Amacha v R, R v Amacha

[2010] NSWCCA 180

Court of Criminal Appeal (NSW)|2010-04-23|Before: Allsop P, Grove J, Hislop J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-04-23

Before

Allsop P, Grove J, Hislop J

Source

Original judgment source is linked above.

Judgment (51 paragraphs)

[1]

Background facts 10 The relevant facts taken from the remarks on sentence were as follows. 11 The events surrounding the offences in September 2007 took place in the early hours of 29 September 2007 after Mr Amacha and the complainant had left the Oxford Hotel on Oxford Street and returned to the complainant's apartment. 12 The offender met the complainant at the hotel. 13 The offender, the complainant and a third person left the hotel and got into a taxi. The complainant was heavily intoxicated. The offender had been drinking. The third person left the taxi at one point saying that he got sick of hearing the offender's comments that he loved the complainant and the complainant's requests to be left alone. The complainant also left the taxi and was followed by the offender, the complainant saying all she wanted to do was to get home. The complainant's recollection of the taxi was unclear, but it would appear they both entered a taxi on George Street and drove to the complainant's flat in Paddington. The complainant had a vague recollection of getting to her apartment. 14 The contest as to what then happened and its resolution was described by the sentencing judge: "The complainant then stated that when she awoke she saw that the offender was lying on the bed next to her. She noted that she just had her underwear on and that he was not dressed.

[2]

The offender said that after entering into the room or the apartment of the complainant, the complainant undressed into her underwear only and he then took off his clothes and he was in his underwear only. The offender said that after they lied [sic] on the bed they started kissing and any acts of sexual intercourse that occurred thereafter was as a result of consensual acts on her part.

[34]

Subjective circumstances of the offender 33 The subjective circumstances of the offender were put before the judge in a Probation and Parole Service pre-sentence report dated 25 July 2008 and a report of a psychiatrist, Dr Westmore dated 20 November 2008. The Crown summarised these matters in submissions in this Court in a way that was not controversial and can be stated as follows. 34 The offender was born on 26 June 1980 and at the time of sentence was aged 28 years. He was 26 years old when he committed the Miranda offences and 27 years old when he committed the Paddington offences. He is the oldest of three sons whose parents are of Lebanese background. He reported that he had a poor relationship with his father but a good relationship with his mother. 35 The offender attended a private school where he claimed to have been bullied. He completed his Higher School Certificate and entered university were he commenced an economics degree which he discontinued after one year. He later completed an apprenticeship in spray painting and obtained a forklift driver's licence. He reported that he had worked in numerous positions, often on a temporary basis. At the time of his arrest the respondent had recently commenced a position as a high reach forklift driver. 36 The offender told the author of the pre-sentence report, Mr West, that he felt pressured by his parents to succeed academically and that he had reacted by mixing with delinquent youths outside of school. He also reported that he felt under pressure to find a suitable girlfriend of the same religious and ethnic background as himself, and that this had presented difficulties as his family were members of a relatively small religious group within the Australian Lebanese community. The offender reported that he felt that he had failed to meet his parents' expectations. He also reported that he had had problematic relations with women in the past and that he had unresolved issues in that area of his life. 37 The offender reported that he started smoking cannabis when he was 15 years of age and he admitted to past use of amphetamines, ecstasy and cocaine. He stated that he had been drinking alcohol to excess on occasions for about ten years and said that he was affected by alcohol at the time of meeting the complainant, SAK. 38 The offender told Dr Westmore that he had been suffering from "major depression and anxiety" since 2002 for which he had taken prescribed medication. 39 The offender maintained his innocence to Mr West and to Dr Westmore and stated that any sexual activity between himself and the complainant (SAK) was consensual. He did however, express regret for any adverse effect his actions might have had on the complainant. 40 The offender had a number of prior criminal convictions including convictions in the Children's Court for dishonesty offences, robbery offences and offences of possessing prohibited drugs. As an adult he had numerous convictions for offences of possessing prohibited drugs and driving licence related offences in respect of which he had been fined or received a suspended sentence. In 2000 he had been ordered to serve home detention for driving in a dangerous manner and for driving whilst his licence was suspended. He was subsequently in breach of the home detention order and served a fixed term of imprisonment. He served further terms of imprisonment in 2005 for offences of driving in a dangerous manner and driving whilst disqualified from holding a licence. In 2002 the offender had been convicted of a number of offences of contravening an apprehended domestic violence order. He had been fined and had received suspended sentences in relation to those offences.

[36]

Mr Amacha's application for leave to appeal 43 It is convenient first to deal with the grounds of complaint of Mr Amacha. 44 As to the overall complaint that the totality of the sentences was unduly harsh, I disagree. There were two occasions, with respect to two persons. It can be accepted that at least the Paddington offences occurred in the context of the consumption of a large quantity of alcohol. Nevertheless, the head sentence of nine years derived as it was from count 7 reflected an appropriate sentencing response to a violent and degrading attack on the complainant. The total accumulated non-parole period reflected the effect of the Miranda offences. An accumulated period in gaol by reference to the non-parole period of seven years and four months was not in any way disproportionate to the criminality of the two bodies of conduct. 45 The submission that the sentence for count 7 was unduly harsh should be rejected. The prospects of success of this submission rested within the success of the allied submission that the judge erred in coming to the view that the offence in count 7 came within the mid-range (and thus attracted the standard non-parole period of seven years); and that the judge took a legally extraneous matter into account in assessing the objective seriousness of the offence, being the criminal convictions of the offender. 46 As to the complaint about taking into account prior criminal convictions, the judge dealt with this issue in dealing with both counts 2 and 4 when addressing objective seriousness. Likewise in relation to count 7, the criminal history appears to have been taken up by the judge in his assessment of the objective seriousness of the offence. This was an error. Unless (as was not the case) the offender was at large in the community by way of conditional liberty, the criminal history of the offender is not relevant to the assessment of the objective seriousness of the offence: R v Shankley [2003] NSWCCA 253 at [29]-[32] (per Howie J, Greg James J and Smart AJ concurring). 47 Notwithstanding that error, the evaluative conclusion that the offence committed represented by count 7 was of mid-range seriousness was clearly open. Taking its place in the events in the complainant's apartment as they unfolded that morning, this was a brutal and degrading attack. For all the reasons otherwise stated by his Honour the evaluative assessment of mid-range seriousness was open, and it should not be disturbed. 48 In that light, the sentence for count 7 cannot be seen otherwise than as appropriate. 49 Complaint was made that the judge erred in imposing sentences of four and a half years with non-parole periods of three years four months for the two Miranda offences. It was submitted that in all the circumstances these were excessive. 50 I disagree. Whilst the offender did not exhibit the violence and degrading brutality that he did against the Paddington complainant, he nevertheless behaved in a threatening way to engender fear in the complainant to force himself upon her. They were offences with an objective seriousness below mid-range. Thus the seven year standard non-parole period did not apply. Placed in the context of the standard non-parole period and the maximum sentence, the sentences imposed reflected the less objectively serious character of the offences. Within that framework the sentences were entirely reasonable and were appropriate. 51 It was submitted that the judge failed to take into account the principle of totality. This is in essence a complaint as to the overall effect of the sentences. I will deal with this when dealing with the Crown's complaint about the asserted failure to follow Pearce v The Queen. 52 Complaint was also made that the judge did not find special circumstances arising out of the accumulation of sentences. As Hunt CJ at CL explained in Simpson (1992) 61 A Crim R 58 at 60-61 (with which reasons Grove J and Sharp J agreed) "special circumstances" has a wide meaning and may exist in the appropriate case where a court is imposing a series of cumulative sentences so that it can ensure a proper proportion between the total minimum term and the effective additional term. Counsel for Mr Amacha did not put this complaint to the sentencing judge. Nevertheless, for present purposes I will assume that his Honour should have given some consideration to the question of the overall accumulation, especially of the non-parole periods. I will deal with this when dealing with the Crown's "Pearce" complaint. 53 Complaint was made that the judge did not take alcohol into account as a mitigating factor. There can be little doubt that the judge was aware that alcohol appeared to play a part in the Paddington offences. The complainant was heavily intoxicated. The offender had also been drinking, as the judge recorded. The judge did not advert to this as a mitigating factor - understandably so. Whilst the consumption of alcohol may be an explanation for the physically and sexually aggressive and violent behaviour of the offender it did not excuse it or mitigate it. This was not the kind of offence for which a lack of planning or conscious pre-meditation brought about by alcohol might be relevant. The offences involved violent and brutal physical and sexual aggression. I reject the submission that the seriousness of the attack should be discounted because, as the submissions seemed to put, of its place in an alcoholic haze borne of a night's excessive drinking. 54 Finally, complaint was made that the primary judge had failed to disclose (other than impermissibly taking it into account in assessing the objective seriousness of the offence) how he took into account the offender's prior criminal history. It can be accepted that this failure was an error to disclose how a matter under the Crimes (Sentencing Procedure) Act, s 21A(2)(d) was taken into account: R v Walker [2005] NSWCCA 109 at [32]. I will deal with this below.

[37]

The Crown appeal 55 Before turning to what I have referred to as the "Pearce" ground in the Crown appeal and the question of totality of the sentences, their proportionality with the offences and whether the sentences were excessive or inadequate, I will address the complaint by the Crown that the judge failed to determine, or adequately determine, the objective seriousness of each offence contrary to s 61I. 56 It was incumbent on the judge to assess the objective seriousness of the offence for the purpose of the application of the Crimes (Sentencing Procedure) Act, ss 54A, 54B and Part 4 Division 1A after a trial, and as a reference point, if after a plea of guilty. 57 The judge was mindful of the standard non-parole period being a reference point for the Miranda offences. 58 In relation to the offence represented by count 2 of the Paddington offences the judge expressly concluded that the offence did not fall within the mid range of objective seriousness for offences of this kind. The judge is criticised for not being more elaborate in his view as to how far below the mid range the offence fell. His Honour gave a fixed term of six years. If this was equated to the non-parole period it fell only slightly below mid range; if it equated (wrongly) to the head sentence, it was materially below mid range. Taking into account the comments of the judge I would infer that the latter was the case. On this view, whilst the judge should have made a somewhat more elaborate identification as to how far below the mid-range the offence fell it can be confidently taken that he was of the view that the offence was to some degree below the mid range given that he thought it appropriate (wrongly) to fix a head sentence of imprisonment of six years, one year below the standard non-parole period. Further, in relation to count 4, although there was no specific finding as to where that offence fell in the range of objective seriousness, his Honour was of the view that count 4 was objectively more serious than count 2. Further, it can be taken that the sentence imposed (implicitly, once again, wrongly, a head sentence) of six years and six months (six months below the standard non-parole period) reflected that his Honour was of the view that the sentence was (like count 2) to some degree below the mid-range. 59 Likewise, in relation to the Miranda offences it would appear from what his Honour did that he considered they fell below the mid range of objective seriousness. Again, he failed to make an express assessment as an important starting point to determining the appropriate sentence in relation to the offence for which there was (here as a reference point) a standard non-parole period. 60 It is worth repeating what James J (with whom McClellan CJ at CL and Adams J agreed) said in Smith v R [2009] NSWCCA 17 at [24]: "… a judge sentencing for an offence for which there is a standard non-parole period should make an unambiguous finding about whether in his judgment the offence is in the middle of the range or above or below the middle of the range";

[40]

The "Pearce" ground, totality, and proportionality of the sentence and whether it was inadequate or excessive 65 The Crown complains about the inadequate accumulation, in particular of the Paddington offences. It was submitted that the concurrence of the sentences meant that the three offences represented by counts 2, 4 and 5 went effectively unpunished. It was said that this arose by a failure to apply the principles in Pearce that required his Honour to fix an appropriate sentence for each offence and then to consider questions of accumulation, concurrence and totality. 66 This, it was said, led to a manifestly inadequate sentence. 67 The four Paddington offences were said to be distinct and serious in their criminality and ought to have attracted a degree of partial accumulation. It was submitted that this was particularly the case in relation to the offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse because of the different nature of the conduct with a significantly higher maximum penalty. 68 The essential consideration is the need for the sentences as a whole to reflect adequately and proportionately in their totality and structure the criminality of the offences. 69 It was also submitted that the limited level of accumulation of the Miranda sentences produced an overall inadequate sentence. 70 Contrary to these submissions, it was submitted on behalf of Mr Amacha that the overall sentence was manifestly excessive and that a proper approach to the principle of totality and proportionality would see a lowering of the sentences, in particular the non-parole periods by the recognition of special circumstances. 71 I am unable to accept that these sentences were excessive. I have already indicated my unwillingness to interfere with the judge's view of the mid-range seriousness of the offence represented by count 7. That offence and the standard non-parole period that comes with it form the base or structure of the sentencing. 72 It is necessary, also, to recognise that the other three offences on the morning of 29 September were serious in their own right. Even if, as appears to be the case, the judge took the view that the offences represented by counts 2 and 4 were to a degree below the mid-range of objective seriousness, they were not trivial - far from it. Likewise, his Honour thought that the malicious infliction of bodily harm was also sufficiently serious to warrant six years imprisonment. 73 Whilst the common source of all the offences in the events of the early hours of the morning can be recognised, in my view, the judge erred in not accumulating to some degree the four offences. Not to do so failed to have any regard to the separate criminality involved in the different aspects of the whole violent and brutal episode.

[41]

The question of re-sentencing 74 The imposition of fixed terms where non-parole periods and head sentences were required and the absence of accumulation requires a re-sentencing of Mr Amacha. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) means that this Court should not take into account "double jeopardy" as discussed in R v JW [2010] NSWCCA 49 at [141] to impose a lesser sentence than is appropriate. 75 In re-sentencing Mr Amacha I would not diverge from the elements of the sentences imposed by his Honour (save necessarily from the inappropriate fixed terms). I do so because his Honour had the advantage of the trial and the evidence led and was in a better position to assess the evidence as to gravity and effect on the Paddington complainant. Further, in my view, the sentencing response of the judge in relation to the individual sentences and the overall sentence was appropriate. 76 I would take into account the subjective circumstances revealed by the two reports to which I have referred. 77 His criminal record disentitles him to any leniency. 78 I would also take into account Mr Amacha's affidavit dated 19 April 2010 read on the appeal, in particular his attempts at alcohol and drug rehabilitation and the fact that he is in protective custody without ready access to some facilities. 79 As to count 2 which I would assess as below mid-range seriousness, I would impose a head sentence of six years with a non-parole period of four years six months. 80 As to count 4, I would assess it also as less than mid-range seriousness but somewhat more serious than count 2. I would impose a head sentence of six and a half years with a non-parole period of four years and ten months. I will deal with accumulation and concurrence (of this and the other offence) later. 81 As to count 5, I would impose a head sentence of six years and a non-parole period of four and a half years. Though a non-parole period is not required, in all the circumstances, one should be set. 82 As to count 7, I would not interfere with the judge's sentence. 83 I would not interfere with the sentences for the two Miranda offences. 84 As to the questions of accumulation and concurrence, I agree with the submissions of the Crown that a degree of accumulation was warranted within the Paddington offences in order that the separate and overall criminality be reflected in an appropriate sentence. 85 I agree with the sentencing judge's approach to accumulation of the Miranda offences. 86 Whilst the structure of the sentences should be amended, as I have already said, I am of the view that the overall sentencing response of the learned sentencing judge was proportionate and reflective of the criminality of the offender. It was not excessive. The Paddington offences were violent and degrading, and called for a response of imprisonment of the kind imposed on the offender. Nor was it inadequate. The seven years four months non-parole period with an additional term of one year eight months was not a light sentence. 87 Reading the psychiatric report and given Mr Amacha's age there must be a significant prospect of rehabilitation, if he ceases the kind of use of alcohol and drugs that appear to that have been influential in his behaviour in the past. His affidavit as to the rehabilitative steps he has taken in prison point to the real possibility of success in that regard. 88 In this context, it would be wrong to increase Mr Amacha's effective non-parole period by reason of its restructuring and accumulation. To do so would be likely to fulfil no useful sentencing objective, whilst risking an effect on Mr Amacha's rehabilitation prospects by provoking a sense of grievance that, for the sake of correctness in the structural form of the sentence, he has been ordered to remain in prison for a period longer than was otherwise an appropriate overall sentencing response. 89 In these circumstances, I would find special circumstances and I would adjust the non-parole period for count 7 and I would bring forward the commencement dates of the Miranda sentence such that Mr Amacha remains eligible for parole on 27 January 2015. 90 The sentences that I would impose in lieu of those imposed by the sentencing judge are as follows: 91 As to the sentences arising from the trial: