R v Anderson [2002] NSWCCA 304

New South Wales Court of Criminal Appeal

CITATION : R v Anderson [2002] NSWCCA 304 FILE NUMBER(S) : CCA 60166/02 HEARING DATE(S) : 14/06/02 JUDGMENT DATE : 14 June 2002

PARTIES : Regina Ronald James Anderson JUDGMENT OF : Spigelman CJ at 1; Adams J at 52; Blanch AJ at 53

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/51/0105 LOWER COURT JUDICIAL Bellear DCJ OFFICER :

COUNSEL : W Dawe QC (Appellant) C B Craigie SC (Respondent) SOLICITORS : S E O'Connor (Appellant) Pollack Greening Hampshire (Respondent) CATCHWORDS : CRIMINAL LAW - sentence - Crown appeal against leniency - whether sentences manifestly inadequate - detaining for advantage, aggravated robbery, aggravated sexual assault - whether adequate weight given to totality - whether method of accumulation appropriate. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v AEM [2002] NSWCCA 58 Veen v The Queen (No 2) (1998) 164 CLR 465 DECISION : Appeal allowed. Sentences for aggravated sexual assaults and escape from lawful custody quashed. Sentences for aggravated sexual assaults made partially cumulative. Sentence for escape from lawful custody consequentially amended.

- 15 -IN THE COURT OF CRIMINAL APPEAL 60166/02

SPIGELMAN CJ ADAMS J BLANCH J

Friday 14 June 2002 REGINA v Ronald James ANDERSON Judgment 1 SPIGELMAN CJ: This is a Crown appeal against sentence. The Respondent pleaded guilty to a range of offences which he committed over the course of 1 and 2 March 2001, together with a co-offender, commencing with escape from lawful custody and then a number of property and sexual assault offences. 2 The Respondent and his co-offender, Sydney Justin Bowtell, were inmates at the Grafton Correctional Centre. Both were serving lengthy sentences for crimes of violence. Some time on the evening of 28 February 2001 or the morning of 1 March 2001, the two prisoners escaped from the minimum security section unit and scaled the external wall of the Correctional Centre utilizing a homemade grappling hook. 3 By the evening of 2 March they had made their way to Sawtell Beach where the victim, a fifty year old woman, had the misfortune to be out for a walk. As she proceeded along a track near the beach, she was attacked by the two escapees. She was assaulted and, although screaming and fighting with her attackers, she was subdued, tape was used to cover her mouth and her hands were tied with a cord and a piece of rope. She was taken to her own motor vehicle and placed in the rear seat. The offenders drove off in the vehicle with her. The victim claims that during this period she was scared and believed she was going to be killed or tortured. 4 The car was driven to an area of bushland believed to be in the Bruxton State Park Forest. The victim was taken out of the car and placed on the boot lid. She was stripped naked by the two offenders. They took turns having penile/vaginal intercourse with her. The victim believes that each of the offenders had intercourse with her on about four or five occasions. She was also forced on one occasion to have oral intercourse with the Respondent. 5 During this period the victim remembers being threatened with a pair of scissors and the statement being made to her that the offenders would "fill you full of holes". There was also a reference to "we could slit your throat". The sexual assault on the boot lid of the car was the subject of one of two charges of aggravated sexual assault. 6 The two offenders then forced the victim into the car. The co-offender drove the vehicle at high speed along the bushland track. During this period the Respondent had further sexual intercourse in the rear seat of the vehicle with the victim. This was the subject of the second charge of aggravated sexual assault. 7 The victim's ordeal had not then ceased. She was driven to another unknown location where the Respondent again had penile/vaginal intercourse with her in the car. She was taken out of the car and the co-offender then had sexual intercourse with her again, whilst the Respondent kept a lookout. 8 During the course of the escapade the offenders had taken $20 from her wallet at one point to buy petrol. Subsequently she was taken to an automatic teller machine and forced to withdraw $50 with which the offenders purchased some cigarettes and drink. These two incidents were the subject of two charges of aggravated robbery. 9 Eventually the victim was released and the two offenders drove off in her car. She had been kidnapped and detained by he offenders from sometime in the evening of 2 March until about 11.00pm that night. 10 At about 11.30pm the vehicle was involved in a fail to stop accident with a State Emergency vehicle. The accident was witnessed by a police officer who attempted to stop the vehicle unsuccessfully. Grafton Highway Patrol intercepted the vehicle and a pursuit ensued. The cars travelled at high speed into the town of Grafton. The car was driven by the co-offender at speed and in a manner dangerous to the public and the police officers involved. The pursuit concluded when both offenders left the vehicle in a paddock area known as Bushgrove, situated on the Pacific Highway approximately 15 kilometers north of Grafton. An extensive search by police utilising specialist officers and air support, was undertaken, resulting in the arrest of the Respondent in a nearby paddock, some six hours after he had left the vehicle. 11 The Respondent had been incarcerated at Grafton Correctional Centre on two counts of inflicting grievous bodily harm with intent to inflict grievous bodily harm. He had been sentenced to ten years imprisonment on each count, commencing on 19 April 1994 with a minimum term of seven years and six months. The minimum term would expire on 17 October 2001 and the final release date would have been 18 April 2004. As will presently appear his Honour commenced a number of the sentences on 18 October 2001. Although, in the circumstances, it is inconceivable that the Respondent could have been released to parole on the expiration of his minimum term, it was nevertheless appropriate for his Honour to ensure that this was so. 12 On the count of stealing a motor vehicle contrary to s154AA(1) of the Crimes Act 1900, with its maximum penalty of ten years imprisonment, his Honour imposed a fixed term of three years commencing on 18 October 2001 and expiring on 17 October 2004. On the one charge of kidnapping, contrary to s90A of the Crimes Act 1900, for which the maximum penalty is twenty years imprisonment, his Honour imposed a fixed term of five years commencing on 18 October 2001 and expiring on 17 October 2006. 13 With respect to the two offences of aggravated robbery under s95(1) of the Crimes Act 1900, which has a maximum penalty of twenty years, his Honour noted that the circumstances of aggravation were the infliction of actual bodily harm on the victim and the deprivation of liberty. His Honour imposed a fixed term of four years commencing on 18 October 2001 and expiring on 17 October 2005. 14 The above sentences were concurrent with each other and commenced at the expiration of the minimum term of the Respondent's existing sentences. In the circumstances, it is, in my opinion, inconceivable that the Respondent would be released to parole on 18 October 2001. He would have served his full sentence until 18 April 2004. Accordingly, the consequence of partial accumulation in the manner his Honour adopted was, in substance, to reduce by two and a half years the effective sentence for each of these offences. 15 His Honour then dealt with the two counts of aggravated sexual intercourse. In the case of the single act of intercourse in the motor vehicle whilst the car was being driven along a bush track at high speed, he sentenced the Respondent to a fixed term of six years commencing on 18 October 2002 (i.e. a year after the commencement of the other sentences, but still eighteen months before the expiration of the full term for the sentences being served at the time of the escape). This sentence will expire on 17 October 2008. 16 For the other charge of aggravated sexual intercourse, namely, the repeated rapes on the boot of the car, the Respondent was sentenced to eleven years imprisonment, commencing on 18 October 2002 and expiring on 17 October 2013, with a non-parole period of six years, commencing on 18 October 2002 and expiring on 17 October 2008. Again, it is relevant to note that, on the assumption that I believe is entirely appropriate that the Respondent would not be released to parole for the charges on which he was serving a sentence at the time of the escape, the effective non-parole period for this offence is four and a half years 17 His Honour then came to sentence for the offence of escape from lawful custody. He referred to s57 of the Crimes (Sentencing Procedure) Act 1999, which requires the Court to impose such a sentence consecutively upon any other sentence of imprisonment, which the Respondent was serving at the time of the escape from lawful custody or which was imposed in the same proceedings. (In either case, the consecutive sentence is to commence on the expiration of the non-parole period of the sentence, or the term of the sentence, in a case where there is no non-parole period.) His Honour chose the latter of the two alternatives, that is, making the sentence for the escape, consecutive upon the other sentences upon which he was sentencing the Respondent at the time. 18 His Honour fixed a term of two years imprisonment consecutive on the non-parole period for the aggravated sexual intercourse offence and also, it appears, at the expiration of the fixed term of six years for the other aggravated sexual intercourse offence. Accordingly, the sentence for the escape from lawful custody offence will commence on 18 October 2008 and expire on 17 October 2010. 19 The effect of sentencing in this way was to have the sentence for escape from lawful custody expire on 17 October 2010, three years before the expiration of the head sentence for the longer of the two sentences for aggravated sexual intercourse. Although there was nothing in the history of the Respondent to suggest any serious prospect of being released to parole, it was appropriate to act on the assumption that there was some hope in this regard. Plainly, the future conduct of the Respondent would determine this matter. 20 His Honour accurately described the conduct of the Respondent and his co-offender as: "despicable, atrocious, dehumanising acts against the one female, who appeared absolutely helpless throughout the ordeal." The terror induced in the victim and the physical abuse to which she was subjected over a sustained period of time, indicated that the offences of aggravated sexual assault were of the highest gravity. 21 His Honour rejected the Crown submission that these offences were in the "worst category" of such offences. However, he did find that the aggravated sexual assault offences fell "just short of that category". No doubt, in this regard, his Honour had in mind the degree of physical injury involved to the victim. That was substantial, involving abrasions and bruising to various parts of the victim's body, including the neck, shoulder, arms, lower back, right leg, left thigh, left ear, lips, throat, right wrist, left upper leg and both lower legs. She also had a dislocated left knee and a labial split on the introitus and mons. These injuries were a manifestation of the physical violence to which she had been subjected. 22 The injuries were substantial, but the worst class of case of an attack of this character could involve injuries of a more substantial kind than bruising and abrasions and also, a higher level of threat, over a sustained period, instilling fear for the victim's life. I agree with his Honour that the offences in the present case fell "just short" of the worst class of case. The issue is whether or not that was reflected in the sentence his Honour imposed. 23 His Honour summarised what was put before him in terms of the subjective circumstances of the Respondent, particularly in the form of a psychological report. This included his family history, particularly the point in time in his youth after the death of a sister when his father's behaviour changed to the extent that he was subject to significant beatings. He grew to hate his father. 24 He left school at the beginning of Year 8 and, initially, found a job. He commenced his long involvement with the criminal justice system at the age of nineteen with offences of break, enter and steal to obtain money for drugs. He subsequently had two relationships which produced three children. The psychologist's assessment noted that his "presentation and personality profile and his record of offences implies that he is dangerous and he is strangely aware of that himself". 25 There is nothing in the subjective circumstances of the Respondent to justify any substantial mitigation on the sentence that would be imposed on the basis of the objective gravity of the offences. The only element of hardship is his self-reported victimisation by his father as a youth. No doubt, that may have served, historically, as part of the explanation for his subsequent career of anti-social behaviour. It is not of a character that is entitled to significant weight by way of mitigation in the circumstances of the case. Whether or not it constitutes some form of explanation, as the psychologist suggested, it has long since lost significant mitigating effect. 26 The Respondent's criminal record commenced in 1982 with convictions for assault and possession of drugs, which were dealt with in the Local Court. In 1983, he was convicted of offences of goods in custody and three break, enter and steal matters, again dealt with in the Local Court. 27 In 1984, there were convictions for break, enter and steal, driving without a licence, failure to appear and a breach of recognisance. He was sentenced to a period of imprisonment. 28 In 1985, he was sentenced for further drug offences and a further false pretences offence In 1987, he was convicted of assaulting a female and released on a bond. However, later in that year, he was convicted in the District Court of the offence of supplying a prohibited drug and cultivating prohibited plants. He was sentenced to a period of imprisonment. 29 In 1987, he was convicted of a number of offences of stealing, break, enter and steal, failing to appear and possessing a prohibited drug and was sentenced to a number of terms of imprisonment, that were served concurrently with the longer term of imprisonment imposed by the District Court. 30 After his release in 1990, he was convicted of offences of unlawful entry, failure to appear, assault occasioning actual bodily harm, four counts of break, enter and steal, and seven counts of false pretences. He received various prison sentences. 31 In 1992, he was convicted of the offence of escaping lawful custody and sentenced to a short period of imprisonment. In 1994, he was convicted of two offences of maliciously inflicting grievous bodily harm with intent and, on each count, was sentenced to a minimum term of seven years and six months and an additional term of two years and six months. This was the sentence he was serving at the time of his escape. He described the offences as "nearly killing two people". 32 This disgraceful record of anti-social behaviour, demonstrating escalating violence, is such as to indicate that considerations of personal deterrence were entitled to substantial weight in the sentencing exercise. There is also the element of protection of the community, which was entitled to weight, particularly in the light of the psychologist's report, indicating that this particular offender remained a danger to the community. 33 As can be seen from his Honour's imposition of a term of eleven years imprisonment with a non-parole period of six years, his Honour varied the statutory proportion for the non-parole period under s44 of the Crimes (Sentencing Procedure) Act 1999, on the basis that there were "special circumstances" which justified a non-parole period less than three-quarters of the head sentence. 34 His Honour identified the following matters as constituting "special circumstances": "A The prisoner's abusive childhood, upbringing.