Regina v Whaites [2001] NSWCCA 426

New South Wales Court of Criminal Appeal

CITATION : Regina v Whaites [2001] NSWCCA 426 FILE NUMBER(S) : CCA 60025/01 HEARING DATE(S) : Wednesday 17 October 2001 JUDGMENT DATE : 17 October 2001

PARTIES : Regina v Gary Wayne Whaites JUDGMENT OF : Wood CJ at CL at 16; Grove J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0138 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER :

COUNSEL : W. Dawe, QC (Crown) J.C. Papayanni (Applicant) SOLICITORS : S.E. O'Connor (Crown) Jeffreys & Associates CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - 13 YEAR DELAY CAUSED BY APPELLANT ABSCONDING AND RECEIVING INTERSTATE SENTENCE FOR FURTHER SERIOUS OFFENCES - WHEREABOUTS NOT APPRECIATED BY NSW AUTHORITIES - RELEASE FOR EXTENDED PERIOD AFTER SERVING INTERSTATE SENTENCES - TOTALITY LEGISLATION CITED : Crimes Act s61C(1)(b) CASES CITED: R v Todd 1982 2 NSWLR 517 R v Thomson 2000 49 NSWLR 383 DECISION : APPEAL ALLOWED; RESENTENCED

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

60025/01 WOOD CJ at CL GROVE J

Wednesday 17 October 2001 REGINA v GARY WAYNE WHAITES

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Justice Blanch, the Chief Judge of the District Court on 29 March 2000. The applicant appeared before his Honour and pleaded guilty to one count of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse. 2 The offence occurred on 12 September 1987 and was charged contrary to s61C(1)((b) of the Crimes Act, as it then was. The maximum prescribed penalty for such an offence was twelve years' penal servitude. 3 The facts of the offence were summarised by his Honour and I draw on that for present purposes. The victim was a Swedish tourist and she and a friend were having car trouble in the Kings Cross area. The applicant stopped to assist. Eventually he drove the car to a service station but when the victim's girlfriend alighted, the applicant continued driving and did not stop until he reached the Royal National Park. He drove to a secluded spot along a gravel road and tried to kiss the victim. She resisted. There was a violent struggle and the applicant told the victim to remove her clothes and then started forcibly to remove them. Resistance continued. He then commenced to get undressed and produced a small folded knife with a four centimetre blade and held it close to the victim's face. However, she continued to resist. He punched her with a closed fist. 4 His Honour noted that the statement of facts which had been tendered went on to describe acts of a sexual nature which occurred thereafter. However, he indicated that it was necessary for him to take care to approach the matter of sentence on the basis of the offence as charged and that it did not contain an element of sexual intercourse being forced. In those circumstances his Honour imposed (in terms then appropriate) a minimum term of penal servitude of four years and ten months with an additional term of two years. It is against that sentence that this application is brought. 5 It is necessary to relate some matters of history concerning the applicant and his offending. The applicant has a considerable criminal record, only some parts of which it will be necessary to refer to for present purposes. As I have already stated, the offence with which the Court presently deals was alleged to have occurred on 12 September 1987. The applicant was, after being charged, held in custody for approximately two months. He failed to appear for trial which was scheduled for 11 July 1989. The material before the Court shows that he fled to Western Australia where he was convicted of offences and later he moved to South Australia where he was also convicted of offences, one of which it is important to mention in some detail. 6 The applicant was charged in South Australia with an offence of rape. Ultimately he pleaded guilty to that offence and on 17 October 1990 he appeared before the South Australian Supreme Court charged under the name of Gary Wayne Henson and was sentenced by Cox J to a head sentence of nine years with a non-parole period of five years. It should be noted, however, that at the time of that sentence the presiding judge observed that it had been agreed by counsel that the applicant was entitled to a credit for about eight months in custody, and having regard to a system of remissions in force in South Australia, his Honour allowed a credit of twelve months. 7 The next factor which needs to be mentioned is that whilst the non-parole period of the sentence imposed in South Australia was current, the applicant on 23 July 1993 appeared in the District Court of South Australia and was convicted of an offence of escaping from custody for which he was sentenced to eighteen months' imprisonment. Thus, when the applicant appeared for sentence in the District Court in New South Wales, some thirteen years had passed since the commission of the offence. The applicant was taken into custody in South Australia on 8 January 2000 and, as I have mentioned, he was before the District Court on 29 March of that year. 8 The applicant relies upon two grounds of appeal which have been expressed as follows, first that his Honour erred in law in not taking into account the plea of guilty and not stating the discount in respect thereof and, secondly, that his Honour erred in law in not applying the principles in R v Todd 1982 2 NSWLR 517 properly or adequately in respect of totality and otherwise. Mr Papayanni of counsel who has appeared for the applicant commenced his submissions in relation to the second ground by asserting that when the applicant appeared before Blanch DCJ, his Honour was not made aware of the time served prior to imposition of sentence in South Australia. Accordingly, Mr Papayanni contended that a true calculation would demonstrate that the applicant spent a period approaching seven years in custody rather than five years. Part of that custody no doubt must relate to the imposition of sentence for the escape. In the course of proceedings in the District Court the applicant intervened to assert that he had served six years in South Australia, when the matter was being mentioned by counsel appearing for him and for the Crown. The essence of Mr Papayanni's submissions is based upon an overview of the totality of sentence imposed and time actually served. If one were to take the sentence imposed by Blanch DCJ and the sentence imposed by Cox J and translate them both into terms of head sentence and non-parole period, Mr Papayanni contends that for the combined offences it can be postulated that there is an equivalence of head sentence of seventeen years with a non-parole period in the order of about eleven and a half years. In short, Mr Papayanni submits that such a sentence must be assessed as too much for the offences there involved. 9 When looking at the matter of totality, it would be appropriate in my view to consider not two offences but three. I refer to the sentence imposed during the currency of the non-parole period for escape in South Australia. Hence it seems to me that the appropriate picture to be analysed by this Court involves a consideration of whether or not a notional sentence of head term of seventeen years and a non-parole period of about eleven and a half years is excessive for the combined offences of the rape in South Australia, the offence under s 61C and the escape in South Australia. 10 The principle to be applied where there has been a delay and there is the complicating factor of interstate impositions has been dealt with in this Court in R v Todd. Street CJ, made these observations: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 11 When the applicant was before the District Court Blanch DCJ was clearly aware of the principle which is enshrined in that quotation. His Honour referred to a necessity to reflect the possibility that the matters - that is to say the offence before him and the rape in South Australia - could have been dealt with at the same time or at least dealt with whilst the applicant was serving a sentence in South Australia. Manifestly there would be no jurisdiction in an interstate Court to deal with an offence occurring elsewhere, but it is clear that his Honour had in mind the principles elaborated in R v Todd. 12 The first ground of appeal is focused upon the absence of any observation by his Honour in his remarks on sentence concerning the plea of guilty other than the introductory remark at the commencement. As I have already observed, the maximum penalty prescribed by the statute was twelve years' penal servitude and, accordingly, the imposition by his Honour, which amounted to an effective seven years adjusted to allow for two months in custody in 1987, represents more than half the maximum period. It does not seem to me that the learned judge would have been likely to have overlooked the significance of the plea of guilty, given his experience in such matters. Nevertheless, what is now before this Court is a question which can be asked in terms as to whether, giving weight to the plea of guilty and giving weight to the matter of totality, it can be said that a sentence such as I have theorised of seventeen years head sentence with a non-parole period of eleven and a half years, is an unfairly onerous punishment for the applicant for the totality of his offences. 13 In relation to the individual offence dealt with in the District Court, I am of a view that the facts manifest circumstances which, while they may not reveal the worst case, are nevertheless of a very serious order. I have, however, on an overall view taking into account the necessity to give the applicant a proper discount for his plea of guilty, including the utilitarian value of his plea and having the advantage of the authority of R v Thomson 2000 49 NSWLR 383, decided since his Honour's imposition, concluded that Mr Papayanni's submission has been made good and that this Court should proceed to re-sentence. It can be observed that after release in South Australia the applicant was not re-arrested and brought to New South Wales until a period of several years had elapsed. Whilst that time was not entirely crime-free, it can certainly be said that nothing of the seriousness of the offences with which the Court now has to deal occurred. 14 There was also before his Honour a psychiatric report from Dr Clarke which expressed an opinion concerning the risk to the community being lessened in the event that a diagnosed condition of the applicant was appropriately treated. 15 Taking all these matters into account on the question of the re-sentence, I would propose the following, that the application for leave to appeal be granted, the appeal allowed, the sentence imposed in the District Court quashed and in lieu thereof the applicant be sentenced as follows, to five years' imprisonment to commence on 8 January 2000 and to expire on 7 January 2005. I would specify a non-parole period of two years and ten months to commence on 8 January 2000 and to expire on 7 November 2002. I would specify 7 November 2002 as the date upon which the applicant would be eligible for parole. I have reduced the non-parole period by two months for reasons which co-ordinate with those expressed by Blanch DCJ. 16 WOOD CJ at CL: Yes, I agree. The order of the Court will be as Grove J proposed. **********