New South Wales Court of Criminal Appeal CITATION: R v BWS [2007] NSWCCA 59 HEARING DATE(S): 20 February 2007 JUDGMENT DATE: 9 March 2007 JUDGMENT OF: Sully J at 1; Bell J at 33; Hoeben J at 34 DECISION: Crown appeal allowed; Sentences passed in the District Court quashed; Responent re-sentenced as per paragraph 32 in judgment Criminal Appeal Act 1912 (NSW) LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Musso [2002] NSWCCA 487 R v Way (2004) 60 NSWR 168 PARTIES: Regina BWS FILE NUMBER(S): CCA 2006/2250 COUNSEL: W. Dawe QC - Crown S. Odgers SC - Respondent SOLICITORS: S. Kavanagh - Crown S. O'Connor - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0339 LOWER COURT JUDICIAL OFFICER: O'Connor DCJ LOWER COURT DATE OF DECISION: 30 August 2006 IN THE COURT OF CRIMINAL APPEAL 2006/2250 SULLY J BELL J HOEBEN J 9 March 2007 REGINA v B.W.S Judgment 1 SULLY J: This is a Crown appeal brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW). The appeal has to do with the alleged inadequacies of sentences passed upon the respondent, Mr. S, in the District Court on 30 August 2006. 2 Between 26 October and 1 November 2005 the respondent stood trial in the District Court at Gosford before his Honour Judge C. E. O'Connor QC and a jury. The respondent was so tried upon an indictment containing three counts. 3 Count 1 charged the respondent with an offence of aggravated sexual assault. Such an offence contravenes section 61J(1) of the Crimes Act 1900 (NSW); and it attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. A standard non-parole period of 10 years is prescribed for such an offence: Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A(1). 4 Count 2 alleged a second such offence of aggravated sexual assault. This second offence was alleged by the Crown to have been committed on 28 January 2004. The dating of Count 1 in the indictment was not so precise, the offence charged by that count being laid between 22 September 2003 and 25 December 2003. 5 Count 3 charged an offence of assault occasioning actual bodily harm. Such a charge contravenes section 59 of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 5 years. 6 The same alleged victim was named in each of the three counts. 7 The learned primary Judge passed upon the respondent three concurrent sentences of imprisonment. His Honour sentenced the respondent, on each of Counts 1 and 2, to a term of imprisonment of 10 years apportioned between a non-parole period of 6 years and a balance of term of 4 years. His Honour sentenced the respondent, in connection with Count 3, to imprisonment for a fixed term of 4 months. As I have said, all three sentences were dated so as to entail that they were served concurrently. This entailed that the total effective sentence for all three offences was a sentence of imprisonment for 10 years apportioned between a non-parole period of 6 years and a balance of term of 4 years. 8 The relevant facts are summarised succinctly, conveniently and as follows in the written submissions of the Crown: "6. His Honour summarised the evidence from the trial from pages 1 – 6 of the Remarks on Sentence (ROS). The complainant had been living with the Respondent, who was her uncle, and her aunty, his wife since she was eighteen months of age. At the time of all three offences the complainant was sixteen years of age and was in year ten at school. The Crown led relationship evidence to the effect that the sexual assaults had commenced when she was nine years of age and continued regularly while she was living with the applicant. The complainant ceased living there on the day of the incident that gave rise to count three in the indictment on 20 February 2004. Count One: 7. One Sunday some time after the complainant's sixteenth birthday on 21 September 2003 and before she graduated year ten in early to mid December the Respondent came into her bedroom. The complainant was lying on her bed fully clothed. The complainant's clothes were taken off and the Respondent took off his clothes. He then used his hand to guide his penis into her vagina. His penis remained there for a few minutes and then he removed it an ejaculated on the quilt on her bed. He then left the room. The complainant remembered this incident because it had occurred in her bedroom and mostly these incidents occurred in his room or the lounge room. The complainant said that she did not complain as there was no use in fighting him as it happened quite a lot and there was nothing she could say to him. She was scared of him and if she fought against him in any way she would get hurt more. The complainant said that she did not tell anyone what happened because soon after it started when she was nine the respondent told her that he would kill her or anyone that she told. The complainant said that the respondent frequently reminded her of that through the years. Count 2: 8. On 28 January 2004 the complainant went to school for her first day in year eleven. When she got there she found out that there was no school that day and one of the teachers drove her home. The complainant got out of her uniform and went into the lounge room where the Respondent was watching a music DVD. He was the only one at home as her aunty had gone shopping. The Respondent then pulled down her skirt and knocked her to the ground by pushing his hands against her chest. He took her underwear off and removed his shorts. He gripped her legs by digging his fingernails into her thighs. He placed his penis into her vagina while she was lying on her back. The Respondent then ejaculated as he usually did into his handkerchief. 9. The Respondent (sic – complainant) further said that she did not attempt to leave home as she was concerned for her younger brother who also lived there as the Respondent used "to bash him up as well" and she was concerned that he would take it out on her brother if she left. Count Three: 10. On the morning of 20 February 2004 the complainant was packing her bag for school and she placed some of her creative writing in a secret compartment in her bag when her uncle saw her and took the bag off her and placed it in his room. The complainant followed him and confronted him demanding her writing back. The Respondent pushed her onto her auntie's bed and placed his hands around her throat and was choking her. He banged her head against the wall a few times. She screamed as loudly as she could. As a result of the assault the complainant had a bite mark on her arm, a scratch along her neck and the back of her head was bruised. Her aunt stopped the assault. 11. Following this assault the complainant went to school. She was upset and a friend talked her into going to see a counsellor. The counsellor notified DOCS. The complainant only spoke of the assault to them at this stage. One the second occasion she spoke to DOCS she made the allegations of sexual assault and the police were informed and she participated in an interview on 25 February 2004. 12. The Respondent denied the offences and alleged that the complainant's evidence was fabricated. The Respondent alleged that because of his physical proportions including a protuberant belly sexual intercourse in the manner described by the complainant was impossible. He also claimed that he had a knee brace fitted to his knee on 27 January 2004 the day before count two and would have still been in pain. The Respondent also relied on inconsistencies in the complainant's evidence." 9 The written submissions of the Crown similarly summarise, as follows, the subjective features of the respondent's case as found by the learned primary Judge: "13. His Honour dealt with the subjective features of the respondent in his Remarks on Sentence from pages 6 – 7. they are as follows: - The Respondent was fifty seven years of age at the time of sentencing - The Respondent was in poor health and suffers from a number of ailments. A report from Dr. Butler noted the following complaints: He has haemorrhoids causing local pain and bleeding; he suffered a stroke in 1997 requiring regular Aspirin therapy. He has marked exertional breathlessness. He had a massive ventral hernia which was repaired surgically. He has a poor urinary stream with intermittent burning and dysuria and frequent voiding at night. He was diagnosed as having possible hypertension and old left cerebral infarct and probable gastro oesophageal reflux. (ROS pg 7) - He has been married for twenty one years with no children of that marriage. - The Respondent's antecedents were tendered after conviction. The Respondent had two prior convictions. One being assault female under 16 years of age with act of indecency. This offence occurred in 1973. 14. His Honour noted that the evidence on the subjective matters was limited as the Respondent did not give evidence and there was no pre-sentence report." 10 In connection with the two antecedent offences recorded against the respondent, his Honour said in the remarks on sentence: "Although the offence in 1973 is of relevance having regard to its nature because of its age I do not regard it as depriving the offender of any significant leniency. The other offence is different in character and again is now stale and does not impact on the sentencing task." 11 In my respectful opinion those findings were open to his Honour and I see no basis upon which this Court could now properly disturb them. 12 Having read carefully the learned primary Judge's remarks on sentence, I am of the opinion that there are two manifest errors in the process of reasoning which led his Honour to pass upon the respondent the sentences now challenged by the Crown. 13 The first error derives from his Honour's failure to apply correctly the sentencing principle established by the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610. The principle is stated conveniently and as follows in paragraph 45 of the joint judgment of McHugh, Hayne and Callinan JJ: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 14 This Court, variously constituted, has reiterated time after time that primary sentencing Judges are bound by that statement of principle. I presume to repeat in that connection what I said in R v Musso [2002] NSWCCA 487: "29. First, the principles that are established by the decision of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610, and in particular those principles that are collected in the judgment of McHugh, Hayne and Callinan JJ at 623(45)-624(48) are not optional advice as to correct sentencing procedure. They are a binding and authoritative statement of the law for Australia. 30. It follows, therefore, that it is incumbent upon primary sentencing Judges to give particular and careful consideration to the dutiful application of the principles thus established. 31. It can be acknowledged, I think, that the practical effect of the principles stated by the High Court has entailed a need for many a sentencing Judge to depart from a method of sentencing previously fairly well entrenched in the law and practice of this State. Be that as it may, Pearce is, I repeat, not optional sentencing advice; it is imperative and authoritative direction from the High Court to sentencing Judges. It is, I think, timely in the light of the present matter to say again what this Court has, of course, said on many a previous occasion." 15 It is true that his Honour did commence the relevant portions of his remarks on sentence by indicating his conclusion that a sentence comprising a non-parole period of six years and a balance of term of four years was appropriate for each of Counts 1 and 2. His Honour then continued, however: "I regard the principles of totality will be served (sic) if those sentences are served concurrently having regard to the fact that they took place over a relatively short period of time between late 2003 and early 2004. I also am of the view that such a sentence reflects the purposes of a sentencing set out in section 3A of Crime (sic) Sentencing Procedure Act . In so far as count three (sic) the offence of assault occasioning actual bodily harm, I note that there was no serious injury inflicted upon the complainant and I regard a period of imprisonment being a fixed term of four months as appropriate for that offence." 16 The first thing to be said about his Honour's approach is that, as I respectfully think, the approach wholly fails to take account of the undisputed fact that the respondent was standing for sentence in respect of each of three discrete offences, two of which were, by any reasonable reckoning, extremely serious offences. As I have earlier herein explained, the dating of Count 1 was no more precise than: between 22 September 2003 and 25 December 2003. The dating of counts 2 and 3 was, however, much more precise. Count 2 was charged as having occurred on 28 January 2004. Count 3 was charged with having occurred on 20 February 2004." 17 That three discrete criminal offences are committed against a single complainant cannot entail, if correct principle be correctly applied, the passing of sentences which, because they are made wholly concurrent, have the consequence of either no, or no adequate discrete punishment for each separate offence. An offender, such as the present respondent, who commits two separate, distinct aggravated sexual assaults upon a single complainant should expect to receive, deserves to receive, and must be seen plainly to have received in fact, distinct and separate penalties, the overall effect of which does not give any semblance of credibility to a proposition that, from the point of view of punishment, it does not matter much whether there is one offence, or more than one offence. 18 It can be allowed at once, in my opinion, that the facts of the present case permitted a pattern of sentencing such as to entail a partial, rather than a simple and complete, accumulation of the three separate sentences which had to be passed upon the respondent. It is, however, a very different thing to say that justice was sufficiently served by simply making all three discrete sentences wholly concurrent. In my opinion, the circumstances of the respondent's case call, at the very least, for a prudent, but distinct, measure of cumulation. I apprehend that nothing to the contrary is entailed either by the correctly principled application of the notion of totality; or by a correct and a properly resolute application of the general and rhetorical purposes of sentencing as defined in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 19 The second error in his Honour's process of reasoning lies, in my respectful opinion, in his Honour's approach to the requirements of the standard non-parole regime for which sections 54A and 54B of the Crimes (Sentencing Procedure) Act make provision. 20 In R v Way (2004) 60 NSWR 168 this Court, (Spigelman CJ, Wood CJ at CL and Simpson J) gave precise, and I apprehend with respect completely clear, guidance as to the way in which a primary sentencing Judge should approach the practical application in a given case of the requirements of sections 54A and 54B. The propositions now relevant are stated in paragraphs 117 through 125 and in paragraph 131 of the joint reasons of all members of the Court. The passages are extensive, but they are important; and having regard to what happened in the present matter, it might be useful to reproduce them: "117 In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?". 118 That question will be answered by considering: (i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1). 119 Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. 120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. 121 If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in ss 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Crimes (Sentencing Procedure) Act 1999. 122 In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount. 123 The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range. 124 The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45], cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect. 125 Sight should also not be lost of the fundamental principle noted in Hoare v The Queen (1989) 167 CLR 348 at 354: "…. Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances …." (emphasis included)" ………………………………………….. 131 What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act." 21 In my respectful opinion his Honour, had he both posed precisely and answered precisely, the question propounded in paragraph 118(i) of Way, must have concluded that a man in his mid-50's had twice forced himself upon a 16 year old girl in discrete acts of sexual intercourse which were, to his knowledge, non-consensual; and that in so forcing himself upon his victim he had abused a position of both trust and authority. 22 Had his Honour then proceeded, in accordance with the guidance afforded by paragraph 118(ii) of Way, to put into the balance the relevant factors, whether aggravating or mitigating, for which provision is made in section 21A of the Crimes (Sentencing Procedure) Act, but bearing always in mind the concluding words of sub-section (1) of section 21A, then, in my opinion, it would have been open to his Honour to take the view that there were no aggravating factors that were not already built in to the essential elements of section 61J offences. It would have been open, in my opinion, to his Honour to find, as his Honour did, that the respondent did not have any significant record of previous convictions; and that by reason of his age, coupled with the monitoring of his progress both while he was in custody and after his release to parole, he had good prospects of rehabilitation. 23 Had his Honour then brought into a reasonable balance the matters of which I have spoken, in paragraphs 21 and 22 above, doing so in the context of the question propounded in paragraph 117 of Way, then it would have been open to his Honour, in my respectful opinion, to conclude, as his Honour did, that there were good and sufficient reasons for not imposing the standard non-parole period of 10 years in respect of each of the section 61J offences. 24 That point having been reached, his Honour ought then to have proceeded in a clear and structured way to reason towards a provisional sentence in the way propounded in paragraphs 121 through 125 of Way. 25 The correctly principled carrying out of that exercise ought properly to have entailed, in my opinion: first, the setting of a fixed term of imprisonment in respect of Count 3; secondly, the setting of a provisional non-parole period and balance of term for the Count 1 offence; thirdly, the provisional setting of a non-parole period and balance of term for the Count 2 offence; fourthly, a provisional decision as to what degree of cumulation or concurrency might be though just and appropriate to the particular case; fifthly, the provisional setting of an overall result deriving from the previous four stages; and sixthly, the correctly principled revision of that provisional result. 26 His Honour did not approach in any such structured way the sentencing of the present respondent. The ultimate conclusions reached by his Honour are expressed in two paragraphs which need some particular consideration. His Honour said: "The offence as mentioned is objectively serious. The person to whom the complainant ought to look for protection and guidance abused her resulting in the emotional difficulties to which reference has been made. I am of the opinion that the offence as submitted by the Crown falls in the mid-range of objective seriousness. I regard the offences in counts one and two as indistinguishable as far as their relative seriousness is concerned. I regard an appropriate sentence for each of those matters as a period of imprisonment of ten years. I do find, however, special circumstances warranting an adjustment of the standard non-prole period and its relationship to the balance of the term . The reasons for such finding are that this will be the offender's time in custody, his age and also his state of health. I consider that a non-parole period of six years is appropriate with a balance of term of four years for the offences in counts one and two." [The material in bold is my emphasis.] 27 Having read and considered this reasoning, I take it to be intended to convey that his Honour looked at the matters to which paragraph 118(i) of Way refers, and concluded that, tested in that fashion, each of the 61J offences fell within the mid range of seriousness for an offence of the relevant kind. I take his Honour to be conveying, also, that the matters canvassed in paragraph 118(ii) of Way, when balanced against the (i) matters, justified a conclusion that there were proper reasons for not imposing the standard non-parole period of imprisonment for 10 years. In my opinion it was open to his Honour to reach that conclusion. 28 Where I part company with his Honour's reasoning is in his Honour's choice of a non-parole period of 6 years as appropriate, setting aside for the moment any further consideration of the standard non-parole period, to the facts of the respondent's particular case. In my respectful opinion, no reasonable balance of the (i) and (ii) considerations could justify, in the respondent's case, a cutting by 40 per cent of the standard non-parole period. In my opinion, a much more prudent and measured departure from the standard non-parole period was required in the respondent's case. In my view it would have been reasonably open to a primary sentencing Judge to have departed from the standard non-parole period to the extent of fixing, at least provisionally, a non-parole period for each of the section 61J offences of imprisonment for 7 years 6 months. 29 What I have written thus far will have made it abundantly clear that in my opinion the Crown has demonstrated such error in the primary sentencing process as would justify the intervention of this Court. I am unpersuaded that there is any consideration by way of residual discretion that would justify this Court's declining to intervene and to re-sentence the respondent. Once that position is reached, then I accept at once that the Court is required to re-sentence in a carefully restrained way; and in a way that takes account of any additional material properly before this Court on the question of re-sentence. 30 There is, as it happens, such additional material and it is to be found in two affidavits: one affirmed by the respondent on 14 February 2007; and the other affirmed by the respondent's solicitor on 16 February 2007. 31 If what is said in those affidavits be accepted, - and I see no basis upon which this Court could decline to accept it, - then the respondent must be re-sentenced upon the basis that he has on-going and not insignificant medical problems. He appears to be receiving medication and treatment appropriate to deal with those medical problems, as best that can ever be done in a prison environment. The respondent is serving his sentence in protection, a status which he himself sought in order to pre-empt his becoming embroiled in attacks by fellow prisoners as their means of bringing home to the respondent the way in which they viewed the section 61J offences committed by the respondent. The respondent's conditions of incarceration are, undoubtedly, as a result particularly burdensome. I accept that the medical and other matters which I have described both can and should result in some adjustment, favourable to the respondent, of what I might describe as the normal relationship between a non-parole period and a balance of term. At the same time it is, in my opinion, inescapable that the sentences passed upon the respondent are so inadequate when analysed and tested in the way which is required by the decisions in Pearce and in Way as to require some distinct increase in the respondent's current sentences. 32 To that end I would make the following orders: [1] that the Crown appeal be allowed; [2] that the sentences passed upon the respondent in the District Court be quashed; [3] that the respondent be re-sentenced as follows: · On Count 3: to imprisonment for a fixed term of 4 months commencing on 1 November 2005 and expiring on 28 February 2006. · On Count 1: to imprisonment for a non-parole period of 6 years 6 months commencing on 1 March 2006 and expiring on 31 August 2012 with a balance of term of 3 years commencing on 1 September 2012 and expiring on 31 August 2015 · On Count 2: to imprisonment for a non-parole period of 6 years 6 months commencing on 1 November 2006 and expiring on 30 April 2013 with a balance of term of 3 years commencing on 1 May 2013 and expiring on 30 April 2016. 33 BELL J: I agree with Sully J. 34 HOEBEN J: I agree with Sully 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. 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