Evans v R [2017] NSWCCA 281 | Case summary

Evans v R [2017] NSWCCA 281 | Case summary | Zoe

[8]

Indecent Assault (Count 1)

On Sunday, 10 January 2016 the complainant went bushwalking with a male friend, Tim, who was known to the applicant. While she was out walking, the applicant came to her residence at Attunga to look after their children.
When the complainant returned at around 9.30pm the applicant asked her who she had been with that day and whether she was sleeping with anyone and, in particular, with Tim. The complainant and the applicant continued to argue for some time until the complainant told the applicant she was going to have a shower and go to bed. The applicant followed her to her bedroom and grabbed her by the neck, threw her to the ground, grabbed her by the crotch of her shorts and pulled her up from the ground. He held her by her crotch and shirt and shook her before throwing her onto the bed and pulling at her shorts. He then pulled her from the bed and onto the ground by her shorts and shirt. The applicant then lifted her by her shorts and threw her on the bed again. This caused her shirt and pants to tear.
He took hold of her underwear and pulled it down. The applicant said words similar to, "If you want to be a slut I will show you what a real whore is." The applicant placed his hand and fingers on and around her vagina and moved his hands vigorously. She screamed. He covered the complainant's mouth with his hand and held her while he continued to move his hands and fingers on and around the complainant's vagina. She tried to say "stop" while the applicant had his hand placed over her mouth.
After about five minutes he removed his hand and started to cry. He said, "I am sorry, I can't believe that I just done that." He became very quiet and withdrawn. The complainant, who had a sore back and bruises on her chest, packed some clothing and left the residence in her car. She drove to Manilla and spent the night in the car before going to work the following day.
At 1.32am the applicant sent a text message to the complainant which read, "Hay Lisa its Sheldon you can contact me on this number if you need me I'm very sorry Lisa." At 2.07am the applicant sent a text message to the complainant which read, "I'll leave you alone Lisa you deserve a lot better man than me you'll always be in my heart and you have a massive future ahead of you the house is all yours if u need any jobs done around there you can always ring me."
On the afternoon of 11 January 2016 the complainant told a friend that the applicant had assaulted her the previous night.
At 2.49am on 12 January 2016 the applicant sent a message to the complainant which read, "I know I fucked up the other day but I don't know how we let it get this far I thought I was going to be with you forever love you lis hope your having fun lis." At 3.45am on 12 January 2016 the complainant sent the applicant a message indicating that she was considering going to the police. The applicant replied, "Ok no worries." Around this time the complainant told her mother and her sister that the applicant had sexually assaulted her.

[13]

Do act to influence witness (Count 2)

On a number of occasions from 23 February 2016 to 9 March 2016 the applicant asked the complainant by text message to withdraw the charges against him. The content of these messages (with the complainant's responses, where relevant, in italics) was as follows: Date Time Message 23 February 2016 4.54 am I'm sorry for fucking up lately I'm over life without u I can't do life anymore and I've asked for my second chance and I know you won't drop the charges so I'm done with it all of everything I'm done. " 7.02am Are u going to drop these charges? 7.08am No 7.18am I don't want to go to jail. 24 February 2016 7.16am I know I'll be doing some serious time Lisa and I don't want that at all and you will be left with the kids full time with no break so I couldn't handily [sic] going away so that's why I want you to drop the charges and the sooner the better or I'll be back in court in not time having to plead. 7.18am What do you think Lisa? 7.22am I don't think anything. 7.23am So it's a no? 2 March 2016 3.29am Have you thought about these charges lis? 3 March 2016 3.17am I need to know weather [sic] your [sic] going to drop these charges Lisa? 3.21am I need to know or I'll have to pay a solicitor and a barrister and its going to cost me an arm and leg? 4.28am You should drop the charges and go to Wallong with the kids and live the life you want los [sic]? I'll just come and visit the kids or have them on holidays? 5 March 2016 12.32am Ask Tim if you can move away with him drop the charges and give me the house back lis what do you think? 4.41am I couldn't care if I go to jail now it is what it is and now I've lost all my life is limitless. So you're the one who doesn't want this with me so why the fuck are you in my house? 9.17am Lisa you would not even drop the charges babe and now your [sic] saying u want to be friends? 7 March 2016 10.00pm Do you know what your [sic] doing with these charges Lis? 8 March 2016 7.32am So it's a no with the charges lis? 9 March 2016 8.18pm I'm happy to let go of u lis I just need these charges dropped for the kids and my career I know I fucked up babe I never wanted to push you away.

[15]

The remarks on sentence

In the remarks on sentence the sentencing judge said of the seriousness of count 1: "In my view the conduct on count 1 falls within the mid-range of seriousness. It was violent, degrading and prolonged, motivated by jealousy and a refusal to accept that Ms Evans is an autonomous being, who has the right to decide who she will spend her life or time with. The proposition that violent sexual assault is a legitimate form of punishment, which is what the accused was doing, must be completely rejected and condemned. My initial view that this offence was above mid-range seriousness has been tempered by the spontaneous nature of the act."
His Honour noted the facts relating to the Form 1 offences (set out in more detail above). Of the effect of the Form 1 offences on the sentence for count 1, his Honour said: "When I come to my conclusion as to the appropriate sentence on count 1 I must have regard to the matters on the form 1. They are serious matters in themselves. They will impact in a significant way, as they must, on the sentence to be imposed."
Of the seriousness of count 2, the sentencing judge said: "Count 2 reveals a course of conduct that I regard as being particularly serious. It was repetitive and was clearly designed to emotionally manipulate and blackmail the complainant to discontinue the charges against him. It was also conduct that was in breach of his bail conditions as well as another court order, namely an interim ADVO. These are aggravating features. To my mind, to seek to have the victim of domestic violence and a violent sexual assault discontinue the charges in the illegitimate way he did, deserves condign punishment. The integrity of the criminal justice system must be protected and a strong deterrent message must be sent to like-minded individuals. Without such protection of this system the victims of these serious crimes have no recourse."
His Honour noted that he had regard to the totality principle in arriving at his final conclusion as to the aggregate sentence.
Of the applicant's subjective case, the sentencing judge said: "The subjective case for the offender is set out in a report of Katie Martin, psychologist, dated 13 February 2017. The offender did not give evidence. In that report the offender claims to have been the victim of domestic violence at the hands of the complainant and that he had acted, at times, in self-defence. I do not accept that unsworn account of his relationship, particularly in the light of Ms Martin's observations at paragraph 26, concerning his account of the current offences. Ms Martin says: 'He reflected that he blames the 'situation' for his offending behaviour, suggesting that his behaviour was unusual for him. In sum, Mr Evans' recollection of the events suggests a number of cognitive distortions, a minimisation that may serve to justify his aggressive behaviour.' In that context it is relevant to note his criminal history which records that on 10 May 2005 at the Bega Local Court, he was dealt with for an offence of assault occasioning actual bodily harm, for which he was given a s 9 bond for two years. That he was again before the Local Court at Casino on 8 September 2010 for an offence of assault occasioning actual bodily harm, for which he received a s 9 bond for 18 months. Although they are not offences of violence in a domestic context, it nonetheless reveals a propensity on the part of Mr Evans to deal with life's frustrations by assaulting people. I quote from paragraph 29 of the psychological report; 'Mr Evans is a 31 year old man who describes a seemingly supportive and pleasant childhood, positive experiences at high school and successful employment thereafter. There is no evidence of persistent addictive behaviours or suggestion of the presence of mental health disorder. He also indicates the support of many pro-social peers. Despite this apparent positive life Mr Evans has engaged in physically aggressive behaviours resulting in two prior charges of assault occasioning actual bodily harm. His current offences relate to intimate partner violence perpetrated toward his ex-partner around the time of their separation. And whilst he denies any difficulty managing anger, his history of aggressive acts suggest that Mr Evans may have ineffective methods of effectively managing anger and consequent behaviour.' I think there is no doubt that Mr Evans has ineffective methods of effectively managing anger and consequent behaviour. When I come to consider the likelihood of his re-offending in a violent way that does not have a sexual aspect to it, I am unable to be persuaded in the light of his history and that report to conclude in his favour. That is, I cannot be satisfied on the balance of probabilities that he will not be violent again. I do have a different view about his offending in a violent sexual way. I accept that this offence was out of the ordinary for him. I note his immediate expression of remorse. That expression of remorse is limited to his sexual misconduct, as far as I am concerned, because about a fortnight later he again violently assaulted Ms Evans, albeit in a non-sexual way (see sequence 2 - Form 1)."

[16]

Alleged manifest excess

The only sentence imposed was the aggregate sentence. There is no appeal from an indicative sentence, although manifest excess in an indicative sentence may reveal why an aggregate sentence is manifestly excessive.
The applicant submitted that the sentence indicated for count 1 was excessive. He submitted: "The expression by his Honour that the Form 1 offences 'will impact in a significant way, as they must, on the sentence to be imposed' suggests his Honour was building into the structure of the sentence concerning count one greater punishment than the indecent assault sentence ultimately deserved."
This submission would appear to misapprehend the purpose and effect of ss 32 and 33 of the Crimes (Sentencing Procedure) Act, which is both to permit and require the sentencing judge to take into account the offences on the Form 1 when imposing a sentence for the principal count (in this case, count 1). The only relevant limitation is that provided for in s 33(3), namely that the sentencing judge may not impose a sentence for the principal count that is greater than the maximum penalty for that offence charged in the principal count. Thus, necessarily, the sentence for count 1 was greater, having regard to the matters on the Form 1, than it would have been without them. Further, the criminality covered by the Form 1 was varied in conduct and time and did not overlap with the conduct in count 1. I do not discern any excess in the sentence indicated for count 1 which would account for any alleged manifest excess in the aggregate sentence.
The applicant also submitted that the indicative sentence for count 2 was excessive, which was said to have led, in part, to the manifest excess of the aggregate sentence. The applicant submitted, with respect to the sentence indicated for count 2: "The objective level of criminality though serious was not significantly so. As described above the Applicant in a series of 8 [sic, see above] text messages over a period of 2 weeks invited the victim to consider dropping the charges. There were no threats of violence, offers of money or advantage, nor invitations to decline to give evidence or give false evidence."
Section 323(a) of the Crimes Act provides: "323 Influencing witnesses and jurors A person who does any act: (a) intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce any thing in evidence pursuant to a summons or subpoena, or . . . is liable to imprisonment for 7 years."
It can be seen from the terms of s 323(a) of the Crimes Act that it covers a very broad range of conduct, including procuring a witness to give false evidence, as well as persuading someone not to attend to give evidence and many variations in between. Where a single offence covers a broad range of conduct, it will often be necessary to have regard to the range of sentences which tend to be imposed for other offending of a like nature. It is within the common experience of courts that many charges of domestic violence cannot be prosecuted because the defendant manages to persuade the complainant, including by threatening violence, not to give evidence against him. Conduct of this nature against complainants is inimical to the interests of justice and the administration of justice. The perpetrators of domestic violence may, by committing offences under s 323(a) of the Crimes Act, effectively immunise themselves from prosecution.
Although the sentencing judge considered the offence in count 2 to be particularly serious, this classification is, in my view, insufficient to distinguish it from other offences covered by the section, where an offender may threaten violence against a person for giving evidence or try to inveigle a witness to tell lies in court, or bribe a witness. That these features did not form part of the circumstances of count 2 is an indication that the seriousness of the applicant's conduct was, compared with other offences against s 323(a), not particularly high. In so far as one can discern a motive from the text message, his motives appear to include the desire to save legal costs; his wish to retain his house; his concern for his career; and his concern for their three children.
There is a further matter which is relevant to the assessment of the seriousness of count 2. The agreed facts under the heading for count 2 referred to the large number of times on which the applicant communicated, or tried to communicate, with the complainant between February 2016 and March 2016. These communications also constituted breaches of the ADVO. The Form 1 included, as set out in the table above, the offence of contravene ADVO and covered the same period between February and March 2016. While the actus reus of the contravene ADVO offence (on the Form 1) was the same as the influence witness offence (count 2), the commission of the count 2 offence involved a distinct mental element of "intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness" not to attend to give evidence.
Of the many communications between February and March 2016 only 16 text messages constituted the offending conduct under count 2. The evidence did not reveal the content of the other communications. It is therefore not possible to infer that these communications were made with the intention of inducing the complainant not to give evidence against the applicant. Thus, while the other communications were capable of forming part of the circumstances surrounding count 2, the seriousness of count 2 must be adjudged by the content and timing of the 16 text messages.
In my view the sentence indicated for count 2 was excessive, having regard to the matters referred to above, and led to the aggregate sentence being excessive. The content of the 16 text messages did not include any threat of violence. Although the applicant expressed the sentiment in the first text message that he did not consider life without the complainant to worth living I do not regard the message as being tantamount to a threat to commit suicide. Rather, I regard that particular text message as the histrionic plea of a man who had difficulty coming to terms with the loss of his relationship with the complainant. I do not discern a threat of violence in any of the text messages. Nor do I detect any indication that the applicant proposed to stalk the complainant or prevent her in any way from having another relationship if, in spite of his pleas, she gave evidence against him.
In my view, the sentence indicated for count 2 led to the aggregate sentence being manifestly excessive. Another factor which resulted in the aggregate sentence being manifestly excessive was the substantial effective accumulation having regard to the sentences indicated. Although the offending conduct covered by the two counts and the s 166 certificate covered events in 2012 and 2016, there was some communality in the conduct within these periods which required, in my view, a greater level of effective concurrence than was reflected in the aggregate sentence. It follows that this Court is obliged to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Evans v R

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (2)

Cited By (8)