Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v R [2013] NSWCCA 253 Hearing dates: 14 October 2013 Decision date: 08 November 2013 Before: Hoeben CJ at CL at [1] Johnson J at [35] Bellew J at [36] Decision: Application for extension of time by the applicant dismissed. Catchwords: CRIMINAL LAW - sentence appeal - sexual intercourse without consent, contrary to s61I Crimes Act 1900 - "Muldrock error" - application for extension of time for sentence appeal - delay of 5 years - principle of finality - relevant considerations for a grant of an extension of time - application of s6(3) Criminal Appeal Act 1912 - insufficient prospects of success - application for extension of time dismissed. Legislation Cited: Crimes Act 1900 (NSW) - s61I Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) - s6(3) Cases Cited: Abdul v R [2013] NSWCCA 247 Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Lang, Dylan Craig v R [2013] NSWCCA 29 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Nguyen [2013] NSWCCA 195 Category: Principal judgment Parties: James Martin - Applicant Regina - Respondent Crown Representation: Counsel: Ms R Burgess - Applicant Ms T Smith - Respondent Crown Solicitors: S O'Connor, Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2008/9782 Decision under appeal Date of Decision: 2008-10-23 00:00:00 Before: Conlon DCJ File Number(s): 2008/9782 Judgment 1HOEBEN CJ at CL: Offence and sentence The applicant was found guilty by a jury of an offence of sexual intercourse without consent, contrary to s61I of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 14 years with a standard non-parole period of 7 years. 2On 23 October 2008 Conlon DCJ sentenced the applicant to imprisonment with a non-parole period of 7 years and a balance of term of 2 years. The earliest date on which the applicant is eligible for release on parole is 2 September 2015. 3The applicant seeks an extension of time within which to apply for leave to appeal against the severity of that sentence. The applicant relies upon a single ground of appeal: Ground of Appeal: His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 4It was common ground between the applicant and the Crown that "Muldrock error" had occurred in the sentencing process in that the sentencing judge had given excessive weight to the standard non-parole period and had engaged in a two stage sentencing process. On that issue generally this judgment should be read with Abdul v R [2013] NSWCCA 247. Factual background to the offence 5The victim had known the applicant since April 2007 and regularly used to buy drugs on his behalf from suppliers in the area. On the date of the offending (24 June 2007), she was in a relationship and was 14 weeks pregnant. The applicant had expressed an interest in her but she had told him that that interest was not reciprocated. 6Owing to her pregnancy, the victim did not want to continue to buy drugs for the applicant and introduced him to a friend of hers, Amy, who could buy drugs for him instead. On occasions the victim, the applicant and Amy would go together to buy drugs while the applicant was getting to know Amy better. On one of those occasions, a week or two before the offence was committed, the three of them went to purchase an eight ball for the applicant which was to cost about $600. Amy handed over the $600 while the other two waited in the car. Although they waited for hours, the supplier did not return with the drugs but kept the applicant's $600. The applicant was angry at having lost his money. He appeared to blame the victim for what had happened. 7On 24 June 2007 the applicant contacted the victim so that she could purchase drugs for him. The victim felt sorry for the applicant because he had lost his money and agreed for him to pick her up with the intention of purchasing drugs. 8The applicant picked her up about 3.30pm and she instructed him to drive to Unanderra. Instead, the applicant drove to a secluded park next to a soccer oval at Figtree. The applicant told the victim that they were there to have some drugs before they went to purchase drugs. 9When the victim noticed that the applicant was not preparing drugs, she attempted to exit the vehicle. She found that the door was locked and she did not know how to unlock it. The applicant told the victim that she "owed him big time", referring to the loss of the $600 on the previous occasion. He said that either Amy or she had "ripped him" and because of that he was going to have sex with her and that he was "going to get his money's worth out of her". 10The victim said that she was pregnant, that it was not her fault and that she did not want to have sex with him. The applicant told her to "go along with it" and that it would be more enjoyable if she did. The victim began to cry and started to get panicky and upset, while repeatedly asking the applicant not to do it. The applicant then put one of his legs across her, grabbed both her wrists with his left hand and held them over her head. He reclined her chair with his right hand and began to undo her clothes and his clothes with that hand. 11The victim continued to struggle and plead with the applicant while attempting to clench her thighs together. After a period of struggling, the victim gave up and asked the applicant to "at least use a condom". The applicant responded with words to the effect that "it was great knowing that she had Daniel's kid in her gut and he would have to fix that". He also told her that he wanted to "come inside her" and wanted her to "swallow it". 12The victim then felt the applicant inside her, looked the other way, closed her eyes and waited for it to be over. He stopped 5 - 10 minutes later after he had ejaculated. The victim then got dressed and the applicant drove her to her house. Evidence of Post-Sentence Events 13On 13 September 2013 the applicant swore an affidavit relating to his time in custody. He said that what he missed most was his family. Three family members have died while he has been in custody - his father, his step-father and a granddaughter. He has worked in a number of occupations while in gaol, often as a leading hand. He expressed a willingness to do the CUBIT Sex Offender Program. On 16 February 2012 the applicant failed a urine analysis test and stated that he was not willing or interested in doing the IDAPT Program (Intensive Drug and Alcohol Treatment Program). Applicant's Subjective Circumstances 14The following matters are relevant to the applicant's subjective case. The applicant is an Aboriginal person who is now aged 47. At the time of the offending he was living in a de facto relationship with a woman with four children. He had six children of his own from two previous relationships. His contact with his children was sporadic. 15His father had an alcohol problem and left the family home when he was aged 8. Shortly afterwards, his mother began a relationship with his step-father. His family background appears to have been stable and supportive, although there is mention in one report that his step-father also had an alcohol problem. The applicant left school after year 9 and has had a number of labouring jobs with unemployment benefits in between. He had not worked for over a year before the offence. 16After he left school the applicant became involved with a motorcycle gang. Although he eventually severed his connection with the gang, it was during this time that he began to use illicit substances. He continued thereafter to use illicit drugs. At the time of the offence he was experimenting with ice. Background to this application 17After having been sentenced, on 27 October 2008 the applicant filed a Notice of Intention to Appeal in respect of the sentence. On 17 November 2008 Legal Aid NSW received an application from him. On 14 May 2009 legal aid was refused on the basis that the application was not considered to have reasonable prospects of success in accordance with the Legal Aid merit test. 18On 15 October 2012 the applicant contacted the Standard Non-parole Period Review Team at Legal Aid NSW to inquire whether a review would be undertaken of his sentence. On 29 January 2013 a letter was sent by Legal Aid NSW to the applicant advising that his case had been reviewed and inviting him to apply for legal aid. In due course an application for leave to appeal against sentence was filed on 28 June 2013 which has resulted in this matter coming before the Court. 19Although the parties accepted that "Muldrock error" had occurred, the Crown did not accept that, pursuant to s6(3) of the Criminal Appeal Act 1912 (NSW) (the Act), any lesser sentence to that imposed by his Honour was warranted in law. Delay 20The sentence was imposed on 24 October 2008. The Notice of Intention to Appeal of 27 October 2008 lapsed. Accordingly, an extension of time of nearly 5 years is sought for this application for leave to appeal against sentence. 21The competing submissions in relation to delay, finality and the Court's consideration of those submissions are set out in Abdul v R at [31] - [59]. Those submissions and the Court's conclusions in relation thereto are incorporated into this judgment. 22The extent of the delay is substantial and the explanation for it is not compelling. Having considered the circumstances relating to the applicant's sentence, Legal Aid NSW rejected his application as having insufficient prospects of success. The only change to those circumstances is the decision in Muldrock. The principle of finality stands against an extension of time as does the potential for further psychological suffering by the victim. 23In those circumstances, the re-exercise of the sentencing discretion to determine whether "substantial injustice" would follow if an extension of time were not granted is determinative in this matter. None of the other factors identified in the decided cases favour the granting of an extension of time. Submissions 24The substantial issue in this matter is whether material error having been established, this Court should in the re-exercise of the sentencing discretion, impose a lesser sentence because a lesser sentence is warranted in law (s6(3) of the Act). 25The applicant submitted that the sentence was excessive because there were no statutory aggravating features identified. He relied upon his progress while in custody and his positive attitude to attending the CUBIT Sex Offender program. 26The applicant noted that by reference to sentences imposed after the coming into effect of the standard non-parole period regime, the average sentence for s61I offences was imprisonment for 6 years with an average non-parole period of 3 years. Of 81 cases where offenders pleaded not guilty and were sentenced to fulltime imprisonment, there were only 11 cases where a sentence higher than his was imposed. The applicant submitted that this was indicative of his sentence being excessive. 27The Crown drew the Court's attention to countervailing considerations. It submitted that the objective criminality of the offence was significant and that there was some element of planning and premeditation. The victim was taken to a secluded place, forcibly restrained and then penile/vaginal intercourse took place, even though the applicant knew that the victim was pregnant. The applicant's response to the victim's request that he use a condom was callous and indicated some ill will directed towards the victim's partner. The Crown submitted that the remarks by the applicant before and during the offence were consistent with him using the sexual assault for a punitive purpose directed at the victim personally. Consideration 28The applicant's subjective case is not strong. His background as a child appears to have been stable and not to have contributed towards his addiction to drugs. It was his participation in a motorcycle gang which appears to have been the catalyst for that. There is no contrition or remorse for his behaviour, nor is there any insight into the effect of that behaviour on the victim. 29While it is true that the applicant has apparently made progress while in custody, it is not clear whether that progress will translate into appropriate rehabilitation upon his release. His refusal to undertake the IDAPT Program is a matter of concern. The observation of the Court in R v Nguyen [2013] NSWCCA 195 (Beazley P, Johnson and RA Hulme JJ) is pertinent to the position of this applicant: "63 There is force in the Crown submission that the standard non-parole period may be a more significant factor on sentence of an offender where there is little operating in the offender's favour on sentence. Its significance in a particular case may vary." 30Statistics are of only limited value when considering offences of this kind. The particular circumstances vary considerably as does the effect on the victim. As was said by the plurality in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520: "53 .... Care must be taken, however, in using what has been done in other cases. 54 In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned"." As the plurality said in Wong: "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."" 31Observations to similar effect were made by Rothman J (with whom McClellan CJ at CL and Adamson J agreed) in Lang, Dylan Craig v R [2013] NSWCCA 29: "25 The applicant also relied on statistics to further the submissions on manifest excess. As has been previously noted by the High Court and this Court, one must be very careful in utilising statistics for offences: Wong v R; Leung v R [2001] HCA 64; 207 CLR 584 at [59]; Hili v R; Jones v R [2010] HCA 45; 242 CLR 520. Such statistics are useful for the purpose of showing trends in sentencing, but each sentence must be imposed on the basis of the sentencing principles and not on the basis of an adherence to statistical averages; Hili at [54]. 26 Even on the statistics presented, the sentence imposed is within range, albeit at the higher end of the range, as is appropriate given the findings on objective criminality. Each offence (and the circumstances of the offender) is different. 27 Moreover, to follow statistical ranges blindly would be to constrain inappropriately the exercise of discretion reposed in a sentencing judge and render statistics a self-fulfilling limit on the intuition to be exercised in sentencing. Nothing in the statistical material contradicts the view otherwise reached. 32In Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 McClellan CJ at CL (with whom Price and RA Hulme JJ agreed) said: "44 Although the statistics of the Judicial Commission may provide a useful guide they also make plain that the maximum penalty of 25 years may not have been afforded appropriate significance when sentencing for this offence. It is important to remember that the sentences which have been imposed and reflected in the relevant statistics must be approached with care lest they operate to confine the practical application of the full range of potential sentences provided by the statutory maximum." 33The applicant referred to particular cases and sought to demonstrate that the sentence imposed in this case was excessive. In that regard, it need only be said that the facts of those cases were markedly different to those which are presently before the Court. Ultimately this Court has to decide for itself whether on the particular facts before it a lesser sentence than that imposed by the sentencing judge is warranted in law. I am not so persuaded. 34It follows that to allow the application for leave to appeal against sentence to proceed would not have sufficient prospects of success to justify the considerable extension of time that the applicant seeks. The order which I propose is that the application for extension of time be dismissed. 35JOHNSON J: I agree with Hoeben CJ at CL. 36BELLEW J: I agree with Hoeben CJ at CL. ********** 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. Decision last updated: 08 November 2013