Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gregory John Walsh v R [2015] NSWCCA 83 Hearing dates: 24 March 2015 Date of orders: 08 May 2015 Decision date: 08 May 2015 Before: Hoeben CJ at CL at [1] Adams J at [2] McCallum J at [25] Decision: Leave to appeal granted Appeal dismissed Catchwords: CRIMINAL LAW – appeal against sentence – aggravated sexual assault – if incongruity between aggregate sentence and indicated sentence – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Pearce v R [1998] HCA 57; 194 CLR 610 R v Rothapfel (NSWCCA 4 August 1992, unreported, Mahoney JA, McInerney and Studdert JJ) Category: Principal judgment Parties: Gregory John Walsh (plaintiff) The Crown (defendant) Representation: Counsel: Mr A. Bellanto QC (applicant) Mr K. Alder (Crown) Solicitors: Mark Mulock & Co. (applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/36190 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 31 January 2014 Before: Hanley DCJ File Number(s): 2011/00036190 Judgment 1. HOEBEN CJ at CL: I agree with Adams J. 2. ADAMS J: 3. On 11 December 2013 the applicant was convicted by a jury of two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW) and two counts of attempted sexual assault contrary to s 61J(1) and s 61P. All four offences were committed in the early hours of 1 January 1992. The victim was a babysitter, then aged 57 years, who was sleeping in the house of the children under her care. The circumstances of aggravation were the same in respect of each count, comprising injuries inflicted to the victim. The applicant was sentenced to an aggregate period of 7 years commencing 9 December 2013 with a balance of term of 3 years. The indicated sentences were, in respect of the sexual intercourse offences, each a term of 7 years with a non-parole of 5 years and 3 months and, in respect of the attempted offences fixed terms of 3 years. 4. The applicant sought leave to appeal against the sentences, on the following grounds – Ground 1: there was an incongruity between the aggregate sentence imposed and the indicated sentences. Ground 3: the aggregate sentence imposed was manifestly excessive and outside the applicable range. Facts 1. These were not contested on appeal and have largely been drawn from the reasons of the learned sentencing judge. On 31 December 1991 the victim, aged 57 years, was babysitting at the home of two young children. The children went to bed in the same bedroom at about 9:30pm and sometime later the victim went to bed on the bottom bunk in the same bedroom. She was wearing a nighty and underpants. At about 5:00am she felt the applicant, who had entered the house through an open window, put his hand over her mouth and told her to "shut up" and "be quiet". He said that she knew who he was (although he lived in the same street as the parents, in fact the victim did not know him). It was dark in the room because the blinds were drawn. The applicant pinned the victim's arms to the bed by kneeling on them and then hit her violently to the face. She was crying and terrified. The applicant pulled her off the bed, took off her underwear and forced her into a kneeling position with her back towards him. He penetrated first her anus and then her vagina with two fingers. He removed his penis from his trousers, ejaculated onto a pillow that was on the floor and then attempted to insert his penis into her anus and her vagina. However, it was flaccid and he was unable to effect penetration. He then pushed the victim away and left the room. The applicant had been in the bedroom for about 15 minutes. 2. The victim called her daughter and the police. When she was examined at the hospital the following injuries were found: a laceration to the right side of the upper lip; swelling to the left side of the face and upper jaw; grazes to the chin; a bruise to the left cheek; scratches below the eye and nostril; a loosened tooth (which she subsequently lost); bruising to the upper arm; a 2cm bruise and swelling in the vaginal area; and a 2cm tear to the anus. These injuries were obviously very painful. 3. The pillow on which the applicant had ejaculated was subjected to DNA testing and samples preserved in the laboratory. Years later the applicant's DNA was uploaded to the database and matched the DNA profile from the semen stain. This cold case matching led police to identify the applicant as the offender and he was arrested on 3 February 2011. Subjective features 1. The applicant was the youngest of seven, his parents separating at his birth and thereafter his mother entering into a relationship with an alcoholic who was extremely violent towards his mother and the applicant over a lengthy period of time. Because of this the applicant left home at fourteen years of age and, obtaining his own accommodation, his mother joined him sometime later. The applicant obtained employment to support himself at a time when he was ill equipped to obtain good work because he was almost illiterate. With his mother's help, he learned to read and write competently. When he was nineteen the applicant met his wife and was able with his savings to buy a home. He has been regularly employed all his life and never been on the dole. He held some managerial positions at the factory where he worked and also worked as a landscaper. 2. In 1996 the applicant was convicted of dangerous driving causing death and dangerous driving causing grievous bodily harm for which he was sentenced to concurrent terms of imprisonment comprising an overall sentence of 6 years 3 months with an effective non-parole period of 4 years 3 months. Whilst serving this sentence he and his wife separated and they were ultimately divorced and, as he said, signed over the house to his wife. They had a daughter who now lives with his ex-wife and her partner. He has a close relationship with his natural daughter and his stepdaughter. He had a subsequent relationship that lasted five years, during which he claimed he was subjected to domestic violence. At the time he was arrested for the present offences he was living with his brother. 3. Evidence was given on the applicant's behalf by a family friend who had known the applicant for 30 years and his stepdaughter whom he is obviously very close. Both said that, in their experience, he was respectful towards women and had never been violent towards them. Although he was convicted in September 2009 of the offence of using a carriage service to threaten serious harm, the witnesses said, in effect, that this might have been said in the heat of the moment and that they did not believe at all that he would ever carry through with such a threat. Significantly, the applicant, who gave evidence, maintained that it was not he who attacked the victim. As he said, "My heart goes out to her but what was done to her was not done by me". 4. A psychologist's report was tendered which expressed the opinion that, due to the applicant's background, in particular, the violence to which he was subjected when young, he suffered from Chronic Post Traumatic Stress Disorder. The judge observed that neither the applicant's traumatic childhood nor his Post Traumatic Stress Disorder can be linked to the commission of the offences. Criminal record 1. The applicant had a criminal record of moderate length involving a number of relatively minor offences, commencing when he was seventeen years of age. The most serious of these matters were the dangerous driving offences committed in 1996. The only subsequent conviction was in September 2009, which has been mentioned. He was on bail for an offence of breaking and entering with intent at the time of the present offences. Assessment by the sentencing judge 1. The judge considered that there was no significant distinction between the acts of penetration. Aggravating features were that the victim was (for practical purposes) at home, being there at the invitation of the owners and having their young children in her charge. She was subjected to a number of violent blows which caused significant injury and was in considerable pain both during the attack and afterwards. She suffered psychological damage that was revisited following the need to give evidence in the trial against the applicant. She was subjected to the humiliation of having her clothing removed and being forced into a kneeling position. On the other hand, there was no evidence of any significant degree of planning, the crime being an opportunistic one that presented itself when the applicant saw the open window. 2. His Honour found that "it is no benefit to the offender that the … [attempted] intercourse was unsuccessful due to the fact that [the applicant] had already ejaculated". As a general rule, the objective seriousness of an attempted offence will, for obvious reasons, be less than the completed offence. It seems to me, with respect, that here the fact that the attempted assaults were unsuccessful renders the attempts objectively less serious than would have been the completed offences. It is clear from the indicative sentences that the judge, indeed, had regard to the less serious character of the attempted offences. I take his Honour's comment to mean that the moral (as distinct from the criminal) culpability involved in the attempts was not lessened by lack of success. 3. In determining the seriousness of the offence, the sentencing judge said that he took into account, in addition to the violence of the assault and the nature of the injuries, "the fact that it was clear that the offender knew that [the victim] was not consenting to the offences that were perpetrated against her". This observation was made in the context of assessing the aggravating features of the offences. Since the fact that the offender knew the victim was not consenting is an element of the offence itself, it cannot be regarded in aggravating its seriousness. However, I think this observation should be read merely as a description of the character of the crime, demonstrating how serious it is, rather than as identifying an aggravating feature. 4. The judge (rightly, with respect) gave the applicant's criminal history only limited significance in reducing the leniency that might otherwise be extended to the applicant, since his offences were (except for the dangerous driving matters) both relatively trivial and altogether different from those for which he was being sentenced. His Honour observed that the applicant's history, particularly following the dangerous driving charges, suggested (except for the 2009 offence) that he had been substantially rehabilitated. He did not think that the criminal history indicated that any particular emphasis should be given to the requirement of specific deterrence. Historical offences 1. The sentencing judge noted that the offences were committed in 1992 and it is therefore appropriate to sentence in accordance with the sentencing patterns of the time. His Honour accepted that, generally speaking, sentencing practice had moved adversely to offenders in recent times and this must be taken into account. He noted that, for the present, the seriousness with which these offences are now treated is demonstrated, amongst other things, by the stipulation of a 10 year standard non-parole period for a case in the middle of the range of objective seriousness. The Crown provided the sentencing judge with a number of judgments of this Court dealing with sentences that were reviewed at or about the time when the offences were committed. His Honour took these judgments into account noting, however, that each case is determined upon its own facts. His Honour observed that it was the usual practice at the time that multiple offences not dissimilar to those committed by the applicant were dealt with by imposing totally concurrent terms of imprisonment but he thought this practice was not consistent with the law as expounded in Pearce v R [1998] HCA 57; 194 CLR 610. It seems that, for this reason, his Honour accumulated one or both of the sentences for the attempt offences, as distinct from following the earlier practice. In my respectful view, his Honour was correct to take this approach as a matter of principle. This is not at all a substantial departure from earlier sentencing patterns to the detriment of the offender, although it applies a different structure. Ultimately, the question, when comparing past approaches to the present, must be the same as that asked when considering whether the concurrency or accumulation of sentences for multiple offences has resulted in an inappropriate overall sentence, namely whether it reflects the total criminality involved. 2. The applicant produced to this Court a table of cases obtained from the Public Defenders dealing with sentences imposed for aggravated sexual assaults contrary to s 61J of the Crimes Act. The details given provide some, but not much, basis for comparison. It is sufficient for present purposes to note that the table shows sentences for roughly comparable objective circumstances which straddle the sentence under present consideration. Mr Bellanto QC for the applicant candidly conceded that one could not draw from the table the conclusion that the sentence in this case was out of kilter with the sentences more or less contemporaneous with the date of the commission of the applicant's offences. However, he submitted that a case which did show a departure from contemporaneous sentencing levels was R v Rothapfel (NSWCCA 4 August 1992, unreported, Mahoney JA, McInerney and Studdert JJ). This was an appeal by the Director of Public Prosecutions against the inadequacy of sentences imposed for offences of breaking and entering with intent to steal, armed robbery (using a knife), the infliction of actual bodily harm with intent to have sexual intercourse, indecent assault and attempted sexual intercourse without consent. The sentences respectively imposed were terms of imprisonment of two years, five years with a non-parole period of four years, a fixed term of three years, a fixed term of eighteen months and a fixed term of three years imprisonment. All sentences were entirely concurrent, giving an effective sentence of five years with a non-parole period of four years. The offender, who was intoxicated, forced entry through a window in the premises occupied by the 71 year old victim. The circumstances of both the robbery and the sexual assaults were terrifying, involving threats with knives which he took from the kitchen, including a threat to "slit her throat". A medical examination revealed several bruises, a laceration to the left middle finger, and tearing of the anal margin. The effects on the victim were devastating. The offender was twenty years of age, left school at year 8 and home at fourteen, and lived as a squatter in various cities; for three years before his sentence he was unemployed and a regular abuser of alcohol and illicit drugs. The pre-sentence report assessed him as "a manipulative and violent individual and a continuing risk to the community". He had a relatively trivial criminal record. The offender gave evidence of contrition and accepted his need for rehabilitation from drugs and alcohol. He pleaded guilty on the first day of trial. The Court declined to disturb the sentences in respect of the first and fourth offences but, in relation to the second, third and fifth offences imposed, respectively, terms of eight years with a non-parole period of six years, five years and five years, all sentences to be served concurrently. The Court made the point that (as was the practice at the time with successful Crown appeals against sentences) the resulting terms were not at the level which would have been appropriate at first instance. It should also be noted, in fairness, that, in 1992, only slight allowance was made, if any, for the utilitarian value of a plea of guilty (which, at all events was at the last moment in this case) but it was regarded as evidence of contrition, and the fact that victim was saved the trauma of having to give evidence about a frightening and humiliating experience given real significance. 3. Leaving aside the obvious point that a single instance can only very rarely indicate the limits of the sentencing discretion for particular offences, I do not see Rothapfel as giving significant, indeed even suggestive, support to the applicant's contention that, by comparison, the sentences imposed upon him were excessive. The sexual offences did not involve penetration, the extent of actual violence was less, the offender had pleaded guilty, sparing the victim from having to give evidence and it was a Crown appeal. Were the sentences manifestly excessive? 1. It may be that the applicant's case in respect of manifest excess was not limited to acceptance of the contention that his sentences were significantly greater than those which would have been imposed when the offences were committed, although no additional arguments were advanced. Given this ambiguity, I should state my view that the overall sentence, though severe, was by no means excessive. Even so, I am troubled by the apparent double punishment demonstrated by the identical sentences indicated for the offences under 61J because the circumstance of aggravation is particularised in each case as being "before the offence [the applicant] maliciously inflicted actual bodily harm". His Honour specifically noted that the same circumstances of aggravation were alleged in each of the charges. However, this issue was not a ground of appeal and was not argued before us. Accordingly, I say no more about it. Accumulation 1. So far as accumulation is concerned, the learned sentencing judge said – The offences were committed at the same time during a very short period and for that purpose I intend to impose … [an aggregate] sentence that reflects the total criminality. In doing so, I would indicate that any sentence in respect of each offence would be partially accumulated on each other but also substantially concurrent … 1. As to the indicative sentences, his Honour said – In relation to each of the sentences, I would have indicated that each … would be served substantially concurrent with an adjustment of some accumulation in relation to each count sentenced upon the other. 1. The applicant points out that the ultimate aggregate non-parole period of seven years exceeded by one year and nine months the non-parole periods indicated in respect of Counts 2 and 3. It is this difference which, it is contended, amounts to an incongruity requiring correction by this Court. However, the accumulation applied to two additional offences. Taken overall, I am not persuaded that its extent was inconsistent with the judge's stated approach. Accordingly, this ground must be dismissed. Conclusion 1. I propose the following orders – 1. leave to appeal granted; 2. appeal dismissed. 1. McCALLUM J: I agree with Adams J, for the reasons expressed by his Honour, subject to one qualification. His Honour has expressed the view at [14] that, "as a general rule, the objective seriousness of an attempted offence will, for obvious reasons, be less than the completed offence". I would prefer not to generalise that assessment in a pre-emptive way. Depending on the circumstances of the case, the degree of difference between a failed attempt and a completed sexual assault might be of little significance in the overall assessment of objective seriousness of an offence. I agree with the orders proposed by Adams 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 May 2015