New South Wales Court of Criminal Appeal CITATION: Jalloh v R [2009] NSWCCA 295 HEARING DATE(S): 11 December 2009 JUDGMENT DATE: 11 December 2009 JUDGMENT OF: McClellan CJatCL at 1, 43, 45; Hidden J at 44; Johnson J at 2 EX TEMPORE JUDGMENT DATE: 11 December 2009 DECISION: 1. Leave to appeal granted. 2. Appeal with respect to sentence dismissed. CATCHWORDS: CRIMINAL LAW - sentence - two offences of indecent assault - vulnerable victim - offences committed whilst offender subject to conditional liberty - strong subjective case - offender with mild intellectual disability - tragic family history - need for reasonable proportionality between sentences and offences - persuasive subjective considerations ought not cause inadequate weight to be given to objective circumstances - sentences not manifestly excessive - appeal dismissed LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Markarian v The Queen [2005] 228 CLR 357 R v Gent (2005) 162 A Crim R 29 CASES CITED : Edwards v R [2009] NSWCCA 199 R v Scott [2005] NSWCCA 152 R v Rushby [1977] 1 NSWLR 594 R v Dodd (1991) 57 A Crim R 349 PARTIES: Mohamed Jalloh (Applicant) Regina (Crown) FILE NUMBER(S): CCA 2008/16793 COUNSEL: Mr R Button SC (Applicant) Ms S Dowling (Respondent) SOLICITORS: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 08/11/1098 LOWER COURT JUDICIAL OFFICER: Freeman DCJ LOWER COURT DATE OF DECISION: 23 July 2009 IN THE COURT OF CRIMINAL APPEAL 2008/16793 McCLELLAN CJ at CL HIDDEN J JOHNSON J 11 December 2009 MOHAMED JALLOH v REGINA Judgment 1 McCLELLAN CJ at CL: The Court Court is in a position to deliver judgment. I will ask Johnson J to deliver the first judgment. 2 JOHNSON J: The Applicant, Mohamed Jalloh, seeks leave to appeal against sentences imposed in the Sydney District Court on 23 July 2009 with respect to two counts of indecent assault. The maximum penalty for each offence was imprisonment for five years: s.61L Crimes Act 1900. 3 Upon the first count, the Applicant was sentenced to imprisonment comprising a non-parole period of 12 months to commence on 21 September 2008, to expire on 20 September 2009 with a balance of term of 18 months to expire on 20 March 2011. On the second count, the Applicant was sentenced to imprisonment comprising a non-parole period of 12 months to commence on 21 March 2009 and to expire on 20 March 2010, with a balance of term of 18 months to expire on 20 September 2011. 4 The total effective sentence comprised a head sentence of three years' imprisonment with a non-parole period of 18 months ending on 20 March 2010. Facts of Offences 5 An agreed statement of facts was tendered in the District Court and the sentencing Judge made findings in accordance with the agreed facts. 6 In the early hours of Friday, 19 June 2008, the victim, a young woman, went with a male companion to the Oxford Hotel, Surry Hills about 4.15 am. She had something to drink before going to the hotel and was feeling reasonably intoxicated. 7 At 4.41 am, the victim and her male companion went to the men's toilet in the basement of the Oxford Hotel. The male companion went to the toilet and the victim entered one of the toilet cubicles because she felt ill. She sat on the floor of the cubicle and was sick in the toilet bowl. She then lost consciousness. After some time, the victim became aware of the Applicant looking around the door of the cubicle. The victim had never seen the Applicant before. 8 The Applicant asked if she was alright, but the victim could not speak or move. The Applicant entered the cubicle and sat behind the victim. 9 The victim lapsed in and out of consciousness. At one point, she woke to find that the Applicant had his hand up her t-shirt, under her bra and was fondling her breasts (Count 1). The victim pushed the Applicant's hand away, but was not able to speak. She then lost consciousness again. 10 On another occasion, the victim awoke to find that the Applicant had his hand down her trousers, inside her underpants and was touching her on the outside of her vulva (Count 2). 11 During the assaults, the Applicant was talking to the victim. He asked her to come back to his house and offered to take care of her. The victim was unable to stand or speak properly, but she shook her head and said "No". 12 At about 6.40 am, the victim woke up and felt better. The Applicant was still in the cubicle with her. She got up and left the men's toilet and washed her face in the women's toilet. The Applicant was waiting for her on the landing outside the women's toilet. He followed her as she left the hotel, and again asked her to go back to his house. She told him to leave her alone. The Applicant eventually walked away and the victim found her car. She drove to a friend's place and told her of the assaults. A few hours later, the victim attended Redfern Police Station and gave a statement. She then attended the Sexual Assault Clinic at Royal Prince Alfred Hospital, where she was examined. 13 Toxicology results on the victim's blood samples tested positive for the presence of amphetamines. The sentencing Judge observed that it was a matter of complete conjecture as to how this drug got into the victim's system. His Honour observed, however, that it was not suggested that the Applicant had anything had to do with this, and that the presence of the drug may serve to explain the victim's difficulty in remaining conscious over the period of time when she was in the presence of the Applicant. 14 The victim was shown a photo array by police and identified the Applicant. CCTV footage from the Oxford Hotel established that the victim entered the men's toilet at 4.41 am, the Applicant entered the men's toilet at 5.00 am and they both left the toilet at 6.41 am. 15 At about 4.20 pm on Friday, 19 June 2008, police observed the Applicant walking along Flinders Street, Surry Hills. He was wearing the same clothes as he had been wearing earlier at the Oxford Hotel. Police arrested the Applicant. Swabs of his hand were taken, which tested positive for the victim's DNA. The Applicant participated in an ERISP in which he initially admitted to being in the toilet of the hotel, and then denied being at the hotel at the relevant time. The Applicant's Subjective Circumstances 16 The Applicant was born in 1985. He was 22 years old at the time of the offences and 23 years old at the time of sentence. 17 The Applicant has had what the sentencing Judge described, accurately, as a "singularly unfortunate history" (ROS3). Born in Sierra Leone, the Applicant and an elder brother were the only survivors of a massacre during a raid by rebel forces which killed the Applicant's parents and his other seven siblings. The Applicant was seven years old at the time of this tragedy. He escaped by leaping through a window and running off into the bush. He came into contact with other members of his village and, in their company, he travelled to Guinea, where he lived for some time. Eventually, his elder brother, who had previously understood the Applicant to have been killed, discovered that he was alive. He came to that part of Guinea in which the Applicant was living with his former neighbours and took control of him. The Applicant and his elder brother eventually came to Australia in 2003 as refugees, initially living in Tasmania. 18 Evidence was given at the sentencing hearing by Ms Anne Hughes, a social worker, who had significant contact with the Applicant in Tasmania. The sentencing Judge adverted to the evidence of Ms Hughes concerning the Applicant's education, employment and social difficulties. Ms Hughes gave evidence of her work with the Applicant in Hobart at the Phoenix Centre, a small specialist centre for survivors of torture and trauma. Ms Hughes had direct contact with the Applicant in Hobart and phone contact with him after he had, against her advice, moved on his own to Sydney. Ms Hughes had described odd behaviour on the part of the Applicant in her dealings with him. The Applicant's elder brother continues to live in Victoria. 19 Also in evidence in the District Court were reports of Dr Peter Champion, psychologist, and Dr Susan Pulman, clinical and forensic neuropsychologist. The sentencing Judge had regard to these reports in his remarks on sentence, noting that the Applicant's overall level of intellectual functioning fell within the extremely low range at the 0.3 percentile, thereby satisfying the criteria of mild intellectual disability. 20 The Applicant has a criminal history in this State since 2005 for summary offences including stealing, goods in custody, entering enclosed lands, and possession of prohibited drugs, all of which were dealt with by way of fines between September 2005 and November 2007. On 20 August 2008, the Applicant was sentenced to three months' imprisonment (to date from 6 July 2008) for an offence of stealing from the person, and was placed on a 12-month bond for damaging property with no additional penalty being imposed for a further offence of possession of a prohibited drug. 21 The Applicant was on bail for the lastmentioned offences at the time of the commission of the present offences on 19 June 2008. Ground of Appeal - The Sentences Were Manifestly Excessive 22 A single ground of appeal is relied upon by the Applicant contending that, in the exceptional subjective circumstances of this case, the sentences are manifestly excessive. Submissions 23 Mr Button SC, for the Applicant, submitted that the subjective circumstances of this case were compelling, so that a finding ought be made that the sentences were manifestly excessive, with this Court intervening to resentence the Applicant so as to permit his immediate release from custody. 24 Mr Button SC emphasised the tragic history of the Applicant in Africa prior to his arrival as a refugee in Australia. Reference was made to the evidence of Ms Hughes concerning her dealings with the Applicant. 25 It was submitted that the Applicant was attracted to Sydney and had travelled here on his own. By the time of the present offences, it was submitted that he was living on the streets of Kings Cross and on trains and that, unsurprisingly, he had amassed a somewhat lengthy criminal record, although not one of great seriousness. 26 Reference was made to the psychological assessment of the Applicant as having a mild intellectual disability. Since the Applicant had been in custody since 20 June 2008, he had been assaulted in prison on four occasions and, at the time of sentence in the District Court, he was on protection. 27 Mr Button SC submitted that there could be no complaint about the sentences, were it not for the highly unusual subjective circumstances of the Applicant. It was accepted that a prison sentence of some sort was within the sentencing Judge's discretion. It was submitted, however, that the combination of intellectual disability, mental and emotional disturbance, social isolation, lack of prior serious matters, and the terrible life story of the Applicant meant that, in these most peculiar circumstances, these sentences are too severe. It was submitted that this Court should intervene and resentence the Applicant with the result that he be released today. 28 In oral submissions, Mr Button SC raised, in support of the single ground of appeal, the possibility that these matters might have been disposed of summarily in the Local Court. 29 The Crown submitted that the sentencing Judge had dealt comprehensively with the Applicant's subjective circumstances, referring expressly to the Applicant's history in Africa and the psychological evidence of Mr Champion and Dr Pulman concerning the Applicant's mental disability. The Crown submitted that his Honour had regard to the Applicant's mild intellectual disability, which reduced the significance of general deterrence, whilst also recognising the countervailing need to ensure community protection, particularly in light of the Applicant's criminal history. The Crown emphasised the need to impose sentences that reflected the objective gravity of the offences, which involved the indecent assault of a woman who was clearly unable to protect herself from the Applicant's purposeful and persistent conduct over a period of some two hours. It was submitted that the touching of the victim inside her underwear made these serious examples of offences of this type. Further, it was an aggravating factor that the offences were committed whilst the Applicant was at liberty on bail for offences of stealing from the person and possess prohibited drug. 30 The Crown submitted that the Applicant had pleaded guilty at a relatively late stage and a discount in the order of 15% was allowed in this respect. There was no evidence of remorse and the Applicant did not have the benefit of prior good character. The Crown submitted that his Honour had regard to the Applicant's protective custody and had varied the statutory ratio between the non-parole period and head sentence. The Crown submitted that it had not been demonstrated that the sentences passed lay outside the range of the proper exercise of sentencing discretion, and that the Applicant had failed to demonstrate that the sentences were manifestly excessive. Decision 31 The Applicant does not contend that the sentencing Judge made any error of law or fact. Nor is it said that the sentencing Judge had regard to irrelevant factors or failed to have regard to matters relevant to sentence. The real question to be determined is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] 228 CLR 357 at 370-371 [25]. 32 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: Markarian v The Queen at 371 [27]. 33 There is no doubt that the Applicant had a strong subjective case. His tragic family history and other subjective features, including his mild intellectual disability, could be called in aid on sentence. The sentencing Judge considered in detail the Applicant's subjective circumstances. 34 His Honour observed that the case involved "difficult balancing exercises" (ROS7). In weighing up factors relevant to sentence, his Honour observed that "Whilst one has considerable sympathy for Mr Jalloh because of his intellectual capacity, his emotional condition and his devastatingly tragic background, the victim in these offences was a woman in an extremely vulnerable condition" (ROS6-7). The victim was lapsing in and out of consciousness, having been sick and was unable to stand or speak, with his Honour observing that "It is difficult to imagine somebody less able to protect themselves against the assaults of an opportunistic criminal such as the offender represented himself on this occasion" (ROS7). 35 No challenge is made to the finding of the sentencing Judge that the offences lay in the mid-range of objective seriousness because of the extreme vulnerability of the victim, and because they involve fondling inside her underwear by a total stranger who took advantage of her condition. Nor is it contended that his Honour fell into error in fact or law in partially accumulating the sentences. 36 I do not think that the Applicant is assisted by the theoretical possibility that these matters might have been dealt with summarily. These matters were of a level of seriousness that disposal on indictment was entirely appropriate. These are not Local Court offences being dealt with in the District Court: R v Gent (2005) 162 A Crim R 29 at 45-48 [76]-[91]; Edwards v R [2009] NSWCCA 199 at [47]-[49]. 37 The present offences were committed upon a vulnerable victim. Each offence involved significant intrusion, with the Applicant placing his hand under clothing. The offences were committed whilst the Applicant was subject to conditional liberty. 38 The sentences imposed must ultimately reflect the objective seriousness of the offences committed, and there must be a reasonable proportionality between the sentences passed and the circumstances of the crime committed: s.3A(a) Crimes (Sentencing Procedure) Act 1999; R v Scott [2005] NSWCCA 152 at [15]. 39 The relative importance of the objective facts and subjective features will vary from case to case. However, it is necessary to guard against a risk that attention to persuasive subjective considerations does not cause inadequate weight to be given to the objective circumstances of the case: R v Rushby [1977] 1 NSWLR 594; R v Dodd (1991) 57 A Crim R 349 at 354. 40 This Court is a court of error. The question to be determined is not what sentences this Court would pass if sitting at first instance in this case. Rather, the question is whether the Applicant has demonstrated that the sentences in this case were unreasonable or plainly unjust, so as to be manifestly excessive. I am not persuaded that the Applicant has made good that ground in this case. 41 The sentencing Judge directed the Applicant's release on parole on 20 March 2010, with his Honour noting that the Probation and Parole Service ought ensure that the Applicant receives psychological therapy to assist with his symptoms of depression and post-traumatic stress disorder, and ought enrol him in an appropriate literacy program designed for individuals with mild intellectual disability (ROS8-9). Parole conditions of this type appear especially appropriate for this Applicant. 42 I would grant the Applicant leave to appeal, but would dismiss the appeal with respect to sentence. 43 McCLELLAN CJ at CL: I agree with Johnson J. 44 HIDDEN J: I also agree, although only after anxious consideration. The Applicant's subjective case was powerful and unusual. Nevertheless, these offences were grave offences of their kind, given the distressing and frankly, sordid circumstances in which they were committed. Mr Button SC did raise in oral argument the appropriateness of the measure of accumulation to which his Honour had resort. In my view, it would have been open to his Honour to have made the sentences wholly concurrent, but I cannot say he erred in his discretion in accumulating in the manner he did. In those circumstances, I agree for the reasons given by Johnson J that no error has been shown warranting the intervention of this Court. 45 McCLELLAN CJ at CL: The orders of the Court will be those proposed by Johnson 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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