New South Wales Court of Criminal Appeal CITATION : Regina v McGrath [2003] NSWCCA 183 HEARING DATE(S) : Tuesday 1 July 2003 JUDGMENT DATE : 1 July 2003 JUDGMENT OF : Grove J at 1; Shaw J at 29 DECISION : LEAVE TO APPEAL AGAINST SENTENCE GRANTED; APPEAL DISMISSED CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - GRAVE OFFENCE ON ELDERLY VICTIM - NO SPECIAL POINT OF PRINCIPLE LEGISLATION CITED : s44(2) Crimes (Sentencing Procedure) Act 1999 R v Letteri unreported CCA 18 March 1992 CASES CITED : R v Scognamiglio 1991 56 A Crim R 81 R v Thomson 2000 49 NSWLR 383 PARTIES : Regina v David McGrath FILE NUMBER(S) : CCA 60085/02 COUNSEL : D. Howard (Crown) P. Hamill (Applicant) SOLICITORS : S.E, O'Connor (Crown) D.J. Humphreys (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 01/71/0084 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60085/02 GROVE J SHAW J Tuesday 1 July 2003 REGINA v DAVID McGRATH Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Herron DCJ in the Wagga Wagga District Court. The applicant had been committed for sentence on two charges to which he had pleaded guilty before a magistrate. The first charge was of aggravated breaking and entering and committing a serious indictable offence namely aggravated sexual assault whilst armed with an offensive weapon and the second was aggravated robbery. For each of these charges a prescribed maximum penalty of twenty years imprisonment is prescribed. The sentencing judge was also asked to take into account some fifteen charges on a Form 1. It is fair to observe that none of the charges on the Form 1 approaches the seriousness of those in the principal charges. 2 Comprehensive written submissions have been received both on behalf of the applicant and the Crown. To a large extent these submissions are, understandably couched in terms which I would describe as legal abstractions. The submissions need to be considered in the context of the facts which, in a written submission counsel for the applicant conceded were "for the most part" not in dispute. 3 In the early hours of Saturday 31 March 2001 the victim, an eighty seven year old man, was asleep at his home in the township of Tumut. He was awakened by the sound of breaking glass. He rose from his bed and went into the lounge room where he turned on the light and whilst there he saw the applicant through a broken window in the laundry. The applicant entered the house armed with a knife. In giving evidence at the sentencing proceedings the applicant conceded that this was a very big knife but claimed that he could not remember how long it was when it was put to him that it was about thirty centimetres or a foot long. It was, at least, obviously a fearsome weapon. The applicant confronted the elderly victim and demanded money. He pushed him into the bedroom area where demands for money were repeated. 4 Whilst the victim was on the bed the applicant punched him eventually knocking him from the bed to the floor area. He grasped him by his pyjamas and his scrotum and threw him back to the bed. He removed the lower part of the victim's pyjamas but proceeded to fellate him. Further blows were struck, some about the face, when the victim did not cooperate in the sexual attack which was being visited on him. The applicant stole a collection of fifty-cent coins which were in mint condition. 5 He left the victim in the premises after taking keys with which he let himself into the victim's garage whereafter he drove off in the victim's car. 6 The victim was discovered by police at his residence and taken to Tumut Hospital. He was semi-conscious and suffered a suspected broken jaw and multiple cuts and abrasions about a considerable part of his body. 7 The stolen vehicle was found abandoned shortly before 8 am on the morning of the offences. One of its wheels had been sheared off. 8 On the following Monday morning the applicant was reported to have spent some commemorative fifty-cent pieces in near new condition at a local store. In addition police had located identifiable fingerprints near the point of entry at the broken window. 9 The applicant was arrested. He denied that he had ever been to the victim's house and claimed that his father had given him the coins for the purpose of cigarette purchase. Although he made these initial denials to police, as I have already observed he pleaded guilty when brought before the Local Court. 10 On the first charge the applicant was sentenced to imprisonment for twelve years with a non-parole period of nine years and on the second charge to imprisonment for a fixed term of two years. The Form 1 offences were taken into account in fixing the sentence on the first charge. 11 The submission of the applicant is that Herron DCJ's sentencing discretion miscarried and that a different, less severe, sentence is warranted and ought to have been imposed. 12 That comprehensive submission is sought to be supported by reference to four matters which the Court is invited to look at severally and cumulatively. 13 The first phase of argument has reference to the subjective case presented by the applicant at the hearing in the District Court and, having regard to the applicant's qualities, his unsuitability as a vehicle for conveying general deterrence. 14 The submission is that there was error in failing to give adequate weight to the applicant's intellectual disabilities and to temper the weight given to general deterrence as a result of such disabilities. Reference is made to oft quoted authorities such as R v Letteri unreported CCA 18 March 1992; R v Scognamiglio 1991 56 A Crim R 81 and others. 15 His Honour had a psychological report which included some testing results which placed the applicant in the extremely low range of intellectual functioning. It is plain that his Honour did not overlook this material and he made express reference to the applicant's youth and that he was "somewhat dull and backward to put the matter at its lowest". The evidence did not propose that the applicant was mentally retarded or developmentally delayed or suffering from any diagnosed psychiatric illness. The Crown submission that there was no evidence of any casual link between the applicant's low intelligence and the commission of the offences is correct. The submissions on behalf of the applicant fail to distinguish between a conclusion relating to statistical low intelligence and the type of handicaps which give rise to the considerations discussed in the authorities. There was no error as contended. 16 The second basis of submission has reference to the account given in assessing sentence to the applicant's plea of guilty. It was submitted to this Court that his Honour's remarks in relation to the plea of guilty were difficult to understand. With respect to that submission I do not find it so. It is, of course, technically true that the applicant did not plead guilty before his Honour but had been committed for sentence after pleading guilty before the magistrate but the whole proceedings were conducted on the basis that the applicant had pleaded before the magistrate and his Honour was at pains to ensure the applicant appreciated his situation. Indeed the transcript shows that he confirmed directly with him that the applicant had discussed the matter with his legal representative and he observed "and there is no problem about you knowing exactly what is alleged against you". 17 His Honour made an express finding concerning the grant of "discount" for plea of guilty in his remarks on sentence and he quantified it. 18 It is complained that his Honour described the discount of fifteen percent as generous and it is contended that this is an error by reason of the mention of a range between ten and twenty five percent in R v Thomson 2000 49 NSWLR 383. It cannot be deduced from the expression of that range that a figure below the upper extent of it is ungenerous. Every discount in every case must relate to the particular circumstances. The Chief Justice in Thomson includes the observation: "It is also pertinent to state that a discount of ten to twenty five percent is not a range within which trial judges may exercise a discretion that will not be subject to appellate review. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not on the range appropriate for pleas in the full variety of circumstances." 19 The third facet of submission is presented under a heading in the written submissions "Provocation and Prior Sexual Assaults". 20 The submission is that his Honour fell into error in concluding that evidence of sexual abuse suffered by the applicant at the hands of the victim was not capable of affecting the exercise of sentencing discretion. The first observation to be made is that his Honour did not speak of whether such evidence was capable of being so used but rather that in the instant case it did not affect his assessment. 21 A second part of the submission contends that his Honour did not apply the proper standard of proof namely proof by the applicant, the balance of probability. His Honour stated that he very much doubted that there was any truth in the allegation of prior abuse made by the applicant against the victim. That may not incant the onus of proof in conventional terms but it is clear beyond argument that that statement indicates a failure to demonstrate the probability of what is asserted, in this case by the applicant. 22 It is true that in evidence before his Honour the applicant adhered to his assertion that he had been, at some prior time, sexually abused by the victim. He gave no description of what was involved in the generality "sexual abuse". He asserted that he entered the home to ask "why did he do it to me and that and he sort of like – he wrecked my life". The first mention of this alleged sexual abuse, it was conceded, was made after the applicant was taken into custody. There was some evidence from the applicant's grandmother that about the time of this alleged sexual abuse she noticed some change in the behaviour of the applicant. There was also reference to an address in Tumut but there was also before his Honour evidence in a statement from the victim that he had never resided at the particular address. 23 Nevertheless, in the whole of the circumstances, it needs to be observed that the applicant arrived in the dead of night armed with a large knife, broke into the premises, and when he was there stole money and a car as well as performing a gross sexual act upon the victim. In my view it hardly needed elaboration why the applicant's assertion that he came to enquire "why the victim had wrecked his life" was to be rejected. 24 Given the facts which I have just sketched, a finding that the applicant's assertions had been established on the balance of probabilities might well be regarded as perverse. I do not perceive any error in his Honour's rejection of this material as a matter of mitigation. 25 The fourth and final separate matter advanced on behalf of the applicant is the absence of reference in his Honour's remarks on sentence to the circumstance that the applicant had given evidence that at the time he appeared for sentence he was kept on strict protection within the prison system. The submission is advanced that these are more onerous conditions of custody and that his Honour failed to take this into account in assessing the length of sentence or in considering the issue of special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999. 26 The issue of the applicant's custody was raised during the sentencing proceedings. The applicant gave evidence on a Tuesday and his Honour imposed sentence on the succeeding Friday. It can also be observed that the Crown Prosecutor drew attention to the absence of any specific remark about the finding of special circumstances but observed that reasons had to be given pursuant to statute only if such were being found, and his Honour made it clear that he did not in this case find any. He had specified the sentence at the very beginning of his remarks. 27 What his Honour emphasized in this remarks is that he had given attention to the subjective situation relating to the applicant as what he described as "obviously an underprivileged person" but he had also to take into account the grave nature of this particular offence. In so saying he was obviously referring to the charge upon which the longer sentence was imposed. 28 I do not find that any of the applicant's arguments should be sustained nor am I persuaded that the sentences imposed lay outside the range of the sound exercise of the sentencing judge's discretion. It is a substantial sentence imposed upon a young man who previously had not been sentenced to a term of more than three months but, as his Honour observed, these crimes were grave indeed. I would grant leave to appeal against sentence but dismiss the appeal. 29 SHAW J: I agree with the judgment and orders proposed by Grove J. 30 GROVE J: The orders of the court therefore will be as I have proposed. ********** Last Modified: 07/11/2003 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.