Reported Decision: 193 A Crim R 292 New South Wales Court of Criminal Appeal CITATION: Glover v R [2009] NSWCCA 48 HEARING DATE(S): 27 February 2009 JUDGMENT DATE: 27 February 2009 JUDGMENT OF: Grove J at 35; Buddin J at 1; Price J at 38 1 Grant leave to appeal. DECISION: 2 Allow the appeal. 3 Quash the sentence imposed in the District Court. 4 In substitution therefore sentence the applicant to a non-parole period of 8 years to commence on 3 December 2006 with a total term of imprisonment of 12 years to commence on 3 December 2006. The total term will expire on 2 December 2018 and the non-parole period will expire on 2 December 2014 on which date the applicant will be eligible for release on parole. CATCHWORDS: Criminal law - sentencing - aggravated sexual intercourse without consent - actual bodily harm inflicted - whether offence fell into worst category - whether sentence was manifestly excessive LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment Boney v R [2008] NSWCCA 165 R v AEM (Snr), KEM and MM [2002] NSWCCA 58 CASES CITED : R v Twala (unrep, 4 November 1994, NSWCCA) R v Way (2004) 60 NSWLR 168 Veen v The Queen (No2) (1988) 164 CLR 465 PARTIES: Timothy Kaleb Glover (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/7895 COUNSEL: J Manuell (Applicant) N Noman (Respondent) SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/51/0061 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 17 March 2008 IN THE COURT OF CRIMINAL APPEAL 2007/7895 GROVE J BUDDIN J PRICE J FRIDAY 27 FEBRUARY 2009 TIMOTHY KALEB GLOVER v R Judgment 1 BUDDIN J: The applicant seeks leave to appeal from a sentence imposed upon him in the District Court. Following his plea of guilty to a single count of aggravated sexual intercourse without consent, the applicant was sentenced to a non-parole period of 10 years with an overall sentence of 15 years imprisonment. At the relevant time s 61J(2) of the Crimes Act 1900 listed seven circumstances of aggravation. The circumstance of aggravation upon which the Crown relied in the present case was the infliction of actual bodily harm. The maximum penalty for the offence is 20 years imprisonment and a standard non-parole period of 10 years is applicable to it. The sentence was ordered to commence on the date of the applicant's arrest from which time he has been in continuous custody. 2 The facts of the matter are not in dispute and may be briefly stated. The victim, who was aged 16, was walking alone along a street in Coffs Harbour at about 10 pm on 10 June 2005 when the applicant ran out from behind some bushes. Without warning, he punched her above her right eye and grabbed her arm. He then forcibly dragged her towards a nearby building. The victim resisted but she was overcome by the applicant. The applicant placed his hand over her mouth and nose, and said, "If you don't shut up I'm going to kill you". The applicant continued dragging the victim to a nearby building. Once they were underneath the building, the applicant threw the victim onto the ground. He then lay on top of her and again placed his hand over her mouth. He said to her, "If you're lucky, I'll let you breathe through your nose". Shortly afterwards, the applicant removed his hand. The victim screamed and kicked the applicant in the groin. The applicant responded by punching the victim in the left eye and said to her, "If you don't shut up I'll break your nose". 3 The applicant then pulled off his pants. He then removed the victim's pants and underwear. The victim saw that the applicant had an erect penis. He said to her "You want it don't you?" The applicant forced his erect penis into the victim's vagina and had sexual intercourse with her for about 5 to 10 minutes, without using a condom. The sound of a siren was then heard, and the applicant got off the victim. The applicant spoke briefly to the victim before running away. The victim dressed herself and walked back to the road, where she was met by the police. She told them that she had been sexually assaulted. 4 The victim was taken to hospital where she was medically examined. The victim was observed to have bruising to her left eye, grazing and contusions to her right temple and grazes to her knees and back. She was also noted to be very shaken. 5 A covert DNA sample was obtained from the applicant in October 2006. Subsequent analysis indicated that there was a match between the applicant's DNA and the DNA found on a vaginal swab taken from the victim. When the applicant was arrested and charged he voluntarily provided police with a buccal swab. 6 The applicant was born on 17 March 1987 and is now aged 21. He was just over 18 when he committed these offences. The evidence revealed that the applicant had had an extremely dysfunctional childhood. He is the youngest of 6 children. There was considerable domestic violence in the home and there were also allegations that the applicant's father had sexually assaulted two of the applicant's older sisters. When the applicant was about 8 years old, his mother died following a long battle with bowel cancer. The applicant remained living with his father after his mother's death. Following his mother's death, the applicant's father significantly increased his consumption of alcohol. 7 When the applicant was 9 years old, his father detonated a large explosion outside the Coffs Harbour DOCS office, causing substantial damage to that office and a neighbouring building. As a result, the applicant's father was convicted of various offences and sentenced to a lengthy term of imprisonment. The applicant was thereafter placed into the full-time care of DOCS. Over the years that followed, the applicant was placed into various foster homes in NSW, Adelaide, Canberra and Queensland. Some of his foster carers abused him. When he was 10 years old, the applicant was hit by a car as a result of which he sustained a broken leg and concussion. When he was 11 years old, the applicant began drinking alcohol. His schooling was disrupted and he also experienced learning difficulties, apparently due to his having Attention Deficit Disorder. At some stage, the applicant was placed on medication for his condition but he refused to continue taking it. He attended a number of schools but received little education and is barely literate. He eventually left school in the second term of Year 7. 8 The applicant's foster home arrangements finally broke down when the applicant was 14 or 15 years old. DOCS then accommodated the applicant in a motel where he lived by himself. From about that time the applicant began to drink very heavily and to abuse illicit drugs. Dr Allnutt diagnosed the applicant as suffering from a "chronic adjustment disorder characterised by a fluctuating depressed mood". The applicant has been employed only very intermittently. 9 Ms Annette McGowan, who was the applicant's former DOCS caseworker, gave evidence during the course of the sentencing proceedings. She regarded herself as being the applicant's surrogate mother. She said that she became involved in the applicant's care when she transferred to the Coffs Harbour DOCS office in about 2001. She said that she had maintained contact, in a personal capacity, with the applicant even after he turned 18. She had also visited the applicant in gaol whilst he was on remand for this offence. Ms McGowan gave evidence that she had noticed a "dramatic change" in the applicant's maturity and attitude about 6 months after the commission of the offence (that is about 10-12 months before he was charged). She thought "he'd grown up considerably" in this time. Up until then the applicant had appeared to her to have "a very big chip on his shoulder". Ms McGowan said she was prepared to continue assisting the applicant after his release from custody. 10 The applicant has a criminal record which commenced in 2004 when he was placed on probation in the Children's Court for malicious damage to property and resisting an officer in the execution of duty. In 2005, in respect of two counts of assault occasioning actual bodily harm, the applicant was ordered to perform 200 hours of community service. In the same year he was placed on a bond for a period of 18 months for offences of malicious damage to property and intimidating an officer in the execution of duty. The applicant was thus on conditional liberty at the time the present offence was committed. In October 2005 in the Children's Court the applicant was ordered to perform a further period of community service for driving offences. In 2006 he received small pecuniary penalties for behaving in an offensive manner, failing to quit premises and two counts of stalking or intimidation. 11 When initially spoken to by police, the applicant denied any involvement in the offence. When the matter was first listed for trial, the applicant pleaded not guilty but the trial did not then proceed. He did however subsequently enter a plea of guilty. The sentencing judge was disposed to accept, as an explanation for the delay, the need for the applicant's legal representatives to examine his fitness to be tried. The plea of guilty of course had the tangible benefit of relieving the victim from the ordeal of having to give evidence. In any event, the sentencing judge allowed the applicant a discount of 20% from the otherwise appropriate sentence for his plea of guilty. 12 The sentencing judge found that whilst on remand the applicant had been assaulted on several occasions and that, as a consequence, his time in custody had been "a fairly terrifying experience". At least one of those attacks appears to have occurred even though the applicant was in protective custody at the time. His Honour observed that the applicant still entertained fears about attacks from other inmates. His Honour also accepted that the applicant had indicated a preparedness to seek counselling in order to address his offending behaviour. 13 A psychologist, Dr Kathryn Wakely, administered a number of tests to the applicant. She said that according to static 99, which is an actuarial instrument designed to estimate the probability of recidivism, the applicant was assessed as being "within the high range of risk of sexual reoffending". It is common ground that his Honour erred in referring to that risk as "very high". 14 His Honour was also prepared to accept that the applicant had expressed "some slight upset about this girl" although he was not prepared to extend any leniency to the applicant for having demonstrated remorse. 15 The sentencing judge explained his view of the objective gravity of the offence in the following terms: I said on a previous occasion I cannot think of anything worse, any greater nightmare for a woman, than to be dragged from a street by a complete stranger, forced under a building and then raped. Apart from the risk of getting some horrible infection, the risk of serious injury and death must have been something that weighed upon that poor unfortunate girl while all this was happening, and probably ever since. It is, I suppose, not difficult to imagine that she would, for the rest of her life, be very scared about walking on her own anywhere at all. … It is, in my opinion, worse than many similar offences because of the degree of force and violence, the threat of death, and the fact it was penile rape on a sixteen year old. The Crown has submitted this was an offence which would be regarded, or should be regarded as more serious than the mid range offence. I agree. It is hard to work out what is a worst category offence, because anything can be worse than something else. One can never get to an end of things that could be worse than somebody else's version of a criminal offence. But in my view, this assault, and these facts, make it an offence which is of the worst type. He has pleaded guilty, he has to be given a discount for that. I do not have to impose a standard non parole period because he has pleaded guilty. However, I take the view that he is a particularly dangerous individual, and in his case that standard non parole period just happens to co-incide with my view of what the minimum period of imprisonment should be. … Some benefit is given to him for his youth , and of course the sentence is fixed having regard to the 20 percent discount. Ground 1 His Honour erred in his characterisation of the offence as being an offence "of the worst type " 16 There can be no doubt that the offence to which the applicant pleaded guilty revealed criminality of a high order. Any offence involving a sexual assault upon a young person, particularly in circumstances such as the present case, is deserving of the community's condemnation. The penalties available for such offences reflect that view. In R v AEM (Snr), KEM and MM [2002] NSWCCA 58 this Court observed that "[i]t must be stressed that all members of our society including our young people must be free to lawfully use the streets without fear of being subjected to either physical or sexual assault. The long term effects of the trauma invariably encountered by victims of this form of attack are well documented" [at par 94]. 17 There were a number of features of the present case which bore on the objective gravity of the offence and the sentencing judge quite properly took them into account. For example, although the infliction of actual bodily harm was an element of the offence, the victim was nevertheless exposed to a number of physical assaults. She was also subjected to verbal threats. Her humiliation would inevitably have been increased by the applicant's offensive remark to her that "you want it, don't you?" It is also to be recalled that the victim was only 16. Furthermore, the applicant was on conditional liberty at the time of the offence. 18 Nevertheless, there were a number of matters upon which the applicant was able to rely which served to ameliorate the otherwise appropriate sentence. Prominent amongst them were his plea of guilty, his youth and his apparent immaturity, his troubled early life and the precarious circumstances in which he was serving his sentence. Moreover, although he had prior convictions, none were of a sexual nature. There was also evidence that he had began to mature and that he was prepared to undertake programs which would enable him to address his offending behaviour. 19 It is trite law that an appellate court should not lightly interfere with a sentencing judge's assessment of where a particular offence lies in the range of objective seriousness. The authorities which support that proposition are conveniently collected in this Court's decision in Boney v R [2008] NSWCCA 165 [at 105], a case in which this Court nevertheless intervened and substantially reduced sentences for a variety of offences which largely involved instances of sexual assault. In doing so the Court found that the sentencing judge in that case (who by coincidence is the same judge who sentenced the present applicant) had erred in his assessment of the objective gravity of many of the offences in question and in particular had erred in characterising certain of the offences as "offences of the worst kind". Hulme J, who wrote the leading judgment and with whom the other members of the court agreed, reached that conclusion after a "comparison with many offences against these sections with which the courts have to deal" (at par 111). 20 Section 61J(2) relevantly provided at the time that: circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a serious intellectual disability. 21 It is well established that in seeking to establish the present offence the Crown may rely upon one or more circumstances of aggravation in addition to that which is specifically identified in the charge. It was in that context that counsel for the applicant pointed out that there were a number of circumstances of aggravation identified in s 61J which did not feature in the commission of the present offence. 22 As this court said in R v Twala (unrep, 4 November 1994, NSWCCA) "to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)" [at p3]. 23 That said, I have not overlooked that in Veen v The Queen (No2) (1988) 164 CLR 465, a majority of the High Court after observing that the maximum penalty is intended for the worst category of case, said "[t]hat does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness" [at 478]. 24 It is of course always ultimately a matter for a sentencing judge to assess where a particular matter lies on the scale of objective gravity, but in my view a sentencing judge should be loathe to determine that a case falls into the worst category in circumstances in which no submission to that effect has been made by the Crown. The representative of the Crown appearing on sentence in the present case submitted that the offence "should be regarded as more serious than the mid-range offence". 25 In all the circumstances I am persuaded that the sentencing judge erred in going beyond the characterisation of the offence that was advanced by the Crown. Serious as the current offence is, it was simply not open in my view for the sentencing judge to conclude that it fell into the worst category of case. I would uphold Ground 1. Ground 2 The sentence was manifestly excessive 26 At the forefront of the applicant's submission in respect of this ground was the contention that the sentencing judge's starting point for the present sentence, before the discount for the plea of guilty was applied, must have been a sentence of imprisonment of 18 years 8 months. Counsel submitted that when it was borne in mind that the maximum penalty was 20 years imprisonment, and that proper account had to be taken of the other favourable subjective features of the applicant's case, the starting point adopted by his Honour indicated that the ultimate sentence imposed was manifestly excessive. 27 To further demonstrate the point that the sentence was manifestly excessive, the applicant also called in aid statistics maintained by the Judicial Commission for the period between February 2003 and December 2007. The limitations of that kind of statistical information are well-known. That is not to say however that in a particular case that it has no utility. 28 What that material reveals is that of the 89 offenders dealt with during the relevant period, 87 received sentences of full-time imprisonment for this offence. Of those 87 offenders, 80% received total sentences of between 4 and 12 years imprisonment. Only one offender, who was also sentenced for other matters, received a sentence longer than 14 years imprisonment. Of the 45 offenders, who like the applicant, were sentenced to non-consecutive terms of imprisonment, 80% received total sentences of between 3 years 6 months and 10 years imprisonment. None of those offenders received a total sentence longer than 14 years. Of those 45 offenders, 80% received non-parole periods of between 2 and 7 years and none received a non-parole period longer than 9 years. From that material it can be deduced that the total term and the non-parole period imposed on the applicant are the longest non-consecutive terms imposed for this offence since the introduction of standard non-parole periods. 29 Closer analysis of the statistical information reveals that, in the relevant period, 22 offenders have been sentenced to full-time imprisonment after having been convicted at trial. Even more revealing is the fact that both the total term and the non-parole period imposed on the applicant were longer than any sentence imposed on any offender after trial since the introduction of the standard non-parole period. The applicant, it is to be recalled, not only pleaded guilty but had other factors that he could rely upon to mitigate the otherwise appropriate sentence. 30 In short, the statistical material to which I have referred serves to confirm my own initial impression that the sentence imposed upon the applicant was manifestly excessive. In forming that impression I have also paid some regard to what may be loosely described as comparable cases, including the decision of this court in Doherty v R [2006] NSWCCA 133, to which our attention was drawn in oral submissions. Accordingly, I would uphold Ground 2. 31 In view of the conclusion which I have reached in respect of the two grounds of appeal, it is necessary for the court to intervene and resentence the applicant. In considering what sentence should now be imposed, I have had regard to an affidavit affirmed by the applicant. It reveals that he remains in protective custody but that he is otherwise progressing satisfactorily. In his affidavit, the applicant also indicates that he is ashamed of his actions. 32 The various features of the case to which I referred earlier incline me to the view that the present offence lies above the middle of the range of objective seriousness for offences of this kind. Nevertheless, in light of the applicant's plea of guilty and the other favourable matters of a subjective nature upon which he is entitled to rely, I am of the view that it is appropriate to depart from the standard non-parole period. In so concluding I am acutely aware of the fact that it nonetheless takes its place as "a reference point, or benchmark, or sounding board or guidepost": R v Way (2004) 60 NSWLR 168 [at 122]. 33 It is appropriate to make a finding of "special circumstances" to enable the applicant to have the benefit of an extended period of supervision in the community. That will enable him to continue to address his various problems following his release from what is his first sentence of imprisonment. In structuring the sentence I would maintain the same proportion between the non-parole period and the overall term that the sentencing judge selected. 34 I propose the following orders: 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentence imposed in the District Court. 4 In substitution therefore sentence the applicant to a non-parole period of 8 years to commence on 3 December 2006 with a total term of imprisonment of 12 years to commence on 3 December 2006. The total term will expire on 2 December 2018 and the non-parole period will expire on 2 December 2014 on which date the applicant will be eligible for release on parole. 35 GROVE J: I agree with the judgment of Buddin J. I wish only to comment upon two aspects which attracted my attention in the sentence imposed below. I am conscious of the precautions that need to be taken about the use of statistics but it has to be said that it was surprising that a youth of 18 would have been the recipient of the longest recorded sentence that those statistics show. 36 The second matter that required examination was the circumstance of the parliamentary prescribed maximum penalty of 20 years imprisonment but the starting point chosen by his Honour was obviously only one year and four months less than the maximum. 37 With those matters noted, and for the reasons given I agree with the orders Buddin J proposes. 38 PRICE J: I agree with Buddin J and the additional comments of Grove J. 39 GROVE J: The orders therefore will be as proposed by Buddin 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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