R v Rush [2000] NSWCCA 134

New South Wales Court of Criminal Appeal

CITATION : R v Rush [2000] NSWCCA 134 FILE NUMBER(S) : CCA 60650/99 HEARING DATE(S) : 19 April 2000 JUDGMENT DATE : 1 May 2000

PARTIES : REGINA (Appellant) Shayne Charles RUSH (Respondent) JUDGMENT OF : Stein JA at 1; Dunford J at 2; Simpson J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0539 LOWER COURT JUDICIAL Job DCJ OFFICER :

COUNSEL : D C Frearson (Crown/Appellant) G P Craddock (Respondent) SOLICITORS : S E O'Connor (Crown/Appellant) T A Murray (Respondent)

Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Sentencing Act 1989 CASES CITED: Everett v R (1994) 181 CLR 295 R v Pearce [1998] 195 CLR 610 DECISION : In relation to counts 1 and 5, the Crown appeal be allowed and the sentences quashed In lieu thereof respondent resentenced - see paragraph 27; In relation to counts 2 and 3 - Crown appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60650/99

STEIN JA DUNFORD J SIMPSON J

Monday 1 May 2000

REGINA v Shayne Charles RUSH JUDGMENT

1 STEIN JA: I agree with Simpson J. 2 DUNFORD J: I agree with Simpson J.

SIMPSON J : 3 This is a Crown appeal asserting that sentences imposed on the respondent by Judge Job on 19 October 1999 were manifestly inadequate. 4 The respondent was charged with five offences. He entered pleas of guilty to two and was convicted of two after jury trial. A further offence, identified as count 4, was presented as an alternative to count 3 and, as he was convicted of the principal offence, did not result in a verdict. 5 The offences of which the respondent admitted his guilt were committed on 2 September 1998. The first charge, laid under s 90A of the Crimes Act 1900, was a charge of taking away a person for advantage. Where, as here, it is proved to the satisfaction of the sentencing judge that the victim was liberated without sustaining substantial injury, that offence carries a maximum penalty of penal servitude for fourteen years. The second charge was laid under s 61O(2). That section creates an offence of, inter alia, inciting a person under the age of ten years to an act of indecency and prescribes a maximum penalty of imprisonment for seven years. However, by some error, the indictment recorded that the charge was laid under s 61N(1), which creates a similar offence in relation to a person under the age of sixteen years, but prescribes a maximum penalty of imprisonment for two years. His Honour sentenced the respondent on that basis. The respondent having pleaded guilty to the indictment, and the error being attributable to the Crown alone, I do not think the Crown can now legitimately seek an increase in sentence on the basis of the error into which his Honour was led. In my opinion this Court ought proceed to deal with the matter, as did Judge Job, on the basis that the maximum penalty to which the respondent was exposed in relation to that offence was two years. Nevertheless, it was a most serious instance of its kind. The respondent could hardly have complained if he had been sentenced to the maximum available under s 61O(1). 6 The offences on which the respondent went to trial were committed on 9 September 1998. One was an offence on leading away with intent to hold for advantage, also brought under s 90A and also carrying a maximum penalty of penal servitude for fourteen years. The remaining offence was of aggravated sexual assault, the charge brought under s 61J(1), and carrying a maximum penalty of penal servitude for twenty years. In addition the respondent asked that five further offences be taken into account pursuant to s 21 of the Criminal Procedure Act 1986. These were three counts of stealing, one of goods in custody and, most significantly one of committing an act of indecency. 7 On the first count (the first s 90A count) Judge Job sentenced the respondent to penal servitude for two years and eight months, made up of a minimum term of two years and an additional term of eight months, to commence on 18 September 1998. On the second count (the act of indecency) he sentenced the respondent to a concurrent fixed term of imprisonment for eighteen months. 8 On the charge of aggravated sexual assault he sentenced the respondent to penal servitude for seven years, made up of a minimum term of four years and an additional term of three years, to be served cumulatively upon those already mentioned, and to commence at the expiration of the minimum term imposed in relation to the first count, that is, on 18 September 2000. On the second s 90A count he sentenced the respondent to a fixed term of eighteen months' penal servitude to be served concurrently with the sentence imposed for sexual assault, commencing on 18 September 2000. The overall total of the sentences imposed is therefore a term of nine years, made up of a minimum term of six years and an additional term of three years. In order to arrive at this result his Honour properly found special circumstances pursuant to s 5(2) of the Sentencing Act 1989, the reason being the disproportion that would have resulted by reason of the accumulation if the adjustment were not made. 9 It is convenient now to outline the circumstances of the offences. 10 In the afternoon of 2 September 1998 the respondent, then aged thirty-four years, was at the Wyong Shopping Plaza, in the vicinity of the toilet facilities. A nine year old girl, JP, was leaving the toilets. The respondent took her by the arm and clothing and dragged her to a landing on a nearby fire escape, where he ordered her to lie on her back with her hands behind her head and her legs wide apart. He put his head under her dress, telling her he was looking to see if she had been shoplifting lollies. He threatened her with violence if she reported his behaviour to the police. When the child stood up he pulled down his pants, exposing, and having the child squeeze, his penis until he ejaculated. When the child's grandmother came looking for her the respondent put his hand across the child's mouth, pushed her against a fence or railing causing a slight graze to her arm, and said "shut up you fucking bitch". The child was crying, shaking and very nervous. The act of taking the child from the toilet to the fire escape was the foundation for the s 90A charge; the exposure of his penis, and causing the child to squeeze it, was the foundation for the charge of inciting an act of indecency. 11 The respondent was identified by the child from photographs. There was other, extremely powerful, evidence available to the Crown to establish that the respondent was the perpetrator of the offences. This included DNA evidence, and also evidence linking him to the very distinctive T-shirt that he was wearing. His pleas of guilty, therefore, while worthy of recognition for their utilitarian value, could properly be given limited weight in reduction of sentence. They did not signify contrition. The sentencing judge expressly took them into account when passing sentence. 12 The remaining offences were committed one week later, in or near a shopping centre at Gosford. The victim of the first offence was a nineteen year old woman who was attempting to use an automatic teller machine. The respondent offered to assist, told her he was a policeman, and that he would take her to the office of the bank. He took her by the hand and tried to pull her down the mall. She resisted and the respondent headed towards the toilets under the library. This was the second s 90 offence. 13 A twelve year old girl, NP, was in a cubicle in the toilet. The respondent climbed over the partition and into the cubicle. The victim stood up, and the respondent ordered her to turn around, he pulled down her underwear and inserted his penis into her vagina from behind. He ejaculated and then wiped the victim with toilet paper. This was the foundation for the charge of aggravated sexual assault. 14 The indecency offence on the Form 1 was committed between July and September 1998. The victim again was a young girl, this time aged 10. The available facts are limited, but it is asserted that the respondent masturbated in front of the child. 15 The Crown does not point to any specific error in the sentencing process, contenting itself with the argument that the sentences themselves, in their totality, are manifestly inadequate having regard to the objective seriousness of the offences. 16 There was no evidence of subjective circumstances before the court. The respondent did not give evidence in the trial, or on sentence. There was no pre-sentence report, and the respondent's counsel told the court that he refused to be psychiatrically examined. All that was known of the respondent's individual circumstances was his lengthy criminal history, which contained a long list of offences of dishonesty and driving offences. There were no previous sexual offences. 17 For the reasons I have already mentioned the pleas of guilty could not reasonably be seen as evidence of contrition. Identification of the respondent as the perpetrator of the offences to which he pleaded guilty was very strong. Absence of contrition was confirmed in the respondent's response to the jury verdict. He declared the members of the jury to be "fucking maggots". 18 Counsel for the respondent relied upon three responses to the Crown assertion. Firstly, he relied upon well known principles relating to Crown appeals against sentence. Such an appeal will not be upheld unless error is shown: Everett v R (1994) 181 CLR 295. This principle, of course, is relevant not only to Crown appeals, but also to appeals against severity of sentence. It should not be read as meaning that error can never be shown unless some defect in reasoning, or misapprehension of fact or law, can be identified in the remarks on sentence. Error may be patent or it may be latent. Error may be demonstrated by manifest excessiveness, or manifest inadequacy, of sentence. 19 The respondent argued that no error of principle could be identified in the remarks on sentence, and so much has already been acknowledged. 20 On behalf of the respondent, counsel pointed to sentencing statistics provided by the Judicial Commission and sought to justify the relatively modest sentences that were imposed. The argument, as I understood it, was that the overall sentences fell within the range available to his Honour. 21 In relation to offences of aggravated sexual assault, the most serious of the charges faced by the respondent, the statistics show that 51 percent of offenders were sentenced to fixed or minimum terms of three and a half years or more. Only 20 percent were sentenced to fixed or minimum terms of six years or more. 22 Statistics, as is well known, have their uses and their limitations. Here it must be remembered that there were particular factors that made the sexual assault a very serious one. Not least of these was the victim's age. The invasion of the toilet cubicle must have been a particularly terrifying experience for her. And this offence cannot be seen in isolation. It was committed as the last in a series of deliberately degrading, predatory attacks on pre teenage girls. The attempt on the nineteen year old was undoubtedly intended to be of the same kind. The victim of that offence was of small stature who could easily have been taken for a younger woman or girl. 23 One thing that makes this case difficult is the complete absence of any explanation for the respondent's apparently sudden venture into sexual attacks on young girls or women. There were no mitigating factors which were available to be taken into account on sentence. In accordance with the decision of the High Court in R v Pearce [1998] 195 CLR 610, a sentence appropriate to the seriousness of each offence had to be imposed (and in this respect the statistics are of some assistance) but the question of totality also had to be kept in mind. 24 As I have indicated, the Crown's principal argument was that, having regard to the overall criminality, the total of the sentences to be served by the respondent is manifestly inadequate. A subsidiary argument was that, while it was proper for the sentencing judge to make an adjustment pursuant to s 5(2) of the Sentencing Act 1989, his discretion miscarried in that he increased the additional term at the expense of the minimum term to an unsustainable extent. The adjustment that was proper was an adjustment which accommodated the accumulation of sentences. As it turned out, the adjustment in fact made resulted in an additional term of 50 percent of the minimum term. The Crown's argument was, simply, that the adjustment should have restored the proportions envisaged in s 5(2). 25 I have come to the view that the Crown has made good its appeal. The sentences, taken both individually, and in total, were inadequate. They do not meet the criminality displayed by the respondent. In saying this I observe that the respondent's response to the jury's verdict is relevant only as to confirming that there was no contrition by reason of which the offences might have been mitigated. He is plainly not to be additionally punished for that outburst. 26 Both counsel agreed that, should this Court proceed to re-sentence, re-sentencing should take place in accordance with the Sentencing Act 1989, and not in accordance with the new regime provided for by the Crimes (Sentencing Procedure) Act 1999. 27 After some hesitation, I have concluded that the sentences imposed in relation to counts 2 and 3 should not be varied. Count 2, in particular, although a very serious instance of offences of its kind, could not be said to have been manifestly inadequate. The sentence imposed in respect of count 3, the second 90A offence, was low, but as any sentence imposed in respect of this offence will be of a fixed term and subsumed within the offence for the sentence for the s 61J offence, I would not vary that sentence. Accordingly, what I propose is that the Crown appeal be allowed in relation to counts 1 and 5, that is, the first s 90A offence, and the s 61 J(1) offence. I propose the following orders: