Greenwood v Regina

Judgment 1CHIEF JUSTICE BATHURST: I agree with Hoeben CJ at CL. 2HOEBEN CJ at CL: Offences and Sentence After a judge alone trial before Colefax SC DCJ, the applicant was convicted of two offences: (i) Sexual intercourse without consent pursuant to s61I Crimes Act 1900 which carries a maximum penalty of imprisonment for 14 years and a standard non-parole period of 7 years. (ii) Indecent assault pursuant to s61L Crimes Act 1900 which carries a maximum penalty of imprisonment for 5 years. 3His Honour sentenced the applicant as follows: Sexual intercourse without consent - imprisonment with a non-parole period of 3 years and 4 months, commencing 10 September 2012 and expiring 9 January 2016, with a balance of term of 1 year and 2 months, expiring 9 March 2017. Indecent assault - a fixed term of imprisonment to run concurrently with the sentence for the first offence. 4The overall sentence was imprisonment for 4 years and 6 months with a non-parole period of 3 years and 4 months. Pursuant to s5(1)(c) of the Criminal Appeal Act 1912 the applicant seeks leave to appeal from that sentence on the following ground: The sentence imposed was manifestly excessive. Factual background 5As at 12 February 2011 the victim was 18 years old and living with her godmother, Margaret Doherty, at Camden. At that time, although the applicant was married, he was no longer living with his wife. He was in a close personal relationship with Ms Doherty and was aged 36. 6On the evening of 12 February 2011 the victim, Ms Doherty and the applicant were drinking at Ms Doherty's house near Camden before travelling in Ms Doherty's car to Newtown. The victim was an inexperienced drinker. The applicant was in the rear passenger seat and continued to drink. 7When they arrived at the Marlborough Hotel in Newtown, more drinks were consumed before getting out of the car. The three of them then entered the Marlborough Hotel where more alcohol was consumed. After a while the group had dinner at a nearby restaurant where further alcohol was consumed. The group returned to the Marlborough Hotel and more alcohol was consumed. 8While at the Marlborough Hotel on this occasion an argument broke out between Ms Doherty and the applicant. Ms Doherty announced that she was going to the toilet and that, upon her return, the group would be leaving. During Ms Doherty's absence, the victim and the applicant waited for her outside. By this stage the victim had consumed a very considerable amount of alcohol. She had no recollection of leaving the hotel or of the events which followed. 9When Ms Doherty rejoined the others, the argument revived and the applicant walked off. The victim and Ms Doherty returned to the car where the victim was ill. Ultimately Ms Doherty fully reclined the front passenger seat and the victim lay down and effectively passed out. Her head was facing the rear of the vehicle and her feet were towards the front. 10At about this time, the applicant telephoned Ms Doherty's mobile phone and asked her to collect him from Redfern. Ms Doherty drove to Redfern and picked him up. He again sat in the rear of the motor vehicle. The victim was still lying on the fully reclined front seat. It was their intention to return to Camden. However, the argument between the applicant and Ms Doherty flared up again and at Ashfield Ms Doherty stopped the car and got out. She threw the car keys at the applicant and told him to drive home and stormed off. At the time Ms Doherty did that, the victim was unconscious and in the same position. 11About 10 or 15 minutes later, Ms Doherty returned to the motor vehicle. The applicant had not driven off. Ms Doherty was able to look into the window of the car and she saw the victim. Although the victim was still on her back, she was in a different position. She had been turned around so that her head was now towards the front of the vehicle and her feet towards the rear. She was still unconscious. Her clothing had been moved: her top was down and her bra was off with her left breast exposed. Her jeans and her underpants had been pulled down past her knees. Ms Doherty saw the applicant's head moving up and down between the victim's legs and very close to her groin (sexual intercourse without consent, being cunnilingus). 12Ms Doherty confronted the applicant who left the scene and an ambulance was called. The victim was taken to hospital and DNA samples were taken, which showed that the applicant had kissed or touched her left breast (indecent assault). 13The victim had no memory of the events of the night from a point when she was still in the hotel until she awoke in the hospital. At that time she was sore on her shoulder blade, between her thighs and on "her private area", which his Honour found to be her vagina. She had not been sore in any of those areas before setting off to Newtown. Proceedings in the District Court 14His Honour noted that while the offences did not involve force, coercion or violence (largely because the victim was unconscious) they were nevertheless serious because of that very vulnerability - a vulnerability of which the applicant was aware and of which he took full advantage. His Honour noted that although the victim was effectively oblivious at the time of the offences, she had subsequently become aware of what had occurred. His Honour observed that recalling it caused her some distress when giving evidence, but to his observation not excessively. 15His Honour characterised the offence as below a midrange offence of this kind, but not at the bottom of the range. He found that the offence of assault with an act of indecency was towards the bottom of the range of objective seriousness for such offences, but not at the bottom of the range. 16There was no victim impact statement from the victim, so that there was no evidence of substantial harm to her beyond what might reasonably be expected for offences of this kind. His Honour nevertheless regarded the offence as very serious, as indicated by the maximum penalty for the sexual intercourse offence. 17His Honour was prepared to accept that the offences were opportunistic. Although some time was involved in carrying out the offences, his Honour was not prepared to find that they took place over a prolonged period. He accepted that the offences took place over a period not exceeding 10 to 15 minutes, being the period of time during which Ms Doherty was away from the car. 18His Honour took into account as an aggravating factor that at the time of the offences, the applicant was on conditional liberty. He had been arrested on 25 January 2011 on charges of damaging property, assault occasioning actual bodily harm and contravening an apprehended domestic violence order. On 28 September 2011 the applicant was sentenced to periods of imprisonment for the assault occasioning actual bodily harm and the contravening AVO offences but those sentences were suspended. The offences appear to be related to his marriage break-up. 19His Honour then considered the applicant's subjective case. Although the applicant did not give evidence in the proceedings, evidence was given by his father. His father confirmed that the applicant's marriage had broken down in 2011 and that at the time of the offending, he was separated from his wife. His father said that as a young man the applicant had excelled at boxing, rugby league, tennis and golf. He had worked as an employee of the Water Board but that employment had been terminated as a consequence of his conviction for these offences. The applicant had earned good money in that employment, but since his conviction the house which he had previously owned had been sold and the proceeds divided with his former wife (presumably pursuant to orders of the Family Court). 20Apart from the matters in respect of which the applicant was on bail at the time of these offences, the applicant had no relevant criminal history. Notwithstanding those matters, his Honour took into account the applicant's previous good character and work history and concluded that he had good prospects of rehabilitation. As a result, specific deterrence was not as significant as general deterrence. That having been said, his Honour observed that unlawful sexual gratification by men of maturity upon young, vulnerable women was to be strongly denounced. 21His Honour found no evidence of any remorse by the applicant. His Honour declined to make a finding of special circumstances because the applicant's prospects of rehabilitation would not be enhanced by a longer period on parole, notwithstanding that this was his first time in custody. The appeal 22The applicant submitted that because of his Honour's finding that the offence of sexual intercourse without consent was below midrange, a significantly lower sentence should have been imposed. He submitted that in the circumstances of this case, the act of cunnilingus, which formed the basis of the allegation against him was very much at the lowest end of the spectrum. The applicant submitted that given the circumstances of the case, this form of sexual intercourse was less serious than other forms encompassed by s61. 23The applicant accepted that the form of sexual intercourse was not the sole determining factor. Other factors were "the degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation and the duration of the offence" (R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1 at [56]). The applicant submitted that each of those matters demonstrated that the offence fell towards the lower end of the spectrum in that the offence did not involve the use of force and the physical hurt was quite limited. Insofar as humiliation was concerned, the applicant submitted that there were no such circumstances other than the fact of the offence itself. He submitted that the duration of the offence could not be said to be an aggravating feature since it took place during a period of, at most, 10 to 15 minutes not all of which could be attributed to the offence itself. 24The applicant submitted that a relevant factor was that he had consumed a very large quantity of alcohol. While he acknowledged that the consumption of alcohol was a matter of only "limited assistance", he submitted that his intoxication "may serve to explain how his judgment was affected to some extent in this way" (BP v R [2010] NSWCCA 159 at [79] per Johnson J). 25The applicant submitted that for that reason his conduct could be properly characterised as "out of character" as that concept was explained in R v GWM [2012] NSWCCA 240 at [82] per Johnson J. 26The applicant submitted that in accordance with the finding of the sentencing judge specific deterrence was not of particular significance. He submitted that a matter which the sentencing judge should have taken into account, but apparently did not, was that he had lost his long held employment with the Water Board, a circumstance which should be taken into account as extra curial punishment. Consideration 27The difficulty confronting the applicant in an appeal of this kind was succinctly set out by Gleeson CJ and Hayne J in Dinsdale v R [2000] HCA 54; 202 CLR 321 where their Honours said: "3 ... The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v The King: "It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." ... 6 Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. ..." 28A similar statement of principle was made by the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v R [2005] HCA 25; 228 CLR 357 at [25] - [27]. At [27] their Honours said: "Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 29As this Court has said on many occasions, the precise nature of the sexual intercourse which took place is not of primary significance. Certainly there is no ranking of types of sexual intercourse in some hierarchy of seriousness. The fundamental concern is a consideration of all of the relevant circumstances, including the nature of the sexual intercourse involved. A recent statement of that proposition was made by Bellew J (with whom Slattery J and I agreed) in Adam Jolly v R [2013] NSWCCA 76 at [72] where his Honour said: "72 To the extent that the applicant's written submissions suggested that the objective seriousness of the offending was less because the intercourse was in the nature of fellatio, such a submission should be rejected for two reasons. Firstly, the submission reflects a serious underestimation of the reality of the applicant's offending. Secondly, it reflects an approach which is contrary to principle. The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL)." 30Similar observations were made in Doe v R [2013] NSW 248 at [48] and RO v R [2013] NSWCCA 162 at [99] (both in relation to digital penetration as distinct from penile penetration). 31It is true that this offence did not involve the use of violence or the administration of some stupefying substance. Nevertheless the condition of the victim was such that she was completely helpless. While the absence of such aggravating features is relevant to the objective seriousness of the offence, his offending should be assessed by reference to what it did involve. 32The fact that the victim was unconscious when the offences took place, undoubtedly limited the extent of physical hurt. Her complaints at the hospital, however, make it clear that some physical hurt was suffered, i.e. to her shoulder blade, between her thighs and to her vagina. While the precise circumstances in which that hurt was suffered may not be known, the overwhelming inference, certainly one which can be drawn beyond reasonable doubt, is that the soreness between the victim's thighs and to her vagina was a direct result of the applicant's conduct. As was appropriately submitted by the Crown, in those circumstances the victim is left for the rest of her life to speculate about what the applicant did to her between the 10 - 15 minutes when he was alone with her. The applicant's conduct was a disgraceful intrusive interference with the intimate personal integrity of the victim which must have caused her continuing humiliation and distress. 33The submission by the applicant that these offences were "out of character" is not made out. There is simply no evidence concerning the applicant's character except that he had previously been convicted of assault occasioning actual bodily harm and contravening an apprehended domestic violence order. All that can be said in the applicant's favour is that he had not been convicted of this type of offence before. 34The reliance placed by the applicant on his intoxication "to explain" his conduct is largely misconceived. This Court has consistently stated that intoxication of itself is not a matter to be taken into account in mitigation. His intoxication may be relevant to the lack of planning and opportunism involved in the offending, but that is all. 35There is no substance in the applicant's submission that his Honour erred in failing to take into account by way of "extra curial punishment" the fact that the applicant had lost his job as a result of his conviction for this offence. Loss of employment, no matter what the employment, would be an inevitable consequence in almost every circumstance where a person was convicted of an offence of this kind. 36The difficulties with such an approach were identified by Basten JA in somewhat different circumstances when referring to the loss of a profession, in Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [85] - [97] (RS Hulme and Latham JJ agreeing). "87 ... Nevertheless, the label "extra-curial punishment" seems inapposite in relation to all of these considerations ... Nor is it desirable to address them all under the same heading. Some consideration must be given to the consequences of how particular matters are taken into account. Thus, loss of good standing in the community may readily give rise to an element of double counting, if the offender is also given favourable consideration for his or her prior good character. Taking account of the economic consequences (including loss of employment) which inevitably follow from imprisonment, may mean that those previously in employment will receive shorter sentences than those who were unemployed." 37The sentence imposed here was not manifestly excessive. It involved an appropriate exercise of discretion by the sentencing judge. The sentencing judge was confronted with a serious offence perpetrated on a helpless and vulnerable victim, whose unconscious state provided an opportunity for the applicant to exploit the situation. 38The sentence imposed was in accordance with two important guidelines, i.e. the standard non-parole period of 7 years and the maximum penalty of imprisonment for 14 years. The offending was aggravated by the fact that the applicant was on bail at the time. There was no evidence of contrition or remorse. As his Honour appreciated, an offence of this kind requires a stern sentence so that the principle of general deterrence can be given effect to and this kind of exploitative conduct clearly denounced. 39This ground of appeal has not been made out. 40The order which I propose is that leave to appeal be granted, but that the appeal be dismissed. 41ADAMS J: I agree with Hoeben CJ at CL.