Allen v Regina [2008] NSWCCA 11 | Case summary

8 February 2008 Sam David ALLEN v R Judgment 1 GILES JA: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Blackmore DCJ in Sydney District Court following the conviction of the appellant at trial on counts of assault, indecent assault, sexual intercourse without consent (two counts) and doing an act with intent to pervert the course of justice (the justice offence). The effective term of imprisonment for all counts amounted to a total sentence of twelve years six months with a non-parole period of nine years. The appellant is now twenty four years of age. I would grant the leave sought. 3 The four offences first mentioned occurred on 28 January 2004 and involved the same victim whom I shall refer to from time to time as C. The justice offence occurred shortly thereafter and involved C in circumstances which I will describe. 4 There is no challenge to the facts found by the learned sentencing judge concerning the commission of the offences and I draw this summary from his remarks and from material which was undisputed. As at January 2004 the appellant was aged twenty and C was aged nineteen. They had been for some months engaged in a relationship which included, on occasions, consensual sexual intercourse. C wished to terminate the relationship whereas the appellant wanted it to continue. However she permitted him to remain in her apartment as he had told her that he had nowhere else to stay. 5 On the date mentioned an argument broke out and the appellant grasped C as she walked away from him by what was described as a "bear hug". The squeezing involved interference with her breathing. This constituted the assault charged in the first count. For this, his Honour imposed a fixed term of imprisonment for six months dating from 8 September 2006, a commencing date which took into account some pre-sentence custody. There is no issue about the selection of the commencement date. 6 C went to her bedroom where her condition was that she was upset and crying. The appellant came and began to massage her. She allowed this as she believed he was trying to calm her down. However, he placed his hand into her underclothes and touched her vagina. She did not consent to this touching and it constituted the indecent assault. This was a count numbered three, count two being a count of common assault upon which the appellant was found not guilty. For the indecent assault, his Honour imposed a sentence of imprisonment for a fixed term of nine months from 8 September 2006. 7 At the time of the commission of that offence the appellant asked C if she felt like having sex. She replied in the negative and said that she wanted to go to the toilet. He carried her to the bathroom and remained there whilst she used the facility and she then got into the bath. There was some conversation but some five or ten minutes later, the appellant picked her up again and took her to the bedroom and laid her on the bed where he forced intercourse, during which he made remarks which his Honour has set out and which I do not repeat. There is an issue about his Honour's recapitulation of some of the things said by the appellant and it is agreed that, contrary to what his Honour said, there is no evidence that the appellant said "I hope it hurts". Nevertheless, the remarks which are not disputed can be described as cruel and spiteful. The evidence was that the appellant knew that C often experienced pain during sexual intercourse and she was crying while he forced himself upon her. 8 For this offence of sexual intercourse without consent the appellant was sentenced to imprisonment for a total of seven years with a non-parole period of five years and three months dating from 8 September 2006. 9 After the commission of this offence the appellant left the room. C cleaned herself and went to tell him to leave. Thereafter she returned to her room but he followed her and removed some of her clothing, applied some lubricant and forced a further act of intercourse. C described this act as continuing for much longer than the previous occasion. For this offence of sexual intercourse without consent the appellant was sentenced to imprisonment consisting of a non-parole period of six years and six months with a balance term of two years and two months dating from 8 September 2007, effectively a partial cumulation of one year upon the earlier sentences. 10 Each of the two counts just mentioned has a legislatively prescribed standard non-parole period of seven years. That prescription is applicable to an offence in the mid-range of seriousness for such an offence. His Honour found that the first act was not in that mid-range (nor was it at the bottom of any range) and he therefore imposed less than the standard non-parole period. He departed from the prescription to the extent of six months in imposing sentence for the second act of sexual intercourse by reason of his findings concerning some subjective matters concerning the appellant: R v Way (2004) 60 NSWLR 168. 11 After commission of the latter offence of sexual intercourse without consent the appellant left the bedroom. C heard the front door close and she made a number of telephone calls including a call to police. 12 Shortly thereafter, the appellant was arrested and charged. At the same time police arranged for the issue of an apprehended violence order against the appellant in which C was nominated as the protected person. There followed events leading to the last count abovementioned. In his remarks on sentence his Honour recited some facts concerning breaches by the appellant of the apprehended violence order. However, in March 2004 C was contacted about the dissemination of a video depicting her engaged in sexual intercourse and the distribution of attachments to email of photographs of her in sexually explicit poses. C recognized some of the photography as having been taken whilst she and the appellant were holidaying in Queensland. She was a model by occupation and had appeared as an actress in some television productions. Some of the email was addressed to theatrical and professional agents. 13 Consequent upon being told of this dissemination of material, C contacted the appellant. He persuaded her to visit a solicitor and make a statement that she did not want "the matter" dealt with by the courts. He represented that, by her so doing, "this would go away". The statement was sent to the Director of Public Prosecutions with the suggestion that the charges be withdrawn. As is apparent this did not happen. 14 Subsequently the Queensland Police located the appellant's computer and detected images on its hard drive which had been attached to the email. His Honour did not find that the appellant was responsible for the distribution of this material but he, of course, sought to make use of the fact that it had been distributed when he persuaded C to visit the solicitor. 15 For what I have described above and called, for convenience, the justice offence, the appellant was sentenced to imprisonment for a total of five years consisting of a non-parole period of one year and six months dating from 8 March 2014 with a balance term of three and half years. That sentence therefore was wholly cumulated upon the non-parole period specified in respect of the second offence of sexual intercourse without consent. 16 Accordingly, the appellant received the effective overall sentence which I first mentioned. The learned sentencing judge was also asked to deal with the call-up of the appellant for breach of a recognizance under s 558 of the Crimes Act (since repealed) which had been granted by Ducker DCJ on 18 February 2000 for an offence of attempted armed robbery committed by the appellant in company when he was aged sixteen years. It was directed that no further action be taken for breach of that bond. 17 His Honour made findings concerning subjective matters touching the appellant. Some aspects of these are the subject of express submission and I will deal with them accordingly. As the breach to which I have just referred shows, the appellant was not without prior record. The offence then involved was not the only matter but all previous offences occurred when the appellant was a young juvenile. 18 In his remarks on sentence his Honour said: "The offender presents to me as an immature young man who was used to getting his own way, at least up to date. Even when directly addressing me during the sentencing proceedings, he pleaded simply to be let go on parole. It appears he fails to understand the seriousness of his actions or to acknowledge that he might be the one responsible for his predicament." 19 There is abundant evidence pointing to the immaturity of the appellant at the relevant time but, with respect to his Honour, it does not seem entirely accurate to conclude that the appellant "pleaded simply to be let go on parole". I recognize that there is an omission in the transcription but the content of the exchange as recorded and the appellant's references to "on the bottom" convey a plea for lenience in the setting of a non-parole period which is, of course, time in custody rather than simply being let go on parole. The transcript reads as follows: "OFFENDER: I know that - but in that context I've formed my life into the point now where I've got goals - I've got the future - I've got things to look forward to and I'd be completely content if you put me on parole for 20 years following a short .. (not transcribable).. because I know that I won't break it. I have nothing - I have got so much to lose on this - and I don't want to do that. HIS HONOUR: Well I can say that - the issue that I have is whether or not he should be put on some sort of suicide watch after my sentence because the reality is that you will be receiving a lengthy custodial sentence. Years. OFFENDER: I understand years but-- HIS HONOUR: It could be as many as ten. OFFENDER: On the bottom. HIS HONOUR: You have committed two rapes, you have committed a very serious pervert the course of justice, you have breached a bond in relation to an armed robbery offence which carries itself 25 years in gaol. You are facing many many years in gaol. So I don't have to be the one to tell you that, but I will ultimately be the one who tells you what the bottom is and I haven't made up my mind what it is. I want you to be fully appraised that's the possibility. OFFENDER: I'm just asking you that when you consider this that - if you can please consider that whatever you want to make the bottom if that can be in any way reduced and the top end of that - like I really and truly for the rest of my life report to whoever, I will do anything to meet those requirements, because -- HIS HONOUR: All right, I think that is what Mr Stitz has told me he wants as well - so that was the submission - we talk about - we talk in terms of things like special circumstances - you don't know what we're talking about but that's what it means - it means that the bottom is reduced and the top's if you like extended out. So that submission was made as well. OFFENDER: My point is ten years doesn't just destroy my life it destroys Mel's as well." 20 The reference to Mel is to a Ms Ballantyne with whom the appellant had formed a relationship whilst awaiting trial. She gave evidence in the sentencing proceedings but its weight must be regarded as somewhat diminished by her stance that she stated that she did not accept that the allegations of the complainant were in fact true. It was not explored whether she had reached this conclusion as a result of her own opinion of the appellant's nature, or from anything the appellant had told her. 21 His Honour described the subjective circumstances of the appellant as "on one level quite straightforward and on another, quite complicated". He accepted that there were unresolved psychological issues which needed to be addressed both before and after release from prison. Clinical test results had indicated elevated levels for "dramatising, egotistic and unruly personality patterns, social insensitivity and family discord". The appellant was estranged from his family at the time of the offences. 22 Mr Ramage QC for the appellant presented argument under four formulated grounds. Ground 1 asserted that the whole sentence was unduly harsh and severe. He submitted that the effective sentence of a total of twelve and half years with at least nine years to be served before possible parole represented a crushing burden upon a comparatively young man who was committed to prison for the first time. I consider that there is substance in that submission. 23 In particular, it was argued that the sentence of five years for the justice offence was manifestly excessive. Reference was had to the statistics collected by the Judicial Commission. A survey of eighty six cases showed that, of these, fifty three offenders received sentences of less than full time imprisonment. Of the remaining thirty three who were so sentenced, the highest term was five years and this related to a single offender and it can be deduced that it refers to the appellant. Another received a sentence of four years and the remainder terms of less than that. 24 Great care needs to be taken in applying statistics derived from cases of which no facts are known. It needs always to be borne in mind that the maximum sentence which can apply to a worst case or worst offender is that prescribed by Parliament and not the upper limit of any statistical range. Nevertheless, whilst I would assess the criminality involved in the appellant's actions as of a high order, the pattern of sentence revealed by the statistics is not to be ignored, and I consider the submission of excess is made out particularly when one observes that the present sentence exceeds by 25 percent the next highest sentence received by any other offender incorporated in the survey. 25 An express submission was made that "higher sentences" should be reserved for those who endeavour to suborn those involved in the administration of justice including judges and law enforcement officers. I would reject that proposition. Each case needs to be assessed in its particular circumstances and, as a generality, the attempt to suborn a complainant, who may succumb, could very well be misconduct more serious than an attempt directed at those whose callings make it more likely that they would not only resist the attempt but report it to authority and thereby ensure that the offender is called upon to answer. 26 The next aspects argued in relation to this ground challenged the accumulation of the entire sentence for the justice offence upon earlier sentences and the implementation of his Honour's findings of special circumstances. It is convenient to deal with these aspects together. The attempt to suborn C into, in effect, recanting her complaint was separated from the agglomeration of events on 28 January in time and in nature. It is true that there is a connection in the sense that what was attempted related to the crimes committed on that day and it does not follow that there is a demonstrated error in his Honour's decision not to direct that any concurrency of sentence service be permitted. Whether sentences are to be cumulated needs to be considered in the context of totality. Thus an offender needs to be punished for separate acts of offending, on the other hand it is appropriate to consider whether there is some unification of misconduct so that entirely cumulated sentences do not exceed the proper reflection of total criminality. In R v MMK [2006] NSWCCA 272; [2006] 164 A Crim R 481 the court stated: "Although it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud [2000] 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality". 27 Although I detect no error in his Honour's exercise of discretion that is not to say, if for other reasons the Court comes to resentence, discretion may not be exercised differently. 28 Attention was drawn to the learned sentencing judge's not being satisfied that the appellant was responsible for the distribution of the images of the complainant. As I have said, the appellant nevertheless sought to use the fact of that distribution, and his claim to make the distribution cease, as a lever to induce C to recant her complaint. 29 Although I have above expressed my views about the total sentence term of five years for the justice offence, it is noted that his Honour specified a non-parole period of one year and six months with a balance term of three years six months in order to give effect to a finding of special circumstances for the appellant. The expired sentences for assault and indecent assault can be ignored for present purposes. Each of the sentences for sexual intercourse without consent was divided so that the balance term was exactly one third of the non-parole period and thus there had been applied precisely the statutory formulation and no benefit in those divisions was granted to the appellant consequent upon the finding of special circumstances. 30 The division of the sentence for the justice offence reversed the statutory proportion but the consequence to the overall imposition differed from the statutory ratio by only about 3 percent. His Honour did not find that the appellant was entitled to the benefit of his special circumstances only in respect of the justice offence count. It would be difficult to justify such a discrimination. In my view the outcome in overall proportion between an effective nine year non-parole period against a total term of twelve years six months is such that, without elaboration as to how it was reached, it should be concluded that there is latent error and this Court should intervene on this issue. 31 I consider ground one is made out in the aspects which I have indicated. 32 Ground two complained that his Honour failed "adequately or correctly" to take into account the mental and emotional state of the appellant. 33 The ground is sought to be supported by reference to a report from a psychiatrist Dr Jonathon Carne who saw the appellant on 23 August 2006. His opinion was that the appellant displayed features of a personality disorder with anti-social and narcissistic traits. I have also set out some psychological conclusions which were before his Honour. Dr Carne commented that alcohol clearly played a significant role in events but the events referred to were rather focussed on attempts at self harm rather than the offences themselves. 34 It is significant to note that Dr Carne's report came into evidence originally in a voir dire hearing to determine the admissibility of what was described as a suicide note by the appellant which contained material upon which the Crown sought to rely as an admission. The Crown submission to this Court is that it is therefore not surprising that Dr Carne's report really did not address the role of any mental condition of the appellant in his commission of the offences and the submission is correct. 35 Insofar as there was relevant diagnosis, his Honour stated that he had made some allowance for the condition but he regarded it as a minor matter. His conclusion has not been shown to be erroneous and I would reject this ground. 36 The third ground asserted that his Honour failed to take into account the youth of the appellant. It is plain that his Honour was alert to the appellant's youth. In dealing with submissions he said, inter alia: "Given my view as to his immaturity, he may in fact be seen to be younger than his chronological age despite his apparent intelligence." 37 The fourth ground complained that his Honour erred in determining that the appellant had shown no remorse for his actions. There were some aspects to matters argued in support of grounds 3 and 4 which are common and it is convenient to discuss them together. 38 His Honour stated (specifically in relation to the second act of forced sexual intercourse): "The offender has completely denied the offence. He has shown no remorse for his actions whatsoever." 39 In his written submissions senior counsel for the appellant stated: "Defending a criminal trial is not inconsistent with regret or remorse."

No authority is cited for this proposition which requires some qualification. Of course remorse is necessarily harboured subsequent to the offence and can be available as a mitigating factor but a question of timing may be germane. 40 In the text D Thomas, Principles of Sentencing (2nd edn (1979) Heinemann) the author states: "The principles governing the extent to which a sentencer may take into account the offender's behaviour during the course of the proceedings against him are well settled. A plea of guilty may properly be treated as a mitigating factor, indicating remorse, and will justify a reduction in the sentence below the level appropriate to the facts of the offence; but the defendant who contests the case against him, while not entitled to that mitigation, may not be penalized for the manner in which his defence has been conducted by the imposition of a sentence above the ceiling fixed by the gravity of the offence." (page 50, emphasis added) 41 It can be contemplated that remorse may become manifest other than from a plea of guilty. It is a paradox in the current case that some material upon which the appellant now relies as supporting a claim for mitigation of sentence on account of remorse are matters which were relied upon by the Crown at trial in proof of guilt and in that context were not readily accepted by the appellant. I see no reason, however, why the appellant cannot now point to them in the context of the sentence issues. 42 C gave evidence that he telephoned her not long after the events and said, inter alia, that "he was very sorry for what he had done" (T123) and that he would explain matters in a letter which he had left as he intended to suicide. This is the letter to which I have made earlier reference. There was evidence of an unsuccessful attempt at suicide. 43 The letter was admitted into evidence and contained words which the Crown relied upon as constituting both an apology and an admission. The appellant was cross examined about this and about a text message which he sent on the very night of 28 January after he had left the apartment in which he said that he was hopeful that there would not be any problems between them. He denied that this was a reference to having "raped C" but said that he was referring to the fact that they had had a fight and he had left the apartment. 44 Some focus of the cross examination of the appellant was the Crown assertion that C wished to terminate the relationship but the appellant was obsessed with his passion for her. 45 His Honour's remarks on sentence do not reveal what analysis he undertook of this material in forming his conclusion that the appellant had shown no remorse for his actions whatsoever. The telephone call to C and the letter were capable of being assessed as manifestations of remorse although it was not obligatory so to view them. It is inevitably a difficult task to discriminate between apparent remorse for the commission of an offence and the sorrow which an offender feels on account of the predicament in which he or she finds himself or herself. 46 The post offence conduct of the appellant which I have described, when perceived as conduct of a person less mature than his calendar years (as his Honour found) required some attention but that is not to say that it can be concluded that his Honour's finding was necessarily erroneous. As for other reasons I consider that this Court should intervene and proceed to resentence, the proposition of error need not be further examined. 47 An effective sentence of twelve years and six months with a non-parole period of nine years imposed on an immature young man entering custody for the first time for a series of offences consisting of an outbreak of criminality on the one day and the later crime which in effect sought to avoid the consequences of that criminality is in my opinion so severe as to be in the category of manifestly excessive. 48 It is not necessary to recapitulate the facts. I consider that there should be some amelioration of the sentences for sexual intercourse without consent and some concurrency of service of these sentences with the sentence for the justice offence. At this point, when resentence is being imposed, there can be taken into account subsequent evidence tending to show remorse and in the affidavit of the appellant sworn 28 November 2007 he states: "In gaol I have had a great deal of time to reflect on my conduct. I regret my actions a great deal and the harm that I caused". Whilst the statement is less than elaborate, if added to the matters which I have noted when discussing grounds three and four, it is appropriate to assess the appellant as harbouring some remorse for his crimes. In reimposing sentence, I would give more perceptible effect to his Honour's finding of special circumstances and I would depart from the standard non-parole periods for the reasons indicated by his Honour. 49 As I have said the sentences for assault and indecent assault are now expired. They were entirely concurrent with the sentence for the first offence of sexual intercourse without consent and no action is needed in respect of them. The sentences which I propose and the orders for partial concurrency of service are designed to reflect ultimately the totality of criminality involved in the particular circumstances. 50 I propose the following orders:

Allen v Regina

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