Christie v R

Court of Criminal Appeal (NSW)|2012-10-12|Before: Hoeben JA, Johnson J, Beech-Jones J, Jones J

Judgment 1HOEBEN JA: I agree with Beech-Jones J and the orders which he proposes. 2JOHNSON J: I agree with Beech-Jones J. 3BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by the District Court. 4On 28 June 2011 a jury found the applicant guilty of counts 1, 2 and 4 of a five count indictment. Count 1 charged the applicant with an offence under s 38 of the Crimes Act 1900 of administering to his victim an intoxicating substance, namely Alprazolam, with the intention of enabling him to commit an indictable offence, namely sexual assault. 5Count 2 charged the applicant with an offence under s 61J(1) of the Crimes Act of having sexual intercourse with his victim without her consent and knowing that she was not consenting in circumstances of aggravation, namely that she was a person under the age of sixteen years. His victim was fourteen years old. 6Count 4 charged the applicant with another offence under s 61J(1). As I will explain, it involved the same victim and arose out of the same circumstances. 7Counts 3 and 5 of the indictment were in the alternative to counts 2 and 4. They need not be considered further. 8In respect of count 1 his Honour sentenced the applicant to imprisonment for a period of seven years commencing 11 February 2010 and expiring 10 February 2017. In respect of count 2, the applicant was sentenced to a term of imprisonment of ten years consisting of a non-parole period of seven years and six months commencing on 11 February 2013 and expiring on 10 August 2020 with a balance of term of two years and six months. In respect of count 4, the applicant was sentenced to a term of imprisonment of twelve years comprised of a non-parole period of eight years commencing 11 February 2014 and expiring on 10 February 2022 and a balance of term of four years. 9The combined effect of the three sentences was that the applicant received an accumulated non-parole period of twelve years commencing 11 February 2010 and expiring 10 February 2022 and a balance of term of four years expiring on 10 February 2026.

The offences 10The following description of the events and circumstances surrounding the offence is taken from his Honour's judgment. Subject to one matter which is the subject of ground 3 and to which I will return, there was no dispute concerning the facts. 11After finishing school on 4 November 2008 the victim went to Manly Wharf to meet up with some friends. She arrived sometime between 4pm and 6pm. After meeting her friends, she consumed some wine. At approximately 9.30pm she and a friend went to a fast food restaurant. While outside, she became involved in an argument between a young man and a young female, neither of whom the victim knew. A scuffle occurred and one or other or both of them struck the victim. 12At this point the applicant (then aged thirty-four years) who was also near the Manly Wharf, intervened. He did not know the victim. He pulled the young man from the victim and fought with him. 13After the fight ended, the victim and the applicant began to talk. They decided they would look for the male and female involved in the fight, but were unsuccessful. They sat down near the wharf and continued talking and consuming wine. At some point there was a discussion about the pill "Xanax" (Aprazolam) and the applicant offered her a tablet. According to his Honour, the applicant told the victim words to the effect that it would "get her more aggravated for a fight". The victim consumed half a tablet. As she felt it was not having any effect she consumed the remainder. Some time later she consumed another tablet provided by the applicant. She continued to consume wine. The applicant topped up the victim's drink about four or five times during the evening. There was a dispute about whether the applicant had surreptitiously slipped the victim a further Xanax tablet into her drink, to which I will return. The provision of the Xanax tablets to the applicant was the conduct the subject of count 1 on the indictment. 14At some point the applicant started to feel dizzy. She left the group and located a bathroom. On her way back from the bathroom she walked into a fast food restaurant and drank some water. She returned to where she was last seated but could not find her friends or the applicant. By this time it was past 11.30pm. 15The victim then walked towards the bus stop and saw the applicant. The applicant asked the victim to go back to his place. He told her that he had "pot and pills back at his house". They hailed a taxi. Shortly after arriving at the applicant's home the victim passed out on a couch. 16The victim's next recollection was waking up naked with the applicant in his bed. She had no recollection of how she came to be in the bedroom or how her clothes were removed. She recalled waking up three or four times during the night but could not recall the exact sequence of events. 17On one occasion she woke to find the applicant performing cunnilingus upon her. This conduct constituted count 2 of the indictment. 18She drifted back to sleep and later awoke to find the applicant on top of her with his penis in her vagina. This conduct constituted count 4 of the indictment. She also recalls waking up at one point when the offender was licking her left breast and another when he was kissing her on the mouth. 19According to his Honour, the victim described "these episodes as waking up and then falling back to sleep again, as if she was passing out". His Honour said that the victim "felt that she was unable to move or speak" and noted that she had stated in her interview "I was too out of it, and I couldn't really say, like, anything". 20The victim woke up in the afternoon of the following day still naked and in the applicant's bed. She could not find her clothes or mobile telephone. The applicant gave her some clothes. She dressed and left. She took the Xanax bottle, which she later gave to the police. She walked to Manly wharf. Eventually she made a telephone call to her father from a public phone box. He collected her. He had been attempting to contact her since the previous evening. According to his Honour, her father described the victim as affected by "something or other". Her speech was slurred. Although he could not smell alcohol, he "perceived that there was something 'wrong' with her". 21When she arrived home the victim went straight to bed. She slept the whole night and woke up the next morning. That morning her sister observed that the victim looked as if she had been crying. She asked the victim why she was upset and the victim told her what had happened the night before. They contacted a youth worker and a complaint was made to the police. A limited examination was carried out at Royal North Shore Hospital. A urine sample revealed the presence of Alprazolam. 22Xanax is the brand name for Alprazolam. Alprazolam is a benzodiazepine which is prescribed to treat anxiety disorders and panic attacks. Common side effects of the drug are drowsiness, sedation, and lack of co-ordination. The sedating effects can impair cognition, consciousness and awareness, and result in retrograde amnesia. Alcohol exacerbates the common side effects of Alprazolam. The ingestion of alcohol and Alprazolam can severely compromise the ability to repel any unwanted sexual advances. 23The applicant has been prescribed Xanax since 10 July 2008. His Honour stated that he had received a prescription for Xanax "on 4 November 2009" and the prescription had been filled on the same day at a Manly pharmacy. This appears to be a typographical error. Presumably it was meant to be a reference to 4 November 2008.

The Sentencing Judgment 24I note eight points concerning his Honour's judgment. 25First, his Honour characterised the circumstances surrounding the first count as "very serious". His Honour found that the applicant knew the effect that Xanax was likely to have on the victim, but he had told her it would have the opposite effect. Thus, his Honour's findings and the jury's verdict amount to a conclusion that the applicant induced the victim to take the Xanax tablets by lying about their effect for the purpose of sexually assaulting her. His Honour found that the victim was "immature and foolish" and that the applicant took advantage of that in order to commit an offence "upon a person who is half his age". Not surprisingly, his Honour found that specific and general deterrence, as well as retribution, deserved significant weight in sentencing for count 1. 26Second, his Honour also described the circumstances surrounding both aggravated sexual assaults as serious. His Honour characterised the offence involving cunnilingus as falling slightly "below the midrange of objective seriousness for such offences" and the offence involving penile penetration at the "mid-range of objective seriousness for such offences". His Honour noted that no violence was involved in the offences, that both offences were opportunistic with no significant planning involved and that, based on the recollection of the complainant, they were "not of long duration". In my view little weight should be given to this latter conclusion given the drugged state of the victim and the fact that she slipped in and out of consciousness during the night she spent in the applicant's bed. 27Third, his Honour described the applicant's subjective circumstances. At the time of sentencing he was thirty-six years of age. He had left school during year 12. By the age of seventeen or eighteen he was consuming a large quantity of drugs. He had held a number of manual jobs for theatres and TV shows building sets and stages on a casual and full time basis. Although not referred to by his Honour, the testimonials from his family indicated that his upbringing was severely disrupted in his early teen years when his mother, who had the care of him, developed paranoid schizophrenia, as did his older brother shortly afterwards. 28Fifth, his Honour referred to an extract from a psychologist's report which detailed a history of illicit substance abuse from his late teens. A testimonial from his father stated that his abuse of drugs had commenced prior to then. 29Sixth, his Honour also referred to the psychologist's report as describing him as having suffered from "anxiety for a number of years" for which he had been prescribed medications (including Xanax). The psychologist's report referred to him as having an anxiety disorder. 30Seventh his Honour described the applicant's antecedents as not assisting him. His Honour noted that he had served gaol time for a number of offences including driving furiously, drive while disqualified, intimidating a police officer, assault occasioning actual bodily harm and break and enter. However his Honour also noted that the applicant had not been convicted for any offences as serious as those the subject of this application. None of his antecedents were sexual offences. 31Eighth, there was uncertainty about the total sentence that his Honour considered to be appropriate for count 1. At one point in his Honour's judgment he stated that the "appropriate sentence" was seven years and he would "not set a parole period as it would be subsumed in the overall sentence that I intend to impose". Later his Honour said that he did not set a parole period for this offence "because it is subsumed in the total term I intend to impose". These passages appear to suggest that his Honour considered that seven years represented an appropriate total sentence, i.e. a combination of what would otherwise be a non-parole period and an additional term. 32However, in imposing sentence his Honour stated that he sentenced the applicant "to a period of non-parole of seven years to date from 11 February 2010 and conclude on 10 February 2017". As his Honour did not specify an additional term, his Honour effectively imposed a fixed term of imprisonment for seven years. Based on this, I understand that his Honour sentenced the applicant on the basis that the appropriate sentence for count 1 was a non-parole period of seven years, and an additional term which need not be specified as it would be subsumed into the sentences on counts 2 and 4. It was most likely meant to reflect the ratio referred to in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act") (75%). If that were the case, the balance of the additional term would be two years and four months.

New ground three - erroneous basis for sentencing on count 1 33At the hearing of the appeal, Senior Counsel for the applicant, Ms Davenport SC, sought and was granted leave to add an additional ground of appeal which alleged that, in sentencing the applicant on count 1, his Honour erred in taking into account that the applicant had "without her knowledge spiked one of the complainant's drinks". It is convenient to consider this ground first. 34Ms Davenport SC submitted that his Honour did not accept one part of the victim's evidence in which she alleged that the applicant had surreptitiously placed a further Xanax tablet in her wine, but nevertheless sentenced him on the basis that that aggravating fact was established. 35In recounting the evidence given at the trial concerning the circumstances of the offences, his Honour stated: "There was evidence from the complainant that when the offender topped up the complainant's last cup of alcohol, he slipped a further Xanax tablet into the complainant's drink. That drink was given to the complainant, the cup was filled to the top, and the complainant was unaware of what the offender had done. The evidence was that when the complainant began to drink the wine, she saw a whole pill at the bottom of the cup. The complainant described the pill as white and she saw bubbles around its surface; she immediately discarded the drink and dissolving tablet. However, I do not find that those facts are proved beyond reasonable doubt, because of the evidence of Dr Allender, called by the Crown, and also the evidence of Professor Starmer, both gave evidence in relation to the rapid disintegration of Xanax. Professor Starmer conducted an experiment in relation to a tablet of Xanax, placing it in a glass of wine; and he gave evidence that the tablet began to disintegrate almost immediately, within about ten seconds." (emphasis added) 36Later in the sentencing judgment, when his Honour was characterising the applicant's conduct in relation to count 1, his Honour stated: "The offender, after giving the complainant a tablet, without her knowledge spiked one of the complainant's drinks, which he was topping up with alcohol, with a second tablet which when observed at the bottom of the glass, the complainant did not consume. The purpose of the offender giving the tablets to the complainant was for the tablet to produce the effect it had on the complainant so the offender was able to sexually assault the girl of fourteen." (emphasis added) 37In my view, Ms Davenport SC's complaint has been made good. His Honour did not accept so much of the victim's evidence that suggested that the applicant slipped a further Xanax tablet into her drink without her knowledge. However, his Honour erroneously sentenced the applicant on the basis that he had so found, i.e. that the applicant had "spiked" one of her drinks. 38Further, I consider that this mistake was material in the overall assessment of the seriousness of the applicant's conduct. On the facts that were found by his Honour, the applicant supplied two Xanax tablets to the victim which she knowingly consumed, but only after the applicant had lied to her about their effect. This conduct was undeniably reprehensible. However, to sentence the applicant on the basis that, in addition to that conduct, he had surreptitiously placed a further tablet in her drink without her knowledge was to act on a version of the facts that was even more serious than that which the facts properly found suggested. In my view this constitutes an error that warrants a reconsideration of the applicant's sentence on this count. 39I would uphold ground 3.

Ground 1 - Counts 2 and 4 - Muldrock error 40The Table in Division 1A of Part 4 of the Sentencing Act specifies a standard non-parole period of ten years for offences under s 61J of the Crimes Act. Ground 2 of the appeal contends that, in sentencing the applicant on counts 2 and 4, his Honour erred in attaching to the standard non-parole period for those offences a significance that the statutory scheme does not justify. 41At the time of the sentence hearing, his Honour was bound to apply Division 1A in accordance with the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. His Honour specifically referred to the decision in Way in his sentencing judgment. The decision in Way was also applied by this Court in subsequent judgments including R v Muldrock [2010] NSWCCA 106. That judgment was successfully appealed in the High Court: Muldrock v R [2011] HCA 39; 244 CLR 120. 42In Muldrock the High Court found, inter alia, that this Court's decision in Muldrock had reflected the analysis of Division 1A of Part 4 in R v Way and that, in this respect, Way was wrongly decided: "25 ... It follows from that acceptance that Way was wrongly decided. As will appear, it was an error to characterise s 54B(2) as framed in mandatory terms. The Court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed on assessment of whether the offence is within the mid-range of objective seriousness. ... 28. Nothing in the amendments introduced by the Amending Act requires or permits the Court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with the hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period." (emphasis added) 43Ms Davenport SC contended that his Honour erroneously adopted the approach endorsed by Way but disapproved of by the High Court in Muldrock. In effect she submitted that his Honour adopted a two stage approach to sentencing that commenced by "asking whether there are reasons for not imposing the standard non-parole period" and then considering what answer to that question was warranted by a consideration of the factors relevant to sentencing. 44The Crown resisted this submission. It submitted that merely referring to Way in a sentencing judgment did not of itself convey error. The Crown relied on the following statement in Butler v R [2012] NSWCCA 23 at [26] per Davies J (with whom Whealy JA and Rothman J agreed): "Merely showing that a sentencing judge sentenced pre Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases when an applicant is found guilty by a jury with the result that the sentencing judge will consider that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors could be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guide or yardstick." (emphasis added) 45I have already noted that his Honour cited this Court's decision in Way. In the sentencing judgment, his Honour cited Way and described the process to be adopted as follows: "In relation to the two sexual assault matters, I am bound by the standard non-parole periods, there being verdicts after trial ... Each s 61J offence carries a standard non-parole of ten years. R v Way (2004) 60 NSWLR 168 mandates that for each of the sexual assault offences, I must ask the question, 'are there reasons for not imposing the standard non-parole period?' which is answered by considering the objective seriousness of the offence, which I did earlier in these remarks, and the circumstances of aggravation and mitigation set out in s 21A, which I have also done. I now have to consider the just and appropriate sentence to impose, having regard to all circumstances of the offender; and the circumstances of the offence which I have set out earlier." (emphasis added) 46Merely because his Honour stated that he was "bound" by the standard non-parole periods is not suggestive of error. The standard non parole periods form part of the relevant legislative scheme and, in that sense, they are binding on all the courts to whom the legislation is directed. However, in my view his Honour did err by his Honour asking whether "there are reasons for not imposing the standard non-parole period". It was precisely that approach that was disapproved by the High Court in Muldrock at [25]. Adopting the phraseology of Davies J in Butler at [26] in this case, after a jury verdict, his Honour approached the matter on the basis that "the standard non-parole period [was] mandatory unless factors could be found to justify a variation from it". 47The Crown pointed to the last paragraph of the extract set out in [45] as indicating that his Honour applied an instinctive synthesis approach, as opposed to a two stage approach to sentencing (see Markarian v R [2005] HCA 25; 228 CLR 357 at [51] to [56], per McHugh J). I disagree. When read with the paragraph that immediately precedes it, it is clear that his Honour did not merely refer to the standard non-parole period as "simply a guideline or yardstick", but instead commenced with the standard non-parole period and then sought to find factors which, to quote Davies J in Butler, could "justify a variation from it". His Honour's consideration of "all the circumstances" was undertaken in that context. 48It follows that I would uphold ground 1 of the appeal.

Ground 2 - Manifestly Excessive 49Ground 2 of the appeal alleges that both the individual sentences for the three offences and their combined effect were manifestly excessive. Given that I have already found that there was invalidating error with each of the three sentences it is not necessary to consider this ground. I address below the appropriate sentence that I consider the applicant's conduct and circumstances justifies. It suffices to state that I consider that a different sentence is warranted (cf s 6(3) of the Criminal Appeal Act 1912). Further in my view, at the very least the total combined sentence comprising a twelve year minimum term and an additional term of four years was manifestly excessive. The applicant's conduct was obviously reprehensible but having regard to the total criminality involved a sentence of sixteen years is likely to have an unduly crushing effect on the applicant.

Revised Sentence 50At the hearing of the appeal, Ms Davenport SC read an affidavit from the applicant which was sought to be relied upon if the Court proposed to re-sentence. No objection was taken to the affidavit by the Crown. In his affidavit the applicant describes his ongoing struggle with his anxiety disorder. He describes his difficulties in obtaining psychiatric or psychological help in custody. He states that he is attempting to address his anxiety without the use of medication. He states that he has the ongoing support of his family. He does not address his offending conduct. His affidavit does not advance matters much beyond the position considered by his Honour. His difficulties in dealing with anxiety in custody were anticipated at that time. 51I have described the circumstances surrounding count 1 above. He was prescribed with Xanax that very day and had his own legitimate use for the drug. The opportunity for the applicant to meet the victim arose out of a random confrontation with other strangers that she became engaged in. At some point after the applicant provided her with Xanax (Alprazolam) he left her and apparently sought to take the bus home before they met up again. These considerations suggest that his administration of the drug to her was not part of some previously determined plan or modus operandi that was put into effect that evening. 52Nevertheless, a jury found that a 34 year old man drugged a 14 year old girl with the intention of sexually assaulting her and then carried through with that intention. Such conduct demands a heavy sentence. The applicant's antecedents do not include any sexual offences but they are otherwise of not much assistance to him. His difficulties with anxiety have been discussed. It was not suggested that they have any connection with his offending conduct and they do not otherwise weigh much in his favour when considered against the seriousness of the conduct that he engaged in. 53One matter that needs to be borne in mind in fixing the sentences for these offences is the age of the victim. It was an element of the offences for which he was convicted for counts 2 and 4. This does not preclude it from being considered a circumstance of aggravation of count 1. However, it reinforces that considerations of totality need to be carefully considered in determining cumulation and concurrency for the offences in this case. 54For count 1, I consider that a fixed term sentence of five years imprisonment is appropriate. I do not propose that a non-parole period be fixed, as it would in any event be subsumed in the sentences that I propose for counts 2 and 4. This sentence equates to an overall sentence of six years and eight months for this offence (see Ruttley v R [2010] NSWCCA 118 at [43] per Simpson J, McClellan CJ at CL and Fullerton J agreeing). 55For counts 2 and 4, and bearing in mind the commencing guidance derived from the standard non-parole of ten years, I propose that the applicant be sentenced to a term of eight years imprisonment for each offence. Subject to what follows, that would ordinarily translate to a non-parole period of six years and an additional term of two years each. 56It is not appropriate that there be complete concurrency with all of these sentences. If that were to occur then there would be no effective separate penalty for the administration of the drug to the victim. I consider it appropriate that the sentence for count 4 commence two years after the sentence for count 1. Further, although they were part of the same course of conduct, the starting dates for counts 2 and 4 should be staggered by a year to reflect the separate criminality involved. Accordingly, the commencing date for the sentence for count 2 will start one year after the commencing date for count 4. However the non-parole period for count 2 will be reduced under s 44(2) of the Sentencing Act to ensure that the ratio of the balance of term to the combined non-parole period better approximates to the statutory ratio referred to in that provision (see R v Street [2005] NSWCCA 139 at [37] to [39]). 57The effect of all the sentences that I propose is that the applicant receives a combined non-parole period of eight years expiring 10 February 2018 and an additional term of three years, expiring 10 February 2021. 58Accordingly I propose the following orders: (1)Leave to appeal be granted. (2)Appeal allowed. (3)Set aside each of the sentences imposed by the District Court on 11 March 2011 and, in lieu thereof, sentence the applicant as follows: (a)for the offence under s 38 of the Crimes Act 1900 to a fixed term of imprisonment of 5 years commencing 11 February 2010 and expiring 10 February 2015; (b)for the offence under s 61J(1) of the Crimes Act 1900 comprising count 4 on the indictment to a term of imprisonment comprised of a non-parole period of 6 years commencing 11 February 2012 and expiring 10 February 2018 with a balance of term of 2 years commencing 11 February 2018 and expiring on 10 February 2020; (c)for the offence under s 61J(1) of the Crimes Act 1900 comprising count 2 on the indictment to a term of imprisonment comprised of a non-parole period of 5 years commencing 11 February 2013 and expiring 10 February 2018 with a balance of term of 3 years commencing 11 February 2018 and expiring on 10 February 2021.

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