R.V. JCJ [2001] NSWCCA 477

New South Wales Court of Criminal Appeal

CITATION : R.V. JCJ [2001] NSWCCA 477 FILE NUMBER(S) : CCA 60281/01 HEARING DATE(S) : 23 November 2001 JUDGMENT DATE : 23 November 2001

PARTIES : JCJ - Appellant Regina - Respondent JUDGMENT OF : Barr J at 1; Adams J at 33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0069 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER :

COUNSEL : Mr B.M. Niven for the appellant Ms E.A. Wilkins for the Crown SOLICITORS : Macedone Christie Willis for the appellant S.E. O'Connor for the Crown CATCHWORDS : Criminal law - sentencing - detention for advantage - Criminal law - sentencing - sexual intercourse without consent in circumstances of aggravation DECISION : See Judgement at Paragraph 32

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60281/01 Barr J Adams J

23 November 2001 Regina v JCJ

Judgment 1 Barr J: The applicant, to whom I shall refer as "JCJ", seeks leave to appeal against a sentence imposed upon her by Shadbolt DCJ. The applicant pleaded guilty to one count of enticing away her sister, whom I shall call "the complainant", with intent to hold her for the advantage of herself and another, whom I shall called "CA", and to a count that she had sexual intercourse with the complainant without her consent knowing that she was not consenting and in circumstances of aggravation constituted by the presence of CA. 2 The first count attracted a maximum sentence of fourteen years' imprisonment and the second twenty years'. For each count his Honour sentenced the applicant to imprisonment for three years and fixed a non-parole period of one year. 3 I should observe at the outset that the indictment was not calculated to express precisely the criminality of the case that was by common consent conducted before his Honour. The substance of the case, as will appear, was the detention of the complainant for a period of some thirty-six hours. The section under which the charge was brought embraces a charge of such detention. No point is taken upon appeal about the form of the indictment. If the point had been taken before the sentencing Judge his Honour would have directed the amendment of the indictment so as to plead detention. 4 The applicant was nineteen years old and had a sister aged sixteen and a half years. Their father, who had separated from their mother, had died and left each of them a substantial amount of money in trust. The applicant met CA, a man, at the end of 1996 and soon afterwards entered into a sexual relationship with him which continued throughout the events which followed. During their relationship they apparently spent a good deal of the applicant's money. CA began to get ideas about getting his hands on money held in trust for the complainant. He and the applicant borrowed $1200 from her on a promise to repay it within a week. They did not repay it. It must be inferred that CA was also sexually attracted to the complainant. He and the applicant devised a plan. The applicant told the complainant one evening that she had a financier who was temporarily in the district and who would hand over the $1200 if she went to meet him. The applicant named a point on a main road not far from where the complainant was living. The complainant went to the place, saw nobody and returned home. The applicant saw this and persuaded the complainant to return to the spot. There was a car waiting. In it were CA and another man, who was driving. The complainant got in and they took her to a park. There CA threatened her at knife point, berated her for her allegedly inappropriate way of dealing with the applicant and him and forced her to drink a bottle of vodka. She passed out. She awoke the next day in the flat occupied by the applicant and CA. She was feeling ill from the vodka. She found that most of her clothes had been removed and that she had been put in the shower. She was held captive for about thirty-six hours. She was put in terror by CA who held a bread knife to her throat. He told her that it would be easy to kill her. He and the applicant discussed ways of killing people, some of them quite revolting. The things that CA said and did over the hours reduced any resistance the complainant might have offered to his demands. 5 He made her masturbate herself in front of him, perform fellatio on him and submit to a large number of acts of sexual intercourse. It is unnecessary to say more than that the details of what CA did and said were disgusting. The applicant was present for most of this period and for most of the things that CA said and did. She committed the second offence when she required the complainant to perform fellatio in a particular manner on CA. 6 As a result of the acts perpetrated upon her and the threats made to her the complainant experienced serious difficulties. During the months immediately afterwards she felt constantly fatigued and run down and suffered from severe bouts of anxiety. She was anxious when in cars with people, even her closest friends, whenever she did not know exactly where they were going. She experienced nightmares and feelings of shame and embarrassment. She had to complete her HSC over two years rather than the one year she had intended to take. She resented the loss of a year in her academic life. She felt betrayed by what her sister had done. As she said in her victim impact statement, she lost so much innocence and was forced to grow up at sixteen. 7 Some distinction needs to be made between the written submissions and the oral submissions made in this court. 8 It was submitted in writing on behalf of the applicant that the sentences of three years' imprisonment and the non-parole period were manifestly excessive. It was submitted that his Honour did not give sufficient weight to the evidence of the relationship between the applicant and CA. It began at the beginning of 1997. It was not long before the applicant's father died after a long illness. CA had an overbearing personality and the applicant soon became convinced that her former life had been worthless, whereas CA had introduced her to a wonderful world. She became enthralled by him. The relationship was not very old by the time he began to subject her to mental and then physical abuse. He frequently became angry with her and lashed her with his tongue. Later on he beat her. On an occasion he took a pillow and put it over her face and sat on her. Even so, she could not contemplate leaving him because she could not comprehend a world without him. 9 Experts' reports were put before his Honour, one from a senior hospital social worker who had come in contact with the applicant during her father's fatal illness, and two reports from clinical psychologists. It appears that the applicant had had a history of difficulty at school, having suffered depression, social withdrawal and an eating disorder. She had seen a number of health professionals, a school counsellor and a psychiatrist. There had been evidence of mood deterioration with emotional lability, tearfulness, fearfulness, anger outbursts and argumentativeness. No doubt these symptoms were contributed to by the deteriorating family situation in which her mother separated from her father and her father contracted his last illness. 10 According to Mr Borenstein, clinical psychologist, the applicant's resulting disequilibrium, social isolation and lack of self-definition made her vulnerable to the sort of pathological relationship she shared with CA. He thought that he had led her down a destructive path which she could not escape, given the degree of her emotional attachment to him and because of the control which he thereby exercised. 11 According to Dr Lennings, psychologist, the applicant appeared to suffer from a mixed disorder characterised by depression and anxiety best thought of as a rather chronic adjustment disorder. The primary problem appeared to be the development of a mixed type of personality disorder in which both schizoid and borderline features were prominent. The schizoid features contributed to the inability to appreciate the needs of others and her sense of social and emotional isolation and the borderline features were marked by her excessive dependence needs and her inability to obtain true insight into them. 12 Dr Lennings thought that the applicant had shown a long history of anxiety and depression since at least early adolescence and had developed a personality disorder characterised by emotional distortion and severe dependency. Such a disorder had led to the suspension of her reality testing and critical faculties. It was highly likely, he thought, that her excessive dependency led her into attempting to please and accommodate the needs of those she was dependent on irrespective of the cost to her own self-esteem and identity. 13 His Honour expressed himself as satisfied that the applicant was deeply under the influence of CA. His Honour concluded that the part she played in the criminal activity was in consequence much less than his. Having reviewed these matters and the manifestations of the applicant's psychological malaise, his Honour observed that those subjective circumstances should weigh very heavily in her favour. 14 His Honour gave considerable thought to the applicant's psychological state which, he observed, was undoubtedly febrile. Nevertheless, his Honour observed, the offences were extraordinarily grave, committed as they were on a young woman by a person in a position of trust. 15 An unusual event took place during the hearing. The Crown Prosecutor not only supported defence counsel's submissions and informed his Honour that the imposition of a sentence other than one of full time custody would not be appealably wrong, a submission, I think, that was not justified. The Crown Prosecutor went on to tell his Honour that he had spoken to the complainant, who had an earnest desire that the applicant should not be sent to prison. His Honour already knew that as a result of what the complainant had said in her victim impact statement, which was in evidence. Even so, the Crown Prosecutor offered to call the complainant to give evidence. He had closed his case and was refused leave to re-open it. In the circumstances defence counsel called the complainant. When cross-examining her the Crown Prosecutor went to some trouble to adduce from her evidence of her understanding of the control which CA must have exercised over the applicant, judging by her own experience at his hands. In due course the Crown Prosecutor, as I have said, supported the submission of the defence counsel. 16 His Honour observed that neither counsel had drawn to his attention any case where, in the face of pleas of guilty to such counts, a course other than full time imprisonment had been taken. His Honour doubted the existence of any such case and described as unhelpful the submissions of the Crown Prosecutor. With respect to his Honour, that is a view that, in my opinion, his Honour was entitled to take. 17 The written submissions in this court were based upon an underlying premise that his Honour was bound to impose a sentence less than a sentence of full time custody. Realistically, I think, by the time the matter was argued in this court counsel was taking a rather different approach to the matter. 18 Two submissions were made. The first attacked the process by which his Honour arrived at the sentences ultimately imposed. His Honour said this: "Had the matter gone to trial I am of the view that a sentence of six years imprisonment would have been appropriate having regard to all the objective circumstances and the subjective circumstances. But she pleaded guilty. She is now contrite and has saved the State a trial and intends to assist the Crown in prosecuting CA. I am of the view that this should sound in the discount of fifty per cent." 19 It was submitted first that the starting point of six years selected by his Honour was too high. It was submitted that this was an entirely unusual case and reference was made in general and in particular to the evidence, lay and expert, going to demonstrate the thrall in which the applicant was to CA throughout the currency of these matters. Understandably, no statistical material could be put before this court. 20 This offence was of a nature so serious as to be quite unusual. But I have not been persuaded, in view of the enormous seriousness of the acts carried out by the applicant, that his Honour fell into error in taking a six year sentence as a starting point, even giving full weight to the multiplicity of evidence demonstrating the vulnerable position the applicant was in and the control that CA exercised over her. 21 The second attack was made upon some remarks that his Honour made which may be read as doubting whether the applicant, when she appeared before him, was genuinely contrite. The circumstances that gave rise to his Honour's remarks were as follows. After the offences the relationship between the applicant and CA continued. After they were charged they continued to be together. They had a common solicitor and apparently intended to plead not guilty at a joint trial. On the weekend before the trial was due to begin the applicant, having received some advice, saw a new solicitor. That was apparently because she realised that CA had been having conferences with their solicitor without her knowledge. She ended her relationship with CA. 22 Evidence of these matters began to be adduced before his Honour but his Honour cut the evidence short, apparently because he believed that privileged matters might otherwise be unwittingly exposed. 23 Later on, having observed and accepted that CA had influenced such serious control over the applicant, his Honour drew attention to the circumstances in which she had separated from him and wondered quite how she might have done so at such short notice and on what his Honour assumed was advice or recommendation of the new solicitor. So his Honour doubted the genuineness of the applicant's claim to be contrite. 24 This court was informed that there was evidence which would have been adduced if his Honour had not stopped the questions. It would have shown that matters were not as his Honour assumed and that the reason for and that the circumstances in which the applicant broke free of CA were not as his Honour had understood. 25 It is apparent, though, from what his Honour said at a later point in his judgment that he came to the view that the applicant was contrite. His Honour said so having seen and listened to the applicant as she gave evidence. I do not doubt that that was his Honour's ultimate unqualified finding. 26 My opinion in this regard is fortified by the fact that his Honour allowed the applicant a fifty per cent discount from the sentence he would otherwise have imposed for the combined circumstances of the plea of guilty, her contrition and her offer of assistance in giving evidence at any trial of CA if called upon to do so. 27 As the authorities make clear, fifty per cent is about the most that his Honour could properly have allowed for the combination of those circumstances. It seems to follow, therefore, that the applicant could not reasonably have expected to be given any greater consideration than she was for her contrition. 28 There is one last matter. I have already observed that there was before his Honour evidence that the complainant did not want the applicant to be sent to prison. During the hearing of this appeal the court was informed about a letter that the complainant had written to the Office of the Director of Public Prosecutions. The letter reiterated the complainant's earnest wish that the applicant not go to prison or remain in prison. It referred to the complainant's observation of the suffering that the applicant had undergone both before and after sentence. 29 This court would not wish the complainant or the applicant or any members of their family to misunderstand the great sympathy that this court holds towards people in positions like those of the complainant. As well as being a most serious matter, this is also a very sad matter and has caused anguish and suffering not only to the complainant but to others as well. 30 Two things need to be said, however. The first is that this is not a sentencing court. This court does not hear the facts and argument a second time and impose a sentence. This court has no power to sentence unless error is demonstrated in the court below. It will be apparent from what I have said that I detect no error in his Honour's approach. 31 The second thing is this, that whilst it is always open to persons in the position of the complainant to make known to the Court their desire, it is the Court whose opinion must be given effect to. Only the court can have the breadth of view and understanding of the principles necessary for the proper administration of a fair system of sentencing. The Court, for example, has to consider sentences by reference to the deterrence that they may cause to other people who have nothing to do with the case. 32 I would grant leave to appeal but would dismiss the appeal. 33 ADAMS J: I agree with what has been said by the learned presiding Judge but I wish to add a comment of my own. Some of the argument in this case has proceeded upon the basis which seems to me to be mistaken that the complainant exercised no free will at all in relation to the acts for which she was convicted. The defence of duress is available to a person whose will does not accompany the acts with which they are charged. No such defence was raised to these charges in the District Court. It must follow, therefore, that to some extent or other her own will did accompany her acts with which she is charged and it is to that extent that she is held to be criminally responsible for what occurred. The judgment of how far her will accompanied those acts, that is, had her actual assent, is very much a question for the sentencing Judge to determine. He had a great deal of material before him and he clearly accepted the medical evidence which was submitted on the applicant's behalf. For myself I am not so certain that I would have started at the commencement point that his Honour nominated before making the fifty per cent discount. On the other hand, I think that the fifty per cent discount was significantly more generous than the authorities could justify. In the end, therefore, I am not satisfied that his Honour's sentence was wrong. For these reasons, together with those articulated by the learned presiding Judge, I agree with the orders his Honour proposes.