Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BB v R [2017] NSWCCA 189 Hearing dates: 26 July 2017 Date of orders: 11 August 2017 Decision date: 11 August 2017 Before: Bathurst CJ at [1] McCallum J at [2] Bellew J at [3] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – Appeal – Sentence – Accumulation – Totality – Whether degree of accumulation of sentences was inadequate CRIMINAL LAW – Appeal – Sentence – Where applicant pleaded guilty to break and enter and commit a serious indictable offence in circumstances of aggravation – Where applicant indecently assaulted fifteen year old girl who was asleep in her own home – Where applicant's criminal history included an instance of similar offending – Applicant sentenced to a non-parole period of four years imprisonment and an additional term of three years imprisonment – Whether sentence manifestly excessive – Use of sentencing statistics – Where Court asked to compare the sentence with those imposed in two other cases of what were said to be like offending – Sentence not manifestly excessive in all the circumstances Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Andrews v R [2011] NSWCCA 24 House v The King (1936) 55 CLR 499; [1936] HCA 40 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 MLP v R [2014] NSWCCA 183 Pannowitz v R [2016] NSWCCA 13 RLS v R [2012] NSWCCA 236 Smith v R [2013] NSWCCA 209 Category: Principal judgment Parties: BB – Applicant Regina – Respondent Representation: Counsel: I McLachlan – Applicant H Roberts - Respondent Solicitors: Watsons Solicitors – Applicant C Hyland Solicitor for Public Prosecutions (NSW) – Respondent File Number(s): 2015/178895 Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 17 February 2016 Before: Toner SC DCJ Judgment 1. BATHURST CJ: I have read the judgment of Bellew J in draft. I agree with the orders his Honour proposes and with his reasons. 2. McCALLUM J: I agree with Bellew J. 3. BELLEW J: 4. Introduction 5. BB ("the applicant") pleaded guilty before the Local Court to an offence contrary to s. 112(2) of the Crimes Act 1900 (NSW) in the following terms: That he did on 17 June 2015, at Tuncurry in the State of NSW, break and enter the dwelling house of the victim and then in the said dwelling house did commit a serious indictable offence to wit, indecent assault in circumstances of aggravation, to wit, knowing the person was there within. 1. The applicant adhered to that plea of guilty when he appeared before the District Court for sentence. On 17 February 2016, his Honour Judge Toner SC sentenced the applicant to a non-parole period of 4 years imprisonment, with an additional term of 3 years. 2. The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below. The facts of the offending 1. Commencing at ROS 1, the sentencing judge found the facts of the offending to be as follows (noting that any reference which might identify the victim of the offending, who was only 15 years of age, has been redacted): 1. The victim … 15 years of age, resided … with her mother ... The premises is a three bedroom single storey dwelling. The front of the premises is accessed by a glass sliding door with the victim's bedroom located on the right once inside the front door. 2. At about 10.00pm on Tuesday the 16th of June 2015 the victim went to bed, shortly followed by her mother and her mother's partner …, who was staying at the premises overnight. (The victim's mother) turned off all the lights and made sure all the windows and doors were closed before going to her room at the rear of the premises. The front glass door was closed but unlocked. 3. At about 12.20am on Wednesday the 17th of June 2015, the offender entered the premises via the closed front sliding glass door. He then entered the victim's bedroom and removed his shorts and underwear before leaning over the victim as she slept. The victim was lying on her back underneath blankets. At the time she was wearing an oversized black coloured jumper and a pair of black underpants. 4. The offender kissed the victim on her mouth somewhat forcefully. She woke, confused, and said, "What are you doing? Get out!" The offender put his hand over her mouth and said, "Don't scream. Calm down". He took his hand from her mouth and continued to kiss her forcefully. She screamed. He again placed his hand over her mouth, forcefully, and said, "Calm down. It's okay." She said "Get out!" again. The offender persisted with more force. He continued kissing her and then placed one hand over her mouth as he used his other hand to touch her left breast over her jumper. She screamed louder. The offender began to get angry and aggressive and the victim feared he was about to hurt her. The offender persisted and rubbed her vagina over her underwear with his hand for a matter of seconds. The victim screamed louder again for her mother. The offender again put his hand over her mouth and nose and she struggled to breathe. He got onto the bed, on top of her and straddled her waist. He said in an aggressive tone, "Don't scream". The victim smelt he was wearing cologne and could not smell alcohol. The offender, as he was in the straddling position, put some of his weight on the victim's cat that was on the bed asleep and it cried out. The victim used one of her hands to grab/strike the offender's penis and it startled him. She felt his penis was exposed and possibly half-erect. She slid from underneath him and onto the floor where she screamed for her mother and obtained a fruit knife that had been next to her bed. 5. Her mother, having heard the screams, ran to the daughter's bedroom and turned on the bedroom light. She saw her daughter standing next to her bed holding a knife out. She was crying and screaming hysterically. She saw the offender leaning over her daughter's bed wearing only a black t-shirt. He wore no pants. She immediately recognised him as an employee at a local bottle shop whom she'd had a casual sexual tryst with 18 months prior. He had a distinct neck tattoo amongst other features. 6. (The victim's mother) screamed at the offender to get out and pushed him away from her daughter. He said "Calm down. Settle down. I'm just in the wrong house. I thought I was in my girlfriend's house. I'm drunk, that's all." She asked him how he got in and he replied, "The front door was unlocked". She pushed him out of the bedroom and into the dining room. She then tried to open the front door to have him leave and found it locked. She queried this and he said, "I locked it". She unlocked and opened it and she and (her partner) tried to push him out. He refused to leave and resisted, saying, "Just let me get my pants. I'm not leaving until I get my pants". He was still completely naked from the waist down. (The victim's mother) couldn't push him out so (her partner) retrieved a pair of dark baggy shorts and black y-front underwear from the floor of the victim's bedroom and threw them at the offender. The offender took the clothes outside and began putting them on. He said, "Calm down" nonchalantly. (The victim's mother) shut the door behind him. It had taken about 2-3 minutes to get him to leave. Neither (the victim's mother) nor (her partner) smelt alcohol on the offender but formed the opinion he was drug-affected. 7. The victim made immediate complaint to her mother and (her partner) of the offender having kissed her, touched her breast, put his hand over her mouth, and touched her vagina. She told them he was on top of her and slid out when the cat got hurt. 8. The victim had called 000 and Police attended a short time later. Police were informed of (her mother's) recognition of the offender. The house was declared a crime scene and later forensically examined. Photographs and swabs of the scene were obtained. The victim's clothes were seized. 9. At about 3:40am, Police attended ….. an address approximately 300m away from the victim's home, and spoke to …. the offender's ex-partner. She informed Police that she had terminated her relationship with the offender and he had not lived with her since 9 April 2015 and that he had a new mobile number. She offered some addresses she'd heard he was staying since and provided his new mobile number. 10. At about 5:45am Police attended ….. just up the road, and saw the offender peering out from a second storey window before stepping quickly back. Police knocked on the front door and the offender presented. Police formed the opinion he was affected by prohibited drugs. He didn't smell like alcohol but like cigarettes, body odour and aftershave. He was placed under arrest and cautioned. Police asked him about his movements during the evening and he said "Yeah, fuck man. I went into the wrong house. I thought it was my girlfriend's house. I got a shock... but that's only off the record... shh." Police informed him nothing was off the record and activated a hand-held recording device. Police attempted to have him adopt his comments but he refused to. 11. Police searched him and found a capped syringe in his right short pocket and an empty plastic resealable bag in his left short pocket. The offender said, "I'm always taking stuff" in relation to prohibited drugs, and said he'd last used the night prior. 12. Police spoke to the other occupant of the house, Michael Newell and recorded the conversation. Newell said the offender had been staying with him the past fortnight. Police, with Newell's consent, searched the bedroom the offender had been using and located a pile of wet clothes on the floor. It had been raining that night. The pile consisted of the following: Black t-shirt; Dark baggy shorts with a white pin-stripe; White t-shirt; Black jacket; Black underwear; and A pair of white Nike shoes. The items were photographed and seized for analysis. 13. The offender was conveyed to Forster Police Station and entered into custody. At midday, 17 June 2015, he was afforded the opportunity to participate in an electronically recorded interview with Detectives. He accepted that opportunity but refused to answer questions put to him. He did however state he was under the influence of methylamphetamine at the time he was arrested and the night prior. At the conclusion of the interview he was charged and bail refused. 14. Later that day, the victim made a formal record of interview. On 18 June 2015 both (the victim's mother) and (her partner) provide (sic) statements and successfully selected the offender from photo identification boards. His Honour's assessment of the objective seriousness of the offending 1. Commencing at ROS 6 his Honour noted the standard non-parole period of five years imprisonment, before describing the offending as a "serious rendition of this crime". He did not accept that the applicant was drug affected at the time. He specifically rejected the applicant's explanation that he was at the premises by mistake, describing such the applicant's assertion that he thought that he was at the premises of his former partner as "fanciful". His Honour went on to conclude (at ROS 8): I am of the view that there was a degree of premeditation in relation to this matter; he knew his victim's mother. I am of the view that he went into the premises intending to do what he did. This was not an opportunistic crime. I am of the opinion that given those factors this offence rests in the very middle of objective seriousness for offences of its type and I will utilise that determination in deciding what weight and what effect the fact of the standard non-parole period has upon sentencing here, concordant with the statute and with the principles identified by the High Court in Muldrock. Other sentences imposed by the applicant 1. A short time after the commission of the offence on 17 June 2015 the applicant was taken into custody and was refused bail. He remained in custody at the date of his sentence. At the time of his arrest he was on conditional bail for a number of other offences ("the driving offences") in respect of which he was sentenced as follows: Charge & date of offence Court and date Sentence 1. Refuse or fail to submit to breath tests committed on 10.5.15 (H57590444) Forster Local Court on 1.10.15 1. Fined $500 Disqualified for 12 months. 2. Drive motor vehicle whilst disqualified committed on 10.5.15. 2. Imprisonment for 12 months with non-parole period of 8 months from 1.10.15 to 31.5.16. Disqualified for 2 years. Drive motor vehicle whilst disqualified committed on 8.5.15 (2nd offence) (H56943230) Forster Local Court on 1.10.15 Imprisonment for 6 months from 1.10.15 to 31.3.16. Disqualified for 2 years. Drive motor vehicle whilst disqualified committed on 17.4.15 (2nd offence) (H57482022) Forster Local Court on 1.10.15 Imprisonment for 12 months commencing 1.101.15 with non-parole period of 6 months from 1.10.15 to 31.3.16. Disqualified for 2 years. 1. Each of the sentences imposed for the driving offences was expressed to date from 1 October 2015 (i.e. the date on which he appeared before the Local Court). The period of custody served by the applicant between his arrest on 17 June 2015 and 1 October 2015 (approximately 3½ months) was solely referrable to the offence for which he was sentenced by Judge Toner. The period of custody served between 1 October 2015 and 31 May 2016 was solely referrable to the driving offences. THE GROUNDS OF APPEAL Ground 1 – His Honour breached the principle of totality when imposing the new sentence on the existing sentences The reasons of the sentencing judge 1. At ROS 10, having referred to the sentences imposed for the driving offences, his Honour said: It really is a quirk of circumstances that (sic) the way in which those matters are taken into account. Had he been sentenced in relation to those matters after he had been sentenced for this I have no doubt that the magistrate would have imposed sentences which would have been wholly concurrent to the non-parole period I propose to fix. If I take into account the three and a half months that he has served so far I would backdate the commencement date of this sentence to 14 February, however I am of the opinion that I ought to make further allowance to reflect true principles of totality in this case and partially accumulate the sentence that I propose to impose upon those other sentences that were imposed by the magistrate that I have just alluded to. The sentence that I will impose upon him today will commence on 1 January 2016. Submissions of the applicant 1. Counsel for the applicant did not submit that the approach taken by the sentencing judge in imposing the sentence was contrary to principle. However he submitted that the degree of concurrency allowed was "erroneously inadequate" because his Honour: 1. had acknowledged that had the Local Court dealt with the driving offences first, it was likely that no additional period of custody would have been imposed on the applicant in respect of such matters; and 2. had allowed a period of only 6 weeks effective concurrency, in circumstances where there was "temporal proximity" between the offending for which he was sentencing the applicant, and the driving offences. Submissions of the Crown 1. The Crown submitted that in circumstances where the driving offences were different in nature, and had been committed at an earlier time, it remained within the bounds of a proper exercise of discretion for the sentencing judge to structure the sentence as he did. It was submitted that had the sentence imposed been wholly concurrent with the sentences imposed for the driving offences, the applicant would have received no effective punishment for the latter. 2. The Crown submitted that the driving offences were not part of the same course of criminal conduct as the subject offence. It was also pointed out that the subject offence was committed after the applicant had been charged with, and released on bail in respect of, the driving offences. 3. The Crown further submitted that it was evident from the remarks of the sentencing judge that he had specifically turned his mind to the question of totality, and that no error was established. Consideration 1. The extent of accumulation and concurrency which might be ordered by a sentencing judge involves the exercise of judicial discretion in accordance with established principle: Pannowitz v R [2016] NSWCCA 13 at [40] per Davies J (Hoeben CJ at CL and Beech-Jones J agreeing). In that case, his Honour also observed (at [41]): Because the determination of accumulation and concurrency is a matter of discretion the Applicant is required to show a House v The King (1936) 55 CLR 499 error. No such error was identified apart from the submission that the extent of the accumulation was too great. 1. Similarly, the gravamen of the applicant's complaint in the present case was that the degree of concurrency allowed by his Honour was inadequate. No specific error of the kind discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40 was identified. Rather, it was the applicant's position that the degree of concurrency was so inadequate as to be reflective of error. 2. I am unable to accept that submission. The driving offences were entirely unrelated to the subject offence and were different in both nature and time. Moreover, the sentencing judge was obviously mindful of considerations of totality, having made specific reference to it. In these circumstances, the sentence imposed was one which was within the bounds of a proper exercise of sentencing discretion. 3. For these reasons, this ground is not made out. Ground 2 – The sentence imposed is manifestly excessive The evidence before the sentencing judge 1. In terms of the applicant's subjective case, a pre-sentence report before the court noted that the applicant disclosed that he had been diagnosed with ADHD as a child, and was currently prescribed medication in custody "for mental health issues". 2. A report of Monica Schweickle, Clinical Psychologist, was also before the sentencing judge. Under the heading "Summary and Opinion" Ms Schweickle said (inter alia): "In sum, (the applicant) is currently opiate dependent, and meets criteria for Acute Stress Disorder, Major Depressive Disorder and Attention Deficit/Hyperactivity Disorder – Hyperactive Subtype. Upon stabilizing his substance abuse, through intensive treatment, his mental health and impulse control may improve. He stated that he is not currently receiving any treatment in prison. Given his mental health issues, a custodial sentence is likely to weigh more heavily on him than the average person. His best chance at rehabilitation is to firstly complete a drug use treatment program, incorporating opiate pharmacotherapy, and psychotherapy to learn impulse control, and strategies to regulate emotions and manage drug-related cravings. 1. In a handwritten letter to the sentencing judge, the applicant (inter alia) apologised for his actions, expressly acknowledging that the incident would have frightened the victim and her family. The findings of the sentencing judge 1. I have previously set out the findings of the sentencing judge in relation to the facts of the offending, and his Honour's assessment of its objective seriousness. His Honour dealt with the applicant's subjective case commencing at ROS 8. He noted that the applicant was then 31 years of age. He observed that until about the age of 13 the applicant's life was "comfortable enough" but that this was interrupted when his father was badly injured in an industrial accident. His Honour found that from that time, the applicant's life "largely collapsed around him", leading to the eventual breakup of his family. 2. The applicant became his father's carer until his death in the applicant's mid-20's. As a consequence, the applicant had a somewhat sporadic employment history. His Honour also observed (at ROS 8) that the applicant had had a drug problem since the age of 16 and had used, in the intervening period, "a cocktail of drugs", including ice and heroin. 3. The applicant's criminal history was before the sentencing judge. His first appearance before a Court as an adult was in 2006. His criminal history included offences of violence as well as driving offences. Significantly, in 2007 he was sentenced to a term of imprisonment for a charge of assault with an act of indecency. The facts in respect of that offending were before the sentencing judge. Broadly speaking, that offending was not dissimilar to that for which the applicant was sentenced by his Honour. The applicant was given the benefit of a suspended sentence on that occasion but was later sentenced to a term of imprisonment as a consequence of breaching his bond. 4. His Honour was satisfied on the basis of the report of Ms Schweickle that the applicant was suffering from a "severe depression", although he was not satisfied that there was any causal connection between that condition and the offending. He accepted the applicant's assertion, contained in his letter to the Court, that he had been assaulted since being taken into custody and concluded (at ROS 12) that this was a matter which should be taken into account in mitigation. 5. His Honour concluded that it was important to emphasise the need for both specific and general deterrence. He said that he had a "jaundiced view" about the applicant's prospects for rehabilitation and was "cautious" about them. Notwithstanding those reservations, and on the basis of the applicant's depressive condition and the need to address his drug addiction, his Honour found that there were special circumstances. Having said (at ROS 14) that those circumstances would be "tempered to some extent", his Honour adjusted the ratio between the non-parole period and the head sentence to one of 57%. Submissions of the applicant 1. Counsel for the applicant submitted that a number of factors supported a conclusion that the sentence was manifestly excessive. Those factors included: 1. his Honour's finding that the offence fell at the mid-range of objective seriousness; 2. the discount of 25% which was applied in recognition of the applicant's early plea of guilty; 3. the fact that the standard non-parole period of the offence was 5 years; and 4. the applicant's mental health issues. 1. By reference to sentencing statistics, counsel for the applicant pointed to the fact that the sentence imposed upon the applicant fell into the highest 5% of sentences imposed for offences contrary to s. 112(2). This, it was submitted, was indicative of the manifest excess of the sentence. 2. Finally, counsel for the applicant relied on decisions of this Court in Andrews v R [2011] NSWCCA 24 and Smith v R [2013] NSWCCA 209 in support of the submission that the sentence was manifestly excessive. Submissions of the Crown 1. The Crown submitted that the finding of the sentencing judge that the offending fell in the mid-range of objective seriousness was, from the point of view of the applicant, a generous one. In this regard the Crown pointed, in particular, to the fact that the offending occurred in the home of the victim, in her bedroom, and in the middle of the night. 2. In terms of the applicant's reliance upon sentencing statistics, the Crown submitted that such material was of limited use. Similarly, the Crown submitted that the two authorities relied upon by counsel for the applicant for comparative purposes were readily distinguishable from the present case. 3. In all of these circumstances, and bearing in mind the nature of the offending and the applicant's criminal history, the Crown submitted that this ground was not made out. Consideration 1. In order to succeed on this ground the applicant must establish that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 35; [2005] HCA 25; at [25]. 2. Counsel for the applicant did not cavil with any of the factual conclusions reached by the sentencing judge. His Honour expressly rejected the applicant's explanation for how he came to be in the victim's premises. His Honour also found that: 1. there was "a degree of pre-meditation"; 2. the applicant went to the premises "intending to do what he did"; and 3. the offending "was not an opportunistic crime". 1. The applicant's offending was obviously serious. Having gained entry to the victim's premises and gone to her bedroom, the applicant (in the face of obvious resistance by the victim) persisted in his offending. As he did so, the force that he applied to the victim escalated. The increasingly louder screams of the victim were met by the applicant attempting to stifle them by putting his hand over her mouth, resulting in her struggling to breathe. It was only when the applicant was startled by being grabbed by the victim that she was able to escape from the physical hold that he had on her. Moreover, the applicant did not leave the premises when the victim's mother intervened. She effectively had to force him to do so. On any view of it, this would have been a most frightening experience for the victim. 2. It is not an element of an offence under s. 112(2) that the premises in which the offending occurs are those of the victim. Accordingly, contrary to his Honour's observations during the sentence proceedings (at T28 L5 and following) it would not have amounted to impermissible double counting for his Honour to have taken into account the fact that the offending was committed in the victim's premises: Chung v R [2017] NSWCCA 48 at [47] per the Court (Beazley P, R A Hulme and Bellew JJ). In this respect his Honour's approach was one which incorrectly favoured the applicant. 3. In light of all of these factors, his Honour's ultimate finding that the offending fell at the mid-range of objective seriousness might be regarded as a generous one from the point of view of the applicant. 4. The applicant's criminal history included not dissimilar offending, albeit some years ago. That is obviously significant. Moreover, as previously noted, the sentencing judge found that there were special circumstances and substantially reduced the ratio between the non-parole period and head sentence. In doing so, his Honour expressed caution about the applicant's prospects of rehabilitation, admitting that he had a "jaundiced view" about them. There was little evidence which pointed to a conclusion that a longer period on parole would assist the applicant's rehabilitation. Further, having indicated that he would "temper" his finding of special circumstances, his Honour in fact reduced the statutory ratio between the non-parole period and the head sentence from 75% to 57%. In my view, his Honour's finding that these were special circumstances, and his degree of adjustment of the statutory ratio, were also generous to the applicant. 5. The fact that the statistical material in the present case may demonstrate that the sentence imposed upon the applicant is at the upper end of the range of sentences imposed for this kind of offending does not, of itself, support the proposition that the sentence is manifestly excessive: MLP v R [2014] NSWCCA 183 at [45]-[46] per Bellew J (Macfarlan JA and Adamson J agreeing). Any assistance provided by statistical material is also limited by the fact that s. 112(2) covers a particularly wide range of offending, along with the fact that the statistics say nothing about the circumstances of the individual offences: Smith v R [2013] NSWCCA 209 at [64]-[66] per R A Hulme J (Leeming JA and Button J agreeing). 6. To the extent that the applicant sought to draw support from a comparison between the sentence imposed in the present case and those imposed in Smith and in Andrews v R [2011] NSWCCA 24, it has been observed on a number of occasions that consistency in sentencing is not demonstrated, and does not require, numerical equivalence, and that what is sought is consistency in the application of relevant legal principle: see for example MLP at [41]-[44] and the authorities cited therein. For all of these reasons, the necessity to take particular care when engaging in such comparative exercises, and the importance of considering the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case, have been emphasised: see for example RLS v R [2012] NSWCCA 236 at [132] per Bellew J (McClellan CJ at CL and Johnson J agreeing). 7. Reference to the two authorities to which the Court was taken demonstrates that, when compared to the present case, there are factors which distinguish the objective circumstances of the offending, and/or the subjective circumstances of the offender. In Andrews, although the offending was of a broadly similar nature, it was of less objective severity. There was no finding (as there was in the present case) that the offending was premeditated. Moreover, the offender in that case suffered from an intellectual impairment which was found to be causally related to the offending. Even allowing for those factors, Hall J (with whom Beazley JA (as her Honour then was) and James J agreed) described the sentence imposed at first instance (a non-parole period of 2 years and 6 months and an additional term of 2 years and 6 months) as "a very lenient one" (at [24]). 8. The offending in Smith was of a different nature (in the sense that the serious indictable offence was that of intimidation). It took place in a context of previous domestic violence perpetrated by the offender on the victim, in breach of an apprehended violence order, and at a time when the offender was subject to good behaviour bonds. That said, there were aspects of that offender's subjective case which did not form part of the subjective case of the applicant. They included a finding that there were good prospects of rehabilitation. 9. Leaving aside such distinguishing factors, any assistance provided by a comparison of those cases with the present is further diminished by the fact that those cases obviously represent a small percentage of matters of this kind. In Smith, R A Hulme J relevantly observed (at [67]): The "comparable" cases to which attention was specifically invited do not support the applicant's proposition. They are but two cases of many. It is difficult to support a proposition that a sentence is manifestly excessive by comparison with so few other cases. 1. For all of these reasons, I am not persuaded that the sentence is manifestly excessive. 2. It follows that ground 2 is not made out. ORDERS 1. I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed. ********** 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: 11 August 2017