New South Wales Court of Criminal Appeal CITATION: R v OLOITOA [2007] NSWCCA 177 HEARING DATE(S): 4 April 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hoeben J at 54; Hall J at 55 EX TEMPORE JUDGMENT DATE: 4 April 2007 DECISION: Non- publication order in relation to the name of the victim and any matter that can identify the victim 1. Crown appeal upheld and the sentences imposed on 13 October 2006 quashed; 2. On the first count the respondent is sentenced to a minimum term of 3 years imprisonment to commence on 29 June 2005 and to expire on 28 June 2008 with a further term of 3 years.; 3. On the second count the respondent is to be sentenced to a non-parole period of 8 years and 9 months commencing on 29 June 2006 and expiring on 28 March 2015 with a further term of 3 years and 9 months expiring on 28 December 2018; 4. The total non-parole period will be a period of 9 years and 9 months with a total term of 13 years and 6 months. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v AJP (2004) 150 A Crim R 575 R v Baker (2000) NSWCCA 85 R v MD, BM, NA, JT [2005] NSWCCA 342 CASES CITED: R v Preston NSWCCA, unreported, 9 April 1997 R v Sanoussi (2005) NSWCCA 322 R v Underhill, NSWCCA, unreported, 9 May 1986 R v Way (2004) 60 NSWLR 168 R v Wall [2002] NSWCCA 42 PARTIES: The Crown (Appl) Fitu Oloitoa (Resp) FILE NUMBER(S): CCA 2006/2732 COUNSEL: N Noman (Crown/Appl) A Francis (Resp) SOLICITORS: Director of Public Prosecutions (Crown/Appl) Legal Aid Commission of NSW (Resp) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/3242 LOWER COURT JUDICIAL OFFICER: Maguire DCJ LOWER COURT DATE OF DECISION: 13 October 2006 IN THE COURT OF CRIMINAL APPEAL 2006/2732 McCLELLAN CJ at CL HOEBEN J HALL J WEDNESDAY 4 APRIL 2007 R v OLOITOA, Fitu Non-publication order in relation to the name of the victim and any matter that can identify the victim Judgment 1 McCLELLAN CJ at CL: Fitu Oloitoa, the respondent, pleaded guilty to two counts being: 1. Aggravated entry (in company) with intent to commit a serious indictable offence, namely armed robbery contrary to s 111(2) Crimes Act 1900 (maximum penalty 14 years imprisonment) and 2. Aggravated sexual intercourse without consent; the aggravation being the threat to inflict actual bodily harm by means of an offensive weapon, namely a knife (contrary to s 61J Crimes Act 1900) (maximum penalty 20 years imprisonment with a standard non-parole period of 10 years). 2 The respondent was sentenced on the first count to a 3 year non-parole period to date from 29 June 2005 and expire 28 June 2008 with a further term of 3 years. On the second count the respondent was sentenced to a non-parole period of 6 years to date from 29 December 2005 and expire on 28 December 2011 with a further term of 6 years to expire on 28 December 2017. 3 Accordingly, the respondent was sentenced to a total non-parole period of 6 years and 6 months with a head sentence of 12 years and 6 months imprisonment. 4 The Crown appealed the sentences as being manifestly inadequate. It is submitted that the inadequacy is revealed in the sentence imposed on the second count, in particular the non-parole period, and in the degree of concurrency provided by the sentencing judge. The facts 5 The facts were agreed and the sentencing judge provided the following summary of them: "On Friday night 10 June 2005 the victim was at home at Claymore with her four young children. By about 10.30 pm they were all in bed and asleep. At about 6 am on Saturday 11 June the victim heard a knock on the wooden front door of her home. She got out of bed and walked to the front door and opened it. Standing in the doorway were three men of Pacific Islander appearance. The first man was the offender. The second man was the tallest of the three. He was armed with a black police style baton that was about 30 to 40 centimetres long. The third man was the largest of the three. This offender said, 'You have girlfriend and fucking kids.' The victim said, 'It's six in the morning fuck off.' The offender said, 'You show me your fucking kids.' The victim said, 'No, they're fucking asleep, fuck off, leave me alone.' The victim tried to close the wooden front door by pushing it with her right hand. The offender punched the victim on the left side of her face. She stumbled back and landed against the wall opposite her son Nathan's bedroom. She looked up and saw that the offender and the second and third co-offenders had entered her home. The offender said, 'Get your kinds.' The victim did not comply. The offender punched the victim in the right side of her face and said, 'Give me your money and bag now.' At this point the victim's son came out of his bedroom and attempted to move the offender away from his mother. This boy was 13 years old at the time. The other children of the victim came out of their bedroom yelling words to the effect, 'Leave my mum alone, get out of my house.' Each of those children was younger than Nathan. The victim ducked under the offender and ran through the laundry and kitchen into the dining room and tried to hide her handbag. By the time she got to the chair where her handbag was, the offender and the second co-offender were already at the chair. The victim tried to grab her handbag and in so doing wrestled with the offender to get it. While she was clutching her handbag, the offender removed the wallet from the handbag. While she was wrestling with him, her pyjama top was ripped open. The offender then said to his co-offenders, 'Keep them out. Tell them to go to bed.' The victim fell back into the chair and the offender grabbed her bag. The offender then grabbed her head. He undid his belt buckle and jeans zipper and exposed his penis by placing it over the top of his underpants. He pushed her head towards his penis and said, 'Suck it or I will kill you in front of your kids.' She noticed the front of the shirt worn by the offender was covered in blood. The offender grabbed and pulled the victim's hair in an effort to force the victim's head into his lap. The victim resisted by putting her hands out on the thighs or hips of the offender and pushing. She continued trying to push him away but he responded by pulling her hair even harder. He repeatedly demanded that she suck his penis. She said 'No.' He then also said he was 'going to kill you or kill the kids' and said something like, 'Keep them boys out.' He then pulled a knife out of his front left jeans pocket and said to her, 'If you don't suck it, I'm going to kill you with this knife.' He pointed the knife near the victim's neck and with his right hand he forced the victim to perform fellatio upon him. The blade of the knife was about five to seven centimetres long. Whilst this was happening, the victim's daughters were standing in the kitchen. One was crying and saying, 'Stop.' The mother said, 'Don't let my kids see. Get them out.' The offender replied, 'Shut the fuck up, keep sucking or I kill your kids.' The victim did what the offender told her to do. He ejaculated into the mouth of the victim. The second co-offender entered the dining room where the victim was by this time standing as the co-offender was striking her to the back of the head. The victim tried to leave the dining room as the offender said to the co-offender, 'You hold her while I pull her pants down.' The victim was pushed onto the dining room table face down. She looked to her left and saw that the bandana worn across the face of the second co-offender had dropped to below his nose. The second co-offender said to this offender, 'No Alex let's go.' The victim kicked out and the offender stopped pulling down her pyjama pants. The victim was hit in the back of the head. She said, 'I don't know if you can understand English. Please no, I have my periods.' The second co-offender said a few times to the children, 'Stop watching, go back to your room.' He also said to the offender, 'Come on, let's go.' The offender kept saying, 'Keep away or I kill you in front of your kids.' The victim's children were screaming, 'Leave my mum alone.' Several times the second co-offender said to the offender, 'Come on, let's go.' The victim said, 'Please give me some of my money for my kids' sports and my car keys.' The second offender spoke to the offender in a foreign language. The offender replied, 'No.' At one point during this exchange with the second co-offender the offender spat a blood soaked wadding onto the floor. The second and third co-offenders ran through the front doorway they had earlier entered and from the victim's house they ran along Chevalier Way. They were followed by the offender who knocked the shoulder of the victim and said, 'Don't call the fucking coppers or I will be back to kill you in front of your kids.' The victim went to the front door and saw that the second co-offender was carrying a piece of exercise equipment and mobile phone stolen from her. She also saw that the offender was carrying her handbag. Inside that handbag there were various items of her property and $500 in cash." Subjective matters 6 The respondent was aged 24 at the time of sentence. He was born in Samoa and is the elder of 2 sons from his mother's first marriage. His father died when he was still an infant and his mother subsequently remarried. The respondent came to live in Australia when aged 14. 7 The respondent's relationship with his mother and step-father has been difficult at times. He attended school to Year 10 but left before completing that year. He has had employment in various positions as a packer, machine operator and roof tiler. 8 When interviewed the respondent informed the Probation and Parole Service that he was a heavy drinker and had an ongoing problem with alcohol. He also has a gambling problem which the Probation and Parole Officer concluded were factors in his offending behaviour. He has various convictions for crimes of violence, robbery, dishonesty, resisting police and driving offences. He was dealt with for some of these matters in the Children's Court but his offending has continued when an adult. 9 The respondent was assessed by Miss Katie Seidler, a psychologist. She concluded that the abuse of alcohol was a major factor in the respondent's offending. She determined that the respondent felt "a bit of remorse for the victim, although he could not identify how he felt specifically about her or the impact of his behaviour on her." 10 Miss Seidler formed the view that the respondent was ashamed of his offending and had "some sense of remorse for his behaviour." However, she formed the view that his response to the offences was limited by his poor intellectual ability and difficulty, due to cultural influences, in discussing sexual matters including his offending. Miss Seidler concluded that the respondent had a moderate risk of sexual recidivism and a high risk of violent recidivism 11 Miss Seidler concluded that the respondent is "heavily entrenched with an anti-social lifestyle in the community and, therefore, considerable social support will be necessary to assist him in making significant changes to his lifestyle, such that he might maintain a more positive and pro-social lifestyle in the community." She was of the opinion that he will need intensive case management and supervision by the NSW Probation and Parole Service. Miss Seidler expressed concern that the respondent had become part of a criminal and violent peer group and social routine and would need considerable help if he was to break away from these influences. 12 The respondent did not give evidence before the sentencing judge. However, he called the girlfriend of his brother, Ms O'Connor, who had been visiting him in prison. The sentencing judge accepted her evidence and said that: "I am able to infer a present state of mind on the part of the offender which may demonstrate an intention to change his ways. I accept that he has expressed his remorse to this witness. Her complex assessment of the way he went about that is nonetheless deserving of considerable weight. However, in light of Miss Seidler's evidence, I am troubled about his prospects of rehabilitation." The remarks on sentence 13 After recounting the relevant facts, the sentencing judge noted that the respondent has a significant record for "violence, dishonesty and otherwise." His Honour had regard to the report from the Probation and Parole Service and also the assessment of Miss Seidler. He also had regard to the evidence of Ms O'Connor, to which I have already referred. 14 The respondent pleaded guilty on the first day of trial, and his Honour allowed a discount of 20%. I infer that his Honour determined to allow this level of discount because it was on the first day of trial that the Crown indicated that it would accept a plea to the second count and would not press a more serious charge, being an alleged breach of s 61JA(1) of the Crimes Act 1900 which carries a maximum penalty of life imprisonment. In these circumstances a discount of 20% may not have been appropriate but no issue has been raised in relation to it by the Crown. 15 His Honour considered the objective criminality of the offences in one short paragraph. His Honour said: "These are horrific crimes. They deserve to be denounced, the victim and her four children … in what should have been the safety of their own home …were all put through a cruel and degrading experience. The community rightly expects that such crimes will be met with severe punishment." 16 His Honour remarked on the need for the sentence to provide both general and personal deterrence, and expressed the view that the sentences he was about to pass conformed with the decision of this Court in R v Preston (1999) unreported, CCA, 9 April 1997. 17 His Honour then considered the matter of special circumstances and said: "I am of the view that this offender's prospects of rehabilitation would be enhanced by an extended period of supervision. I regard that as amounting to special circumstances for the purpose of s 44(2) of the Crimes (Sentencing Procedure) Act . In forming this view, I also have regard to the evidence of his intellectual disability." The Crown submissions 18 The Crown submitted that his Honour failed to appropriately appreciate the objective seriousness of the offences and accordingly imposed sentences falling significantly short of those required. Although his Honour referred to the offences as "horrific crimes", the Crown submitted that this masked the detail of the offences which, when identified, dictated a significantly greater sentence than that which his Honour imposed. 19 The Crown submitted that the objective seriousness of the offence was demonstrated by a number of matters. They include the fact that the respondent forced his way into the premises in the company of two others, although this was only relevant to the first count. The victim was within the safety of her own home, the offence occurring early in the morning after she left her bed to answer a knock on her front door. 20 The respondent punched the victim to her head to obtain entry and was wearing a blood stained T-shirt. The offensive weapon which the respondent used was a knife which it was submitted is held in universal abhorrence by the community and the courts R v Underhill, NSWCCA, unreported 9 May 1986. 21 The Crown emphasised that the offences were committed in the presence of the victim's four children aged between 8 and 12. The respondent held a knife to his victim's throat which was stained with blood when first presented to her. The respondent threatened to kill the victim and also threatened to kill the victim's children. The victim was aware that her children were witnessing the sexual assault. 22 The Crown submitted the objective seriousness of the offences was demonstrated by a number of matters. 23 The Crown emphasised the fact that the victim was physically forced to perform fellatio on the respondent and sustained bruises to her head and body. While the assault was taking place the victim's children were pleading with the respondent to stop. The respondent did not use a condom and ejaculated into the victim's mouth. 24 Finally, the Crown submitted that it was significant that the respondent threatened to return and kill the victim if she reported the offences to the police. 25 Against the prospect of a submission that, because the sexual assault was an act of fellatio, the sentence was appropriately moderate, the Crown submitted that an enforced act of fellatio is a serious offence although acknowledging that an act of penile/vaginal penetration might, in some circumstances, be more serious than enforced fellatio. The Crown drew attention to the decision of this Court in R v AJP (2004) 150 A Crim R 575 where Simpson J said that an act of enforced fellatio may not necessarily fall below the mid point of objective seriousness. 26 In R v Sanoussi (2005) NSWCCA 322 the Court said at [16]: "The circumstances of an act of fellatio may place it in a position on that spectrum consistent with an act of penile/vaginal intercourse. For example, where the complainant's head is forced and held onto the offender's penis to the point of ejaculation into the complainant's mouth, while threats and insults are uttered, in the company of a number of other offenders who are waiting their turn, little may objectively differentiate such an act of penile/vaginal intercourse absence overt threats where the offender wears a condom." 27 The Crown emphasised that the offence contrary to s 132 was objectively serious given that the intention was to commit an armed robbery and the circumstance of aggravation was that the respondent was in the company of two men, there was violence and entry was gained with knowledge that there were persons inside. 28 In relation to the second count the Crown submitted that his Honour failed to make a finding as to where the offence fell in the range of objective seriousness. Although his Honour referred to the fact that there was a standard non-parole period without a finding as to the level of objective seriousness his Honour failed to identify the relevance of the standard non-parole period to the sentence which he ultimately imposed. 29 Although his Honour described the offences as "horrific crimes" which suggests that he determined that the offences were very serious, this was not reflected in the sentences imposed. The Crown submitted that the circumstances of the sexual assault exclude it from being categorised as being within the middle range of objective seriousness or lower, and constitute an offence well above the middle range. 30 If his Honour had reached this conclusion, the "guide post" offered by the standard non-parole period should have led to a non-parole period significantly greater than 6 years, even allowing for a 20% discount. The Crown did not challenge that the 20% discount was appropriate. 31 The Crown submitted that apart from the need to punish the respondent and impose a sentence providing for personal deterrence, it was necessary that the sentence carried a significant element of general deterrence. It was submitted that a person who invades a person's home, subdues them with violence and carries out a sexual assault, requires a punishment that sends a strong message to the community (see Preston). 32 Although the Crown accepted that a finding of special circumstances was open to his Honour, it was submitted that the structure of the sentences was overly generous to the point of error. His Honour imposed a non-parole period that was 50% of the term of each sentence and accordingly it was submitted imposed non-parole periods which failed to reflect the objective seriousness of each offence. 33 The Crown also submitted that by providing an accumulation of the sentences of only six months, his Honour failed to impose a total sentence which reflected the extent of the criminality involved in the offences. The respondent's submissions 34 Counsel for the respondent accepted that his Honour erred by failing to give reasons for departing from the standard non-parole period as required by s 54B(4) Crimes (Sentencing Procedure) Act. That section requires the Court to "make a record of its reasons for increasing or reducing the standard non-parole period", and identify "in the record of its reasons each factor that he took into account" (see R v Way (2004) 60 NSWLR 168 at [143]). 35 It was also accepted that this Court was required to carry out its own evaluation of the objective seriousness of the offence and determine where it lies in the range of objective seriousness of such offences. The respondent acknowledged that the offence was serious but submitted that only one of the potential aggravating elements of the offence, being the threat to inflict actual bodily harm by means of an offensive weapon, was involved. 36 It was however accepted that the presence of the victim's children was a factor of considerable significance, which elevated the objective seriousness of the offence and was relevant to where it fell in the objective range of seriousness. Notwithstanding these concessions, the respondent submitted that the offence fell below the mid range of objective seriousness. Although it was accepted that the offence occurred when the victim's house was invaded, and was carried out in the presence of the children, it was submitted that there was no evidence of premediation, no infliction of serious bodily harm, the victim was not in a class of vulnerable person, as defined by the section, the intercourse was comparatively brief, and the respondent did not have a relevant aggravating history of sexual offending. 37 The respondent also emphasised that the plea of guilty was a point of departure from the elements relevant to the standard non-parole period. It was emphasised that if the offence was assessed as being in the mid range of objective seriousness, applying a 20% discount to the standard non-parole period would lead to a sentence of 8 years. 38 The respondent also drew upon the concession of the Crown that a finding of special circumstances was open in this case and submitted that in these circumstances a non-parole period of six years for the sexual assault, although lenient, was not inadequate. A Crown appeal 39 The principles relevant to a Crown appeal have been considered on many occasions. I referred to them in R v MD, BM, NA, JT [2005] NSWCCA 342. They were clearly defined by Wood CJ at CL in R v Wall [2002] NSWCCA 42. 40 In R v Baker (2000) NSWCCA 85 Spigelman CJ emphasised that Crown appeals should be rare, particularly where the error asserted is manifest inadequacy. Consideration of this appeal 41 In my opinion the sentences which his Honour imposed in the present case, both individually and in totality, reveal error. With respect to the sexual assault count, the sentencing judge was required to determine the objective seriousness of the offence, and accordingly consider whether there were reasons for not imposing the standard non-parole period. The Crown's submission that this offence fell above the mid range of objective seriousness should be accepted. 42 Although the assault comprised an act of fellatio it was accompanied by actual violence and threats of further violence, and was completed by the respondent ejaculating into the victim's mouth. The assault occurred after the respondent had violently forced his way into the victim's home at an early hour, and took place in the presence of the victim's children. Apart from the violence, the offence was marked by the personal degradation of the victim. 43 To my mind, these features should have led the sentencing judge to conclude that the crime was above the mid range of objective seriousness. It called for a non-parole period greater than 10 years. 44 In my opinion although a greater term of imprisonment would have been appropriate the minimum non-parole period which his Honour should have imposed, but for the guilty plea, was a term of 11 years imprisonment. Applying a 20% discount for the guilty plea, provides a non-parole period of 8 years and 9 months. 45 In my opinion and mindful that this is a Crown appeal in relation to the sexual assault count the respondent should be sentenced to a balance of term of 3 years and 9 months making a total term of 12 years and 6 months. 46 In my opinion the sentence which his Honour imposed with respect to the first count was also erroneously lenient. Regrettably, the invasion of people's homes for the purpose of robbery is not uncommon in our community. However, when the offence is aggravated by being committed in company, and the offender is armed with a knife, the offence is significantly more serious. This is reflected in the fact that the legislature has provided a maximum penalty of 14 years imprisonment for this offence. 47 The offence provided by s 111(2) may be contrasted with that provided by s 111(1) which provides a penalty of 10 years where a person enters a dwelling house with intent to commit a serious indictable offence, but without relevant circumstances of aggravation. 48 Notwithstanding my opinion that the sentence which his Honour imposed was inadequate, I do not believe that this Court should intervene. In this respect I am mindful of the fact that this is a Crown appeal, where this Court should be cautious before upholding an appeal confined to the fact that the particular sentence was manifestly inadequate. 49 However, I am also of the opinion that the Crown submission that his Honour provided an excessive degree of concurrency should be accepted. The forced entry by the respondent into the victim's premises, accompanied by violence, the brandishing of a knife, and in the company of two others, knowing that the victim and her children were in the home, was a serious offence. 50 Although committed as part of the sequence of offending, which included the sexual assault, it was a separate offence requiring separate punishment of the respondent, and a sentence which reflected the need for personal and general deterrence. To my mind, by providing an accumulation of only six months for this offence, with the second count, his Honour erred in a manner which was so significant that this Court should also intervene. 51 Mindful of the fact that this is a Crown appeal, in my opinion it is appropriate to provide an accumulation of 12 months for this offence. The Crown accepts that the finding of special circumstances, which the sentencing judge made, was appropriate and accordingly, it was appropriate to provide an extended period of parole 52 The sentences which I propose will provide only a small variation of the standard non-parole period. In part, this is a product of the fact that this is a Crown appeal. Orders 53 The orders I propose are as follows: 1. The Crown appeal should be upheld, and the sentences imposed on 13 October 2006 quashed. 2. On the first count the respondent is sentenced to a minimum term of 3 years imprisonment to commence on 29 June 2005 and to expire on 28 June 2008 with a further term of 3 years expiring on 28 June 2011. 3. On the second count the respondent is to be sentenced to a non-parole period of 8 years and 9 months commencing on 29 June 2006 and expiring on 28 March 2015 with a further term of 3 years and 9 months expiring on 28 December 2018. 4. Accordingly, the total non-parole period will be a period of 9 years and 9 months with a total term of 13 years and 6 months. 54 HOEBEN J: I agree. 55 HALL J: I also agree. 56 McCLELLAN CJ at CL: Accordingly, the orders of the court are as I have proposed. ********** 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.