New South Wales Court of Criminal Appeal CITATION : R v Sheard [2003] NSWCCA 410 revised - 24/03/2004 HEARING DATE(S) : 16/12/03 JUDGMENT DATE : 16 December 2003 JUDGMENT OF : Hodgson JA at 1; Hulme J at 27; Hidden J at 2 DECISION : Leave to appeal granted, appeal allowed. Sentences imposed in respect of indecent assault counts confirmed. On each of the counts of aggravated sexual assault quash the sentence and non-parole period fixed by his Honour and, in lieu, sentence the applicant to concurrent terms of imprisonment for 9 years, to date from 24.4.2002, with a npp period of 6 years and 3 years. Applicant eligible for release on parole on 23 July 2008. CATCHWORDS : CRIMINAL LAW: Application for leave to appeal against sentence - offences of sexual assault - whether adequate regard to applicant's plea of guilty and remorse - whether finding of premeditation available - failure to take into account protective custody. LEGISLATION CITED : Crimes Act 1900 PARTIES : Crown Phillip Sheard FILE NUMBER(S) : CCA 60283/03 COUNSEL : P Ingram - Crown Applicant in person SOLICITORS : S Kavanagh - Crown Applicant in person LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0119 FILE NUMBER(S) : LOWER COURT Shillington DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60283/03 HODGSON JA HULME J HIDDEN J Tuesday, 16 December, 2003 REGINA v Phillip Richard SHEARD Judgment 1 HODGSON JA: I will ask Hidden J to give the first judgment. 2 HIDDEN J: The applicant, Phillip Richard Sheard, pleaded guilty in the District Court to three charges of aggravated sexual assault with the malicious infliction of actual bodily harm and four charges of indecent assault. The charges of aggravated sexual assault were brought under s 61J of the Crimes Act, carrying a maximum sentence of imprisonment for twenty years. The charges of indecent assault were brought under s 61L of the Act, carrying a maximum sentence of imprisonment for five years. 3 On the three aggravated sexual assault charges the learned sentencing judge sentenced the applicant to concurrent terms of imprisonment for ten years, to date from 2 May 2002, with a non-parole period of seven and a half years. On each of the charges of indecent assault his Honour sentenced him to concurrent fixed terms of imprisonment for three years, also to commence on 2 May 2002. The effective overall sentence was ten years with a non-parole period of seven and a half years. 4 The applicant seeks leave to appeal against those sentences and he has argued his case before us without legal representation. 5 The facts are very serious but there is no need to recite them at length. The complainant was a young woman who was known to the applicant. Indeed, he was her sister's boyfriend. They had been socialising during the evening of 9 March 2002. The complainant returned home in the small hours of the following morning. Her partner, with whom she was living, was out at work, so that she was home alone. She retired to bed and went to sleep. 6 A short time later she was awoken by the applicant who was in bed on top of her naked. He had his hands around her throat and was apparently trying to strangle her. The complainant struggled to breathe and, it must be said, was so terrified that she urinated. She sustained multiple scratches and abrasions as a result of the attack, in addition to multiple pin prick or petechial haemorrhages occasioned by the act of strangulation. She pleaded with the applicant to leave her alone but he forcibly moved her about the bed and committed upon her the offences to which he pleaded guilty. 7 The three counts of aggravated sexual assault involved digital vaginal penetration, digital anal penetration and cunnilingus. The four counts of indecent assault involved his rubbing his penis on the outside of her vagina, fondling her breasts and placing her hand upon his penis, apparently in an attempt to have her masturbate him. After he desisted from this attack the applicant forced the complainant into a cupboard and threatened to kill her if she reported what he had done. 8 His Honour observed, rightly, one must say, "It would be hard to think of a more terrifying set of circumstances than the present". Nevertheless his Honour found that the applicant was well affected by liquor at the time of the offences. 9 The applicant gave evidence that he had no recollection of the offences, a fact which his Honour appears to have accepted. Nevertheless, his Honour was satisfied that the applicant was aware of what he was doing at the relevant time. Indeed, his Honour found that the circumstances suggested a "planned and pre-meditated attack, although one conducted by a man who consumed quite a lot of alcohol." 10 As to that, his Honour had regard to evidence that the applicant had shown an unwelcome interest in the complainant earlier at the hotel, that he had attempted to disguise his voice whilst committing the offences, that he appeared to have been rummaging around in the cupboard to which I have referred before the attack occurred, and that after the event he left the area, having changed his appearance, as his Honour put it, "quite dramatically" by cutting his hair off and dyeing it. To that finding of pre-meditation I shall return. 11 Subjectively, the applicant was twenty-nine at the time of the offences and is now thirty. He had prior convictions for drug offences and offences of dishonesty but had never previously served a gaol term. His pleas of guilty were late and appeared to have been entered after he was acquainted with the strength of the case against him, including some DNA evidence. 12 The applicant gave evidence before his Honour of his remorse, notwithstanding his lack of recollection of the offences. He gave evidence of health problems he had had and of an unfortunate background as a child, to which I find it unnecessary to refer. Significantly, he also gave evidence of an incident which had occurred while he was in custody in which he was assaulted and, in fact, stabbed by some inmates. As a result, he spent a period on strict protection until he moved to another prison, where he has remained on normal protection. 13 In argument before us today, the applicant relied upon a number of complaints about his Honour's approach to the matter, of which it is necessary to refer only to two. There is, in addition, another specific matter to which he did not refer but which I consider significant. 14 I have mentioned the fact that the applicant pleaded guilty, although late, and also that he gave evidence, apparently unchallenged, of his remorse for these offences. His Honour made no reference to the evidence of remorse at all in his remarks on sentence. He did refer to the late pleas of guilty and went on to say that the applicant was entitled to "some discount of the sentences by reason of that circumstance." His Honour observed that the Crown case was, however, strong. That is the extent of what his Honour had to say about the pleas of guilty and the applicant's remorse. 15 It does appear to me that it would have been appropriate for his Honour to make specific reference to the aspect of remorse, on the one hand, and the utilitarian value of the pleas of guilty, such as it might have been, on the other. It might have been desirable for his Honour to have specified, by way of a discount, the reduction of sentence which those pleas and that remorse earned him, although on the authorities it was not necessary for his Honour to do so. However, with respect, I am concerned that the aspect of the pleas of guilty and the expressed remorse does not appear to have received the attention in his Honour's remarks which it deserved. 16 I have referred to his Honour's finding of pre-meditation and of the reasons for which his Honour made that finding. Part of the applicant's attack on that finding went to some of the evidence from which his Honour concluded that the applicant had been rummaging around in the cupboard before the offences occurred. While I can understand the force of what the applicant raised about that aspect, it does appear to me that there was sufficient evidence to warrant that conclusion. However, the question of the applicant's leaving the area and changing his appearance requires closer examination. 17 What his Honour said about that in his remarks was this: "Having left the premises and having threatened her that she should not report the matter, he left the area, changed his appearance quite dramatically by cutting his hair off - his long hair - and by dyeing his hair." 18 That suggests that the applicant left the area promptly after the commission of the offences, having taken that course of changing his appearance. However, the source of that material was the applicant's own evidence, which casts a somewhat different light upon his behaviour. 19 His evidence - and there was no evidence to the contrary - was that it was some days later that he left the area, having changed his appearance, and he did so not through any consciousness of guilt of the offences, of which he maintained he had no memory, but because he had been told by his girlfriend that is, the complainant's sister, that the police were looking for him and intended to charge him with attempted murder. 20 It does appear to me that that evidence was not fairly available in support of the finding of pre-meditation which his Honour made. Nonetheless, I think it would be fair to conclude that, notwithstanding his intoxication and his subsequent lack of memory, the applicant was aware of what he was doing at the time of the offences and there had been some measure of planning involved. 21 The other aspect of the matter which concerns me is the applicant's evidence about an assault upon him in prison and his being on protection as a result. That is a matter to which his Honour made no reference at all but, in my view, it was a matter of some significance, bearing not only upon the appropriate head sentence but also on the non-parole period. 22 For those reasons, I am persuaded that his Honour's discretion miscarried and that this court should examine for itself the appropriate sentence. Conducting that exercise, it does appear to me that some reduction of the sentence imposed by his Honour is appropriate. 23 The applicant has presented to us today various certificates from the prison indicative of his co-operation in courses whilst in custody designed to facilitate his rehabilitation, and I have regard to that material in the sentence which I propose. In the light of all the material, including the evidence of the applicant being on protection, I would find special circumstances warranting some departure from the normal proportion between head sentence and non-parole period. 24 It has also been drawn to our attention by the Crown that his Honour appears to have been misinformed as to the commencement date of the applicant's pre-sentence custody. Rather than 2 May 2002 it was 24 April 2002, and I would propose that the sentences imposed by this court should date from that date. 25 For those reasons, I would grant leave to appeal and allow the appeal. I would confirm the sentences imposed in respect of the indecent assault counts. However, on each of the counts of aggravated sexual assault I would quash the sentence and non-parole period fixed by his Honour and, in lieu, I would sentence the applicant to concurrent terms of imprisonment for nine years, to date from 24 April 2002, with a non-parole period of six years and three months. As I calculate it, the applicant would then be eligible for release on parole on 23 July 2008. 26 HODGSON JA: I agree. The offences were very serious and the sentences imposed by the primary Judge were certainly not manifestly excessive. However, the matters referred to by Hidden J do, in my opinion, justify this court reconsidering the matter of sentence and I agree with the sentences proposed by Hidden J. 27 HULME J: I agree with the orders proposes and with the reasons of Hidden J. 28 HODGSON JA: The orders of the court are as proposed by Hidden J. The documents produced by the applicant should be returned to him. ********** Last Modified: 09/05/2007 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.