BELLCHAMBERS v REGINA

Judgment 1CAMPBELL JA: I agree with Hoeben J. 2RS HULME J: I agree with the orders proposed by Hoeben J and with his Honour's reasons. 3HOEBEN J: Offence and sentence The applicant pleaded guilty to four counts of sexual intercourse without consent, contrary to s61I of the Crimes Act 1900. This offence has as its maximum penalty imprisonment for 14 years with a standard non-parole period of 7 years. 4The dates of the offences were 14 October 2006, 20 May 2008, 26 January 2010 and 30 January 2010. All four offences involved the same victim. 5The matter came before Black DCJ in the District Court at Lismore for sentence on 16 June 2010. His Honour imposed the following sentences: Count 1: Imprisonment for 4 years commencing 6 February 2010 expiring 5 February 2014. Count 2: Imprisonment for 5 years commencing 6 February 2011 and expiring 5 February 2016. Count 3: Imprisonment for 7 years commencing 6 February 2013 and expiring 5 February 2020 with a non-parole period of 4 years expiring 5 August 2017. Count 4: Imprisonment for 7 years commencing 6 February 2013 and expiring 5 February 2020 with a non-parole period of 4 years expiring 5 August 2017. The overall sentence was imprisonment for 10 years with a non-parole period of 7 years. His Honour declined to find special circumstances. 6The applicant seeks leave to appeal from that sentence on the following grounds: Ground 1: The learned sentencing judge erred by failing to impose a non-parole period for the first two counts. Ground 2: His Honour failed to determine the objective seriousness of the offences. Ground 3: His Honour did not properly assess the totality of the criminal offending by determining the individual sentences and then assessing the totality, but rather did the reverse. Ground 4: His Honour erred in not finding special circumstances. Ground 5: The individual sentences and the total sentence are too severe. His Honour erred in determining the length of the sentences given the plea of guilty and the objective seriousness of the offences. Factual Background 7Two sets of facts were placed before the Court. The first dealing with counts 1 and 2 and the second dealing with counts 3 and 4. While it is clear that his Honour had that material before him, he did not refer to it in his remarks on sentence. 8The complainant and the applicant entered into a relationship in about September 2005. At that time the complainant had a three year old daughter from a previous relationship. The complainant became pregnant to the applicant in April 2006. 9By the end of July 2006 the relationship had begun to break down. On occasions the complainant was reluctant to have sexual intercourse, but the applicant persisted in his requests. 10On 14 October 2006 the applicant and the complainant had returned to the complainant's flat after a day at the beach. Whilst the complainant was in her bedroom, the applicant began asking her to have sex with him. She told him that she did not want to. Although she asked him to stop, the applicant pushed her face first onto the bed. He removed her underpants and sexual intercourse took place. The complainant did not say or do anything further. The applicant then left the flat. These were the facts surrounding count 1. 11The complainant gave birth to their son on 25 January 2007. Until 20 October 2008 the complainant allowed the applicant access to the child. During this time the relationship between the applicant and the complainant continued on an intermittent basis. On occasions the complainant did not want to have sexual intercourse with the applicant but he persisted. 12On 20 May 2008 at the complainant's request, the applicant attended the complainant's flat to collect a pizza which she had cooked. He brought a DVD with him. Soon after the DVD commenced, the applicant began touching the complainant. 13The complainant said that she did not want to have sex. Despite her refusal, the applicant pushed her onto the floor and placed his hand inside her pants. The complainant got up and ran to the hall and the applicant pursued her. He pushed her into her bedroom and face down onto the bed. The complainant had been struggling but she gave up. Sexual intercourse then took place. When the applicant finished, he left the complainant's flat. These were the facts surrounding count 2. 14On 21 May 2008 the complainant told her general practitioner what had happened. She spoke to a sexual assault counsellor. She was examined by a doctor at Lismore Base Hospital. She then attended Lismore Police Station and informed officers of the offences. The applicant attended Byron Bay Police Station on 14 October 2008 and was charged with counts 1 and 2. 15Despite the applicant being charged with these offences, a sexual relationship appears to have continued between him and the complainant. In early September 2009 the complainant met with the applicant so that he could spend time with their son. After spending the day together the applicant said to the complainant "Can I come to the house and stay with W?" The complainant agreed to let him stay at her home. On 27 September 2009 the complainant discovered that she was pregnant with the applicant's child. The complainant said that by that time she felt completely downtrodden and she wanted someone to keep the applicant away from her. On occasions the applicant would refuse to leave the complainant's house when she asked him. 16On 26 November 2009 the complainant told the police at the Lismore Police Station that the applicant had been attending her home and as a result was in breach of the bail conditions imposed in relation to counts 1 and 2. After making that report the complainant did not see the applicant again for some time. 17On 19 January 2010 the complainant and the applicant accidentally met while shopping in Byron Bay. On that occasion the applicant asked the complainant if she would come to the beach with him on 25 January, which was their son's birthday. Nothing seems to have come of that request. At about 11.30pm on 25 January 2010 the applicant rang the complainant and said that he wished to speak to her face to face. The complainant reluctantly agreed but said that they would have to talk outside the house. An argument ensued, which woke up their son, and the applicant entered the house to play with the child. 18At about 3am on 26 January 2010 the complainant was standing near her bedroom door, having got the child back to sleep. The applicant grabbed her and pushed her against the doorway and started to kiss her and touch her. The complainant kept turning her face away and said "Stop. We can't do this. I don't want to do this. Please don't do this." The applicant held the complainant down. The complainant attempted to push him off but she was not strong enough. Sexual intercourse then took place with the complainant saying "I don't want to do this". The applicant ignored the complainant and continued to engage in penile intercourse. 19When he was finished the applicant said "Are you going to have me charged with sexual assault?" The complainant said "No". The applicant got off the bed and walked into the child's room. Later he told the complainant that if she reported him to the police he would kill himself. He then left. These were the facts surrounding count 3. 20The complainant subsequently rang the applicant and told him that because he had raped her, she did not want to talk to him anymore and that she did not want him to see their son again. 21On 29 January 2010 the applicant arrived at the complainant's flat and they spoke. During the conversation the applicant said "You think you've been frightened of me before. Now's the time to be really scared. If there was ever a time I was going to snap and do something bad now is that time". The applicant further threatened to kill himself if she did not let him stay at her home. He eventually fell asleep. 22On 30 January 2010 the applicant was at the complainant's home and their son was outside playing. The complainant was in her bedroom and the applicant came in and grabbed her. She said "Let me go". The applicant pushed her back onto the bed and pulled her underwear off. The applicant positioned himself between her legs and had non-consensual intercourse with her. When the applicant was finished, he got up and went outside to their son. These were the facts surrounding count 4. 23On 29 March 2010 the applicant was arrested for counts 3 and 4. 24In the applicant's case, a report was tendered from Mr Stoker, psychologist. Mr Stoker reported that the applicant had had issues concerning his relationship with his mother. He had been rejected at an early age by her and had been raised by his maternal grandmother, despite the objections of his maternal grandfather. The applicant had suffered from chronic depression for most of his life. Mr Stoker reported as follows: "His depression has been severe and he has had extensive psychiatric treatment for his condition. His depression, in my opinion, is related to a dysfunctional relationship with his mother in which he was given mixed messages and was not loved unconditionally. His anger that is now directed at himself was triggered, in my opinion, by this relationship. He has been suicidal at times. ... At the time of his offending behaviour he had been in a relationship which was ambivalent. Their relationship was "on and off" and the status of the interaction was confusing. It is my opinion that his offending can be seen as a result of a severe depression and an ambivalent relationship." 25A report from Dr Johns, consultant psychiatrist, was also tendered on behalf of the applicant. Dr Johns reported that the applicant had first come to see him in December 1998. He was suffering from an established major depressive disorder at the time. Dr Johns continued to treat the applicant for that condition over the years. Dr Johns noted that the applicant was eventually granted a disability support pension because of his chronic psychiatric condition. In relation to the applicant's offending, Dr Johns reported: "As I see the situation, the alleged offences referred to in your letter have arisen in the context of an ambivalent relationship between two people who have the common bond of having a son together. Mr Bellchambers appeared to be extremely distressed that what he had done had resulted in such serious charges being laid against him. It is true that Mr Bellchambers had been under a lot of stress in respect of the uncertainty of the relationship with the mother of his son, as well as being denied access to his son, which is an expected reaction to such a situation." Remarks on sentence 26As indicated, his Honour did not review the facts of the case but went directly to the question of the objective seriousness of the offence. In that regard, his Honour noted as a significant aggravating factor that counts 3 and 4 had been committed after the applicant had been committed for sentence in respect of counts 1 and 2. In relation to objective seriousness, his Honour said: "As far as the first two matters are concerned, that is the October 2006 and May 2008, acknowledging as I do that they were totally unacceptable and horrific to the complainant, assessing them as best I can overall I would not regard them as being of the mid-range of seriousness and that is because of the circumstances surrounding them, the nature of the activity and I make that finding. As far as counts 3 and 4 are concerned, the fact that he was on conditional liberty in respect of precisely the same offence against the same complainant in my view at the very least takes it into the mid-range of gravity and the overbearing of the complainant reflects that and that is what happened in my view. I have to go through that exercise and that is all I say about the objective seriousness of the situation." (ROS 2.9 - 3.3) 27In relation to the applicant's subjective case, his Honour noted that there was before him a large amount of material from many people in the community who indicated that they had a high regard for the applicant. In that regard, his Honour was prepared to find "He has done good things for needy people and I bear that in mind". His Honour referred to the existence of medical evidence but did not summarise it or otherwise appear to take it into account. In relation to the subjective case generally, his Honour said: "I should first recite the subjective factors in his favour, that is the plea of guilty, no significant record, contrition I find it hard to accept because of counts 3 and 4." (ROS 3.9) 28His Honour declined to find special circumstances, even though this was the applicant's first time in custody and there was evidence that he would benefit from longer supervision. 29Before passing sentence, his Honour said: "Assessing this overall, I have to look at the individual offences which is why I have gone through that exercise about their overall objective seriousness. I have to look at the dates and the period involved. I then have to assess appropriate sentences for each offence and then bearing the principles of Pearce in mind, decide upon any appropriate degree of accumulation and, if so, to what extent and then, having gone through all that, make sure that full credit has been given for appropriate mitigating factors before arriving at the head sentence. Had it not been for the pleas in this case, I would have regarded the appropriate overall sentence here to have been of 14 years the minimum. I reduce that because of the pleas to one of 10 years and this is the overall sentence." (ROS 4.4) Appeal Ground of Appeal 1 - The learned sentencing judge erred by failing to impose a non-parole period for the first two counts. 30The Crown concedes that his Honour erred by failing to comply with s45(1) of the Crimes (Sentencing Procedure) Act 1999. Because that Act provides a standard non-parole period for those offences, the Court was required to set a non-parole period ( SGJ v R ; KU v R [2008] NSWCCA 258 at [76] - [78]; KC v R [2009] NSWCCA 110 at [20]). While accepting that the error must be corrected, the Crown submitted that the error was technical and did not necessarily operate to the disadvantage of the applicant. 31The applicant will have to be re-sentenced on counts 1 and 2. Ground of Appeal 2 - His Honour failed to determine the objective seriousness of the offences. 32The applicant submitted that his Honour fell into the error identified in R v Knight, R v Bubiuvanua [2007] NSWCCA 283 where McClellan CJ at CL said: "4 Where a sentencing judge contemplates imposing a sentence which is significantly less than the standard non-parole period it is prudent for the judge to closely examine the relevant findings before finally determining whether the proposed sentence is appropriate. Of particular significance will be the finding in relation to the objective seriousness of the offending. That finding must be carefully considered and appropriately described. A finding of "at least mid-range" suggests that the sentencing judge is of the view that the offence is above the mid-range. If that is the case, the finding should make this apparent and define the extent to which it falls above the mid-range. The sentence should appropriately reflect this finding." 33In the same case, Howie J said: "39 The judge described the objective seriousness of the offence committed by Ms Knight as "at least in the mid-range of objective seriousness". The Crown on this appeal conceded that "her Honour correctly assessed the objective seriousness of the offending". With respect to both the Judge and the Crown Prosecutor, it is impossible to understand how such an assessment fulfils the obligation on a trial judge in applying the standard non-parole provisions to assess the objective seriousness of the offence committed. Presumably the judge thought that the offence was somewhere above mid-range but believed that she did not have to assess the exact level of seriousness because it was sufficient that she found it was "at least mid-range". But with respect, if that is how her Honour approached the matter, she was clearly in error. Although such an assessment cannot be made with absolutely precision, it must at least indicate whether the offence is assessed as below, of, or above mid-range of seriousness with some indication as to the degree to which it departs from the mid-range if that is the finding." 34The Crown accepted that his Honour failed to express his findings as to the objective seriousness of the offences with the precision required by Knight . The Crown submitted, however, that his Honour's finding should be interpreted as a finding that counts 3 and 4 were at the mid-range of seriousness. On that approach, the Crown submitted that there was no error in his Honour's sentences for counts 3 and 4 in that he clearly used the standard non-parole period as a guidepost and reduced it by 36 percent to reach a figure of 4 years. 35A troubling feature of his Honour's mode of expression is that which was identified by McClellan CJ at CL and Howie J in Knight i.e. that it was his Honour's opinion that counts 3 and 4 were above the mid-range for offences of that kind. That assessment may well have influenced his Honour's assessment of sentence. While this Court is reluctant to interfere with a sentencing judge's discretion when assessing the objective seriousness of an offence, it has to be said that on no reading of the facts of this case was it open to his Honour to find that the offences in counts 3 and 4 were above the mid-range. 36Accordingly, not only did his Honour's assessment of objective seriousness miscarry in the way conceded by the Crown but in assessing counts 3 and 4 at above the mid-range of seriousness his Honour clearly erred. Ground of Appeal 3 - His Honour did not properly assess the totality of the criminal offending by determining the individual sentences and then assessing the totality but rather did the reverse. 37The Applicant submitted that his Honour, despite referring to R v Pearce (1998) 194 CLR 610 failed to apply the principles set out in that case. He submitted that Pearce made clear that the court should impose appropriate sentences in accordance with law and then should consider the overall gravity of the criminality and adjust the final sentence so that the principles of totality and proportionality were observed. The applicant submitted that his Honour did not follow that approach but rather determined the overall sentence before assessing the criminality relating to each offence and fixing appropriate sentences in respect of each offence. 38As the extract from the remarks on sentence makes clear, this submission has been made out (para [27]) hereof. His Honour referred to 14 years as a start point for the overall sentence without setting out any rational basis for it. It is clear that he then adjusted the individual sentences to fit within this assessment of the totality of the applicant's criminality. That is the reverse of the process mandated by Pearce . Ground of Appeal 4 - His Honour erred in not finding special circumstances. 39The applicant submitted that his Honour's reason for rejecting a finding of special circumstances was not one which was open to him. The applicant submitted that a consideration of whether "special circumstances" should be found or not was concerned with the extent to which there was a need for additional supervision when an offender was released. He submitted that the reason advanced by his Honour for not making such a finding was that the applicant had committed further offences, i.e. counts 3 and 4, while on bail. The applicant submitted that this was an error and that the Court should find special circumstances and adjust the sentences accordingly. 40The principles applicable to the setting of a non-parole period of a sentence under s44 of the Crimes (Sentencing Procedure) Act are well settled. The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of sentencing, such as punishment, rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances ( Power v The Queen (1974) 131 CLR 623 at 627 - 629; R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704 at [59], Caristo v R [2011] NSWCCA 7 at [26]). 41A finding of special circumstances is a discretionary finding of fact in respect of which this Court is slow to intervene ( R v El Hayek (2004) 144 A Crim R 90 at [103], R v Cramp [2004] NSWCCA 264 at [31], Quayle v R [2010] NSWCCA 16 at [41]). The extent of any adjustment to the "statutory ratio" is a matter for the discretion of the sentencing judge - R v Cramp at [31], Trad v R [2009] NSWCCA 56 at [33]. 42In R v Simpson the issue both of what can constitute special circumstances and the nature of the exercise involved in determining what non-parole period should be imposed was discussed by a five member bench. There Spigelman CJ, with whom Mason P, Grove J and Newman AJ agreed), said: "73 One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 43Notwithstanding the significant qualifications identified by Spigelman CJ which might prevent a court interfering with a finding as to special circumstances, it is difficult to see how the fact that the offences in counts 3 and 4 occurred whilst the applicant was on bail, has any relevance to a finding of special circumstances. This is particularly so when it was common ground that this was the applicant's first time in custody and that the pre-sentence report identified the applicant as someone who would require an extended period of supervision when released on parole. 44On the facts of this case his Honour's refusal to find special circumstances cannot be justified and this ground of appeal has been made out. Ground of Appeal 5 - The individual sentences and the total sentence are too severe. His Honour erred in determining the length of the sentences given the plea of guilty and the objective seriousness of the offences. 45The applicant submitted that his Honour failed to properly assess the objective seriousness of the offences and failed to take into account the applicant's subjective case in fixing the sentences. In particular, the applicant submitted that when one looked at the whole of the criminality, the total sentence passed was out of proportion to it and did not observe the principle of totality. He submitted that the sentences were manifestly excessive. 46There is considerable force in the applicant's submission. Part of the problem was the failure of his Honour to fix individual sentences and then stand back after setting those provisional sentences and reviewing them so as to be sure that they were appropriate for the offences at hand. 47There was also a difficulty in his Honour's failure to review the facts, both relating to the circumstances of the offences and in relation to the applicant's personal and medical circumstances. A review of the offences would have revealed that while serious they occurred in a domestic relationship which involved considerable ambivalence on the part of the complainant. Whilst sexual assault even within the confines of a continuing relationship cannot be condoned, that fact and the comparatively low level of violence are matters of relevance to the objective seriousness of the offences. Regrettably, that comment is made against the background of sexual assaults which come before this Court involving very considerable threats and violence. 48His Honour's failure to review the applicant's subjective case meant that the relationship between the circumstances of the offending and the applicant's family background and clinical depression may well have been lost sight of. While his background and psychiatric difficulties provided no excuse for his offending, they did provide some explanation. 49For the above reasons I have concluded that this ground of appeal has also been made out. 50As the above analysis reveals, this sentencing exercise was replete with error. Accordingly, it is necessary for this Court to re-sentence the applicant. In doing so I have followed in part the sentencing scheme of his Honour, but have adjusted the sentences by way of concurrency and accumulation to better have regard to the principles of proportionality and totality insofar as the overall level of criminality is concerned. 51In doing so I should record my view that each of the first three offences was, because of the factors I have identified, substantially below the midrange of objective seriousness, albeit not at the bottom of that range. The applicant's persistence in the face of the complainant's greater resistance in the case of the second offence makes that one somewhat more serious than the first. 52The fourth offence was also appreciably below the midrange although, because it was committed in the context of the threats made on the previous day, more serious than the previous three. 53Of course subjective features have also to be taken into account. The most significant of these were the applicant's psychiatric and psychological circumstances which operate to appreciably mitigate his criminality and, operating in the opposite direction, the fact that he committed the third and fourth offences when on bail in respect of the first two. 54The evidence that this would be his first time in custody and that he would benefit from a longer than usual period of supervision leads to the conclusion that the Court should make a finding of special circumstances. 55The orders which I propose are: That the sentences passed by his Honour on 16 June 2010 be quashed and that the applicant be re-sentenced as follows: (i) In respect of count 1 the applicant is sentenced to imprisonment for 3 years with a non-parole period of 2 years commencing 6 February 2010 and expiring 5 February 2012 with a balance of term of 1 year expiring 5 February 2013. (ii) In respect of count 2 the applicant is sentenced to imprisonment for 4 years with a non-parole period of 2 years commencing 6 August 2010 and expiring 5 August 2012 with a balance of term of 2 years expiring 5 August 2014. (iii) In respect of count 3 the applicant is sentenced to imprisonment for 4 years with a non-parole period of 2 years commencing 6 August 2011 and expiring 5 August 2013 with a balance of term of 2 years expiring 5 August 2015. (iv) In respect of count 4 the applicant is sentenced to imprisonment for 5 years with a non-parole period of 3 years commencing 6 February 2012 and expiring 5 February 2015 with a balance of term of 2 years and 6 months expiring 5 August 2017. 56The effect of the sentence which I propose is imprisonment for 7 years with a non-parole period of 5 years. 57The applicant will be eligible for parole on 5 February 2015.