Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Simpson v R [2014] NSWCCA 23 Hearing dates: 26 February 2014 Decision date: 04 March 2014 Before: Hoeben CJ at CL at [1] Adams J at [44] R A Hulme J at [45] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - sexual intercourse without consent - whether sentence imposed was manifestly excessive - two episodes of digital penetration following a savage physical assault, one charged and one on a Form 1 - intercourse not driven by need for sexual gratification but to demonstrate domination and inflict humiliation - importance of specific and general deterrence - sentence not shown to be "unreasonable or plainly unjust" - leave to appeal granted but appeal dismissed. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Barbaro v The Queen; Zirillo v The Queen [2014] HCA 2 Dinsdale v R [2000] HCA 54; 202 CLR 321 Doe v R [2013] NSW CCA 248 GWM v R [2012] NSWCCA 240 MH v Regina [2011] NSWCCA 230 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Kentwell [2013] NSWCCA 266 R v Stewart [2012] NSWCCA 183 Category: Principal judgment Parties: Leonard James Simpson - Applicant Regina - Respondent Crown Representation: Counsel: Mr J Trevallion - Applicant S Dowling SC - Respondent Crown Solicitors: Matthew Trevillion - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2011/288684 Decision under appeal Date of Decision: 2012-11-16 00:00:00 Before: Conlon DCJ File Number(s): 2011/288684 Judgment 1HOEBEN CJ at CL: Offences and sentence The applicant pleaded guilty on the first day of trial to the following offences: Count 1 - Assault occasioning actual bodily harm, contrary to s59(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years. Count 2 - Sexual intercourse without consent, contrary to s61I Crimes Act 1900 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 7 years. 2In relation to Count 2, the applicant asked the sentencing judge to take into account on a Form 1 a further offence of sexual intercourse without consent contrary to s61I. 3The applicant was sentenced as follows: Count 1 - Imprisonment for a fixed term of 18 months, commencing 7 September 2011 (the date of his arrest) and expiring 6 March 2013. Count 2 - (Taking into account the Form 1 offence) imprisonment with a non-parole period of 5 years, commencing 7 September 2012 and expiring 6 September 2017, with a balance of term of 2 years and 6 months expiring 6 March 2020. The total sentence was therefore imprisonment with a non-parole period of 6 years with a balance of term of 2 years and 6 months. 4The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 on a single ground (which was only concerned with the sentence for count 2). The sentence imposed on the applicant was manifestly excessive. Factual background 5The following facts were agreed. The applicant and the complainant had been in an on/off domestic relationship for a number of years. On Monday, 29 August 2011 the applicant was in the complainant's home drinking alcohol and had become intoxicated. During the afternoon, the complainant received two phone calls on her mobile phone after which the applicant became abusive towards her, calling a "whore" and a "slut". 6As a result of this abuse, the complainant left and visited a friend, Wayne Parton. She stayed at his place until later that evening, arriving home by bus shortly before midnight. The applicant was still awake and intoxicated when she arrived home. 7The applicant commenced to abuse the complainant and accused her of having just had sexual intercourse with Wayne Parton. When the complainant denied this and attempted to leave the room, the applicant grabbed her by the shirt and pulled her back into the lounge room. He punched her several times with a closed fist to the face (left eye and left cheek), left breast and leg. He also pulled her hair and bit her on the nose. While assaulting her, he was making threats to kill her and threatened to get his mates to "fuck her from behind". 8As a result of the assault, the complainant suffered the following injuries: two fractures to the left cheekbone and left eye socket. These injuries were treated without operative intervention by a surgeon. Other injuries included a red bite mark to her nose, scratch marks and tenderness to her left and right neck, bruises and tenderness to her left eye, left cheek, right upper arm, left upper arm, right knee, right upper leg, right shoulder and right hand. There was also tenderness to her left breast, her right lower back, both lower legs and both feet. Those injuries were relevant to Count 1. 9The complainant picked up her phone to call the police but the applicant knocked it out of her hand and kept it. The complainant then went to her bedroom and lay on her bed. The applicant followed her into the room and continued to accuse her of having sex with Wayne Parton. He spread her legs and forced his left hand inside her tracksuit pants and underpants. He forced his fingers inside her vagina, pulled them out and sniffed them. He told the complainant that he could smell semen and accused her of having had sex with Wayne Parton. He then wiped his fingers on the complainant's face saying "That's cum, that's Wayne Parton's cum you slut, you dog". Those were the facts relevant to Count 2. 10Over the next hour, the applicant continued to threaten the complainant and he once again forced his fingers into her vagina in a similar fashion, again smelt them and made a comment about smelling semen and wiped his fingers over her face. These were the facts relevant to the Form 1 offence. The complainant said that the verbal and physical abuse continued all night and into the morning and that she was petrified. 11On the afternoon of 30 August 2011 the complainant told the applicant that she was going to get some cigarettes, but he would not let her go by herself and went with her. While at the shopping centre he went into a liquor store to buy some more beer. At this point the complainant saw her friend Wayne Parton getting off a bus and took the opportunity to escape from the applicant. She then went with Wayne Parton to his home where the police were contacted. The applicant was arrested on 7 September 2011. He remained in custody following his arrest. Remarks on sentence 12The sentencing judge accepted that both offences were impulsive and that excessive alcohol consumption played a part. He characterised the assault as follows: "A violent attack accompanied by verbal abuse and threats designed to instil fear into the victim. This was no simple single punch. The attack was directed to different parts of her body and the resulting fracturing of her left cheekbone and eye socket, as well as the bite mark on her nose is indicative of the level of brutality associated with this attack." 13His Honour characterised the two offences of sexual intercourse without consent as follows: "[These] followed on from when the offender followed her into her bedroom. No doubt at this time the victim had suffered considerable trauma and was very vulnerable. Each act involved a forceful digital penetration followed by the gratuitous act of wiping his fingers on the complainant's face. I am satisfied beyond reasonable doubt that these acts were calculated to degrade, demean and dehumanise her. Each act of sexual assault was separated by a period of approximately one hour during which he continued to threaten her. The verbal and physical abuse continued on after the Form 1 offence and into the next morning." 14His Honour noted as an aggravating factor that the applicant was on a s12 good behaviour bond at the time of the offences. This bond was imposed because the applicant was convicted of assaulting the complainant's son, causing a wound to the bottom lip which required seven stitches. 15His Honour rejected the submission that the sexual assaults were less serious because they were of relatively short duration. In that regard, his Honour noted that although the act itself might have been of short duration, the same could not be said of the humiliation that accompanied it. His Honour also rejected the submission that digital penetration was less serious than penile penetration. By reference to the particular facts, his Honour said: "In assessing the accused's criminal culpability it matters little that the assaults would not seem to have been driven by a need for sexual gratification. Having regard to the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation I am more than satisfied that these are objectively very serious offences." 16His Honour reviewed the applicant's subjective case. At the time of sentence he was aged 42 and had a criminal record which included convictions for matters of violence, including serious personal violence and domestic violence. His Honour concluded that the applicant's criminal record deprived him of leniency so that more weight should be given to retribution, deterrence and protection of the community. 17By reference to the pre-sentence report, his Honour noted that despite community service orders, periodic detention, recognisance orders, periods of incarceration and good behaviour bonds, the applicant's response to supervision had generally been substandard and in most instances, had resulted in breaches and revocation of the orders. Domestic violence, drug and alcohol use were identified as major problems and it was thought that the applicant had limited insight into his offending behaviour. 18His Honour referred to a report of Mr Champion, psychologist. This revealed that the applicant had a stable and supportive upbringing and that he had trained as a foundry moulder. He had worked in that trade until his mid to late twenties. Thereafter, his employment history had been marred by periods of significant unemployment due to his alcohol use, loss of licence and periods in custody. 19The psychologist's report described a long and extensive history of alcohol and cannabis use. Alcohol use had increased in 1998 after his father died. The applicant indicated that alcohol had impacted on every aspect of his life for the previous 20 years. 20The applicant told the probation officer and the psychologist that he had no recollection of the assaults. His Honour was not prepared to accept that assertion. His Honour doubted whether the applicant was genuinely remorseful. The probation officer thought that he displayed an attitude which placed a level of blame on the victim whereas the psychologist thought that there was some expression of remorse. Both the probation officer and the psychologist agreed that unless the applicant gained control over his substance abuse, the risk of further violence was most likely. His Honour concluded that the applicant's prospects of rehabilitation were problematic at best. 21His Honour made specific reference to the Form 1 matter and noted the observations of Spigelman CJ in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [18] where he said: "18 A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. ... 22His Honour quoted from the observations of Wood CJ at CL in R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41]: "... Such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished and that sentences are handed out which have a strong element of personal and general deterrence." 23In conclusion his Honour took into account the maximum penalty and the standard non-parole period as important guideposts. He said: "The courts have repeatedly emphasised that violent attacks in domestic settings must be treated with real seriousness. Important factors in sentencing where domestic violence is involved are specific and general deterrence, denunciation of the offending conduct and protection of the community. ..." The applicant received a discount on sentence of 15 percent for his plea of guilty. Submissions and consideration 24The applicant submitted that the sentence imposed for the s61I offence was unreasonable and plainly unjust. He relied upon the oft quoted passage from Dinsdale v R [2000] HCA 54; 202 CLR 321 where Gleeson CJ and Hayne J said: "6 Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case." 25By reference to those principles, the applicant submitted that his Honour erred in not making a more precise assessment of where in the range of objective seriousness this offence lay. He submitted that this was necessary because a standard non-parole period applied to count 2. In that regard, the applicant relied upon R v Stewart [2012] NSWCCA 183. 26This submission should not be accepted. In its terms it is similar to the approach deprecated by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 where the Court said: "28 Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. ... 29 ... The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. ..." 27His Honour did all that was required of him by assessing both offences as being "objectively very serious offences" (ROS 6.1). 28The applicant submitted that a relevant consideration was the short duration of the intercourse and that it was digital intercourse, as distinct from penile intercourse. In that regard, the applicant relied upon MH v Regina [2011] NSWCCA 230 where RS Hulme J (with whom Hoeben J and Campbell J agreed) said: "41 I agree with his Honour that a continuation of an offence for a longer period will tend to add to the seriousness of the offending. I also agree that an offence involving intercourse is committed however short that intercourse may be. However if his Honour intended to suggest that the shortness of the intercourse is not a factor that argues for a lesser rather than a greater penalty, I disagree. One situation is but the converse of the other and if a longer period tends to add to the seriousness of offending, it follows as the night the day, that a shorter period argues for regarding the offending as less serious than it would have been if continued for longer. 42 The recent decision of the High Court in Muldrock v The Queen [2011] HCA 39 at [60] confirms that the circumstance that an offence is of short duration is a relevant factor." 29The applicant also relied upon a further observation by RS Hulme J in MH v Regina as follows: "37 ... Inherently penile vaginal intercourse carries risks or greater risks of venereal disease and pregnancy compared with digital vaginal intercourse. To my mind, and I venture to say in the view of most of the community, penile vaginal intercourse is also a greater affront both physically and mentally to an unwilling victim in consequence of the greater subjugation of her body and intrusion of privacy that such intercourse generally involves. ... ... 39 ... In saying what I have in the two immediately preceding paragraphs, I do not, of course, purport to lay down any proposition of law. Nor do I mean to suggest that all cases of penile intercourse are worse than all cases of digital intercourse. ..." 30Those submissions should not be accepted. The objective seriousness of sexual offences depends on all the circumstances of the case. It is not confined to the nature of the act committed by the offender. While the form of intercourse can be an important factor, it is not to be regarded as the sole consideration. Also important in assessing the objective seriousness are the degree of violence, the physical hurt inflicted, the form of the forced intercourse, any circumstances of humiliation and the duration of the offence. 31In this case although the "act of intercourse" looked at in isolation could be described as of short duration, it has to be looked in the context in which it occurred. It occurred following a severe physical beating inflicted by the applicant upon the complainant. It was accompanied by threats and other conduct designed to humiliate and degrade her. Within an hour a similar episode of offending occurred, accompanied by the same behaviour intended to humiliate her. 32It follows that on the facts of this case that it would be quite inappropriate to look at the acts of intercourse in isolation without having full regard to the surrounding context and circumstances. Those surrounding circumstances were such as to make the duration of the acts of intercourse largely irrelevant. The important matter was the context in which they occurred. 33On the facts of this case a discussion of whether digital intercourse was more or less serious than penile intercourse is quite unproductive. What needs to be understood and which was clearly appreciated by the sentencing judge, is that there was no element of sexual gratification in the conduct of the applicant. What he was doing was demonstrating his domination and power over the complainant. The contemptuous wiping of his fingers on the complainant's face was intended not only to degrade and humiliate her, but to emphasise her subservient position to him. Looked at in their proper context, these offences of sexual intercourse involved substantial violence. In that regard, they were appropriately treated by his Honour. 34The significance, if any, of a difference between digital and penile intercourse was considered by this Court in Doe v R [2013] NSW CCA 248. There Bellew J (with whom Hoeben CJ at CL and Johnson J agreed), having extensively reviewed the authorities, concluded: "54 To the extent that the submissions of counsel for the applicant suggested otherwise, it should be emphasised that there is no decision of this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than some other form of forced sexual intercourse. Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness." 35Apart from the aggravating features, to which reference has already been made, there were others which the sentencing judge correctly took into account. The applicant had a lengthy record of previous convictions, including other domestic violence offences. The offence was committed while the applicant was on conditional liberty. The offence was committed within a context of domestic violence. In such matters specific and general deterrence are of great importance as are denunciation and the protection of the community - R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41]; R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [65], R v Kentwell [2013] NSWCCA 266 at [88]. 36The fact of the applicant's intoxication does not assist him. In GWM v R [2012] NSWCCA 240 Johnson J (with whom McClellan CJ at CL and Bellew J agreed) observed that where an offender in a sexual assault case was a heavy user of alcohol for whom inebriation was a common state, intoxication will generally not serve to mitigate penalty (at [83]). That reflects the approach consistently followed by this Court. 37Finally, the Form 1 offence was another sexual assault of equal severity to that for which the applicant was being sentenced. His Honour was entitled to make the sentence for Count 2 longer than it might otherwise have been in order to take into account the need for deterrence and retribution in respect of the offence charged and the greater need for personal deterrence and retribution in respect of that offence: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 per Bathurst CJ (Hoeben CJ at CL, Garling and Campbell JJ agreeing). 38The applicant submitted that the sentence imposed was inconsistent with the Judicial Commission's statistics in relation to offences under s61I. He submitted that this offence was towards the top of the statistical range and that only 7 percent of the 208 cases on the Judicial Commission database involved sentences greater than that which was imposed in this case. 39What the statistics fail to disclose are the aggravating factors which were or were not present in those cases. They do not disclose the particular factors, nor what discounts were applied. Here, not only were there significant aggravating factors but there was the Form 1 offence which given its nature, substantially influenced the length of the sentence imposed. 40As was pointed out by the Crown in submissions, the whole concept of an "available range" of sentencing has recently been considered by the High Court in Barbaro v The Queen; Zirillo v The Queen [2014] HCA 2 where the majority (French CJ; Hayne, Kiefel and Bell JJ) said: "28 Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an "available range" of sentences, stating the bounds of an "available range" of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall. ... 40 The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. 41 As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. ..." 41The statistics referred to by the applicant are of little value given the particular circumstances of this case. The s61I offence under consideration was one demonstrating considerable violence in which the applicant sought to dominate and degrade the complainant. That this occurred within a domestic relationship made considerations of general deterrence of particular importance. This case depends very much upon its own particular facts. 42For the reasons set out, I am not persuaded that the sentence imposed for Count 2 was manifestly excessive in the sense that it was "unreasonable or plainly unjust". It follows that this ground of appeal has not been made out. 43The orders which I propose are that leave to appeal be granted but that the appeal be dismissed. 44ADAMS J: I agree with Hoeben CJ at CL. 45R A HULME 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: 04 March 2014