Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Simmons v R [2019] NSWCCA 20 Hearing dates: 1 February 2019 Date of orders: 15 February 2019 Decision date: 15 February 2019 Before: R A Hulme J Wright J Fagan J Decision: Leave to appeal granted. Appeal allowed. Sentence imposed in District Court quashed and in the lieu thereof the applicant sentenced to 15 years imprisonment with a non-parole period of 10 years. Catchwords: CRIMINAL LAW - sentence – multiple aggravated sexual assault offences – whether the sentencing judge erred in his approach to the applicant's subjective circumstances – whether the aggregate sentence is manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) - s 61J Cases Cited: BP v R [2010] NSWCCA 159 Bullock v R [2015] NSWCCA 131 Clinton v R [2014] NSWCCA 320 Dinsdale v The Queen; 202 CLR 321; [2000] HCA 54 Hili v The Queen; Jones v The Queen 242 CLR 520; [2010] HCA 45 Hughes v R [2018] NSWCCA 2 KT v R [2008] NSWCCA 51 R v AEM Snr & Ors [2002] NSWCCA 58 R v Baker [2000] NSWCCA 85 Tepania v R [2018] NSWCCA 247 Tuite v R [2018] NSWCCA 175 Yang v R [2012] NSWCCA 49 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Regina Alan Simmons Representation: Counsel: C Curtis (Crown) M Avenell (applicant) Solicitors: Solicitor for Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Ltd (applicant) File Number(s): 2015/225468 Publication restriction: No Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 26 April 2017 Before: McLennan DCJ File Number(s): 2015/225468 Judgment 1. THE COURT: The applicant seeks leave to appeal against an aggregate sentence of 18 years with a non-parole period of 12 years imposed in the District Court on 26 April 2017 for six counts of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW). Two further offences against the same section were taken into account on a Form 1. All of the offences were committed on the evening of 1 August 2015 in the course of a sustained attack upon a young female victim over more than an hour. 2. The applicant pleaded guilty to all charges in the Local Court. Each offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The circumstances of aggravation were, in each case, the infliction of actual bodily harm on the victim and the deprivation of her liberty. The following parts of s 61J are relevant: 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or … (i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. 1. The grounds of appeal are: 1 [The learned sentencing judge] erred in his approach to [the applicant's] subjective circumstances. 2 The aggregate sentence is manifestly excessive. The facts of the offences 1. The applicant was aged 18 at the time of the offences. The victim was a stranger to him, a young woman of 22 years walking home from work through the deserted streets of Bathurst shortly before 6:00 pm on a Saturday evening. The applicant was walking in the opposite direction and on the opposite side of the road but crossed over after he had passed the victim and approached her from behind. The initial acts of violence and the manner in which the victim was deprived of her liberty were as follows. The applicant seized her with a hold around the neck and dragged her backwards toward the embankment of the Macquarie River. She struggled but he was able to overpower her. When he had dragged her some 50 metres from the roadway the applicant threw the victim to the ground, held her face down and pushed his fingers into her nose causing it to bleed. She shouted repeatedly "Get off me". He said "Shut up and stop crying." He sat on the back of her neck and used his feet in an effort to force down her pants and underpants. 2. The applicant then squeezed hard with his hand around victim's throat until she felt as though she would pass out. When he let go she stood up and the applicant grabbed both her legs and caused her to fall on her back. He then sat on her chest and pinned her arms with his legs. He forced his hand inside her pants on the outside of her vagina. When she screamed "No" he punched her vagina with his closed fist five or six times causing great pain. She managed to break free and crawl a little way up the embankment. The applicant caught her, pulled her lower clothing down to her knees, climbed on top of her and punched her around the head repeatedly. 3. From that point onward the sexual assaults comprising the offences charged were as follows, in chronological order. His Honour's indicative sentences are shown in parentheses: Sequence 3: Immediately after punching the victim around the head as described above the applicant knelt in front of her, pushed his penis in front of her face and said "Suck it". She refused so he punched her hard to the side of her face with a closed fist then forced his penis into her mouth. (7 years and 6 months). Sequence 13 (taken into account on a form 1 in relation to Sequence 9): The applicant removed his penis from the victim's mouth, forced his forearm down on her cheek to push her head into the ground and completely removed her lower clothing. Whilst holding her head into the ground with one arm he used his free hand to force two of his fingers into her anus and moved them in and out, causing extreme pain. Sequence 5: The applicant turned the victim onto her back and forcibly penetrated her vagina with his penis. This was extremely painful and caused her to scream. She shouted "Get off me" and tried to push him off. He then bit her on the left cheek. (7 years and 6 months). Sequence 6: The applicant then sat on the victim's face with his anus near her mouth and said repeatedly "tongue, tongue". When she did not put her tongue in his anus as directed he forced his fingers into her vagina and attempted to force in his entire hand, causing vaginal tearing. He then lifted her legs in the air, again forced his fingers into her vagina then dropped her legs back to the ground. (9 years). Sequence 8: The applicant next forced his fingers deep into the victim's anus causing unbearable pain. He turned her onto her stomach, knelt beside her with one knee on her back to hold her to the ground and continued forcing his fingers into her anus, before pulling them out and forcing them into her mouth. He did this a number of times. The victim's anus sustained extensive tearing as a result. (9 years). Sequence 9: The applicant forced his penis into the victim's anus, causing still more pain. He pulled on the victim's shoulder causing her to arch backwards and then leaned forward to take hold of a mouthful of her hair which he ripped out with his teeth. (9 years, taking into account Sequences 13 and 14 on the Form 1). Sequence 10: Having removed his penis from the victim's anus the applicant seized her by her feet while she was still lying face down on the ground, pulled her backwards down the bank, pushed her onto her back, forced his penis into her vagina and thrust it in and out. She was crying uncontrollably and shouted "Why are you doing this to me?" to which he replied "Because I'm raping you" and "Because you like it". He pushed the victim's upper clothing away and bit her breast. She screamed in pain and he punched her hard to the right side of her face, continuing to thrust his penis in and out of her vagina. (9 years). Sequence 14 (taken into account on the Form 1 in relation to Sequence 9): The applicant walked the victim in a headlock toward the nearby creek causing her to fear that she was to be pushed into it. He let her go and told her to walk back up the embankment. Having forced her about halfway up, he pushed the victim to the ground and told her not to move while he searched about, apparently looking for his phone which he had lost during the attack. After a short time he returned to her and again forced his fingers into her vagina. 1. These events lasted over an hour. At the end of them the applicant told the victim "Don't move or I will kill you" and walked away. After some time, when the victim was sure he had gone, she left the scene and obtained help at the first house she came to. She was hysterical and was shortly afterwards attended by ambulance officers and police. Her injuries as assessed on medical examination included: 1. numerous abrasions, bruises and areas of swelling to various aspects of the face, notably the left eyelids which were so swollen that the eye could not be opened; 2. abrasions over the abdomen, buttocks and inner aspects of the upper thighs; 3. abrasions and bruising of the labia minora; 4. bruising to the anal verge with a bleeding laceration extending from the anus to the anal verge and 5. pain and tenderness over the anogenital area. The impact on the victim 1. In passing sentence the learned judge took into account not only the appalling indignity and violation to which the victim was subjected but also the extensive physical injuries and, as his Honour fairly described it, the lasting "psychological devastation" that had been inflicted. The latter was placed before the Court by way of an impact statement read by the victim. She detailed the damage done to her self-confidence, self-esteem and sense of physical security and to her capacity for social interaction and for work. These continuing psychological effects are understandable and quite predictable consequences of such a shocking experience. The sentencing judge's assessment of gravity 1. His Honour had regard to a number of sentencing decisions in cases of what he termed "random attacks on women". He reviewed sentencing statistics and recorded that he was "acutely aware of where, on the continuum of punishment as revealed by this statistics, [the sentence he would impose] falls". His Honour evaluated each individual offence as either mid-range or, in most cases, above mid-range. These evaluations were made upon a careful, count by count review of the core features of the applicant's violent actions. 2. His Honour's conclusions with respect to the entire episode were expressed as follows: [The victim was] subjected to what his counsel accepts was a brutal, sustained, animalistic sexual assault which featured elements of sadism. I have … drawn from my 36 years' experience practising exclusively in criminal law in two States. Simply put, this is one of the worst sexual assaults on a random female victim, who has not been subsequently murdered, that I have encountered. The applicant's subjective case 1. The applicant's mother is an indigenous woman and his father is of Caucasian Australian background. He was brought up in an aboriginal community at Kelso, east of Bathurst. On the basis of the report of a psychologist, Dr Colquhoun, and evidence from the applicant, his Honour accepted that the applicant had never known his mother and had only two recollections of her. First, he recalled having spoken to her on the telephone once when he was four years old. In that call she promised to visit him but never did. The second occasion was when he was 14 years old and someone informed him that his mother was at a party in the house next door with a large group of people who were drinking. He sent a message inviting her to come and meet him but she declined. The applicant has had no other contact with his mother, which his Honour concluded has led to a deep-seated anger for her abandonment and disregard of him. 2. The applicant was raised by his father up to the age of 15. During that time, his father was involved with illegal drugs, was in frequent conflict with police and was unstable in his mood and behaviour as a result of drug use. The applicant said he was frequently beaten by his father without reason and that in the locality where he grew up crime and illegal drug use were common. He smoked cannabis regularly from the age of 13 and started drinking alcohol about 2 years later. When the applicant was 15 his father was imprisoned for 2 years for breaking and entering. The applicant then had to live with his aunt, whom he said was verbally abusive, critical and unsupportive. His Honour found that the relationship with his aunt "was another source of anger". 3. The applicant had been in an "on and off" relationship with a girlfriend of about his own age for some years prior to the commission of these offences. During the day in question he had drunk bourbon, smoked cannabis and consumed prescription medication provided to him by a friend. He visited his girlfriend in the afternoon and took two "pinger pills". The applicant and his girlfriend had recently ended their relationship and he visited her to talk about renewing it. She had commenced a new relationship with an older man whom the applicant understood had criminal convictions. She made it clear that she did not wish to return to the applicant. He was seriously intoxicated during this conversation and told his psychologist that he passed in and out of consciousness during it. 4. At the conclusion he left the girlfriend's home in a state which Dr Colquhoun inferred would have been one of "extreme emotional distress compounded by a high level of drug intoxication". The applicant himself described it as "just feeling devastated … I was just so upset, angry … I had left [the girlfriend's house] just seeing red". Within minutes of leaving the house he encountered the victim on the street and the attack upon her ensued. On the basis of direct answers from the applicant in oral evidence his Honour considered that the applicant "took out his anger towards his mother, his aunt and his former girlfriend on [the victim]". 5. His Honour concluded that no indication of remorse had been shown up to the time of the sentence hearing. However during that hearing, after the victim had read her impact statement and the applicant had had time to reflect upon it, his Honour considered that he "has at last some genuine insight" and that he has "understood the anger within and the damage that it can do to others". 6. His Honour found special circumstances, namely the need for psychotherapy over a long period, warranting reduction of the non-parole period to two-thirds of the head sentence. A 25% discount was applied in arriving at each indicative sentence, in consideration of the applicant's plea of guilty in the Local Court. Consideration by the sentencing judge of the applicant's youth 1. The learned judge took into account the applicant's youth at a number of points in his remarks on sentence. First, in assessing his prospects of rehabilitation as fair, his Honour said: Unsurprisingly [Dr Colquhoun's] opinion is that his prospects of rehabilitation will be dependent upon whether the specific factors contributing to his offending are addressed, by which I take it is meant successfully addressed. The reality is only time will tell. Not everyone perseveres with the necessary and painful course of psychotherapy which is clearly warranted in his case. In his favour is his youth and his family support. Youth often provides a hope before behaviours become entrenched. On the other hand, deep-seated anger is clearly an aspect of his personality that must be dealt with. 1. Secondly, his Honour took into account the applicant's: special vulnerability in custody given that he is Aboriginal, young, of slight physical stature and this is his first custodial period. 1. Thirdly, his Honour said: I am cognisant of the need to recognise that the offender is young, has no prior record of sexual offending and may be able to recover from the disadvantage of his early life. I am concerned not to crush him but I must also keep in mind public confidence in the administration of justice and to avoid creating the impression that there will be some kind of discount for multiple offending against a victim in these circumstances … . Ground 1 - approach to subjective circumstances 1. With respect to ground 1 the applicant submitted that the learned sentencing judge gave insufficient weight to the subjective factors of prior good character, absence of previous offences, expression of remorse, prospects of rehabilitation, improbability of reoffending and specific impact of custody upon him as a vulnerable inmate. It is clear that his Honour took into account all of those matters for their proper relevance. The weight attributed to each cannot be discerned or measured. As was said in R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing): Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined. 1. This point has been frequently reiterated, for example in Yang v R [2012] NSWCCA 49 at [25]; Clinton v R [2014] NSWCCA 320 at [40]; Tuite v R [2018] NSWCCA 175 at [73]. In recognition of it, the applicant's argument in support of ground 1 was narrowed during the hearing to complaint about his Honour's treatment of only two subjective circumstances, namely, the applicant's youth at the time of his offence and his disadvantaged background. It was submitted that his Honour erred in principle in the way he took those matters into account. 2. The applicant's counsel cited Bullock v R [2015] NSWCCA 131 at [68]-[75] where Rothman J extracted principles concerning an offender's youth relevant to sentencing and referred to earlier decisions on the subject including R v AEM Snr & Ors [2002] NSWCCA 58; KT v R [2008] NSWCCA 51 at [22]-[26] and BP v R [2010] NSWCCA 159. Although the applicant in the present case had reached the age of majority he was certainly a young offender within the contemplation of these authorities. The learned sentencing judge recognised as much in the passages of his remarks quoted above. Those passages implicitly acknowledge and give effect to the principle stated by McClellan CJ at CL in KT v R at [22], namely: Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. 1. His Honour's reasoning also gave effect to the following countervailing considerations relating to young offenders (quoted from KT v R at [24] and [25]) (citations omitted): Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity … . In determining whether a young offender has engaged in "adult behaviour" … , the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence … . Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. 1. The applicant's criticism of the learned sentencing judge's reasoning concerns the principle stated by McClellan CJ at CL in KT v R at [23] (citations omitted): The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. … The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence … . Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. 1. It is submitted on behalf of the applicant that the learned sentencing judge should have concluded his offences were "a gross example of a lack of emotional control and impulse control which can reflect the immaturity of such a young person". It was further submitted that his disadvantaged background contributed to the commission of the offences in that he was deprived of an environment conducive to achieving emotional maturity commensurate with his chronological age. In this way counsel relied upon both his youth and the disadvantages of his upbringing as causative of the offences, thereby operating to reduce of moral culpability. The judgment of Johnson J in Tepania v R [2018] NSWCCA 247 at [112]-[119] was relied upon. 2. The first obstacle in the way of this submission is, as counsel conceded, "there was no evidence directed in terms to [the applicant's] level of emotional maturity and impulse control, in particular by reference to his age". Secondly, it was not submitted to the learned sentencing judge that the offender's youth, either alone or in combination with his disadvantaged background, caused him to lack either "emotional control or impulse control" or that such underlying deficits were causative of what took place. 3. In Zreika v R [2012] NSWCCA 44 Johnson J said (with the concurrence of McClellan CJ at CL): [81] The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]. [82] In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance. 1. It cannot be said that in this case there was before the judge "compelling material" on the issue that the applicant now seeks to raise, that is, reduced moral culpability by reason of youth and disadvantaged background. There was no evidence of that description "available on the plea but which was not used or understood", such as to give rise to a miscarriage of justice that this Court should overcome by making its own findings about underdeveloped capacity for self-control and about the degree to which any such underdevelopment caused the offences. Consistently with the applicant's own evidence Dr Colquhoun accepted that he had a high "level of emotional disturbance and drug intoxication" and "severe emotional distress and anger, due to an acute rejection [the breakup with his girlfriend], on a background of chronic feelings of emotional rejection and isolation". This assessment does not purport to ascribe loss of control to youth or disadvantaged background. 2. Counsel suggested that the nature of the attack inherently demonstrated "lack of impulse control" which should be attributed to youth. It was submitted that there was "no planning (although the episode was protracted) or indicia of mature decision-making". In the case of a sexual assault carried out quickly in the heat of the moment an inference might arise that youthful lack of impulse control was a significant contributing cause. But the fact that the applicant's offences were committed over more than an hour, with ongoing, varied and persistent brutality, in the face of screams and resistance from the victim, strongly tells against drawing an inference of immature impulse. 3. It appears to the Court that the argument counsel now seems to advance pursuant to ground 1 was not urged upon his Honour for the very good reason that there was no evidentiary basis for it. Ground 1 is rejected. Ground 2 - manifestly excessive sentence 1. In order to succeed on ground 2 the applicant must show that the aggregate sentence passed by his Honour was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54. The Court would have to conclude that the length of the sentence is such that there was some misapplication of principle although in what respect does not appear from the remarks on sentence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45. The relevant principles were recently reiterated in Hughes v R [2018] NSWCCA 2 at [86]. 2. In our view each indicative sentence was within his Honour's discretionary judgment, taking into account the particular acts of the applicant, the learned judge's evaluation of where each offence stood in the scale of seriousness of offences against s 61J, the applicant's subjective case and the allowance of a 25% discount for his plea. Of course the indicative sentences also took into account that each individual offence did not take place in isolation but was committed in the context of the whole series. Counsel for the applicant did not seek to impugn the indicative terms. 3. A degree of notional accumulation was required in formulating the aggregate sentence in order to comprehend the total criminality of the entire episode. Counsel contended that the aggregate of 18 years with a non-parole period of 12 years involved excessive accumulation, leading to a crushing sentence. Reliance was placed on the circumstance that the offences were "all of the same type (sexual assaults) committed against the one victim in a single episode". This is true so far as it goes. But in detail the offences involved infliction of a wide variety of brutal violations. Disgusting acts such as seating himself with his anus on the victim's mouth (Sequence 6) and repeatedly inserting his fingers in her anus and then in her mouth (Sequence 8) had the character of calculated degradation. The aggravating circumstances of occasioning actual bodily harm of themselves involved considerable savagery. They included punching the victim's vagina, biting her cheek and breast and pulling out a mouthful of her hair with his teeth. 4. These offences committed one after the other over more than an hour combined to constitute an outrage well beyond the gravity of a mere series of repeated acts. What was done to this young woman was shocking in a degree which the community would expect to be punished in a manner sufficient to convey unequivocal denunciation and deterrence. However, whilst we do not regard any of the indicative sentences as excessive, and indeed would not arrive at any different conclusion on them individually, we consider that implicit accumulation has resulted in an aggregate which is manifestly excessive. In our view no longer term than 15 years with a non-parole period of 10 years is justified and the applicant will be resentenced accordingly. Although this involves a reduction from that which his Honour ordered, the sentence we propose is an appropriately strong penalty, apt to serve the purposes of sentencing in this case. Orders 1. The orders of the Court will be: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. The sentence imposed in the District Court on 26 April 2017 is quashed and in lieu thereof the applicant is sentenced to imprisonment for a non-parole period of 10 years commencing on 2 August 2015 and expiring on 1 August 2025 and a balance of term of five years commencing on 2 August 2025 and expiring on 1 August 2030. The applicant will be eligible for release on parole from 1 August 2025. ********** 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: 15 February 2019