New South Wales Court of Criminal Appeal CITATION: Sharma v R [2010] NSWCCA 338 HEARING DATE(S): 7 December 2010 JUDGMENT OF: McClellan CJatCL at 1; McCallum J at 14; RA Hulme J at 15 EX TEMPORE JUDGMENT DATE: 7 December 2010 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – leave to appeal against sentence – whether psychiatrist report can be tendered as fresh evidence – whether sentence was manifestly excessive – whether assessment of seriousness of offence was correct – report rejected as opportunity was available to place before sentencing judge - conclusions within sentencing judge's discretion – leave to appeal granted but appeal dismissed. LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment Iglesias v R (2006) NSWCCA 261 CASES CITED : Springer v R [2007] NSWCCA 289; 117 A Crim R 13 Markarian (2005) 228 CLR 357 PARTIES: Satendra Prasad Sharma (Applicant) The Crown FILE NUMBER(S): CCA 2008/13076 COUNSEL: J Young (Applicant) J A Girdham (Crown) SOLICITORS: John Carmody & Co (Applicnt) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/13076 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 5 June 2009 Judgment 1 McCLELLAN CJ at CL: The Court is unanimously of the opinion that this appeal should be dismissed. The applicant pleaded guilty on 2 March 2009 on the day on which his trial was to commence for an offence of indecent assault. He requested that the Court take into account on a form 1 another count of indecent assault against the same victim. The offences are contrary to s 61L of the Crimes Act 1900 which prescribes a maximum penalty of five years imprisonment. I will relate in a moment the facts which indicate that the two matters were part of the same incident. 2 The sentencing judge allowed a discount of 15% for the applicant's plea of guilty and made a finding of special circumstances which resulted in the non-parole period being equivalent to approximately 60% of the term of the sentence. That sentence was a non-parole period of two years commencing on 22 May 2009 with a balance of term of one year four months and twenty-four days. The balance of term appears to be arrived by an application of the discount to the sentence which her Honour otherwise would have imposed. It would be preferable, as this court has said on previous occasions that a sentence be rounded to some appropriate period of months rather than to descend to a matter of days. 3 The applicant was employed as a bus driver. He met the complainant, a twenty year old woman with some intellectual disability, some days prior to the offence. On that occasion they had spoken and the applicant asked the complainant for her telephone number which she gave to him. On 28 February the complainant was waiting at a bus stop in Castle Hill after finishing her adult education class. The applicant was driving a bus which he stopped at the bus stop and asked the complainant where she was going. The applicant said he would take the complainant home so she boarded the bus and sat behind him. 4 The bus was driven along its usual route which terminated at the Blacktown terminal. After all of the passengers had alighted the applicant told the complainant to stay on the bus. He then drove a short distance so that he could use a toilet and then drove and parked near the local park. He closed and locked the bus doors. He started eating a meal and asked the complainant to sit next to him. When he finished the meal he told her that he had stitches in his leg and would show them to her. He pulled down his pants and underpants. She could see his penis. He showed her an area on his inner left thigh where she saw an area of red scarring. He pulled up his pants and said they should move to the front of the bus because there were too many people around. Near the front of the bus he sat on the floor and asked the complainant to sit with him but she declined. He took hold of her wrist, pulled her to the floor and said, "kiss me, baby, kiss me, honey". She did not want to and said she did not know how to kiss. He said he would teach her and tried to kiss her but she kept moving away. He put his hand under shirt and bra and touched her breasts. She said, "Stop, I don't want to do this, I'm scared." He told her not to be scared, that he loved her and she loved him. She pushed him away. He then took out his penis and masturbated until he ejaculated. 5 The applicant then untied the drawstring to the victim's pants and put his hand inside her pants and her underpants. He touched her vaginal area until she grabbed his hand and forced it out of her pants and underpants. He put his hand back inside her pants and she again grabbed his arm and moved his hand out of her pants. He pulled her pants down slightly, put his face against her vaginal area and kissed her there a number of times. She told him to stop and that she did not want to do that. He told her that it was all right, that he loved her and she loved him. She asked him when he had to go back to work and he said "soon". He got up, kissed her on the cheek and went to the driver's seat. He asked her where she wanted to go and she said to Blacktown station. The applicant then drove her to the station. She subsequently complained and reported the incident. 6 There was a report tendered at the sentencing hearing which indicated that the complainant had a level of intellectual functioning in the moderate range of intellectual disability. The evidence indicates that the offence has had an adverse effect upon the complainant. 7 The applicant has filed a notice of appeal in which he seeks to raise six grounds. Apart from a ground in which leave is sought to adduce what is said to be fresh evidence the grounds effectively argue that the sentence imposed was manifestly excessive. I will come back to those in a moment. In relation to ground 3, the fresh evidence ground, the applicant seeks to tender a report of Dr Andrew Frukacz, a consultant psychiatrist, which has been obtained since the sentencing hearing. In my opinion this Court must reject that report. The applicant was assessed before he was sentenced and advised in relation to his rights with respect to seeking medical advice in relation to any psychiatric problems which he had and the opportunity for a report to be placed before the sentencing court. 8 The applicant in fact appears to have had some degree of mental problems before committing the offence but chose not to seek to bring psychiatric evidence before the Court on his sentencing hearing. The position is that the applicant had disclosed to the author of his pre-sentence report that he had feelings of depression and suicidal thoughts. Those comments were reported to the sentencing judge. It included the fact that the applicant had taken some antidepressant medication, for a short period of time but found that it provided no difference to his mood and consequently he ceased taking it. 9 The principles in relation to the admission by this Court of fresh evidence have been discussed in a number of decisions including Iglesias v R (2006) NSWCCA 261 and Springer v R [2007] NSWCCA 289, 117 A Crim R 13. The material proffered to this Court is not material which falls within the principles defined in those cases and must be rejected. 10 With respect to the sentence itself it is plain that her Honour in sentencing concluded that the objective factors in relation to the offence put it at a high level of seriousness. Her Honour said that the offence fell "well above the mid range of objective seriousness". That expression is appropriate when a judge is sentencing for an offence which carries a standard non-parole period. Otherwise, the use of that language carries with it a significant risk that the sentencing judge will breach the principles laid down in Markarian (2005) 228 CLR 367. In that case the High Court was concerned to emphasise that sentencing is not a two stage process, rather a sentencing judge is required to identify the facts which inform the circumstances of the offence, sometimes called objective matters, and also the matters personal to the offender, the subjective matters. Having identified all of those matters the judge is required to determine the appropriate sentence. Of course, with the introduction of standard non-parole periods a slightly different task is required and the sentencing judge is by the statute required to define the objective seriousness of the offence before considering, having regard to other matters, the appropriate sentence. 11 In the present case although her Honour's use of the language appropriate when sentencing for offences which carry a standard non-parole period was inappropriate there can be no doubt that this was a serious offence. When consideration is also given to the matter on the form 1 a sentence towards the upper level of the maximum provided by the legislature was, unless there were particularly significant subjective matters, inevitable. 12 The subjective matters were considered by the sentencing judge and in my opinion her Honour was correct in forming the view that there was not evidence which would justify a sentence less than the sentence which her Honour ultimately imposed. 13 A separate ground, ground four, which the applicant seeks to raise, is concerned with the impact of the sentence upon the applicant's wife and children. To my mind there is nothing in those circumstances which would justify the sentencing court taking the exceptional course of providing a lesser sentence because of the circumstances of the applicant's relatives. It was suggested in ground five that her Honour failed to property consider the alternatives to full time custody. Her Honour expressly referred to this matter and in my view was correct to decide that there was no possibility of avoiding a sentence of full time custody in the present case. The other ground sought to be raised is that her Honour failed to give sufficient weight to the prior good character of the applicant given the circumstances of the offence and of the offender. To my mind the applicant's previous good record was of little moment in the sentencing for these particular offences. I am of the view that her Honour in imposing the sentence which she did imposed a sentence which was entirely within her sentencing discretion. I would grant leave to appeal but dismiss the appeal. 14 McCALLUM J: I agree with the Chief Judge. 15 R A HULME J: I also agree. 16 McCLELLAN CJ at CL: The orders of the Court are accordingly as I have indicated. ********** 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.