GRAHAM v R

CATCHWORDS: CRIMINAL LAW - Sentencing - sexual assault offences - aggravated robberies - whether manifestly excessive

PARTIES: GRAHAM, Judd Matthew - Applicant Crown - Respondent

COUNSEL: TA Game SC / TS Corish - Applicant LA Babb SC / ML Rabsch - Respondent

SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT FILE NUMBER(S): 06/11/0630; 06/11/0631

IN THE COURT OF CRIMINAL APPEAL 2007/5118

HODGSON JA JAMES J PRICE J

THURSDAY 4 DECEMBER 2008 GRAHAM, Judd Matthew v R Judgment 1 JAMES J: Judd Matthew Graham applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Finnane QC for nine offences to which he had pleaded guilty.

1. An offence of aggravated robbery committed on 10 October 2005, the victim being a female RB, the circumstances of aggravation being the infliction of actual bodily harm.
2. An offence of aggravated robbery also committed on 10 October 2005, the victim being a female SB, the circumstances of aggravation being the use of corporal violence.
3. An offence of aggravated robbery committed on 5 January 2006, the victim being a female SK, the circumstances of aggravation being the use of corporal violence.

Offences 4, 5, 6 and 7 were all offences committed on the same occasion on 13 October 2005, the victim being a female EY. They were:- 4. An offence of indecent assault. 5. An offence of aggravated sexual assault, the circumstances of aggravation being the infliction of actual bodily harm. 6. A further offence of aggravated sexual assault, the circumstances of aggravation being the infliction of actual bodily harm. 7. An offence of aggravated robbery, the circumstances of aggravation being the infliction of actual bodily harm. 8. An offence of aggravated assault with intent to rob committed on 5 January 2006, the victim being a female SR, the circumstances of aggravation being the use of corporal violence. 9. An offence of common assault committed on 18 November 2005, the victim being a female ET.

3 In sentencing the applicant for offence 1, the sentencing judge took into account two further offences of aggravated robbery, the circumstances of aggravation being the use of corporal violence, which were committed on 13 October 2005 against a female AB and on 5 January 2006 against a female CR.

4 The applicant pleaded guilty to all the offences. He pleaded guilty to offences 1, 2 and 3 on the day fixed for the trial of the offences. He pleaded guilty to the remaining offences 4 to 9 in the Local Court and was committed for sentence to the District Court, where he adhered to his pleas of guilty.

5 The sentences imposed by the sentencing judge, which, with one exception, were all fixed terms of imprisonment, were as follows (retaining the same numbering of the offences):-

1. A fixed term of imprisonment of seven years commencing 6 January 2006 and expiring on 5 January 2013.
2. A fixed term of imprisonment of three years seven months commencing on 6 January 2006 and expiring on 5 August 2009.
3. A sentence expressed as containing a non-parole period of three years and nine months but really being three years ten months, commencing on 4 March 2022 and expiring on 6 January 2026, and an additional term or balance of the term of five years commencing on 6 January 2026 and expiring on 5 January 2031.
4. A fixed term of imprisonment of two years and two months commencing on 6 January 2008 and expiring on 5 March 2010.
5. A fixed term of imprisonment of nine years commencing on 5 March 2010 and expiring on 4 March 2019.
6. A fixed term of imprisonment of nine years commencing on 5 March 2010 and expiring on 4 March 2019.
7. A fixed term of imprisonment of six years commencing on 5 March 2014 and expiring on 4 March 2020.
8. A fixed term of imprisonment of three years commencing on 5 March 2019 and expiring on 4 March 2022.
9. A fixed term of imprisonment of one year commencing on 5 March 2019 and expiring on 4 March 2020.

The total of the sentences was fixed terms of imprisonment and one non-parole period totalling 20 years, and an additional term or balance of a term of five years.

6 Having regard to the grounds of appeal against sentence which included that a number of individual sentences were manifestly excessive, it is necessary to refer to the facts of the offences in some detail. A statement of agreed facts of all the offences was prepared and admitted into evidence in the proceedings on sentence. His Honour's statement of the facts of the offences in his remarks on sentence was based on the statement of agreed facts. For the purposes of this application the Crown prepared a slightly abbreviated summary of the facts of the offences, which I am satisfied accurately reflects the agreed statement of the facts and the relevant parts of his Honour's remarks on sentence.

7 The Crown's summary was as follows: - " Offence 1 The victim RB was fifty-four years of age. She attended a club in the …. area, in order to play carpet bowls. She left the club alone at 10.20pm on 10/10/05 and was walking along the street. She was carrying her handbag. She felt a hand on her right shoulder. The applicant then said to her "Don't open your mouth". She screamed, she was very scared. She turned around and saw the applicant. She continued to hold onto her handbag and a struggle then ensued, as she would not release it. He then pushed her with both hands and she fell face down onto the footpath. He grabbed her bag, jumped over her and ran off. She managed to get up and walk to her home, where she woke up her son and asked him to call the police. She was very upset and shaken. She had significant bruising to her chest, breasts and arms. She had abrasions on both legs and a laceration on her left leg. Form 1 matters 1. The victim AB aged 32 years of age was robbed of her handbag at 11pm on 13/10/05. She was waiting for a friend in the car park of a church in ….. She was grabbed around the waist and she felt a hand reach up under her skirt. She felt fingernails scratch her back. She screamed, the applicant covered her face and nose forcefully so that she had difficulty breathing. The applicant demanded her bag. She handed it to him. She received scratches to her back as a result of the robbery. She was upset and crying. 2. The victim CR aged 51 years of age was robbed of her keys at 9.50pm on 5/1/06 outside her own unit in …. She had stopped near the letter boxes and the applicant approached her from behind and pushed her up against her letter boxes. He placed one hand near her throat and squeezed hard. When she screamed he covered her mouth with his and told her to "shut up". She struggled. He lunged at her. He grabbed her keys and said "Fuck you bitch" and the applicant ran off. CR had a bruised and sore neck and jaw. Offence 2 The victim SB was twenty-three years of age. She worked at a club in the …. area. It was the same club that victim RB had been at. The attack took place at 10.10pm on 10/10/05 (same night as the attack on RB). SB was going home after work. She walked to a bus shelter. She saw a reflection of a figure in the bus shelter. She turned her head. She felt two arms go around her body from behind her. The applicant's right arm went across her face, his left arm held her across the chest. She started to scream. He pushed her forcefully up against a fence behind the bus shelter. He pushed her face away from him so that she could not see it. She was terrified. He grabbed her handbag and ran off. It contained a driver's licence, credit cards, house keys, a mobile phone, $20 in cash and other personal items. She had great difficulty in getting anyone to stop and assist her. Eventually two people did and they called the police. She was shocked and distressed. Offence 3 The victim SK was thirty years of age and was robbed of her handbag and contents at 11.14pm on 5/1/06. She got off a bus stop on … and walked across the road into a council car park to get her car. When she was a couple of metres from her car, the applicant ran towards her. She started to scream as he got close. He pushed her to the ground. She landed on her back. She was screaming. She tried to hit him with an umbrella. He started to pull at her handbag and she pushed the bag at him. She noticed items falling out of her bag. When he had the bag, he then pushed her on the right breast back onto the ground and then ran off into the car park. When police examined her, her clothing looked wet on one side, her face was red and she appeared to be distressed. Offences 4,5,6, and 7 The victim EY was twenty-one years of age. About 10.35pm on 13/10/05, EY left the ….. club and began walking home. She walked alongside the ….. Park and just before she reached a creek crossing, the applicant grabbed her from behind. He placed an arm around her mouth and the other across the front of her body. The applicant held the victim tightly causing pain to her breasts and ribs. She tried to elbow him to get out of his grip. In doing so, she placed one of her hands on top of the hand of the applicant which was covering her mouth, and dug her nails in. The applicant said, "I won't hurt you. I won't hurt you". She tried to scream, but her voice was muffled by the hand across her mouth. The applicant pushed the victim from behind into a ditch which is parallel with the footpath on …. Road, and which runs alongside the … Park. The applicant continued to push the victim forward, eventually causing them both to fall to the ground. The applicant punched the victim to the mouth and body numerous times, saying "If you don't shut up, I'll kill you". (Offence 4) The applicant kneeled on all fours on top of the victim and placed one hand underneath the top she was wearing and touched her on the left breast. He then placed his hand underneath the under wire of her bra, saying "You're a nice sort", while rubbing on the breast. She tried to push the applicant off her. The applicant continued to say to her, "Just shut up, I won't hurt you" and "Ssh" noises. She reached her hand behind her, feeling for the applicant's groin region. She felt something soft and squeezed. As a result, the applicant began punching her to the face and shoulders, and said, "Do you want me to knock you out, 'cause I will". (Offence 5) The applicant slid one of his hands into her pants and underpants. He put one of his fingers inside her vagina and wiggled it around. He said, "I'm gonna make you cum". She continued to try and struggle with the applicant, but was becoming tired. The applicant then took his finger out of her vagina and put it inside her anus, and scraped it around (Offence 6). The applicant said, "I won't hurt you". She said, "That really, really hurts, get off me". The applicant said, "If you'll just open your legs a little more, then it will stop". She was feeling tired and unable to fight the applicant anymore, so she opened her legs further. At that point, the applicant got up, grabbed her bag and ran in a southerly direction along ….. Road (Offence 7). The applicant said "See you later" before leaving. The victim feared that because the applicant had her wallet and knew where she lived that he would find her and hurt her again. Offence 8 The victim SR was twenty-one years of age. She was in Australia on a working visa staying in the …. area. She was walking home in … at about 10pm on 5/01/06. She looked behind her and the applicant was standing far behind her. She turned and attempted to walk past him. As their paths crossed, he grabbed her and pushed her to the ground and demanded that she hand over her bag. She said "okay". At this point, a passing vehicle stopped. She screamed and bit him on the inside of his right forearm. He then said "I want to kill you". She screamed again. He turned, saw a passerby and ran off. She suffered a swollen top lip. Offence 9 The victim ET was walking through a park in … at about 8.30pm on 18/11/05. She had just left a nearby hotel, having had some dinner. Near a timber bridge, the applicant stood and yelled abuse at her, saying "fuck off, fuck off". He was holding a large skateboard at the time. She continued to walk through the park. Next thing she noticed him standing behind her, holding the skateboard over his head and swinging it in a downward motion towards her. She stepped out of the way and swung her handbag at him, which blocked the skateboard. He continued to swing the skateboard at her. She continued to be able to block it. She then said "I've got a knife in my bag. I'll get it out and stab you". He then ran off. She asked passersby for assistance and phone triple-0. She was fearful for her life. She didn't receive any physical injuries." 8 In his remarks on sentence his Honour made findings about and commented on the objective seriousness of the offences. His Honour said that each of the offences was violent and deliberate and that some of the offences were accompanied by death threats and that the victim EY had been injured quite severely.

9 His Honour found that in committing the offences the applicant had been under the influence of alcohol and had been manifesting an attitude of anger towards women. The applicant had not been motivated by the desire to obtain money. His Honour found that during the period in which the offences were committed the applicant had been responsible for wreaking on the persons living in the suburb in question, particularly women, a reign of terror. Many women in the area would have been apprehensive for their safety. His Honour found that the applicant would continue to be dangerous "unless something is done by him to address his alcohol problem and other problems associated with anger, resentment and his wanting to attack women". His Honour considered that, objectively, the offences against the victim EY were the worst offences. 10 His Honour explained in his remarks on sentence how he arrived at the sentences for offences 5 and 6. His Honour referred to the standard non-parole period set for the offence of ten years and expressed the view that, although the sexual intercourse which had occurred had been digital and not penile, "the circumstances in which he did it, the violence that he used and the hurt and threats make these offences more than offences of mid range seriousness". But for the pleas of guilty, his Honour would have imposed for each of these two offences a sentence with a non-parole period of 12 years but his Honour reduced the sentence to 9 years after allowing a discount for the plea of guilty. 11 Of the robbery offences his Honour considered offences 1 and 7 the more serious. In a number of places in his remarks on sentence his Honour referred to the aggravating circumstances of these offences as being the infliction of grievous bodily harm, whereas the aggravating circumstances were actually the infliction of actual bodily harm. His Honour did state the maximum penalty correctly as being imprisonment for 20 years. 12 His Honour noted that offences 1 and 2 had been committed within minutes of each other on the same night, and his Honour found that on that night the applicant had been "lurking" in the area where the offences were committed.

13 In his remarks on sentence his Honour made findings about the subjective circumstances of the applicant. The applicant was 33 years old at the time of committing the offences and 35 years old at the time of being sentenced. He had been in custody since being arrested in January 2006. Before going into custody the applicant had been in steady employment. The applicant told the sentencing judge in his evidence in the proceedings on sentence that he was an alcoholic and the sentencing judge clearly accepted that the applicant had serious problems with alcohol. 14 The applicant had a number of previous criminal convictions but his Honour found that they were summary offences and that the applicant had been dealt with "very gently" by Magistrates. A number of the offences were maliciously damaging property. All of the offences were connected with the use of alcohol. His Honour found that the applicant had failed to take advantage of any of the opportunities for rehabilitation he had been offered. 15 As regards the applicant's pleas of guilty, his Honour said that he had allowed a discount of 10 per cent in sentencing the applicant for offences 1, 2 and 3, where the applicant had pleaded guilty only on the day fixed for a trial of the offences, but had allowed a discount of 25 per cent in sentencing the applicant for offences 4 to 9 where he had pleaded guilty in the Local Court.

16 The grounds of appeal against sentence in their final form were:-

1. The sentencing judge erred in imposing individual sentences that were manifestly excessive.
2. The sentencing judge erred in the accumulation of the individual sentences.
3. The sentencing judge erred in imposing an aggregate sentence and non-parole period that were manifestly excessive.
4. The sentencing judge erred in failing to set non-parole periods in respect of offences under s 61J of the Crimes Act, namely, aggravated sexual assault.
5. The sentencing judge erred in his assessment of the objective seriousness of the two aggravated sexual assault offences as being greater than the mid-range level of objective seriousness.
6. The sentencing judge erred in sentencing in the way in which he did on count 3, namely, by extending the sentence to provide (for what his Honour saw as) an adequate parole period.
7. The sentencing judge erred in thinking that, with respect to counts 1 and 7 he was sentencing for an offence of robbery with the malicious infliction of grievous bodily harm (i.e. s 96 of the Crimes Act not s 95). 17 It is convenient to consider first the more specific grounds of appeal. 18 Ground 4. Offences 5 and 6 were offences of aggravated sexual assault under s 61J of the Crimes Act for which a standard non-parole period of 10 years has been set. It has been held by this Court that, if a standard non-parole period has been set for an offence, a sentence of imprisonment for the offence must be a sentence with a non-parole period and cannot be a fixed term of imprisonment. (SGJ v R; KU v R [2008] NSWCCA 258) On this application it was conceded by the Crown that the sentencing judge had erred in setting fixed terms of imprisonment for offences 5 and 6 and that this Court was required to intervene, at least to the extent of correcting the sentences for offences 5 and 6. 19 Ground 7. Offences 1 and 7 were offences under s 95 of the Crimes Act of aggravated robbery, the circumstances of aggravation being the infliction of actual bodily harm. However, as I have already indicated, his Honour described these offences a number of times in his remarks on sentence as offences of robbery "with malicious infliction of grievous bodily harm". His Honour would appear to have relied on offences 1 and 7 as being offences an element of which was the infliction of grievous bodily harm in finding that the offences of robbery with corporal violence were less serious offences than 1 and 7. Nowhere in his remarks on sentence did his Honour accurately describe the circumstances of aggravation as being the infliction of merely actual bodily harm.

20 It is true that his Honour correctly stated the maximum penalty for offences 1 and 7 as being 20 years, which is the maximum penalty in s 95 of the Crimes Act for an offence of aggravated robbery where the circumstances of aggravation are the infliction of actual bodily harm, and not 25 years, which is the maximum penalty under s 96 of the Crimes Act for an offence of robbery with infliction of grievous bodily harm. It is also true that his Honour accurately described the actual injuries suffered by EY. Nevertheless, it seems to me that his Honour did sentence the applicant for offences 1 and 7 on the erroneous basis that the applicant had inflicted grievous bodily harm on the victim and I would uphold ground 7. I am further of the opinion that for those offences some other sentence was warranted and should have been imposed.

21 Ground 6. His Honour chose to make the sentence for offence 3 the only sentence with a non-parole period and a balance of the term and his Honour made it the final sentence to be served by the applicant. It would appear that his Honour selected offence 3, because it was the last offence to have been committed and was the last of the three offences on which the applicant was to stand trial.

22 For this offence his Honour set a sentence of a non-parole period of 3 years 10 months, wrongly described in the remarks on sentence as a non-parole period of 3 years 9 months, commencing on 4 March 2022 and expiring on 6 January 2026 and a balance of the term of five years commencing on 6 January 2026 and expiring on 5 January 2031.

23 It was submitted by counsel for the applicant that the sentencing Judge had impermissibly extended the total term of the sentence for offence 3 so as to provide some period during which the applicant would be eligible for release on parole, all the other sentences being imposed being fixed terms of imprisonment. 24 In my opinion, this submission should be upheld. It is difficult to reconcile the sentence for offence 3 with, for example, the sentence for offence 1. Offence 1 was an offence in which the aggravating circumstances were the infliction of actual bodily harm. Indeed, his Honour in his remarks on sentence described the offence as being an offence in which the circumstances of aggravation were the infliction of grievous bodily harm. Elsewhere in his remarks on sentence his Honour described the offences in which the circumstances of aggravation were the infliction of grievous bodily harm as being more serious than the offences in which the circumstances of aggravation were the use of corporal violence. Accordingly, his Honour would appear to have regarded offence 1 as a more serious offence than offence 3. Furthermore, in sentencing for offence 1, his Honour had to take into account the two quite serious additional offences. No additional offence was to be taken into account in sentencing for offence 3. However, the sentence set by his Honour for offence 3 was almost as long as the sentence set for offence 1, a more serious offence with two additional offences to be taken into account, even accepting that, for the purposes of comparison of the two sentences, the fixed term of 7 years for offence 1 should be regarded as a non-parole period and the notional total sentence as a sentence of just over 9 years. 25 In my opinion, the sentence for offence 3 of 8 years 10 months is also inconsistent with the sentence of a fixed term of 3 years 7 months for offence 2 which was a very similar offence of aggravated robbery where the circumstances of aggravation were the use of corporal violence.

26 I conclude that his Honour, having set a fixed term of imprisonment for all the other offences did impermissibly extend the total term of the sentence for offence 3 so as to create what his Honour regarded as an appropriate parole period.

27 Ground 5. His Honour found that offences 5 and 6 were of greater than mid-range seriousness. It is convenient to deal with this ground of appeal together with the ground comprised in ground 1 that the sentences for offences 5 and 6 were manifestly excessive. His Honour accepted that the act of sexual intercourse had been digital and not penile. However, as I have already indicated, his Honour found that "the circumstances in which he did it, and the violence used and the hurt and threats make these offences more than offences of mid-range seriousness."

28 It has been held that this Court should be cautious in interfering with a sentencing judge's assessment of the level of objective seriousness of an offence. I do, however, consider that, notwithstanding the matters referred to by his Honour in making his assessment, it was not open to his Honour to assess the level of objective seriousness of offences 5 and 6 at the level at which he did. The offences were undoubtedly serious. However, they consisted of the insertion by the applicant of a single finger in the complainant's vagina (offence 5) or the complainant's anus (offence 6). Offences under s 61J include, of course, offences in which the act of sexual intercourse is prolonged penile-vaginal sexual intercourse.

29 The sentences set by his Honour for each of offences 5 and 6 was a fixed term of imprisonment of 9 years. His Honour said that in sentencing for these offences he was allowing a discount of 25 per cent for the applicant's pleas of guilty. Accordingly, if a parole period of the usual proportional length were allowed, the head sentence before the discount for the plea of guilty would have been about 16 years. The maximum penalty for the offence is 20 years. In my opinion, the present offences did not warrant the imposition of sentences which in effect are so close to the maximum sentence. I would uphold ground of appeal 5 and ground of appeal 1 in so far as it relates to the sentences for offences 5 and 6. 30 Grounds 1, 2 and 3. I have already upheld grounds of appeal relating to offences 1, 3, 5, 6 and 7 on grounds which would require the re-sentencing of the applicant for these offences. As regards the sentences set for offences 2, 4, 8 and 9 there were no specific grounds of appeal relating to any of them and the sentences his Honour imposed appear to me to have been within his Honour's sentencing discretion and I would retain the terms of these sentences. However, it will be necessary to change the dates of commencement of some at least of the sentences for these offences so that the sentences are consistent with the new sentences for offences 1, 3, 5, 6 and 7. 31 In my opinion, leave to appeal should be granted, the appeal against sentence should be allowed generally, the sentences imposed by the sentencing judge should be quashed and in lieu thereof the following sentences should be imposed:-

32 For offence 1, a sentence of a fixed term of imprisonment of 6 years commencing on the 6 January 2006 and expiring on the 5 January 2012.

For offence 2, a sentence of a fixed term of imprisonment of 3 years 7 months commencing on the 6 January 2006 and expiring on the 5 August 2009.

For offence 3, a sentence of a fixed term of imprisonment of 3 years 9 months commencing on the 5 April 2012 and expiring on the 5 January 2016. Offence 4 a sentence of imprisonment of 2 years 2 months commencing on 6 January 2016 and expiring on the 5 March 2018.

For offence 7, a sentence of fixed term of imprisonment of 5 years commencing on 6 January 2011 and expiring on the 5 January 2016.

For offence 8, a sentence of a fixed term of imprisonment of 3 years commencing on 6 January 2013 and expiring on the 5 January 2016.

For offence 9 a sentence of a fixed term of imprisonment of 1 year commencing on 6 January 2015 and expiring on 5 January 2016.

For each of the offences 5 and 6 a sentence consisting of a non-parole period of 5 years commencing on the 6 January 2016 and expiring on the 5 January 2021, and a balance of the term of 5 years commencing on the 6 January 2021 and expiring on the 5 January 2026, that is to say a head sentence of 10 years.

33 I would assess the objective seriousness of offences 5 and 6 as mid range but there are reasons for departing from the standard non-parole period in the applicant's pleas of guilty, in the need to comply with the sentencing principle of totality when sentencing for so many offences and in the need to provide an appropriate period relative to the total length of the sentences, during which the applicant will be eligible for release on parole. 34 The net effect of the sentences would be fixed terms of imprisonment and non-parole periods totalling 15 years, and balances of terms of 5 years.

35 The earliest date on which the applicant would be eligible for release on parole would be the 5 January 2021.

36 HODGSON JA: I agree. 37 PRICE J: I agree with Justice James. 38 HODGSON JA: The order of the Court will be as proposed by Justice James and the detail will be checked for the revised version of the judgment.

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