New South Wales Court of Criminal Appeal CITATION: King v R [2010] NSWCCA 33 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 1 February 2010 JUDGMENT DATE: 10 March 2010 JUDGMENT OF: Grove J at 1; Simpson J at 2; RA Hulme J at 3 DECISION: Extension of time and leave to appeal granted but appeal dismissed. CATCHWORDS: CRIMINAL LAW - Sentence - aggravated sexual assault - whether error in taking into account aggravating factor that offence caused substantial harm - parity of sentencing LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Doolan v R [2006] NSWCCA 29 Elyard v Regina [2006] NSWCCA 43 Nowak v R [2008] NSWCCA 89; 183 A Crim R 526 Pearce v The Queen (1998) CLR 610 CASES CITED : Qoro v R [2008] NSWCCA 220 R v Cunningham [2006] NSWCCA 176 R v Solomon [2005] NSWCCA 158; 153 A Crim R 32 R v Swan [2006] NSWCCA 47 R v Youkhana [2004] NSWCCA 412 TEXTS CITED: Sentencing Trends & Issues No 39, A Dyer and H Donnelly, Judicial Commission of New South Wales, February 2010 PARTIES: Raymond Noel KING (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/15112 COUNSEL: Mr M Dennis (Applicant) Ms J Girdham (Respondent) SOLICITORS: Galloways Solicitors Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/1030 LOWER COURT JUDICIAL OFFICER: Woods DCJ LOWER COURT DATE OF DECISION: 20 September 2007 IN THE COURT OF CRIMINAL APPEAL 2007/15112 GROVE J SIMPSON J R A HULME J 10 March 2010 Raymond Noel KING v Regina Judgment 1 GROVE J: I agree with R A Hulme J. 2 SIMPSON J: I agree with R A Hulme J. 3 R A HULME J: The applicant was sentenced in the Sydney District Court to imprisonment for 13 years with a non-parole period of 8 years for an offence of aggravated sexual assault in company. The circumstance of aggravation was that the victim was deprived of her liberty before the commission of the offence. The applicant had been found guilty of the offence by a jury on 25 June 2007. The sentence was specified to commence on 9 May 2007 in order to take into account a period of pre sentence custody. 4 The offence is one against s 61JA of the Crimes Act 1900 which prescribes a maximum penalty of imprisonment for life. A standard non-parole period of 15 years is also prescribed: see Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999. 5 The applicant requires an extension of time in which to apply for leave to appeal. The proposed grounds of appeal contend that the sentencing judge erroneously took into account as an aggravating factor that the victim suffered substantial emotional harm and that the sentence is too severe relative to that which was imposed upon one of two co-offenders. Facts 6 The applicant was tried jointly with Edward Weatherall who faced two counts alleging offences in identical terms against s 61JA. The Crown case was that he was the principal offender in respect of the first count whilst the second count involved an allegation that he was a principal in the second degree to the applicant's offence. The jury returned verdicts of guilty on both counts. 7 The following is a summary of the facts found by the sentencing judge based upon the evidence in the trial. 8 The victim, RK, attended a house in Eveleigh Street, Redfern on the night of 24 November 2005. Edward Weatherall was at the front of the house and he took RK inside and upstairs. She asked him what was going on and he told her, "You're staying here. You're not going nowhere". He took her into a bedroom at the top of the stairs where he proceeded to remove her clothing. He pulled his own pants down, made her sit on a bed, stood in front of her and made her perform oral sex upon him. He had her hair twisted around his hands and was moving her head up and down on his penis. RK was gagging as Weatherall forced his penis into her throat. She was aware that there was another person sitting on a chair in the room watching. The act culminated with Weatherall ejaculating onto a towel. This activity was relied upon by the Crown for the first count concerning Weatherall. 9 The applicant had entered the room at some stage. After the act with Weatherall concluded the applicant lay on the bed and RK was forced to kneel on the floor so that she was between his legs. Someone took hold of her hair and forced her head up and down on the applicant's erect penis. RK said that there were other people in the room, at least three people at all times. They included Weatherall, who she said was there for most of the time, as well as a 16 year old youth. She heard Weatherall using a telephone to tell people to, "come over and have a go ... there's a girl here, have a go" and similar. That was the extent of the evidence referred to by the sentencing judge in respect of the second count concerning Weatherall and the sole count concerning the applicant. 10 The judge referred to RK has having been "roaming around The Block" area of Redfern for some weeks obtaining heroin to feed an addiction. Weatherall lived at the house in Eveleigh Street where the offences occurred. The applicant lived nearby. The judge said that he could not rule out a probability that RK had attended the Eveleigh Street house for the purpose of obtaining drugs. 11 After setting out his findings of facts the sentencing judge then remarked: The offences occurred, I conclude, because the offender Weatherall and others regarded the complainant as an easy mark; they simply took advantage of her, regarding it as unnecessary either to supply her with drugs or to seek her consent to sexual intercourse. She was a very attractive young woman; she was desperate and vulnerable. The offenders had been drinking. There were a number of men in the house who had been drinking for some time. It is this volatile situation which allowed the offences to occur. The offenders apparently regarded her, a drug addict, with contempt. They appear to have taken the view that they could use her for sexual purposes as they saw fit, because as a "junkie" she would be unlikely to complain or that, if she did complain, she would be unlikely to be believed. 12 The judge then recounted how RK, after having been released from her ordeal, staggered up the street until she was taken into her house by a "good Samaritan" neighbour. This witness gave evidence of RK's distress, her initial reluctance to explain her situation, followed after some hesitation by an account of a "gang rape". The judge said this account was consistent with later versions she gave at a hospital, to the police and in court. 13 RK gave evidence that "more than ten and even up to twenty" men had sexual intercourse with her in the room at Weatherall's house. The judge had doubts about this but found it unnecessary to decide. He proceeded on the basis that there were three offenders, Weatherall and the applicant and another man by the name of Sela Ratu Qoro. The judge said that, "it was, on any view, a gang rape". 14 The judge found that these were "crimes of opportunity and not planned in advance". He found Weatherall to have been the ringleader in that he encouraged several other men to participate. He described the applicant and Qoro as "willing participants" while Weatherall was "the main promoter of the misconduct". Subjective features 15 The judge referred to the applicant as being aged 28 with a criminal record comprising "numerous minor entries" which included some for drug use and assault, "particularly trouble with the police". He described these as being of "nuisance value" and concluded that "he could not be described before these offences (sic) as a major criminal". He specifically noted that, in contrast to Qoro, the applicant had no previous convictions for sexual offences. 16 The term "minor" used by the judge in describing the applicant's record is relative. True it is that on the 17 occasions that he had stood for sentence, often for multiple offences, it was in the Local Court and, once, in the Children's Court. However, I would not classify offences such as larceny of a motor vehicle, break, enter and steal and assault occasioning actual bodily harm, for each of which the applicant had been convicted on multiple occasions, as "minor". In addition, I note that he had been imprisoned on four separate occasions, the longest sentence imposed being one of 15 months in 2001. 17 The judge referred to the applicant being one of seven siblings and five cousins who were all raised by his mother in what the applicant had described as a good upbringing. He became involved with drugs as a teenager and developed a persistent problem. Several relationships had broken down. He had children. At the time of sentencing he was on a methadone program and the judge noted that he was attempting to rehabilitate himself. He said that, "this points to some, if guarded, prospects for rehabilitation". 18 The judge accepted the applicant's evidence that he had received a bravery award as a teenager for having gone to the aid of a police officer who was being attacked. He said that this was to the applicant's credit. 19 Reference was made to the lifestyle that the applicant and Weatherall were leading at "The Block" in Redfern. He introduced this topic with the statement that, "Aboriginality itself is no mitigation but a deprived and disorganised life may mitigate the offence of a person of any nationality". What he said about it included that, "some aspects of life in and about 'The Block' at Redfern and focused on Eveleigh Street ... are profoundly dysfunctional", and "it seems to me that 'The Block' was for both of them a place of refuge from the pains of life and a place of dissolute solace". He described the "combination of problems" at this location as being the "background to this case". He concluded: How does this bear on the present case? In this way: it causes me to mitigate the penalties I would have otherwise imposed, but not so as to fail to mark the gravity of the crimes, nor to fail to act as a deterrent against such crimes by others. 20 The judge found special circumstances for reducing the proportion of the sentence represented by the non-parole period, those circumstances being the applicant's history of drug use and his need for rehabilitation, together with the factor of deprivation relating to his life at "The Block". Assessment of objective seriousness of the offence 21 After making reference to s 21A of the Crimes (Sentencing Procedure) Act the judge made some findings which are relevant to an assessment of the objective seriousness of the offence. 22 The judge stated (and this is the subject of the first ground of appeal): A factor of aggravation on sentence, not contained in the definition of the offence, is that the offences must be taken to have caused substantial emotional harm to the victim. It is hard to quantify this, and difficult to disentangle such harm from the other harms in her life which have apparently arisen without any input from this offender. 23 His Honour found that it was a mitigating factor that the offence "was not part of a planned or organised criminal activity". 24 Later in his sentencing remarks the judge returned to a consideration of the objective seriousness of the offence in the context of considering the question of whether to impose the standard non-parole period. After making some observations about the difficulty of identifying an offence in the middle of the range he stated that the approach he adopted was to view the offence as justifying a non-parole period "significantly below the standard non-parole period of fifteen years because it was "not planned or organised criminal activity". 25 No complaint is made about the approach taken by the judge to the standard non-parole issue so it is unnecessary to delve further into it. It is significant, however, to note that the non-parole period imposed was little more than half of the prescribed standard. Co-offender Weatherall 26 The judge set out that Weatherall was aged 35 and had several offences on his criminal record including robbery with wounding in 1992 and threatening unlawful violence in 1999. He described this as "not a particularly bad record" and noted that there had been nothing for the last seven years (although there was a matter of offensive language for which a fine of $10 was imposed in 2004). He similarly described Weatherall as "not a major criminal" and noted that he also, in contrast to Qoro, did not have any previous convictions for sexual offences. 27 Weatherall was found to have reasonable prospects of rehabilitation. The judge noted that he had close family support. He came from a loving background with his parents having done their best to assist him in his childhood. The judge accepted, however, that Weatherall had endured racist taunts at school which lead to fighting and other difficulties and, in due course, the early termination of his education. His brother died of a drug overdose at the age of 23 and this had depressed Weatherall and his family. 28 The judge also made reference to Weatherall having had some employment but also noted that a dependence upon alcohol and the use of drugs had ravaged his life. 29 Ultimately the judge announced that he regarded sentences of 13 years with non-parole periods of 8 years as being appropriate for each of Weatherall's offences. He found that there were special circumstances in Weatherall's need for drug counselling, his need for an extended period of supervision, and the factor of "deprivation" in relation to his life at "The Block". 30 The judge then said that there should be some accumulation of the sentences, "to the extent necessary to mark Weatherall's 'ringleader' role, particularly in relation to the second count". The second count concerned the offence for which the applicant was the principal offender. His Honour continued, "The offences were close and related in time and a substantial measure of concurrency is justified". He accumulated the second sentence upon the first by two years, producing a total effective sentence of 15 years with a non-parole component of 10 years. Co-offender Qoro 31 Qoro had been found guilty by a jury at a trial in 2006. Similar to the applicant, his offence was to have engaged in a single act of oral sex with the complainant. His Honour Judge Berman SC sentenced him to imprisonment for 14 years with a non-parole period of 10 years. An appeal to this Court against both conviction and sentence was dismissed: Qoro v R [2008] NSWCCA 220. 32 Qoro was aged 44 at the time of being sentenced. He had an intellectual disability in the moderate range. He was also reported to have been hearing voices and was being treated with antipsychotic medication. . The sentencing judge gave less emphasis to general deterrence for these reasons and also took into account that they would render the conditions of his custody more harsh. It was also noted that Qoro was on protection. He had a significant criminal history including a conviction in 1995 for aggravated sexual assault. Ground 1: The sentencing judge took into account, as a factor of aggravation on sentence, that the offences must be taken to have caused substantial emotional harm to the victim. This was an error of law. 33 This ground is based upon the statement by the judge set out in full above (at [22]) that a "factor of aggravation ... is that the offences must be taken to have caused substantial emotional harm to the victim". In the context in which this statement appears there is no reason to doubt that the judge was referring to the statutory aggravating feature listed in s 21A(2) of the Crimes (Sentencing Procedure) Act, namely: (g) the injury, emotional harm, loss or damage caused by the offence was substantial 34 There have been a number of statements in judgments of this Court to the effect that it is erroneous to take into account as an aggravating factor a matter that is an inherent characteristic of the offence or the particular class of offence. See, for example, R v Youkhana [2004] NSWCCA 412 per Hidden J at [25] – [26] (an inherent characteristic of the offence of armed robbery that the harm to the victim will be substantial); Doolan v R [2006] NSWCCA 29 per Buddin J at [21] – [24] (no evidence that emotional harm to the victim of a sexual assault was greater than was otherwise to have been anticipated); Elyard v Regina [2006] NSWCCA 43 per Basten JA at [3] – [17] and Howie at [39] – [45] (almost inevitably an offence of dangerous driving causing grievous bodily harm (and death) will be committed with a disregard for public safety); R v Cunningham [2006] NSWCCA 176 per Bell J at [53] – [54] (error in finding substantial emotional harm in child sexual assault offences because such harm presumed); and Nowak v R [2008] NSWCCA 89; 183 A Crim R 526 per Buddin J at [19] – [25] (error in finding substantial harm caused by an offence of maliciously inflicting grievous bodily harm). 35 The cases recognise also that a factual aspect that may be an element of the offence, or an inherent characteristic of it, may be present in a greater degree than is necessary to establish the element, or that is normally characteristic of the offence, and so may legitimately be taken into account as an aggravating feature. Thus, in R v Solomon [2005] NSWCCA 158; 153 A Crim R 32, a case concerned with armed robbery, Howie J, with the concurrence of Grove and Latham JJ, stated: [19] Because the court assumes, without evidence, that the victim of a robbery would be affected both physically and psychologically from the commission of the offence and because that consequence of the offence is taken into account generally in determining that the offence is to be considered as a serious one requiring condign punishment, it would be unfair for the court to take into account as an additional aggravating factor under s 21A(2)(g) the fact that the victim of an armed robbery suffered the type of harm that is assumed to be the case for any victim of that offence: there would be in effect a double counting of an aggravating feature of the offence. Therefore, in order to take into account the effect upon the victim of the offence as an aggravating feature over and above that which applies to armed robbery offences in general, something more is required than that which the court has assumed to be the case. [20] Nothing in Youkhana should be taken to suggest that the normal or assumed effects of an armed robbery upon a victim are not substantial. The case is simply authority for the proposition that, in order to avoid double counting of aggravating factors, the court cannot take into account as an aggravating feature of a particular crime the effects upon a victim that would be expected to result from the commission of that type of offence. There may be cases at the margin where some judgment might have to be made about whether the severity of the effect of a particular offence on a particular victim is such that the offence should be considered to be aggravated. But the present case is not one of them. In my opinion from the passages of the victim impact statements set out above it is clear that it was open for the Judge to find that the offences were each aggravated by the effect that they had upon the relevant victim. 36 It was submitted that in the present case the emotional harm suffered by the complainant was no more than that which would be expected in a serious offence of this type. It was said to be significant that the judge did not say that he regarded the emotional harm as greater than ordinarily expected. Counsel also noted that there was no victim impact statement before the sentencing judge. In Youkhana, Hidden J referred to the expectation that before a sentencing judge could find "substantial emotional harm" there would be evidence specifically directed to that issue and that normally it would be in the form of a victim impact statement (Youkhana at [26]). 37 There was obviously available to the judge a lot more information about the complainant than he set out in his remarks on sentence. He had presided over the trial and had heard the complainant give evidence and be cross-examined by counsel for each of the two then accused persons. It may well be that he had formed a view that she had suffered emotional harm that was greater than ordinarily expected in respect of an offence of this nature. However I accept that if that was the case, it would be expected that his Honour would have said so and explained why: Nowak v R (supra) at [25]. 38 In any event, despite what the judge said in the passage of his remarks earlier extracted, I am unpersuaded that he did take this matter into account as an aggravating feature, that is, by increasing the sentence he would otherwise have imposed absent that feature. There are three reasons for this. 39 First, directly after his statement as to substantial emotional harm being an aggravating feature he stated that it was "hard to quantify ... and difficult to disentangle such harm from the other harms in her life". This suggests to me that he could not determine how much emotional harm could be attributed to what the offender and his co-offenders did to her. 40 Secondly, and more significantly, at a later stage in his remarks the judge turned to an assessment of the objective seriousness of the offence and in that context said nothing about the complainant's emotional harm. Indeed, the only factor relevant to the objective seriousness of the offence that he mentioned at that point was that the offence was "not part of planned or organised criminal activity". 41 Thirdly, the judge found that the objective seriousness of the offence was either below the middle of the range because it was not part of planned or organised criminal activity or that it was in the middle of the range but that this factor was a reason for not imposing the standard non-parole period. Judge Berman, on the other hand, found that Qoro's offence, which was similar in all material respects, fell within the middle of the range. This finding was not disturbed on the appeal. If the judge in the present case had found that the applicant's offence had been at a higher level than Qoro's offence there might be cause to question whether his Honour did take "substantial harm" into account in aggravation. 42 The bare reference in the remarks on sentence to this aspect being a "factor of aggravation" did not, in any event, compel the judge to increase the sentence (s 21A(5)). I am not persuaded that he did. There is no merit in ground 1. Ground 2: The applicant's sentence, relative to that of the co-offender Weatherall, is too severe. The applicant therefore has a justifiable sense of grievance, and the principles as to parity should apply so as to result in a reduced sentence. 43 In relation to this ground the following features were said to be of significance: 1. While Qoro and the applicant were "willing participants", it was Weatherall who was the "main promoter of the misconduct". 2. Weatherall was charged with two offences whilst the applicant was only charged with one. Weatherall was charged as a principal in the second degree to the offence committed by the applicant. 3. Both the applicant and Weatherall had previous convictions but the applicant had none for serious crimes of violence whilst Weatherall "had a considerably more serious criminal history which included an offence of robbery with wounding in 1992 and threatening unlawful violence in 1999". 4. The sentences imposed upon Weatherall for each of his offences were identical to the sentence imposed upon the applicant, notwithstanding that the criminality in Weatherall's offences included that he was the ringleader. According to the submission, this was contrary to what was said in Pearce v The Queen (1998) 194 CLR 610 about the need to determine an appropriate sentence for each offence before turning to questions of accumulation and concurrence and the principle of totality. 44 Thus, it was submitted that the sentence imposed upon the applicant should have been less than the sentence imposed upon Weatherall for the offence they had in common "for the simple reason that his criminality was less". 45 It is appropriate to commence a consideration of this ground with reference to what was said by Barr and Howie JJ in R v Swan [2006] NSWCCA 47 in relation to a complaint of disparity with the sentencing of a co-offender: [71] This was a case where the sentencing of both offenders was by the same judge on the same occasion. Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes. 46 The first of the asserted points of significance is that Weatherall was the "main promoter" and that Qoro and the applicant were "willing participants". It was submitted that this indicated that, all other things being equal, Weatherall should receive a longer term of imprisonment than the applicant. In overall terms he did but for the offence they had in common the sentence was identical. 47 All other things, however, were not equal. Weatherall's prospects of rehabilitation were assessed as "reasonable" whilst the applicant was described as having "some, if guarded". In addition, there were significant differences in their criminal records. 48 I do not agree that Weatherall had a "considerably more serious criminal history" than the applicant. Weatherall was aged 33 at the time of the offence. He had been sentenced for criminal offences on seven previous occasions. On six of those occasions the outcomes were probation (in the Children's Court), modest fines, a dismissal without conviction, and a community service order. The most significant matter on his record was an offence of robbery with striking for which he received a sentence of imprisonment for 2 years 3 months with a non-parole period of 9 months. That was an offence for which he was charged in 1991 when he was aged 18. Apart from an offence of offensive language in 2004, all of his offences were between 1987 and 1998. 49 This is to be contrasted with the applicant's criminal history which I described earlier (at [15]-[16]). I should add to that description that in comparison to the 7 criminal offences on Weatherall's record, the applicant had been dealt with for a total of 57 offences (excluding driving offences). Rather than this comparison demonstrating that Weatherall had a "considerably more serious criminal history", if anything it was the reverse. 50 As to the second point, it was submitted that the applicant should have received a lesser sentence than Weatherall in relation to the offence they had in common because the applicant's criminality was less. I do not agree that the judge should necessarily have found that the applicant's criminality was less. The fact that he committed the offence, and that it was in part instigated by Weatherall, did not mandate that there be a lesser sentence. There is a useful discussion of issues relating to the sentencing of secondary participants to crimes, including sexual assault offences, in Sentencing Trends & Issues No 39, A Dyer and H Donnelly, Judicial Commission of New South Wales, February 2010. It is apparent from the discussion of authorities there that there is no "bright line rule" for assessing the culpability of secondary participants and that each case must be determined according to its own individual circumstances. 51 In the present case it was the applicant who had forced oral sex with the complaint against her will in the company of others and after her liberty had been deprived for a period of time. Weatherall did not do that, but orchestrated events that permitted it to happen. I can see no reason for concluding that it was not within the proper exercise of sentencing discretion to find that, upon an assessment of their relative criminality and subjective circumstances, the principal in the second degree and the principal in the first degree should receive the same sentence. 52 I am not persuaded that the sentencing judge proceeded contrary to the manner stipulated in Pearce v The Queen. I see no error in the manner in which he determined the individual sentences that he imposed upon Weatherall. Nor do I see any error in the judge deciding that having regard to the principal of totality there should be some partial accumulation of the two sentences to reflect the fact that one offence was committed by Weatherall himself and the other was one for which he was a principal in the second degree. There was additional criminality to be accounted for and the partial accumulation was appropriate to reflect that fact. 53 Overall, the judge was correct to take a very serious view of the offences committed by the applicant and Weatherall, as did Judge Berman in sentencing Qoro. The overall position may be summarised - Weatherall received a total sentence of 15 years with a non-parole component of 10 years for his two offences; Qoro received a sentence of 14 years with a non-parole period of 10 years for his one offence; and the applicant, in contrast, received a sentence of 13 years with a non-parole period of 8 years for his offence which was, objectively, much the same as Qoro's offence. The applicant can have no legitimate sense of grievance about these outcomes. 54 Ground 2 is without merit. Application for extension of time 55 The applicant was sentenced on 20 September 2007. An application for extension of time was signed on 20 August 2009 and presumably filed soon after. Two affidavits by a law clerk in the employ of the applicant's solicitors were read on the hearing of the application. 56 A significant part of the delay was caused by the need to await the provision of transcripts and other legal activity beyond the control of the applicant. 57 I propose that the extension of time and leave to appeal be granted but that the appeal be dismissed. ********** 10/03/2010 - Typographical errors - Paragraph(s) 33 and 49 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.