Doe v Regina

THE FACTS 10The following summary of the facts is taken from the remarks of the sentencing judge. 11EH ("the victim") had been socialising with friends on the evening of 30 January 2004. In the course of walking to a friend's home in the early hours of 31 January she went past a nightclub where she observed two males. One of them got into a taxi, whilst the other (the applicant) stayed on the kerb. As the victim walked past the applicant she put her head down but said "Hi". The applicant responded in similar terms and asked the victim where she was going. The victim told him that she was going to a friend's home, at which point she started to walk faster. The applicant then caught up to her, put his hand on her back and said "I'll walk you there". 12The victim described herself as being anxious at this point because the applicant persisted in walking with her, saying that he was her "friend" and telling her that he wanted to make sure that she reached her friend's place. The victim described the applicant's presence as "overpowering". 13When the victim reached her friend's home, the applicant was still beside her with his hand on her back. He asked her if she wanted to go to a hotel, and the victim responded that she wanted to go inside. The applicant repeated his invitation to her to accompany him to a hotel. Once again, the victim told him that she simply wanted to go inside. The applicant then grabbed the victim around her waist with his arm, pulled her tightly towards him and kissed her on the open mouth with his tongue. The victim described being kissed "roughly" by the applicant whilst being held so tightly that she could not pull away. She had done nothing to indicate that she wanted the applicant to kiss her. On the contrary, she had told him on two occasions that she wished to go inside. 14The offender then suggested that they go to an area across the road, at which time the victim again protested, telling the applicant for a third time that she wanted to go inside. The applicant then took the victim in what she described as an extremely forceful grip. He dragged her down the driveway of the premises which adjoined those of her friend to a chicken coop area where he again pulled her towards him and kissed her. 15The applicant then put his hand down the victim's pants and digitally penetrated her vagina with more than one finger. The victim described that this was done roughly and said that she told the applicant that he was hurting her as he was doing it. This formed the basis of count 1. 16The offender then pulled the victim's pants down before removing his own pants. Whilst the victim was facing away from him, the applicant penetrated her anus with his penis. The victim told the applicant that he was hurting her and repeatedly asked him to use a condom. She described the applicant using extreme force, and described the pain as excruciating. This continued for about 5 minutes and the victim said that she did not think that the applicant ejaculated. This formed the basis of count 2. 17The applicant then laid the victim on the ground and engaged in penile/vaginal intercourse which formed the basis of count 6. In the course of doing so, the applicant grabbed the victim's left nipple in a manner she described as "really roughly". This formed the basis of count 7. 18The victim told the applicant that he was hurting her, at which time he ceased having penile/vaginal intercourse with her. He then placed what the victim described as his "left hand" into her vagina, and digitally penetrated her with more than one finger. This formed the basis of count 8. 19During the course of those acts which formed the basis of counts 6, 7 and 8 the victim told the offender on more than one occasion that what he was doing was hurting her, and pleaded with him to use a condom. 20The grabbing of the victim's nipple continued until she was able to get up. She ran to her friend's house and knocked on the door. The applicant followed her, carrying her thongs, which he then gave to her before asking her for her telephone number. The victim's friend then came to the front door of the premises and the victim went inside. The victim's friend described the victim as sobbing uncontrollably, being short of breath and appearing distraught. 21The police were then called. One of the police officers gave evidence that he observed the victim's pants to be bloodstained around the area of the crotch. Arrangements were then made for the victim to attend Wollongong Hospital where she was medically examined. She was found to have two grazes/lacerations on her left nipple, each of which was 3 mm long. Grazes were also found on the lining of her vagina which left bloodstains on the vagina and vulva. There was also evidence that the victim's right labia minora appeared red and was swollen to twice the size of her right. There was also swelling and redness to the vaginal entrance, swelling of the perineum and redness and grazing to the lower vaginal wall. THE FINDINGS OF THE SENTENCING JUDGE 22The sentencing judge found (commencing at ROS 14) that the applicant had engaged in a forceful and violent attack upon the victim. Having made reference to her injuries, his Honour said (commencing at ROS 17): "Concerning count 1 (digital/vaginal penetration), count 6 (penile/vaginal) and count 8 (digital) I regard each of these offences as falling within the mid range of objective seriousness. In the circumstances as they related to the present offences I do not consider that the digital penetration as (sic) less serious than the penile penetration". 23Having cited the decision of Sully J in R v O [2005] NSWCCA 327 his Honour then said (at ROS 17): "The offender's act of anal intercourse (count 2) was a particularly degrading act, carried out as it was with "extreme force" and causing the victim "excruciating pain". I regard this offence as falling above the mid range of objective seriousness". 24His Honour then proceeded to consider the applicant's subjective case before imposing the sentences previously outlined.

His Honour erred in his approach to the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120.

The approach taken by the sentencing judge 25His Honour said (at ROS 22): "Section 54A(2) of the (Crimes (Sentencing Procedure) Act) provides that the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences included in the table. Section 54B of the Act provides that the court is to set the standard non-parole period fixed for the offence unless the court determines that there are reasons for setting a non-parole period that is either longer or shorter than the standard non-parole period". 26His Honour then made reference (at ROS 24) to the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168: "In accordance with the decision of the Court of Criminal (sic) in R v Way, one must ask whether reasons exist for not imposing the standard non-parole period. That question is answered by considering the objective seriousness of the offence in order to determine whether it falls within the mid range of objective seriousness for offences of the relevant kind". 27His Honour found that the offending in counts 1, 6 and 8 fell in the mid range of objective seriousness. In respect of count 2 his Honour said (at ROS 27): "... my assessment is that it falls above the mid range of objective seriousness. ... Where the court is of the view that a matter falls either below or above the mid range of objective seriousness the court is then required to exercise its discretion in accordance with established sentencing practices and by reference to matters identified in s. 3A and s. 21A of the Crimes (Sentencing Procedure) Act. In such an approach the standard non-parole period is properly a reference point or a guide post along with other relevant extrinsic aids such as the authorities, statistics and the specified maximum penalty".

Submissions of the parties 28By reference to the passages set out at [25] and [26] above, it was submitted on behalf of the applicant that his Honour had adopted a two stage approach in sentencing the applicant, contrary to the decision in Muldrock. The Crown conceded that his Honour's approach in this regard reflected error. 29However, the Crown's concession did not extend to his Honour's approach in respect of count 2. The Crown submitted that having found that the offending in count 2 fell above the mid range, the sentencing judge had proceeded to sentence the applicant by taking all relevant matters into account. The Crown submitted that his Honour's remarks specifically indicated that he had not given the standard non-parole period determinative significance in considering the appropriate sentence in respect of count 2, but that he had (as he expressly stated) used it as a reference point or guide post. Accordingly, the Crown submitted that there was no error in respect of count 2. 30The Crown further submitted that the conceded error in respect of counts 1, 6 and 8 was immaterial in any event because the sentences imposed for those counts were completely subsumed by the sentence imposed in respect of count 2, in respect of which no error was made out. In this regard, the Crown relied upon the decision in Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [83]. In these circumstances, the Crown submitted that s. 6(3) of the Criminal Appeal Act 1912 would not be enlivened even though error had been established.

Consideration and conclusion 31The Crown's concession was, in my view, a proper one. Those passages of his Honour's sentencing remarks at [25] and [26] above make it clear that his Honour adopted a two stage process of sentencing by identifying the standard non-parole period and by then asking whether there were any factors which justified a departure from it. In light of the decision in Muldrock, that was an erroneous approach. 32Equally however, it is evident from that passage of his Honour's sentencing remarks set out in [27] above that his Honour considered count 2 separately from counts 1, 6 and 8. In doing so, he used the standard non-parole period applicable to count 2 as a reference point and proceeded to sentence the applicant by reference to the matters to which he referred. Using the standard non-parole period as a guideline, yardstick or reference point, as opposed to giving it primary or determinative significance by using it as a starting point, reflects an approach which is entirely consistent with the decision in Muldrock (see Zreika v R [2012] NSWCCA 44 at [43] per Johnson J). 33In these circumstances I do not consider that his Honour erred in his approach to sentencing for count 2. Moreover, in circumstances where his Honour considered count 2 quite separately from counts 1, 6 and 8, I do not consider that the conceded error in respect of those latter counts infected his Honour's approach to sentencing in respect of count 2. 34However, I do not accept the Crown's submission that the error in respect of counts 1, 6 and 8 is immaterial. An error will be material if it has the capacity to infect the exercise of the sentencing discretion. It is the question of that capacity, rather than the outcome, which is the primary consideration (see Baxter (supra) at [83] per Latham J). In my view, the fundamental nature of the identified error in the present case is a clear indication that it had the capacity to infect the overall sentence imposed. 35It follows that a material error has been made out. The application to extend time 36 In Abdul (supra) this Court said (at [53]) "Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time". 37In the present case the delay is substantial. It is sought to be explained on the basis of a change in applicable sentencing principles following the decision in Muldrock. A Victim Impact Statement was before the sentencing judge documenting the understandable emotional harm suffered by the victim as a consequence of the applicant's offending. It is reasonable to infer that the granting of an extension of time may well give rise to added trauma for her. It would also offend the principle of finality. All of these matters tend against granting an extension of time. 38For the reasons explained in Abdul, because a material error has been established it is necessary to assess the prospects of success of the application for leave to appeal. In doing so, the Court must consider whether any other sentence is warranted in law (Criminal Appeal Act 1912 (NSW) s. 6(3)).

Is a lesser sentence warranted in law? Submissions of the parties 39 Counsel for the applicant did not take issue with the fact that the offending in an overall sense was objectively serious. However he submitted that when the counts were assessed individually, it was evident that the objective seriousness of each of them differed. Whilst acknowledging that the offending in count 2 involved extreme force, caused the victim significant pain, and extended over some minutes, counsel submitted that in comparison, the offending exhibited in the remaining individual counts was of shorter duration, entailed minimal penetration and was, as a consequence, generally less serious. In these circumstances, counsel pointed to the fact that the non-parole periods for each of those remaining counts were only separated by one year, a circumstance which, it was submitted, did not reflect the fact that they involved less serious offending when compared to that in count 2. 40Counsel for the applicant, both in writing and orally, also submitted that because the form of sexual intercourse in counts 1 and 8 was digital penetration, the offending in those counts should be viewed as being less serious than the other forms of forced intercourse which were the subject of counts 2 and 6. In this regard, counsel relied on the decision in MH v R [2011] NSWCCA 230 which, he submitted, had "clarified" the proposition for which he contended. 41Counsel also relied on the fact that there were a series of mitigating factors in the applicant's favour which, he submitted, had not been given sufficient weight by the sentencing judge. These included the fact that the offence was essentially opportunistic and not a part of any planned or organised criminal activity, along with the fact that the applicant had no prior convictions. Counsel also pointed to the evidence which was before the sentencing judge concerning various unfortunate aspects of the applicant's upbringing in Liberia, along with the fact that he was now exhibiting symptoms of post traumatic stress disorder. In these general respects, counsel also relied upon the affidavit of the applicant of 12 September, in which he deposed to the difficulties he has experienced in custody as a consequence of his ethnicity, and the rehabilitative courses that he has undertaken. Finally, counsel relied upon statistics issued by the Judicial Commission of New South Wales, along with what were said to be cases involving comparable offending. 42The Crown submitted that even if material error were found, no lesser sentence was warranted. It was submitted that the sentencing judge had accurately described the overall incident as a forceful and violent attack, and one which involved a particularly degrading act of anal intercourse. 43Although the Crown appeared to accept that as a general proposition digital penetration should be viewed as less serious than penile penetration, it was submitted that the objective seriousness of any offending was to be determined having regard to the entirety of the circumstances. In the present case the Crown pointed, in particular, to the victim's description of the offending in counts 1 and 8, and to the medical evidence of the injuries she sustained. In these circumstances, the Crown submitted that merely because those counts involved digital penetration they should not be viewed as less serious than those which did not. That submission was consistent with the findings of the sentencing judge, which were not challenged. 44Finally, the Crown submitted that the applicant had the benefit of the sentencing judge having ordered that all of the sentences be served concurrently, in circumstances where some partial accumulation would have been appropriate. It was submitted that the imposition of totally concurrent sentences reflected an approach which was generous to the applicant.

Consideration and conclusion 45In determining whether some lesser sentence is warranted, it is necessary to have regard to the entirety of the objective circumstances of the offending. In the present case those objective circumstances commenced some time prior to the actual offending, at a time when the victim was walking to the home of a friend. She was intercepted by the applicant who was unknown to her and who persisted in accompanying her on the pretence that he wished to do nothing more than "walk her home". He did so in circumstances where the victim gave him no indication that she required, much less wanted, him to accompany her. 46Upon arrival at her friend's home, the victim twice refused the applicant's invitation to accompany him to a hotel, telling him that she simply wanted to go inside. Far from respecting the victim's wishes, the applicant then forcibly dragged her to the rear area of a nearby residence where the offending took place in the area of a chicken coop. The offending itself was obviously serious, and the description given to it by the sentencing judge was apt. 47As I have previously noted, one of the primary submissions advanced by counsel for the applicant concerned the relative seriousness of those counts which involved digital penetration when compared with those other counts which involved other forms of forced sexual intercourse. In light of that submission, it is necessary to make a number of observations. 48This Court has previously said that in cases of this kind the type of forced intercourse is not determinative of the objective seriousness of the offence, and that the creation of some form of hierarchy in that regard is neither possible nor appropriate (see for example R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575, per Simpson J at [24]). 49In R v King [2009] NSWCCA 117 McClellan CJ at CL said (at [35] - [36]): "It is unnecessary to enter into a debate about the significance in sentencing of different types of penetration that fall within the concept of sexual intercourse: see R v Hibberd [2009] NSWCCA 20. The simple fact is that the respondent inserted his finger into the child's vagina for however brief a period of time so as to cause her a physical injury with pain at least of a transient nature. He did so notwithstanding that the child awoke and told him to stop. The respondent argues that it was open for his Honour to find that digital penetration was less serious than penile penetration and this was a very significant fact in the assessment of the degree of criminality. But it has been made clear that it is not a case of simply considering the nature of the penetration in isolation as being ranked in some form of hierarchy: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575. What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is. The simple fact is that had the intercourse in this case been penile penetration it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case the seriousness of the offence may have been above mid range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range". 50To the extent that this Court has said that an act of digital penetration is less serious than an act of penile penetration, it has been consistently stressed that such a proposition is a general one, and that the entirety of the circumstances of particular offending must be taken into account. For example, in R v O [2005] NSWCCA 327 (which was a decision expressly referred to by the sentencing judge in the present case) Sully J (with whom Hidden and Hall JJ agreed) said (at [32]-[33]): "I would accept that as a general proposition an act of digital penetration, as such, is less serious than an act of penile penetration as such. I do not agree, however, that such a general proposition is more or less as of course a proposition of universal applicability in cases of digital penetration. One has only to read the victim impact statements of KW and of JS to see at once how damaging to a particular victim an act of digital penetration, let alone more than a single such act, can be to a very young child. I would at once agree that the acts of digital penetration are not properly to be regarded as the worst types of sexual intercourse on a scale of statutory penalties that peaks at a sentence of imprisonment for 20 years. That said, however, I do not agree that the offences here relevant are to be treated as though they were more or less trifling offences. They were, in my opinion, nothing of the kind. They were, for the reasons earlier herein explained, in my opinion offences of significant objective criminality". 51In R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 (to which McClellan CJ at CL referred to in King (supra)) Tobias JA (at [21]) expressed the view that this Court should give consideration to departing from the general proposition that digital sexual intercourse was to be regarded as generally less serious than penile sexual intercourse. James J (at [27]) reserved his position on the issue raised by Tobias JA. However, Price J said (at [56]): "Relevant considerations in determining where on the scale of seriousness an offence contrary to s. 61I of the Crimes Act lies include "the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation ... see R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, R v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced sexual intercourse is an important factor it is not to be regarded as the sole consideration". 52In MH (the decision cited by counsel for the applicant) R S Hulme J (in reference to the observations of Tobias JA in Hibberd) said (at [37] - [38]): "The matter was not argued. Nor was the Court provided with anything like a comprehensive review of prior authorities, and there are a number. Accordingly, this is not the occasion to attempt a detailed review of the topic. However, as a judgment on a matter of fact, my view is that digital sexual intercourse is generally less serious than penile, particularly penile vaginal, intercourse. Inherently, penile vaginal intercourse carries risks or greater risks of venereal disease and pregnancy compared with digital vaginal intercourse. To my mind, and I venture to say in the view of most of the community, penile vaginal intercourse is also a greater affront both physically and mentally to an unwilling victim in consequence of the greater subjugation of her body and intrusion of privacy that such intercourse generally involves. Other forms of forced penile intercourse have their own attributes and incidents, often closely associated with other circumstances of the assault and the relativity might not be so clear. Nevertheless, in these cases also I would generally regard penile intercourse as more serious than digital". 53Importantly, his Honour went on to say (at [39]): "In saying what I have in the two immediately preceding paragraphs, I do not, of course, purport to lay down any proposition of law. Nor do I mean to suggest that all cases of penile intercourse are worse than all cases of digital intercourse. Merely do I wish to ensure that Tobias JA's remarks do not pass without dissent and to indicate my views on a topic that does arise in this case ..." 54To the extent that the submissions of counsel for the applicant suggested otherwise, it should be emphasised that there is no decision of this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than some other form of forced sexual intercourse. Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness. 55The circumstances of the present case serve as a good example of both the rationale behind, and the correctness of, the approach consistently stated by this Court. The applicant's offending involved two separate instances of digital penetration of the victim. Both of those instances, on the victim's evidence, involved the insertion of more than one finger into the victim's vagina. In respect of the first, the victim gave evidence that the applicant had "shoved his hand up my vagina and moved his hand around roughly". There was evidence that the victim suffered significant injuries, including grazing of the vaginal wall and significant swelling to the left labia minora. 56In these circumstances, to concentrate upon the fact that the offending involved digital penetration as opposed to some other form of forced sexual intercourse would be to ignore the rough manner in which it was carried out, and the injuries which resulted from it, both matters being directly relevant to an assessment of the objective seriousness of the offending. It is evident that those matters led the sentencing judge to conclude (at ROS 17) that the applicant's acts of digital penetration were not to be viewed as less serious than the penile penetration. That was a conclusion which was clearly supported by the evidence. It was also one which reflected an approach which was entirely consistent with the authorities to which I have referred. 57His Honour (commencing at ROS 18) undertook an assessment of the applicant's subjective case. It is clear that he took into account the applicant's traumatic upbringing in Liberia, which included his mother, two brothers and a sister all being killed in a political uprising when the applicant was in his twenties. His Honour also had regard (commencing at ROS 19) to the contents of a report of Dr Allnutt, psychiatrist, who diagnosed the applicant as suffering from an anxiety disorder with depressive symptoms. In addition, his Honour made specific reference (commencing at ROS 21) to evidence given by a volunteer who had assisted the applicant and his family to settle into the local community, and who told the court (inter alia) that the applicant's wife suffered from psychiatric ill health resulting in the applicant's children being placed in the care of the Department of Community Services. 58The sentencing judge balanced those various matters against the objective seriousness of the offending and concluded (at ROS 26) that they did not justify a reduction in sentence. In my view, that conclusion was well open to him. The applicant's offending was serious and degrading, and justified the imposition of the sentences which his Honour imposed. Indeed in my view, some partial accumulation of the sentences would have been justified so as to properly reflect the applicant's overall culpability. The applicant has derived a not insignificant benefit from the fact that all sentences were ordered to be served concurrently. 59Finally, the statistical and comparative material upon which the applicant relied does not persuade me that some lesser sentence is warranted. There have been numerous statements, both by the High Court and by this Court, concerning the limited use to which statistical material can be put (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]; Han v R [2009] NSWCCA 300 at [2] (per Campbell JA) and at [34] per Rothman J). Whilst I have had regard to those authorities to which the Court was referred, the process of comparing one sentence with another is inherently problematic (see Vandeventer v R [2013] NSWCCA 33 at [45] - [46] per Adamson J (with whom McClellan CJ at CL and Rothman J agreed). 60In my view, none of the matters advanced on behalf of the applicant support a conclusion that there has been substantial injustice arising out of the sentence imposed, or that some other sentence is warranted in law. This is particularly so in circumstances where, in the course of the hearing of the appeal, counsel for the applicant expressly conceded that the overall sentence imposed was one which was within the range of proper sentencing discretion. ORDER 61For the reasons I have expressed I propose the following order: (i)The application for extension of time is dismissed.

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: 08 November 2013