Appeal Outcome: Special leave dismissed by the High Court (s498/2008) 1 April 2009 [2009] HCASL 85 New South Wales Court of Criminal Appeal CITATION: Leddin v R [2008] NSWCCA 242 HEARING DATE(S): 1 August 2008 JUDGMENT DATE: 20 October 2008 JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Hislop J at 3 DECISION: (1) Grant leave to appeal; (2) Quash the sentences in respect of counts 1, 2 and 3; (3) In lieu thereof sentence the applicant as to counts 1, 2 and 3 as follows: Count 1 - The applicant is sentenced to imprisonment for a fixed term of 9 years commencing on 9 June 2006 and expiring on 8 June 2015; Count 2 - The applicant is sentenced to imprisonment for 8 years 4 months to commence on 9 June 2006 and expire on 8 October 2014 with a balance of term of 2 years 9 months to commence on 9 October 2014 and expire on 8 July 2017; Count 3 - The applicant is sentenced to imprisonment for 8 years 4 months to commence on 9 June 2006 and expire on 8 October 2014 with a balance of term of 2 years 9 months to commence on 9 October 2014 and expire on 8 July 2017; (4) The sentence in respect of count 4 is confirmed; (5) The earliest date the applicant is eligible for release on parole is 8 June 2018. LEGISLATION CITED: Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 R v Way (2004) 60 NSWLR 168 R v Rice [2004] NSWCCA 384 CASES CITED : R v Thomas (1993) 65 A Crim R 269 R v Romano [2004] NSWCCA 380 R v Knight [2004] NSWCCA 145 PARTIES: Shane Joseph Leddin v R FILE NUMBER(S): CCA 2007/3710 COUNSEL: I. Nash (Applicant) P. Miller (Crown) SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/71/0112 LOWER COURT JUDICIAL OFFICER: Norrish QC DCJ LOWER COURT DATE OF DECISION: 3 August 2007 IN THE COURT OF CRIMINAL APPEAL 2007/3710 McCLELLAN CJ at CL SIMPSON J HISLOP J Monday 20 October 2008 Shane Joseph LEDDIN v R Judgment NON PUBLICATION ORDER RE NAME OF COMPLAINANT 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 SIMPSON J: I agree with Hislop J. 3 HISLOP J: On 12 March 2007 the applicant pleaded guilty to one count of detaining the complainant without her consent with the intention of obtaining an advantage, namely sexual intercourse, and at the time of detaining he did occasion actual bodily harm to the complainant contrary to the Crimes Act, 1900, s 86(2) (Count 1), and three counts of having sexual intercourse with the complainant without her consent knowing that she was not consenting thereto and at the time he did maliciously inflict actual bodily harm upon her contrary to the Crimes Act, 1900, s 61J(1) (Counts 2, 3 and 4). 4 The maximum penalty applicable for each offence was 20 years imprisonment. A standard non parole period of ten years imprisonment was applicable in respect of the s 61J(1) offences. 5 On 3 August 2007 the applicant was sentenced in the District Court, consequent upon those pleas, to imprisonment as follows: Count 1 - a term of 11 years 6 months to commence on 9 June 2006 and expire on 8 December 2017; Count 2 - a term of 8 years 4 months to commence on 9 June 2006 and expire on 8 October 2014; Count 3 - a term of 8 years 4 months to commence on 9 June 2006 and expire on 8 October 2014; Count 4 - a non parole period of 8 years 6 months to commence on 9 December 2009 and expire on 8 June 2018 with the balance of sentence of 4 years to expire on 8 June 2022. 6 In determining the sentence in respect of Count 4 his Honour took into account a further 12 offences contained in a Form 1 under the Crimes (Sentencing Procedure) Act, 1999, s 32. 7 The effective overall sentence imposed was imprisonment for 12 years with an additional term of 4 years. 8 The applicant has sought leave to appeal against sentence on the following grounds: "1. The learned sentencing judge erred in failing to set a non-parole period in respect of counts 2 and 3; 2. The learned sentencing judge erred in failing to give reasons for setting a fixed term in respect of count 1. 3. The sentence for count 1, if intended to represent a minimum term, was manifestly excessive." In addition, applicant's counsel sought leave to amend this ground to add: "The aggregate head sentence imposed was manifestly excessive." The amendment was not opposed by the Crown. 9 An agreed statement of facts was tendered to the court. His Honour set out the facts in his remarks on sentence as follows: "The prisoner on the evening of 12 April 2006 was in company with a brother and a friend and went to a hotel in Bayliss Street, Wagga and consumed what appears to be a considerable amount of alcohol. He also claims to have ingested an ecstasy tablet or some other prohibited drug during this period of time. He separated from his companions and in the early hours of the morning, sometime after 2.15am, came across the victim who herself had been at a hotel in Wagga. She had earlier endeavoured to obtain a taxicab and decided to walk home across the railway line near the Wagga Wagga railway station over a pedestrian overpass known as Mother's Bridge. As she was crossing the bridge the prisoner came across her. The extent to which he had followed her at that point of time I am unable to say. She was startled by him and he apologised and she continued to walk on towards the Mount Erin area of Wagga. So there was some small talk between the victim and the prisoner concerning the prisoner having to go to a place called Ashmont, a suburb of Wagga, but they kept walking. Eventually the victim walked across the bridge into Macleay Street and then into Erin Street which runs up towards the Mount Erin school. She noticed that the prisoner was following her very closely and then as the victim stepped into Erin Street the prisoner punched the victim with his right fist to her right eye and then to the bridge of the nose causing a laceration that began to bleed heavily as her eyes closed over. I point out that I have photographs available of the injuries observed of the victim after the event. The victim obviously was startled, complained about being hit. The prisoner responded to her complaint by punching her to the right cheek, the victim began to scream. Unfortunately, at that point, nobody appears to have heard her screams. The prisoner said to her, 'If you don't stop screaming, I'm going to squeeze my hands around your throat'. The victim stopped screaming, the prisoner took hold of her, picking up her shoes and handbag, and forced her across Edmondson Street and into the grounds of Kildare Catholic College, a school in the vicinity of the Mount Erin area. The prisoner threatened the victim by saying, 'If you tell anyone about this I'm going to kill you and then find your family and kill them, every one of them.' He forced the victim to a grassed area, threw her belongings onto the grass, told her to take her pants off several times and the victim naturally feared for her life and commenced to remove some of her items of clothing. He pushed her to the chest causing her to fall onto her bottom, he ripped her underpants from her legs and then he said to her when he knelt down in front of her, 'How do you want me to fuck you'. The prisoner leant over and forced the complainant's legs apart and began licking the outside of her vagina before penetrating her vagina with his tongue. The prisoner extensively licked around her genital area for several minutes. This act constitutes Count one, the actions of the prisoner clearly in taking hold of her and taking her up to Kildare College and the surrounding circumstances are the events that give rise obviously to Count one. The prisoner moved his body onto the victim and forced his erect penis into the vagina of the victim with two big thrusts causing her pain. He then said to her 'You know what's going to happen to you if you tell anyone' and he grabbed her by the back of the hair, pulled her closer and he said, 'You are going to die'. The victim responded, 'I am going to die'. At that point the prisoner kissed the complainant on the mouth. The prisoner moved back down between the victim's legs and again licking her vagina, once again for a short period of time, and then he inserted his penis semi erect inside her vagina and began to move his penis in and out of her vagina. These two acts constitute the first two matters on the Form 1. He withdrew his penis from the victim's vagina and began licking her vagina returning to insert his penis into the complainant's vagina at least three times. These various acts constitute the third to eighth matters on the Form 1. The prisoner withdrew his penis at one point and began to masturbate himself to an erect state before reinserting his penis in the victim's vagina, this constitutes the ninth matter on the Form 1. He inquired as to the victim's name, he indicated he would check her wallet for confirmation. He became agitated because he could not maintain an erection and he said to her, 'You're going to stay here all night if you have to until I get it.' He then instructed her, 'Put your arse up, put it up'. He forced her legs back over her head; he licked the anus of the victim before inserting his erect penis into the anus of the victim for a short time before his erection subsided. This penetration constitutes Count four. At this point of time the victim's mobile phone rang, the prisoner said the victim 'You know what happens if you answer your phone when you leave here'. The victim said, 'I'm going to die' and the prisoner replied 'and your family too'. The prisoner put the complainant's legs back down and inserted two fingers into the vagina of the victim causing a sharp pain and extreme discomfort. This constitutes the twelfth matter on the Form 1. The prisoner asked, 'Do you like that'. The victim did not reply. He then made another attempt to have penile penetration of the victim's vagina but was unable to do so. This constitutes the tenth matter on the Form 1. At this point the complainant could hear persons who were friends of hers walking a short distance away on Edmondson Street towards where the school grounds were. The prisoner said to the victim, 'You know that if you tell anyone I'm going to find where you live, fuck you so hard, chop your head off and then kill your family'. The prisoner then tried to put his penis into the complainant's vagina. This constitutes, as I understand it, the eleventh matter on the Form 1. The victim was told to shut up and to remain quiet. She was told not to put her clothes back on, there was a struggle and then she managed to break free and run towards her friends. He endeavoured to chase her in an attempt to further detain her however, when she got into streetlights he ran off. She sought assistance and had to be conveyed ultimately to Albury Base Hospital for assessment and her clothing was seized for further examination. As a result of scientific examinations DNA profiles were identified from the anal swab of the victim and the back inside portion of the complainant's skirt. As I would understand it, one or other of these profiles linked these events with the prisoner. On 9 June police executed a search warrant at his home. He was arrested and cautioned but he denied the offence. He did admit being at downtown Wagga that evening and nominated several items of clothing worn by him on the night of the offence. He participated in an electronic interview later on after being taken into custody but, whilst admitting movements in the township of Wagga at the relevant time, he denied responsibility for the assaults. He said he did not know the victim." 10 His Honour made the following findings: (a) The applicant was born in April 1980. (b) The applicant is from a relatively normal family. He has four younger brothers with no psychiatric or criminal history. He left school in Year 10 with very poor academic achievement. He was suspended on occasions at school for aggressive behaviour and whilst he had had some employment for several months at a time he did not have a strong employment history and has had many periods of unemployment. He has two children aged eight and nine from a relationship but would appear to have little contact with his children. He claimed to have been involved in the use of alcohol and drugs since about the age of 18 years. (c) He has an extensive criminal history commencing at about age 16. It includes a large number of findings of guilt for largely offences of dishonesty and motor vehicle offences. He has convictions for assault (including what was described as a savage assault, in company, upon a double amputee), a conviction for wilful and obscene exposure, three offences of sexual assault (carnal knowledge) in 1997, aggravated break and enter, and indecent assault involving digital penetration or attempted digital penetration of two girls aged 13 and 11 or 12. (d) The subject offences for which the applicant stood for sentence were committed whilst he was on parole. (e) Previous reports prepared by the Probation and Parole Service painted a negative picture. They noted the applicant had shown no interest in participating in the CUBIT programme, had been unsuccessful in alcohol and drug counselling, had failed to comply with obligations imposed by previous courts, was unsuitable for various programmes and had been refused parole on two occasions by the Parole Board by reason of the risk of reoffending. A psychologist's report concluded the applicant had a high risk of further offending so far as sexual offences were concerned or acts of violence and required to undertake a range of programmes to get insight and assistance. (f) The applicant had ingested a considerable amount of alcohol prior to committing the subject offences. He claimed he had no memory of his acts. His Honour did not accept that claim as in his view the assertion of lack of memory was just a convenient means of the applicant avoiding taking responsibility for his conduct. The fact he was intoxicated was not a mitigating factor at all. (g) The effect upon the complainant of the applicant's conduct would be substantial and long lasting. There was little real contrition, regret or remorse by the applicant for his conduct. The applicant did not give evidence on the sentencing hearing. (h) The applicant could not point to any form of constructive conduct in the past that might give greater hope for rehabilitation in the future. (i) There were no special circumstances that warranted an adjustment of the non parole period. (j) A discount of one-sixth of the otherwise appropriate sentence was to be made for the guilty pleas. 11 His Honour also found: (a) The offences were very serious offences of their type although it could be fairly said that the applicant was not the worst offender of the type that have committed such offences. (b) The complainant was subjected to these abuses for approximately an hour. There have been worse cases involving longer periods, but in totality the offending behaviour is at the higher end of the scale of offences of this type. Accompanied as it was not only with the sexual violence but the physical violence that was perpetrated upon the complainant. (c) The conduct of the applicant involved a continuous course of conduct albeit that every indignity heaped upon the complainant aggravated the situation more and more. (d) There is very little, in fact nothing, that can be said for the applicant. The offences were a continuous course of events that were themselves separate acts of nothing short of brutality. Ground 1: The learned sentencing judge erred in failing to set a non-parole period in respect of counts 2 and 3 12 The Crimes (Sentencing Procedure) Act, 1999 ("the Act") provides: " 45 Court may decline to set non-parole period (1) When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient." 13 The offences set out in the Table to Div 1A of Pt 4 of the Act are expressly excluded from the exemption in s 45(1). Section 61J(1) of the Crimes Act, 1900 is an offence set out in the Table to Div 1A of Pt 4 of the Act. 14 In R v Way (2004) 60 NSWLR 168 at [47] the court noted "…s 45, which permits the court to decline to specify a non parole period for an offence, does not apply to the offences set out in the Table to Division 1A (s 45(1)). It follows that fixed term sentences are not available for such offences." 15 In R v Rice [2004] NSWCCA 384 at [118], a case where the offender had pleaded guilty, it was held that it was error of law not to specify a non parole period in relation to each of the [offences set out in the Table] when imposing the initial sentences. 16 It was thus an error of law on the part of his Honour not to specify a non parole period in relation to the offences alleged in counts 2 and 3. The error was conceded by the Crown. 17 However, in my opinion, the failure to set a non parole period had no material impact upon the sentences on counts 2 and 3 or the effective overall sentence. Ground 2: The learned sentencing judge erred in failing to give reasons for setting a fixed term in respect of count 1 18 Section 45(2) of the Act provides: "If a court declines to set a non parole period for a sentence of imprisonment, it must make a record of its reasons for doing so." 19 There was no breach of this requirement. His Honour gave reasons for declining to set a non parole period in respect of count 1, as the following exchange in the remarks on sentence reveal: "CORR: And counts one, two and three because they expire before the date that he was eligible for release on Count four you have not imposed a non parole period. HIS HONOUR: Thank you, Mr Crown and I would have noted that. I decline to fix a non parole period in relation to those sentences because the sentences will expire before the expiration of the non parole period fixed for count four." 20 I reject this ground of appeal. Ground 3: The sentence for count 1, if intended to represent a minimum term, was manifestly excessive. The aggregate head sentence imposed was manifestly excessive 21 His Honour said as to the Count 1 offence: "This offence of detaining someone for advantage is one of the more serious offences of its type. The contemplation of the [applicant] was to commit it is quite clear a number of offences upon the victim when he detained her albeit I could not conclude that he anticipated doing all that he did to her. He had her detained not temporarily but for what could be called a substantial period of time. He detained her over a significant distance, or at least a substantial distance and the detention was accompanied by threats of violence of an extreme nature and I also bear in mind that the termination of the detention as the Crown pointed out was not because of any change of heart on the part of the prisoner. In fact there was no change of heart on the part of the prisoner. He pursued her when she finally escaped. It is itself a most serious offence of its type." 22 The sentence of 11½ years imposed in respect of count 1 is a minimum term. Such a conclusion is consistent with his Honour's comment quoted in [19] above. It is also consistent with the general practice as exemplified in R v Thomas (1993) 65 A Crim R 269 at 275-6 and R v Romano [2004] NSWCCA 380 at [20] and [21]. 23 When allowance is made for a balance of term of one-third of that sentence (being the statutory period) and the discount of one-sixth for the utilitarian value of the plea allowed by his Honour, it is apparent that his Honour's starting point in respect of the count 1 sentence was a little in excess of 18 years. 24 The applicant submits that such a starting point is manifestly excessive when the maximum penalty is imprisonment for 20 years. It was submitted for the applicant that: "…a starting point that can be calculated to be in excess of 18 years shouldn't necessarily be reserved for the worst category of cases, but it should be reserved for something very close to the worst category of cases. It's the applicant's primary submission that although this is a terrible offence and offences, there can be no doubt, does not fall properly within that category. Although his Honour observed that the offences or found that the offences took place over about an hour, I don't think that there was any specific evidence in that regard, but his Honour found that and it seems consistent with what occurred. In the context of s 86 offences, that could be said to be a relatively short space of time. Certainly that sort of offence has taken place over far longer periods and the case of Reyes(?), although not an aggravated form of the detain offence, occurred over many, many hours if not days. The offences comprised a single episode. It wasn't a case as in Reyes where the detain occurred and then a series of other offences occurred at a separate place. The advantage which was an element of that offence was the subject of a series of other offences and the point is made in the written submissions that significant penalties were imposed in respect of each of those. There was no weapon involved and that, in the applicant's submission, should also distinguish the s 86 offence from one that falls within the worst category or close to the worst category. Your Honours, the other point I wish to make about the s 86 offence is one relating to the statistics… an 11 and a half year sentence, if properly regarded as a minimum term, falls right at the very top end of all sentences imposed." 25 In my opinion, the sentence in respect of count 1 is manifestly excessive by reference to the maximum penalty imposed by the section and by reference to the statistics provided, albeit derived from a relatively small base. However, as counsel for the applicant observed, a possible resolution of this ground of appeal could be that the term would be reduced without any impact upon the overall sentence. That observation is pertinent. 26 In R v Knight [2004] NSWCCA 145 at [31] this court held that the fundamental principle in sentencing for multiple offences is that the overall sentence imposed must reflect the totality of the criminality evidenced by those offences. 27 As his Honour found: (a) This is a case where a great deal of emphasis must be placed upon punishing the applicant and deterring him and others from committing similar crimes and protecting the community from the applicant as well as making him accountable and denouncing and recognising the harm done to the complainant. (b) There were a number of significant aggravating factors including that the offences were committed on parole, there was gratuitous cruelty to the victim, the victim was vulnerable. (c) The impact upon the complainant one could infer, even without the material contained in the victim impact statement, would be very significant indeed. (d) The Count 4 offence involved the gratuitous humiliation of the victim for which the applicant should be condemned. Each of the Form 1 offences were to be taken into account on Count 4, each being "very serious matters indeed" for which substantial penalties were provided. 28 This was a connected series of sexual assaults of a cruel and degrading nature coupled with the detention of the complainant and the infliction of bodily injury upon her together with threats to kill both her and all members of her family. The offences were committed upon a blameless and defenceless young woman leaving her with long term psychological sequela. There was nothing to be said in the applicant's favour on the objective facts or his subjective case. The overall effective sentence, as previously stated, is a 12 year non parole period with an additional term of 4 years. In my opinion, having regard to all of the circumstances, the overall sentence was within the permissible sentencing range available to his Honour. In my opinion, no less an overall effective sentence is warranted in law. 29 By reason of the errors referred to herein some variation is required to individual sentences but, in my opinion, the overall effective sentence of 12 years with an additional term of 4 years should remain unchanged. In resentencing in respect of Count 1, a fixed term of imprisonment will be specified because the sentence will expire before the expiration of the non parole period fixed for Count 4. 30 I have had regard to the contents of the affidavits of the applicant and his solicitor filed in this Court. This material does not cause me to revise my opinion as to the appropriateness of the sentences and the overall effective sentence. 31 I propose the following orders: 1. Grant leave to appeal; 2. Quash the sentences in respect of counts 1, 2 and 3; 3. In lieu thereof sentence the applicant as to counts 1, 2 and 3 as follows: Count 1: The applicant is sentenced to imprisonment for a fixed term of 9 years commencing on 9 June 2006 and expiring on 8 June 2015. Count 2: The applicant is sentenced to imprisonment for 8 years 4 months to commence on 9 June 2006 and expire on 8 October 2014 with a balance of term of 2 years 9 months to commence on 9 October 2014 and expire on 8 July 2017. Count 3: The applicant is sentenced to imprisonment for 8 years 4 months to commence on 9 June 2006 and expire on 8 October 2014 with a balance of term of 2 years 9 months to commence on 9 October 2014 and expire on 8 July 2017. 4. The sentence in respect of count 4 is confirmed. 5. The earliest date the applicant is eligible for release on parole is 8 June 2018. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.