R v Bruce [1999] NSWCCA 256

New South Wales Court of Criminal Appeal CITATION : R v Bruce [1999] NSWCCA 256 FILE NUMBER(S) : CCA 60302/99 HEARING DATE(S) : 20 August 1999 JUDGMENT DATE : 20 August 1999

PARTIES : Wayne BRUCE Regina (NSW) JUDGMENT OF : Wood CJ at CL; Simpson J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0240 LOWER COURT JUDICIAL OFFICER : Johnston DCJ

COUNSEL : R. Burgess P. Saidi for Corrective Services SOLICITORS : T.A. Murphy S.E. O'Connor CATCHWORDS : DECISION : Leave to appeal granted. Sentence below quashed. In lieu, sentenced to a minimum term of penal servitude of 8 months from 14 April 1988, to expire on 13 December 1998, and to an additional term of 2 years and six months to date from 14 December 1998.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

No 060302/99 WOOD CJ at CL SIMPSON J FRIDAY 20 AUGUST 1999

SHANE BRUCE aka WAYNE FIZZELL v REGINA

JUDGMENT

1 WOOD CJ: The applicant seeks leave to appeal against sentence imposed upon him by Johnson DCJ in the District Court following his plea of guilty to a count of indecent assault. This plea was accepted in full satisfaction of an indictment that additionally charged him with entering a dwelling house with intent to commit a felony, namely, an indecent assault. 2 The applicant was sentenced, on 9 November 1998, to a minimum term of imprisonment for eight months, backdated to 14 April 1998, to take into account his pre-sentence custody, and to an additional term of three years and four months. In taking this course, his Honour stated that the sentence, so far as it reflected a custodial component, would "fall into a category of perhaps extreme leniency or bordering on extreme leniency", but observed this could be "balanced by imposing a sentence where the ratio is such to take into account special circumstances". 3 Those special circumstances were not identified, but it may be assumed that they related to long standing problems that the applicant had with alcohol abuse, his chaotic lifestyle and the fact that he had spent the most part of the preceding 15 years in custody. 4 His Honour made orders that, on being released to parole, the applicant was to accept the supervision of the Probation and Parole Service for the period of the additional term, and was to obey all reasonable directions relating to counselling for the problems that had been identified. Additionally, his Honour specified as "conditions" of parole, that he was not to return to Barraba where the offence occurred and was not to approach his de facto wife, the victim of the offence, or another female. 5 His Honour noted that those orders were made upon the assumption - now held by this court to have been incorrect - in Jenkins 1999 NSW CCA 110, that he had the power under the Sentencing Act to do so. In the event of such power being absent, his Honour observed that they should stand as recommendations to the Parole Board. 6 It seems, from the approach taken, that his Honour anticipated that it was likely that the applicant would be released to parole within the near future, although not necessarily on 13 December 1998, since this was a date which was identified as the parole release eligibility date. Moreover, the transcript records that, in the course of the reasons for sentence, his Honour spoke of parole "if and when that event occurred" and later explained the sentence, as one designed to ensure that "he remembers that when he is released to parole eventually, he will have this hanging over his head". 7 The application for leave to appeal was filed out of time. Although the release eligibility date has passed, the applicant was refused parole when appearing before the Board on 25 January 1999 and again on 4 June 1999. At the last appearance the Board determined to review his parole in 12 months time. There has been no appeal from that decision which appears to have turned upon the Board's assessment that if released from custody, the applicant would not be able to adapt to a normal lawful community life, that he posed a risk of re-offending, that he needed further alcohol and drug counselling, and that he needed in particular to complete a violence prevention programme, before undertaking the CUBIT sex offender programme. Regrettably the violence prevent programme has been suspended, and will not be available until later this year. 8 I turn to facts concerning the offence which occurred on the evening of 15 March 1998. On that night, the complainant had gone to her bed with her de facto husband. She woke to find hands touching her body and breasts. When she realised it was not her husband fondling her, she called out. She then saw a man who had been wearing a baseball cap with a Coca Cola insignia, dive out the open bedroom window. The cap was found beneath the window. 9 Suspicion fell upon the applicant who was known to wear such a cap, and who was living at the time, with his de facto wife, in the adjoining premises. The applicant denied the offence when initially interviewed. He allowed police to take a blood sample. The DNA testing showed that the cap could have been worn by him, the relevant DNA profile being shared by approximately 1 in 1900 people within the community. 10 Although the applicant claimed no memory of the offence he eventually pleaded guilty. It was his account that he had drunk two bottles of sweet sherry and had taken three Rohypnol tablets that day. 11 As his Honour noted, the applicant had an appalling prior record comprising 35 prior entries dating back to 1970. They included convictions for assault, break and enter with intent, assault police, malicious injury and murder, but most relevantly, convictions in 1974 for rape, in 1985 for assault female, and in 1994, for enter building with intent to commit an indecent assault, an offence to which he was sentenced to a minimum term of three years and to an additional term of one year. At the time of the present offence he was on parole for this latter matter. That was a circumstance of very great aggravation. 12 His Honour expressly stated that he had taken into account the plea of guilty, the fact that it was offered at the first available opportunity that arose in relation to the lesser charge, and the fact that the connection of the applicant to the offence depended on the DNA evidence, as to which a legitimate evidentiary issue might well arise. 13 His Honour further expressly stated that he had accepted the applicant's remorse, his stated intention not to return to Barraba or to see again the people connected with the offence, and his intention to secure work within the cotton industry in the Narrabri district where he understood work was available for him. 14 The "conditions" which his Honour sought to impose in relation to parole were nugatory, as being beyond jurisdiction. They do not require correction. They remain available, however, in the alternative way suggested by his Honour, namely as recommendations upon which the Board could act as it saw fit. 15 I turn then to the principal submissions, namely that the total sentence of four years was excessive, given the early plea, the nature of the offence, the potential weakness in the prosecution case, and the applicant's institutionalisation. In particular, it was submitted that, since the maximum available sentence was one of penal servitude for five years, the most that can have been given to the plea was a reduction of 1/5, without any allowance being made for the applicant's problems with alcohol, the remorse he had displayed, the absence of personal resources due to his lengthy experience of imprisonment, and the difficulties he was having at the time of the offence concerning his relationship and arising out of the recent deaths of several family members. These matters were expressly and taken into account by his Honour, particularly when finding that special circumstances had been established. 16 It is not legitimate, in my view, to reappraise the sentence with the benefit of hindsight as to events before the Parole Board. The proper role of this Court, when dealing with an appeal against severity of sentence, is to determine, in the first instance, whether appellable error is demonstrated upon the information that was properly before the sentencing judge. Accordingly, the correctness of the decisions of the Parole Board is not a matter for determination by us. Those decisions remain subject to review if it can be shown, for example, that they were made upon the basis of information that was false, misleading or irrelevant (see section 23 of the Sentencing Act). 17 No occasion arises, in my view, to interfere with the minimum term which was appropriately noted by his Honour to have been particularly lenient. Although the facts did not place the offence in the most serious category of indecent assault, it did remain a very serious assault, particularly in the light of the applicant's history of sexual offending. Given its nature, the fact that it occurred while he was on parole, and his extensive history of imprisonment, it was appropriate that he be sentenced to a custodial sentence. It was also in his interests that he be given an extended additional term. 18 Although there is no occasion to interfere with the minimum term, I have reached the conclusion that his Honour fell into error in relation to the additional term. Having regard to the maximum available sentence, it appears to me that insufficient allowance was made for the plea of guilty and the remaining subjective circumstances. 19 It is accordingly necessary to undertake the sentencing exercise afresh. For that purpose, I have taken into account the affidavits placed before us. They disclose that the applicant has a place to reside with his mother upon his release, and that he is prepared to enter into a residential rehabilitation programme. They also disclose that his behaviour while in custody has been satisfactory. Additionally there is a report from Anita Duffy which shows that the applicant is an anxious depressive individual, who has failed to develop resources for dealing with adverse circumstances in his life. That, Ms Duffy suggests, is attributable to the long period he has spent in custody. In her opinion his needs in this respect call for his participation in a residential drug and alcohol rehabilitation programme. She properly observed that he needs close supervision and monitoring upon his release. 20 For the reasons mentioned, I am of the view that leave to appeal should be granted and the sentence below should quashed. In lieu, I propose that the applicant be sentenced to a minimum term of penal servitude of eight months to date from 14 April 1988, and to expire on 13 December 1998, and to an additional term of two years and six months to date from 14 December 1998. 21 SIMPSON J: I agree. 22 WOOD CJ: The order of the court will be as I have proposed.