Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nand v R [2014] NSWCCA 293 Hearing dates: 9 October 2014 Decision date: 05 December 2014 Before: Gleeson JA at [1] Schmidt J at [2] Bellew J at [101] Decision: Leave to appeal be granted but the appeal be dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - two offences of sexual intercourse without consent - whether sentences were severe and manifestly excessive - applicant unrepresented - whether false advice was received from incompetent legal representatives - whether expert medical report tendered by defence were not considered by sentencing judge - whether sexual abuse inflicted upon the applicant during childhood was not adequately taken into account by sentencing judge - leave to appeal be granted but appeal be dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Dousha v R [2008] NSWCCA 263 Markarian v R [2005] HCA 25; (2006) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Category: Principal judgment Parties: Avineshwar Nand (Applicant) Regina (Crown) Representation: Counsel: Ms V Lydiard (Crown) Solicitors: Mr A Nand, self-represented J Pheils, Solicitor for Public Prosecutions (Crown) File Number(s): 2010/417819 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-06-29 00:00:00 Before: Judge S Norrish QC File Number(s): 2010/417819 Judgment 1GLEESON JA: I agree with Schmidt J. 2SCHMIDT J: The applicant seeks leave to appeal the sentences imposed upon him by Norrish DCJ for pleas which he entered in January 2012 to two offences of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The applicant's case is that the sentences were severe and manifestly excessive. 3The applicant committed the two offences on 16 December 2010 at Newtown Railway Station. The victim was an unconscious 18 year old woman. He was arrested while committing the second offence. The applicant was then at liberty on parole in respect of prior offences of assault with an act of indecency and aggravated break and enter, which he had committed in 2008. The applicant's parole for those offences was revoked on his arrest. 4The applicant was sentenced by Norrish DCJ in April 2012. A trial in September 2011 had been adjourned and the plea was entered in January 2012, prior to the second hearing due to commence on 30 January. That followed legal advice which the applicant had received from new legal advisers engaged in November 2011. 5The maximum penalty for each offence was 14 years imprisonment and the standard non-parole period 7 years. The applicant was sentenced to a term of imprisonment of 10 years, 6 months commencing on 24 October 2011, with a non-parole period of 7 years, 6 months for the first s 61I offence. He was sentenced to a term of 10 years, 6 months commencing on 24 April 2012, with a non-parole period of 7 years, for the second offence. The total term imposed was 11 years, with a non-parole period of 7 years, 6 months. The applicant is eligible for parole on 23 April 2019. His sentence will expire on 23 October 2022. He also received a $500 fine on a s 66 certificate, for a small amount of cannabis found in his possession on arrest. 6Three grounds of appeal were pressed by the applicant, who appeared unrepresented at the hearing of the appeal. They were: (1) False advice received from incompetent legal representatives being Van Houten Law. (2) Expert Medical Reports tendered by the defence were not considered by the sentencing judge. (3) Sexual assault inflicted upon the applicant during childhood was not adequately taken into account by the sentencing judge. 7Affidavits sworn by the applicant's former legal representatives, his solicitor, Rodney Van Houten and his counsel, Gemunu Kumarasinhe and Derek Shridhar, were received at the hearing of the appeal, without objection. They were not required for cross-examination. The applicant also made further short oral submissions in support of written submissions which he had earlier filed. Ground 1 - false and incompetent legal advice 8The applicant's case on appeal was that he ought to have received a lesser sentence than that imposed, which was severe in the circumstances. He had not entered an earlier plea, he claimed, because the advice he had received from his original legal representatives was inadequate; he was intoxicated at the time of the incident; he had not received any evidence prior to committal; and he had first seen the CCTV photographs and his mobile phone footage on 28 November 2011. Had he received proper advice earlier, he would have entered a plea and received a 25% discount on his sentence. 9I am satisfied that this ground of appeal was not made out. 10Firstly, it must be considered that the overall sentence of 11 years with a non-parole period of 7 years, 6 months was not a heavy sentence for the applicant's offences, given their gravity, which was high. The sentence also reflected relevant aggravating and mitigating factors revealed on the evidence and paid proper regard to the maximum penalty of 14 years and the standard non-parole period of 7 years which applied to those offences. The latter were two statutory guideposts to which his Honour had to have regard, in undertaking the instinctive synthesis by which a sentence must be determined (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]) and Markarian v R [2005] HCA 25; 228 CLR 357). 11The offences for which the applicant was sentenced were very serious as his Honour found. The agreed facts tendered at the sentencing hearing revealed that the victim had arrived at Newtown Railway Station at about 3.40am on 16 December 2010, heavily intoxicated. She sat on a bench on platform 1, where she passed out. She was then suffering from insomnia and had not slept for three days. 12The applicant got off a train at about 5.10am. The events which followed were captured by the station's CCTV camera and partially by footage which the applicant himself recorded on his phone, actions which Norrish DCJ found cast considerable light on his actual level of intoxication at the time. 13The applicant approached the victim and stepped back when another commuter walked past. When that person had his back to the applicant and the victim, the applicant lowered the front of his shorts and thrust his penis towards the victim, on the Crown case, pushing it into the victim's mouth over a period of about 40 seconds. He then lifted his shorts and bent over the victim for about two minutes. He then lowered his shorts again and moved the victim, whose limp hand could be seen over the side of the bench. He finally moved to face the victim, who was then lying along the bench with her feet towards him. 14A train stopped and the applicant's activities drew the attention of alighting passengers. He stepped away from the bench and his erect penis was filmed, protruding from the top of his shorts. He was then holding something in his right hand. He then thrust his exposed penis towards the victim's head for another period of over 40 seconds, continuing even while commuters who had alighted from yet another train, walked past. 15The applicant then moved to the end of the bench and placed his penis into the victim's vagina, thrusting forward a number of times. He held the victims left leg in the air and pulled on her jeans, which had been partially removed. 16The applicant was then using his mobile phone to record the assault. It showed the applicant thrusting his penis into the victim's mouth while her eyes were closed; placing his penis into her mouth, while make various derogatory comments; trying to pull her jeans completely off; and police speaking to him. 17Police attended at about 5.18am, after a witness had reported at 5.15am seeing people engaging in sexual intercourse at the railway station. They observed the applicant with the victim, who was lying on her back with her legs in the air. Her right jeans leg had been totally removed and the left leg partially removed. The applicant's shorts were below his waist. He covered himself as police approached. The police officers' voices woke the victim, whose vagina was exposed. 18Both the victim and the applicant were arrested. The victim's intoxication and level of consciousness later became apparent. The victim asked police whether the applicant had touched her. The victim said that she did not recognise the applicant's name and had not consented to sexual activity. 19Witnesses described the victim variously as having been "pretty unconscious" and that she was "pretty limp, she didn't look awake and looked to be unconscious, her eyes were closed and she wasn't moving". 20The applicant told police that they had known each other for six years. That was untrue. He also wrongly identified her as "Natalie". The applicant was charged with sexual assault and cautioned. He telephoned his mother and told her that "I'm sorry mum, I've got myself into trouble, got caught having intercourse at a train station". 21The applicant then consented to forensic procedures, but declined to be interviewed, or to provide the access code for his phone. He was found to be in possession of cannabis. 22The applicant gave evidence at the sentencing hearing which was not only inconsistent, it contradicted the agreed facts and on appeal has been shown to be untrue in parts. Various documents were tendered, including was an April 2012 pre-sentence report, as well as February 2012 reports from Associate Professor Woods, a psychologist; from two psychiatrists, Dr Allnut and Dr Teoh; and an April 2012 report from another psychiatrist, Dr Kavanagh. They had all examined the applicant, who had given them differing accounts of relevant matters, accounts which also differed in various respects from the agreed facts and his evidence. 23Understandably, his Honour formed an adverse view both of the reliability of the accounts which the applicant had given to those who examined him and of the truthfulness of his evidence. 24Associate Professor Woods saw the applicant on 2 and 8 February 2012. He recorded that the applicant's account was: "Mr. Nand stated that he recalls leaving his friend's home in a heavily intoxicated (illicit drugs and alcohol) state and of beginning to walk to the railway station. His next and reportedly vague memory is that of arriving at Central railway station and then alighting from the train at Newtown railway station. Mr. Nand stated that he (vaguely) recalls a) the victim asking him for a cigarette and b) each fondling the other. Mr. Nand was adamant that his next memory is that of being led from the railway station by police and then being at the police station. When repeatedly challenged in relation to his reports of having no memory of most of the night prior and what it [sic] alleged to have occurred, Mr. Nand was adamant that he has no memory of assaulting the victim. With regard to his attitude in relation to the offences, Mr. Nand stated that notwithstanding his inability to remember what occurred, he is ashamed of his actions, that what he did was wrong, and that it was in response to this that he chose to enter a plea of guilty." 25His Honour observed as to this account: "If that be the assertion of the accused to Mr[sic] Woods it is materially false. Frankly, in the scheme of things, [sic] is patently absurd and reflects, as his evidence reflected before me, no real contrition on his part." 26That conclusion was well open on the evidence. 27Dr Allnut recorded that on 3 February 2012 the applicant told him that: "After this he said his memory was hazy; he recalled taking a train to Quakers Hill intending to return home; he said he passed out and woke up at Central station having taken the wrong line; by the time he had woke up at Central station he had lost his jacket and shirt but still had his bag on his back; he could not recall getting off the train at Central station; his brief stated he was at Ashfield, Central station and Town Hall station but he had no recollection of this. He recalled getting off at Newtown station he thought because he wanted to have a cigarette; he said the victim asked him for a cigarette; he did not recall giving her one; she asked him if he had gone to some clubs and he said no; he then recalled approaching her; he could not recall if he gave her a light for her cigarette; from then on he said he had no clear recollection of what happened; his next memory was of something happening between him and the girl, something sexual, her touching him and him touching her. He then recalled the Police saying "what are you doing, put that sh*t away"; he recalled getting handcuffed; his next recollection was arriving at Newtown Police station; he called his mother and a pastor that he was getting charged." 28Dr Teoh recorded that on 10 February the applicant told him that he had only a vague recollection of the conversation with the victim, who he did not know. 29In the April 2012 pre-sentence report which was prepared after consultation with the applicant in March, it was observed that the applicant claimed limited memory of the offences, due to his level of intoxication. He said he understood the seriousness of his offences and accepted full responsibility for them, but emphasised the role that drug and alcohol taking had played. 30Dr Kavanagh's report noted that the applicant had told her in March 2012 that he remembered waking up at Central and then everything was a blur until he got to Newtown. There he became involved in a conversation with the victim, who asked him for a cigarette. The victim had then begun to fondle him and he began to fondle her. He remembered that "we were doing something together", but denied remembering having sex with her. This account was also patently untrue. There was no mutual sexual activity. It was inconsistent with the agreed facts and with what was depicted on the CCTV footage, with which Dr Kavanagh had been briefed, as Dr Kavanagh observed at page 4 of her report. It was also inconsistent with parts of the applicant's evidence. 31The applicant apologised to the victim in his evidence, expressing his remorse and contrition. The applicant's evidence also included, amongst other things, that he had become remorseful for his offence, when he sobered up the day afterwards. His Honour did not consider what he had said to be genuine or timely enough to be given much weight. That conclusion was understandable, given other evidence which the applicant gave. 32The applicant was cross-examined about his various accounts and Norrish DCJ also asked him some questions. He then said that he had spoken to the victim who had asked him for a cigarette and that they had spoken about going to a club earlier that night, before he assaulted her, which he did not recall. What he did recall was her fondling him and him fondling her. He recalled her touching his leg, but he did not notice whether her eyes were open. He could recall touching her, but not where, and then being arrested. He did not remember using his phone. Nor did he remember what he told police, although he immediately realised he was in trouble, because he was in breach of his parole conditions in relation to use of drugs and alcohol. He denied being immediately aware of being in trouble because he had sexually assaulted the victim. 33He explained, when further questioned about his remorse, that what he meant was that he was initially remorseful for being back in prison and letting his family down. He explained that he had become remorseful for what he'd done to the victim, after he was told about the iPhone footage in November 2011. 34In response to questions asked by Norrish DCJ, the applicant then said that he had earlier been told by his previous lawyers that there was CCTV footage showing him sexually assaulting the victim and that he'd filmed the assault on his phone, around the time of committal. He also said that he had received the brief a few days before his first court date and it was then that he had realised that he had done something really wrong. He said that at the time of the assault, he "wasn't there mentally". The applicant also said that he first saw the footage on 28 November 2011, after he had instructed his new legal representatives and that he did not see any material prior to his committal. 35On further questioning by his Honour, the applicant agreed that before the committal he was aware that the assault had been recorded on the CCTV footage, but he said, "I didn't know of any of the iPhone footage". When this was challenged he said, "I knew I filmed it but I didn't know what was on it", but he agreed that he knew that the victim was a complete stranger and that he had lied to police when he told them that he knew her. His explanation for having, in those circumstances, pleaded not guilty was "[f]or the simply[sic] fact I wasn't there. I wasn't there in my mind whatsoever so I didn't know to the full extent what occurred." 36The applicant also said that before 28 November he had not been briefed as to the content of the iPhone video, which he understood his new legal representatives had seen for the first time on 23 November and that it was on 28 November that he first received advice as to its impact on his case. 37On further questioning by his Honour as to why he had earlier declined to provide his pin code to police, the applicant then agreed that he was then aware that he had filmed the assault and that he had rung his mother from the police station and told her that he had had intercourse at the station. Later, however, he again said that he did not know that he had filmed the assault on his phone. 38This inconsistent, contradictory evidence well explains the adverse view which his Honour took of the applicant's honesty and reliability. 39Evidence was also called from the Senior Chaplain at Long Bay Correctional Centre, Pastor Ring, who said that when the applicant first went into custody, he found him to be in denial, not giving any consideration to his victim. It was in the past four to five weeks that he had come to some understanding of what she had gone through. 40The applicant's sister's evidence was that the applicant was very remorseful, realising since the entry of his plea the need for him to take responsibility for his actions. Evidence from Pastor Seneviratne, who was from the accused's Christian community, was that the applicant claimed to be hazy in his recollection of the offence, which his Honour did not accept to be the genuine situation. 41It was submitted for the applicant on sentencing, in written submissions, that he should receive a 12.5% discount for his plea and that his lack of early legal instruction to bring the matter to an end could be attributed to his degree of intoxication and substance abuse at the time of the offences. It was not suggested that the late plea was as the result of any deficiency in his prior legal representation. That, however, was raised in oral submissions, with the result that his Honour took a view of the circumstances favourable to the applicant and concluded that he should have a 12.5% discount for his late plea, observing: "The only reason I am giving the prisoner a discount above the minimum ten per cent that ordinarily would be given in such circumstances is to recognise the saving of the victim having to come along to this Court and give evidence of this no doubt horrific experience. However, it is to be pointed out that the prisoner's complete failure to address his responsibility from the outset kept the victim in a state of uncertainty for far too long." 42While his Honour took an unfavourable view of the honesty and reliability of the applicant's evidence, he accepted that his plea was entered late because of the legal advice he had received. On appeal, the applicant relied on Norrish DCJ's observations that: "The prisoner gave evidence in the proceedings which was more revealing than perhaps he intended it to be. His evidence was concerned with the timing of his plea and, in the context of his expressions of contrition, for what had occurred between himself and the victim. I interpose for a moment to point out that the prisoner did not formally plead guilty to this matter until 31 January, 2012 having been charged on the 16 December, 2010. There had been a trial date fixed for 30 January, 2012, there having been a previous trial date fixed for 19 September, 2011, the matter not proceeding because of what was claimed to be "new evidence" in the possession of the Prosecution. I accept from the evidence available to me that the prisoner's decision to plead guilty followed upon a conference he had with his legal advisers in November, 2011 but was not conveyed to the Crown until about 27 January. It would seem, on the way in which the matter was conducted and in the tenor of the evidence of the prisoner, that the blame for the delay in the plea of guilty was in part to be laid at the feet of the prisoner's former legal advisers. The facilitation of the pleas of guilty on the advice of the prisoner's current legal advisers is to be commended." 43The applicant contended that in the result, inadequate account had been taken of this conclusion, with the result that he received only a 12.5% discount, rather than the 25% he would have received, if his plea had been entered earlier. 44That case was not made out. The applicant obviously has difficulty accepting responsibility not only for his offences, but also for the decisions which he made as to how he was going to conduct his case. 45As to his conduct his Honour observed: "He gave an account as I said earlier that he did not know that he was responsible for what he did until he received the brief of evidence. He reiterated to this Court that he had no real memory of the relevant matters giving rise to the charges. He, at one point, denied telling lies to the police about his relationship with the complainant. He also, in his evidence, said that he did not know what precisely he had filmed. He claimed that he could not remember what he told the police or what he told his mother when he rang her. He seemed to suggest, as I read his evidence from the transcript, that he did not fully appreciate the extent of the allegations against him until he had a conference with his "new" legal advisers on 28 November, 2011. He claimed before me that he did not know that he had put his penis in the mouth of the complainant until he saw the brief, that he had told her to spread her legs out, that he said that she was tight or any of the other things that he is recorded saying on his iphone. None of this can be true. It is contradicted not only by his own recording but by the closed circuit television showing the deliberation in which he set about sexually assaulting the complainant and the deliberation shown in the police evidence of his avoidance of responsibility by falsely pretending that he was a friend of the complainant. When asked about his assertion that he could not remember having filmed the complainant being sexually assaulted at the time the police had asked him for the password to his iPhone he said this, "I was told that I was doing the filming but at the same time I did have my phone out but I was listening to music at the same time so I remember that because I had my music on all, pretty much the whole night so I had the iPhone always with me...in my hand so I could have been doing anything with it." This is, frankly, an extraordinary claim to be made on 5 April 2012, given the fact that at that stage he could not claim that he had not been informed of the allegations against him. I asked him this question, "Q. When the police were speaking to you, you knew that you'd filmed a sexual assault, is that right? A. I didn't think that far into it. Q. What do you mean by "I didn't think that far into it"? A. Well, I was that induced on what I was intoxicated on that instant for on instinct someone asks me about my, like my mobile phone and can I get the password to it, I'm saying, no." Then later on he was asked, "Q. Do you know that you'd filmed the sexual assault on your iPhone at the time you were arrested by the police? A. I don't know." I regard that evidence as untruthful. When he sought to assert in his evidence that he was truly remorseful for what he had done, he was questioned by me as to when he became remorseful for what he had done. Ultimately it was clear by his own evidence that his remorse was simply a case of feeling sorry for himself and his family that he was in the trouble that he was. He admitted in his evidence before me that his first remorse was felt by him when his lawyers had told him what he had done, as he explained it, in November 2011. He was asked again by me, "Q. Mr Nand, you knew after the event, immediately after the event, did you not that you'd done wrong, that you'd had sexual intercourse with a woman who was unconscious or asleep on a railway station, you knew that, didn't you? A. I didn't know directly after the event, no." That evidence was clearly untruthful, in my view." 46These conclusions were open and well explain the sentence which Norrish DCJ imposed on the applicant. 47On appeal, the unchallenged affidavit evidence of Mr Van Houten, Mr Kumarasinhe and Mr Shridhar, who were all engaged on the day of the applicant's arrest, established that the timing of the entry of the applicant's late plea was not the result of their inadequate advice. The applicant first received advice on the day of his arrest from Mr Shridhar, while he was at Newtown Police Station. His mother was present. He was subsequently advised by Mr Kumarasinhe, who appeared for him later that day in the Local Court, when the applicant did not apply for bail. 48Police were then seeking access to his mobile phone and his consent to a buccal swab. The applicant's instructions to Mr Shridhar were that he had had sex with a female who he knew, on a platform at Newtown railway station; that he had filmed this on his mobile phone; and that he did not want police to have his pin number, to access his phone, or to obtain the video footage. 49When Mr Kumarasinhe appeared for the applicant in the Local Court, police still wanted access to his mobile phone. The applicant also instructed Mr Kumarasinhe that he did not dispute having had sexual intercourse with the victim, but instructed that he knew her; that he had videotaped the incident; and that he did not want police to have access to his iPhone pin number. 50The applicant later entered a plea of not guilty to the charges and the matter was listed for trial in September 2011. 51On 7 July 2011, Mr Van Houten and Mr Kumarasinhe attended a conference with the applicant. His instructions were then that when he got off the train at the station and walked past the victim, he heard her say, "Hey were you at the club tonight?" He told her that he did not attend any clubs that night. They talked for a while and then the victim touched him on the penis, unbuttoned her jeans and wanted him to help her. She performed oral sex on him. A passenger on a train yelled at him. He had filmed their sexual intercourse on his phone. It was by consent and he did not want police to access the footage. He then said he could not remember his pin number. This account was patently untrue. 52The applicant was then also reminded of the existence of the CCTV footage of the assault. He was advised of the discount available for an early plea, the standard minimum term which applied to the offences and Judicial Commission sentencing statistics. The applicant nevertheless instructed that he wished to maintain his not guilty plea on the basis of the victim's consent. 53Mr Van Houten's retainer ceased in October 2011, after the first trial was adjourned. 54None of this evidence was challenged by the applicant. It was inconsistent with parts of the evidence which he gave at the sentence hearing. That evidence itself was inconsistent and contradictory and contrary to aspects of the agreed facts. The applicant's evidence led Norrish DCJ, properly, to form an adverse view of the honesty and reliability of his evidence and the accounts which he had given to experts who had examined him. 55The applicant, nevertheless, submitted on appeal that his initial legal advice was inadequate; that he was not made aware of the contents of the brief, and in particular the contents of his mobile phone. The result was that he was unable to enter an early guilty plea. If he had received the necessary information and advice about the contents of his phone, he would definitely have entered an early plea. It was when he was made aware by his new legal representatives of the contents of the iPhone and the Crown case against him, that he entered his plea. 56Those submissions cannot be accepted in the face of the uncontested evidence of Mr Van Houten, Mr Kumarasinhe and Mr Shridhar. Their evidence must be accepted, revealing as it does the falsity of aspects of the evidence which the applicant gave at the sentencing hearing. In the face of that unchallenged evidence, it is apparent that his Honour's conclusions as to the advice the applicant had received from them, were not properly available. 57This evidence established not only that the applicant lied to police on arrest, but that he had given instructions to those who initially represented him, that he wanted to defend the charges on a basis which he knew was false. The case which he advanced in relation to his earlier legal advice before Norrish DCJ was factually incorrect. It was plainly not inadequate legal advice which led the applicant not to enter a guilty plea before the first trial. He then well knew that he had committed the offences he was charged with and had received advice of the advantages which could flow from early entry of a plea. 58On arrest the applicant was aware that the victim was a stranger and that what he had filmed on his iPhone would help establish that his claim that his intercourse with the victim had been consensual was false. That was why he wished to prevent police gaining access to the film. 59Despite this knowledge and the legal advice he had received, in July 2011 he persisted in defending the charges on the basis that the intercourse had been consensual, even after being reminded of the existence of the CCTV footage and his iPhone recording of the assault and being advised of the discount available to him for an early plea, the standard minimum non-parole period for the offences and Judicial Commission sentencing statistics for such offences. 60The agreed facts later tendered at the sentencing hearing in 2012 confirmed that the victim was a stranger, that the intercourse was not consensual and that he had filmed the assault on his phone. This was known to the applicant long before he received advice from his new legal advisers in November 2011. 61The evidence received on appeal also confirms the correctness of the conclusions reached by Norrish DCJ, who saw both the CCTV and iPhone footage of the assaults, that the applicant was not a reliable historian and had given evidence which could not be accepted. Those conclusions were relevant for a number of considerations in the sentencing exercise, including for an assessment of his remorse and contrition. 62It is in those circumstances that the applicant's case on appeal, that inadequate initial legal advice had deprived him of an opportunity earlier to enter a guilty plea and to express his remorse and contrition, must be rejected. 63Had the evidence led on appeal without objection from the applicant's former legal representatives been available to Norrish DCJ, the 12.5% discount which he received may not have been available. Section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires a sentencing judge to take into account an offender's plea of guilty, but entry of such a plea does not require that a lesser penalty be imposed. That is a matter of discretion. There are circumstances in which an offender will not receive any discount, even after entering a plea. 64In R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 the guideline judgment on utilitarian discounts given for guilty pleas, Chief Justice Spigelman explained the operation of discounts granted in the range of 10-25%. His Honour said at [153] - [158]: "153 The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. 154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 156 Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options. 157 There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate. (See e.g. R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen [1989] 11 Cr App R (S) 182 at 184). 158 There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea. (See e.g. R v Kalache [2000] NSWCCA 2, see esp per Sully J at [38]-[42])." 65In this case it was well open to Norrish DCJ to find that the applicant had no true remorse or contrition for his offences. It appears that the pleas were finally entered late, only in recognition of the inevitability of his conviction. 66There was no error in his Honour's exercise of the discretion to give a utilitarian discount of 12.5% for this late plea, entered after the adjournment of the first trial, long after the applicant was advised of the benefits potentially flowing from an early plea, which he received before the first trial. In the circumstances, that was an entirely lenient approach. Had the true circumstances been revealed, in my view, the applicant would not have been entitled to any discount. 67No error has been shown and accordingly, this ground of appeal must be dismissed. Ground 2 - failure to examine medical reports 68The applicant's case was that his Honour failed to pay proper regard to the medical reports in evidence, which demonstrated a substantial link between his chronic and heavy polysubstance abuse and the sexual assaults which he had he suffered as a child, which he submitted played a significant part in these offences. 69This ground of appeal was also not established. 70The case advanced for the applicant in written submissions on sentencing was that at the time of the offences he was suffering from a mental disorder associated with substance abuse and that his offences had been committed while he was under the influence of substances. 71In his evidence in chief the applicant had acknowledged that he needed treatment for drug and alcohol problems, as well as in relation to sexuality matters. He said those programs were not available to him in custody, until after sentence. He agreed in cross-examination, however, that while in custody for earlier offending, he had participated in both the SMART drug and alcohol program and the CUBIT sex offender's program, the latter continuing once a week, after he was released on parole. He was thus still receiving that treatment, when he committed the further offences for which he was being sentenced. 72The applicant also gave an account of his earlier offending. He said he remembered that in 2004 he broke into a house to support his drug habit and sexually assaulted a woman there, although he did not remember the details of the assault, or what he had then said. He also remembered details of having broken into another house in 2006 to support his drug habit and committing another sexual offence there on a young woman. 73The applicant gave evidence of having abused drugs for over 15 years. He said that he no longer wanted to have such problems. 74Associate Professor Woods' report outlined a history given by the applicant on 2 and 8 February 2012 that the applicant had been sexually assaulted between about the ages of 9 or 10 and 12 years, by a male friend of the family who babysat him after school. He later used marijuana to stop thinking about the abuse and said that he had not disclosed the assaults earlier, because he did not want it to be thought that he was trying to make an excuse for what he had done. He also recounted a history of drug abuse from the age of 14, with weekly marijuana use increasing to daily use by age 15, use of MDMA and amphetamines, together with alcohol from age 16, weekly use of Rohypnol from age 17 or 18 and methamphetamines from age 20. This pattern persisted until his incarceration in 2007. He had used marijuana on only one occasion in custody. He had resumed drug use after his release in September 2010, because of social isolation. He had then renewed contact with former associates. 75On 3 February 2012, the history given to Dr Allnutt was of drugs and alcohol making him more impulsive; that he had been sexually abused at about age 7 or 8 by a family member; and that he had only revealed this abuse recently to his sister. He reported that ecstasy use increased his sex drive, making him feel powerful and unstoppable. 76On 10 February 2012, the history he gave Dr Teoh was that he had used cannabis and alcohol since age 14 and heroin, ice and valium use since age 16. Prior to his arrest he smoked cannabis daily. He had received no counselling for his substance abuse apart from the SMART program. He also reported sexual abuse from age 9 to 12 by a family friend, which he had first disclosed to his mother a year previously. 77In the April 2012 pre- sentence report, the applicant gave no report of having been the victim of sexual assaults as a child. He said that his behavioural problems at school had been due to the stress of domestic violence between his parents. He reported drug abuse and suffering from depression, for which he had not sought treatment. He reported daily cannabis use from age 14, amphetamine use from age 18, at times daily use of speed and ice and thrice weekly use of ecstasy, as well as daily drinking a 700ml bottle of spirits. 78In written submissions advanced on sentence the defence case was that the applicant was not suffering from a mental illness, but from a mental disorder associated with substance abuse. In Dr Allnutt's opinion he had an underlying deviant sex drive which probably becomes uncovered when intoxicated. In the result rehabilitation which addressed both his drug and alcohol problems was imperative. Dr Teoh had diagnosed polysubstance abuse, onset from age 14, which had contributed to the offences and impaired his judgment. He required treatment for substance abuse and participation in the sex offender program. Dr Teoh also considered that his history of sexual abuse had contributed to his mental state. Dr Kavanagh did not diagnose the applicant to be suffering a major mental illness, but having a past history of depression and adjustment disorder, with significant past substance abuse and the need to examine the possibility of paraphilia. 79It was submitted orally that the programs he had earlier participated in had not had a positive effect upon him. It was accepted, however, that not reoffending was a matter for his own conscience and that he had undertaken drug and alcohol counselling while last in prison, as well as a program for sexual offenders. It was also accepted that the fact that he had abused drugs and alcohol upon release on parole, might help explain his offending, but did not excuse it. The objective seriousness of his offending was not disputed. 80It was submitted in the context of the standard 7 year non-parole period, that the applicant's offending fell within the mid-range. Committing these offences shortly after being released in parole was also accepted as being an aggravating factor relevant to sentencing. 81Norrish DCJ paid careful attention to the medical reports in evidence, and the opinions there expressed, in light of the other relevant evidence, including the agreed facts and the applicant's own evidence and the submissions advanced for the applicant. He found, as I have explained, that the applicant was not a reliable historian and that affected the weight which could be given to the medical reports on which he relied. There was no error in those conclusions. 82Norrish DCJ concluded that insofar as the reports and opinions in evidence depended on the truthfulness and reliability of accounts which the applicant had given their authors on critical matters, he could not give them much weight. He noted that the accused's accounts of drug taking, treatment for sex, drug and alcohol abuse, and sexual abuse had varied considerably and had been inaccurate in parts. His Honour observed that: "In each of the interviews conducted by the professionals retained by his legal advisers, the reasons given for his commission of these crimes are related to the extent of his drug and alcohol ingestion. As a historian in relation to this aspect of the matter I do not regard him as reliable. He is simply not a truthful or reliable historian. He, in some of the reports, makes claims of sexual abuse only recently reported to his family." 83His Honour also noted references such as those in Dr Allnutt's report, to a long history of substance abuse and sexual abuse as a child. His Honour observed that the applicant's return to drug taking soon after his release on parole for prior sexual offending, together with these offences suggested that the applicant was developing the characteristics of a sexual predator. His Honour took the view that substance abuse had played a major role in the applicant's charges and convictions for sexual offending against strangers. 84His Honour considered, nevertheless, that the applicant's intoxication provided no excuse for his offending. Having seen the CCTV and iPhone footage, he found that the applicant had not been intoxicated to the extent which he claimed at the time of these offences. He also concluded that no mental disorder had contributed to the commission of the offences. He observed that: "The fact that he is more vulnerable to crimes of sexual violence in that state represents a matter of concern as to his danger to the community in a similar way, but not exactly the same way, as Robert Vincent Veen presented to the community in the circumstances where he was dealt with in 1987 and 1988." 85His Honour concluded: "I have come to the conclusion, although it was not a matter dwelt upon in the course of oral submissions, that no issue on the evidence available in this Court arises requiring consideration of the principles that were summarised in the decision of R v Hemsley [2004] NSWCCA 228. In that judgment at [33] Sperling J sought to summarise where mental illness may be relevant, for example to lessen the weight to be given to general deterrence amongst other matters. Here there is no evidence of mental illness on any view of it and conduct disorder or substance abuse disorder, even if correctly diagnosed, does not explain or provide any real justification for the prisoner's conduct. Even if it could be argued for some reason that does not appear from the evidence that the weight to be given to general deterrence may be diminished to some extent by reason of the opinions of Dr Teo[sic] and Dr Allnutt and to some extent Dr Cavanagh[sic], the diminution would only be marginal and very strongly offset by what was contemplated by (as he then was) Gleeson CJ, in the decision of R v Engert (1995) 84 A Crim R 67, in which he noted that: "The presence of a particular disability, whilst it may operate to diminish the need to be given to general deterrence, may require greater weight to be given to personal deterrence." The fact that the prisoner is susceptible to acts of sexual violence when intoxicated in circumstances where he has previously been given the benefit of the Cubit Program and Smart Program in custody before he was released from custody is no comfort for the victim, the community and offers little consolation for the future. It certainly reduces the confidence one would have in the ability of the prisoner to react favourably to parole supervision." 86His Honour thus concluded that these were objectively serious offences failing above the mid-range, not in the worst category, but not far removed from that position. He noted the humiliation caused to the victim, given that the offences had occurred in public, in view of others and that they had been filmed. He took into account aggravating matters as s 21A of the Crimes (Sentencing Procedure) Act required, namely that the applicant had previously been sentenced for serious personal violence offences; that the harm to the victim had been substantial; and that the offences were committed while the applicant was at liberty on parole. The mitigating matters taken into account were the guilty plea and that the offences had not been planned. His Honour could not find that the applicant had accepted responsibility for his actions and properly acknowledged the harm he had caused "given the manner in which his contrition has emerged from his own version of events". 87His Honour also considered the need to promote the applicant's rehabilitation, but concluded that he needed to be deterred from further offending and that others needed to be deterred from offending in this way, which he found had involved "outrageous conduct in a public place". Those considerations, as well as "the need to ensure that the prisoner is sufficiently punished and made to account for his crimes", led his Honour to the view that the sentence which he imposed was required. 88On the evidence, these conclusions were all properly open. His Honour paid proper regard to the medical reports in evidence as well as to other matters which had to be taken into account in the sentence exercise. He was entitled to give these reports the weight that he did, resting as they did on the applicant's inaccurate and unreliable accounts. 89The sentence imposed was, in all of the circumstances of this offending, not a heavy one, despite the adverse views which his Honour formed of the applicant's evidence and the weight which could be given to the medical reports relied on. 90The matters advanced by the applicant do not establish any error and so this ground, too, must be dismissed. Ground 3 - sexual abuse was not adequately taken into account 91The applicant submitted that Norrish DCJ had failed to explore his subjective case of sexual abuse at a young age and had been dismissive of its impact, despite the comprehensive reference in Associate Professor Wood's report to correlations between childhood sexual assault and adverse psychological and social outcomes. 92The applicant did not give evidence about these matters at the sentencing hearing and they were not pursued in submissions. I have earlier explained the inconsistent accounts which he gave of having been the victim of sexual assaults while a child and Norrish DCJ's views as to the unreliability of his accounts and the weight which he could accordingly give to the expert reports which rested on these accounts. 93In written submissions on appeal the applicant relied on evidence of what was submitted to have been a confession by a family member who had abused him, which he said had been tendered to this Court in September 2013. There was no such evidence. The matter was before the Registrar that day. Documents filed were not tendered then, or at the hearing of the appeal. 94After the hearing this issue was raised with the parties, who were given the opportunity to make further submissions. The Crown submitted that the material sought to be relied on was not in admissible form and did not, in any event, establish that the applicant had been sexually abused as a child, as he had submitted. At its highest, it was submitted, the material exchanged on Facebook, suggested "two kids looking at dirty magazines and innocently acting out". 95The appellant made no further submissions. In the result, I would not receive this material as new evidence on the appeal. Even if it were received, it would support the view taken by Norrish DCJ as to the unreliability of the various accounts given by the applicant of the sexual abuse which he claims to have suffered. 96In my view there was no error in Norrish DCJ's approach to this evidence. In Dousha v R [2008] NSWCCA 263 it was observed at [47]: "47 The applicant conceded on the appeal that there was no direct evidence that the single incident of abuse he suffered as a child had in any way contributed to his offending as an adult. Although the psychologist's report made reference to a body of research suggesting that a percentage of sex offenders have themselves been sexually assaulted during childhood, and that this in turn has contributed to the development of aberrant sexual behaviour in adult life, she did not consider that the incident reported to her by the applicant had contributed in any way to his offending. In the absence of any causal connection of that kind (or the issue having any bearing upon the applicant's prospects of rehabilitation) I am not satisfied that the incident was relevant to the sentencing discretion (see R v Cunningham [2006] NSWCCA 176 at [67])." 97In the applicant's case Associate Professor Woods had annexed to his report a document outlining the long term implications of childhood sexual abuse and in particular, the use of substances to self-medicate. Associate Professor Woods did not consider the applicant to be suffering from major psychiatric illness, despite his entrenched and clinically disturbing history of polysubstance abuse. He noted that Mr Nand reportedly relied on marijuana to self-medicate recurrent distressing memories of being sexually molested. 98This was a matter to which his Honour paid regard. Norrish DCJ did not consider the applicant to be a truthful or reliable historian, but said he was unable to conclude that the applicant's claims of sexual abuse, only recently made, were false. His Honour concluded, however, that: "There seems to be no evidence available to me of any reliability to provide any connection between those matters and the circumstances of the commission of these offences with which I am concerned." 99That conclusion was plainly open on the evidence. No error has been shown and in the result, this ground, too must be dismissed. Orders 100For these reasons, I would order that leave to appeal be granted but the appeal be dismissed. 101BELLEW J: I agree with Schmidt 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2014