[2017] NSWCCA 221
R v Hayes [2004] NSWCCA 156
Ragg v R [2022] NSWCCA 150
Veen v The Queen (No. 2) (1988) 164 CLR 465
Source
Original judgment source is linked above.
Catchwords
[2014] NSWCCA 297
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
R v Hayes [2004] NSWCCA 156
Ragg v R [2022] NSWCCA 150
Veen v The Queen (No. 2) (1988) 164 CLR 465
Judgment (6 paragraphs)
[1]
The Applicant's Case
The applicant did not give evidence before the sentencing court.
He tendered a psychological report to the sentencing court prepared for the purposes of the proceedings by Dr Carollyne Youssef, Forensic Psychologist, dated 12 July 2022. Dr Youssef assessed the applicant over a two hour period on 27 June 2022 via an audio-visual link to the prison in which he was held on remand. He presented without any unusual mannerisms; his mood seemed flat, if appropriate to his circumstances.
Dr Youssef obtained a history from the applicant, who said he was one of seven children. He described an "unremarkable childhood", although his mother left the family when he was aged about 13, remaining away until the applicant was 17 or 18 years of age. In these years the family lived a somewhat transient and impoverished lifestyle, on occasion sleeping in a car and a church, with his father struggling to cope. On the return of the applicant's mother, he had to assist her following a brutal assault upon her by a former partner. The applicant left school in Year 9 and began working, with his wage helping to support his family. He took up gambling however, and his habit quickly grew to consume most of his income. The applicant told Dr Youssef that he had been the victim of sexual abuse involving three separate male perpetrators at times when he was aged between 7 and 15 years old. He told no-one about the abuse until he was incarcerated in 2010. The applicant said that he had recently made a formal complaint to police.
He retained some family support from two of his brothers. The applicant reported only one significant relationship, expressing concern that he will never "meet someone" and start a family. His future plans involve securing employment in a labouring position and obtaining stable accommodation.
Of the present offending, the applicant claimed that his intention was to be returned to prison due to feeling overwhelmed and helpless. The offence against his sister a few weeks before the current offending had left him homeless for a short time, and without her ongoing support. There had also been a dispute with his brother, which had been distressing, and the applicant told Dr Youssef that he had reasoned that he would be better off in prison. He denied any intention to sexually assault Ms A, claiming that he only wanted to "do enough" to be sent back to gaol.
Dr Youssef observed that she began treating the applicant in the community when he was last released to parole in February 2021, following a referral from his parole officer. Treatment continued, although less frequently due to the restrictions in the period of the pandemic, until the applicant was again arrested. Dr Youssef described the "Schema Therapy" administered to the applicant. She said:
"In therapy, Mr Hayes was forthcoming with information and demonstrated meaningful engagement. Sessions at the time were focussed on emotional regulation, communication and grief given the situation that Mr Hayes had with his father's terminal illness, subsequent passing, and the difficulties within his family unit. There had also been some discussion regarding relationships with women, however considering the circumstances for Mr Hayes at that time, this was not a priority. There was no opportunity to discuss issues directly related to Mr Hayes' offending behaviour, though he indicated that this was something he wanted to discuss in therapy."
The doctor opined that the applicant had felt overwhelmed and alone in the community, and "coped the only way he knew how", by engaging in criminal conduct with a view to being imprisoned. She regarded the applicant as meeting the diagnostic criteria for Complex Post-Traumatic Stress Disorder, one symptom of which is "significant emotional dysregulation", and with respect to which he had made significant progress, "notwithstanding the current offence[s]". Dr Youssef regarded ongoing therapy as very important.
The applicant relied upon a document prepared by his solicitor which calculated the amount of time the applicant had spent in prison over the years, being 18 years, 4 months and 10 days as at the date of sentence.
[2]
The Sentencing Remarks
In his remarks, his Honour Judge Bennett SC set out the offences before the court, and noted the early pleas of guilty, attracting a discount of 25% on the sentence that would otherwise have been imposed, pursuant to s 25D(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence was to commence on the date upon which the applicant was taken into custody, 5 September 2021.
His Honour concluded that the applicant had intended Ms A to fear both mental and physical harm by conducting himself towards her as he did, regardless of the reason for that conduct. He said:
"Upon the material before me I find that the offender was attracted to the victim, that he sought to have her attention and engage with him to fulfil his desires, and the conduct amounted to stalking intending thereby to cause her to fear physical or mental harm.
Notwithstanding the victim's disinterest implicit in her responses to his efforts to engage her, the offender conducted himself such that he could not but know that she was fearful of harm in terms of the charges to which he has pleaded guilty.
Upon this analysis I have assessed the objective gravity of the conduct in which the offender engaged to be in the mid-range, bringing to account the offender's age, that the offending extended to within the victim's home unit building proximate to her apartment, his pretence in ringing the doorbell until she unlocked the door to the building thereby providing access, his misrepresentations to her, and his subsequent invitation to have her come for a drink made via the intercom."
The sentencing judge noted the applicant's "troubling record of antecedent offending", setting out the detail of those matters described above. He observed that the applicant had been, because of that offending past, imprisoned over a lengthy period, serving to protect the community "from his egregious behaviour". His Honour concluded:
"This history is relevant not to aggravate the objective seriousness of the offences with which I am concerned, not to increase what is otherwise the appropriate proportionate sentence to the misconduct, but it does have significance to the consideration in appropriate terms to specific deterrence; to consider whether there are prospects of rehabilitation; and to consider whether this background is such as to require the court to attribute weight to the need to protect the community."
The applicant's background and personal circumstances were summarised by his Honour, the information having been derived from the report of Dr Youssef. Noting that the applicant did not give evidence, and his claims to third parties should be treated with some circumspection, the sentencing judge was not able to accept the applicant's assertion to Dr Youssef that his only purpose in his conduct towards Ms A was to be returned to prison. His Honour said:
"I do not accept that proposition. There is no evidence of that other than the representations attributed to him by the psychologist, and they are inconsistent with what in fact occurred. He did not remain at the scene, and when he was apprehended by the police, he declined the opportunity to participate in an interview, all of which is inconsistent with his position advanced to the psychologist.
I accept, which has to be the case upon any objective assessment of the material, that he was attracted to this young woman. For that reason, he had approached her."
As to the gravity of the offences, the sentencing judge accepted the Crown's submissions that the offending fell at the mid-range of objective gravity, and necessarily the applicant's submissions that the offending "was not at the higher end" of the range, by concluding that the offending fell "at mid-range". His Honour referred to the offences as involving limited planning and being, to some extent at least, opportunistic. He characterised them as "predatory and serious".
Notwithstanding the absence of objective evidence, his Honour accepted that the applicant had experienced a dysfunctional upbringing, which operated to reduce his moral culpability to a degree. Because of that finding, his Honour regarded the principle of general deterrence as having lesser application. He was not so minded with respect to specific deterrence, concluding that the applicant presented a danger to the community that must be taken into account in determining the sentences to be imposed.
The sentencing judge was not able to assess the applicant's prospects of rehabilitation as any better than poor. He declined to make a finding of special circumstances, observing that the ordinary statutory ratio of sentence would provide an adequate period of supervision in the community.
To the applicant's advantage, his Honour dealt with the breach of the CCO that the present offending constituted, taking no action on the breach.
[3]
The Application to this Court
In support of ground 1, the applicant complains that "there was a degree of imprecision" during the sentencing proceedings, with neither the Crown nor the applicant having "spelled out" the conduct attributable to each of the two crimes. He points to the occasional absence of the use of the plural when the offending conduct was referred to in submissions by the Crown and by the applicant's legal representative, apparently as productive of judicial error. The same approach is taken to the remarks on sentence, with counsel for the applicant pointing to his Honour's use of terms such as "the conduct", "the offending", and "the offence" to assert that the assessment of the gravity of the crimes was global and not individual.
Conceding that the sentencing judge fully set out the facts of the offending, [1] and analysed the applicant's conduct, identifying and commenting upon the features relevant to the gravity of the crimes, the applicant nevertheless asserts that the sentencing judge failed to identify the criminality specific to count 2, the offence of entering a dwelling with intent to commit an indictable offence. He suggests that this "error" was the justification for the notional period of 3 months accumulation between the indicative sentences announced.
As to ground 2, the applicant contends that the indicative sentences are "severe and invite scrutiny". He contends that the offences were "unplanned" and "carried out through simple means", occurred over a short period of time, and rose no higher than an intention to cause fear, to argue that the aggregate sentence is unjust. He also points to features that did not apply in support of the same conclusion: that the applicant did not invade the victim's apartment, and that the stalking offence did not involve an ongoing course of conduct.
[4]
Determination
As the applicant points out, albeit in a spirit of punctilious criticism, both the Crown and the applicant's legal representative approached the sentence hearing for the applicant's crimes by frequently referring to those crimes in a holistic way, without always scrupulously using the plural to denote more than one crime. This was an approach his Honour also took on occasion. Setting aside for the moment the cavillous nature of the complaint, far from establishing error, this universal approach by those involved in the matter in the District Court was a consequence of the understanding all plainly had that the two charges brought against the applicant reflected a connected course of conduct and were parts of a whole.
That his Honour well understood that the charged offences were separate and had separate elements, despite reflecting a single course of conduct, is clear from his delineation of the facts relevant to the gravity of the offending conduct. Whilst the parties may not have been specific about which aspects of the overall conduct were comprehended by each offence, and whilst his Honour may not have articulated this in a distinct passage easily identified by appellate lawyers, he was clear as to the conduct constituting each offence. He stated in his remarks that the offence of stalking, count 1, encompassed the applicant's conduct commencing at a point outside Ms A's apartment when he began shadowing her in the street, closely following her to her apartment block, and continued once he was inside the apartment block, having entered in pursuit of his victim. As his Honour found, the stalking conduct did, and was intended to cause Ms A very significant fear of mental and physical harm, a fear entirely justified.
The conduct reflected by count 2 occurred in the interval between the two parts of the stalking of Ms A, when the applicant unlawfully entered Ms A's building with the intention of continuing to stalk her inside the premises. Necessarily, it encompassed that which the offence of stalking did not, being the unlawful entry to the dwelling house with the necessary intention.
In assessing the objective gravity of the crimes, it was important for his Honour to consider the offending as a whole, since each offence informed the gravity of the other. That does not mean that the sentencing judge wrongly inflated the gravity of the crimes or "double counted". The fact that the conclusion the court reached as to the seriousness of the offences was in accordance with the applicant's submissions as to that aspect of the matter, does not support his present contention of error. His Honour regarded these offences, individually and as part of a whole, as serious and predatory, conclusions which properly apply to each of them.
Although this conduct was reflected by two specific offences, as everyone understood during the sentencing proceedings, they were intrinsically linked, and each formed part of a single course of conduct. To require the sentencing judge to treat the offending as if the two offences were unrelated or without connection would be to require an artificial approach barren of common sense. The application of the criminal law is not yet entirely devoid of the latter feature, and his Honour was entitled to apply it in assessing the seriousness of this offending.
The situation is not dissimilar to the assessment of gravity made of an offence where further crimes directly linked to the principal crime are to be taken into account in the determination of sentence. Where the offences are interrelated, it is appropriate to consider the whole: Ragg v R [2022] NSWCCA 150 at [38]; Flick v R [2023] NSWCCA 197 at [78].
The complaint raised by ground 1 before this Court is made contrary to the applicant's conduct of his case in the District Court, where he sensibly recognised and addressed the interconnected nature of the offences. As Johnson J observed in Zreika v R [2012] NSWCCA 44 at [81]:
"[…] in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made".
Having regard to that feature of the matter, I would not grant leave to advance this ground.
Ground 2 complains that the aggregate sentence is unjust or unfair. The principles applicable to a determination of a ground of this nature are well established: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]; Hughes v R [2018] NSWCCA 2 at [86]. They do not need to be repeated. Also well understood are the principles applicable to an appeal against an aggregate sentence, where the focus must be on that sentence, and whether it properly reflects the total criminality involved: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297.
Applying those principles and having considered the evidence that was before the sentencing court, although the sentence might be characterised as stern, it cannot be regarded as unfair or unjust. The applicant's crimes represented serious and predatory criminality, as the sentencing judge concluded, committed by an offender with a long history of the commission of serious and predatory crimes, all directed at women. At the age of 46 when he committed the present offences, it can be concluded that the applicant had learnt nothing from his previous encounters with the criminal justice system and represented an ongoing danger to others. His prospects for the future were assessed by the sentencing judge as poor, and the sentence imposed had to comprehend those features if it was to serve the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act.
The offence of stalking Ms A was particularly serious; his Honour's assessment of it as falling within the mid-range might be regarded as generous. To prove an offence of this nature, the Crown need only establish that the offender acted with the intention of causing another to fear harm, either mental or physical. It is not necessary to prove that the victim actually feared harm: s 13(4) Crimes (Domestic and Personal Violence) Act. In this case, his Honour rightly concluded that the applicant in fact caused Ms A to fear both mental and physical harm, elevating the gravity of the crime. Whilst the sentencing judge did not - favourably to the applicant - conclude that the harm the victim feared was consequential to an apprehended sexual assault, that much is plain from the objective facts of the offending conduct, and from Ms A's victim impact statement. The indicative sentence for this offence could have been higher had his Honour so concluded.
That the applicant unlawfully entered Ms A's dwelling house with the intention of stalking her, such as to cause her to fear harm, made the offence contrary to s 111(1) of the Crimes Act a very serious example of an offence of this nature. Typically, crimes contrary to s 111(1) involve entry into dwelling houses where the serious indictable offence intended to be committed is larceny. The serious indictable offence the applicant intended to commit is one of much greater seriousness than simple theft. The gravity of the crime gave rise to the prospect of a far greater notional accumulation of sentence between the indicative sentences than the three months involved in the aggregate sentence imposed upon the applicant.
His Honour, in my view rightly, rejected the applicant's self-serving and unsworn assertion to Dr Youssef that he committed these crimes only so that he could be sent back to prison. If that was the applicant's only aim, he could easily have committed a crime that was not directed to the person or psyche of another. He could have broken a shop window and reached in and stolen property, or damaged some item of public property. Instead, he followed a young woman in the street, unlawfully entered her apartment building after she had opened it for her own entry and conducted himself in such a way as to lead to the victim's entirely reasonable fear that she was in danger of being sexually assaulted. Further, as the sentencing judge observed, if these crimes had been motivated by a desire to be imprisoned, it is difficult to understand the applicant's assertion to the arresting police of an innocent reason for being around Ms A's apartment building, and his refusal to be interviewed. A statement to police admitting to his offending could only have assisted to make out the case against him, and thus ensure his incarceration. Even the present application to this Court seems rather to contradict the applicant's claims that he wished only to be sent to prison.
This was a sentencing exercise where, because of the applicant's criminal past, specific deterrence and the need to protect the community featured significantly. The principle given in Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 per Mason CJ, Brennan, Dawson and Toohey JJ at [477]-[478] is of direct application. Their Honours there said:
"The antecedent criminal history is relevant […] to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."
The fact that the punishment imposed upon the applicant was stern does not of itself constitute manifest excess. It may be that such punishment is required to give effect to the relevant principles of sentence. In my conclusion that was the case with respect to the applicant's crimes.
Whilst I would grant leave to advance ground 2, it should be dismissed.
[5]
Conclusion
The orders I propose are:
1. Grant leave to appeal on ground 2;
2. Dismiss the appeal.
N ADAMS J: I agree with the orders proposed by Wilson J. As for ground 1, the sentencing judge approached the assessment of the objective seriousness of the offending on the same basis as the parties argued it. No error is disclosed in that regard. The complaint now made is contrary to the applicant's conduct of his case in the District Court. As for ground 2, it is to be accepted that the aggregate sentence is a stern one but I am not satisfied that it was unfair or unjust for the reasons provided by her Honour.
[6]
Endnote
"Offending", and "offending conduct" are words and phrases capable of encompassing, and used here to encompass, both offences of which the applicant was convicted.
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Decision last updated: 08 September 2023
The applicant's criminal history commenced when he was aged 16 years with an entry for attempted sexual intercourse without consent, for which a 6 month control order was imposed in the District Court. About a month after being charged with that offence, the applicant was charged with offences of assault occasioning actual bodily harm ("AOABH") and indecent assault, for which he received control orders of 12 months duration.
As an adult, the applicant has an entry for sexual intercourse without consent, for which he was sentenced in September 2003 to a term of 8 years imprisonment, taking into account a further offence of AOABH. The applicant was sentenced to further terms of imprisonment in 2003 for offences of entering a building with intent to commit an indictable offence and indecent assault, with offences of common assault and larceny taken into account on sentence. The overall term was 4 years, expiring in July 2007. For the 2003 sentences, the total term was one of 12 years imprisonment.
The facts of these offences bear some similarities to the present offending, with each of them targeting vulnerable young women. The sexual intercourse offence was committed against an overseas tourist. On the pretext of assisting her to find a taxi rank, the applicant took the young woman into a side street and physically assaulted her (the AOABH), before having penile-vaginal intercourse without the victim's consent. When on bail for these offences, the applicant indecently assaulted a sex worker in Kings Cross. Pretending to walk with her to his home, he instead forced her into a laneway where he grabbed her, causing her to fall to the ground. He then pulled at her clothing to reveal her breast, which he began to suck. Local residents heard the victim screaming and came into the laneway; the applicant ran off, taking the victim's handbag with him (the larceny). Prior to being charged with these offences, and when on bail for the first set of crimes, the applicant further offended, committing crimes of entering a building with intent to commit an indictable offence, namely, assault. In conduct to some extent mirroring the present crimes, the applicant followed a young woman into her apartment block and tried to force his way into her apartment as she entered it. She resisted and screamed, and police were alerted. The applicant was arrested at the scene.
The applicant's appeal against the purported severity of the sentences imposed for these serious crimes was dismissed by the Court of Criminal Appeal: R v Hayes [2004] NSWCCA 156. In giving the principal judgment of the Court, Levine J quoted from the remarks of the sentencing judge (Solomon DCJ) who had said:
"There are aggravating factors in each of these matters. All three attacks were upon defenceless young women who were alone at the time. Two of the attacks occurred in a street late at night and the attack in the block of units occurred when the victim was returning to her home early in the morning. Further, each of the offences involved the infliction of violence and putting the victims in fear of their safety."
The Court found no error in the sentences.
In December 2014, further terms of imprisonment were imposed upon the applicant after he was convicted and sentenced for aggravated break enter and commit serious indictable offence (5 years and 6 months imprisonment); indecent assault (18 months imprisonment); stealing from the person (18 months imprisonment) and aggravated entering a dwelling with intent to commit a serious indictable offence (4 years and 6 months imprisonment). The facts of these offences were also before the sentencing court; they are disturbingly alike with the present offending.
In November 2013, the victim of the first of the offences, a young woman, was walking home to her Woolloomooloo apartment with some groceries when she noticed a man, the applicant, walking closely behind her. On reaching her building, she opened the security door and went inside. The man followed her through the open door. As she stood waiting for the elevator to arrive, the applicant asked the young woman where she slept and, if she was going to bed, whether she would like to "play" with him and "have fun" with him. He lowered his trousers and exposed his penis, simultaneously moving towards the victim. She pushed him away and began to scream. The applicant pushed her so hard she fell backwards and, grabbing her wallet, ran from the building as she continued to scream.
Two days after these offences were committed, the applicant was seen by another young woman lurking around the entrance to her Elizabeth Bay apartment building. As the victim exited through the security doors to the apartment block, the applicant told her she had a beautiful smile. Ignoring him, she continued on her way. About twenty minutes later, the victim returned to her block and let herself in through the security door. The applicant, who was still in the area, pushed the door open just before it had closed and entered the building behind the victim. She began to ascend the steps to her floor, noticing that the applicant was walking immediately behind her. On reaching her floor, the victim went into her apartment and locked the door. There was a knock at the door some minutes later. When she opened the door very slightly, the victim saw the applicant standing there. He asked for pen and paper to leave a note "for a friend". Having been given these items, the applicant appeared to write something before asking the victim if she would have coffee with him, give him her number, and kiss him. When she responded with horrified incredulity, the applicant pushed his way into the victim's apartment and grabbed at her breasts. She ran from him, all the while screaming at the applicant to get out. His response was to stare at her and lower his jeans towards his knees. When the victim located her mobile telephone and began to unlock it to call police, the applicant fled.
In 2020, the applicant was gaoled for 12 months for an offence of stalking or intimidation when he appeared before the Fairfield Local Court. The facts of that offence were also before the sentencing court. This offence too bore some obvious similarities with the present offending. On 14 May 2020, only some three weeks after being released from custody, the applicant was loitering near Cabramatta Railway Station watching passengers as they left the building. He followed a young woman as she walked out of the station and along Broomfield Street. When the woman got into a car and drove away, the applicant returned to Cabramatta Railway Station. Seeing another young woman walk past him, the applicant turned and began to follow her.
The young woman was wearing earphones but could feel the presence of a person very close behind her and could see the shadow of someone walking behind. Feeling very uneasy, she turned the sound to her earphones down and kept walking. As she approached a carpark where her car was parked, the young woman turned and saw a male, the applicant, about 1.5 metres behind her. She was very frightened. Removing her earphones, she looked back again and saw that the applicant had closed the gap between them to about 50 centimetres. She stepped to the side and stopped, so that the male might walk past her. He stopped near the car park, watching her. By now very frightened, the young woman entered the car park and began running to her car. She got in and locked the doors, before observing the applicant walking along the ramp she had used to get to her car. In a panic she drove around and then out of the car park, calling the emergency operator as she did so. The applicant moved about the carpark, apparently searching for her.
At the exit she saw the applicant, who approached her car and raised a hand. The young woman accelerated away, terrified. The applicant was identified by police from surveillance cameras operating in the area. His conduct was described as "predatory" and directed at a young woman walking alone. When spoken to by police, the applicant claimed to have been endeavouring to buy drugs.
Another offence of intimidation the following year saw a Community Corrections Order ("CCO") imposed in August 2021, with a duration of 12 months, subject to the supervision of the Community Corrections Service. This order was current at the time of the offences against Ms A (having been imposed about a week before them). This offending was of a different character to the offences described above; it involved aggressive threats made after an argument about a COVID-19 test, to a female family member, who became so frightened she contacted police.
A custodial history showed that the applicant had been subject to revocation of parole in 2013. He had incurred institutional offences over the years spent in custody, including, most recently in December 2021, an entry for fighting.