Regina v Andrews [2001] NSWCCA 428

New South Wales Court of Criminal Appeal

CITATION : Regina v Andrews [2001] NSWCCA 428 FILE NUMBER(S) : CCA 60518/00 HEARING DATE(S) : Friday 12 October 2001 JUDGMENT DATE : 12 October 2001

PARTIES : Regina v Robert Murray Andrews JUDGMENT OF : Grove J at 1; Howie J at 11

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0474 LOWER COURT JUDICIAL Coolahan DCJ OFFICER :

COUNSEL : E.A. Wilkins (Crown) J.S. Andrews (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - AGGRAVATED SEXUAL INTERCOURSE WITHOUT CONSENT - DISCUSSION OF SERIOUSNESS OF PARTICULAR FORM OF SEXUAL ACT - SPECIAL CIRCUMSTANCES R v Thomson 2000 49 NSWLR 383 CASES CITED: R v O'Donnell CCA Unrep 1 July 1994 R v Keong 2001 NSWCCA 416 DECISION : APPEAL DISMISSED

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

60518/00 GROVE J HOWIE J

Friday 12 October 2001 REGINA v ROBERT MURRAY ANDREWS

JUDGMENT 1 GROVE J: The applicant appeared before his Honour Judge Coolahan in the Newcastle District Court. He had on the second day of the trial, but before the complainant had given evidence, pleaded guilty to a count of threatening actual bodily harm with an offensive weapon and thereafter having sexual intercourse without consent. His Honour also dealt with a charge of assault occasioning actual bodily harm to which the applicant had previously pleaded guilty. That offence had involved the same victim and had in fact occurred shortly after the offence which I have first mentioned. His Honour also took into account three counts of deemed supply of prohibited drug. There were three different drugs involved, cannabis, cocaine and amphetamine. These were taken into account on a Form 1. The overall sentence imposed by his Honour was an enveloping term on the first count of six years imprisonment with a non-parole period of four and a half years. The non-parole period was ordered to commence on 22 August 1999, and therefore the applicant would be eligible for parole from 21 February 2004. 2 The applicant is aged now 30 years. He is not without prior record. The more serious offences on his record involve activity with drugs, in 1995 he had been sentenced to two years imprisonment on charges of supplying a prohibited drug. He had been dealt with on two previous occasions for various offences by being released upon recognizances to be of good behaviour. He was not on parole nor the subject of a recognizance at the time of the current offences. 3 It is appropriate to relate some of the facts regarding what I have described as the principal offence. I extract these from the remarks on sentence of Coolahan DCJ. The applicant and the victim had been in a defacto relationship on and off for a number of years. On the date in question they had an argument. It is said, so his Honour observed, to have centred around the victim's reluctance to drive the applicant about the Singleton area to retrieve money from alleged drug sales made by him. The victim agreed to drive him only after he had threatened to kill her if she did not. They returned to the premises in which they lived, which was at a mine site, at about midnight. The applicant was angry and told the victim that she could not go to bed. He then punched her in the face about four or five times. He then pulled down his jeans and underpants and said to her, "Suck this like the slut you are". The victim said, "No". The applicant said, "Do it or I will slit your throat". At the time the offender indicated to the victim a Samurai-style sword which was next to him on the floor. The victim feared for her life and complied by performing fellatio upon the offender until he allowed her to go to bed. 4 The applicant's counsel argued three grounds in relation to the appeal. Specifically the first ground asserted that his Honour erred in failing to give sufficient weight to the plea of guilty. It is noted that the sentence was imposed before the publication of judgment by this court in the case of Regina v Thomson 2000 49 NSWLR 383. It is true that his Honour did not attempt to quantify the discount in any published way. It is contended that the sentence of six years in the circumstances where the plea of guilty, although late, warranted a reasonable discount, must have meant that his Honour started at a period of seven or eight years and that that was too high a starting point for the criminality involved. The short recitation of the facts shows that the criminality involved was high indeed. 5 I am unpersuaded that his Honour erred in the assessment which he made. It should be noted that his Honour observed in his remarks on sentence that he was taking into account not only the plea of guilty but the fact that in the circumstances the plea, late though it was, had relieved the victim from the ordeal of giving evidence about what had occurred. 6 The second ground was advanced in terms that the sentence was manifestly excessive. It is noted that what is described as a sexual assault involved fellatio and there was no penile penetration. As the facts which I have recited show, it does not appear that the sexual assault had as its inspiration some need for sexual gratification on the part of the applicant, rather it was part of his activity in asserting his domination over the victim. Reference has been made to a passing observation made by Hunt CJ at CL in Regina v O'Donnell, CCA unreported 1 July 1994, where his Honour said, "Fellatio in my opinion is normally less criminal than say anal or vaginal penetration". His Honour clearly did not intend that statement to reveal some matter of law, indeed in its terms was expressed only as an opinion and he did not suggest that it was axiomatic. With great respect to his Honour, in my view the penetration of a victim by a sexual organ derives its seriousness from a consideration of the particular circumstances of the case rather than from the nature of the sexual act itself. In this particular case, as I have observed, the act was intended manifestly to humiliate and dominate the victim. In those circumstances I would regard what was done as of a very high order of criminality. On any assessment I would not hold that the sentence was manifestly excessive. 7 The third ground asserted that his Honour erred in particular in the approach that he took to special circumstances and his refusal to find them. Reference was made to part of his remarks on sentence where his Honour observed that the applicant had failed to express remorse and had, arising out of his previous criminal history, not benefited from recognizances or periods on parole in the past. Those were matters which his Honour was entitled to deliberate upon in order to make his finding as to whether or not special circumstances existed such as justified a reduction of the non-parole period. 8 This matter has been the subject of submission in an earlier appeal today and I would respectfully endorse and quote the remarks of Howie J in the case of Regina v Keong 2001 NSWCCA 416 where his Honour said in relation to that case: "His Honour's determination that there were no special circumstances was a finding of fact. However, this is a matter that seems to be treated as a question of law by appellate lawyers. In many cases, as in the present, counsel for the applicant puts before the Court other cases, often judgments of this Court comprising two persons, where findings of special circumstances have been made sometimes in factual situations similar to that before the Court. The fact that another court has found special circumstances in a somewhat similar situation is no more persuasive that there has been an error by the sentencing judge, than is the fact that another court has imposed a different sentence on another offender for a similar offence. They are simply different results arising from different discretionary judgments. This Court is no more entitled to interfere in a finding that there are no special circumstances than in any other finding of fact made by the sentencing judge. If it was open for the judge to come to that finding on the material before the court, it is a fruitless exercise to try to persuade this Court simply to reach a different finding." 9 I am unpersuaded that it was not open to his Honour to come to the finding which he did. Indeed I would observe that were I placed in his Honour's position I would myself have come to the same conclusion. The court is aware that there have been observations made about the matter of special circumstances, some asserted differences in approach being referred to a bench to be constituted by five judges. 10 Be that as it may, it does not, in my view, affect the outcome of the current proceedings. As I have said, no error is demonstrated in his Honour's approach and it was open for him to come to the finding which he did. In those circumstances I would propose that the application for leave to appeal be granted but the appeal dismissed. 11 HOWIE J: I agree. 12 GROVE J: The orders of the court will therefore be as I have proposed. **********