DC v R

Court of Criminal Appeal (NSW)|2014-09-29|Before: Hoeben CJ, Fullerton J, Adamson J

Judgment 1HOEBEN CJ at CL: I agree with Fullerton J. 2FULLERTON J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 29 June 2012 after he was found guilty after trial of four counts of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW). The complainant in each count was 15 years old. The applicant sexually assaulted her in a targeted attack on one night in 1993. In each count the circumstance of aggravation was the age of the complainant. 3That offence carries a maximum penalty of 20 years imprisonment. At the time of the offending s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW) had not been enacted and, accordingly, the standard non-parole period of 10 years for an offence against s 61J of the Crimes Act did not apply. 4The applicant was sentenced to an aggregate head sentence of 7 years with an aggregate non-parole period of 5 years and 3 months. 5The applicant was self-represented on the appeal. He filed short handwritten submissions consisting of two paragraphs which the Crown addressed, conveniently, as the two "grounds of appeal with supporting submissions". They are summarised in the Crown's submissions as: Ground 1: Delay Ground 2: Assistance to the authorities pursuant to s 23 of the Crimes (Sentencing Procedure) Act ("section 23 matters") and sundry complaints.

Proceedings on sentence 6At the sentencing hearing the Crown tendered the applicant's criminal history. The applicant tendered a report from Mark Howard, psychologist, dated 26 June 2012, the significance of which has no bearing on the disposition of the application for leave to appeal.

The facts as found by the sentencing judge 7On 30 April 1993 the complainant, then aged 15, walked into the township of Port Macquarie from her home at around 6.30pm to see a film at a local cinema with friends. The applicant approached the complainant and her friends outside the cinema complex and asked whether they would like to have "a joint". They refused. 8At about 9pm the complainant left her friends to walk home alone. While she was walking across a bridge she heard the sound of coins jangling and, when she turned around, she saw the applicant running towards her. She moved aside and he passed by her. 9When the complainant reached the end of the bridge the applicant grabbed her, putting his hand around her mouth and neck. The complainant screamed and punched the applicant in the mouth. The applicant then pulled her to the bottom of an embankment where he put a knife against the back of her neck, telling her that he was not going to hurt her and that he just wanted to talk. 10The complainant was hysterical and continued to scream. She was then pushed down to the ground by the applicant who forced his tongue into her mouth. The complainant continued to kick and push the applicant after which he punched her in the mouth, causing her lip to split. 11The complainant repeatedly asked the applicant to let her go as he tried to remove her belt and jeans. The complainant continued to try to fend him off. After removing her jeans, the applicant penetrated her vagina with his finger or fingers. This was the offending the subject of the first count. 12The applicant then inserted his penis into her vagina. This was the subject of the second count. The complainant repeatedly demanded that she be allowed to go. 13The applicant then took off his jumper and put it over her face and again inserted his tongue into her mouth after which he performed cunnilingus. This was the subject of the third count. 14The fourth count on the indictment was constituted by a further penile-vaginal assault. 15The applicant then told the complainant to get dressed and to walk away without looking back in his direction. 16During the ordeal the complainant recognised the applicant's voice as being the same as the person who had offered her a joint earlier in the evening. She was unable to provide any further information which might have identified the assailant. 17Throughout the course of what can only be described as a series of violent and sustained sexual assaults the complainant suffered a split lip, bruising to her hand, an abrasion to her ear and recurrent vaginal bleeding. Three earrings had been pulled from her ear. 18The sentencing judge found additional features of statutory aggravation pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act in respect of each of the four counts: (1) that actual bodily harm had been inflicted upon the complainant; (2) a weapon had been used; and (3) the offences were committed while the applicant was on parole. 19On 14 September 2011, as a result of the Cold Case Justice Project, police confirmed that the applicant's DNA profile matched the DNA samples collected by police from the complainant on the night of the attack. The applicant was subsequently arrested and charged.

The applicant's prior criminal record 20As noted by the sentencing judge, the applicant has an extensive criminal record. His first conviction as an adult was in 1978 when he was sentenced to imprisonment for a break, enter, steal offence and for stealing a vehicle. Since that time he has served numerous terms of imprisonment. He was convicted of armed robberies between 1982 and 2001 for which he was sentenced to imprisonment. 21On 17 December 2004 the applicant was sentenced after trial to imprisonment for 8 years with a non-parole period of 6 years for threatening to inflict actual bodily harm with intent to have sexual intercourse, contrary to s 61K(b) of the Crimes Act for an offence committed on 13 April 2001. Since that sentence post-dated the offending for which he was to be sentenced, the sentencing judge took that offending into account only as bearing upon whether any leniency might be afforded to the applicant and to his prospects for rehabilitation. In light of the material that was before the Court, the sentencing judge found that the applicant had nothing more than "guarded prospects of rehabilitation". 22The sentencing judge noted that the applicant has been in custody serving terms of imprisonment for more than thirty of the last forty years. He is currently aged 53.

Ground 1: Delay 23On appeal the applicant was self-represented and appeared via video link. 24His oral submissions were largely a repetition of his written submissions, supplemented by a plea for clemency which, under the first ground, read as follows: "The police and prison system had this matter which should of been before the Court while I was in custody on another matter that started in 2001 and ended in 2009." [sic] 25The sentencing judge was aware of the delay between the commission of the offence and when the applicant was charged. Her Honour found that steps might have been undertaken to review the complainant's allegations of assault prior to the case being reopened in 2011. 26The sentencing judge cited the following passage from R v Todd [1982] 2 NSWLR 517 where Street CJ said (at 519): "...sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 27The sentencing judge went on to say: "I indicate that in arriving at the sentence I will impose I have had regard to the relevant statutory framework that relates to the sentencing of offenders and to the principles established in the authorities which bear upon the issue and I have had regard to the purposes of sentencing which are set out in section 3A of the Crimes (Sentencing Procedure) Act." 28The Crown submitted that it was open for the sentencing judge to find that the sentencing principle that obtains when sentencing for a stale crime did not apply in this case (see R v Kay [2004] NSWCCA 130 at [32] - [33] and R v Spiers [2008] NSWCCA 107 at [37] - [38]) and that to the extent that her Honour afforded the applicant leniency on account of delay, it was unduly favourable. While these submissions have force, it is unnecessary to address them in detail since I am well satisfied that there is no substance in the first ground of appeal given the consideration the sentencing judge gave to the issue of the delay.

Ground 2: Assistance to the authorities pursuant to section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("section 23 matters") and sundry complaints 29The applicant's written submissions under the second ground of appeal read as follows: "I was taken from Kempsey to Long Bay Prison and put before a committy concerning pre-release due to outstanding matters E.T.C. (Finger prints - DNA) and trying to keep me in prison E.T.C. which I never fit the criteria? I also believe that this matter would of been delt with on my last incarceration possibly on a Form One. I also have matters that I've helped the Crown with under the Rockingham Cartwright Act C.C.A.? "Murder" - Rodney Cameron (AKA) (Mallard) 1992? / & Robert Ebner "murder" 1997? And many other matters over the years. E.T.C." [sic] 30The applicant's oral submissions were again largely a repetition of what was advanced in his written submissions. These seemed to condense to two complaints: first to a complaint that he was sentenced to imprisonment at all for the multiple and serious sexual assaults the subject of the indictment, in that they should have been included on a Form 1 for the offending the subject of sentence proceedings in 2004; and, second, a wish to have his sentence reduced because he has assisted authorities in the past. 31As the Crown submitted, the offences for which the applicant was sentenced by her Honour were of such gravity that even were he susceptible to being charged in 2004, they would not have been appropriately dealt with on a Form 1. 32Insofar as the applicant seeks to invoke s 23 of the Crimes (Sentencing Procedure) Act, the Crown points out it was not raised by counsel who appeared for the applicant at the sentencing hearing. In addition, as the Crown has amply demonstrated, his assistance has been taken into account in earlier and unrelated sentence proceedings as the following cases bear out: R v Cook (Court of Criminal Appeal (NSW), 12 December 1991, unrep) per Badgery-Parker J at p 2.5-2.9, Hunt CJ at CL and Allen J agreeing; R v Cook (Court of Criminal Appeal (NSW), 26 June 1995, unrep) per Dunford J at pp 2-3 (a number of matters including one referred to in the applicant's written submission to this Court), Grove J agreeing; R v Cook (District Court (NSW), Keleman DCJ, 17 December 2004, unrep), sentencing by Keleman DCJ at p 25, referring to Exhibit B, which appears to be a reference to the matter referred to by Adams J in the sentencing of R v Ebner [2001] NSWSC 421 at [22], [26]-[27]. 33It is not appropriate that this Court revisit submissions that could have been raised at the sentencing hearing and were not. The decision as to whether a submission should be advanced is the responsibility of the applicant and his counsel. The fact that the applicant's assistance had already been taken into account in his favour may well have been known to his counsel. This is not the forum to enquire into or revisit that question. 34The second ground is not made out. 35The applicant has failed to advance any sufficient basis which might support a finding of error by the sentencing judge. Accordingly, the order I propose is that leave to appeal should be refused. 36ADAMSON J: I agree with Fullerton J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2014

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