New South Wales Court of Criminal Appeal CITATION: Perrin v Regina [2006] NSWCCA 64 HEARING DATE(S): 1 March 2006 JUDGMENT DATE: 15 March 2006 JUDGMENT OF: McClellan CJ at CL at 1; Rothman J at 2; Smart AJ at 3 DECISION: See para 46 CATCHWORDS: Sentencing judge confined to evidence admissible against offender and not take into account evidence admitted against co-offenders - CCA concentrates on sentencing remarks and approaches warily comments during submissions - criminality of offender incorrectly elevated - sentence manifestly excessive, LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518 R v H [2005] NSWCCA 282 PARTIES: Leigh Paul Perrin v Regina FILE NUMBER(S): CCA 2005/2300 COUNSEL: (A) J Stratton SC (C) P Ingram SOLICITORS: (A) P Hardin (C) S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3323 LOWER COURT JUDICIAL OFFICER: Williams DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2300 McCLELLAN CJ at CL ROTHMAN J SMART AJ Wednesday, 15 March 2006 Leigh Paul PERRIN v REGINA Judgment 1. McCLELLAN CJ at CL: I agree with Smart AJ 2. ROTHMAN J: I agree with Smart AJ. 3. SMART AJ: Leigh Paul Perrin seeks leave to appeal, against a sentence comprising a non-parole period of 4 years commencing on 19 May 2005 and a parole period of 2 years commencing on 19 May 2009 for the offence of sexual intercourse without consent, taking into account the offence of aggravated indecent assault. The maximum penalty for the principal offence is 14 years imprisonment and the standard non-parole period is 7 years imprisonment. The maximum penalty for the offence taken into account is 7 years imprisonment and the standard non-parole period is 5 years imprisonment. The offences were alleged to have occurred about 4 May 2003. 4. On 5 December 2003 the applicant and four other men were each arraigned on three counts of aggravated sexual intercourse without consent. A co-accused was also arraigned on a charge of supplying amphetamine. 5. In October 2004 there were preliminary proceedings before the trial judge to determine the admissibility of certain materials into evidence and to allow certain Crown witnesses to be examined. On 27 October 2004 the judge ruled, amongst other things, that the record of interview of the applicant was admissible. That led to negotiations between the legal representatives of the Crown and the applicant. On 28 October 2004 a fresh indictment was presented against the applicant only, containing a single count of sexual intercourse without consent. Significantly, the feature of aggravation had been dropped. This meant that the applicant was no longer being charged with committing the offence in company. To this charge the applicant pleaded guilty. He also asked the judge to take into account one count of aggravated indecent assault on a Form One. The count of sexual intercourse involved penile/vaginal intercourse for a relatively brief period. The aggravated indecent assault involved the applicant putting his penis in the face of the complainant without her consent whilst in the company of another. 6. After the applicant's plea was entered his counsel said: "… the factual basis on which … this offender will be sentenced are those that can be gleaned in the ERISP interview with Detective Craft." 7. The applicant's matter was adjourned. Two of his co-offenders, Robert Shepherd and Scott South went to trial. On 1 December 2004 the jury returned verdicts of guilty of aggravated indecent assault against Shepherd and South. Shepherd was also found guilty of aggravated indecent assault. The other two did not stand trial as the complainant did not feel able to go through, again, the ordeal of giving evidence. 8. On 5 May 2005 the sentence proceedings of the applicant and his co-offenders commenced with the Crown tendering the following material against the applicant: Agreed Facts Copy Indictment The Form One The Criminal Antecedents of the applicant to indicate that he was not known The applicant's recorded interview by the police The Crown also tendered the Pre-Sentence Report of 9 February 2005. The material was admitted without objection. The victim impact statement was admitted against all three offenders. It did not contain an account of the offence. The Agreed Facts read: "Your Honour, the Agreed Facts are based on admissions made by the Offender in an ERISP conducted at Campbelltown Police Station on Thursday 29 May 2003. It is proposed that the Crown and Counsel for the Offender will make separate submissions as to what your Honour should find as the conduct surrounding the offences. Sexual Intercourse Without Consent At some point during the period the Victim was in the bedroom, the Offender engaged in sexual intercourse without consent. The subject of his intercourse was referred to inter alia at page 55 of the Offender's ERISP. He was asked 'how many times did you put it in? 'and answered 'I was there for about twenty to thirty seconds, I think, then she turned around and said 'no no no.' Then I was just standing in the room because she said 'no' because of Romaine.' That answer (A167) goes on 'I said "oh don't worry, don't worry about Romaine" and she goes 'no no I can't do it' so I thought 'all right, no worries'. And then she said 'no so I stopped." Aggravated Indecent Assault (Form 1) In respect of the second count, despite [the complainant] making it plain that she did not wish to engage in sexual activity with him, at a later point in the night, when he says [the complainant] was alone with Scott, he again attempted to convince her that she should engage in sexual activity with him. As disclosed in his admissions, he went so far as to expose his penis to her, and place it in the vicinity of her face, whilst she continued to indicate that she did not wish sexual activity with him." 9. The judge's remarks on sentence in which he described what had occurred in general terms did not adequately distinguish between the Crown case against Shepherd and South and that against the applicant. The latter was limited to the material tendered against him. The judge in setting out the facts relied on the evidence which had been adduced at the trial of South and Shepherd. That had not been tendered against the applicant. 10. The Court was assured by counsel, and its own reading of the material confirmed, that the applicant's record of interview did not contain many of the facts set out in the judge's remarks on sentence. The applicant's record of interview extends over 100 pages, is repetitive and somewhat difficult to follow. After the introduction and formal parts of the interview had been completed Det Craft asked the applicant to tell him all he could about the sexual assault of the complainant in the early hours of Monday, 4 May 2003 at 33 Denison Street, Ruse, and to give him as much detail as he could. (It should have been Monday 5 May 2003. The "drinks" started late on the previous evening). After the applicant had given his uninterrupted account extending over about 8½ pages, Det Craft took the applicant "back to the beginning just to clarify some points." 11. In his narration of the facts the judge summarised the account given by the complainant in her evidence. She attributed a bigger and somewhat different role to the applicant than emerged from his ERISP. 12. In the ERISP the applicant said: Sexual Intercourse Without Consent (a) At pp 11-12: "… one of the guys … was helping her take her pants off, then I tried to have sex with her but as I, as I got, like, sort of started havin' sex with her, she turned around and said, 'No, because of my ex, she was friends with my ex girl friend. So I … got off her and then, like, we were all stuffin', muckin' around … in the bedroom and that." (b) At p 54, he was the first person to have sex with the complainant. (c) At p 55 "Q.166: … how many times did you put it in? A. Probably, oh, I was, I was there for about 20 to 30 seconds, I think. Q.167: OK A. --- then she's turned around and said, No, no, no. And I was just standing in the room, because she said, 'No' because of Romaine, rah, rah, rah, and I thought oh, and then, like, I said Oh, don't worry like, Don't worry about Romaine, and she goes, No, no, I can't do it, so I said All right. I was just tryin' to convince her, she said, No, so I thought, all right, no worries. And then she's like, said, No, so I stopped …" 13. Romaine was the ex girlfriend of the appellant. (d) At p55, the complainant became involved with Scott South. Aggravated Indecent Assault (a) At p56-57 in answer to Q 170, the applicant continued that when the complainant and Scott were out the back of the house "I tried to get her to give, I was seein' if she'd give me head. She said, No, like she put her lips up … against my dick and then she sort of just went, No, and then we, I went, All right, I'm going inside, so I got up and walked inside." (b) At pp92-93 in answer to Q 302, the applicant gave substantially the same version of events, but added that he pulled his pants down but she ultimately declined. 14. Various other allegations of sexual misconduct were put to the applicant, but they were denied by him. While the applicant's ERISP reveals much unsavoury conduct on the part of those present at the house the applicant, in substance, denied any knowledge of any sexual assaults apart from the two offences admitted by virtue of the agreed facts. He said that the two acts which he committed took place in the context of the complainant having apparently consensual sex with other men. 15. The applicant did not give evidence before the judge. 16. The applicant told the Probation and Parole Officer that at the time of the offence he was intoxicated, having consumed alcohol, that in the days leading up to the offence he had been using illicit substances and that he believed he was under the effect of those substances at the time of the offence. The Pre-Sentence Report contains this paragraph: "Mr Perrin stated that prior to the offence he had believed the victim wanted to have sexual intercourse with him. He said that during sexual intercourse the victim did say to him, 'stop', however he did not, until she again said 'stop' approximately four seconds later when another person entered the room. Mr Perrin informed me that this was the first and only instance of him participating in sexual intercourse in the company of others." 17. The report also comments that Mr Perrin's interpretation of the offence and the events of the evening of 4 May 2003 appeared to differ from those described in the victim's statement. 18. During the sentence hearing on 6 May 2005 counsel for the applicant reiterated that his client's plea was based on the matters disclosed in his record of interview and that "the trial evidence was not part of these proceedings against Mr Perrin." The Crown prosecutor stated "Certainly the Crown says that the pleas were accepted based on the admissions contained in the record of interview of Mr Perrin". The judge stated (T27 of 6/5/05): "I don't think I could find anything adverse to your client [Perrin] if it's material that arose out of the trial. I don't think that would be fair and appropriate." and "… I won't be taking into account anything adverse to Mr Perrin that might have occurred during the course of the trial but which isn't part of this material because of the simple reason that he hasn't had an opportunity to challenge it in any way." 19. During the sentencing hearing the applicant's counsel stated: "I don't … suggest that every word uttered in the record of interview should be taken as being the uncontested truth … there are not only inferences that can be drawn to his detriment but there is also a broad concession by him, again by inference that he was present at least in or around the house throughout the course of the evening." 20. The Crown acknowledged before the judge that parts of the record of interview were in stark contrast to the evidence. The Crown drew the judge's attention to the applicant being in the house for the entirety of the evening and being aware of what was happening, yet not coming to the complainant's assistance. 21. The applicant was born on 19 January 1985 and was thus 18 years of age when he committed the offences. He had no prior convictions and there was a body of evidentiary material that he was a person of prior good character. The Pre-Sentence Report stated that enquiries revealed that the applicant was a caring, trustworthy, honest and reliable person in the eyes of his family, his partner's family and friends. He has a supportive family and his partner's family is also supportive. 22. He completed the School Certificate but did not enjoy school or flourish in the school environment. He completed the TAFE component of his apprenticeship as a butcher, but he is yet to complete sufficient work hours to be entitled to receive his trade certificate. He prefers other work and has held a variety of other positions. He has been keen to work and has been in constant employment. He lost one part time position as a result of adverse publicity arising from the events of 4-5 May 2003. 23. The Crown's position was that his plea of guilty, which came after the conclusion of the voir dire entitled him to a discount of about 15 per cent. The judge accepted that the applicant pleaded guilty at an early point in time but the judge did not regard the plea as being entered at the earliest point of time. The judge did not quantify the discount which he allowed but from his comments it would be less than 25 per cent. The course taken was not erroneous. 24. The judge found special circumstances principally to ensure a longer period on parole so as to provide adequate supervision and assistance in the applicant's rehabilitation and re-integration back into the community. This was the first time in custody for the applicant. Appeal Ground 1 reads "His Honour erred in sentencing the applicant on a factual basis not supported by the evidence." 25. Whatever may have been the judge's stated intention on 6 May 2005, it does appear from the sentencing remarks that he did proceed on the basis of the evidence adduced at the trial, mainly that of the complainant and did not confine himself in the case of the applicant to the agreed facts and those admitted by him in his ERISP. There were significant factual differences as to the role and criminal conduct of the applicant which emerged at the trial and those admitted by him in his ERISP. 26. The Crown, correctly, specifically did not attempt to submit that the facts as to the offences narrated in the judge's remarks or most of them could be found in the ERISP. 27. The Crown primarily relied upon the submission that the judge was well seized of the requirement to sentence the applicant only on the basis of the limited evidence tendered against him in the sentence proceedings. Unfortunately, in his remarks on sentence the judge did not do so. It is to those remarks that this Court must look. Those remarks cannot be qualified by earlier statements of intention as to what was intended to be done. This Court is always wary of attaching importance to remarks made by judges during discussions during sentence hearings. During those discussions ideas and tentative views are sometimes raised and then not maintained. Part of the purpose of the discussions is to correct misconceptions and errors. Of course, if the judge gives what amounts to a ruling or direction, or states that particular evidence is rejected or not required, the position may differ especially if it bears upon the course which the proceedings took. 28. In his remarks the judge summarised the effect of the three records of interview including the admissions made by Mr Perrin. That does not overcome the judge's approach as earlier outlined. 29. Counsel for the applicant correctly pointed out that, if authority were needed, this Court has held that it is an error for a sentencing judge to sentence an offender on the basis of material not in evidence against that offender, but which emerges in the trial of a co-offender. R v H [2005] NSWCCA 282, esp at [67] to [69] 30. The effect of what the judge did was to elevate the proved criminality of the applicant. 31. Appeal Ground 1 has been established. 32. Appeal Ground 2 reads: "His Honour erred in treating as aggravating factors: (a) the fact that she was vulnerable because of her age, which was 18 at the time of the offence and (b) the fact that what occurred was a series of criminal acts." 33. In his remarks the judge said (12-13): "I have no doubt that the injury and emotional harm caused by the offence was substantial to this victim. I am also satisfied that the victim was vulnerable. She was eighteen at the time. She was clearly affected by drugs and/or alcohol and yet despite her age and despite the obvious effect of what she had consumed, she was taken advantage of. I am also satisfied that in regard to the offending, whilst each offender has been charged with specific offences, what occurred was a series of criminal acts against her." 34. Section 21A(2) of the Crimes (Sentencing Procedures) Act 1999 relevantly provides: "(2) Aggravating factors The aggravating factors to be taken into account … are as follows: … (l) the victim was vulnerable, for example because the victim was very young or very old or had a disability or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant); (m) the offence involved multiple victims or a series of criminal acts." 35. The test is that the victim was vulnerable. Some examples are then given but they are not exhaustive. The judge relies on two factors to establish that she was vulnerable, namely, her age of 18 and her being affected by drugs and/or alcohol. I do not regard the age of 18 as being very young. That is the age of adulthood. However, she was vulnerable as a result of what she had drunk. That lowered markedly what she could appreciate and what she could do. 36. The applicant's offence did not involve a series of criminal acts. He made no admissions that he encouraged or was aware of criminal acts being committed by others. Nor is there material from which such an inference could be drawn. 37. Appeal Ground 3 reads: "The sentence imposed upon the applicant was manifestly excessive." 38. The Crown submitted that the objective seriousness of the count on the indictment was not as suggested by the applicant, "close to the very bottom of the range for such offences." There was full penetrative penile/vaginal intercourse when the complainant was not consenting and made her lack of consent clear to the applicant. The Crown also submitted that the Form 1 offence was well above the bottom of the range for such an offence. It pointed out that it was necessary to reflect the Form 1 offence in the sentence for the count on the indictment as explained in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518. 39. The Crown submitted that the term of the sentence (6 years) was within the permissible range having regard to: "a. the objective seriousness of the offence on the indictment; b. the available statutory maximum penalty for the offence was imprisonment for fourteen (14) years; c. the requirement to discount the term of the sentence by reason of the early plea of guilty; d. the standard minimum non-parole period of seven (7) years provided by section 54B of the Crimes (Sentencing Procedure) Act 1999; e. the requirement that the sentence be duly incremented to reflect that the offence on the Form 1 document had been taken into account; and, f. the relevant subjective features of the Applicant including age and the absence of prior criminal history." 40. The Crown further submitted that the non-parole period of 4 years was also within the permissible range having regard to the finding of special circumstances including: "a. the age of the Applicant; b. the need for an extended period on parole to facilitate rehabilitation; and, c. that the present will be the first custodial sentence served by the Applicant." 41. Once the factual basis set out in the judge's remarks for sentencing the applicant is found to be erroneous and the Court is confined to the material admitted against him, the sentence imposed is manifestly excessive as to the full term and the non-parole period. 42. Both the offence on the indictment and that in the Form 1 are matters of considerable gravity. Significant punishment is warranted and necessary. 43. A view has earlier been expressed as to the aggravating features. The mitigating features have been taken into account. 44. As the Court is re-sentencing the applicant, regard should be had to the affidavit sworn by the solicitor for the applicant and that sworn by the solicitor in the office of the Director of Public Prosecutions having the conduct of this matter. Upon his reception into custody the applicant applied to be taken into protective custody and his application was approved. He remains in protective custody. He has enrolled in a number of programmes and has been working while in custody. The following details of his conditions of custody have been supplied: (a) the applicant is held at Long Bay Gaol with a C1 classification in a Special Management Area Placement (SMAP), due to the nature of his offence; (b) there are 60-80 other inmates in the area in which he is held and all of the inmates in the area are SMAP inmates; (c) he has access to other inmates, the opportunity to work in the wing and access to rehabilitation programmes such as education, drug and alcohol counselling and psychological services; and (d) children are not permitted to visit the applicant in custody. The applicant has taken advantage of the programmes and work available. They will help his rehabilitation. The applicant's conditions of custody are not such as to warrant a further discount. 45. There are special circumstances. These include the applicant's youth, this is his first time in custody and the extended period of supervision required. The full term of the sentence should be 4 years and the non-parole period should be 2 years. 46. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal allowed; sentence quashed. 3. In lieu of the sentence imposed the applicant is sentenced, taking into account the offence of aggravated indecent assault, as follows: (a) Set a non-parole period of 2 years commencing on 19 May 2005 and expiring on 18 May 2007 on which day the applicant will be eligible for release to parole; and (b) to a balance of term of 2 years commencing on 19 M ay 2007 and expiring on 18 May 2009. 4. The applicant is to accept the supervision of the Probation and Parole Service and comply with all the reasonable directions of that Service. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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