BB v R

BB v R - [2017] NSWCCA 189 - NSWCCA 2017 case summary — Zoe

[3]

The facts of the offending

Commencing at ROS 1, the sentencing judge found the facts of the offending to be as follows (noting that any reference which might identify the victim of the offending, who was only 15 years of age, has been redacted): 1. The victim … 15 years of age, resided … with her mother ... The premises is a three bedroom single storey dwelling. The front of the premises is accessed by a glass sliding door with the victim's bedroom located on the right once inside the front door. 2. At about 10.00pm on Tuesday the 16th of June 2015 the victim went to bed, shortly followed by her mother and her mother's partner …, who was staying at the premises overnight. (The victim's mother) turned off all the lights and made sure all the windows and doors were closed before going to her room at the rear of the premises. The front glass door was closed but unlocked. 3. At about 12.20am on Wednesday the 17th of June 2015, the offender entered the premises via the closed front sliding glass door. He then entered the victim's bedroom and removed his shorts and underwear before leaning over the victim as she slept. The victim was lying on her back underneath blankets. At the time she was wearing an oversized black coloured jumper and a pair of black underpants. 4. The offender kissed the victim on her mouth somewhat forcefully. She woke, confused, and said, "What are you doing? Get out!" The offender put his hand over her mouth and said, "Don't scream. Calm down". He took his hand from her mouth and continued to kiss her forcefully. She screamed. He again placed his hand over her mouth, forcefully, and said, "Calm down. It's okay." She said "Get out!" again. The offender persisted with more force. He continued kissing her and then placed one hand over her mouth as he used his other hand to touch her left breast over her jumper. She screamed louder. The offender began to get angry and aggressive and the victim feared he was about to hurt her. The offender persisted and rubbed her vagina over her underwear with his hand for a matter of seconds. The victim screamed louder again for her mother. The offender again put his hand over her mouth and nose and she struggled to breathe. He got onto the bed, on top of her and straddled her waist. He said in an aggressive tone, "Don't scream". The victim smelt he was wearing cologne and could not smell alcohol. The offender, as he was in the straddling position, put some of his weight on the victim's cat that was on the bed asleep and it cried out. The victim used one of her hands to grab/strike the offender's penis and it startled him. She felt his penis was exposed and possibly half-erect. She slid from underneath him and onto the floor where she screamed for her mother and obtained a fruit knife that had been next to her bed. 5. Her mother, having heard the screams, ran to the daughter's bedroom and turned on the bedroom light. She saw her daughter standing next to her bed holding a knife out. She was crying and screaming hysterically. She saw the offender leaning over her daughter's bed wearing only a black t-shirt. He wore no pants. She immediately recognised him as an employee at a local bottle shop whom she'd had a casual sexual tryst with 18 months prior. He had a distinct neck tattoo amongst other features. 6. (The victim's mother) screamed at the offender to get out and pushed him away from her daughter. He said "Calm down. Settle down. I'm just in the wrong house. I thought I was in my girlfriend's house. I'm drunk, that's all." She asked him how he got in and he replied, "The front door was unlocked". She pushed him out of the bedroom and into the dining room. She then tried to open the front door to have him leave and found it locked. She queried this and he said, "I locked it". She unlocked and opened it and she and (her partner) tried to push him out. He refused to leave and resisted, saying, "Just let me get my pants. I'm not leaving until I get my pants". He was still completely naked from the waist down. (The victim's mother) couldn't push him out so (her partner) retrieved a pair of dark baggy shorts and black y-front underwear from the floor of the victim's bedroom and threw them at the offender. The offender took the clothes outside and began putting them on. He said, "Calm down" nonchalantly. (The victim's mother) shut the door behind him. It had taken about 2-3 minutes to get him to leave. Neither (the victim's mother) nor (her partner) smelt alcohol on the offender but formed the opinion he was drug-affected. 7. The victim made immediate complaint to her mother and (her partner) of the offender having kissed her, touched her breast, put his hand over her mouth, and touched her vagina. She told them he was on top of her and slid out when the cat got hurt. 8. The victim had called 000 and Police attended a short time later. Police were informed of (her mother's) recognition of the offender. The house was declared a crime scene and later forensically examined. Photographs and swabs of the scene were obtained. The victim's clothes were seized. 9. At about 3:40am, Police attended ….. an address approximately 300m away from the victim's home, and spoke to …. the offender's ex-partner. She informed Police that she had terminated her relationship with the offender and he had not lived with her since 9 April 2015 and that he had a new mobile number. She offered some addresses she'd heard he was staying since and provided his new mobile number. 10. At about 5:45am Police attended ….. just up the road, and saw the offender peering out from a second storey window before stepping quickly back. Police knocked on the front door and the offender presented. Police formed the opinion he was affected by prohibited drugs. He didn't smell like alcohol but like cigarettes, body odour and aftershave. He was placed under arrest and cautioned. Police asked him about his movements during the evening and he said "Yeah, fuck man. I went into the wrong house. I thought it was my girlfriend's house. I got a shock... but that's only off the record... shh." Police informed him nothing was off the record and activated a hand-held recording device. Police attempted to have him adopt his comments but he refused to. 11. Police searched him and found a capped syringe in his right short pocket and an empty plastic resealable bag in his left short pocket. The offender said, "I'm always taking stuff" in relation to prohibited drugs, and said he'd last used the night prior. 12. Police spoke to the other occupant of the house, Michael Newell and recorded the conversation. Newell said the offender had been staying with him the past fortnight. Police, with Newell's consent, searched the bedroom the offender had been using and located a pile of wet clothes on the floor. It had been raining that night. The pile consisted of the following: Black t-shirt; Dark baggy shorts with a white pin-stripe; White t-shirt; Black jacket; Black underwear; and A pair of white Nike shoes. The items were photographed and seized for analysis. 13. The offender was conveyed to Forster Police Station and entered into custody. At midday, 17 June 2015, he was afforded the opportunity to participate in an electronically recorded interview with Detectives. He accepted that opportunity but refused to answer questions put to him. He did however state he was under the influence of methylamphetamine at the time he was arrested and the night prior. At the conclusion of the interview he was charged and bail refused. 14. Later that day, the victim made a formal record of interview. On 18 June 2015 both (the victim's mother) and (her partner) provide (sic) statements and successfully selected the offender from photo identification boards.

[14]

The findings of the sentencing judge

I have previously set out the findings of the sentencing judge in relation to the facts of the offending, and his Honour's assessment of its objective seriousness. His Honour dealt with the applicant's subjective case commencing at ROS 8. He noted that the applicant was then 31 years of age. He observed that until about the age of 13 the applicant's life was "comfortable enough" but that this was interrupted when his father was badly injured in an industrial accident. His Honour found that from that time, the applicant's life "largely collapsed around him", leading to the eventual breakup of his family.
The applicant became his father's carer until his death in the applicant's mid-20's. As a consequence, the applicant had a somewhat sporadic employment history. His Honour also observed (at ROS 8) that the applicant had had a drug problem since the age of 16 and had used, in the intervening period, "a cocktail of drugs", including ice and heroin.
The applicant's criminal history was before the sentencing judge. His first appearance before a Court as an adult was in 2006. His criminal history included offences of violence as well as driving offences. Significantly, in 2007 he was sentenced to a term of imprisonment for a charge of assault with an act of indecency. The facts in respect of that offending were before the sentencing judge. Broadly speaking, that offending was not dissimilar to that for which the applicant was sentenced by his Honour. The applicant was given the benefit of a suspended sentence on that occasion but was later sentenced to a term of imprisonment as a consequence of breaching his bond.
His Honour was satisfied on the basis of the report of Ms Schweickle that the applicant was suffering from a "severe depression", although he was not satisfied that there was any causal connection between that condition and the offending. He accepted the applicant's assertion, contained in his letter to the Court, that he had been assaulted since being taken into custody and concluded (at ROS 12) that this was a matter which should be taken into account in mitigation.
His Honour concluded that it was important to emphasise the need for both specific and general deterrence. He said that he had a "jaundiced view" about the applicant's prospects for rehabilitation and was "cautious" about them. Notwithstanding those reservations, and on the basis of the applicant's depressive condition and the need to address his drug addiction, his Honour found that there were special circumstances. Having said (at ROS 14) that those circumstances would be "tempered to some extent", his Honour adjusted the ratio between the non-parole period and the head sentence to one of 57%.

[17]

Consideration

In order to succeed on this ground the applicant must establish that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 35; [2005] HCA 25; at [25].
Counsel for the applicant did not cavil with any of the factual conclusions reached by the sentencing judge. His Honour expressly rejected the applicant's explanation for how he came to be in the victim's premises. His Honour also found that: 1. there was "a degree of pre-meditation"; 2. the applicant went to the premises "intending to do what he did"; and 3. the offending "was not an opportunistic crime".
The applicant's offending was obviously serious. Having gained entry to the victim's premises and gone to her bedroom, the applicant (in the face of obvious resistance by the victim) persisted in his offending. As he did so, the force that he applied to the victim escalated. The increasingly louder screams of the victim were met by the applicant attempting to stifle them by putting his hand over her mouth, resulting in her struggling to breathe. It was only when the applicant was startled by being grabbed by the victim that she was able to escape from the physical hold that he had on her. Moreover, the applicant did not leave the premises when the victim's mother intervened. She effectively had to force him to do so. On any view of it, this would have been a most frightening experience for the victim.
It is not an element of an offence under s. 112(2) that the premises in which the offending occurs are those of the victim. Accordingly, contrary to his Honour's observations during the sentence proceedings (at T28 L5 and following) it would not have amounted to impermissible double counting for his Honour to have taken into account the fact that the offending was committed in the victim's premises: Chung v R [2017] NSWCCA 48 at [47] per the Court (Beazley P, R A Hulme and Bellew JJ). In this respect his Honour's approach was one which incorrectly favoured the applicant.
In light of all of these factors, his Honour's ultimate finding that the offending fell at the mid-range of objective seriousness might be regarded as a generous one from the point of view of the applicant.
The applicant's criminal history included not dissimilar offending, albeit some years ago. That is obviously significant. Moreover, as previously noted, the sentencing judge found that there were special circumstances and substantially reduced the ratio between the non-parole period and head sentence. In doing so, his Honour expressed caution about the applicant's prospects of rehabilitation, admitting that he had a "jaundiced view" about them. There was little evidence which pointed to a conclusion that a longer period on parole would assist the applicant's rehabilitation. Further, having indicated that he would "temper" his finding of special circumstances, his Honour in fact reduced the statutory ratio between the non-parole period and the head sentence from 75% to 57%. In my view, his Honour's finding that these were special circumstances, and his degree of adjustment of the statutory ratio, were also generous to the applicant.
The fact that the statistical material in the present case may demonstrate that the sentence imposed upon the applicant is at the upper end of the range of sentences imposed for this kind of offending does not, of itself, support the proposition that the sentence is manifestly excessive: MLP v R [2014] NSWCCA 183 at [45]-[46] per Bellew J (Macfarlan JA and Adamson J agreeing). Any assistance provided by statistical material is also limited by the fact that s. 112(2) covers a particularly wide range of offending, along with the fact that the statistics say nothing about the circumstances of the individual offences: Smith v R [2013] NSWCCA 209 at [64]-[66] per R A Hulme J (Leeming JA and Button J agreeing).
To the extent that the applicant sought to draw support from a comparison between the sentence imposed in the present case and those imposed in Smith and in Andrews v R [2011] NSWCCA 24, it has been observed on a number of occasions that consistency in sentencing is not demonstrated, and does not require, numerical equivalence, and that what is sought is consistency in the application of relevant legal principle: see for example MLP at [41]-[44] and the authorities cited therein. For all of these reasons, the necessity to take particular care when engaging in such comparative exercises, and the importance of considering the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case, have been emphasised: see for example RLS v R [2012] NSWCCA 236 at [132] per Bellew J (McClellan CJ at CL and Johnson J agreeing).
Reference to the two authorities to which the Court was taken demonstrates that, when compared to the present case, there are factors which distinguish the objective circumstances of the offending, and/or the subjective circumstances of the offender. In Andrews, although the offending was of a broadly similar nature, it was of less objective severity. There was no finding (as there was in the present case) that the offending was premeditated. Moreover, the offender in that case suffered from an intellectual impairment which was found to be causally related to the offending. Even allowing for those factors, Hall J (with whom Beazley JA (as her Honour then was) and James J agreed) described the sentence imposed at first instance (a non-parole period of 2 years and 6 months and an additional term of 2 years and 6 months) as "a very lenient one" (at [24]).
The offending in Smith was of a different nature (in the sense that the serious indictable offence was that of intimidation). It took place in a context of previous domestic violence perpetrated by the offender on the victim, in breach of an apprehended violence order, and at a time when the offender was subject to good behaviour bonds. That said, there were aspects of that offender's subjective case which did not form part of the subjective case of the applicant. They included a finding that there were good prospects of rehabilitation.
Leaving aside such distinguishing factors, any assistance provided by a comparison of those cases with the present is further diminished by the fact that those cases obviously represent a small percentage of matters of this kind. In Smith, R A Hulme J relevantly observed (at [67]): The "comparable" cases to which attention was specifically invited do not support the applicant's proposition. They are but two cases of many. It is difficult to support a proposition that a sentence is manifestly excessive by comparison with so few other cases.
For all of these reasons, I am not persuaded that the sentence is manifestly excessive.
It follows that ground 2 is not made out.

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