Green, Al v R

Court of Criminal Appeal (NSW)|2017-11-28|Before: Basten JA, Hulme J, Garling J

Solicitors: Applicant self-represented Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/275374 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 2 December 2016 Before: Frearson SC DCJ File Number(s): 2012/275374

Judgment

BASTEN JA: On the night of 13 January 1984 a 17 year old woman alleged she had been sexually assaulted in a car not far from the Hume Highway at Marulan. Although she went immediately to the police, the present applicant was not arrested and charged in relation to the assaults until 3 September 2012. The identification of the applicant resulted from a DNA profile which had been obtained from him and which matched that of semen taken from the complainant's jumper following the assaults.
On 16 September 2013 the applicant entered pleas of guilty to an indictment containing five counts, namely: (i) detaining the complainant with intent to hold her for an advantage, namely sexual intercourse; (ii)-(iv) having sexual intercourse with the complainant without her consent and knowing that she had not consented; and (v) attempting to have sexual intercourse with the complainant without her consent and knowing that she had not consented. The matter was listed for sentence on 16 January 2014.
The applicant failed to attend at the sentence hearing and a warrant was issued for his arrest. He was arrested on 28 August 2014. Following his arrest, his solicitor foreshadowed an issue as to his fitness to plead and a motion to withdraw the pleas of guilty. On 28 May 2015 the question of fitness was assessed by Judge Haesler SC in the District Court at Sydney. The applicant was found to be unfit to plead and the matter was referred to the Mental Health Review Tribunal. On 4 September 2015 the Tribunal determined that the applicant had become fit.

(a) legal principles

The legal principles relevant to such an application were recently identified by the Court in Senior v R, handed down on 11 September 2017. [3] The common bases upon which a party may be permitted to withdraw a plea include the following: 1. a subjective misunderstanding as to the nature of the alleged offending; 2. pleas entered on imprudent or inappropriate legal advice; 3. pleas induced by fraud or duress.
With respect to the applicant, the principal concern of the primary judge, though not one raised by the applicant himself, was that he suffered from a mental illness which precluded a voluntary and informed decision to plead. The trial judge dealt with that issue at some length, before rejecting it. It will be appropriate to address that issue shortly. The need to address the issue stemmed from the principle stated in Meissner v The Queen [4] that a plea will be accepted when it is entered in open court "by a person who is of full age and apparently of sound mind and understanding", the counter implication being that the court will not act on a plea if satisfied that the person is not of sound mind and understanding.
It is also said that a plea should be "attributable to a genuine consciousness of guilt", as explained by Giles JA in Regina v SL. [5] That is not to say that there may not be other subjective motivations, but only that the accused must understand that the action being undertaken involves an acceptance of guilt of the charge. As explained by Dawson J in Meissner: [6] "It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. [7] "
The primary judge considered each of these factors and also the allegation that the applicant had been pressured into pleading by his legal representatives either because they were unprepared to run a trial, or because they were colluding with the prosecutor.

(b) background material

The first step was to identify the period during which relevant steps were taken which culminated in the applicant entering pleas in open court before Hosking ADCJ on 16 September 2013.
The earliest relevant material relating to his representation is a lengthy email from Mr Slade Howell, a solicitor in the Criminal Indictable Section of Legal Aid NSW, to the applicant's counsel, Mr Paul Winch. Apart from detailed notes of the instructions which Mr Howell received, and the matters he had raised with the applicant, there were two passages relevant to the present issue. First, there was a passage relating to his mental health which was in the following terms: "I talked to him a little bit about his history: ● He is diagnosed as suffering from bi-polar disorder and is currently on a Community Treatment Order. ● He sees a Community Mental Health Team at Marrickville. ● He gets an injection once a month of some form of medication. ● He has been scheduled in the past, most recently last September, to Waratah House (the adult mental health unit at Campbelltown Hospital). … I had him sign a number of original authorities. At first he was concerned about giving me the authorities but I satisfied him of my duty of confidentiality and explained that I would only get his records to assist with his case. He gave tentative agreement to see a psychiatrist if we arranged one for him."
With respect to dealing with the charge, Mr Howell recorded the following: "I explained to him the broad options that he has in relation to the conduct of his matter: 1. Go to trial on the basis of his instructions i.e., consent. 2. Plead guilty to the matters on the indictment and negotiate the facts for sentence. 3. Negotiate the matters on the indictment and the facts for sentence. I said that we would discuss these options with you further on Friday. His view was that if he went to trial he would be convicted but became angry when talking about this. He also suggested that his prosecution was political but that I didn't understand that."
On 9 August 2013 the applicant conferred with Mr Winch and Mr Howell in the Public Defenders' chambers. The file notes were clearly thorough and comprehensive; the flow of topics may readily be followed. Part of the conversation related to the record of a police interview with the applicant on 13 September 2012. In the course of the interview, the following exchange occurred: "Q70 … can I just get you to sign the back of that photograph to show that's the photograph I showed you? … A For fuck's sake. Why don't you just say, look, she's put an allegation I've sexually assaulted her and I'm putting the allegation to her that she's full of shit, so. … Didn't sexually assault her at all. I met her half an hour before they [then?], at a garage. I had a conversation in the pouring rain and I followed her down the highway where she chose to stop. I didn't drag her in the car at all. Everything we had was consensual. That's all I got to say. … Q78 Can I, can I ask you, did you have, you're saying you had consensual intercourse or am I reading - A Yes. Q79 -- too much into that? A No. That's what I said. … I didn't force that lady to do anything. … Q88 But, I suppose meeting someone at the service station - A You know, I wasn't, I wasn't a bad looking young fellow and in the terror of a thunderstorm it's easily to quickly meet someone and befriend someone and when you pull up and they pull up and they jump in the car. I didn't drag her by the hair into the car. I'll contest that 'cause that just did not happen. Q89 OK. A And I, I, I'll contest. I don't know what's she saying that I raped her for 'cause we hardly had intercourse. We had intercourse, we mucked around but she drive me back to the car. I drove her back to the car."
The note of the conference included Mr Winch taking him to the transcript of the record of interview and suggesting that his instructions were inconsistent with what he had said in the interview. The note continued: "Mr Green explained that when he said 'sexual intercourse' in his record of interview he meant 'masturbation' which is all that he says occurred between them."
After a restatement of his instructions, the following appeared: "Paul [Winch] explained that the victim would be attending the trial and would give evidence that was not consistent with what Mr Green is saying happened. Paul explained also that her account of being sexually assaulted is corroborated in the brief by a number of matters including evidence of immediate complaint. Mr Green questioned why she complained and indicated that the version the victim has given is a fabrication. Paul said to Mr Green that appears that this is a matter that Mr Green wants to fight. Mr Green said not necessarily. Mr Green said that he felt that he would have no chance of acquittal if the matter went to trial. Mr Green suggested that maybe he could admit the truth i.e., that he masturbated on her. Paul explained that if he only admits to masturbation then the Crown would not accept that in satisfaction of the indictment and the matter would go to trial. … Mr Green said that he understood that but his concern is that if he runs a trial the court may 'throw the book' at him. Paul explained that in every case, an accused will do better on sentence if they plead guilty and don't run a trial. Mr Green indicated that he was willing to enter a plea of guilty when the charges were only 4, but that there were now 8 charges and he wasn't willing to enter a plea to all of them. Paul asked whether he would be willing to enter a plea to some charges and Mr Green said that he would be. Charge negotiation was explained to him. He gave instructions that he wanted to see what the Crown would accept by way of negotiation. … If Mr Green is going to consider a negotiated plea arrangement he will need to be very clear about what it is he is pleading to."
After resolving that Mr Howell would contact the Crown to see what scope there was for negotiation of the charges on the indictment, the note recorded that there was then "some discussion with Mr Green about his current Community Treatment Order and contact with the Marrickville Community Mental Health Service." The last paragraph included the following statement: "Mr Green asked whether a suspended sentence was possible in his case. Paul advised him that it wasn't and that the likely sentence in his case was full-time imprisonment."
After the conference, Mr Howell and Mr Winch had a conference together (without the applicant) in which one of the matters agreed upon was to obtain a psychiatric assessment of the applicant. In fact, Mr Howell arranged for the applicant to see Dr Richard Furst, but the consultation did not take place until 5 November 2013. By that stage, the applicant had agreed to plead guilty to five offences, with two other offences to be taken into account on a Form 1.
There was a further conference on 10 September 2013 between the applicant and Mr Howell. The handwritten notes cover a little over 9 pages. They cover numerous issues relating to a possible plea, negotiations with the prosecutor and the possibility of a trial. It is clear that Mr Winch repeated his explanation that there were inconsistencies between the complainant's account and the objective evidence of medical examination supporting her account, on the one hand, and the applicant's instructions on the other. The notes indicated that the applicant was given a clear choice as to whether to go to trial but said that he did not want to go to the jury. The applicant was told, "the decision is yours." The conference concluded with the possibility of some further negotiations and the need for signed instructions when those were completed. A further conference was planned for Friday, 13 September 2013. On that day, the applicant signed a document headed "Instructions" in the following terms: "I, Al Green, instruct my lawyers that I wish to plead guilty to the five counts on the indictment, a copy of which is attached and signed by me. In addition, I wish the Court that sentences me for those five counts on the indictment, to take into account two further charges by way of a Form 1. Those charges are an additional sexual assault upon [the complainant] and committing an act of indecency in her presence. I have been advised of the elements of each of the offences and understand that by pleading guilty to the charges, I am admitting the elements of them. I understand that I will be sentenced upon the factual basis set out in the Statement of Facts which is attached and which I have signed. The sentencing Court will rely on that Statement of Facts and sentence me accordingly. I understand that a sentence of full time imprisonment is the most likely outcome of these proceedings."
A four page statement of facts was initialled by the applicant under the words, "I understand these are the court relied upon facts - uncontested as trial not wanted", in his own handwriting. There was then a file note by Mr Howell of the appearance at Sydney District Court on 16 September 2013 including the following paragraphs: "The [matter] was mentioned before Hosking ADCJ at 11.30am. An indictment was presented by the Crown and Mr Green formally arraigned. He pleaded guilty to the five counts on the indictment. The Form 1 document and Mr Green's antecedents were handed up by the Crown. The matters were adjourned for sentence to 16 January 2014. Mr Green's bail was continued until that date. No pre-sentence report was ordered." The transcript of the hearing bore out the accuracy of the note.
It follows that the first relevant period during which the applicant's mental condition was to be considered was, in effect, a six week period from the beginning of August to 16 September 2013. A second potentially relevant period was from 16 September 2013 to 16 January 2014.
Dr Furst saw the applicant on 5 November 2013. Dr Furst noted that the applicant had been admitted to Waratah House in Campbelltown Hospital in September 2012 for a period of seven weeks, following which he was discharged on a Community Treatment Order. His diagnosis at that time was bi-polar disorder and/or schizophrenia. Dr Furst also noted that he "is stressed about his current legal proceedings and impending incarceration." He noted that the applicant had been assessed "on a regular basis over the last 12 months, attending for depot injections of his medications and psychiatric reviews." He stated that there were "no signs of psychosis on mental health reviews between January and August 2013." The only suggestion of difficulties in the relevant period was the following passage: "He apparently took an overdose of his Seroquel (Quetiapine) and some Kapanol (Morphine) in September 2013, feeling suicidal and not wanting to live. He was admitted to the Royal Prince Alfred Hospital." The word "apparently" may have referred to a self-reported incident, as Dr Furst had no medical records from RPAH. In recounting the results of his "mental state examination" Dr Furst stated: "There were no indications that he was acutely psychotic or severely depressed. He was not suicidal." His primary diagnosis was schizophrenia, paranoid type.
No further psychiatric report was obtained until 1 November 2014 when Dr Olav Nielssen reported on an interview by audio-visual link which had occurred on 29 October 2014. At that stage, as Dr Nielssen noted, the applicant "had applied to reverse the plea of guilty he made to a charge of sexual intercourse without consent … [on the basis] that he was mentally unstable when he agreed to plead guilty, and also that he believed he was coerced into making the plea by his then legal representatives." Dr Nielssen's diagnosis was "[r]elapsing psychotic illness, either schizophrenia or schizo-affective disorder." He was asked a number of questions as to his likely mental state between 3 September 2012 and 16 September 2013. Dr Nielssen noted that he did not have records from Marrickville Community Health Centre which would allow him to determine whether or not the applicant had been receiving the prescribed depot injections on a monthly basis. Those were later provided and a further report was prepared dated 28 November 2014. Dr Nielssen answered the specific questions as follows: "Did Mr Green understand the nature of the charges against him from the date of his arrest on 3.9.12 to the date he entered pleas of guilty, on 16.9.13? Mr Green is of normal pre-morbid intelligence and has extensive experience of the criminal justice system, and even if he were unwell for some of that time and held persecutory beliefs regarding how he came to be charged, I believe he would have understood the nature of the charges. Whether his medical condition affected his appreciation of the charges when he signed his instructions, Indictment and Agreed Facts on 13.9.13, and entered a plea of guilty on 16.9.13? The information in the records from MCHC show that Mr Green had received consistent treatment with injections of a very long acting form of antipsychotic medication during 2013, including on the due date of 7.8.13. He saw an experienced psychiatrist, Dr Greenaway, on 22.8.13, who did not note the presence of features of an acute exacerbation of mental illness, and there was no mention of acute symptoms in the nursing entries from around that time. Hence, from the information that is available to me, I do not believe that an acute exacerbation of his chronic condition affected his appreciation of the charges when he signed the instructions on 13.9.13, or when he entered a plea of guilty on 16.9.13."
It should be noted that neither his solicitor nor his counsel, who spoke to him for some time on both dates, and who were aware of a past history of mental illness, recorded any concern as to his then current mental state.
Both Mr Howell and Mr Winch gave evidence before Judge Frearson. There was no suggestion by them that the applicant appeared other than capable of forming an opinion and entering pleas. The applicant also gave evidence and, apart from stating that he was "very heavily medicated" and that his "thought processes was not quick", expressly disclaimed mental impairment as a ground of his application. [8]
The final psychiatric report was that of Dr Jonathon Adams dated 7 May 2015 and provided to the Office of the Director of Public Prosecutions. Dr Adams saw the applicant in prison on 17 March 2015 and 22 April 2015. He opined that the applicant was "experiencing symptoms of mental illness during both the assessments" and that his responses were "tangential and frequently difficult to follow, indicative of thought disorder, and in my view he manifested a delusional belief system." He was provided with the reports of Dr Nielssen, police statements, the statement of agreed facts and a DVD of the applicant's interview with police. He also had medical records from Campbelltown Hospital and Marrickville Health Centre. The Marrickville records appear to have continued beyond the records available to Dr Nielssen. Thus there were documented attendances on 7 August 2013, 22 August 2013, 18 September 2013 and 15 October 2013. With respect to the entry dated 18 September, Dr Adams identified a notation, "Al reports low mood. Expects to return to jail January 2014 for a lengthy period … he has Legal Aid support. Requests letter from MO [medical officer] for Court confirming MHC/MHS contact. No acute risks identified. Slightly restricted affect."
Dr Adams was asked to address the question: "Was Mr Green capable of understanding the nature of the charges against him from the date of his arrest on 3 September [2012] to the date he entered [pleas] of guilty on 16 September 2013?" Dr Adams' answer relied primarily upon the Marrickville Health Centre medical records: "Given Mr Green's continuing symptoms of psychosis at the time of my assessments, in my view his account of his presentation in 2012 and 2013 is reasonably unreliable, and likely tainted by delusional beliefs. … With regards [to] Mr Green['s] capability of understanding the nature of the charges against him during 2013, I note the repeated references in the Marrickville Health Centre medical record between June 2013 and November 2013 to Mr Green's reported legal problems and his concerns about the possibility of his incarceration. The entries in the Marrickville medical record during 2013 did not indicate any clear symptoms of psychosis, which could possibly reduce his capacity to understand the nature of the charges. … Therefore, on balance in my view [it] is reasonable to suggest that Mr Green was capable of understanding the nature of the charges at the time of his arrest, and the period surrounding his guilty plea in September 2013."

The primary judge referred in some detail to the challenge to the evidence of Mr Howell, including an allegation that his notes had been deliberately manipulated and that he did not give the explanations of the issues in the case in the way that he said were given by Mr Winch and himself. The judge also noted the suggestion that the applicant had not given instructions to negotiate and that he had merely initialled his instructions and the statement of agreed facts, rather than using his full signature, as a form of "protest", in the hope that he would be able to get other counsel to appear for him at a trial. The judge was affirmatively satisfied that the applicant gave instructions to negotiate and agreed to plead to the negotiated charges with the two matters on a Form 1. He continued: [9] "He understood that full-time imprisonment would be the most likely outcome. He endorsed the facts. He initialled the indictment. All the charges were read out in simple terms, and the simple terms revealed the actual elements."
The judge continued: [10] "I am satisfied that in fact he did instruct his legal representatives to negotiate. I am satisfied that on the totality of the evidence that the pleas were entered by him, well appreciating that he was acknowledging his guilt to the elements of those charges. As I said, there is an obvious tension between his claim that he entered the pleas just to bide time and his evidence that he did not really know what was going on when he entered the pleas. He well knew what was going on, and his concern was that he would go back to gaol. I am satisfied that he was given appropriate advice. He was given a choice which he well understood and he chose to exercise what would objectively present as a very sensible option in all the circumstances. The only reasonable explanation of the evidence is that upon entering the pleas and admitting the elements he subsequently regretted his decision. He tells me he did not make his decision not to turn up for sentence until a time very proximate to the actual sentence date. I do not consider there was any inappropriate pressure at all."
After reviewing the medical evidence, the judge stated: [11] "On the totality of that material it does appear that whatever psychiatric conditions the applicant suffered from, and there is no doubt he suffered psychiatric conditions, he was appropriately medicated at the time that he gave the instructions to plead, and at the time he did plead. I would add to that when Mr Howell gave evidence he did say at one point that there was nothing that alerted him to the question of fitness when he spoke with the applicant, nothing that caused him to be alarmed in relation to fitness. It seems to me that the only reasonable explanation of that evidence is that at or about the time of the plea negotiations and the time the applicant gave the instructions to plead and did plead he was actually fit for trial, and he was fit, more particularly, to enter the plea. … There is no particular complexity in terms of the charges that were read out in Court."

(d) applicant's grounds of appeal

As was the case before the primary judge, the applicant did not seek to rely upon any issue with regard to his fitness to plead. However, the Court would not leave the judgment below on foot if it were to be satisfied that, at the time pleas were negotiated and entered the applicant was in fact unfit to exercise a free and informed choice as to the course of the proceedings.
Given the medical evidence and the lack of any concern as to fitness on the part of his legal representatives, there is no reason to doubt the correctness of the conclusions reached by the primary judge in this respect.
So far as the grounds raised in the notice of appeal and the written submissions in this Court are concerned, the applicant relied upon (i) his complaints about the conduct of his legal representatives, alleging improper pressure, inadequate advice and wrong advice, including misrepresenting the prosecution case (grounds 1, 2, 3, 5 and 8); (ii) collusion with the prosecution, in the absence of instructions to negotiate (ground 4); (iii) a challenge to the manner in which the charges were formulated and later changed (ground 6); (iv) procedural unfairness during the District Court hearing (grounds 7 and 10), and (v) the weakness of the prosecution case on the facts (grounds 9 and 11).
To the extent that these grounds challenge the conduct of the applicant's legal representatives in preparing a defence, advising the applicant, negotiating with the prosecution and preparing the necessary material for the pleas, the submissions repeated in abbreviated form the points raised before the primary judge. They did not demonstrate any error in his findings or raise any concern that these complaints involved a miscarriage of justice.
His allegation of procedural unfairness during the District Court hearing related to the judge's interference in the applicant's conduct of his case, including his cross-examination of Mr Howell. As is apparent from the transcript, that cross-examination was lengthy and the judge was clearly concerned that many questions did not bear on any issue which he was required to determine. Furthermore, the questions were often poorly formulated and on several occasions the judge intervened to reformulate the issue. When the applicant became frustrated and needed time to collect his thoughts, the cross-examination of Mr Howell was suspended and he was required to return on a second occasion. This course suggested an anxious attempt to assist the applicant, so far as was possible.
The second aspect of the complaints as to the District Court hearing appears to concern the failure of the trial judge to engage with the submission concerning the reformulation of the charges and the unfairness to the applicant resulting from those changes. It is true that the primary judge did not address that issue in those terms; it is also true that there was some reformulation of the charges. Nevertheless, the process was entirely regular and there was no basis to allege unfairness in relation to the pleas of guilty.
So far as the applicant raised concerns that there was a weak prosecution case, which should have resulted in the rejection of the pleas, the underlying premise was false. As the primary judge stated: [12] "Realistically there was much to be said for the applicant's pessimism about the outcome of any trial. There was a speculative possibility of acquittal, rather than a real question to be tried …."
The applicant relied before the primary judge on two main considerations in this regard. First, he tendered a copy of the notes taken by Dr Gillespie at Queanbeyan District Hospital of a consultation with the complainant, which recorded in very brief form her description of the events of the previous night. The applicant stated that there were inconsistencies between the account recorded in those notes and the account given to police. That was true, but arose, in part, from the fact that the doctor was recording his opinions as to what had occurred and in part because the statement taken by police was far more detailed. The medical notes may possibly have formed the basis for some cross-examination of the complainant, but it is unlikely that they would have significantly affected her credibility.
Secondly, the applicant argued that there was a discrepancy between the complainant's evidence that she, like he, was 17 at the time of the offending and a statement in the Queanbeyan Hospital notes which indicated she had been born a year earlier and was therefore 18. The applicant, on the basis of this fact, alleged that she was guilty of "statutory rape" and that he was the victim.
The source of the date in the hospital notes is not known; the agreed facts gave the complainant's date of birth which, consistently with her statement to police, identified her age as 17 years at the date of the events the subject of the charges.
These matters cast no significant doubt on the strength of the prosecution case and have no bearing on the acceptance of the pleas of guilty.

(e) conclusion - refusal of leave to withdraw pleas

The applicant's challenge to his convictions, based on the refusal of the primary judge to allow him to withdraw his pleas of guilty was without substance. Because concerns as to his mental state warranted appropriate consideration both in the District Court and in this Court, there should be a grant of leave to appeal from the convictions, but the appeal must be dismissed.

(a) sentencing for old offences

The application for leave to appeal against the aggregate sentence imposed by the primary judge requires reference to the historical nature of the offending and the objective seriousness of the offending.
The offence of detaining for advantage was laid under s 90A of the Crimes Act 1900 (NSW) (repealed in 2001). The maximum sentence depended upon whether the victim was released "without having sustained any substantial injury", in which case the maximum sentence was 14 years; in other cases, the maximum sentence was 20 years. The judge was satisfied that the complainant had not sustained substantial injury and the lesser maximum was therefore engaged.
The other four counts involved charges under then s 61D(1) of the Crimes Act which carried a maximum sentence of 7 years. (The equivalent provision is now found in s 61I of the Crimes Act and carries a maximum sentence of 14 years.) However, the applicant was required to be sentenced (and was sentenced) in accordance with sentencing law in force at the time of the offending. That course is required in relation to any provision which increases the penalty for an offence, in accordance with s 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). However, absent a relevant transitional provision, the sentencing judge must have regard to the provisions of the current legislation, including the purposes of sentencing identified in s 3A of the Sentencing Procedure Act.
There remained a question as to whether, beyond the express terms of s 19, a sentencing judge was required to "take into account the sentencing practice as at the date of the commission of an offence" when that practice has since moved adversely to an offender. In R v MJR, [13] Spigelman CJ held that a sentencing judge should not "refuse to take into account" sentencing practices contemporaneous with the offending.
As has been noted in later decisions, that approach is not without its practical difficulties. [14] In a case dealing with an offence which took place in 1986, RL v R, [15] this Court made the following observations: "[6] Sentencing in a case of this kind is fraught with difficulties, both in terms of principle and technicality. So far as principle is concerned, there is an anxious tension between the need for public condemnation of the conduct involved and the vindication of the dignity of the victims, on the one hand, and on the other, the imposition some 30 years after the events, of penal consequences on an offender who has led a subsequently blameless life and has readily acknowledged his own wrongdoing, when confronted with the complaints. [7] Further, principle requires that the Court take into account the law as it applied at the time of the offending. [16] Not only is the offender to be charged with offences as they were identified in the Crimes Act 1900 (NSW) at the time of the offending, but he is subject only to the range of penalties available under the law at that time, and to general sentencing principles as then applied. [8] The technical difficulties are also relevant. The last principle requires, in effect, that an offender not be sentenced more harshly than would have occurred had the sentencing and the offending been roughly contemporaneous. One result of that principle is that the court must have regard to the relationship accepted at that time between the minimum term (or non-parole period) and the full term of the sentence. On the other hand, the Court does not sentence in accordance with the law as then in place, but imposes a sentence under the current law, namely the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Procedure Act'). [17] "
The judge expressly stated that he was "factoring in what would have happened in 1985", [18] that, no doubt, being the time at which he would have expected the matter to have been resolved had the police investigation resulted in a prompt arrest and charging. There was no error in that approach.
There may be other factors which should properly affect the sentence imposed for an old offence. First, in circumstances where the delay was not the fault of the offender, there is room for a degree of mitigation of the otherwise appropriate penalty based on the fact that knowledge of the potential liability to a term of imprisonment may have preyed upon his mind and caused stress and anxiety over the years. There was no evidence to suggest that that was a relevant factor in this case. The judge stated that this was not a case where "the offender has actually had it hanging over his head for many years because for many years he thought that he did absolutely nothing wrong". [19]
Secondly, the lapse of a period of time during which an offender has led a blameless (or relatively blameless) life may indicate that the need for personal deterrence carries little weight. That consideration was not engaged in the present case. Having recounted the offender's record, the judge noted that this was not a case where the offender has "been able to demonstrate rehabilitation by reason of the delay". [20]
Thirdly, where the old offence was the start of a long line of offending, the appropriate sentence should reflect the fact that the offender would, if he had been sentenced near the time of the offending, have received a lesser sentence because the lack of a serious criminal record would have warranted leniency. [21] This last factor is one which was relevant to the circumstances of the applicant. The primary judge expressly referred to the offender's age at the time of the offences and the complicated history of the matter, noting that the offender was a juvenile at the time of the offending and acknowledging "the significance of youth." He then stated: [22] "The problem with youth is that there is a potential for cognitive, emotional and psychological immaturity that may have contributed to the offending conduct. Generally there is less requirement for general deterrence where there is youth, but one actually needs to look at the precise case."
Having dealt with the subjective circumstances of the offender, the judge concluded with an assessment of the various factors which he needed to address, stating: [23] "The most difficult consideration here for me is the consideration of youth and that is an important consideration, but I need to consider youth in combination with what the youth did and the gravity of the actual conduct performed by the young person. I do accept there was a level of immaturity but these were not crimes borne of immaturity, these are outrageous violent sexual crimes perpetrated on a completely innocent 17 year old and are crimes that the community is properly repulsed by."

(b) reliance on pre-sentence report

The primary judge had before him a pre-sentence report prepared by a Community Corrections Officer at Silverwater Parole Unit, dated 30 November 2016. The judge noted that the report had been "furnished expeditiously and it is of great assistance." [24]
The applicant's complaint in relation to the pre-sentence report was that "the judge erred in ordering the extra two years penal servitude, on reliance of the pre-sentence report recommendations". The explanation of this complaint lies in the submission made by the applicant to the primary judge that he should not receive any further period in custody once account had been taken of the practical effect of the bail conditions imposed following his arrest in September 2012 until he failed to appear for sentencing in January 2014, together with the period of custody from 28 August 2014 until the date of sentencing in December 2016. The judge expressly stated that he took into account the period spent on bail subject to "rather stringent bail conditions" [25] and back-dated the sentence of imprisonment to 28 August 2014. The effect was that there remained a two year non-parole period from December 2016 to December 2018, which appears to be the additional two years referred to in the ground of appeal.
The next step in the reasoning was that the sentence was given in order to accommodate the assessment made in the pre-sentence report which was in the following terms: "A sex offender risk assessment dated 30 November 2016, prepared by a CSNSW Psychologist, scored Mr Green in the Moderate-High risk category and identified potential risk factors as 'intimacy deficits, issues with sexual self-regulation, as well as general self-regulation deficits…'." It also identified that, whilst the offender could be referred to sex offender treatment programs in custody or the community, he would require a sentence of no less than two years to be assessed for and complete such a program in custody.
In his written submissions, the applicant denied that he was seen by a CSNSW psychologist in November or December 2016 for a sex offender risk assessment dated 30 November 2016. He included with his submissions a letter dated 2 August 2017 responding to an application under the Government Information (Public Access) Act 2009 (NSW) for his health records, which listed no such report as appearing in his health records.
In summarising the pre-sentence report, the primary judge dealt with the passage referred to above briefly in the following terms: [26] "The report also mentions a course in gaol that may be beneficial to him." There is no further reference in the judgment to that matter; nor, unsurprisingly, to the further statement in the report that such courses could be undertaken in the community.
If the applicant sought to draw an inference that the length of his non-parole period was fixed in order to allow him time to complete a course of treatment in prison, the inference must be rejected. It is both inconsistent with common sense and with the reasoning of the sentencing judge, who merely referred to the course in one sentence in a 19 page judgment. The objective seriousness of the offending and the multitude of other matters discussed in the judgment warranted, for reasons dealt with below in respect of the ground of manifest excess, the sentence in fact imposed. The alleged error would not warrant a grant of leave to appeal against the sentence.

The most important considerations affecting the aggregate sentence imposed were the objective circumstances of the offending. The following descriptions are taken from the statement of agreed facts: "Count 1 - detain for advantage (s 90A) 9. As the victim put her hand onto the door arm rest, the vehicle accelerated. The offender grabbed the victim by her hair and by the collar of her jumper. The victim's legs were still outside the vehicle. The offender drove a distance and pulled off the side of the Hume Highway down an embankment. 10. When the vehicle stopped the offender let go of the victim's hair. She opened the door and tried to run. The offender grabbed her by the hair and pulled her back into the vehicle. The victim put her hands on the vehicle's pillars to stop her being dragged back into the vehicle. 11. The offender punched the victim to the lower back and head forcing her to let go of the pillars. She was forced back into the vehicle. The offender placed his hands around the victim's throat. He yelled: 'Shut up, shut up or I'll kill you... if you do as I say you won't get hurt.' Count 2 - sexual assault (s 61D(1)) 12. The victim's jumper was pulled up over her head and her blouse was forcibly removed with the buttons torn off. The offender removed the victim's long pants, underpants and bra and removed his jeans down to his ankles. Whilst doing this he put his left hand on the edge of the driver side of the seat and pushed it down, causing the seat to sink under his weight and wedging the victim's head in the gap between the seat and driver arm rest. 13. The offender attempted to insert his penis into the victim's vagina but penetration did not occur. The victim 'clamped up' preventing penetration. 14. The offender then performed cunnilingus on the victim for a time. Count 3 - sexual assault (s 61D (1)) 15. The offender then penetrated the victim's vagina with his penis and had sexual intercourse with her for a short time. The victim again 'clamped up' preventing the sexual intercourse from continuing. Count 4 - sexual assault (s 61D(1)) 16. The offender placed his penis in the victim's mouth and forced her to suck his penis by punching the victim to the head a couple of times. The offender said: 'do it, if you don't I will kill you. I will break your fucking neck.' The victim did this for a short time until she stopped and said: 'I'm gagging, I'm going to be sick, I'm going to be sick.' Count 5 - attempted sexual assault (s 61D(1); s 61F) 17. The offender pulled the victim up and onto his lap and tried to place his penis in the victim's anus but penetration was not achieved. He gouged his fingers into her buttocks in his attempt to have anal intercourse with her. He bit her breasts and chest area and attempted to kiss her. 18. He commenced to masturbate for a short time as he had lost his erection. He forced her head under the driver arm rest again and stuffed her jumper between her face and the arm rest."
The judge described the offences as "very serious examples" of the type of offence and stated that "[t]he only thing that the offender has going for him in terms of the gravity of the offences was his relative youth." [27]
The judge also noted the psychiatric conditions suffered by the offender including a diagnosis of post-traumatic stress disorder resulting from violence (including a murder) witnessed whilst in gaol. He concluded: [28] "The stress and anxiety related to his posttraumatic stress disorder complicates his schizoaffective disorder, particularly in custody. It is well known that stress and anxiety can lead to exacerbations of mental illness. Whilst his condition is not relevant to the time of his offending, it is relevant to the conditions of his custody and how custody will be more onerous for him and perhaps even quite oppressive."
Having indicated that he proposed to impose an aggregate sentence pursuant to s 53A of the Sentencing Procedure Act, the judge then indicated the individual sentences which would otherwise have been imposed: [29] "The first matter, the s 90A matter, my indicative sentence is a sentence of three and a half years imprisonment. For count 2, the s 61D(1), cunnilingus, two years imprisonment. Count 3, two and a half years imprisonment, the penile-vaginal. Count 4, the fellatio, two and half years imprisonment, that was accompanied by the punching and the threat to kill. Count 5, the attempted anal while biting the breasts and gouging, two years and four months imprisonment. I should point out that there is obviously some commonality between the 90A matters and what happened in relation to the other matters, and that would suggest that there is more compression than otherwise would be appropriate."
The judge then imposed an aggregate sentence comprising a 4 year 4 month non-parole period to date from 28 August 2014, expiring on 27 December 2018, with an additional term of 3 years 6 months, leading to a total sentence of 7 years and 10 months. He found special circumstances because of the applicant's psychiatric condition. He expressed his view that the effective non-parole period was "the minimum that could possibly accommodate the objective seriousness of the offending conduct". [30]
The written submission as to manifest excess was in the following terms: "The sentencing judge erred in not giving more weight to the evidence the convictions were unevidenced and setting a smaller minimum and maximum term 4.4 - 7.10 years, having set 2.5 years for each offence, the accumulative totality was excessive 13.5 years [actually 12 years 10 months] for a seventeen year old receiving a handjob with or without consent depending on who's evidence is weighed, is manifestly excessive."
There is no basis to challenge the term of the sentence, or of the non-parole period, which was only 55% of the total term of imprisonment.
There is no basis to justify a grant of leave to appeal with respect to the sentence imposed.

Conclusions

For these reasons, the Court should make the following orders: 1. Grant leave to appeal with respect to the convictions entered on pleas of guilty. 2. Dismiss the appeal against the convictions. 3. Refuse leave to appeal against the aggregate sentence.
R A HULME J: I agree with Basten JA.
GARLING J: I agree with Basten JA.

Endnotes

Criminal Appeal Act 1912 (NSW), s 5(1).
Criminal Appeal Act, s 5(1)(b).
[2017] NSWCCA 220 at [24]-[29].
(1995) 184 CLR 132 at 141 (Brennan, Toohey and McHugh JJ); [1995] HCA 41.
[2004] NSWCCA 397 at [50].
Meissner at 157.
R v Forde [1923] 2 KB 400 at 403; R v Murphy [1965] VR 187 at 188; R v Chiron [1980] 1 NSWLR 218 at 235; R v Liberti (1991) 55 A Crim R 120 at 121-122; R v Ferrer-Esis (1991) 55 A Crim R 231 at 232-233.
Tcpt, 29/09/16, p 14(20)-(27).
Judgment, 05/10/16, p 20.
Judgment, pp 20-21.
Judgment, pp 8-9.
Judgment, p 15.
(2002) 54 NSWLR 368; [2002] NSWCCA 129 at [31] (Spigelman CJ; Grove and Sully JJ and Newman AJ agreeing).
MPB v R [2013] NSWCCA 213; 234 A Crim R 576 at [82]-[92] (Garling J, RA Hulme J agreeing); see also at [14]-[19] and [34] (in my judgment).
[2015] NSWCCA 106 (Basten JA, Simpson and Adamson JJ).
MPB at [12].
MPB at [20]-[25].
Judgment on sentence, p 18.
Judgment on sentence, pp 16-17.
Judgment on sentence, p 10.
McIntosh v R [2015] NSWCCA 184 at [151].
Judgment on sentence, p 11.
Judgment on sentence, p 18.
Judgment on sentence, p 13.
Judgment on sentence, p 2.
Judgment on sentence, pp 13-14.
Judgment on sentence, p 9.
Judgment on sentence, p 15.
Judgment on sentence, pp 18-19.
Judgment on sentence, p 19. 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: 28 November 2017

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