New South Wales Court of Criminal Appeal CITATION : R v Brownlowe [2004] NSWCCA 465 HEARING DATE(S) : 14 December 2004 JUDGMENT DATE : 20 December 2004 JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2; Barr J at 46 DECISION : Leave to appeal granted, appeal dismissed. CATCHWORDS : application for leave to appeal against sentences - detaining for advantage - aggravated sexual assault - indecent assault - total accumulation of sentences imposed in respect of rape offences on the sentence imposed in respect of detention offence - common elements between offences - relevance of sentencing patterns from foreign jurisdictions - synchronicity with English guidelines - parity - whether overall sentence imposed has been shown to be manifestly excessive LEGISLATION CITED : Crimes Act 1900, s61J, s61L, s90A Lowe v The Queen [1984] HCA 46; 154 CLR 606 Pearce v The Queen [1998] HCA 57; 194 CLR 610 CASES CITED : Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Billam [1986] 1 All ER 985; 1 WLR 349 R v Millbery; R v Morgan; R v Lackenby [2002] EWCA Crim 2891; [2003] 2 All ER 939 Siganto v The Queen [1998] HCA 74; 194 CLR 656 PARTIES : Crown - Respondent Raymond Brownlowe - Applicant FILE NUMBER(S) : CCA 2002/2507 COUNSEL : DC Frearson SC - Crown P Byrne SC/ I McLachlan - Applicant SOLICITORS : SE O'Connor - Crown Ross Hill & Associates - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 01/51/0054 FILE NUMBER(S) : LOWER COURT Job ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2002/2507 WOOD CJ at CL SIMPSON J BARR J Monday 20 December 2004 REGINA v Raymond BROWNLOWE Judgment 1 WOOD CJ at CL: I agree with Simpson J, and also with the observations of Barr J, save for one minor reservation. I can see a limited role for a reference to authorities, including guideline judgments from other jurisdictions, when this Court is itself considering an application for a guideline judgment. Otherwise, however, I do not consider that such judgments are of any assistance and I would seriously discourage their use. 2 SIMPSON J: On 13 March 2002, following a trial which had commenced on 18 February, the applicant was found by a jury in the District Court at Parramatta to be guilty of all counts on an indictment which charged the applicant with one count of detaining for advantage, five counts of aggravated sexual assault and one count of indecent assault. Pursuant to s90A of the Crimes Act 1900 (the section applicable at the time the offences were committed), the charge of detaining for advantage carried a maximum term of imprisonment for 20 years (or if it were proved to the satisfaction of the sentencing judge that the victim had been liberated without substantial injury) 14 years; pursuant to s61J, the offences of aggravated sexual assault each carried a maximum penalty of 25 years' imprisonment; and pursuant to s61L the charge of indecent assault carried a maximum term of imprisonment for five years. 3 On 6 June 2002 Acting Judge Job sentenced the applicant as follows: count 1: detain for advantage: imprisonment for 12 years, commencing on 20 July 1999, with a non-parole period of nine years, the non-parole period to expire on 19 July 2008; counts 2 to 6 inclusive: aggravated sexual assault: on each count, imprisonment for 12 years to commence on 20 July 2008, with a non-parole period of six years; count 7: indecent assault: imprisonment for a fixed term of three years, to commence on 20 July 2008. 4 It will be seen that the sentences in respect of the sexual assaults and the indecent assault, while ordered to be served concurrently with one another, were made wholly cumulative upon the non-parole period specified in respect of the first count. 5 Thus, the applicant was sentenced to an effective total term of imprisonment for 21 years commencing on 20 July 1999, with an effective non-parole period of 15 years. The combined non-parole periods will expire on 19 July 2014. The applicant seeks leave to appeal against the severity of the sentences. He has abandoned an earlier filed appeal against the convictions. facts 6 That the facts of the offences may be stated with relative brevity should not in any way detract from their horrific nature. The complainant was a woman of about 25 years. She lived in Byron Bay. During the evening of Thursday 10 June 1999 the applicant, in company with another man, Martin Pate, devised a plan to abduct and sexually assault a woman. They were, at the time, in the applicant's car. At the applicant's suggestion they drove into Byron Bay to a place where the applicant believed prostitutes were to be found. They saw the complainant on a Byron Bay street and followed her. Pate took the controls of the applicant's car. The applicant followed the complainant on foot, on the opposite side of the road. He ran across the road and grabbed her; she half screamed and fell to her knees. The applicant dragged her to the car and, with Pate's help, pushed her onto the rear seat. He told the complainant to "shut up", and not to do anything stupid. He said he had a gun, and that she would get hurt or that she would die. He told her to do as she was told and she would be alright. 7 They drove to the applicant's home, a little distance out of town. The applicant handcuffed the complainant while she was face-down on the seat. He taped a balaclava to her head. Pate also told the complainant to "shut up" with a threat to kill her. The applicant and Pate led the complainant into the house, continuing to threaten her, and eventually removed the handcuffs. The applicant obtained a gun and some bullets and placed the gun under the complainant's nose so that it was visible to her below the balaclava. The applicant then obtained a knife. Pate and the applicant injected amphetamine and they forced the complainant to consume amphetamine and bourbon and coke. 8 Pate was the first to engage in sexual intercourse with the complainant. He was unable to obtain an erection and performed cunnilingus and otherwise sexually interfered with her. 9 The applicant then entered the room where the complainant was held and removed his clothes. He told her to lie down, forced her legs apart and performed cunnilingus. He forced her to perform fellatio upon him and then engaged in penile/vaginal intercourse. At her request he gave her a cigarette and left the room for a time but returned and told her he was going to have sex with her again and told her to spread her legs. He again engaged in penile/vaginal intercourse, and then again, this time entering from behind. When she refused to cooperate he threatened to kill her. He then manually penetrated her vagina. The complainant was bleeding from the vagina and was given soap and a bucket of water to use to wash herself. 10 She persuaded the applicant to return her to Byron Bay, on her promise not to report the matter to police. The applicant again required that she have sex with him, but she refused. He insisted that she masturbate him which she did. Pate threatened he'd "chop her up with a shovel" if she reported the offences. 11 The applicant put the balaclava on the complainant's head again and drove her back to Byron Bay. This was in the early evening of the following day, Friday 10 June. The complainant had been the prisoner of the applicant and Pate for almost 24 hours. 12 A victim impact statement was put before the sentencing judge. There is nothing surprising in this document. The complainant attested to a major change in personality and lifestyle following the attack and said that she had found it necessary to relocate to another state, severing associations with friends and family, including terminating a four year relationship with her former partner. subjective circumstances 13 The applicant was born on 13 October 1954. He was 44 years of age at the time of the offences. He had a very lengthy criminal record which had commenced when he was a juvenile and included a number of offences of armed robbery in one form or another. He had been released from prison in October 1998, less than a year prior to the commission of these offences, and was still subject to a parole order in respect of that sentence. 14 Before the sentencing judge were a number of psychiatric and psychological reports, all testifying to an extremely dysfunctional childhood and adolescence. The applicant's mother had died of cancer when he was seven or eight. His father thereafter made some semblance of caring for the applicant and his brother but was violent towards the applicant and tied him to a clothesline and beat him. The applicant told one psychiatrist that he had been sexually abused by boarders living in his father's home. 15 A younger sister had been adopted out after the mother's death. The applicant's father died at the age of 47 in 1978. 16 Not surprisingly the applicant did not do well at school, and at the age of 16 was placed in a juvenile facility. 17 During one of his periods in prison, in February 1995, the applicant was seriously assaulted by five inmates and stabbed in the chest five times. He believed that the men intended to kill him. 18 The stabbing seems to have had a profound effect upon the applicant. The psychiatric and psychological reports were unanimous in diagnosing post-traumatic stress disorder. Other psychiatric disorders were also diagnosed, including major depression, anxiety, drug and alcohol use, personality disorder. One psychiatrist found it difficult to determine whether his personality problems arose from constitutional factors or reflected his abused childhood. He regarded the long-term prognosis as uncertain. the remarks on sentence 19 In sentencing the applicant Acting Judge Job recounted the facts of the offences. He referred to the victim impact statement and said: " ... it would be fair to say that what happened to that young lady that night will never be out of her mind, and could be said that has ruined her life." This was undoubtedly correct and was not the subject of challenge. 20 The judge referred also to a number of favourable references tendered on behalf of the applicant, including one from a TAFE teacher who has known the applicant during his periods of incarceration. * * * 21 The co-offender, Pate, was charged with two offences, one of detaining with intent to hold for sexual advantage and one of aggravated sexual assault without consent. He entered a plea of guilty to each charge, and gave an undertaking (which he honoured) to give evidence against the applicant. 22 By the time he gave evidence Pate had been sentenced by Judge Hosking in the Lismore District Court. That occurred on 9 November 2000. The sentence imposed on him, after the allowance of a 35% discount reflecting his plea of guilty and his cooperation with authorities, was a total period of seven years, nine months and fourteen days, with a non-parole period of five years, ten months and one day. 23 Judge Hosking, in sentencing Pate, concluded that he was not the instigator of the offences. He found him to have been of limited intellectual ability and would be likely to serve his sentence in protection. 24 Pate was born on 3 April 1966 and was considerably younger than the applicant, although, at 33 at the time of the offences, certainly not a young offender. He had only one prior conviction, of cultivating a commercial quantity of cannabis. He also was on parole at the time of the offences. Hosking DCJ was of the opinion that Pate was "thoroughly ashamed" of and "remorseful" for his behaviour. the application 25 The application for leave to appeal against the sentences is founded upon the proposition that the aggregate of the sentences was manifestly excessive. This was supported by two specific grounds, asserting: (i) error in the application of the principles stated in Pearce v The Queen [1998] HCA 57; 194 CLR 610; (ii) error in the application of the principles of parity. (i) the Pearce principles 26 The first matter, the complaint about the application of the principles stated in Pearce, was in reality a complaint about the total accumulation of the sentences imposed in respect of the rape offences on the sentence imposed in respect of the detention offence. That was, in turn, in reality a complaint about totality. 27 The reference to Pearce was a reference to paragraph 40, in which the majority (McHugh, Hayne and Callinan JJ) said: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means the defences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 28 In its written submissions the Crown had argued that there were no common elements between the rape offences and the detention offence. That was challenged by senior counsel for the applicant. I would reject the Crown's contention. There was a good deal in common between the detention offence and the rape offences. The specific purpose of the detention was to enable the applicant and Pate to commit the rapes; s90A of the Crimes Act, under which (now repealed) section the charge was brought, contains as an element of the offence that the victim is detained "for ransom or for any other advantage to any person". The "advantage" was the sexual activity in which the applicant and Pate engaged. There were common elements as to the timing of the offences, and the place where they were committed. They were committed by the same two co-offenders and on the same victim. It is, in my view, quite wrong to say that there were no common elements. 29 But that does not mean that either of the sentences had to be reduced by reason of the common elements. It does not mean that the applicant was punished twice for the commission of the elements that were common. The applicant was punished for having detained the complainant over a period of almost 24 hours; and he was punished also for the series of rapes that he committed upon her. I see no reason to conclude that there was any element of double punishment in the structure of the sentences. Indeed, as I understood senior counsel's submissions, he accepted that the individual sentences, of twelve years in each case, with a non-parole period of nine years in respect of the detention, and a non-parole period of six years in respect of the rape offences, were not outside the range legitimately available. The entire focus of the attack was upon the accumulation. 30 In oral argument senior counsel urged upon the Court the decision of the English Court of Appeal, Criminal Division in R v Millbery; R v Morgan; R v Lackenby [2002] EWCA Crim 2891; [2003] 2 All ER 939. This was a guideline judgment delivered by the Court of Appeal in respect of sentencing for offences of rape. It was proposed that this Court should find some guidance in respect of the appropriate sentence for a rape offence from the English guidelines. I expressed disquiet at the time that submission was put. My disquiet is not in any way diminished after reflection. While I appreciate the benefits that courts of one jurisdiction might gain from courts of another in relation to principles of law, particularly those courts in jurisdictions having a common heritage, I do not accept the proposition that sentencing practices are included in the kinds of matters on which such benefits may be gained. 31 Having said that, the decision in Millbery could afford the applicant no comfort at all. Reliance was placed upon the following paragraph, which was drawn from an earlier guideline judgment in R v Billam [1986] 1 All ER 985; 1 WLR 349. That paragraph relevantly reads as follows: "For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years. At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime on a number of different women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate. Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate." 32 The Court in Millbery effectively readopted these guidelines for the purpose of the exercise before it. The Court was in fact reconsidering these guidelines in the light of advice given to it by the Sentencing Advisory Panel, apparently because of legislative changes since the judgment in Billam. 33 Senior counsel argued that the mid-point of the sentences proposed in Millbery, a starting point of eight years, would be appropriate for the present offences. Of the three offence profiles outlined, I accept that the second most nearly coincides with the applicant's offences. They were committed by two men acting together, and they involved abduction. Certainly they were not offences committed by an adult male without any aggravating features (although it is difficult to see any features mitigating to these offences) to bring them within the profile that is said to justify a starting point of five years; and, subject to what appears below, in [36], they were not part of a campaign of rape, warranting consideration of a sentence of 15 years. 34 In reconsidering offences attracting the eight year starting point, Lord Woolf identified features the presence of any one of which were said to justify that starting point. These were what might, in NSW terminology, be called "aggravating features". They were listed as: (i) rape committed in company; (ii) rape committed by a person in a position of responsibility towards the victim; (iii) rape committed by a person in whom the victim has placed trust by virtue of an office or employment; (iv) abduction and holding captive; (v) rape of a child or vulnerable victim; (vi) racially aggravated rape; (vii) repeated rape in the course of one attack; (viii) rape by a man knowingly suffering from a life-threatening sexually transmissible disease. A further aggravating feature later identified was: "the covert use of a drug to overcome the victim's resistance and/or obliterate his or her memory of the offence." 35 It is to be observed that, of the original list, the first, the fourth and the seventh exist in the present case. The fact that no less than three of the aggravating features were present suggests an increment on the eight year starting point. And, although the use of the drug was not covert, and its purpose was not apparent, the complainant was forced to consume both amphetamines and alcohol. It is to be observed that the eight year starting point was said to be justified by the presence of any of those features. 36 In considering the 15 year starting point offences, those described in Billam as involving a "campaign of rape", Lord Woolf included cases involving repeated rape of the same victim over a course of time. That is certainly present here, and it would not be difficult to conclude that the applicant could be fitted into that category. 37 It seems reasonably clear from the judgment that the starting points were intended to be what, in NSW, would be called the non-parole period. I say this because, in para [19] of the judgment, there is a reference to "the minimum time that an offender convicted of rape should actually spend in custody", this in the context that the sentence guidelines represent sentences imposed after trial, without the conventional discount attracted by a plea of guilty. Regard to the sentences imposed in the individual cases associated with the guideline judgment reinforces the view that the "starting points" were intended to be minimum custodial terms. 38 Particular attention was drawn to the individual case of Lackenby, who had been sentenced to ten years' imprisonment, concurrent, in respect of two offences of rape and one of attempted rape, to which he pleaded guilty. It appears that the ten years was the term which he was required to serve – that is, the minimum term or non-parole period. 39 Thus, on close examination of the reasoning in Millbery, the applicant's sentences appear to be in perfect synchronicity with the English sentencing patterns. In Lackenby it was said that: "The period of his licence was also extended for seven years." I take this to mean that the total term of the sentence (in the language this Court would use) was of seventeen years. 40 It is to be observed that Lackenby had pleaded guilty to the three offences I have mentioned. Had he not done so, then applying the sentencing discount relevant to a plea of guilty that applies in NSW, his sentence would have been more than 22 years, and his non-parole period more than 17½ years. And that, it is to be recalled, was in respect of two offences of rape and one of attempted rape, with no detention, no co-offender, no administration of drug. 41 In my opinion, notwithstanding my view that this Court does not need to go to other jurisdictions for guidance in relation to sentencing patterns, and that the decision has little if any relevance, to the extent that it bears upon the outcome of the present case, the decision in Millbery does nothing other than to confirm that the course taken by Job ADCJ was very substantially in conformity with the English sentencing guideline. (ii) parity 42 An attempt was made on behalf of the applicant to show that, by reason of contrast with the sentences imposed upon Pate, the applicant had a justifiable sense of grievance in accordance with the principles stated in Lowe v The Queen [1984] HCA 46; 154 CLR 606; Postiglione v The Queen [1997] HCA 26; 189 CLR 295; Siganto v The Queen [1998] HCA 74; 194 CLR 656. The complaint is unsustainable. It was accepted that the applicant was the instigator of the offences. He was significantly older than Pate. He was charged with more than double the number of offences. Pate pleaded guilty. He gave evidence against the applicant. There is no basis for a finding that the applicant was entitled to rely on considerations of parity. 43 Specific parity complaint was made in relation to the question of accumulation. It was pointed out that, in sentencing Pate, Hosking DCJ imposed wholly concurrent sentences, while, in sentencing the applicant, Job ADCJ wholly accumulated six sentences upon one sentence. I do not see this as a relevant consideration. The real point of the application concerns the overall aggregate sentence. (iii) was the sentence manifestly excessive? 44 It remains to consider whether, as a matter of totality, the overall sentence imposed has been shown to be manifestly excessive. In this regard, it is relevant to return to the brutal and sustained nature of the offences. The complainant was held, terrorised, for almost 24 hours. She was subjected to repeated, and varied, forms of sexual humiliation. Her life was threatened. She was forced to consume drugs and alcohol. She had her face covered, with a balaclava taped to her head. Her hands were handcuffed. 45 I am not persuaded that the overall sentence has been shown to be manifestly excessive. I would grant leave to appeal but dismiss the appeal. 46 BARR J: I agree with Simpson J, save that I do not think that any conclusion can be drawn from Regina v Millbery & Ors 2002 EWCA Crim 2891; [2003] 2 All ER 939. In my opinion sentence cases from foreign jurisdictions are of no assistance as indicating appropriate sentencing ranges in New South Wales. Conditions in such jurisdictions are likely to be different from those that obtain in this State. Maximum sentences are different; sentence structures and components are different; parole rules are different; offences may be different. Judges in such jurisdictions may take a more serious or more lenient view than New South Wales judges when deciding how to sentence. In my opinion such cases ought not to be cited for the purpose of indicating relevant sentencing ranges. ********** Last Modified: 12/23/2004 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.