Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Alcazar [2017] NSWCCA 51 Hearing dates: 3 March 2017 Date of orders: 24 March 2017 Decision date: 24 March 2017 Before: Hoeben CJ at CL at [1] Schmidt J at [2] Wilson J at [148] Decision: (1) The appeal be upheld; (2) The sentence be set aside; and (3) Mr Alcazar be resentenced to a term of imprisonment of 6 years and 6 months commencing on 29 June 2015 and expiring on 28 December 2021, with a non-parole period of 4 years and 3 months. Catchwords: CRIMINAL LAW – appeal – Crown appeal – appeal against sentence – whether sentence was manifestly excessive – consent in relation to sexual assault – whether residual discretion should be exercised – appeal upheld – applicant resentenced Legislation Cited: Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Ali v R [2010] NSWCCA 35 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Collier v R [2012] NSWCCA 213 CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ibbs v the Queen (1987) 163 CLR 447; [1987] HCA 46 KAB v R [2015] NSWCCA 55 Kennedy v R [2010] NSWCCA 260 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Mulato v The Queen [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58 Regina v MS [2005] NSWCCA 322 R v Cramp [2004] NSWCCA 264 R v Hartikainen (Court of Criminal Appeal (NSW), 8 June 1993, unrep) R v Hibberd (2009) 194 A Crim R 1; [2009] HCA 20 R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 R v Robinson [2014] NSWCCA 12 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Regina (Appellant) Billy Joe Alcazar (Respondent) Representation: Counsel: Ms T Smith (Appellant) Mr T Gartelmann SC (Respondent) Solicitors: Solicitor for the Public Prosecutions (Appellant) Mallinson Rake Lawyers (Respondent) File Number(s): 2015/190924 Publication restriction: Non-publication order re identity of victim or anything that may otherwise identify the victim Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Law Citation: -- Date of Decision: 23 November 2016 Before: Colefax SC DCJ File Number(s): 2015/190924 Judgment 1. HOEBEN CJ at CL: I agree with Schmidt J. 2. SCHMIDT J: Mr Alcazar pleaded guilty to three offences of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW) committed against the same victim in June 2015, while in company with two others. Each offence attracted a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. 3. In November 2016, Colefax SC DCJ sentenced Mr Alcazar to an aggregate sentence of 4 years with a non-parole period of 2 years, after a combined discount of 50% for the entry of a plea of guilty and assistance. 4. The Director of Public Prosecutions appeals that sentence as being manifestly inadequate. The four particulars provided were: "i. His Honour erred in failing to make a finding in relation to which paragraph of section 61HA(3) of the Crimes Act was established (in respect of the basis for the respondent knowing the victim did not consent); ii. His Honour erred in his assessment of the objective criminality of the offending behaviour in Count 3 (penile/vaginal intercourse) as being "slightly below mid-range" and in assessing the moral culpability for Counts 1 and 2 as being somewhere equidistant between the mid-range and the bottom of the range; iii. His Honour failed to appropriately identify the reason for the need for general deterrence and, as a result, did not properly reflect the level of general deterrence required; and iv. The reasons identified by his Honour did not provide a proper basis for his finding of special circumstances and involved double counting." 1. For reasons which I will explain, I have concluded that the sentence imposed on Mr Alcazar is manifestly inadequate; that the Court's discretion not to interfere on appeal should not be exercised; that the appeal must be upheld; and that Mr Alcazar must be resentenced. Mr Alcazar's offences 1. The victim was aged 18 years at the time of Mr Alcazar's offences. He and one of the other offenders were 19 and the third, 27. 2. The statement of agreed facts revealed that the offences were committed after 11pm, when the victim, the offenders and others were together drinking alcohol in the backyard of a residence, where one of the offenders lived with his family. 3. The victim and her friend became intoxicated to the point that they both became ill. They went together to a small bathroom in the backyard, where they both began to vomit. One of the offenders then took her friend out of the bathroom and placed her on the grass, where she continued to vomit. The three offenders then went into the bathroom and together sexually assaulted the victim, while the door to the bathroom remained at least ajar. 4. The first offender began kissing the victim while she was standing, vomiting. All three offenders then began touching the victim all over her body. When the victim was on her knees, the first offender put his penis into her mouth and Mr Alcazar touched the victim on her "backside". Mr Alcazar and the third offender then removed her long pants and underwear. The third offender then inserted his fingers into her vagina. 5. During the course of these assaults, all of the victim's clothes were removed by the offenders. Her hair extensions were also removed from her head. 6. While the first offender still had his penis in the victim's mouth and the third offender was touching her all over her body, Mr Alcazar, who was not wearing a condom, put his penis into her vagina. After a short while, he began ejaculating. He removed his penis and finished ejaculating onto the floor, before he left the bathroom. The other two offenders remained. The first offender still had his penis in the victim's mouth and the second offender again inserted his fingers into her vagina. A short time later they both left the bathroom. 7. Soon afterwards, the victim was placed into one of the offenders' cars and driven home. She does not recall the journey. On arrival at her home, her clothing was wet and ripped, her hair was in disarray and she did not have her underwear, bra, handbag, jacket or hair extensions. She was so distressed that she was incomprehensible. She could not recall how she had sustained a scratch on her left forearm, but remembered suffering a graze to her knee, whilst leaving the premises. 8. The victim's mother contacted police and she underwent a sexual assault examination at Westmead Hospital. Abrasions consistent with trauma at the posterior fourchette, which is indicative of penetration, was found. 9. The residence where the assault took place was then declared to be a crime scene. Police found the victim's friend still there. The victim's hair extensions, bra and underwear were found in a bin in the bathroom. One bra strap had been ripped off and was located underneath the bathroom door. 10. The victim's friend then told police that one of the offenders had been with the victim in the bathroom and when he exited he said that "she sucked my dick bra". The friend also said that she was ill and not sure if any other person had entered or exited that room. 11. On 29 June 2015, Mr Alcazar was arrested. During interview he admitted having been in the bathroom with the victim and the other two offenders, but he did not admit to having sexual intercourse with her. He then provided a DNA sample. 12. On analysis, Mr Alcazar's semen was located on vaginal, vulval and labial swabs, as well as on the victim's underwear and bra. In November 2015, Mr Alcazar made full admissions to his own offending and that of his co-offenders. 13. Mr Alcazar's undertaking to give evidence against his co-offenders, to which the transcript of his police interview on 16 November 2015 was attached, was initially tendered on sentence on the limited basis of giving the sentencing Judge a better understanding of the nature of the assistance provided. It became exhibit C. 14. Despite the limited basis of the tender, in later submissions some of the answers Mr Alcazar gave to questions he was asked were relied on, to support the case which he advanced. 15. In those circumstances, it was properly conceded on appeal for Mr Alcazar that the limitation on the tender of the statement had thereby been waived and that it was open to be used as part of the fact finding process on sentence. 16. Mr Alcazar also swore an affidavit (exhibit 2) and gave evidence on sentence. His affidavit annexed a letter which he had written to the Court and the victim, as well as a letter from the Correctional Centre Chaplain and certificates of courses Mr Alcazar had completed in custody. He also relied on a report of neuropsychologist Dr Ashkar, who had assessed him while he was in custody, as well as an affidavit sworn by his sister. 17. Mr Alcazar also gave oral evidence at the sentence hearing. The sentence was manifestly inadequate 1. The primary purpose of a Crown appeal is to lay down principles for the governance and guidance of courts, which have the duty of sentencing convicted persons: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [36] and CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9 at [55]. 2. In order for such an appeal to succeed the Crown must identify a House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 error in the sentencing judge's discretionary decision. That requires either latent, or patent error to be established: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [61]; Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58], [109]. 3. Such error has here been established. 4. Mr Alcazar pleaded guilty to all three offences, the aggravating factor in each being that the offence was committed in company: Crimes Act, s 61J(2)(c). He and the other two offenders each committed different acts upon the victim, not only in company with each other, but at the same time. 5. His Honour concluded that count 3 (penile/vaginal penetration), was the most serious offence. The indicative sentence given for that offence was 4 years imprisonment. After discount of 50%, it was reduced to 2 years with a non-parole period of 12 months. 6. The indicative sentence for count 1 (fellatio) was 3 years and 6 months imprisonment. After discount of 50%, it was 1 year and 9 months with a non-parole period of 11 months. The indicative sentence for count 2 (digital penetration) was 3 years imprisonment. After a discount of 50%, it was 1 year and 6 months, with a non-parole period of 9 months. 7. The aggregate sentence imposed on Mr Alcazar, after his Honour said, "meaningful, but not excessive, partial accumulation" and the application of the principal of totality, was 4 years imprisonment, with a non-parole period of 2 years. His Honour observed as to that sentence: "I would for completeness want to say this - that if the offender had been an older person that sentence would have been inadequate. It is by virtue of his age (and being an immature 19 year old) that such a lenient sentence was imposed." 1. That observation casts light on one of the reasons why the sentence imposed on Mr Alcazar was erroneously lenient. 2. The aggregate sentence imposed was not commensurate with the total criminality involved in Mr Alcazar's offending: Mill v The Queen (1988) 166 CLR 59 at 62 – 63; [1988] HCA 70. Nor did the non-parole period imposed, as the minimum period of actual incarceration which he must spend in full-time custody, have necessary regard, as it had to, to all the elements of punishment: Power v The Queen (1974) 131 CLR 623 at 628 – 629; [1974] HCA 26. 3. Characterisation of the degree of objective seriousness of an offence is a critical aspect of the role of the sentencing judge who performs the task of finding facts and drawing inferences from those facts. Thus, this Court is very slow to determine such matters for itself: Mulato v The Queen [2006] NSWCCA 282 at [37]. 4. The Crown has established that this is a case where the discretion to interfere must be exercised. 5. Manifest inadequacy is evidenced by a sentence which falls outside the range of sentences that could have been imposed for the particular offending, when all of the matters that are relevant to fixing the sentence are considered: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60]. 6. In this case, that consideration establishes that the aggregate sentence imposed on Mr Alcazar fell below the range of sentences that could have justly been imposed upon him, for his role in these uninvited, unprovoked and degrading sexual assaults, consistently with applicable sentencing standards: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [24]. 7. Amongst the matters which had to be taken into account was, as has long been recognised, that non-consensual sexual intercourse is itself an extreme form of violence, which must and will be denounced by the courts: Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58 at [95] referring to R v Hartikainen (Court of Criminal Appeal (NSW), 8 June 1993, unrep) at 3. 8. Account also had to be taken of where each of the three assaults perpetrated against the victim lay in the spectrum of offences falling within the definition of sexual intercourse in the Crimes Act: Ibbs v the Queen (1987) 163 CLR 447; [1987] HCA 46. 9. Non-consensual sexual intercourse by digital penetration is generally considered to be less serious than an offence of penile penetration, but each case depends on its own facts: R v Hibberd (2009) 194 A Crim R 1; [2009] HCA 20 at [56]. An act of fellatio may, however, place an offence in a similar position to an act of penile-vaginal intercourse: Regina v MS [2005] NSWCCA 322 at [16]. 10. In the case of penile-vaginal intercourse, a risk of pregnancy is also an aggravating factor that can be taken into account on sentence: KAB v R [2015] NSWCCA 55. That risk was here evidenced by the agreed fact that Mr Alcazar did not use a condom. 11. The manifest inadequacy of the sentence imposed was also revealed by a number of errors in the sentencing exercise, established on this appeal. In order to understand those errors it is necessary to understand the cases which the parties advanced on sentence, which his Honour failed to address. Particular i - Consent 1. By the entry of his plea, Mr Alcazar accepted that the victim had not consented to any of the offenders' sexual assaults. That was relevant to the assessment of the objective seriousness of his offending. 2. There was no evidence that the victim had shown any prior sexual interest in any of the offenders. Both the agreed state of the victim's inebriation and her resulting illness well revealed her lack of consent to being sexually assaulted by any of the offenders. She was still vomiting, even as she was being assaulted. On the evidence, this was another case where the offenders did not need to resort to either threats, or other acts of violence, to give effect to their criminal intent: Ali v R [2010] NSWCCA 35 at [37]. 3. Apart from the violence involved in the sexual assaults themselves, the agreed facts also showed that there was a degree of force used by the offenders. That resulted not only in the victim's clothes being torn and her bra strap being torn off, but in the removal of her hair extensions from her hair. That was also inconsistent with the victim giving her consent. 4. Despite all of this evidence, the question of consent was raised on sentence for Mr Alcazar. That was in issue, as was the seriousness of Mr Alcazar's offences and his moral culpability for them. In his sentencing remarks, however, his Honour made no reference to the issue of consent and gave no reasons for the conclusions which he reached as to the objective seriousness of these offences. 5. In failing to explain the basis on which he resolved what was in issue as to consent, his Honour fell into error. That error contributed to the manifestly inadequate sentence imposed on Mr Alcazar, the seriousness of whose offending was not otherwise properly identified in the sentencing remarks, or reflected in the sentence imposed upon him. 6. While due account must be taken of the fact that his Honour's judgment was delivered ex tempore, given the matters over which the parties had joined issue, his Honour had to explain not only how he resolved the question of consent, but why. Further, even if he accepted the case advanced for Mr Alcazar, he was obliged not only to say so, but also to give reasons for the conclusions which he had reached. The parties' cases on consent 1. Amongst other things it was submitted for Mr Alcazar on sentence that: "This is not a case where there is clear evidence of protest or denial of consent. I note the content of para 16 of the facts; that is written in the form the complainant maintains something and then there is a contrary version given by the offender. That doesn't provide the basis for a finding beyond reasonable doubt that the complainant was voicing "no" or "stop" or attempting to resist what happened. It is important to recognise in that regard that the statement of facts is very much based upon the detailed account that my client gave to the police. He has obviously been regarded as a reliable witness for the purposes of the ensuing prosecution trial against the other two co-accused. He was specifically asked questions about the issue of consent at p 20 and p 22 of the transcript of the interview. He didn't hear [A] say "stop"; she didn't try to leave the bathroom. That's at question 274 and following and there are further answers given in that vein at 306 on p 22, question 306: "Q. Do you know if [A] tried to stop what was happening? A. I don't know. Q. Can you clarify that she didn't? A. She could have left the bathroom if she wanted to." There is no allegation concerning the use of violent force; there is no evidence about the clear absence of consent and this becomes an important issue in terms of assessing the culpability for this type of offence, because it's an offence that can be committed in a wide variety of circumstances: in its most egregious forms offences involving violence, rape over an objection, struggle, things of that nature. Had the matter proceeded to trial, the prosecution presumably would have relied upon the provisions in s 61HA(3C) which is to the effect that a person has no reasonable grounds to believe that another person consents in certain circumstances, and when they're substantially intoxicated that is such a circumstance. Here, of course, though the offender was heavily intoxicated as well. While it is accepted that the burden of case law lies against a proposition that intoxication on the part of - self-induced intoxication on the part of my client wouldn't substantially mitigate his offending, I am not making that submission, it is still a relevant circumstance and it's relevant in this way: the substantial intoxication of my client would have impaired his judgment and his capacity to read the signs. And this is in the context of a case where, as I have submitted, there wasn't signs of the clear absence of consent." 1. In advancing these submissions reliance was placed on paragraph 16 of the agreed statement of facts, which was argued to be ambiguous. It provided: "Whilst the complainant maintains that she tried to resist the assaults and at one point yelled out "no" and "stop, stop" the offender says that he does not remember the complainant saying anything. The offender also confirmed that the victim was drunk to the point of vomiting." 1. It was also argued that the offences were impulsive and opportunistic, having occurred in a short period of time. It was relevant that the victim and the offenders had all been drinking, they had all become intoxicated and the offenders had not plied her with drink. It was also argued to be relevant that there was no suggestion that Mr Alcazar had been the instigator. 2. The Crown's case in written submissions was that the slightly built victim was so intoxicated and ill from the effects of alcohol that she had been left vulnerable to the point of helplessness against the offender's joint attack, relying on Ali v R at [37]. 3. In oral submissions it was argued that at the time of the assault Mr Alcazar knew that the victim would not have welcomed any sexual advance from him or his co-offenders, given that the victim was not only highly intoxicated and ill, vomiting in a bathroom, but also that the three men had completely corralled her there. 4. In reply, it was argued for Mr Alcazar that: "This is a case, as I said, that involves young people drinking together and these events happening when everyone was heavily intoxicated. That brings me to the next point which is what can be drawn from my client's presence while the complainant was vomiting. The Crown seeks to draw an inference of knowledge of absence of consent or inability to consent, more properly put and an inference that my client must have understood, at that point, that she was very intoxicated. That of course presumes that there's an obvious connection between vomiting on the one hand and the level of intoxication on another and the submission is simply put one has to take care when drawing these sorts of inferences. People react to alcohol in different ways. It's not a scientific indicator of the extent of intoxication and of course one has to have regard to the fact that my client had been drinking roughly the same amount as the complainant at the time, was also intoxicated. Those matters, in my respectful submission, place the submissions about vulnerability and knowledge of her level of intoxication in the proper context." 1. His Honour dealt with none of these arguments. Mr Alcazar knew that the victim did not consent 1. Part of the difficulty with the submissions advanced for Mr Alcazar was that on the evidence, this was another case like that which arose to be considered in Ali v R, as the Crown contended. 2. On the agreed facts there was no question that it was apparent to the offenders that the victim was incapable of consent, because of her intoxicated state. It was that state which allowed Mr Alcazar and his co-offenders to take advantage of her as they did, without needing to resort to threats or significant violence, to give effect to their criminal intent. 3. The submissions advanced on sentence in relation to Mr Alcazar's intoxication were also inconsistent with what was provided in s 61HA of the Crimes Act. That section relevantly provides: "61HA Consent in relation to sexual assault offences (1) ... (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) …. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse." 1. The submissions advanced for Mr Alcazar also did not pay regard to s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That subsection precludes an offender's self-induced intoxication at the time an offence is committed, from being taken into account as a mitigating factor. Nor did they pay proper regard to what the evidence established. 2. In the agreed statement of facts at [16] it was agreed that the victim had maintained that she tried to resist the assaults, consistent with her clothes being torn. While Mr Alcazar could not remember her at one point yelling out "no" and "stop, stop", he confirmed that the victim was drunk to the point of vomiting. 3. That, when considered with what was otherwise agreed in that statement as to the level of the victim's intoxication and resulting illness, well established that she did not "freely and voluntarily" agree to the degrading sexual assaults to which she was subjected by the three offenders at the same time, then obviously not having the capacity to give such consent: Crimes Act, ss 61HA(2) and (4)(a). 4. Mr Alcazar's oral evidence on sentence was consistent with knowledge of the absence of consent. Then his evidence was that: "Q. After that first interview with the police did you have an opportunity to think about what you had done? A. Yes. Q. And what thoughts did you have? A. In the five months I was in gaol I thought about it very properly and like I found out that she couldn't possibly consent to having sex with me because of how drunk she was. Q. That occurred to you did it? A. Yep. Q. You came to understand that? A. Yes." 1. The evidence established, however, that Mr Alcazar in fact had that knowledge at the time of his offending. In his earlier police statement he had said not only that he knew that the victim was drunk and vomiting when he assaulted her, but amongst other relevant things that: "Q352 Was [A] agreeing to what happened in the bathroom that night? A I don't think so." 1. Later he was asked by his solicitor who was present at the interview: "MR MALLINSON Q Was she so intoxicated that she didn't know what she was doing in that toilet? A Maybe. MR MALLINSON Q Empathising with [A] for the moment, if your sister was in the same state of intoxication as [A], would she have been able to give consent to you, not you, another male, or three males having sex with her in the way that James, Loyd and you did to [A]? A Probably not." 1. In the submissions advanced on sentence, however, all that was drawn to his Honour's attention from the police statement was earlier answers Mr Alcazar had given, when he said: "Q306 OK. Do you know if [A] tried to stop what was happening in the bathroom? A I don't know. Q307 You don't know or she didn't? A She didn't." 1. What Mr Alcazar later said in the police interview and what was even later agreed in the facts tendered on sentence were, however, to different effect. 2. It follows from all of this evidence that at the time of the assaults, not only did Mr Alcazar have no reasonable grounds for believing that the victim was consenting to being assaulted, he was also not merely reckless as to whether she was consenting. The evidence as to his knowledge of the extent of her intoxication at the time of the assaults well established that he was then aware that the victim did not give her consent to engaging in sex with any of the offenders, let alone with all three of them at the same time, being incapable, in her intoxicated state, of giving such consent. 3. It follows that the case advanced for Mr Alcazar on appeal, that his Honour's failure to make express findings on the question of his knowledge as to the victim's consent was understandable, given the evidence, may not be accepted. 4. This was not a case where the evidence was inadequate, so that the issues lying between the parties could not be resolved, as was contended for Mr Alcazar on appeal. That was certainly not the case advanced at the sentence hearing. Nor could it have been. Nor did the resolution of the question of consent depend on what had been agreed in the statement of facts at paragraph 16. 5. What was otherwise agreed in that statement as to the victim's state before, during and after the assaults, as well as Mr Alcazar's oral evidence and what he had earlier told the police in his interview, well established that the victim was so intoxicated that it was apparent to him that she did not consent to any of the sexual assaults which he and the other offenders together inflicted on her that night. 6. Even on the agreed facts alone, his Honour should have so found. 7. Had that finding been made, the conclusions that each of Mr Alcazar's offences was more serious and that his moral culpability for all of his offending was considerably greater than his Honour found, would also have been inevitable. 8. Contrary to the case advanced on appeal for Mr Alcazar, that conclusion does not warrant the matter being remitted to the District Court for further hearing under s 12(1) of the Criminal Appeal Act 1912 (NSW). The evidence on consent was not inadequate. Mr Alcazar must be resentenced by this Court on what the evidence led at the sentence hearing established. Particular ii - The assessment of Mr Alcazar's objective criminality 1. The sentence had to be arrived at taking into account the objective seriousness of Mr Alcazar's offending, as well as Mr Alcazar's personal circumstances, considered in light of other relevant matters, including considerations such as deterrence (both general and specific) and totality, when the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 was undertaken. 2. The objective seriousness of Mr Alcazar's offending was in issue. 3. In determining the objective seriousness of each of his offences, what was required was that the facts, matters and circumstances which his Honour concluded bore upon the appropriate sentence be taken into account, without reference to matters personal to Mr Alcazar. His Honour also had to explain the basis of the conclusions which he had reached: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] - [29]. 4. This his Honour also failed to do. 5. His Honour concluded that Mr Alcazar's principal offence, involving penile/vaginal sexual intercourse (count 3), fell slightly below the mid-range of objective seriousness and that his moral culpability for the other two offences "hovers somewhere equidistant between the mid-range and the bottom of the range". 6. No reasons were given for those conclusions. His Honour turned then to consider the victim impact statement and Mr Alcazar's personal circumstances. The parties' cases 1. The Crown's case on sentence was that each of Mr Alcazar's offences fell above the mid-range, with neither his own voluntary intoxication, any mental illness or cognitive impairment reducing his moral culpability. 2. The most serious offence was identified to be count 3, involving penile/vaginal intercourse, its seriousness needing however, to be assessed in the circumstances where Mr Alcazar was in company with his co-offenders, who were simultaneously assaulting the victim and in circumstances where there was no evidence that she had shown any sexual interest in any of them. 3. Lesser sentences were acknowledged to be warranted for the other two offences, in which Mr Alcazar had played a lesser role, but it was submitted that the criminality of one of his offences could not encompass that of the others and so the sentences had to be accumulated. It was accepted that an aggregate sentence was appropriate in his case. 4. It was also submitted that attention had to be given to Mr Alcazar having been complicit in the commission of all of the offences, the victim having been subjected to three acts of sexual assault, which occurred in a small space, she not only being aware of their presence, but what each of the offenders was then doing to her. The 'in company' element of each offence thus required consideration to be given to the presence of the other two offenders but, it was acknowledged, care had to be taken not to offend the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. 5. That the three acts of intercourse were almost simultaneous, was argued a matter of some weight when the objective seriousness of each offence was assessed. This also had to be taken into account when the principle of totality was applied, but, it was argued, that would only permit a marginal or small measure of accumulation, given that the primary offence was a very, very serious one. 6. The Crown also argued that the absence of other aggravating factors identified in the submissions advanced for Mr Alcazar could not outweigh the objective seriousness of his offending, particularly when considered in light of the aggravating factors which were present. 7. For Mr Alcazar it was submitted that the offences should all be found to have been spontaneous in nature and impulsive, with Mr Alcazar not being the instigator. Reliance was placed on the absence of "many markers" of objective seriousness for this type of offending, which were identified. Arguments as to the need to take care to avoid double counting were also advanced, given that Mr Alcazar had been separately charged for the three offenders' separate sexual assaults, while in company. 8. That the offences had been committed in company was accepted as involving additional criminality, but it was submitted that care had to be taken not to have multiple or additional regard to that factor. It was also accepted that unlike many cases, here the evidence established which offender had committed which of the assaults. While Mr Alcazar had to be sentenced for the full range of the conduct involved, it was argued that given the short time in which the offences occurred and that they had all been committed in company, at the same time, the result should be only a modest accumulation of the penalties imposed. 9. Slight accumulation, his Honour observed during this argument, "would be offensive to the interests of justice". 10. In response it was argued for Mr Alcazar that application of the principle of totality required moderation of accumulation of the penalties imposed, given that he had not been charged with one offence, which could have embraced the entire criminal enterprise in which he had been involved. It was also submitted that because he was already exposed to a higher penalty because his offence had been committed in company, any substantial accumulation of the other offences would result in double punishment. 11. The submission finally advanced for Mr Alcazar in reply was that: "And thirdly it was put that the fact that the acts took place simultaneously effectively increased the seriousness of the conduct. The submission is put that the opposite is true. To quote Chief Justice Gleeson in a decision of Johnson v The Queen, which is reported at 78 ALJR 616 at para 5 his Honour said "When considering the application of the totality principle that ultimately justice requires due consideration of whether and to what extent the appellant was truly engaged upon one multifaceted course of criminal conduct" and that description applies to this case. It was a multifaceted course of criminal conduct involving these three males. The fact that it happened all at once doesn't increase the seriousness of the matter. One can easily test that proposition by imagining if the event was drawn out over time with different events taking place at different times that would clearly be a more serious offence or offences." 1. The argument so put, in the face of the agreed facts and the other evidence I have discussed, was deplorable. It should not have been advanced. Mr Alcazar's offences were objectively more serious than his Honour found 1. The principle in The Queen v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31 required his Honour, in imposing sentence, to consider the evidence as to all of Mr Alcazar's conduct, including that which aggravated his offences. Account could not be taken, however, of circumstances of aggravation which would have warranted his conviction of a more serious offence. 2. Thus, Mr Alcazar could not be convicted on the basis that the victim had been detained for a period before or after the commission of the offences, that constituting an offence under s 61JA of the Crimes Act of aggravated sexual assault in company, with which he had not been charged. That is an offence which attracts a maximum penalty of life imprisonment. 3. By his plea Mr Alcazar accepted, however, that not only was he liable for the serious sexual assault which he had himself committed, he also accepted that he was liable for the other offences committed in his company, on the basis of joint criminal enterprise. Unarguably, the fact that Mr Alcazar's co-offenders had committed the acts which comprised the other two counts had to be recognised in the conclusions reached as to the objective seriousness of his offences and his moral culpability for them. The sentences imposed had to reflect that those offences were less serious than his own sexual assault, as his Honour found. 4. That all of the sexual assaults were committed at the one time also had to be taken into account. Contrary to Mr Alcazar's case, objectively that made each of these offences more serious than they would otherwise have been. The degradation involved in the acts so inflicted on the victim and the fear which the offenders' conduct must have engendered, was not only obvious, but explained in her victim impact statement. 5. In the result, that the conclusions which his Honour reached as to the respective gravity of each of Mr Alcazar's offences were reasonably open cannot be accepted. 6. A determination of the objective seriousness of all of these offences had to begin with the consideration that the victim was a physically diminutive young woman, aged 18 years. She weighed only 44 kilograms and was only 150 centimetres tall. She was intoxicated to the point of illness, still vomiting as she was being assaulted by the three offenders. 7. There was no evidence as to the size of the other two offenders who assaulted her with Mr Alcazar, while they were all together in the small bathroom where the door was but ajar. However, that Mr Alcazar weighed some 110 to 115 kilograms and was 180 centimetres tall, also had to be taken into account when the gravity of his offences against this young, diminutive victim was assessed. 8. There was no evidence that the victim was detained before or after these assaults. That she was effectively trapped in the small bathroom where the assaults occurred was, however, established by the evidence and relevant to take into account. That was established not only by the illness which resulted from her intoxication, but from all that was done to her during the offenders' assaults. 9. That involved not only stripping her naked and in the process, ripping her clothes and removing her hair extensions, but all three offenders acting in concert, each of them assaulting the victim in a different, degrading way, but all at the same time. This undoubtedly established that these assaults were more serious than they otherwise would have been, had the offenders assaulted her one after the other. 10. That Mr Alcazar did not use a condom during his assault was also relevant, exacerbating as it did the seriousness of his assault. So, too, was the state to which the victim was reduced by these assaults. That was agreed to have been distress to the point of incomprehensibility, when she was taken home in the dishevelled state earlier described. 11. What his Honour noted the victim said in her victim impact statement, as to the consequences of these assaults, also had to be taken into account. His Honour found that they were no greater than what one might ordinarily expect from such offending conduct. The undeniable seriousness of those consequences could not, however, be overlooked. 12. In the result, contrary to Mr Alcazar's case on appeal that his Honour's conclusions as to the seriousness of his offending were reasonably open on the evidence, it must be concluded that Mr Alcazar's principal offence fell above the mid-range of seriousness of such offending. The offence involving fellatio, which lasted even longer than Mr Alcazar's offence, fell at the mid-range. In all of the circumstances I have discussed, the offence of digital penetration fell only slightly below the mid-range. Particular iii - His Honour failed to reflect the need for general deterrence in the sentence 1. The role which deterrence should play in Mr Alcazar's sentence was also in issue. 2. His Honour found that Mr Alcazar was socially immature. He had an unusual upbringing, his mother having been a young, single woman and he having been raised by his aunt and her husband, in a loving and supportive environment. After a happy early childhood, his schooling became problematic. He was suspended in year 5 for fighting and his disruptive behaviour continued in high school, but he was not diagnosed to be suffering from any disorder. 3. Mr Alcazar began consuming considerable amounts of alcohol and cannabis at an early age, to the point of heavy binge drinking and consumption of large amounts of cannabis on a daily basis. He also used ice, ecstasy, speed and cocaine. He was heavily under the influence of alcohol on the night of his offences and had consumed ice the previous night. 4. Mr Alcazar's criminal record was, however, minimal, with the result that his Honour concluded that he would "be given the benefit in effect of a first offence". He had also sustained meaningful employment, although because of his conviction, his employment at Australia Post will no longer be available to him. 5. His Honour noted the risk he considered Mr Alcazar faced, of developing schizophrenia, schizo-effective disorder, bipolar disorder and the like. That was because, his Honour said, of his long term abuse of cannabis, even though there was no evidence yet, that he had developed those illnesses. Nor were there any mental health issues attending on his criminal behaviour. 6. The early plea entered after the DNA results were received and in the face of a strong Crown case, as well as admissions which he made, were accepted as evidencing Mr Alcazar's remorse. So, too, his Honour concluded, did Mr Alcazar's written and oral evidence and his preparedness to give evidence against his co-accused. 7. On the psychologist's report, his Honour accepted that Mr Alcazar was unlikely to reoffend in a sexual context. There the opinion was expressed that Mr Alcazar's intoxication and the negative influences of his peers had contributed to his impaired thinking and judgment at the time, he having otherwise normal cognitive resources. With the benefit of hindsight, he understood that he had acted without the victim's consent. 8. His Honour concluded that Mr Alcazar's strong family support, capacity for work and certificates obtained in custody boded well for his rehabilitation, notwithstanding the nature of his offences. His Honour also considered that he would have to guard against the "dark shadow of possible mental health issues". 9. His Honour also concluded that specific deterrence was not of great significance in Mr Alcazar's case, but that general deterrence was. The parties' cases 1. The Crown had contended that general deterrence had a very significant role to play on this sentence, notwithstanding Mr Alcazar's age and immaturity. The offences that the three offenders had committed involved adult type offending of a serious kind, which precluded weight being given to those matters. 2. It was accepted that he should receive a 25% discount for the utilitarian value of his pleas as well as a discount under s 23 of the Crimes (Sentencing Procedure) Act for his past and future assistance, but the discount should not exceed 50%, given the worth of his evidence. It was also submitted that the discount could not result in a sentence "unreasonably disproportionate to the nature and circumstances of his offending": Crimes Act, s 23(3). 3. For Mr Alcazar, it was argued that his age and the psychologist's opinion that his offending was explained by his immaturity, raised significant mitigating matters which resulted in the need to promote rehabilitation in his case, at the expense of retribution and punishment. That was also argued to be supported by the evidence of his minor criminal record, genuine remorse and assistance. 4. A combined discount of 50% was sought, including 10% for past assistance and 15% for future assistance. While it was conceded that the sentence had to reflect a measure of general deterrence moderated to reflect Mr Alcazar's youth, it was argued that there was little need for specific deterrence, given his record and subjective circumstances. 5. Various cases argued to involve comparable offending were relied on with the result, it was urged, that the sentence imposed on Mr Alcazar would involve additional time to serve of only 6 months to a year. The sentence imposed did not adequately reflect the conclusions reached as to deterrence 1. In explaining the conclusions he had reached as to deterrence, his Honour observed: "It needs to be clearly understood by young men who engage in drinking alcohol that the type of behaviour I have described (which I accept was opportunistic and not planned) is a very real consequence and danger of excessive drinking. General deterrence has real work to do in this case." 1. This observation is difficult to understand. 2. The disinhibiting effects of alcohol are notorious, as are the illness, hangovers and other adverse consequences to health which excessive drinking can lead to. What had to be denounced, punished and deterred by the sentence imposed on Mr Alcazar was not, however, excessive alcohol consumption by young men. 3. It was rather the degrading sexual abuse of a young woman, by a group of young men who were intent on the pursuit of their own sexual desires, despite knowing that woman to be incapable of resisting the advantage which together they took of her, because she had consumed alcohol, to the point of illness. 4. This was despicable, criminal behaviour, which our society does not tolerate and which the courts will punish by the imposition of a sentence reflective of the seriousness of the criminality involved. 5. While the evidence as to Mr Alcazar's personal circumstances had to be properly taken into account in arriving at his sentence, supporting as it did the conclusions that he was remorseful and unlikely to offend as he had again, those matters could not overwhelm proper consideration being given to the seriousness of his offending. 6. Even though Mr Alcazar was an immature young man of 19, the evidence established that his offending was so serious, that he had to be sentenced as an adult. 7. As was discussed in R v AEM at [97], where the offender was also aged 19: "It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society. Lee AJ commented on this in Nichols at 395: 'True it is … that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided … However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way'." 1. This was such a case. 2. As the Crown contended on appeal, his Honour's observation as to what had to be deterred by the sentence imposed on Mr Alcazar was not only unusual. It revealed that in arriving at his sentence, necessary attention was not given to the matters discussed in R v AEM Snr, which arose for consideration in this case. 3. In so far as his Honour's observations were, as was submitted for Mr Alcazar, a response to the arguments the parties had advanced as to the significance of his intoxication, a matter on appeal argued to be relevant to the assessment of his moral culpability for his offending, his Honour fell into error. The disinhibiting effects of drugs and alcohol may explain the context in which his offences occurred, but they did not ameliorate or excuse that offending, or reduce his moral culpability for what he did. 4. Despite what his Honour said as to how deterrence, both specific and general, had to be taken into account in arriving at the sentence, that conclusion was not adequately reflected in the sentence imposed. 5. Each of these offences attracted a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. Even though the principal offence was found to fall only slightly below the mid-range of such offending, the indicative sentence given was 4 years imprisonment (count 3). The indicative sentences for the other two offences, found to fall equidistant between the mid-range and the bottom of the range were 3 years and 6 months imprisonment (count 1) and 3 years imprisonment (count 2). 6. After 50% discount, the aggregate sentence imposed, his Honour said, after "meaningful, but not excessive, partial accumulation", was 4 years with a non-parole period of 2 years. 7. That sentence was manifestly inadequate. It was incapable of deterring serious offending such as this. Given all of the criminality involved in Mr Alcazar's offending, the sentence imposed was unreasonable and plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54. 8. In the result, the conclusion that this sentence involved more leniency to Mr Alcazar than was justly available, particularly given the conclusion that deterrence had to be reflected in the sentence imposed upon him, is unavoidable. Particular iv - Special circumstances and double counting 1. Section 44 of the Crimes (Sentencing Procedures) Act requires that the balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more. A finding of special circumstances permits an adjustment downwards of the non-parole period. The extent of the adjustment is not determined by any "norm". 2. His Honour found special circumstances because of Mr Alcazar's age, the prospect that he might serve more time in protective custody and because this was his first period of imprisonment. 3. A non-parole period fixed to reflect special circumstances raises many discretionary matters in which an appellate court will be slow to intervene: R v Cramp [2004] NSWCCA 264 at [31]. As discussed in R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 at [136], however, "double counting for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided". 4. It follows that in fixing the non-parole period his Honour erred in taking into account the need for Mr Alcazar to serve time in protective custody. That consideration was already comprehended in the 50% discount he was given for assistance: see s 23(2)(g) of the Crimes (Sentencing Procedure) Act and R v Robinson [2014] NSWCCA 12 at [23]. 5. First time in custody is not, of itself, a basis for a finding of special circumstances: Collier v R [2012] NSWCCA 213 at [36], but with other relevant considerations, it may lead to a finding of special circumstances: Kennedy v R [2010] NSWCCA 260 at [73]. 6. In this case I consider that it is Mr Alcazar's age, his prior record and that this is his first time in custody, should lead to a finding of special circumstances. The residual discretion should not be exercised 1. The Crown must also negate any reason why this Court's residual discretion not to interfere should be exercised: CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9 at [54]. 2. The matters which I have discussed provide more than a sufficient basis on which it may properly be concluded that the Crown has met that onus. The appeal has been pursued promptly and there is no evidence as to matters which have arisen post sentence, which would cause the Court to refrain from exercising its discretion in this case. 3. Accordingly the appeal must be upheld and Mr Alcazar resentenced. Resentence 1. The purposes of sentencing are those provided in s 3 of the Crimes (Sentencing Procedures) Act, namely: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 1. Taking into account these purposes, as well as the other relevant matters I have discussed, including the objective seriousness of Mr Alcazar's offending, his relevant subjective circumstances, his remorse, prospects of rehabilitation and considerations of deterrence, I have concluded that the indicative sentences for his three offences, when reduced by 50%, should be: 1. Count 3 – 5 years; 2. Count 1 – 4 years; 3. Count 2 – 2 years and 6 months. 1. This reflects his Honour's conclusion that the Crown case against Mr Alcazar was strong, but that the assistance he had given and that which he had promised warranted a total discount of 50% for his plea and assistance. His Honour indicated that 15% of that discount was for future assistance. Those conclusions were not challenged on this appeal and accordingly, those discounts should also be applied on this resentence. 2. As his Honour also concluded, an aggregate sentence should be imposed on Mr Alcazar, the principle of totality requiring that there be a degree of accumulation of his sentences, given those features which the three offences have in common. 3. Mr Alcazar has been in custody since 29 June 2015. His sentence must commence from that date. The aggregate sentence I would impose is 6 years and 6 months commencing on 29 June 2015 and expiring on 28 December 2021, with a non-parole period of 4 years and 3 months. He would be eligible to be released on parole on 28 September 2019. 4. While that is a significantly greater sentence than that initially imposed upon Mr Alcazar, in all of the circumstances I have discussed, it is far from a crushing one. Orders 1. The orders I would propose are: 1. The appeal be upheld; 2. The sentence be set aside; and 3. Mr Alcazar be resentenced to a term of imprisonment of 6 years and 6 months commencing on 29 June 2015 and expiring on 28 December 2021, with a non-parole period of 4 years and 3 months. 1. WILSON J: I agree with Schmidt J. ********** Amendments 10 May 2017 - Publication restriction field: removed "RESTRICTION" 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: 10 May 2017