARTIES : Regina Aaron Patrick Sanderson JUDGMENT OF : Sheller JA at 1; James J at 9; Dowd J at 10 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0092 LOWER COURT JUDICIAL Taylor DCJ OFFICER : COUNSEL : Mr RD Cogswell SC- Crown Mr JS Andrews- Respondent SOLICITORS : SE O'Connor- Crown McIntosh McPhillamy & Co- Respondent CATCHWORDS : Crown appeal - Break and enter with intent to inflict grievous bodily harm - Pre-planning - Woman in safety of her home - Manifest inadequacy - Re-sentenced Criminal Appeal Act 1912 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Baker [2000] NSWCCA 85. R v Preston (Unreported, NSWCCA, 9/4/97, Handley JA, Dunford and Smart JJ). R v Pham and Ly (1991) 55 A Crim R 128. R v Osenkowski (1982) 5 A Crim R 394. CASES CITED: Dinsdale v The Queen [2000] HCA 54. R v Coleman (1990) 47 A Crin R 306. R v Geddes (1936) 36 SRNSW 554. Veen v The Queen (No 2) (1988) 164 CLR 465. R v Dodd (1991) 57 A Crim R 349. Lowndes v The Queen (1999) 195 CLR 665. DECISION : 1. Appeal allowed; 2. Respondent is re-sentenced to six years imprisonment, with a non-parole period of three years. IN THE COURT OF CRIMINAL APPEAL SHELLER JA BRUCE JAMES J DOWD J 60470/00 8 December 2000 REGINA v AARON PATRICK SANDERSON JUDGMENT 1 SHELLER JA: On 23 May 2000 the respondent was arraigned on and pleaded guilty to a charge of maliciously inflicting actual bodily harm with intent to have sexual intercourse (s61K(a) of the Crimes Act 1900). The maximum penalty is imprisonment for twenty years. The sentence imposed on 25 May 2000 by his Honour Judge Taylor at the Bathurst District Court was a term of imprisonment of four years with a non-parole period of two years. 2 As Dowd J has made plain in his reasons for judgment the offence was both deliberate and carefully planned. After injecting himself with amphetamines the respondent armed himself with a ratchet and screwdriver. After removing his clothes the respondent came upon his victim, a 46 year old single woman, sleeping in the bedroom of her house where she lived alone. The respondent jumped on top of the victim, placed a hand over her mouth and repeatedly struck her over the head with the ratchet. Fortunately, the victim was able to fight him off and disarm him. As a result of the attack the victim had severe bruising to the left side of her face and was left with a permanent facial scar and the after effects of severe shock and grief. Her life has been permanently changed by the physical and psychological injury the respondent caused her. 3 In R v Preston (unreported) NSWCCA 9 April 1997, Dunford J, with whom Handley JA and Smart J agreed, said: "Sexual assault is a serious offence at any time, but its criminality is aggravated when it is committed against a defenceless woman in the sanctity of her own home." 4 In R v Coleman (1990) 47 A CrimR 306 at 327 Hunt J, with whom Finlay and Allen JJ agreed, said that intoxication by a self administered drug can be an aggravating factor in a crime. 5 At the time of the offence the respondent was 19 years of age. In R v Pham and Ly (1991) 55 A CrimR 128 at 135, Lee CJ at CL said: "It is true that courts must refrain from sending young persons to prison unless that course is necessary, but the gravity of the crime and the fact that it is a crime of a violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes." 6 It is well accepted that, making due allowances for all relevant considerations, there should be a reasonable proportionality between the sentence imposed and the circumstances of the crime; see, for example, R v Geddes (1936) 36 SRNSW 554 at 556; Veen v The Queen (No 2 ) (1988) 164 CLR 465 at 473 and R v Dodd (1991) 57 A CrimR 349 at 354. In the last of these cases at 354 the Court of Criminal Appeal (Gleeson CJ, Lee CJ at CL and Hunt J) referred to the risk that the attention given to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case. 7 An appellate Court does not substitute its own opinion for that of the sentencing Judge merely because the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion; Lowndes v The Queen (1999) 195 CLR 665 at 671-2. However, in the present case, in my opinion, making allowances for all relevant considerations, there was no reasonable proportionality between the sentence Judge Taylor imposed and the circumstances and seriousness of the crime. The disparity demonstrates error in the exercise of the sentencing discretion. In the result the sentence was manifestly inadequate. 8 I agree that the appeal should be allowed, the sentence quashed and the respondent re-sentenced by this Court. I agree with the substitute sentence proposed by Dowd J taking account of the subjective features to which the sentencing Judge and Dowd J have referred and the principles of double jeopardy. 9 BRUCE JAMES J: I agree with both Sheller JA and Dowd J. 10 DOWD J: This an appeal by the Director of Public Prosecutions in accordance with s5D of the Criminal Appeal Act 1912, against the sentence imposed on the respondent, Aaron Patrick Sanderson, by Taylor DCJ at the Bathurst District Court on 25 May 2000. 11 On 28 May 1999, the respondent was committed for trial in respect of a charge of break and enter a dwelling and commit a felony, namely, maliciously inflict actual bodily harm with intent to have sexual intercourse: s112(2)/61K(a) Crimes Act 1900. The respondent, on arraignment before Taylor DCJ, pleaded guilty to an indictment containing one count of maliciously inflict actual bodily harm with intent to have sexual intercourse, in breach s61K of the Crimes Act, the maximum penalty being twenty years imprisonment. 12 On 25 May 2000, His Honour convicted and sentenced the respondent to 4 years penal servitude, commencing from 24 May 2000, with a non-parole period of two years. 13 On 5 June 2000, a letter was faxed advising the respondent that the Director of Public Prosecutions was considering an appeal against the inadequacy of the sentence imposed upon him. On 21 July, the Director of Public Prosecutions filed a Notice of Appeal to the Court of Criminal Appeal, this notice having been served upon the respondent on 27 July 2000. Facts 14 On the afternoon of 12 January 1999, the respondent, in the company of a friend, purchased amphetamines. After injecting the drug, the respondent discussed with the friend its effects and his desire to commit "devious" acts. Such acts included attacking people, stealing cars, breaking into a house and tying up people and committing sexual acts. 15 After considerable discussion, the respondent drove his friend to Sutton St, Bathurst. The respondent then drove by himself to a dirt road which was located off Lavelle Street. The respondent parked his vehicle in a position where it could not be seen. He removed a ratchet, a screwdriver and a pair of surgical gloves from the vehicle and proceeded to the victim's backyard. The respondent removed his shoes before entering the victim's premises through an open window. 16 The respondent walked through various rooms in the house searching for items to steal. He removed a mobile telephone from a car that was parked in the garage. He then continued searching the house, and proceeded to the bedroom where the victim, a 46 year old single woman, was sleeping. 17 After removing his clothing, the respondent entered the victim's bedroom carrying the ratchet in his right hand. He jumped on top of the victim, placing a hand over her mouth and repeatedly struck her over the head with the ratchet. The female victim managed to fight off the respondent by biting him on the finger and disarming him of the ratchet. 18 The respondent fled the house, gathering some of his clothing as he left. However, as he made his way back to his vehicle, the respondent dropped a number of items, including a pair of prescription spectacles and a paper bag containing condoms. 19 On 22 January 1999, the respondent was interviewed by police. He denied having any knowledge of the attack. The respondent gave an account of his movements on that day, including how he had come to lose his spectacles. Following the interview, the respondent accompanied the police to his home where he produced a toolbox from his vehicle. Missing from the toolbox was a ratchet and screwdriver. 20 Later on the same day, subsequent to police carrying out further inquiries, the respondent was arrested. In a further record of interview he made full admissions, including that he had entered the victim's premises, that he had stolen property, and that he had assaulted her with a ratchet so as to silence her and sexually assault her. 21 As a result of the attack, the victim suffered severe bruising to the left side of her face, and has been left with a permanent facial scar. 22 The Victim's Impact Statement showed the victim to be initially acutely stressed and in severe shock, particularly because it happened in her own home. She demonstrated for some time an inability to leave the house, incapacity to sleep. She now grieves for the person she was prior to the assault. She is now fearful, dependent, and a burden to those who have to "baby-sit" her. Her condition now is one of hypervigilance in every aspect of her life. 23 I accept that the victim's life has been permanently changed by the extent of the injuries, physical and psychological, which she sustained as a result of the respondent's actions. She suffers from periodic anxiety attacks, and will bear the scar on her face from the beating with the ratchet. She has been diagnosed with a multiple post traumatic stress disorder. Prisoner's Subjective Features 24 The prisoner had a strong subjective case, as was acknowledged by Taylor DCJ. A former girlfriend of the respondent, and her mother, gave evidence of good character. The respondent was 19 years of age when he committed the offence; 21 when he stood for sentence. He was unemployed and was involved in a de-facto relationship, which had resulted in the birth of a child. His Honour noted that he only had one or two minor prior matters which had not involved violence or a custodial sentence. 25 The respondent's mother to whom he was close, died in 1996, and he then turned to a number of drugs to a greater extent than he had prior to her death. The psychiatric evidence admitted before the learned sentencing judge said that the mother's death led to a significant depressive state, aggravated by feelings of guilt and blame. Objective Features of the Offence 26 The Crown frankly acknowledges in this appeal that it is within the category of appeal that no specific error can be identified in the sentencing process, other than that the examination of the sentence imposed is a conclusion that some error of principle must have occurred, and the appellant acknowledges that successful Crown appeals should be rare, as pointed out by Spigelman CJ in R v Baker [2000] NSWCCA 85. The appellant nonetheless submits that the sentence was manifestly inadequate when looking at the objective seriousness of the offence, and thus failed to reflect a reasonable proportion to the gravity of the offence. 27 The objective features on which the appellant relies include the crime involved, the degree of specific premeditation, the respondent armed himself, and to further the purposes of his criminal enterprise. The respondent had articulated the deviate things that he had proposed to do, including attacking people, and sexual attacks. The case was unusual in that the plan had been previously articulated to a friend. 28 The other objective factors include parking some distance from the house; that he wore gloves; that he undressed himself before he entered the victim's room; and that he was armed. 29 The impact on the victim as set out above was severe and long term. The self-administered drug as an aggravating factor was acknowledged by the learned sentencing judge, and was quite correctly treated as an aggravating factor. 30 The appellant relied on the fact that the offence was committed against the victim in her own home, lying in her own bed whilst she was asleep, relying on R v Preston (Unreported, NSWCCA, 9/4/97, Handley JA, Dunford and Smart JJ). Grounds of Appeal 31 The Crown in this appeal conceded that His Honour was entitled to give weight to the various subjective factors, and that particular weight should be placed on the age of the respondent. The Crown however referred the Court to the passage in R v Pham and Ly (1991) 55 A Crim R 128, per Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed) at 135: "It is true that courts must refrain from sending young persons to prison unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes". 32 It was submitted on behalf of the respondent that he now had support, and that the birth of his baby has had a positive effect on him. Taylor DCJ quite correctly said that his prospects of rehabilitation were good, and that considerable remorse had been shown. 33 In his remarks on sentence, His Honour accepted the objective seriousness of the case, and identified this case as an exceptional case, which would otherwise call for a more severe penalty. He considered that a longer sentence would deliver a crushing blow to the respondent. 34 I agree with the submission of the respondent that it is not inappropriate for a sentencing judge to find that a particular case is an exceptional one. 35 In R v Osenkowski (1982) 5 A Crim R 394, King CJ stated: "It is important that prosecution appeals should not be allowed to circumscribe the unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offenders life might lead to reform". And more recently in Dinsdale v The Queen [2000] HCA 54: "Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner, and in some cases the prisoner's family, or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in a particular case" per Kirby at para 68. 36 The sentencing judge acknowledged that the sentencing statistics were of limited assistance because of the relatively small number of cases, but His Honour considered that the sentence of four years was not inappropriate. 37 The plea to the lesser charge was in fact an early plea as it was not available to him at an earlier time than he pleaded, and thus should be given full benefit of the plea of guilty, particularly noting that cases involving a sexual component, the victim is spared the additional ordeal of giving evidence. 38 Notwithstanding the very strong subjective factors and the very thorough way in which His Honour went about the sentencing process, and His Honour's view that this is an exceptional case, I consider in the light of the serious objective factors which have been outlined above, and the devastating impact that this has had on the victim, but more importantly, the obvious conscious pre-planning with a view to commit acts that would degrade a human being, and the careful preparation that preceded an attack on a woman in the safety of her own home, that the ultimate penalty was manifestly inadequate and constituted an error on the part of His Honour. Notwithstanding the caution which should be exercised by the Court of Criminal Appeal, in considering Crown appeals, this is a case for intervention. 39 In the light however, of the subjective factors of the respondent, I agree with His Honour's finding that this case warranted a finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999, and that the proportion of non-parole period to the parole period was correct. 40 I consider that the proper sentence, taking into account the fact that there must be an exercise of appellate restraint, because of double jeopardy obliging this Court on sentencing to impose the minimum sentence that might have been imposed, that the proper sentence is a sentence of six years with a non-parole period of three years. That sentence is not an indication as to the sentence that the Court considers ought to have been imposed for such an offence, but is an expression of that appellate restraint. 41 I therefore propose the following orders: 1. Appeal allowed; 2. Quash the sentence imposed on 25 May 2000 by His Honour Judge Taylor; 3. The respondent is sentenced to six years imprisonment, to commence from 24 May 2000 and to conclude on 23 May 2006, with a non-parole period of three years, commencing on 24 May 2000 and concluding on 23 May 2003, from which time the respondent will be eligible to apply for parole. ***** 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. 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