New South Wales Court of Criminal Appeal CITATION: Steven James Aslett v Regina [2006] NSWCCA 48 HEARING DATE(S): 20 February 2006 JUDGMENT DATE: 24 March 2006 JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Howie J at 21 DECISION: 1. Grant leave to appeal and allow the appeal 2. Quash the sentences appealed against and substitute the following - Count 1: a non-parole period of five years commencing on 28 July 2003 and expiring on 27 July 2008 and a balance of term of four years; Count 2: a non-parole period of ten years commencing on 28 July 2005 and expiring on 27 July 2015 and a balance of term of four years; Count 3: a non-parole period of nine years commencing on 28 July 2007 and expiring on 27 July 2016 and a balance of term of five years; and Count 4: a non-parole period of seven years commencing on 28 July 2009 and expiring on 27 July 2016 and a balance of term of seven years. CATCHWORDS: Criminal law - sentencing - armed robbery in circumstances of special aggravation - aggravated sexual intercourse without consent in company - whether sentencing judge erred in regarding particular features as aggravating criminality - whether sentencing judge erred in findings of fact - parity - whether sentences manifestly excessive LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 R v Tadrosse [2005] NSWCCA 145 CASES CITED: R v Street [2005] NSWCCA 139 Markarian v The Queen (2005) 215 ALR 213 PARTIES: Steven James Aslett, Regina FILE NUMBER(S): CCA 2005/1566 COUNSEL: D Arnott SC H Cox SOLICITORS: S Kavanagh Steve O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0071 LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1566 SPIGELMAN CJ BARR J HOWIE J 24 MARCH 2006 STEVEN JAMES ASLETT v REGINA Judgment 1 SPIGELMAN CJ: I agree with Barr J. 2 BARR J: The applicant, Steven James Aslett, seeks leave to appeal against sentences imposed in the District Court. As his trial was about to begin in that court he pleaded guilty to offences that may be summarised as follows - 1. On 17 July 2003 in a certain suburb of Sydney he broke and entered a certain dwelling house and committed therein a serious indictable offence, namely armed robbery in circumstances of special aggravation, they being that he was in company and wounded one of the complainants, whom I shall call SA; 2, 3, 4. At the same time and place he had sexual intercourse with SA without her consent while in the same company and for a period afterwards deprived SA of her liberty. 3 The offence in the first count attracted a maximum sentence of twenty-five years. For the remaining offences the maximum sentence was imprisonment for life. Finnane QC DCJ imposed the following sentences - Count 1: a non-parole period of five years commencing on 28 July 2003 and expiring on 27 July 2008 with a balance of term of five years; Count 2: a non-parole period of eleven years commencing on 28 July 2005 and expiring on 27 July 2016 and a balance of term of seven years; Count 3: a non-parole period of eleven years commencing on 28 July 2007 and expiring on 27 July 2018 and a balance of term of seven years; and Count 4: a non-parole period of eleven years commencing on 28 July 2009 and expiring on 27 July 2020 and a balance of term of seven years. 4 The total effective sentence was therefore one of twenty-four years, comprising a non-parole period of seventeen years and a balance of term of seven years. 5 The facts were stated by his Honour as follows - On 17th July 2003, Dudley Aslett, accompanied by his nephews, Steven Aslett and Jamie Hill, travelled in his car to the house in which Christopher Bonham lived. It was about 7:30pm. Bonham was not at home but was in a nearby house. Steven Aslett went and got him. Dudley Aslett is 32 years old. Christopher Bonham was 18 years old, Steven Aslett was 18 years old and Jamie Hill, the youngest of them was 17 years old, but looked younger. The four of them then went to a backyard flat in which Bonham lived and stayed there for about an hour. After this, they all left the Bonham premises in Dudley Aslett's car. After some time, they arrived in the suburb (where the complainants' home unit was situated). They travelled around for a couple of hours looking for places to burgle and eventually Dudley Aslett parked the car underneath some home units. Dudley Aslett then instructed the others to find some Asians, since, according to him Asians were likely to have large sums of cash and jewellery on their premises. Bonham and Jamie Hill saw an Asian man on a balcony and reported it to Dudley Aslett. He told them to enter the premises. The four men then climbed up the balcony from the ground and entered it. It was one floor up from ground level. Dudley Aslett wore gloves and a mask. The other three each wore a mask, but had no gloves. Forensic evidence at the trial revealed that Steven Aslett left his DNA on an air-conditioning vent underneath the balcony and his fingerprints on the same vent and on some DVD's stolen from the flat. As well, he left his DNA on a jumper worn by the complainant. Jamie Hill left his fingerprints on the side of the building just above the same air-conditioning vent and on a DVD stolen from the premises. Christopher Bonham left his DNA on the bathroom floor and on a toothbrush in the premises, which the complainant was forced to use. It is thus clear that the men got over the balcony and at least two of them, Steven and Jamie Hill, climbed up the wall of the premises, using the air-conditioning vent and then got over a rail and onto the balcony. They may have assisted Bonham and Dudley Aslett to climb up as well or Bonham and Dudley Aslett may have climbed up themselves. The balcony is quite long and wide. Entry into the flat was obtained at a little after midnight by going through sliding glass doors into the lounge room area. The sliding glass doors were shut, but not locked. Inside the lounge room, not far from the sliding glass doors was a lounge. The complainant's father, who had not long before returned home from work, was lying on the lounge watching television. He is a small, lightly built man, who came originally from the Philippines. The hour was late, quite close to midnight. Next to the lounge room was the main bedroom of the flat. In that flat were the complainant, a 16-year-old girl, and her mother. The mother is quite a small woman. The complainant could be considered tiny, less than 5 feet tall and very slightly built. The complainant was working on her mother's computer and had been for some hours. It was the middle of the school holidays. Her mother was lying on the bed, watching television. The complainant had turned 16 only 7 days before this. She heard a thud and saw a reflection of a man in the mirror in the bedroom. What had happened, out of her sight, was that the four intruders had confronted her father at knifepoint and forced him onto the floor beside the lounge where they tied him up. The four intruders then went into the main bedroom, threatened the mother and daughter with knives and forced them out into the lounge room, where they were forced onto the ground and tied up. Dudley Aslett and the others then went through the flat, ransacking it as they went. All of them were armed with knives. After a little while, the mother and daughter were forced back into the main bedroom. Bonham stayed outside, guarding the father. Dudley Aslett and his two nephews accompanied the two women into the complainant's bedroom, threatening them all the while with knives and demanding information as to where money was and what was the combination of the safe. The main speaker and clear leader of the gang at all times was Dudley Aslett. He was the one who gave all the orders. The complainant's bedroom, which was smaller than the main bedroom, was across the hall from it. On the way to the bedroom, Dudley Aslett asked the complainant how old she was. She told him she was 16 years old. The two women reached the main bedroom and were in it for a short time, when the complainant was taken out of the main bedroom and into her own bedroom. Dudley Aslett told the others in a sarcastic tone of voice that he would search the room some more. They then shut the door. When that was done, he ordered her to pull her pants and underpants down and to get on the bed. She removed them completely. He held the pointed end of a knife against her cheek and ordered her not to look or he would poke her eyes out. His next demand was that she manually manipulate her genital area. She complied with this demand because she did not want him to hurt her. When she opened her eyes a little, she saw him with his pants down. He told her he had a condom and she heard the ripping of a packet. Next, he forced his penis into her vagina, causing her pain. She began to bleed and begged him to stop and told him it hurt, but he kept going. She attempted to resist, but Dudley Aslett was too strong for her. The injuries caused by him and the subsequent vaginal rape by Christopher Bonham, included a very severe laceration, which went through the skin, the layer of fat underneath and the muscle under that. The laceration extended from the lower part of the vagina between the vagina and the anus. There was extensive bleeding in this area. The wounding was so severe that she needed surgery under general anaesthetic, something performed later on the same night. Dr Patricia Spencer said, that she had never seen such injuries during her time in practice. Once Dudley Aslett finished raping the complainant, he organised Christopher Bonham and Steven Aslett to rape her as well. Christopher Bonham forced her onto the bathroom floor, with her face to the floor. He placed the knife he was carrying onto the floor near her face and so that she could see it. He then, despite seeing her bleeding, raped her vaginally from the rear, causing her extreme pain. He then raped her anally and when he withdrew, ejaculated over the bathroom floor. It was this ejaculation, which provided the source of his DNA. Steven Aslett then came in and forced his penis into the complainant's mouth, until she almost choked and at a point when she felt she was going to vomit, she spat semen and saliva into a bath. When she told him she was going to vomit, he threatened to stab her if she did. He then grabbed her from behind, held her by the waist and anally raped her. Having done this, he again forced his penis into her mouth, despite her protests that it was hurting and despite her begging him to stop. When she asked him to stop, he told her he would do so when she started to enjoy it. When he ejaculated in her mouth, she spat it into a sink in the bathroom. Steven Aslett then forced her to brush her teeth with a pink toothbrush. She was wearing a jumper. DNA of Steven Aslett was found on one of the sleeves, indicating that he wiped some semen onto the sleeve. Steven Aslett then forced the complainant out into the lounge room, telling her not to tell her parents what had happened to her. Later, he forced her back into the bathroom again. He then forced her to take her clothes off and have a shower. While she was doing this, he got liquid soap and forced it into her vagina, despite her protests that it was hurting and made her brush her teeth again with a clear toothbrush. Her underpants were on the floor of the bathroom. They had blood on them. Steven Aslett threw them into the washing machine, which was in the bathroom. The invaders had turned this washing machine on at some time after they came into the flat and so it washed the underpants. Police recovered the underpants and the toothbrushes when they attended the flat later that morning. Home invasion The four men pushed open the door of the flat and forced the surprised husband to the floor. Each of the invaders had a knife. They tied up the husband. He was threatened and he was put on the floor. Dudley Aslett was the one uttering threats and giving instructions to the others. He put a foot on the husband's head. He begged them to take whatever they wanted but not to hurt his family. One of the invaders threatened to stab him. Next they brought his wife and daughter out and tied them up next to him. Then they removed his wife and daughter, taking them out of the room. His wife was forced to open a safe, which contained items of jewellery. All of this was stolen. The husband saw Dudley Aslett with gloves and a mask. He was the one who gave all the orders. The men went through the flat, looting from every room. Each of the family members was tied up and threatened with stabbing. One of them used a screwdriver or a knife to stab a hole in the lounge. The complainant was raped vaginally by Dudley Aslett and Christopher Bonham, anally by Bonham and Steven Aslett and orally by Steven Aslett. The rapes by these three men wounded her and resulted in her being operated on under general anaesthetic that night. The wounds were very deep in her vaginal area and significant, but not as severe as her anal area, but these wounds still required stitching. This was a particularly brutal home invasion. It was planned, but the rape of the complainant was not part of the original plan. That was something Dudley Aslett decided upon, when he found out by questioning her, that she was only 16 years old. The wounding was caused by the rapes and was deliberately done by Dudley Aslett, who encouraged Bonham and Steven Aslett to continue with the rapes. Clearly, Steven Aslett knew that continuing the rapes would make the wounding worse. Gratuitous cruelty was involved in this offence. The four invaders, by their vicious actions, tortured the complainant and her parents. After a few hours, the invaders left, after making further threats to the three helpless victims. One of them observed sarcastically that 'next time they should keep their doors and windows locked'. The wife ran and alerted a neighbour, who called police and an ambulance. Three victims went to Westmead Hospital and later that morning, after she had been examined by a doctor who was an expert in such examinations, the complainant had surgery under general anaesthetic to repair the severe wounding she had suffered. 6 His Honour dealt with subjective matters in these words - Steven Aslett is a man of Aboriginal heritage. He is a man of Aboriginal heritage, who has no previous criminal record. He was eighteen years and four months at the time of the offences and is now nineteen years old. It would appear from what he told the Probation Officer and Mr John Taylor, psychologist, that he had a troubled upbringing. He did not provide evidence himself of this and called no one to support what he said to these two people. I feel I must treat with caution the claims he made about himself. They may be true, but I have no way of being certain of it. He had a relationship with Angela Turner. The Crown tendered part of a statement of hers, which would bear out this relationship and also that he expressed to her remorse of raping the complainant. Whilst his expression of remorse was limited, I must give him some benefit for it. The Probation Officer verified that he had attended school to year 10, but left without a School Certificate. He was regarded as a capable but troublesome student at school. After he left school, he did a number of labouring jobs, formed a relationship with Angela Turner and fathered a child. He also claimed to have had a significant drug problem, with heroin and methylamphetamine and to have been intoxicated on the night. These claims are possibly true. He clearly went to the premises on the night for the purpose of burglary. I am not prepared to find that when he went there he was intoxicated on drugs. He has been in custody since his arrest on 28th July 2003 and has been classified as a protection non-association inmate. This happened, according to the Probation Officer because of fears for his safety. It has meant that he has not had access to all of the facilities made available to mainstream prisoners and he has been somewhat isolated. Mr Taylor reports him as being a person of low average intelligence and as someone who has Attention Deficit Hyperactivity Disorder. He has instability in his personality adjustment and has a negativistic and antisocial personality type, with a moderate likelihood of recidivism both for offences of a general type and for sexual offences. He is not a sufferer of mental illness. He is a possible drug addict. Ground 1: his Honour found as aggravating features under s21A(2) of the Crimes (Sentencing Procedure) Act 1999 matters which were elements of the offence Ground 2: his Honour was in error in taking into account as matters of aggravation matters which did not arise from the facts of the offences 7 These grounds of appeal may be dealt with together. It was submitted that his Honour regarded as aggravating the applicant's criminality, and therefore justifying longer sentences, features which were elements of the offences. Dealing with s21A(2) Crimes (Sentencing Procedure) Act, which lists aggravating factors to be taken into account in determining sentence, his Honour listed a number of features, including the following - 1. The offences involved the actual or threatened use of violence (para (b)). 2. The offences involved the actual or threatened use of a weapon (para (c)). 3. The victims were very vulnerable in that the complainant was very young and both she and her parents were assaulted, tied up and terrorised in their own home (para (l)). 4. The offences involved multiple victims or a series of criminal acts (para (m)). 5. The offences were part of a planned or organised criminal activity (para (n)). 8 It was submitted that the use of violence and the use of a weapon, being elements respectively of robbery and of armed robbery, were elements of the first offence charged and could not be taken into account as aggravating the criminality of the applicant or as justifying a more severe sentence than would otherwise have been imposed. The submission may be accepted. S21A(2) itself concludes with a direction to the sentencing court not to take into account factors listed in the subsection that form elements of the offence. 9 It was submitted that none of the facts set forth by his Honour as demonstrating the vulnerability of the complainants was capable of doing so. Reference was made to R v Tadrosse [2005] NSWCCA 145 in which this Court held that para (l) is concerned with the weakness of a particular class of victim, of which the complainant is a member, and not with the threat posed by a particular class of offender. These submissions should be accepted. 10 It was submitted that his Honour erred in stating indiscriminately that offences involved multiple victims. The offence contemplated by the first offence did, but the remainder did not. Whether his Honour was referring only to the first count was, it was submitted, left in doubt. An identical submission was made about his Honour's finding that the offences were part of planned or organised criminal activity. Plainly the robbery was, but the sexual offences were opportunistic. 11 These submissions should be accepted. Where the sentencing court refers in a general way to aggravating factors which are elements of some but not all the offences for which sentence is being imposed or which are capable of applying to some but not to others, without explaining how, in any offence, criminality is thereby aggravated, it falls into error: R v Street [2005] NSWCCA 139 at [32] – [34]. 12 In my opinion the first two grounds of appeal have been made good. Ground 3: the applicant has a justifiable sense of grievance when comparing his sentence with the sentence imposed upon his co-offender Bonham 13 Bonham pleaded guilty to two charges in the same terms as the applicant's, one of seriously aggravated breaking, entering and committing a serious indictable offence and one of aggravated sexual assault in company. Bonham's part in the sexual attack on SA had been to rape her vaginally. On the first count he was sentenced to a non-parole period of seven years and a balance of five years and on the second to a non-parole period of eight years and a balance of six years. Partial accumulation of the sentences produced an effective non-parole period of ten years and a balance of term of five years. The applicant and Bonham had much in common. They were of an age – the applicant was eighteen years and four months and Bonham eighteen years and two weeks at the time of their offences. The applicant was of prior good character and Bonham had been convicted of one charge of larceny, not a relevant matter for sentencing purposes. Both were of low intelligence: the applicant fell into the low-average range, with Attention Deficit Hyperactivity Disorder and Bonham into the lowest thirteen per cent of the population. Both were led by Dudley Aslett. The applicant and Bonham played similar roles. Their sexual offences committed against SA were different, of course, and neither was legally responsible for the sexual acts of the other, but the seriousness of their individual acts was not dissimilar. His Honour regarded their criminality as of the same order. In my opinion that was a conclusion open to his Honour. 14 Both the applicant and Bonham had pleaded guilty, but whereas the applicant did so at the last moment, Bonham's pleas were in the Local Court. At one time Bonham was intending to give evidence against his co-offenders, but it had become clear by the time he was sentenced that he would not willingly assist the authorities (as it turned out, Dudley Aslett was convicted after a trial during which Bonham denied that he was present and denied the truth of an account that he had given to the police nominating Dudley Aslett as the leader). The judge who sentenced Bonham was under no illusions about Bonham's attitude towards the authorities. His Honour reduced Bonham's sentence to allow for the early plea of guilty and for such assistance as Bonham had then given. His Honour did not specify by how much he had reduced the sentence. 15 The sentencing judge assumed that Bonham's sentencing judge had reduced his sentence by forty per cent. In view of the attitude of Bonham that was known to his sentencing judge, I think it unlikely that such a large allowance was made. I think that that assumption led the sentencing judge into error. In my view the applicant's sentence ought to have been much closer to Bonham's. Ground 4: the sentence imposed is manifestly excessive 16 It was submitted that notwithstanding that all the offences were objectively very serious and that his Honour was bound to impose an aggregate sentence of many years duration, the resulting sentences were excessive. 17 An attack was made on his Honour's express view that the sexual assault offences were of the worst type, but I do not consider it necessary to deal with that argument in terms. By any standard, the applicant's sexual offences were very serious indeed. Equally obviously, his Honour did not use the conclusion to justify the imposition of the maximum sentence. 18 I think that the proper approach under this ground of appeal is one of general impression. The Crown submitted that it is not open to this Court to substitute its own opinion for that of a sentencing judge merely because it would have exercised its own discretion differently. Reference was made to Markarian v The Queen (2005) 215 ALR 213. That may be accepted, but in my view the sentences imposed individually and collectively exceeded the proper range of the sentencing discretion. In my view, notwithstanding the seriousness of the applicant's criminality, the sentences were too high for a young man of prior good character who pleaded guilty and who was not the principal offender. The errors I have identified under the first three grounds of appeal may explain why his Honour exceeded the bounds of sentencing discretion. I think that this Court should reduce the sentences. 19 My intention is to achieve a total effective sentence comprising a non-parole period of thirteen years commencing on 28 July 2003 and expiring on 27 July 2016 and a balance of term of seven years expiring on 27 July 2023. The reason for departing from the prima facie ratio of 3:1 between non-parole period and balance of term is to recognise the applicant's youth and to foster his prospects of rehabilitation, as evidenced by material put before the sentencing judge and in the applicant's affidavit affirmed on 11 January 2006 and read in this Court. 20 I propose the following orders - 1. Grant leave to appeal and allow the appeal. 2. Quash the sentences appealed against and substitute the following - Count 1: a non-parole period of five years commencing on 28 July 2003 and expiring on 27 July 2008 and a balance of term of four years; Count 2: a non-parole period of ten years commencing on 28 July 2005 and expiring on 27 July 2015 and a balance of term of four years; Count 3: a non-parole period of nine years commencing on 28 July 2007 and expiring on 27 July 2016 and a balance of term of five years; and Count 4: a non-parole period of seven years commencing on 28 July 2009 and expiring on 27 July 2016 and a balance of term of seven years. 21 HOWIE J: I agree with Barr J. ************** 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. 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