New South Wales Court of Criminal Appeal CITATION: McCartney v R [2009] NSWCCA 244 HEARING DATE(S): 16 September 2009 JUDGMENT OF: Spigelman CJ at 28; McClellan CJatCL at 29; Grove J at 2 EX TEMPORE JUDGMENT DATE: 16 September 2009 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sexual intercourse without consent knowing the complainant is not consenting - Sentence - Late plea of guilty - Head sentence less than half prescribed standard non-parole period - Obvious assessment of offence in low range of culpability - Statement by complainant tendered without objection - No error in account given by judge to content LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Regulation 10 (2) CATEGORY: Principal judgment Olbrich v The Queen (1999) 199 CLR 270 CASES CITED : R v Slack [2004] NSWCCA 128 R v Thomas [2007] NSWCCA 269 PARTIES: Garret Hew McCARTNEY - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2008/8793 COUNSEL: N Carroll - Applicant F Veltro - Respondent/Crown SOLICITORS: George Sten & Co - Applicant Solicitor for Pubilc Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/8793 LOWER COURT JUDICIAL OFFICER: Goldring DCJ LOWER COURT DATE OF DECISION: 5 December 2008 IN THE COURT OF CRIMINAL APPEAL CCA 2008/8793 SPIGELMAN CJ McCLELLAN CJ at CL GROVE J 16 September 2009 Garret Hew McCARTNEY Judgment 1 SPIGELMAN CJ: I invite Grove J to deliver the first judgment. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Goldring DCJ at Wagga Wagga District Court on 5 December 2008. The applicant pleaded guilty to a count in an indictment charging that on 9 December 2007 he had sexual intercourse with the complainant without her consent, knowing that she was not consenting. 3 The offence carries a prescribed maximum penalty of imprisonment for fourteen years and a standard non-parole period of seven years. His Honour sentenced the applicant to a total term of two years and six months, comprised of a non-parole period of one year and three years and a balance term of the same length. 4 An agreed statement of facts had been put before the court. The complainant and a female friend were partaking of drinks in a hotel in Echuca, a town located on the southern side of the Murray River in Victoria. She was introduced to the applicant by her friend at the hotel. Later in the evening, the complainant and her friend went to another hotel and then to a nightclub and at about 3am they went to a pizza restaurant. There she again encountered the applicant who, after the complainant's friend left, invited her to come to "his place" for a few drinks. The complainant agreed, but told the applicant that she was not going to sleep with him. 5 They got into a hire car and were taken to the driveway of the applicant's parents' home which was some kilometres out of town near Moama on the New South Wales side of the river. At this point they left the hire car and got into the applicant's utility vehicle and he drove to his parents' home. The complainant expressed concern that she did not know where she was or how she would get home. The applicant told her that they were at his parents' home and he would drive her. 6 They entered the applicant's bedroom and the complainant sat on the end of the bed and took her shoes off. The applicant sat beside her and began to touch her. She again told the applicant that she would not sleep with him. He appeared to accept this and told her they would go to sleep. The complainant by this time was reconciled to the idea of staying the night at the applicant's parents' residence with a view to the applicant driving her home in the morning. 7 She took off her dress, but not her underwear and lay on the side of the bed close to the wall. Thereafter the applicant climbed on top of her saying, "We will try this" and he pulled her underwear off. The complainant again told the applicant that she could not sleep with him, but the applicant put his penis inside her vagina and started moving it in and out. The complainant started to cry and the applicant desisted, saying to her that it was all okay and he hugged her. The applicant then fell asleep. The complainant put her dress back on, took her handbag and shoes and walked out. She walked back to the township of Moama. She informed friends of what had happened by text message. 8 The applicant was then 22, now 24 years of age, and had no prior convictions. His Honour noted the character references which had been given by people who had known his family for a long time, however, he observed that even people of the best character sometimes "make mistakes and commit offences". He found that the applicant was unlikely to re-offend, although he expressed a provision that the applicant should get some help with an alcohol problem which he perceived. 9 His Honour said that he had no doubt that on the occasion, both the applicant and the complainant were affected by alcohol. He observed that, subsequently, the applicant had consulted an alcohol counsellor at a regional health centre. The applicant had completed an apprenticeship as a carpenter and was in steady employment, now occupying a supervisory position in which he was highly regarded by his employer. 10 The applicant relies upon four grounds of appeal: Ground one asserted that the full-time custodial sentence imposed was manifestly excessive in the circumstances of the offence. It is complained that the sentencing judge did not state where, in the range of sentence seriousness, the offence fell. In the course of proceedings he had stated in an exchange with counsel that he had no doubt that it was below the mid-range of seriousness for the offence. 11 It requires only an observation of the contrast between the sentence imposed by his Honour and the prescription of the maximum sentence and the standard non-parole period to observe that his Honour obviously assessed the applicant's criminality to lie in the very low range of seriousness of this offence. 12 It was submitted that his Honour rejected defence and Crown submissions that a suspended sentence was suitable. At the sentence hearing, counsel for the applicant expressly stated that he would ask the judge, "to consider that a sentence of imprisonment is appropriate, but that the sentence ought to be suspended". 13 The Crown's submission was not that a suspended sentence was suitable, but the Crown Prosecutor said, "If your Honour were minded to impose a custodial sentence and suspend it, the Crown would submit that you would not be falling into appealable error". 14 In oral submissions, the applicant submitted that there was in his Honour's remarks on sentence no explicit statement that the applicant was remorseful. As I have observed, his Honour had found expressly that the applicant was unlikely to re-offend and it is difficult to consider that his Honour was finding that such a person was not affected by remorse or contrition for what he had done. 15 His Honour had expressed a starting point for sentence assessment of three years, but he had reduced this in order to reflect the utilitarian value of the plea of guilty which had not been entered at the earliest opportunity. No complaint is made about the extent of discount which was given to reflect the plea of guilty. 16 Ground two complained that his Honour erred in failing to take into account the level of intoxication as a factor affecting the applicant's judgment. As earlier stated, his Honour expressly found that both the applicant and the complainant were affected by alcohol. There was no evidence before his Honour about the level of the applicant's intoxication, although I would not conclude that his Honour overlooked the circumstance that after arrival at the driveway of the house in Moama the applicant was able to drive his utility truck to the homestead. His Honour's comment reflected as much as the evidence would have enabled any conclusion about the effect of prior ingestion of intoxicating liquor by the applicant upon his commission of this offence. 17 It is true that in a pre-sentence report the applicant had told the probation officer that he accepted that his judgment was affected by his level of intoxication and that he would have acted differently had he not been affected in the way he was but that, to my mind, was only to state the obvious. That he behaved in the fashion described after imbibing intoxicating liquor does not, in this case, amount to a matter of mitigation. His Honour did not err in the fashion alleged by the ground. 18 Ground three asserted that his Honour erred in placing excessive weight upon the victim's impact statement in refusing to suspend the sentence on the basis of its contents. In written submissions, counsel for the applicant pointed out that the victim impact statement did not comply with the Crimes (Sentencing Procedure) Regulation 10.2. The document was inaccurately entitled 'Witness Impact Statement' and although it appears to be signed by the complainant, it is not dated in accordance with the requirement of the regulation, if it were intended to be a victim impact statement. 19 The transcript does not identify a separate tender of the statement and it was included in a bundle scheduled as consisting of a statement of facts, criminal history, victim impact statement and pre-sentence report. It is well established that an adverse finding against an accused person cannot be made unless the Tribunal is satisfied beyond reasonable doubt; Olbrich v The Queen (1999) 199 CLR 270. The victim impact statement was not sworn and not tested by cross-examination and, self-evidently, would therefore have been an unlikely source of satisfaction to that standard of a matter adverse to an offender: R v Slack [2004] NSWCCA 128. Also Basten JA, with whom Latham J agreed, recently in Regina v Thomas [2007] NSWCCA 269 stated: "It will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim". 20 In rejecting the submission that the sentence be suspended, his Honour has said: "That would not be appropriate given the impact that this offence has had on the victim. I have in evidence a statement from her. It is not surprising that her life and her studies have been totally disrupted by this event and she has suffered considerable distress. It is important to take that into account". 21 The deficiency in evidential quality of victim impact statements arising from the absence of compliance with general rules of admissibility and the absence of test by cross-examination requires sentencing judgments to exercise great care in making use of the content of such statements. However, in this instance, noting the heading on the document which is an amalgam of witness statement and victim impact statement, his Honour was entitled to have regard to it as he did as part of the evidential material which was received without objection. That he could properly do so is impliedly recognised by the ground which is expressed to complain of weight and not of admissibility. I would reject ground three. 22 Ground four asserted that his Honour erred in imposing a sentence which placed significant weight upon general deterrence over and above all other considerations. The ground misstates what his Honour said. He said that general deterrence was a very strong consideration, but he did not say that he reflected it over and above all other considerations. His Honour's remarks were: "But with an offence of this type, the court's most important responsibility in my view is to send a message to the community generally that, no matter what the circumstances, that sexual intercourse with a woman when she does not consent and when the offender knows that she is not consenting is something that will result in a serious penalty and that this is a very strong consideration in the sentence that I intend to impose". 23 In oral submissions, counsel submitted that his Honour should have taken into account in this regard the youth of the applicant and the circumstance that he had, to his Honour's knowledge, passed through a serious illness in recent times. As I have earlier observed, when considering the maturity of the applicant, it can be seen as his Honour found that the applicant not only had trade qualifications but was in a supervisory position. I am unpersuaded that ground four is sustained. 24 In a final submission, in the event that this court were minded to re-sentence, the written submissions on behalf of the applicant stated: "It is not the submission of the appellant that a suspended sentence is an appropriate sentence in all the circumstances, but that a full-time custodial sentence is required to adequately reflect the objective criminality of the offence of sexual assault without consent. The discount allocated for the plea of guilty, approximately 16.6%, was appropriate. It was also appropriate for the court to vary the statutory ratio to the extent that it did for the reasons stated. The appellant submits that if the court were to re-sentence him that a full-time custodial sentence, something less than that imposed at first instance, would be appropriate." 25 In my view, the sentence imposed by his Honour must be categorised as lying within the lowest echelon of the range of available sentence for this serious offence and I would not consider that any lesser sentence should have been passed. In so saying, I have regard to the explicit terms of s 63 of the Criminal Appeal Act. 26 In relation to the whole application, I would observe that it is difficult to conceive how a lesser sentence than that assessed by his Honour could be imposed for this offence, allowing the very greatest mitigation for the undoubtedly substantial matters available to the applicant. 27 I would grant leave to appeal against sentence, but dismiss the appeal 28 SPIGELMAN CJ: I agree 29 MCCLELLAN CJ at CL: I also agree 30 SPIGELMAN CJ: The orders of the court are as indicated by Grove 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. 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. 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