New South Wales Court of Criminal Appeal CITATION : R v MLW [2001] NSWCCA 133 FILE NUMBER(S) : CCA 60681/00 HEARING DATE(S) : 9/4/2001 JUDGMENT DATE : 9 April 2001 PARTIES : Regina MLW JUDGMENT OF : Dowd J at 1; Smart AJ at 30 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/51/0053 LOWER COURT JUDICIAL Ducker DCJ OFFICER : COUNSEL : Ms Forbes- Applicant Mr Berman- Crown SOLICITORS : PD Rosser, Many Rivers Aboriginal Legal Service- Applicant SE O'Connor, Director of Public Prosecutions (NSW)- Crown CATCHWORDS : Appeal against severity of sentence - Sexual intercourse without consent - Minors - Alcohol abuse LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Crimes Act 1900 R v Fernando (1992) 76 A Crim R 58. CASES CITED: R v GDP (1991) 53 A Crim R 112. R v Hartikainen (Unreported, NSWCCA, 8 June 1993, Gleeson CJ, Meagher JA and Newman J). DECISION : 1. Appeal refused; 2. Leave to appeal granted. IN THE COURT OF CRIMINAL APPEAL DOWD J SMART AJ 60681/00 9 APRIL 2001 R v M L W REASONS FOR JUDGMENT 1 DOWD J: The Court is in a position to give judgment in this matter. This is an application for leave to appeal against the severity of a sentence imposed on the applicant by His Honour, Ducker DCJ, at Lismore District Court. As the applicant was fifteen years old at the time of the offence, and is now sixteen years of age, his initials will be used in this judgment to protect his identity, and to conform with the orders that I have made pursuant to s11 of the Children (Criminal Proceedings) Act 1987. 2 The applicant was sentenced on 18 October 2000 for that he, on 28 November 1999, at Angourie, did have sexual intercourse with a female person without her consent, knowing that she was not consenting, contrary to s61I of the Crimes Act 1900 ('the Act'), the maximum penalty for such a conviction being fourteen years imprisonment. 3 The applicant entered a plea of guilty, and was sentenced by His Honour to a period of three years imprisonment, to date from 17 October 2000 and to expire on 16 October 2003, with a non-parole period of one year and eight months, to commence on 17 October 2000 and to expire on 16 June 2002. 4 His Honour gave a direction that the applicant be released on parole at the expiration of the non-parole period, and that he receive supervision, counselling, and treatment for drugs and alcohol, and that he submit to the sexual offender programme. 5 His Honour, pursuant to s19 of the Children (Criminal Proceedings) Act 1987, directed that the sentence be served in a detention centre. 6 The applicant was arrested on 28 November 1999, the day of the assault, and on 29 November 1999, the applicant entered bail. The applicant was granted bail on certain terms and conditions. He remained on bail until the day of sentence. The sentence commenced a day earlier than the date of sentencing, to take into account the day that he had spent in custody. Facts 7 The facts, which I will set out in some little detail to outline the enormity of the offence, were that on Saturday 27 November 1999, at approximately 8:00pm, the victim, a sixteen year old female, attended a large party at 25 Pacific Street, Angourie. The house was a two storey dwelling which has a verandah along the front upstairs section. 8 At the party, the victim was introduced to and spoke to, a group of boys including the applicant. That evening she had consumed three small plastic cups of beer that came from a keg. She was unaware of the strength of the beer. 9 At approximately 1:00am on Sunday 28 November 1999, the victim was on the verandah of the house speaking to the applicant. The victim was looking for her female friend. The applicant said he thought that she was downstairs. Both the applicant and the victim went downstairs, but could not find the friend. 10 The victim asked the applicant for a cigarette. He indicated to her that he could get some from a house down the street. The victim knew the person who lived in that house, and both she and the applicant left the party, she thought, to obtain the cigarettes. 11 Upon arriving at the house, the applicant asked the victim to keep walking further, which she did. The victim told the applicant that she had a boyfriend. The applicant said that he knew him. They arrived at the corner of Pacific Street and The Crescent, where there was access to a beach known as 'Spooky Beach'. 12 The victim stated that she wanted to go towards the shops and back to the party, but the applicant grabbed her arm and pulled her towards the beach. The applicant told her that he "just wanted to talk", and asked her to "come and sit down" with him. She went with him and sat talking for a little while at a table in the carpark of Spooky Beach. 13 The applicant then began to rub his hand up and down the outside of the victim's thigh. The victim said to him: "Nah, I can't do this, I'm gonna go." The applicant replied: "No, it's all right." 14 The victim endeavoured several times to persuade the applicant to let her go, he having grabbed one of her arms. In letting her go, she fell over and he fell on top of her. She protested, saying that she had a boyfriend and that she did not want to engage in any sexual activity. 15 The victim left and walked along a pedestrian track leading from the carpark, when the applicant grabbed her hand and said that he wanted to lick her genitals. He then forced her hand against his penis, which was erect inside his clothing. The victim said "no", and attempted to walk back up the stairs, but the applicant tripped her, grabbing her left ankle, and dragged her back to the carpark whilst she protested. He said that he wanted to have sexual intercourse with her. 16 In order to assuage her fears, the victim persuaded the applicant to sit down and talk to her. She said that she wanted to go to the toilet, so the applicant let go of her arm. The victim ran towards the shops. The applicant ran after her, grabbing her. She hit him with her sandals, and he said that he was going to kill her. He grabbed her and put his hand over her mouth to prevent her from screaming. She bit his hand. 17 The applicant pulled the victim down to the carpark. The victim saw a toilet block and the applicant let her go to the toilet. Eventually, however, she could delay no longer and therefore came out of the toilet block. She was grabbed by the applicant, who pushed her down towards the beach, despite her struggling. He pulled her away from a pole and ripped her dress, pulled off her underwear, climbed on top of her whilst she was on the ground, and forced her legs apart. He then penetrated her vagina with his penis. He tried to put her legs over his shoulders and she kicked him in the chest. He fell back and she attempted to escape, but only made it to the stairs. He pulled her away from the stair railing which she had grabbed, punching her knuckles to get her to release her grip. He then forced his penis into her mouth. He pulled her away from the pole and carried her back to the beach access track. 18 The applicant put his shirt over her head so that she could not see, and then penetrated her vagina with his penis until ejaculation. During this time, the victim continued to protest. The applicant then ran away and the victim went to a friend's place whom she then told what had happened. She was given new clothing. When she returned to the party, she discovered that the applicant was still there. 19 The recounting of the earlier facts underlines the serious and terrifying nature of the experience, and the determined effort of the victim to prevent the sexual assault occurring. His Honour, at page 6 of his Remarks on Sentence, used words with which I agree, to describe the incident as: "… a determined, violent and quite merciless attack in which the [applicant] ignored the [victim's] pleas and quite relentlessly pursued his objective of having sexual intercourse with her against her will, using threats to get his way." Submissions 20 The applicant's appeal against the severity of the sentence was based on the applicant's claim that the sentence, in all the circumstances, was excessive. The applicant did not contend that there was any error of law or fact on the part of the Sentencing Judge. Rather, the applicant relied on the fact that His Honour must have failed to give adequate weight to matters of mitigation. 21 In that respect, the applicant relied on his youth, being fifteen years of age at the time of the offence, and that the principles related in R v GDP (1991) 53 A Crim R 112 should be applied. It was put on behalf of the applicant that this was not a case of a juvenile committing an adult offence, and that the offence was not premeditated. 22 It was also put on behalf of the applicant that whilst intoxication might not be regarded as a mitigating factor, it ought to have been given significant weight and this must be seen in the applicant's social context, based on R v Fernando (1992) 76 A Crim R 58. The applicant had, however, not previously experienced intoxication to the degree in question. He was not an experienced drinker. 23 It was further put that in entering the plea of guilty, the applicant not only pleaded guilty at the earliest opportunity, but that the Court should have taken into account the clear evidence of contrition involved in the plea; its utilitarian value; and that victim was spared the need to give evidence. 24 As the Crown has pointed out in the written submissions, His Honour, in fixing sentence, clearly took into account the reference to the need to foster rehabilitation, rather than sending people, such as the applicant, away for lengthy sentences. His Honour also took into account the applicant's age and the fact that the penalty was significantly reduced from that of an adult offender. Findings 25 The offence was one of considerable gravity, as set out in the passage of His Honour's Remarks on Sentence, which I have set out above. The Court has, in R v Hartikainen (Unreported, NSWCCA, 8 June 1993, Gleeson CJ, Meagher JA and Newman J) held, per Gleeson CJ at p3, that: "Non consensual intercourse is itself an extreme form of violence and one which the community expects will be taken very seriously by the courts." 26 R v Fernando is not an authority for the proposition that an Aboriginal offender's intoxication will necessarily result, by that fact alone, in a lower sentence than would otherwise be the case. I can see nothing in the evidence in this case, or in the findings of His Honour, that give rise, it seems to me, to any extenuating circumstances arising from the principles enunciated in Fernando by Wood J, as he then was, as to the way in which an applicant's Aboriginality should be taken into account. This was the applicant's first occasion of intoxication, and it is no different to any other young man who indulges in alcohol for the first time, whether Aboriginal or not. The applicant came from a stable and caring home provided by his grandparents, as evidenced by the Juvenile Justice Report admitted before His Honour. 27 In fixing the sentence, His Honour took into account the question of intoxication. His Honour, in a very careful and detailed Remarks on Sentence, gave appropriate weight to the plea of guilty. The orders that His Honour made and the finding of special circumstances in the thirty-six month term, provided that sixteen of those months be taken as a period for rehabilitation and His Honour applied those special circumstances in the fixing of the non-parole period. 28 This is an offence, which for an adult, carries a very heavy sentence, even taking into account that His Honour made it very clear that he did not take into account factors involving a graver offence than that charged. 29 Notwithstanding the age of the applicant, I do not consider the sentence to be manifestly excessive, and in the circumstances, His Honour's sentence should not be disturbed. I would grant the application for leave, but refuse the appeal. 30 SMART AJ: I agree. 31 DOWD J: The orders will be as I have outlined. oOo 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.