REGINA v Corey ALLAN [2004] NSWCCA 107

New South Wales Court of Criminal Appeal

CITATION : REGINA v Corey ALLAN [2004] NSWCCA 107 HEARING DATE(S) : 14/4/04 JUDGMENT DATE : 29 April 2004

JUDGMENT OF : Tobias JA at 1; Kirby J at 2; Bell J at 3 DECISION : Leave to appeal granted; Appeal dismissed

Johnson v The Queen [2004] HCA 15 CASES CITED : Mill v The Queen (1988) 194 CLR 610 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Regina v AEM [2002] NSWCCA 58 PARTIES : Corey ALLAN (Applicant) Regina (Respondent) FILE NUMBER(S) : CCA 60518/03 COUNSEL : G Brady (Applicant) GIO Rowling (Crown) SOLICITORS : T Jackson (Applicant) S Kavanagh

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0011 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60518/03

TOBIAS JA KIRBY J BELL J

Thursday 29 April 2004 REGINA v Corey Anthony ALLAN Judgment 1 TOBIAS JA: I agree with Bell J. 2 KIRBY J: I agree with Bell J. 3 BELL J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant by his Honour, Judge Freeman (the Judge) sitting in the Tamworth District Court on 17 April 2003. The applicant was convicted following trial of each of the three counts charged in the indictment as follows: "(i) On 11 January 2002 at Tamworth he did break and enter a dwelling house situate at 11/104 Bridge Street within intent to commit a serious indictable offence therein, namely, sexual intercourse without consent; (ii) That on the same date and at the same place he did assault DMW and at the time of such assault did commit an act of indecency on DMW; (iii) That on the same date and at the same place did attempt to have sexual intercourse with DMW without her consent and knowing that she was not consenting thereto." 4 The applicant was sentenced to a term of four years' imprisonment to date from 4 April 2003 for the offence charged in count one. A non-parole period of one year expiring on 3 April 2004 was specified. A fixed term of imprisonment for one year to date from 4 April 2004 and to expire on 3 April 2005 was imposed for the offence charged in count two. A sentence of four years' imprisonment, to date from 4 April 2004 and to expire on 3 April 2008, was imposed for the offence charged in count three. A non-parole period of 18 months to date from 4 April 2004 and to expire on 3 October 2005 was specified with respect to this offence. The sentences in the aggregate amounted to a total of five years' imprisonment with an effective non-parole period of two and a half years. 5 The facts upon which the Judge sentenced the applicant were summarised by his Honour as follows: "The facts which the jury must have accepted and which were clearly upon to them (sic) on the evidence may be briefly stated as follows: - during the evening of 10 January 2002 and in the early hours of the morning of the 11th, the victim, her friends Ms Davis and a Mr Stead were drinking and dancing at an establishment here in Tamworth at which the prisoner was also present. The victim and the prisoner were known slightly to each other having attended the same school. The victim invited Mr Stead back to Ms Davis' flat at which the victim was going to spend the night, and the three, Ms Davis, the victim and Mr Stead walked from the establishment when it closed at about 3 in the morning to a nearby service station. There a further encounter took place between the prisoner and at least Mr Stead in which the prisoner made known his desire to have sexual intercourse either with Ms Davis or the victim. It appears that he was given no assurances by Mr Stead in that regard, but he, that is the prisoner, tagged along with the others when they walked from the service station to Ms Davis' flat. Soon after their arrival, Ms Davis, pleading a headache went to bed. The victim and Mr Stead returned to a second bedroom where there was apparently consensual sexual intercourse which took some period of time perhaps an hour and a half. During this time the prisoner waited in the lounge room of the flat. When it became clear that Mr Stead was about to depart, the prisoner tried to persuade the victim to engage in sexual activity with him, even going to the extent of offering her money, but these overtures were rebuffed. The two men, Mr Stead and the prisoner then left, the prisoner manifesting some chagrin at what he perceived to be Mr Stead's failure to assist the prisoner in pressing his suit upon the victim. After they left one another's company, Mr Stead proceeded to his home address some considerable distance away. The prisoner on the other hand clearly returned to the flat occupied by the two young women. It appears that he was able to obtain access to the flat because the front door, although closed, had not latched its lock properly, so that he entered and then opened the bedroom door of the room in which the victim was lying. There was a short conversation, he asking for a drink of water, then asking for a hug and then seizing the victim who was at that stage dressed only in a sheet wrapped around herself. He threw her to the floor, fondled and sucked her breasts and attempted to have his way with her. She screamed, roused Ms Davis, the prisoner fled." 6 The applicant was aged 21 years at the date of the commission of the offences. He had no prior convictions. A number of affidavits were tendered on his behalf. The Judge found the applicant to have been a devoted son, a good worker and a person who was interested in bettering himself, despite the fact that he had left school with limited literacy and numeracy skills. His childhood had been disrupted by the separation of his parents in circumstances of some acrimony. He had been profoundly affected by the loss of his close relationship with his mother following the separation. 7 The offences occurred at a time when the applicant was affected by the consumption of a considerable amount of alcohol. The Judge was of the view that the applicant needed assistance with a developing problem in this respect.