Bullock v R

Consideration

The Applicant points to no finding of fact that is wrong or reliance by the sentencing judge on any mistaken view of the facts. Nor does the Applicant rely upon the judge failing to rely on any principle or rely upon any mistake of principle. In other words, as the ground of appeal makes clear, the applicant relies on manifest error.
Manifest error occurs when a sentence is excessive (or lenient) to an extent that the result discloses an error of principle or the misapplication of principle or some mistake of fact, even though none can be identified. In relying upon manifest excess, the Applicant must show that the discretion exercised by the sentencing judge miscarried, resulting in a sentence beyond the range of sentences available for the offence and taking account of the subjective circumstance of the Applicant. It is insufficient, in order to justify this Court intervening to correct a sentence, for the Court to come to a view that it would have sentenced differently or less severely or given less or more weight to one or more factors. [3]
The High Court, in Markarian v The Queen [4] said: "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'." [5] [Citations omitted]
As earlier stated, the Applicant is a first time offender who pleaded guilty. As a consequence the standard non-parole period, while relevant to sentencing, does not apply to the Applicant.
Further, the Applicant was only just over 18 years of age at the time of the offence. Sentencing a youth, even one that has reached majority, may require a different approach than the sentencing of an adult. In R v AEM Snr & Ors, [6] the Court said: "It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society."
The principle that a Court shall treat a youth more like an adult, where the youth conducts himself in the way an adult might and commits a crime of considerable gravity, does not mean that every crime of considerable gravity is one in which the youth has conducted himself in the way an adult might. The question is always one of seeking to synthesise the principles of sentencing. Punishment, general and specific deterrence and condemnation are some of the principles. Rehabilitation is another. Rehabilitation, in the case of youth acting immaturely, plays a far more significant role.
In BP v R, [7] Hodgson JA said: "[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."
As the Court has made clear on a number of occasions, a youth who is not a minor, must be sentenced bearing in mind the youth and immaturity of the offender. While the regime for minors is different from the regime for persons over 18 years of age, a person, such as the Applicant in these proceedings, who is only just over 18 years of age, should be treated similarly to a person who may be three months younger.
In dealing with a young person, whether or not of majority, it is unnecessary for the sentencing judge to set out the principles for sentencing young persons at any great length. Nevertheless, it is necessary for the sentencing judge to pay regard, not only to the youth of the Applicant as such, but to the effect of that youth.
The sentencing judge refers to the Applicant being young and to the Applicant's immaturity. He does not refer to the effect of the youth and immaturity on the Applicant for the purposes of sentencing.
Rather, the sentencing judge refers to deterrence, general and specific, in a way which suggests that deterrence is the most important element. For youth acting immaturely, rehabilitation plays a far more significant role and retribution and deterrence play a less significant role.
As Hodgson JA [8] points out, see above, even in relation to retribution the emotional immaturity of a young person and a less than fully developed capacity to control impulsive behaviour may contribute to the offending and may mitigate culpability.
Lastly, I deal with the evidence of comparable sentences. In Green & Quinn v The Queen, [9] the High Court referred to the term equal justice embodying "the norm expressed in the term 'equality before the law'" as "an aspect of the rule of law". It requires identity of outcome in cases that are relevantly identical and it requires different outcomes in cases that are different in some relevant respect. I would add that the difference in outcome needs rationally to reflect the difference in the relevant respect.
Further, the High Court made clear that consistency in the punishment of offences against the criminal law is a reflection of the notion of equal justice and fundamental element in any rational and fair system of criminal justice.
Different sentences may be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances and apply to persons charged with similar offences arising out of unrelated events. The consistency that the latter requires is a consistency in the application of the relevant legal principles and not some mathematical equivalence.
Further, the application of statistical analysis, blindly and without regard to the particular circumstances of cases, leads to an artificial limitation on the range of sentences available to be imposed. Nevertheless, some regard must be had to the range of sentences that are imposed on persons in like circumstances.
As is summarised above, the Applicant's submissions point out, correctly, that no offender who was convicted of one offence only and had no prior offences and pleaded guilty had imposed upon him or her, a non-parole period of greater than three years. When one factors in an age group of 18 to 20 years of age, no offender received a head sentence beyond three and a half years.
As earlier stated, one must be very careful with statistics of that kind. In the case of 18 to 20 year old offenders on a first offence with no priors and a plea of guilty, there were only six such offenders included in the statistical analysis. Further, the sentences would include the discount for a plea of guilty.
Nevertheless, if one takes out the age factor and looks only at offenders who had no prior record, of which there were 51, 92% of them received lesser head sentences than the Applicant in these proceedings. Of those 51 offenders, 31 had no prior record and pleaded guilty and of those, none received a head sentence beyond five years' imprisonment.
In this case, the sentencing judge fixed a starting point (that is, before applying the discount for the plea of guilty) of eight years' imprisonment as a head sentence. For an offender with no prior offences, who pleaded guilty to the charge and was only just of majority, that starting point is beyond the range ordinarily applied.
The foregoing does not discount the serious damage done to the complainant in these proceedings. Nor does it underestimate the seriousness of the offence and the debilitating effect of such an intrusion and such abuse on a young person, particularly the effect that she can no longer trust her friends as she did before. Such a feeling is necessarily a not unusual effect of such a serious intrusive offence. This is a very serious offence with obvious long-term effects on the victim/complainant. People, particularly women, should be able to go to sleep in peace without being set upon by some person with an unrequited fixation. The Court must condemn this violence in strong terms.
Nevertheless, when one takes into account the principles that apply to a youth, just over the age of 18, who has plainly acted wholly immaturely and as a child without the adult capacity to control impulsive behaviour, together with the leniency that a first offender otherwise might be shown, the sentence imposed, and the starting point of eight years' imprisonment is manifestly excessive.
The excessive outcome may be due to a failure to apply the principles relevant to the sentencing of a person of this age and the necessity to give greater significance to rehabilitation than to retribution. It may have resulted from a failure to accord the leniency associated with a first offender. It may simply be that the sentencing judge did not pay appropriate regard to the range of sentences imposed in comparable cases. It is difficult to ascertain precisely where error has been made. Nevertheless, the outcome reflects an error of principle or a misapplication of principle and manifest error.
As a consequence of the foregoing, it is necessary, should the Court accept the orders that I propose, for the Applicant to be re-sentenced. I take into account the subjective factors to which the sentencing judge referred. I also take account of the principles in sentencing a person of immature mind and a young age, just over the age of 18 and the leniency which a first offender ought to be shown.
I also allow a 25% discount for a plea of guilty at the earliest possible opportunity and find, for the reasons expressed by the sentencing judge, that a longer period under supervision is appropriate. I shorten the non-parole period to allow for a longer period during which the Applicant is eligible for parole. I take account of the comparable cases to which the Applicant and the Crown have referred the Court.
The statistics must also be used carefully because when comparing an offender in this category to other offenders, the statistics will generally reflect a discount applied for the plea of guilty in the sentence that is recorded.
The offence is a serious one. Notwithstanding the intoxicated state of the offender, it involved violence and an overpowering of a person who was weaker and vulnerable. It also involved both digital and penile penetration and was extremely intrusive. A full-time custodial sentence is plainly warranted. I would fix a starting sentence of six (6) years' and eight (8) months' imprisonment, to be reduced by the 25% for the early plea of guilty. The sentence I propose is still longer than any other sentence imposed on offenders for similar offences and with these subjective circumstances that are shown on the statistics, but any less would not reflect the serious nature of the offence. Other comparable sentences have been more severe, but I agree with the analysis of Fagan J and his comments, to which I have, since drafting these reasons, had access.
For the foregoing reasons, I propose that the Court make the following orders: 1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence imposed on Justin Bullock on 17 April 2015 be quashed and, in lieu thereof, for the offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), the Applicant, Justin Bullock, be sentenced to a non-parole period of two (2) years and six (6) months commencing 17 April 2015 and concluding 16 October 2017 with a remainder of term of two (2) years and six (6) months concluding 16 April 2020. 4. The Applicant is first eligible for release on parole on 16 October 2017.
FAGAN J: I agree with Rothman J that the sentence imposed in the District Court was manifestly excessive. It was significantly more severe than sentences which have been imposed or upheld by this Court in respect of other offenders in circumstances which should be regarded as comparable, after making due allowance for individual features of this case and differences from the facts considered in past decisions. The manifest excessiveness, if not corrected, would constitute an inconsistency in the administration of the criminal law with respect to sentencing for offences against s 61I Crimes Act.
For the purposes of determining an appropriate sentence for the applicant and of comparing the circumstances of his case with those of others which have come before this Court, the essential features of the present appeal may be enumerated as follows: 1. The sexual intercourse took the form of full penile vaginal penetration. 2. Significant force was used to overcome physical resistance of the complainant. 3. The complainant was heavily affected by alcohol. 4. The offender was 18 years of age at the time of the offence. 5. The complainant was close in age to the offender, being 17 years, and the two were well known to each other and had socialised over the preceding 12 months. 6. The complainant was not only injured in the course of the sexual assault but was very seriously distressed by it and suffered continuing psychological impact. 7. The applicant pleaded guilty at the earliest opportunity and was entitled to a 25% discount on the sentence which would otherwise have been imposed.
In Cowling v R [2015] NSWCCA 213 the sexual assault was less serious in physical terms, not involving penetration. The offender and victim in that case were close in age (22 years and 20 years, respectively) and were well known to each other. The offender pleaded guilty and was entitled to a 25% discount. This Court considered a non-parole period of 1 year and 6 months with a balance of term of 10 months appropriate. In giving the principal judgment Leeming JA at [51]-[54] considered, amongst other cases, McCartney v R [2009] NSWCCA 244, and Badans v R [2012] NSWCCA 97, both of which involved full penile vaginal intercourse where the offender and victim were known to each other socially and were close in age.
In McCartney v R the physical acts were less serious than those in the present case because the offender desisted in the face of resistance. In Badans v R the offender forced himself upon the complainant whilst she slept. Mitigating subjective circumstances included that the offender had very low cognitive capacity, to a degree which was significant to his culpability.
Each of these three cases was broadly comparable with the present but in each of them there were features of the objective conduct or of the offender's subjective circumstances, or both, which rendered the offending less seriously punishable than in the present case.
In BP v R [2010] NSWCCA 159 the offence against s 61l was constituted by sexual intercourse by a young male of an age close to that of his victim. The offender was almost 17 years old, the victim 19. As in the present case the offender and the victim had socialised during the evening in question and the offender had then forcibly penetrated the victim vaginally whilst she was heavily intoxicated. The offender was entitled to more consideration on account of his youth than the present applicant. His background in a highly dysfunctional Aboriginal family was also given weight towards reduction of sentence. On the other hand he had a criminal record including a previous aggravated sexual assault. He had defended the subject charge and was therefore not entitled to a discount. On re-sentence this Court imposed a non-parole period of 3 years with a balance of term of 2 years. For purposes of comparison, if he had pleaded guilty and received a 25% discount there would have been a non-parole period of 2 years and 3 months and a balance of term of 1 year and 6 months. Making due allowance for some circumstances of BP v R which warranted a higher penalty than in the present case and some features which tended the other way, overall the criminality and the warranted degree of punishment were quite closely comparable between BP v R and the present case.
In Stewart v R [2012] NSWCCA 123 the offence against s 61I was committed by digital penetration over the protests and physical resistance of the complainant. The offender and the complainant were aged 21 years and about 23 years respectively and had been in a relationship for some years. They had a three month old baby. On the evening of the offence the complainant informed the offender that their relationship was over. He responded by forcing himself upon her violently, in the manner above described. There was an early plea of guilty and a 25% discount was allowed. The offender came from a broken home, had a history of Attention Deficit Hyperactive Disorder and had had one psychotic episode. He was diagnosed with depression at about the time of or soon after the offence. A non-parole period of 2 years and 8 months was imposed with a balance of term of 1 year and 10 months. A severity appeal was dismissed. Again, making due allowance for variances between the two cases (in both directions with respect to the level of penalty called for) Stewart v R was relevantly comparable with the present case.
There are to be found many other cases where sentences for offences against s 61I have been imposed of greater severity than that which Rothman J would substitute in the present case. Some of them are cited in the reasons of the Court in the appeals referred to above. Without rehearsing the facts and points of difference in such other cases it may be said of them generally that they involve either objective or subjective features which would explain the more severe punishment. By making this comparison with cases which were significantly less serious than the present case overall, with others which are most closely comparable and with those which clearly warranted more severe punishment than the present applicant, the Court can be satisfied that the sentence proposed by Rothman J is relevantly consistent with its other decisions in sentence appeals concerning s 61I offences.
For the reasons given by Rothman J and for the additional reasons which I have given above, I agree that the orders of the Court should be as his Honour proposes.

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