R v Peterson [2000] NSWCCA 47

New South Wales Court of Criminal Appeal

CITATION : R v Peterson [2000] NSWCCA 47 FILE NUMBER(S) : CCA 60350/99 HEARING DATE(S) : Friday 25 February 2000 JUDGMENT DATE : 25 February 2000

PARTIES : Regina v Jason Andrew Peterson JUDGMENT OF : Grove J at 1; Smart AJ at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0222 LOWER COURT JUDICIAL Mahoney DCJ OFFICER :

COUNSEL : P.G. Berman (Crown) S.J. Odgers (Appellant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Appellant) CATCHWORDS : Criminal Law and Procedure - Sentence - Sexual Intercourse Without Consent - Malicious Wounding and Robbery of Victim - Significance of Violence to Individual Counts - Aboriginal Offender - Status of History Given to Psychiatrist as Evidence - No Lesser Sentence Warranted CASES CITED: Ramsey v Watson 118 CLR 642 R v Fernando 76 A Crim R 58 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60350/99

GROVE J SMART AJ

Friday 25 February 2000

REGINA v JASON ANDREW PETERSON

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentences imposed by Mahoney DCJ in the Parramatta District Court. 2 The applicant appeared before his Honour and pleaded guilty to three counts in an indictment, those counts respectively charging sexual intercourse without consent contrary to s 61I of the Crimes Act, malicious wounding and stealing from the person. All of these offences involved the same victim in circumstances to which I will turn shortly. 3 His Honour imposed a total sentence of nine years penal servitude which he divided into Minimum and Additional terms of six years and nine months and two years and three months, applying the formula set out in s 5(2) of the Sentencing Act. 4 It is convenient to mention at the outset that the applicant appeared for sentence with the handicap of a very considerable prior record; although as counsel has pointed out many of the offences of violence appeared to have been committed in a domestic context. It nevertheless must be observed that the applicant has a very substantial record for offences of that character. 5 The applicant was born on 6 April 1970. I turn to a brief recitation of the facts concerning the offences. These are set out in more detail in the remarks on sentence of Mahoney DCJ. The victim was a young woman who was attending a nightclub which is operated in a hotel at Pennant Hills. She consumed a considerable amount of intoxicating liquor. She left the nightclub initially with a friend; it appears that the security personnel declined to allow her to re-enter the nightclub because she appeared to have been affected by her prior ingestion of intoxicating liquor. 6 After some discussion with her friend she decided to walk about in order to see if she could "sober up", as she put it, when asked about the matter later. The applicant was nearby, he too had been partaking of intoxicating liquor. It suffices for present purposes to note that in the vicinity of the pedestrian rail crossing bridge at Pennant Hills the applicant approached and later attacked the victim. 7 He had forcible sexual intercourse with her and in the progress of his crime he stripped the victim and took her clothes. It may also be mentioned that he took her purse. The taking of the clothes and purse founding the third count in the indictment. At a point of the events the victim was wounded as a result of the attack by the applicant thus giving rise to the count of malicious wounding. 8 It can be noted that persons appear to have been passing in the vicinity but they did not immediately realise what was going on, Ultimately the applicant decamped leaving his victim naked and unconscious in this public place near the railway station. 9 The applicant drove himself to the home of a friend which was a considerable distance from Pennant Hills. The statement of that friend shows that when he was awoken by the applicant a conversation took place between them and amongst other things the applicant said to him: "I asked her for a cigarette. I sat next to her and started to talk to her and I started kissing her and she refused and she started verbally abusing me. I just snapped, king-hit her, knocked her flying. She was unconscious so I just ripped her clothes off her and started raping her." 10 The friend said, with a certain amount of prescience, "you have done it this time". The applicant indicated that he was going to flee but he was ultimately arrested hiding in a wardrobe. He was located by a police dog. 11 The applicant broadly raised three matters in support of his appeal. These matters arise out of errors said to be detectable in the remarks on sentence of the learned sentencing judge. 12 The first proposition related to the error said to be made by his Honour taking into account the violence (the nature of which was specified in connection with the second count of malicious wounding) when describing the events that he found had taken place concerning the sexual intercourse. 13 It was pointed out that the charge under s 61I of the Crimes Act involved sexual intercourse without consent in distinction from other provisions in that Act which prescribe elevated penalties for aggravated offences of that nature. A circumstance of aggravation capable of being charged under one of those other sections would involve the violence and the doing of harm such as occurred in relation to the offence of malicious wounding. 14 It was contended on behalf of the applicant that in the light of the counts in the indictment to which pleas were offered and accepted it should be concluded that, despite what the applicant said to his friend, any violence meted upon the victim should be regarded as having been caused after the sexual intercourse had taken place. It was pointed out that it may be a circumstance of aggravation to accompany a forcible act of sexual intercourse with violence at the time or shortly before or after such offences. 15 No doubt his Honour was faced with a difficult sentencing exercise bearing in mind the specifics of the counts in the indictment. It seems to me that he was properly entitled to look at the overall picture of what occurred. By the same token the applicant had an entitlement to be dealt with in respect of only the counts and specifically the ingredients of the counts charged against him. 16 However, given the facts which I have shortly sketched and the pleas of guilty to both malicious wounding and sexual intercourse without consent, it seems to me that it can be perceived that in any event accumulation would lead to a result no different from that which his Honour reached. 17 If there was error in his Honour taking into account the matters of violence on the first count it seems to me that it is not a matter which provokes the exercise of jurisdiction by this court bearing in mind a conclusion to which I have come, that in any event no lesser sentence than that passed by his Honour was warranted. 18 I turn, however, to the second matter specifically raised on behalf of the appellant. In the course of his remarks on sentence his Honour made reference to Ramsey v Watson 118 CLR 642. His Honour recited from that authority the proposition that hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. In short in that case the court was dealing with histories given by patients to medical practitioners. 19 The advent of the Evidence Act 1995 has had the consequence that those histories become admissible as evidence of facts and to the extent that it might be thought that his Honour was ruling the evidence of the history given to Dr Westmore in the instant case inadmissible, he was in my respectful opinion, incorrect. Nevertheless his Honour added that in any event the history given to Dr Westmore did not in his opinion advance the prisoner's case at all and that the history should not be accepted. To my mind that indicates that his Honour had not ruled the material inadmissible but was rather rejecting its content. That rejection was within his discretion. 20 The third matter advanced on behalf of the applicant related to some remarks which his Honour passed concerning R v Fernando 76 A Crim R 58. That well-known authority deals with the considerations which are applicable to persons of aboriginal background. There is no need for present purposes to recapitulate its content. 21 Mahoney DCJ said: "It seems to me that whatever benefits might have accrued to this offender out of Fernando's case have long since been lost to him". 22 With respect to his Honour the matters canvassed in Fernando's case relate to the disadvantages that are frequently found to be borne by people of aboriginal background. It does not to my mind therefore give rise to something which is available at some time and expires; it is something which is always relevant to be taken into account where a person has that background. 23 Whether it is of any particular weight in a given case is of course a matter for a sentencing judge. But in so far as his Honour's remarks suggested that there is some sort of expiry upon the benefit to be had from the application of the principles expounded in that case, I disagree. 24 A fourth matter that was raised concerned his Honour's declining to find special circumstances so as to alter the proportions of the total sentence differently from the formula set out in s 5(2) of the Sentencing Act. 25 It suffices in my opinion to say that his Honour had discretion to make the findings which he did and they have not been demonstrated to be wrong. I would not interfere with his Honour's conclusion in this regard. 26 I return, however, to the matter which I have previously stated, namely that given the circumstances of these crimes I am of the view that there is no sentence other than that imposed by his Honour, whether greater or lesser, which should be imposed. 27 The jurisdiction of this court is specific in relation to substitution of sentence and in my view this is a case where even if the matters to which I have adverted be characterized as errors, there is no warrant for this court to intervene. 28 I propose the following orders: that the application for leave to appeal against sentence be granted, but the appeal be dismissed. 29 SMART AJ: There is considerable substance in the first three challenges to his Honour's remarks on sentence. However, the overall sentence was correct, even if some of the reasons were erroneous. 30 I agree with the orders proposed by Grove J. 31 GROVE J: The orders of the court therefore will be as I proposed. **********