New South Wales Court of Criminal Appeal CITATION: Huntingdon v Regina [2007] NSWCCA 196 HEARING DATE(S): 25 June 2007 JUDGMENT DATE: 5 July 2007 JUDGMENT OF: Giles JA at 1; James J at 2; Hislop J at 3 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: Criminal law - Sentencing - De Simoni principle - Backdating sentence - Special circumstances - Sentence not manifestly excessive. Crimes Act 1900 - ss 61, 61L, 61M LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 21A , 24, 47 Criminal Appeal Act 1912 - s 6(3) Markarian v R (2005) 215 ALR 213 R v Button (2002) 54 NSWLR 455 R v Close (1992) 31 NSWLR 743 R v Cook (1999) NSWCCA 234 R v De Simoni (1980-1981) 147 CLR 383 CASES CITED: R v Fidow [2004] NSWCCA 172 R v Hajjo NSWCCA (unreported 31 August 1992) R v John David (unreported NSWCCA 20 April 1995) R v Niass (unreported NSWCCA 16 November 1988) R v Simpson (2001) 53 NSWLR 704 R v Wickham (2004) NSWCCA 193 R v Yang (2003) 135 A Crim R 237 PARTIES: Applicant - Adam Kevin Huntingdon Respondent - Regina FILE NUMBER(S): CCA 2007/1058 COUNSEL: Applicant - Mr T. Gartelmann Respondent - Mr R. Herps SOLICITORS: Applicant - T & A Legal Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): Mahoney DCJ LOWER COURT JUDICIAL OFFICER: 06/41/0083 LOWER COURT DATE OF DECISION: 1 September 2006 - 1 - IN THE COURT OF CRIMINAL APPEAL 2007/1058 GILES JA JAMES J HISLOP J 5 July 2007 Adam Kevin HUNTINGDON V REGINA Judgment 1 GILES JA: I agree with Hislop J. 2 JAMES J: I agree with Hislop J. HISLOP J: Introduction 3 The applicant was charged on indictment with the following offences to which he pleaded guilty: (1) Assault April Hyde contrary to the Crimes Act 1900 section 61. The maximum penalty for such an offence is 2 years imprisonment, (2) Assault April Hyde and at the time commit an act of indecency on her contrary to the Crimes Act 1900 section 61L The maximum penalty for such an offence is 5 years imprisonment. The offences occurred on 7 January 2006. 4 On 1 September 2006 the applicant was sentenced in the District Court to imprisonment for a fixed term of 80 days in respect of the first offence and to imprisonment for a non-parole period of 15 months with an additional period of 5 months in respect of the second offence. Each sentence was backdated to commence on 8 May 2006. His Honour directed that the applicant be released to parole at the expiration of the non-parole period on 7 August 2007. 5 The applicant has sought leave to appeal against the sentence in respect of the second offence on the grounds that: (1) The sentencing judge erred in taking into account an aggravating factor contrary to the principle in De Simoni; (2) The sentencing judge erred in failing to take into account pre-sentence custody and in failing to apply the principle of totality; (3) The sentencing judge erred in the consideration of whether special circumstances existed; (4) The sentence is manifestly excessive. 6 A summary of the background and facts of the offences, which summary was accepted by the respondent, is contained in the applicant's written submissions on appeal and is as follows: '[8] The co-offender [Bradley Kearns], who was aged about 20 years, shared a unit with others, including a girlfriend of the victim. The victim, who was aged about 21 years, came to stay at the unit about a week prior to the offences. The victim and the co-offender, who had known one another for about three years, had had sex together early in that week. The victim then sought to discontinue sexual relations with the co-offender. The victim and the applicant had had sex together the night before the offences. On the day the offences occurred, a number of people, including the victim, her girlfriend, the applicant and the co-offender were drinking together at the unit. The applicant and the co-offender became heavily intoxicated. The co-offender sought to resume sexual relations with the victim, who declined to do so. The co-offender became angry and the victim sought to leave, which the co-offender sought to prevent. The various offences [4 by Kearns and 2 by the applicant] occurred against this background … [9] The facts of the assault offence were, essentially, that the applicant, or both the applicant and the co-offender, grabbed the victim by the throat and either threw or pushed her back into or onto a lounge. [10] The facts of the indecent assault offence were, essentially, that the applicant grabbed the arms of the victim who was at the time partially clothed and covered with a blanket, removed the blanket and the victim's underwear and urged a youth to look at the victim's breasts and genitalia. The victim then grabbed the blanket and ran inside.' Objective factors 7 His Honour in his Remarks on Sentence said: (a) ' … whilst it [the second offence by the applicant] lacks any suggestion of physical injury, it displays an appalling level of manners and respect for the victim. It would have been inexcusable had it occurred in private between them. In full view of his friend, and calling upon a third person to take a lascivious interest in the goings on, marks it out as being a particularly disgraceful action'. (b) 'The fact that the victim of these six offences might not have been a shrinking violet, cannot be taken as some form of leave pass or concession for the perpetrators of the crimes to disregard her wishes, the integrity and the basic dignity to which all females are entitled'. (c) The emotional harm, undoubtedly suffered by the victim, was minimal rather than substantial. (d) The offences were committed in breach of bail conditions and a 12-month bond imposed on 7 February 2005. Subjective factors 8 The applicant is a single man born on 29 November 1986. He was the only child of a marriage which failed when he was 3 years of age. He was raised by his mother and had minimal contact with his father. He was diagnosed as suffering from Attention Deficit Hyperactivity Disorder at the age of 14 and had a history of using illicit drugs from age 15. He had, what his Honour described as, 'an extensive criminal record for a relatively young man'. His record included convictions for dishonesty, including breaking, entering and stealing, drugs, common assault and possession of a knife, though none for offences of a sexual or indecent nature. His father became more involved in the applicant's life when the latter's lawlessness came to his attention approximately 18 months before sentence. He was concerned about the applicant's welfare. He gave evidence at the sentencing hearing and indicated his willingness to have the applicant live with him in Sydney and arrange employment for him there upon his release. His Honour allowed a discount in the order of 10% for the guilty plea. Discussion Ground One - The sentencing judge erred in taking into account an aggravating factor contrary to the principle in R v De Simoni 9 In R v De Simoni (1980-1981) 147 CLR 383 at 389, it was held: 'A judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence'. The principle in De Simoni is preserved by section 21 A (4) of the Crimes (Sentencing Procedure) Act 1999 ("the Act") – R v Wickham (2004) NSWCCA 193 at [26]. 10 The applicant was charged with indecent assault contrary to the Crimes Act s 61L. He was not charged with the more serious offence of aggravated indecent assault pursuant to the Crimes Act 1900 s 61 M (1), which attracts a maximum penalty of 7 years imprisonment. A circumstance of aggravation for the purposes of s 61M is that the alleged offender is in the company of another person or persons (s 61 M (3)). 11 His Honour, in his Remarks on Sentence, said 'Learned counsel for Mr Huntingdon conceded that in his case, the aggravating feature nominated in [s 21A(2)(e)] of the Act obtained'. The aggravating feature nominated in subsection (2) (e) of the Act was that 'the offence was committed in company'. 12 Accordingly the applicant submitted there was a breach of the De Simoni principle in that his Honour took into account a circumstance of aggravation which would have warranted a conviction for the more serious offence under s 61M(1). 13 In R v Button (2002) 54 NSWLR 455 Kirby J, after an analysis of various authorities as to the meaning of 'in company' concluded at [120] that the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault); that the cases appear to assume that each participant is physically present; and that the perspective of the victim, (being confronted by the combined force or strength of two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company', even if the victim was unaware of the other person. 14 The respondent submitted: (a) the second offence did not occur 'in company'. (b) the phrase 'in company' was used by his Honour, not in the technical sense of section 61 M or section 21 A, but to mean 'in the presence of others'. Thus De Simoni had no application. 15 The parties took the Court to the transcript of the exchange between his Honour and counsel for the applicant in respect of the concession to which his Honour referred. The transcript recorded relevantly: 'Unless your Honour wishes to hear any further from me in submissions - - HIS HONOUR: There are a few things. Under s 21A(2) I have to take into account any features of aggravation which are not part and parcel of the crime with which he has been charged. It seems to me that your client falls foul of subcl (d) on the basis he's got previous convictions and (e) on the basis that the offence was committed in company. McGILL: Correct your Honour. HIS HONOUR: So those are two aggravating features that I've got to take into account, are they not, which are not part and parcel of the elements of the crime that he's charged with. McGILL: No, that's correct your Honour but in respect of the indictable count, that's the indecent assault, as I recall the situation that didn't happen in company with the other offender. HIS HONOUR: The facts as I read them was that the two boys frogmarched the girl downstairs. McGILL: But the actual assault itself and with the act of indecency, the Crown's relying on the stripping of the clothing from the young woman. HIS HONOUR: But his mate was there. McGILL: But there's nothing to indicate your Honour that he took any part in that. HIS HONOUR: His mate did? McGILL: Yeah. HIS HONOUR: No, other than the fact that he stood by and allowed it to happen until he said, "That's enough, break it off?". McGILL: That's correct your Honour, yes. HIS HONOUR: I mean he must have been pretty close to be able to say "break it off" and be heard. McGILL: I'd accept that.' 16 It would appear from this exchange that there was no concession as to the application of s 21 A (2)(e) to the second offence and that the basis for his Honour's conclusion that the indecent assault occurred in company was that Kearns 'stood by and allowed it to happen' until he said, 'that's enough, break it off' and that he must have been 'pretty close'. 17 The police fact sheets and the victim's statements each of which was admitted without objection, recorded that after Kearns had said words to the effect of break it up, Kearns had handed the victim a blanket to put around herself, she ran into the backyard and it was then that the indecent assault took place. There is no evidence that Kearns took any part in the indecent assault or followed the victim into the backyard. No charge was brought against Kearns in respect of the indecent assault. 18 His Honour concluded that the indecent assault occurred in company because he understood that it was conceded by applicant's counsel and because Kearns had stood by and allowed the offence to happen. In my opinion each of those conclusions was erroneous. 19 However the errors are immaterial to the sentence received. His Honour was entitled, without breach of the De Simoni principles, to take into account that Kearns and the youth were in a position to see the victim whilst she was being indecently assaulted by the applicant. That this and this alone was what his Honour took into account erroneously as a subsection (2)(e) aggravating factor is apparent from his comments in the remarks on sentence which are set out at [5(a)] above. In my opinion this ground of appeal is not established. Ground Two - The sentencing Judge erred in failing to take into account pre-sentence custody and in failing to apply the principle of totality. 20 The applicant was arrested on 8 January 2006. Bail was refused and he has remained in custody since that time. 21 On 19 May 2006 the applicant was sentenced to 12 months imprisonment with a non-parole period of 6 months for "use offensive weapon to prevent lawful detention, assault officer in execution of duty and be carried in conveyance taken without consent of owner." The non-parole period commenced on 9 November 2005 and expired on 8 May 2006. It was agreed by both parties at the sentencing hearing that the applicant's custody in relation to the present offences only dated from 8 May 2006. Consequently his Honour held the applicant's 'custody referrable to the present offences, did not commence until 8 May 2006.' 22 Section 24 of the Act provides: In sentencing an offender, the court must take into account: (a) any time for which the offender has been held in custody in relation to the offence… 23 Section 47 of the Act provides: (1) A sentence of imprisonment commences (a) subject…to any direction under subsection (2), on the day on which the sentence is imposed… (2) A court may direct that the sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed… (3) in deciding whether or not to make a direction under subsection 2(a) with respect to a sentence of imprisonment, and in deciding the day on which a sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates. 24 Other than in exceptional circumstances, the court will backdate a sentence so that it commences upon the date the applicant went into custody referrable to that offence – R v Close (1992) 31 NSWLR 743, R v Cook (1999) NSWCCA 234 at [39]. His Honour backdated the sentence referrable to the second offence so that it commenced upon the date the applicant went into custody referrable to that offence. 25 It was submitted for the applicant that 'the sentencing judge appears not to have considered the principle of totality in determining whether the sentence for the present offence might be made partially concurrent with the non-parole period of the earlier offence. It was further submitted 'The principle of totality is not restricted to sentences imposed for connected or contemporaneous offences: R v Close (1992) 31 NSWLR 743 at [59]. The principle applies where a sentence is imposed upon a person who is already serving a sentence: R v Hajjo NSWCCA (unreported 31 August 1992). It is therefore submitted that the sentencing judge erred in failing to consider the principle of totality in determining whether to backdate the sentence to be imposed for the present offence.' 26 Save in exceptional cases, the general principle is that although when a person is being sentenced for an offence a period which he has already spent in custody in relation to that offence should be taken into account, a period which the person has spent in custody in respect of an unrelated offence should not be taken into account – R v Niass (unreported NSWCCA 16 November 1988; R v John David (unreported NSWCCA 20 April 1995). The present is not an exceptional case. No error by his Honour is demonstrated. Indeed the transcript of the sentencing hearing records an agreement by the parties that any custodial sentence for the present offences should be backdated to 8 May 2006. Ground Three - The sentencing judge erred in the consideration of whether special circumstances existed. 27 His Honour concluded that a finding of special circumstances was not warranted as 'such features as have been advanced in support of the submission, have already been taken into account in determining the overall sentences'. 28 His Honour prefaced his remarks by reference to a number of authorities including R v Fidow [2004] NSWCCA 172. In that case this Court observed: [18]…'Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur… [22] Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that the sentencing judge is obliged to and applied the statutory proportion. His Honour had regard to the principles in Fidow. No error is demonstrated. Ground Four -- The sentence is manifestly excessive. 29 The applicant submitted that when both the objective circumstances of the offence and the subjective circumstances of the applicant were taken into account the sentence could be seen to be manifestly excessive particularly as: (a) The indecency did not derive from touching, but from the exposure of, the victim's body; (b) Although the exposure took place in the presence of another it occurred in the backyard of private premises rather than in a public place and, it would appear, for a brief period of time; (c) The applicant had no prior convictions for offences of indecent or sexual assault; (d) The plea spared the necessity of the victim giving evidence, a matter adding to the remorse otherwise manifested by the plea; (e) The applicant was aged about 19 years and 1 month at the time of the offence; (f) An offence against the Crimes Act 1900 section 61 L Is capable of being dealt with in the Local Court with a maximum penalty of 2 years imprisonment. 30 The respondent submitted the offence occurred in breach of conditional liberty, the applicant had a record that disentitled him to leniency, the plea was late and the offence was objectively serious. The sentence was one that, having regard to the objective seriousness of the offence could not be said to be outside the proper range. The fact that the matter could have been dealt with in the Local Court, though a relevant consideration in the exercise of the sentencing discretion, did not require the court to proceed upon the basis that the maximum available sentence was that which could have been imposed in the Local Court – R v Yang (2003) 135 A Crim R 237. 31 In Markarian v R (2005) 215 ALR 213 at [27], Gleeson CJ, Gummow, Hayne and Callinan JJ held: Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 32 In my opinion the sentence imposed by his Honour for the second offence was high but was within the bounds of the proper exercise of his sentencing discretion. I would reject this ground. Conclusion 33 This is a court of appeal. Its powers in respect of an appeal on sentence are prescribed by section 6(3) of the Criminal Appeal Act 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79]. 34 Although I have concluded his Honour fell into error in the respects referred to earlier in this judgment those errors did not impact upon the sentence imposed by his Honour. 35 In my opinion, it has not been established some other sentence, less severe, was warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. 36 I propose the following orders: 1. Leave to appeal granted; 2. Appeal dismissed. ********** 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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