R v Thomas [2000] NSWCCA 265

New South Wales Court of Criminal Appeal

CITATION : R v Thomas [2000] NSWCCA 265 revised - 23/08/2000 FILE NUMBER(S) : CCA 60267/99 HEARING DATE(S) : 12/07/2000 JUDGMENT DATE : 12 July 2000

PARTIES : Regina v Vernon Mark Thomas JUDGMENT OF : James J at 1; Bell J at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/41/0187 LOWER COURT JUDICIAL Hosking DCJ OFFICER :

COUNSEL : TA Game SC - Applicant P Hock - Crown SOLICITORS : Harpers SE O'Connor

DECISION : Application refused.

IN THE COURT OF CRIMINAL APPEAL 60267/99 JAMES J BELL J

Wednesday 12 July 2000

REGINA v VERNON MARK THOMAS

JUDGMENT

1 JAMES J: Vernon Mark Thomas has applied for an extension of time in which to apply for leave to appeal and, if an extension of time is granted, for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Hosking as long ago as 15 August 1994. 2 After a trial before Judge Hosking and a jury the applicant was found guilty of three offences, namely (1), sexual intercourse without consent in circumstances of aggravation, an offence under s 61J of the Crimes Act, (2) indecent assault, an offence under s 61L of the Crimes Act and (3) common assault, an offence under s 61 of the Crimes Act. All three offences had been committed by the applicant on 24 May 1993 against the same victim in a cell which the applicant and the victim were sharing as prisoners at Goulburn Gaol. At the time the applicant was sentenced by Judge Hosking he was serving a sentence for armed robbery, the minimum term of which, being four and a half years, would expire on 1 July 1995. 3 On the charge of aggravated sexual intercourse without consent Judge Hosking sentenced the applicant to a sentence of penal servitude for seven years, consisting of a minimum term of five years three months, to date from 1 July 1995, and an additional term of one year nine months. On the other two charges, Judge Hosking imposed fixed terms of imprisonment of eighteen months and six months respectively, each to commence on 1 July 1995 and hence to be served concurrently with parts of the minimum term of the principal sentence. In his remarks on sentence, the sentencing judge referred only briefly to the objective facts of the offences. However, he noted that at the time the offences were committed the applicant was thirty eight years old and the victim was only twenty. His Honour said that the victim's account, which the jury must have accepted and which his Honour said that he himself accepted, was "a chilling and disturbing one". His Honour wondered, with justification,:- "how the penal system in a civilised country can require a twenty year old minor thief to be locked in a cell overnight with a major offender twice his age, with Hepatitis B and prior convictions for offences of violence and sexual assault raises grave questions indeed." 4 In his remarks on sentence his Honour noted that the applicant had a criminal history running into five pages of computer printout. His Honour found that the applicant showed no remorse. His Honour referred to a report by a psychiatrist, Dr Koller, who expressed the opinion that the applicant has a personality that has been ravaged by his early deprived childhood. 5 As regards special circumstances under s 5(2) of the Sentencing Act, his Honour said in his remarks on sentence:- "No submissions have been made by counsel in regard to the existence of special circumstances. There is simply no acceptable evidence before me that the prisoner would benefit from a longer than usual period under supervision on release." 6 As I have already noted, the applicant was sentenced by Judge Hosking on 15 August 1994. The jury had returned their verdicts of guilty on 11 May 1994. No appeal or application of any sort was lodged by the applicant until 24 May 1999, when a notice of application for an extension of time in which to appeal and a notice of appeal, which was expressed to be an appeal against conviction only, were lodged. The ground on which an extension of time was sought was stated to be that it had not become apparent until February 1999 that the applicant was medically unable to sustain an erection. 7 On 12 May 2000 a notice of abandonment of the appeal against conviction was lodged. However, in the notice of abandonment it was stated that the applicant wished to proceed with an appeal against sentence. 8 In counsel for the applicant's written submissions dated 21 June 2000 it was stated that an affidavit would be filed explaining the delay in applying for leave to appeal. In an affidavit which was filed shortly before this hearing, the applicant said that Legal Aid had declined to fund the obtaining of specialist medical reports which counsel had advised would be required for the proposed appeal against conviction. In his advice counsel said that there would be possible grounds for an appeal against sentence. 9 The submissions which have been put by senior counsel for the applicant in support of an application for leave to appeal against sentence are that the sentencing judge did not have regard to the principle of totality in sentencing the applicant and that the sentencing judge erred in not finding that there were special circumstances within s 5(2) of the Sentencing Act and in not setting a sentence in which the additional term exceeded one-third of the minimum term. 10 It was accepted by counsel that in his remarks on sentence his Honour had adverted to special circumstances. However, it was submitted his Honour had only referred to whether the applicant would benefit from a longer than usual period under supervision on release and had not referred to the circumstance that the sentence his Honour was imposing would be cumulative on the sentence the applicant was already serving. Counsel referred to authorities such as R v Simpson (1992) 61ACrimR 58. It was pointed out that when the sentence imposed by his Honour was accumulated upon the minimum term of four and a half years under the previous sentence, the applicant would be serving minimum terms totalling nine years nine months, with an additional term of only one year nine months. 11 As regards his Honour's finding that there was no acceptable evidence before him that the applicant would benefit from a longer than usual period under supervision upon release, counsel referred to a passage in the report by Dr Koller in which Dr Koller said "He (that is the applicant) really requires further psychiatric observation, counselling and attempt to form some sort of therapeutic relationship or alliance. Whether he could tolerate this remains to be seen." 12 In my opinion, the Court should not make an order extending the time in which to apply for leave to appeal against sentence. As I have already remarked, no appeal or application of any sort was lodged until almost five years after the applicant was convicted and sentenced. I do not consider that any satisfactory explanation has been provided for the delay in applying for leave to appeal and particularly for the delay which occurred between the date of sentencing and early 1999. I note that the applicant has had access to legal advice in relation to a claim for damages for personal injuries which he allegedly suffered in January 1993 and which was heard in the District Court in February 1999 and which is the subject of an appeal to the Court of Appeal. The sentencing judge was clearly aware of the existing sentence and I would not infer that he was unmindful of the principle of totality. 13 In the present case, having regard to the objective gravity of the principal offence and the need which his Honour rightly felt to satisfy the requirements of general deterrence and individual deterrence, it was necessary for his Honour to impose a substantial minimum term for the principal offence which would adequately reflect its objective gravity. 14 As I have noted, counsel submitted that his Honour should have set a proportionally longer additional term than his Honour did. However, the minimum term of the principal sentence which was imposed by his Honour will expire on 30 September 2000, that is in only two and a half months' time. As from that date the applicant will become eligible for release on parole. 15 A submission was put that the Parole Board might look more favourably on making a parole order, if this Court was to reduce the minimum term under the principal sentence imposed by his Honour. I do not consider that the Court should proceed on any assumption as to the likely conduct of the Parole Board. 16 The sentencing judge clearly took into account Dr Koller's report and his Honour's finding that there was no acceptable evidence before him that the applicant would benefit from a longer than usual period of supervision on release was a finding which was open to his Honour on the whole of the evidence, including indeed the passage in Dr Koller's report to which we were specifically referred. 17 The principle enunciated in Simpson's case does not have the consequence that in every case where a sentence is imposed which is to be served cumulatively on a sentence previously imposed the relationship between the minimum term and the additional term in the sentence to be imposed should be varied, so that the additional term in the sentence to be imposed is one-third or roughly one-third of the total minimum terms. In the present case, under the sentences imposed by his Honour, there will be an additional term of almost two years. 18 Even if this Court were to grant the application for an extension of time and were to allow the appeal against sentence, the additional time during which the applicant might be at liberty on parole would be extended by only a very short period.