New South Wales Court of Criminal Appeal CITATION : R v Carr [1999] NSWCCA 200 FILE NUMBER(S) : CCA 60733/98 HEARING DATE(S) : 23 July 1999 JUDGMENT DATE : 23 July 1999 PARTIES : Regina Dale Charles Carr (Appellant) JUDGMENT OF : Studdert J at 1; Simpson J at 39 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/61/0004; 98/61/0012 LOWER COURT JUDICIAL OFFICER : Armitage DCJ; Downs DCJ COUNSEL : C.K. Maxwell QC (Crown) A.C. Haesler (Appellant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Appellant) CATCHWORDS : ACTS CITED : Crimes Act Sentencing Act R v Winchester (1991) 58 A Crim R 345 at 350 R v Fernando (1992) 76 A Crim R 58 CASES CITED: Mill v The Queen (1988) 166 CLR 59 R v GDR (1994) 35 NSWLR 376 R v Simpson (1992) 61 A Crim R 58 DECISION : See para 38 IN THE COURT OF CRIMINAL APPEAL 60733/98 60074/99 STUDDERT J SIMPSON J Friday 23 July 1999 REGINA v DALE CHARLES CARR JUDGMENT 1 STUDDERT J: The applicant, Dale Charles Carr, seeks leave to appeal against sentences imposed upon him in the District Court by Judge Armitage and by Judge Downs QC. 2 On 13 October 1998 the applicant pleaded guilty before Judge Armitage to two offences charged on indictment: (i) attempting to steal a motor vehicle; (ii) assault occasioning actual bodily harm. 3 For those offences his Honour imposed a fixed term of imprisonment in relation to each matter commencing 30 December 1997 and expiring on the date of sentence, 13 October 1998. 4 On 16 November 1998 the applicant pleaded guilty to an offence of sexual intercourse without consent and Judge Downs imposed a sentence following conviction for that offence of four years, comprising a minimum term of three years and an additional term of one year. That sentence was fixed to commence on 14 October 1998, which of course followed immediately upon the expiration of the fixed term sentence imposed by Judge Armitage. 5 The offences that attracted the fixed term sentences were committed on 30 November 1993. On the evening of that day the applicant was one of several men who attempted to steal a motor vehicle which was parked near the swimming pool in Talbragar St, Dubbo. Entry to the car was forced and the offenders were in the process of endeavouring to start the vehicle when the owner arrived on the scene. A struggle ensued, punches were thrown and a rock was thrown at the car's owner. The victim of the assault sustained injuries consisting of a laceration behind the right ear and grazing to his shoulder. 6 The applicant was arrested followed the commission of these two offences but was granted bail and he breached his bail and failed to appear for his trial. He was eventually apprehended on a bench warrant on 30 December 1997 and he remained in custody from that time until Judge Armitage sentenced him. 7 The expressed reason for having failed to appear was that he was fearful that one of the co-offenders involved in the attempted theft of the motor vehicle, one Ian Hammond, would cause him physical violence. 8 The applicant gave evidence before Judge Armitage. He said that he had a drug problem at the time of these offences and had taken heroin and had been drinking heavily prior to the commission of the offences. He expressed his contrition for having assaulted the car's owner and he informed the court he was endeavouring to address his drug abuse. 9 The applicant also informed the judge that he changed his plea to guilty because the matter had been on his conscience for too long and the judge accepted what the applicant had to say, including what he said about his perception that Hammond's threats were very real. 10 The applicant was born on 4 October 1974 so that he was twenty-four years of age when sentenced. He is an Aboriginal and his mother told the judge he was the youngest of ten children. Mrs Carr informed the court she herself was an alcoholic who had not used alcohol in sixteen years. She described the applicant as a good son but she knew he had a heroin problem. 11 The applicant had a criminal history. It is convenient that I record here that history in full, although I bear in mind that these offences were committed in November 1993. There were offences of dishonesty committed as a juvenile for which he was placed on recognizances and then in May 1994 he was convicted of stealing. Six months later he was given a term of six months for break enter and steal but an appeal to the District Court was successful and in lieu of the sentence he was placed on a recognizance for a period of four years. 12 For the offence of assault occasioning actual bodily harm s 59 of the Crimes Act provides for a maximum penalty of penal servitude for five years. The offence of car stealing attracts a penalty under s 154AA of ten years penal servitude. So too does an attempt at car stealing by reason of s 344A of the Act. 13 It has been submitted on the applicant's behalf that the sentence imposed was excessive having regard to considerations of parity and what discount was appropriate in circumstances where had the applicant not pleaded guilty conviction was far from certain. The Court was referred to Winchester (1991) 58 A Crim R 345 at 350. 14 The day before the applicant pleaded guilty he was indicted with another man and at that time both men pleaded not guilty to the charges. The admissibility of photographic evidence was about to be argued when the applicant changed his plea. Judge Armitage commented on the timing of the change of plea in this passage in his remarks on sentence: "In my view and all the circumstances that was a remarkable change of heart, it must have been plain to him when he elected to do that that there was at least a real possibility that the evidence against both himself and Mr Ah-See would be rejected and that the Crown in effect would be left with no case. That I might add is precisely what did happen in respect of Clifford John Ah-See." 15 The other matter relied upon to support the submission that the sentence was too severe was the parity principle. Hammond, who it was submitted had a worse criminal record than the applicant, pleaded guilty and was given a recognizance. Judge Moore's sentencing remarks were placed before Judge Armitage. 16 However on the question of parity Hammond was only charged with attempting to steal the motor vehicle; he was not charged with assault occasioning actual bodily harm. A further point of distinction is what Judge Moore considered to be compelling subjective features in that Hammond was perceived to be a very grave suicide risk if he remained in custody. Hammond had spent several months in custody when granted the recognizance. 17 Counsel who appeared for the applicant urged upon Judge Armitage that it would be appropriate in all the circumstances to sentence the applicant in precisely the manner in which he was sentenced and the Crown did not contend otherwise. In effect then the sentence which was imposed was a sentence which the applicant asked through his counsel to have imposed. 18 The attitude of counsel did not relieve the learned judge from imposing an appropriate sentence but plainly trial counsel considered the sentence appropriate and I am not persuaded to the contrary, considering the 1993 offences in isolation. 19 However the subsequent sentence imposed by Judge Downs was expressed to commence immediately upon the expiration of the fixed term sentence and it becomes necessary to consider the consequences of this. 20 I turn to consider the later offence attracting the second sentence. 21 This offence occurred on 18 January 1997 at Warren. The applicant was staying at a boarding house and slept in a bed on an enclosed verandah at the back of the house. There was a second bed at the other end of that verandah. The applicant went to a hotel where he had a considerable amount to drink. The complainant was also at that hotel and at the time she was living with a man and four children by a former relationship. However on the evening of 18 January 1997 she was in the company of another male person at the hotel and when she left the hotel she returned with that person to the boarding house where the applicant was staying. The complainant eventually went to bed in the second verandah bed with that male person and had sexual intercourse with him. The man then left. Later, after the applicant had gone to bed in his usual bed, he crossed to the second bed where the complainant was then sleeping and whilst she was asleep commenced to have sexual intercourse with her. The complainant woke up and protested she would tell her de facto husband what the applicant was doing but he continued intercourse to the point of ejaculation. 22 The complainant was not well known to the applicant prior to this offence. 23 The offence was one for which s 61I of the Crimes Act provides for a maximum penalty of penal servitude for fourteen years. 24 When first interviewed about the offence the applicant denied that he had committed it and he persisted in a plea of not guilty when called for trial on 16 November 1998. However, before the trial began the applicant changed his plea, explaining that the offence had been on his conscience for too long. He expressed his contrition in the witness box. 25 As to the strength of the Crown case, it is to be observed that DNA testing of the applicant's blood and a swab taken from the complainant's vagina afforded evidence that semen detected could have come from the applicant and not the man who had intercourse with the complainant earlier. Approximately one person in over 3000 of the general population had the relevant DNA profile. Nevertheless, it has been submitted, and it is to be borne in mind, that had the applicant persisted with the plea of not guilty, conviction would have been by no means inevitable. 26 Judge Downs found that both the applicant and the complainant were heavily affected by alcohol at the time this offence was committed. 27 Evidence was placed before Judge Downs to the effect that the applicant was a hard working young man who was well known and respected in the community. 28 The judge expressly stated he was bearing in mind the applicant's plea and in facts reviewed he expressed his intention "to pass sentence at the lower end of the scale". 29 In his written submissions Mr Haesler submitted that Judge Downs fell into error in four respects: (i) in failing to find special circumstances; (ii) in failing to apply the principle of totality; (iii) in failing to have regard to the applicant's Aboriginality; (iv) having stated that he proposed to sentence at the lower end of the range, in failing to do so. 30 It is convenient to deal immediately with grounds (iii) and (iv). The particular principle from Fernando (1992) 76 A Crim R 58 which it is submitted the sentencing judge should have brought into account was the significance of alcohol abuse identified in proposition (e) in Fernando (at 62-63). 31 It is plain that counsel appearing for the applicant specifically disavowed the applicant's Aboriginality as a mitigating feature of this case and whilst it is the responsibility of a judge to take into account all relevant circumstances, it was not in this case being advanced that the considerations addressed in Fernando in proposition (e) were enlivened. To my mind it was plainly not sufficient to point to the fact that the applicant was an Aboriginal and to the fact that he had been drinking prior to the commission of this offence. 32 I am not persuaded that the evidence did enliven the application of that principle identified in Fernando's case and accordingly I am not persuaded that there is substance in ground (iii) in this case. 33 Turning to ground (iv), whilst the statistics the Court has been asked to consider indicate that only fourteen percent of 161 cases attracted minimum terms in excess of three years, the Crown was correct to point out that those statistics would include sentences passed before the maximum penalty was increased in March 1991 from eight years to fourteen years. 34 It seems to me that there is a need to be very wary in evaluating the statistics that have been advanced. Objectively this was a serious offence and I consider that the penalty imposed was well within the range, subject to a consideration of the significance of the earlier sentence imposed by Judge Armitage. 35 This brings me to the remaining matters addressed by counsel for the applicant, that is to say, the principle of totality and special circumstances. As to totality, in Mill v The Queen (1988) 166 CLR 59 at 62-63 it was stated in the joint judgment of the court: "The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references): 'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["], "when…cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences"'…" 36 The aggregate sentences here amounted to four years nine and a half months. Viewing the totality of the criminal behaviour it seems to me that the sentences in aggregate do not bring about an inappropriate result when one looks at the full terms. 37 However, what I do not regard as appropriate is the available parole period. Section 5(2) of the Sentencing Act does not compel, absent special circumstances, that the ratio of minimum term and additional term is to be three to one: see R v GDR (1994) 35 NSWLR 376 and in particular at 380. However, where sentences are being accumulated special circumstances for the purpose of s 5(2) of the Sentencing Act may be found to exist in order to ensure an appropriate proportion between the total minimum term and the effective additional term: see Simpson (1992) 61 A Crim R 58. In my opinion, as a consequence of the accumulation, the learned sentencing judge ought to have adjusted the ratio of minimum and additional term imposed for the sexual offence and this Court should now intervene and make an appropriate adjustment. In doing so I consider it is also appropriate to heed the issue of rehabilitation and the need the applicant will have for assistance to avoid relapse into alcohol abuse when he is released on parole. In my opinion the minimum term for the sexual offence ought to be reduced to two years three months and the additional term increased to one year nine months. 38 The formal orders I propose are as follows: 1. In respect of the appeal against the sentence imposed by Judge Armitage on 13 October 1998 that leave to appeal be granted but that the appeal be dismissed. 2. In respect of the appeal against the sentence imposed by Judge Downs QC on 14 November 1998 that leave to appeal be granted and that the appeal be allowed; that the sentence imposed be quashed; in lieu thereof that the applicant be sentenced to a minimum term of two years three months commencing on 14 October 1998 and expiring 13 January 2001 and an additional term of one year nine months commencing 14 January 2001. I would specify that latter date as being the first date upon which the applicant is to be eligible for release on parole. 39 SIMPSON J: I agree. 40 STUDDERT J: The orders then will be those I proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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