Andrews v Regina

Judgment 1BEAZLEY JA: I agree with Hall J. 2JAMES J: I agree with Hall J. 3HALL J: The applicant, Shane Andrews, seeks leave to appeal against the sentence imposed upon him in the District Court at Penrith on 1 September 2009. 4On 24 April 2009, the applicant pleaded guilty to one count of break, enter and commit a serious indictable offence (indecent assault) in circumstances of aggravation (knowing persons at home). The offence was one under s.112(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment and has a prescribed standard non-parole period of 5 years imprisonment. 5The hearing in the District Court was the third time the trial had been listed, two previous trial dates having been vacated. 6On 1 September 2009, her Honour Judge Syme sentenced the appellant to a non-parole period of 2 years and 6 months to commence on 1 September 2009 and to expire on 29 February 2012 with a balance of 2 years and 6 months to commence on 1 March 2012 and to expire on 31 August 2014 (being a total term of 5 years). The applicant is eligible for release to parole on 29 February 2012. 7The non-parole period accordingly was 50% of the total term imposed on the applicant. Facts 8The factual matters were set out in a statement of agreed facts which were summarised in the Crown's written submissions dated 16 August 2010. The following is based upon the Crown's summary:- "At the time of the offence, the applicant had known the victim for a few months through mutual friends. On 21 July 2007, the victim went to the Royal Hotel in Windsor with her boyfriend, Chris, and other friends. The applicant was also there and they socialised together. At about 10.30 pm, they decided to go to the victim's home for a few drinks before attending a party. The victim arrived home at 11.00 pm. The applicant and his friends arrived soon after. The victim decided not to go to the party as she was tired and the guests, including the applicant, left. The victim went to bed. About half an hour later, Chris, the applicant and another male returned to the victim's home as a fight had broken out at the party. The applicant argued loudly with the other male and the victim approach them and told them to "shut up" . The three men then left to attend another party. The victim heard the front door close behind them and went back to bed. The victim awoke to someone (the applicant) laying [sic] on top of hear and trying to kiss hear. The person said, 'Don't worry, it's only me , Chris'. The victim knew from the weight of the person and his voice that he was not her boyfriend. The applicant pulled the covers off the victim's bed. The victim was dressed in a jersey top and jeans. The applicant lay across her, holding her down with his weight. He grabbed her buttock and squeezed it, then touched her crotch on the outside of her jeans. The victim tried to push him away. The applicant said, 'I want to fuck you up the arse' and tried to pull the victim's top off. The victim said, 'Get out'. The applicant said, 'Just kiss me and I'll leave you alone' The victim then realised it was the applicant and again told him to get out. The applicant turned the light on and said, 'When I come back I expect you will have your clothes off'." Grounds of appeal 9The written submissions on behalf of the applicant dated 23 April 2010 set out a number of grounds of appeal, being Grounds 1(a), (b) and (c) and Ground 2. 10Mr G Brady of counsel who appeared with M McMahon of counsel for the applicant indicated at the hearing of the application for leave to appeal that Ground 1(b), (c) and Ground 2 were no longer pressed. Accordingly, the sole ground of appeal was that set out in Ground 1(a) which was in the following terms:- "Ground 1: The sentencing judge erred (in) her approach to assessing the objective seriousness of the offence, in that she:- (a) excluded from her consideration material that should have been seen as relevant." 11The applicant sought leave at the hearing of the application for leave to appeal to add, as a further ground of appeal, the sentencing judge's failure to take into account five days of pre-sentence custody and that this arose as a result of the matter not having been expressly raised with the sentencing judge. On 23 August 2010, leave was granted to add this ground. 12In relation to Ground 1(a), it was contended that the sentencing judge failed to take into account material that was applicable to a proper assessment of the objective seriousness of the offence. In this respect, reference was made to the following passage in the remarks on sentence (at p.7):- "The Court acknowledges that there is a difference between those matters which are in reality circumstances of the offence which go to the evaluation of objective seriousness of the offence in circumstances personal to the offender such as his intellectual disability and poor impulse control, that might explain or influence the conduct or otherwise impinge on his moral culpability but are not relevant to the evaluation of objective seriousness ." (emphasis added) 13In support of this ground, the submissions for the applicant cited the following passage from this Court's judgment (Spigelman CJ, Wood CJ at CL, Simpson J) in Regina v Way (2004) 60 NSWLR 168 at [86]:- "Some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters ... of ... intellectual disability, where that is causally related to the commission of the offence, insofar as the offender's capacity to reason, or to fully appreciate the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected ... such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment." (emphasis added) 14The argument on behalf of the applicant was that the sentencing judge seemed to have excluded the evidence as to the applicant's intellectual disability and poor impulse control from her assessment of the objective seriousness of the offence. It was contended that the failure to do so established error. 15There were two passages in the remarks on sentence of particular relevance to this ground of appeal. The first is at p.7.7 of the remarks on sentence. I have already set out a part of the relevant passage in the remarks in paragraph [12], but I consider it is desirable to reproduce the whole of the relevant extract. There, her Honour stated:- "... The most complex sentencing issues in this case concern the personal circumstances of Mr Andrews and they are factors that might properly be said to have impinged on his understanding, that is, his mens rea, secondly, his mental state at the time of the commission of the offence so I would be considering intention as opposed to recklessness and thirdly mental illness or intellectual disability and if they were causally connected to the commission of the offence. The Court acknowledges that there is a difference between those matters which are in reality circumstances of the offence which go to the evaluation of objective seriousness of the offence and circumstances personal to the offender such (as) his intellectual disability and poor impulse control, that might explain or influence the conduct of the offender or otherwise impinge on his moral culpability but are not relevant to the evaluation of objective seriousness." 16The second passage is that at p.14.6 of the remarks on sentence as follows:- "Having regard to the assessment of this offence, taking into account the section 21A factors to which I have referred, there are reasons for setting the standard non-parole period, ... shorter than the statutory ratio. Having regard to section 44 and to Way's case, I acknowledge that the standard non-parole period applying to this offence of five years as a guide or a reference point rather than as a starting point for this as a mid-range offence. It is acknowledged that some of the 21A factors to which the Court has already referred are relevant to both an assessment of objective seriousness and the ratio of the non-parole to the parole period. Specifically in this case, of course, is the issue of intellectual incapacity. Despite the difficult background of Mr Andrews in his present situation, only a sentence of imprisonment will satisfy the requirement of specific deterrence, the protection of the community and the requirement for punishment in this case ..." 17In his oral submissions, Mr Brady drew attention to the above passage at p.7 of the remarks on sentence, contending, "that is a straight mis-statement of the law and her Honour has fallen into error in doing to" (transcript, 23 August 2010, p.4). 18The Crown, in its written submissions placed reliance, however, upon what was stated in the above extract at p.14.6 of the remarks on sentence. Mr Brady, on the other hand, argued that the statements in that passage were "ambiguous" . First, he argued there was a question as to whether the relevant statement "... it is acknowledged that some of the 21A factors to which the Court has already referred are relevant to both an assessment of objective seriousness and the ratio of the non-parole period to the parole period" poses an issue question as to whether that statement is related to the sentence before it. Secondly, it was argued that there was ambiguity as to whether or not the statement relates in fact to the assessment of objective seriousness or whether or not it relates to the ratio of the non-parole period to the parole period or whether or not it relates to both. 19Mr Brady submitted "... there is ambiguity there that leads to a conclusion that one couldn't accept that her Honour was stating clearly that the intellectual capacity affects the objective seriousness of the offence whereas she has stated clearly previously it is not relevant to it" . 20There is little doubt that the sentencing judge's statement set out above at remarks on sentence, p.7, to the effect that the intellectual disability of the applicant and poor impulse control are not relevant to the evaluation of the objective seriousness is an incorrect statement. 21I am of the opinion that the statement extracted above from p.14 of the remarks on sentence should, in my opinion, be considered along with and taking into account the earlier incorrect statement to which I have referred. 22Her Honour's statement at p.14 of the remarks, whilst correct, may not be a sufficiently full statement to enable the conclusion to be drawn that her Honour had herself corrected her earlier mis-statement. However, I have come to the view that the earlier erroneous statement was not one which, in fact, operated to the applicant's disadvantage or detriment. For reasons I give below, I would not interfere with the sentence imposed. 23As earlier noted, the non-parole period of 2 years and 6 months represented 50% of the standard non-parole period. The applicant's offence exhibited extremely aggravating circumstances including:- (1) The fact that a degree of planning and deception was involved in the offence. (2) That fact itself establishes a significant level of understanding in the applicant as to what he was doing. (3) The fact that the offence involved the invasion of the victim's home together with a violation of her personal rights to privacy, security and safety. (4) The fact that the applicant knew, on entering the premises, that the victim was present and that she was alone. (5) The fact that offence was committed whilst the applicant was subject to a good behaviour bond. This was an aggravating factor, even though it was not to be included in an assessment of the objective seriousness of the offence. 24The sentence imposed was, in my opinion, a very lenient one and one certainly well within the reasonable range for such offences. Understood in context, it is clear that, by whatever approach was adopted by the sentencing judge, her Honour was clearly mindful of the applicant's intellectual disability and its causal significance. 25Apart from the late plea and the applicant's intellectual disability, there was little that would have warranted any departure from the standard non-parole period. As the Crown observed in its written submissions (paragraph 43), even allowing a 10% discount for the applicant's late plea, the applicant received a significant amelioration of sentence based on the fact of his intellectual impairment. 26I am of the opinion that no other sentence was warranted and that leave to appeal should be refused and the appeal dismissed. 27In forming that conclusion, I have also had regard to the sentencing judge's observations concerning the applicant's prospects of rehabilitation and the need for protection of the community. Whilst determining that general deterrence, in the circumstances of the case, should be accorded no weight, I agree that equally considerations of the protection of the community and specific deterrence were "strong considerations" : Remarks on Sentence, p.13. In addition, the sentencing judge was correct in regarding the evidence as guarded in terms of the applicant's commitment and prospects for rehabilitation. 28In its supplementary submissions, the Crown drew attention to the fact, as noted in paragraph [11] that it is apparent that the sentencing judge did not take into account a period of five days of pre-sentence custody in respect of the period 9 March 2008 to 13 March 2008. 29The sentencing Court is, of course, required to take into account the period served in pre-sentence custody where that period is referrable to the offence for which an offender is being sentenced: s.24(a) of the Crimes (Sentencing Procedure) Act 1999; Regina v Newman & Simpson (2004) 145 A Crim R 361 at [24]. 30The provisions of s.47(2)(a) and (3) permit a back-dating of a sentence in order to take account of pre-sentence custody. 31The Crown, in its supplementary submissions dated 19 August 2010, identified two questions to be considered in determining whether or not it is appropriate for this Court to intervene in relation to this aspect of the matter. They were:- (1) Firstly, whether the period of time from 9 March 2008 to 13 March 2008 was solely referrable to the offence the subject of these proceedings. (2) If the first question is answered in the affirmative, whether the Court considers the sentence imposed is appropriate and that no lesser sentence is warranted in law. 32As to the first question, the following facts are noted:- (1) The applicant was arrested for the present offence on 22 July 2007. He was granted condition bail in the Local Court on that date. (2) The applicant was sentenced for offences of drive whilst disqualified and drive with mid-range PCA. 33It is necessary to set out details as to the sentencing of the applicant in respect of the last two mentioned unrelated offences and the sentences imposed for each offence, firstly, by the Wyong Local Court and thereafter as varied by the District Court. 34In the Wyong Local Court, the applicant was sentenced on 10 September 2007, particular of which are set out below. On 16 November 2007, the District Court varied the sentence in respect of the offence of drive with mid-range PCA. The particulars in respect of these sentences and the variation made by the District Court were conveniently summarised in the Crown's Supplementary Submissions as follows:- Offence Sentence imposed in the Local Court on 10.9.07 Sentence imposed in the District Court (on appeal) on 16.11.07 Drive whilst disqualified Fixed term of 6 months imprisonment to commence on 10.9.07 and expire on 9.3.08 Sentence imposed in the Local Court confirmed Drive with mid-range PCA Non-parole period of 9 months imprisonment to commence on 19.9.07 and expire on 9.6.08, balance of 3 months to expire on 9.9.08 In lieu: non-parole period of 3 months imprisonment to commence on 10.12.07 and expire on 9.3.08, balance of 9 months to expire on 9.12.08 35By reason of the above sentencing in respect of the offences of drive whilst disqualified and mid-range PCA, the fixed term for the first of those offences expired on 9 March 2008 and the non-parole period in respect of the second offence also expired on that date. 36Accordingly, the period of 9 March 2008 to 13 March 2008 by way of pre-sentence custody was solely referrable to the subject offence. 37I do not consider that allowing the applicant credit for the five days of pre-sentence custody would render the sentence imposed by her Honour an inappropriate one and, accordingly, there is, in my opinion, no factor which would militate against allowing credit for those five days. 38On that basis, on re-sentencing, the commencement date for the sentence imposed in the District Court would be 27 August 2009 in lieu of 1 September 2009. 39Accordingly, the orders I propose are:- (1) The application for leave to appeal is granted. (2) The applicant is to be re-sentenced to a non-parole period of 2 years and 6 months commencing 27 August 2009 and to expire on 26 February 2012 with a parole period of 2 years and 6 months to expire on 26 August 2014. (3) The appeal otherwise be dismissed.