Regina v Paul [2000] NSWCCA 117

New South Wales Court of Criminal Appeal

CITATION : Regina v Paul [2000] NSWCCA 117 FILE NUMBER(S) : CCA 60124/99 HEARING DATE(S) : 17 March 2000 JUDGMENT DATE : 17 March 2000

PARTIES : REGINA v Christopher Peter PAUL JUDGMENT OF : Simpson J at 1; Barr J at 16

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0135 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : R Burgess - Applicant/Appellant P G Berman - Crown/Respondent SOLICITORS : T A Murphy - Applicant/Appellant S E O'Connor - Crown/Respondent

LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 DECISION : Leave to appeal granted - appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60124/99

SIMPSON J BARR J

Friday 17 March 2000

R v Christopher Peter PAUL Judgment

SIMPSON J : 1 On 8 February 1999 the applicant entered a plea of guilty to a charge of attempted aggravated sexual assault, a charge brought pursuant to s 61J of the Crimes Act 1900. By s 344A(1) of the same Act a sentence equal to the sentence applicable to the substantive offence, that is a maximum sentence of penal servitude for twenty years, is prescribed. 2 Ducker DCJ sentenced the applicant to penal servitude for ten years divided conventionally into a minimum term of seven and a half years and an additional term of two and a half years. The applicant seeks leave to appeal against the severity of the sentence imposed. 3 The offence was committed during the morning of 30 May 1998, a Saturday. The victim was a thirteen year old girl who was walking on a footpath in a country town when she encountered the applicant. He grabbed her by the shoulders, punched her to the head four times with a clenched fist, demanded money, threw her onto the ground, removed her shorts, removed his own pants and attempted sexual intercourse with her. The victim was crying, pleading with him not to kill her and was fearful, not only of the level of violence displayed, but also of the potential consequences either of pregnancy or of serious disease, as a result. 4 The applicant was initially charged with aggravated sexual assault. At the first indication the Crown would accept a plea to attempt aggravated sexual assault, he agreed so to plead. Having regard to the plea entered, he had to be sentenced on the basis that penetration had not been effected. 5 The applicant was born on 19 December 1948. He was forty-nine years of age at the time of the offence. He had an extensive criminal record which commenced in 1962 when he was thirteen years of age and continued until 1998. Significantly, he was, in September 1985, convicted in Victoria on a charge of aggravated rape. That was charged in conjunction with charges of aggravated burglary and false imprisonment and using a firearm to prevent arrest. The applicant told a psychologist, Mr Peter Briggs, that the offence occurred when he was planning with an accomplice to rob a heroin dealer; they encountered a female occupant in the heroin dealer's house and both the applicant and his accomplice sexually assaulted her. His record shows that he was sentenced to nine years imprisonment on that charge, but another sentence was to be served cumulatively and this resulted in a total sentence which included a minimum term of ten years. 6 The psychologist's report, which was prepared by Mr Briggs, disclosed that the applicant is addicted to heroin, and had been so addicted for thirty years. This undoubtedly explains his criminal conduct over the years. He had made some attempt to withdraw from heroin and, while in custody, had commenced a methadone programme, but had, apparently, relapsed and had commenced to use heroin up to two days prior to the offence. Two days earlier he claimed to have ceased using heroin but to have taken about eighteen Rohypnol tablets, including two or three just an hour prior to the offence. The psychologist viewed a video tape of the interview conducted by police with the applicant and considered that that video tended to confirm the applicant's claim that he was drug affected at the time. 7 Mr Briggs described the applicant as "a chronically dysfunctional person", this being both a subjective analysis of his lifestyle and also his conclusion from psychological testing. Importantly, Mr Briggs was of the view that the prospect of the applicant committing further crimes remained high for as long as he remained drug dependent. 8 Sentencing the applicant Ducker DCJ expressly disclaimed any element of preventative detention despite having referred to the applicant as a danger to the public, and no point is taken in this respect in the application for leave to appeal. 9 The principal ground of the application is simply that reference to the sentencing statistics in relation to offences of this character shows that the sentence was manifestly excessive; a secondary argument is that his Honour was in error in failing to find special circumstances justifying departure from the statutory ratio contained in s 5(2) of the Sentencing Act 1989. 10 In relation to the first matter, counsel for the applicant relied upon evidence showing that the offence was not premeditated but was, rather, an impulsive act committed at a time when the applicant was drug affected. She pointed also to some other feature of the evidence including evidence that the applicant offered to supply blood samples in response to the victim's concerns about disease. This, it was argued, showed a level of genuine remorse and that at a relatively early time. Another matter was that also although the victim said that she had been frightened that she would be killed, the applicant told her that was not his intention. 11 The sentencing statistics to which reference was made do indeed show that in relation to offences of attempted aggravated sexual assault (as distinct from the completed offence) the sentence imposed (by a narrow margin) exceeds any other recorded sentence. The longest term for an attempt shown by the statistics is a sentence of a total term of nine years. The longest minimum or fixed term disclosed is one of seven years. 12 Sentences in relation to the completed offence show a different pattern, but having regard to the charge to which the Crown accepted a plea of guilty, these must be treated with some caution. Ducker DCJ was of the view that the offence was of the most serious of its kind. In his words, the offence "is towards, but not right at, the top of the scale". He went on to say that on a 10 point scale he would put the seriousness of this offence as around 6.5 to 7 points, specifically in relation to attempt. 13 This assessment is, if anything, favourable to the applicant. Certainly his Honour cannot have been said to have overstated the seriousness of the offence. The victim was a thirteen year old child, walking on a public street in a country town on a Saturday morning. There was a considerable degree of actual violence associated with the offence, and the child was frightened for her life and remained frightened for her health. While it must be borne in mind the applicant pleaded guilty to an offence of attempt as distinct from a completed offence, it is proper to take all the circumstances of the offence into account, including that, on the evidence, the offence was very nearly completed. 14 Another matter that has to be weighed in the scales is that this was not the first offence of its kind committed by the applicant. In the circumstances I have not been persuaded that the sentence was excessive, nor am I persuaded that any error is demonstrated in his Honour's refusal to find special circumstances. In saying that, I am conscious that counsel pointed to periods in the applicant's history in which he was abstinent from the use of drugs, these periods apparently coinciding with abstinence from crime. The applicant's history really gives no reason to believe that an extended period of supervision will effect his rehabilitation. He will in any event on the sentence imposed have two and a half years of supervision assuming he is released at the end of the minimum term. 15 Accordingly, I would grant leave to appeal but dismiss the appeal.