R v Glen [1994] NSWCCA 1

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Glen [1994] NSWCCA 1 Hearing dates: 6 December 1994 Decision date: 19 December 1994 Before: Grove J at [1]; Simpson J at [19]; Loveday AJ at [29] Decision: Appeal dismissed Catchwords: CRIMINAL LAW AND PROCEDURE – application to set aside a plea of guilty – claimed misunderstanding by appellant evidence in support of claim rejected –sentence – 2 years minimum term and 2 years additional term for sexual intercourse without consent – forgiveness by complainant with whom appellant had intermittent relationship – held sentence not outside appropriate range Legislation Cited: Crimes Act 1900 (NSW), 407AA Cases Cited: Reg v Chiron [1980] 1 NSWLR 218 Texts Cited: Parliamentary Debates (Hansard), 9 November 1982 at 2367 Legislative Council and Legislative Assembly, Parliamentary Debates (Hansard), 24 November 1982 at 2893,2905 Category: Principal judgment Parties: Peter James Glen (Appellant) Regina (Respondent) Representation: Counsel: P.J. Hidden QC (Appellant) R.N. Howie QC (Respondent)

Solicitors: S.E. O'Connor (Respondent) File Number(s): 60738/93 Decision under appeal Court or tribunal: District Court Before: Saunders DCJ

Judgment 1. GROVE J: Peter James Glen appeared before his Honour Judge Saunders QC in the Penrith District Court on 22 September 1993 where he pleaded guilty to a count of sexual intercourse without consent which was accepted by the Crown in discharge of an indictment which also contained a more serious charge. It was noted that the opportunity to plead guilty to the lesser charge had first been made available on that day. The appellant was aged twenty seven years and had been employed as a linesman by Telecom. He claimed that he had been dismissed as a result of being charged with the present matter and although - as the sentencing judge commented - it would appear surprising that dismissal would follow what amounted to mere allegation, the appellant's assertion was not challenged. Thereafter he remained unemployed. His prior convictions were - in relative terms - minor. In 1991 he had been fined for cultivating a prohibited plant and further fined for driving an unregistered and uninsured vehicle whilst he was unlicensed. In 1992 he was fined for receiving. Saunders DCJ sentenced the appellant to two years penal servitude to date from 22 September 1993 with an additional term of a further two years. 2. The victim was one JV. A perspective of the offence requires some examination of the relationship between her and the appellant. They had known each other since they went to school together in the suburb of Shalvey. Their parents - or at least their mothers so far as the information before the court reveals - lived around the corner from each other. JV was the mother of a child AV of whom one Alan Loosenore was said to be the father. She had, however, for a span of about two and a half years prior to the offence been living in a relationship with the appellant. A daughter EV had been born. The relationship between the appellant and the victim was somewhat strained and he was expressing considerable upset about possible denial of access to his daughter and his exclusion from participating in her upbringing. 3. JV was called to give evidence in the sentencing proceedings by the appellant's representatives. He also testified. JV fixed the previous April as a time of cessation of her relationship with the appellant but her description of the severance merits examination. It was extremely laconic and although interrupted by counsel it can be gleaned that when she was moving to an address on the Central Coast she asked the appellant whether he was going to come with her. He responded in the negative although they continued to see each other on an "off/on period, sort of- more really, really close friends than anything." It is hardly surprising that the learned sentencing judge understood this in accordance with the finding which he made in these terms: "…since that time she had been seeing him they were close friends and nothing more." 1. The addendum "nothing more" was incorrect. The offence occurred on 12 October 1991 so that it was nearly two years before the appellant appeared for sentence. In the interim, JV had given birth to another son RV. That a sexual relationship had resumed between the parties is clear from the appellant's testimony that he was seeking then to find out whether he was the father of RV. His candidacy was not contradicted by JV and it might be observed that in written submissions and in testimony in this Court he has now positively asserted his paternity. In passing I add that the approach of the appellant to JV was in breach of bail conditions then pertaining and it is clear JV was aware of this although obviously she reported nothing about it. 2. I can begin a description of events leading up to the offence a few days beforehand. JV had arranged with a girlfriend of hers to take that girlfriend's three children from their home on the Central Coast to her mother's place in an outer Sydney suburb where she was spending some school holidays so that the children could visit Australia's Wonderland Amusement Park. The appellant assisted in this excursion. Owing to some delays however the children did not visit the park. They were returned to the Central Coast. However on 12 October the appellant turned up with these children again. It is unnecessary to trace everybody's movements on that day. According to the appellant he consumed a considerable quantity of liquor in the course of the day including a bottle of bourbon and a large amount of beer. He had also acquired some marijuana. 3. The appellant was later in the night still accompanied by the three children from the Central Coast. He was by then at the home - nearby to both his and JV's mother's dwellings - of a man named Gibbonson. JV had retired for the evening when the appellant by means of persistent telephone calls persuaded her to come to the Gibbonson house. They walked together from there to the residence of some people called Mayer but they were out and they returned to the Gibbonson's residence. In the front yard of this residence the offence occurred. The appellant's version that intercourse took place within the house should be rejected. It is plain that the appellant was behaving hysterically as well as sexually aggressively and insofar as the victim succumbed it was no indication of consent. The absence of consent was a factor conceded by the appellant in his plea of guilty. 4. It is a somewhat bizarre aspect to the whole affair that the offence occurred virtually in public in a yard. The appellant's mother passed by whilst it was occurring. JV asked Mrs Glen for assistance and it is perhaps some indication of existing undercurrents that Mrs Glen gave voice to feelings of utter exasperation and indicated that she was going to - for the first time in her life - ring the police. As events turned out, after the victim returned home she spoke to her mother and it was her mother who telephoned the police. JV did not return home however until after she had shared some marijuana with the appellant. It appears that when she returned she had a bruised lip which had previously been bleeding and this attracted attention. The causing of harm is not an ingredient in the offence for which the appellant stood for sentence. 5. The appellant was originally unrepresented in this appeal but he has since retained Mr Hidden QC. Mr Hidden did not appear below but the appellant was then represented by counsel. 6. The appeal, despite the plea of guilty, is against both conviction and sentence. Evidence was taken in relation to the first of these issues. In substance the assertion of the appellant was that he did not appreciate when he pleaded guilty that he was acknowledging the absence of consent of JV to sexual intercourse. His explanation for offering the plea was that he had understood a communication from his counsel to mean that unless he pleaded guilty he was likely to be deprived of access to his daughter. So motivated, but without really understanding the extent of his acknowledgment, he offered the plea. In cross examination he repeated that he never denied having intercourse and added ''I am just saying it was never forced upon her, it was always consented." He reasserted that by pleading guilty he did not realize that he was actually admitting the absence of consent. The insincerity of the appellant's evidence was revealed shortly after that and no elaboration is required upon this extract from the transcript: "Q. What did you think the plea of guilty meant? A. Just thought that was a lesser plea. Mr Barnett stated to me, you know, 'Best of my knowledge you wasn't going to gaol, worse that will happen to you you will get weekend detention.' If I thought pleading guilty to get my daughter, I will plead it. LOVED AY AJ: Q. Pleading guilty to what? A. Lesser charge. Q. Charge of what? A. Sex without consent. Q. Charge of what? A. Sex. GROVE J: You did say sex without consent? A. Yes. HOWIE: Q. You knew when pleading guilty you were admitting to sex without consent? A. Yes." 1. The solicitor acting for the appellant at trial was called. I found his evidence acceptable and I would be prepared to depend upon it. Significantly he obtained written instructions from the appellant prior to the arraignment. The terms of the instructions were: "I hereby authorize and direct you that I wish to accept the prosecution's offer of accepting a plea of non consensual intercourse and leaving the aggravated sexual assault charge out. I understand that [JV] has indicated that she does not wish to see me go to gaol, and is willing to give evidence that she thinks I have been a good person most of the time and that I have been a fairly good father to [EV] and that she wants me to get help. I understand that there is no guarantee that on my plea of guilty to non consensual intercourse that I won't be given a gaol sentence. I understand and my solicitors and counsel have explained to me that if I were to plead not guilty and have the trial run and I were to be found guilty by the court that there is a much greater chance of me being sentenced to a gaol term and that it might be a very significant term. I understand that there is a possibility of winning my case, however there were a number of difficulties including the record of interview and the evidence of injury and complaint." 1. Other matters were canvassed in support of setting aside the plea of guilty. In essence they all focussed upon a proposition that the admission of guilt involved in the plea should be regarded as tainted as not being a free and voluntary confession: cf Reg v Chiron [1980] 1 NSWLR 218. The terms of the written instructions, the evidence of the solicitor Mr Magee and the lack of credibility attaching to the appellant's assertion combine to make his position on this issue quite untenable. The references to the appellant's fears concerning access to his daughter show a contribution to the motives which the appellant may have had in offering his plea of guilty but they do not erode the necessary qualities which his confession has, nor do they provide a ground for permitting him not to adhere to it. 2. Counsel for the appellant has submitted that the sentencing judge fell into error in failing to give adequate weight to the lack of any relevant prior record, the emotional background to the incident - including his fears concerning future contact with his daughter which I have earlier mentioned, - the remorse expressed in his evidence and the attitude of the complainant. 3. None of these matters was overlooked by the sentencing judge. In particular, he made express reference to the attitude of the complainant. It cannot be that the attitude of complainants can govern the duty of a court when proceeding to sentence. As has been pointed out elsewhere, the adoption of such a practice or philosophy would involve taking into account the desires of unforgiving complainants for vengeance or salutary penalty. 4. There is in my opinion no error of consequence disclosed in the remarks made by the sentencing judge. It was an ingredient of the offence to which the appellant pleaded guilty that there was no consent. The existence of a relationship between the parties does not diminish the entitlement of a woman to engage in sexual intercourse only if and when she consents to it. 5. It was a serious offence and committed in a place that was open to the public view of passers by. 6. I do not regard the total term assessed by his Honour as outside appropriate range and it has been divided to the advantage of the appellant into minimum and additional term. 7. I have referred to the absence of error of consequence in the remarks of the sentencing judge. The evidence was presented in a confused fashion but his conclusion that the resumption of relations between the victim and the appellant did not involve sexual congress was wrong. That error of fact does not seem to me to vitiate the sentence and I do not consider that a less severe sentence was warranted nor that in terms of the Criminal Appeal Act such a sentence should be substituted. The appellant's own evidence showed that he was well aware that intercourse should only take place by consent and that forcing his attentions upon his partner was punishable. The circumstances of their relationship before and afterwards do not in my opinion detract from the proportionality of the sentence. 8. I propose that the appeal be dismissed and the conviction confirmed. Leave to appeal against sentence granted but the appeal dismissed. Time to count. 9. SIMPSON J: I have had the advantage of reading in draft the reasons for judgment of Grove J, and I agree with the orders proposed and the reasons therefor. I wish to add only a few words on the relevance of the attitude of the victim of the offence to the sentence which should be imposed. I do not suggest that forgiveness by a victim can never be a relevant factor in the sentencing decision. It has been so regarded in the past, particularly in relation to offences such as culpable driving causing grievous bodily harm or death. The forgiveness of the family of a victim killed by reckless or drunken driving is a matter that courts from time to time take into account in the sentencing process. It is appropriate that they do so. One might speculate that the community would consider it appropriate. The converse, of course, cannot so readily be accepted. A victim or family of a victim calling for vengeance could create special difficulties for courts, and it is, in my view, generally undesirable that the sentencing process be subjected to distraction from a consideration of what is, in an overall sense, a proper result. 10. An imbalance or one sidedness is thereby immediately created; a merciful attitude by a victim, or victim's family may be material, a vengeful attitude cannot or should not be. This imbalance is common to all offences in which there is an identifiable victim, and is only one of number of reasons why caution should be exercised in the consideration of such evidence. 11. In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness. 12. There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have. 13. For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases. 14. The second reason of principle for treating with extreme caution the evidence of the forgiveness of the victim in the circumstances of this case is that the legislature has, since 1982, made clear its intention that special considerations apply to offences of domestic violence. Not only is the present offence one which, in ordinary parlance, would be categorised as a domestic violence offence; it is so within the meaning of that term in the Crimes Act 1900. And it is in respect of such offences that special measures were taken, including the introduction of s 407AA to the Crimes Act 1900, inter alia, removing the long established non compellability of one spouse to give evidence against another. The second reading speeches in both houses of the NSW Parliament when these provisions were introduced make it perfectly clear that the intention of the legislature that domestic violence offences should be treated with equal seriousness to other offences of violence. The then Vice President of the Executive Council, the Honourable D P Landa, said in the Legislative Council: "These provisions are an integral part of the Government's plan to eliminate domestic violence. It is the intention of the Government to ensure that police play an effective role in investigating domestic violence, and where necessary, in prosecuting offenders. Domestic assaults are criminal offences, but because of the circumstances in which they occur, the evidence of the victim is usually essential if prosecutions are to be successful. The existing law as to the compellability of spouses recognises the special relationship between partners in a domestic relationship. However, where the object of the court proceedings is to protect one spouse from the other, it is entirely inappropriate that the court should be deprived of the most important evidence. It is an unfortunate fact that wives are frequently pressured by their husbands not to give evidence in proceedings for assault which the wife may have herself commenced. This is a loophole which must be closed ... The spouse is placed in a position similar to that of a Crown witness. This provision has great social force because in many of the cases on record of spouses finally withdrawing their wish to testify it has been proved subsequently that that was done under duress and threat of a further incident occurring, either before or after giving evidence. Often times that withdrawal has caused people to think that a reconciliation had occurred." (Legislative Council and Legislative Assembly, Parliamentary Debates (Hansard), 24 November 1982 at 2893,2905) 1. Earlier, the then Premier, Mr Wran, in the second reading speech in the Legislative Assembly had said: "The rule about spouses not being compellable against other spouses in criminal cases relates to the intimacy of the marriage relationship. However, it is now recognised that where women are themselves the victims of assault by their husbands, it is harsh and unfair to put upon them the burden of making the decision about whether or not the case should proceed. Moreover, up until now a great discouragement to the police against ensuing cases of domestic violence has been the repeated situation of victims who are key witnesses withdrawing from giving evidence. Victims are often subjected to a great amount of undue pressure and threats to not give evidence." (Parliamentary Debates (Hansard), 9 November 1982 at 2367) 1. These remarks, directed to the compellability of a victim of domestic violence to give evidence, are equally apposite to the receiving of evidence of the post offence attitude of the victim. It is, or can be, in my view, harsh and unfair to put upon a victim the burden of participating in the sentencing decision. There is absolutely no evidence in the present case which would suggest that the victim's forgiveness had been brought about by the threats or pressure referred to. But if a practice were to be adopted of taking that factor into account in sentencing, it is obvious that such a temptation will present itself to the perpetrators of domestic violence. 2. Accordingly, I consider that the victim's attitude to sentencing in this case was not a matter which should have influenced the sentencing decision. 3. I agree with the orders proposed by Grove J. 4. LOVEDAY AJ: I agree with the judgment of Grove J and have nothing to add.