New South Wales Court of Criminal Appeal CITATION : R v RAP [2001] NSWCCA 471 FILE NUMBER(S) : CCA 60832/00 HEARING DATE(S) : 6/9/2001 JUDGMENT DATE : 6 September 2001 PARTIES : Regina RAP JUDGMENT OF : Hodgson JA at 44; Dowd J at 1; Smart AJ at 45 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0154 LOWER COURT JUDICIAL Knight DCJ OFFICER : COUNSEL : Mr CJ Bruce- Appellant Mr RD Cogswell SC- Crown SOLICITORS : DJ Humphreys- Appellant SE O'Connor- Crown CATCHWORDS : Appeal against conviction - Application for leave to appeal against severity of sentence - Application for extension of time - Sexual assault - Manifest excessiveness - Subjective matters - Special circumstances - Re-sentencing LEGISLATION CITED : Crimes Act 1900 AB (1999) 73 ALJR 1385. CASES CITED: Jones v R (1997) 191 CLR 439. M v R (1994) 181 CLR 487. R v Howard [2001] NSWCCA 309. DECISION : 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted; 3. Appeal allowed and sentence quashed; and 4. Appellant sentenced to imprisonment for 7 years and 201 days, commencing on 12 April 2000 and expiring on 29 October 2007, with a non-parole period of four years and 201 days, commencing on 12 April 2000 and expiring on 29 October 2004. IN THE COURT OF CRIMINAL APPEAL 60832/00 HODGSON JA DOWD J SMART AJ 6 September 2001 Regina v RAP Judgment 1 DOWD J: The appellant, who will be described by his initials in pursuance of the non-publication order earlier made by the Presiding Judge, appeals against his conviction on the basis that it was unreasonable and could not be supported by the evidence as to whether the appellant penetrated the victim's genitalia. 2 This is also an application for leave from this Court to appeal against sentence on what was, first, submitted as a manifestly excessive sentence; and secondly, in error by the Learned Sentencing Judge in the failure to take into account the nature of the custody under which the appellant for leave would serve that sentence. 3 The appellant was charged and pleaded not guilty to one count of sexual intercourse with a child under the age of sixteen years in breach of s61J of the Crimes Act 1900 ('the Act'), and also pleaded not guilty to an alternative count of aggravated indecent assault of a child under the age of sixteen years contrary to s61M(2) of the Act. The jury returned a verdict of guilty on the first count. 4 The appellant was sentenced by Knight DCJ on 15 June 2000, to imprisonment for eight years and 201 days, to commence on 12 April 2000 and to expire on 28 October 2008, with a non-parole period of five years and 18 days, to commence on 12 April 2000 and to expire on 29 April 2005. 5 In sentencing, the Learned Sentencing Judge took into account the time spent in custody by the appellant prior to his conviction date on 12 April 2000, and in effect, the sentence comprised a total period of nine years with a non-parole period of five-and-a-half years. In sentencing, His Honour took into account the appellant did not plead guilty and was not entitled to any leniency by reason of that fact. The maximum penalty for this offence is twenty years imprisonment. 6 The facts of the matter are, that on 8 May 1999, the appellant's sister, the mother of the victim, with the victim, who was then aged three years, visited the premises owned by the appellant's father, and where the appellant resided at the time. The sister and the victim were at the father's property to have repairs carried out on a motorcar by the appellant and his father. 7 During the visit, the appellant took the victim for a ride on his motorcycle. They were away for approximately twenty minutes. On return, the young child was very distressed and complained immediately to her mother who brought her inside the house. On examination, the mother found that the victim had blood on her underpants, and when she removed the victim's underpants, the mother observed what appeared to be injuries to the victim's genital area. 8 On the same day, at about 3.45pm, the mother took the victim to the hospital at Goulburn where they were attended by a community nurse, with whom the mother had previously had dealings through the Early Childhood Centre. At this time, the victim told the nurse that her uncle, the appellant, had touched her with a stick, described by the child as less than one metre, on her genitals and she complained that she was sore around the genital area. 9 On that same day, Dr MacDonald at the hospital, in the presence of her mother and the community nurse, examined the victim. On examination, Dr MacDonald observed and recorded three recently sustained scratches on the victim's back beneath her left arm, and three just below her lower back. She noticed a small abrasion on the outside of the left thigh. She observed grease marks on the back of the victim's thigh and on her inner thigh, with grease marks also noted just above her genitalia on the mons pubis. The grease marks on the victim's left thigh appeared in the pattern of fingers. Dr MacDonald also observed blood on the victim's underpants. 10 On examination of the victim's genitals, Dr MacDonald observed and recorded that the labia majora and labia minora were red, swollen and tender to touch. There was redness around the peri-introital area, which is around the entrance of the introitus commonly described as the hymen, with the hymen itself appearing to be normal without any tears or bleeding. There were no tears around the posterior fourchette, which is where the labia meets, at the back of the introitus. There was observed and recorded by Dr MacDonald a thin graze, approximately two to three millimetres in length, around the area of the urethral hood and an ulcerated area on the perineum, approximately one centimetre in length. There was also redness around the anus and two small grazes around this area. 11 Dr MacDonald took swabs and smears from the outside of the victim's labia and from around the anus. These specimens were taken to the Division of Analytical Laboratories ("DAL") at Lidcombe. A blood sample and saliva specimen was obtained from the appellant on 12 May 1999 following his arrest. These specimens were also taken to the DAL. A blood sample was also taken from the appellant's father. 12 Ms Neville examined the vulval and peri-anal smears and confirmed the presence of semen on each of these samples. There was quite a lot of semen on the underpants with slightly less observed on the vulval smear. Following DNA testing on the vulval swab, the blood sample from the appellant and the blood sample from the appellant's father, a DNA profile was compiled of each sample. 13 As a result of the analysis, Ms Neville established that the DNA profile for the vulval swab was the same as the DNA profile from the blood sample collected from the appellant. This confirmed that the person who put the semen on the underpants could have been the appellant. It was "highly unlikely" that the profile would "fit" any other male in the community. 14 In sentencing, His Honour, in examining the evidence on conviction, found the necessary elements of the offence proven and proceeded to sentence. The matters taken into account by His Honour on sentence were that the appellant had been convicted previously of a criminal offence; he was born on 22 April 1976 and is now twenty-five years of age; he has had an unhappy childhood with his parents separating following allegations by his sister of sexual assault by his father. There was also an allegation that the appellant himself was sexually assaulted between the age of eight and ten by a sixteen-year-old male friend of the family. These assaults were found by the learned Sentencing Judge of having occurred on 20 to 30 occasions during the two year period. Knight DCJ also noted that the circumstances in which these assaults took place were similar to the circumstances in which the appellant sexually assaulted the victim. 15 The appellant had been in strict custody since he was charged with this offence. 16 The principle grounds of appeal against the conviction are on the basis that the verdict is unreasonable and cannot be supported by the evidence as to whether the appellant penetrated the victim's genitalia. It is put on this issue that the only evidence of penetration came from the observations of Dr MacDonald, who examined the complainant some hours after the alleged assault. Her evidence was relevantly that the labia, both majora and minora, were red, slightly swollen and tender to touch. Her evidence was that the peri-introital area was red, but the hymen itself appeared to be normal without any tears, as I indicated. There was quite a thin graze, some millimetres in length, over the urethral hood. There was the other evidence that I have adverted to as to the other injuries. 17 In looking at this ground, it is necessary to specifically look at the evidence in isolation of penetration. Counsel for the appellant quite frankly sets out that there are in fact two specific evidentiary factors. One, the quite thin graze inside the lips of the genital area near the urethral, some two to three millimetres in length, over the urethral hood and the hymen or introitus was circumferential and red. 18 All of the other factors, although not in issue, that I have described in the evidence, do not go to penetration itself. It is put by the Crown, and I think put fairly, that the other evidence is contextually relevant, in the sense that there is evidence of violence towards the victim, that is, if the evidence alone of the injuries within the labia is looked at, that is, in isolation, that is the only evidence, but that the jury was entitled to look at it in the context of there being evidence of violence in the other injuries sustained, even though those other injuries of themselves did not go to the evidence of penetration. 19 Dr MacDonald was cross-examined at some length as to the possibility of the specific evidence going to penetration being caused by other reasons, and in that respect, it is appropriate to look at the transcript itself. At p110 of the transcript, the doctor was asked at line 10: "Q. I suppose with the area of the labia, if the legs are open the redness - the friction could go inside the legs as well, do you understand what I'm saying, inside the labia? A. Well I would disagree with that and I would disagree with that because if you're talking about the area surrounding the hymen and the peri-hymeneal tissues, they're quite deep compared to the labia, they're protected by the labia. Q. The hymen is 22 millimetres? A. In width but not in depth." 20 There was then subsequent evidence that the depth of a three year old child is about 10 to 15 millimetres. At p111, line 4, the question was asked of the doctor: "Q. The labia would open if you open your legs would they not? A. No they don't. Q. They don't at all if you open your legs? A. They protect and cover this area." 21 The doctor's evidence later at p 113 was that the graze would be caused by friction, to which she replied "absolutely". She was then asked at line 24: "Q. It could be something that could be caused by a person themself, doing it themselves, is that correct? A. Unlikely." 22 She then conceded that it was possible. 23 The test which the courts have set out in terms of whether this ground is made out is as submitted and laid down by the High Court in M v R (1994) 181 CLR 487, and re-affirmed in Jones v R (1997) 191 CLR 439. The High Court in Jones at p 451, repeated the words of the High Court majority in M: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 24 It is necessary to look at the way this case was put to the jury by His Honour, and in that respect to look at p 28 of the Summing-Up and at point 3 his Honour said on this issue: "There are two matters I want to point out to you in relation to that. The first one is this, that the only evidence of any penetration of the lips of the labia is the slight graze near the urethral hood, which of course is inside the lips of the labia. And so that is really the only evidence that one would have of penetration, coupled with the redness of the hymen and the tenderness to the labia and the slight swelling of the labia." 25 His Honour said: "Mr Williams would say to you that the bouncing on the bike on a rough road might well produce that type of injury, and that is the other rational explanation." 26 This appeal on the ground that is put in my view fails to establish the ground for the appeal. It is, in my view, fairly open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty. The alternative explanation as to how the injury may have occurred within the labia was before the jury and it was open to the jury to reject that evidence. This appeal on conviction therefore is not made out. 27 I now turn to the application for leave to appeal against sentence. In this respect the ground initially put was that the sentence was manifestly excessive. Subsequent to that and during the course of the hearing, evidence was admitted and lodged on behalf of the appellant as to the conduct of the trial itself. The Crown did not object to the admission of that evidence, it being proper that the evidence be admitted, that counsel appearing then for the appellant did not raise the issue before the Court of the circumstances in which the appellant would serve his sentence. 28 It is, therefore, not necessary for the Court to consider the question of a manifestly excessive sentence, since the Crown has fairly conceded that failure to deal with the circumstance of the way in which the appellant would serve his sentence was an error on the part of the Sentencing Judge, His Honour the Sentencing Judge not having dealt with the issue, and it indeed not having been raised before him. 29 The Court therefore has to look at the question of error being conceded in the sentence as to whether it is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed and so quash the sentence and pass such other sentence in substitution thereof or, in the other case, shall dismiss the appeal. 30 It is, therefore, necessary for the Court irrespective of the sentence passed by His Honour, to examine the sentence that it would have passed, if I may say in relation to the concession by the Crown in conceding error, the Court of course has referred to it being the case of R v Howard [2001] NSWCCA 309, in which that Court referred to and approved of the passage cited by Kirby J in AB (1999) 73 ALJR 1385 at 1408, that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison. 31 It is also the fact that such form of detention can deny to a prisoner the full opportunities for programs and courses available to mainstream prisoners. 32 The Court, therefore, in my view, in re-examining the sentence that ought to be imposed will, in the view that I will shortly express, be taking into account that a sentence in protective custody will, on what I propose, be on a full-term basis in the order of two years or more than that spent in ordinary custody. 33 I now, therefore, turn to the factors on sentencing in determining what sentence should have been passed. It is clear that time spent in custody, as I have indicated, and applying Howard, is done harder, to use the vernacular, than otherwise. 34 In this particular case, the Court now in re-sentencing has before it evidence not only of the likelihood of injury, but has actual evidence by the appellant as to what has happened to him under special protection both whilst on remand pending trial and what has happened to him since the conviction. 35 His evidence was that life was difficult, that is, only a limited time is allowed on the oval in the correctional centre at Goulburn; and that he was kept as a "non-association" prisoner, virtually in isolation. He has given evidence that he was scalded with hot water, and that his glasses were broken; and that he was tied up by inmates wishing to have sexual intercourse with him. This was prevented by another inmate coming upon them and preventing this happening. 36 The appellant has suffered verbal harassment; he was removed from Junee Correctional Centre and sent to stay at the MRRC, and he was there threatened and he has also been threatened whilst at a unit called the Hampden Unit. He was also struck and assaulted by inmates at the Darcy 2 Unit at the MRRC. 37 Taking into account the careful way that His Honour the Sentencing Judge structured the sentence, having found special circumstances, and taking into account the very objective seriousness of this offence, the Court must look at the fact that the applicant was on a recognisance, he having had previous experience of a recognisance; the child was under his authority and the age of the child. 38 The Court should also take into account the injuries to the child physically and psychologically, and the consequential emotional problems the child has had subsequent to the injury itself. 39 In my view, the Court should take into account the subjective matters to which I have earlier referred and the very significant fact that there is evidence which His Honour the Sentencing Judge took into account that there should be a longer period of supervision post-release from Corrective Services to assist him to adjust to the serious psychological problems that he has and his inability to accept the nature of what he has done, and in that respect I would find special circumstances in similar terms to His Honour in structuring the sentence. 40 Counsel for the appellant has significantly pointed out that it is not necessarily going to be an early release to parole after the end of the non-parole period, and in fact it could well be that for a large part of the period that this Court directs that he may be released to parole, that he would in fact remain in custody itself and indeed possibly for a substantial part of that, particularly based on the failure of the appellant to acknowledge the offence of which he has been convicted, and the serious nature of that offence which will make it difficult for the Parole Board to release him on an application being made. 41 In my view, the proper sentence that should be imposed is less severe than that imposed by the learned Sentencing Judge, but should similarly take into account the pre-sentence custody which the appellant served. 42 In my view, therefore, the appellant should, given the error conceded, and allowing for serving of the sentence in strict protection, be sentenced to imprisonment for eight years with a non-parole period of five years, but from that allowance must be made for the pre-sentence custody of 164 days which the appellant had previously served. 43 In my view the following orders should be made: (a) The appeal against conviction should be dismissed; (b) Leave to appeal against sentence should be granted; (c) That the appeal is allowed and the sentence quashed; (d) In lieu of the sentence imposed, the appellant is sentenced, taking into account the pre-sentence custody already served of 164 days, to imprisonment for seven years and 201 days, commencing on 12 April 2000 and expiring on 29 October 2007, with a non-parole period of four years and 201 days, commencing on 12 April 2000 and expiring on 29 October 2004. 44 HODGSON JA: I agree. 45 SMART AJ: I also agree. 46 HODGSON JA: The orders of the Court are as proposed by Dowd J. 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.