IE v R

Court of Criminal Appeal (NSW)|2008-02-27|Before: Spigelman CJ, Hulme J, Latham J, Grove J

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 2; Latham J at 6

DECISION: 1. Leave to appeal allowed. 2. Appeal dismissed.

CATCHWORDS: SENTENCE APPEAL - Aggravated Sexual Intercourse Without Consent (In Company) - juvenile offender - whether youth an objective factor - whether failure to take account of principles under s 6 Children (Criminal Proceedings) Act 1987 - whether manifestly excessive.

DB v Regina : DNN v Regina [2007] NSWCCA 27 R v MA [2004] NSWCCA 92 R v AEM [2002] NSWCCA 58 R v Voss [2003] NSWCCA 182 CASES CITED : R v Way (2004) 60 NSWLR 168 R v P [2004] NSWCCA 218 Langbein v R [2008] NSWCCA 38 Elliot v The Queen ; Blessington v The Queen [2007] HCA 51 R v Reyes [2005] NSWCCA 218 Wray v R [2007] NSWCCA 162

PARTIES: IE - (Applicant) Regina - (Respondent)

COUNSEL: S. Corish - (Applicant) N. Norman - (Respondent)

SOLICITORS: Legal Aid Commission - (Applicant) Solicitor of Public Prosecutions - (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2004/3916

SPIGELMAN CJ HULME J LATHAM J

21 APRIL 2008 IE v REGINA Judgment 1 SPIGELMAN CJ : I agree with Latham J. 2 HULME J : I agree with the orders proposed by Latham J and, subject to the following observations, generally with her Honour's remarks. 3 For reasons expressed in Wray v R [2007] NSWCCA 162 I do not agree with the remarks of Grove J in R v Reyes [2005] NSWCCA 218 at [65]. Neither do I regard the likely response of the Parole Board to any continued denial of guilt by the Applicant as speculative. The very strong probability, if not certainty, is that if the Applicant continues to deny his guilt, he will not be admitted to parole much, if at all, before the expiration of his 10 year sentence. The attitude of the Parol Board towards sex offenders who do not admit their guilt and thus are not regarded as satisfactorily completing offender programs is, as indicated in my reasons in Wray v R well known. 4 However, one matter about which there is much more doubt is whether the Appellant will continue to deny his guilt. Although not all the complainant had to say during the course of her evidence was corroborated, by reason of CCTV footage, a great deal was and indeed the Applicant admitted to physical presence at or very close to the events the subject of the charges. In the circumstances of this case, there is no particular ground for concluding that the Applicant will continue to adhere to the stance he took at a time when he was seeking to avoid conviction. For these reasons I see no occasion to approach his application to this Court from the starting point that the sentence imposed on him involves a 10 years or thereabouts minimum term. 5 Once recognition is afforded to this, to the very substantial difference between the sentence imposed on the Applicant and the standard non parole period for many of his offences, and the concurrency of the sentences imposed notwithstanding that his offences involved not only himself but also a co-offender enforcing their sexual inclinations on the complainant, I am satisfied that the aggregate sentence and non parole period are not excessive. 6 LATHAM J : The applicant seeks leave to appeal against sentences imposed upon him on 11 August 2006 by Shadbolt DCJ (the Judge) following his conviction after trial on 5 charges of sexual assault. The applicant was indicted, tried and convicted upon the basis that he was liable for the offences committed by his co-offender ((i) - iii) below) as well as the offences he committed ((iv) and (v) below) as part of a joint criminal enterprise. 7 The offences and the sentences imposed upon each of them were :- i) Aggravated Indecent Assault (in company) (s 61M(1) Crimes Act 1900) carrying a maximum penalty of 7 years imprisonment, with a standard non parole period of 5 years imprisonment. The applicant received a non parole period of 18 months, with a balance of term of 18 months. ii), iv) and v) Aggravated Sexual Intercourse without Consent (in company) (s 61JA) carrying a maximum penalty of life imprisonment, with a standard non parole period of 15 years imprisonment. The applicant received a non parole period on each count of 5 years imprisonment, with a balance of term of 5 years imprisonment. iii) Attempted Aggravated Sexual Intercourse without Consent (in company) (s 61JA and s 61P), carrying a maximum penalty of life imprisonment. The applicant received a 5 year non parole period, with a balance of term of 5 years. 8 All sentences dated from 21 December 2005. It is of some relevance to the grounds of appeal that the Judge recommended that the applicant not be granted parole unless he had completed any sex offender programme made available to him whilst in custody. The applicant was 16 years and 5 months of age at the time of the commission of the offences and 11 days short of his twentieth birthday at the time of sentence. There was a delay of almost three years between the applicant's arrest and his trial (not attributable to any default by the prosecuting authorities), during which time the applicant was on bail, but for two months.

9 The three grounds of appeal are :- a) The Judge failed to have adequate regard to the age of the applicant and, in particular, the factors enumerated in s 6 of the Children (Criminal Proceedings) Act 1987. b) The Judge failed to have proper regard to the applicant's youth when considering the objective seriousness of the offence. c) The aggregate sentence and non parole period is manifestly excessive. 10 These grounds fall to be assessed against the background to the commission of the offences. In the course of the remarks on sentence, the Judge summarised the facts as necessarily found by the jury and reflected in its verdicts at trial. No issue was taken with this account, which appears at pp 1-5 of those remarks :- On 8 March 2003 HC, a school student aged 15, was at work as a shop assistant in a store called "Tightrope" situated in the Westfield Plaza at Hurstville. She left to get something to eat and to meet a friend called AD. Having met him and talked to him she attempted to return to the shop where she worked. She was followed by a group of youths who called her name and were jointly urging her to go for a walk with them. One, bolder than the others, wearing a yellow cap, took her by the arm and steered her towards some lifts. He and the present [applicant], then aged 16 years five months, overbore the complainant's will and managed to get her within a lift which was ascending. It went to the third floor where there was a cinema and whilst it was going up there was a show of violence both by the man in the yellow cap and the present [applicant], directed at the lift doors and panelling, which further induced the complainant to compliance. If she had any doubt as to their intentions at this stage they would have been dispelled by this youth rubbing his penis against her leg and in doing so saying "can you feel that, it is hard". Once at the cinema level, she was taken, firmly held by the man in the yellow cap, to an exit, thence to a car park and thence to an uncompleted area which was roofless but which had an exit to a fire escape. The fire escape door was opened by the youth with the yellow cap who said, "welcome to my brothel" and took the complainant into this area which was lit and closed the door. Thereafter, he put his hand down her jeans and touched her on the vagina and despite her protest he took her jeans down, turned her around and attempted to have anal intercourse with her while she held onto a stair railing. To ensure her compliance, he threatened to throw her down the stairwell. Unable to penetrate her, he forced her down into a kneeling position and placed his penis into her mouth. He wanted to ejaculate in her mouth but she removed his penis and said "don't you dare". In the event, he masturbated and ejaculated over her jeans. He called out to the present [applicant] who opened the door from the outside and after having asserted that she was "pathetic" and "did not do anything" he passed her to the [applicant] who took her into the room and who also demanded oral sex and when she demurred he stood her up, turned her around and inserted his penis from the back. When she complained that he was hurting her, he said "do not worry I will do it slowly". She said "do not come inside me". He said "do not worry, I do not want kids". He withdrew his penis and ejaculated against the wall. She knew neither of these youths. When the [applicant] had finished, he opened the door and she hurriedly left. She went down to where the shop was, followed by the two youths and complained to the manageress .. who sought help from two security guards who merely recommended to the complainant that she went to the police which she did the following Monday when she made full complaint to Det Harris. Some weeks later she was at the shopping centre and saw [the applicant] and approached him and obtained from him his name and telephone number. Thus she made him known to the police and was able to identify him in a picture display. ……………………………………………………………………… Much of what occurred in her journey to the fire escape was caught on CCTV where it can be plainly seen that she was dragged to the lift, and that whilst on the roof car park, she was held firmly by the man in the yellow cap, whilst the present [applicant] moved around her gesturing towards the exit. The defence of [the applicant] was that although he accompanied the man in the yellow cap, he played no part in the sexual assault and merely wandered around telephoning friends, the names of whom he cannot now remember and the subject matter of the conversations which he cannot now recall. He said that tiring of this, he bade farewell to his friend by knocking on the fire escape door which was slightly ajar.

The Judge's Consideration of the Sentencing Principles Applicable to Juveniles. 11 It is acknowledged that the Judge referred to the age of the applicant at the time of the commission of the offence, to the Juvenile Justice report, to his youth and to his capacity for rehabilitation. Nonetheless, it is said that the Judge's remarks :- fall short of a proper consideration of the principles to which a court must have regard when exercising criminal jurisdiction with respect to children, in particular, that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance …, and that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind. 12 The passage immediately above comes from my judgment in the course of upholding an appeal against sentence in DB v Regina : DNN v Regina [2007] NSWCCA 27 at [60]. It is important however, to acknowledge the context within which those remarks were made. In that case, the juvenile offender had committed a series of robberies in the company of, and under the direction of, his adult brother-in-law, upon whom he depended for food and shelter. Moreover, the juvenile offender in that case received a sentence in respect of one of the offences in excess of that imposed upon an adult co-offender. 13 The circumstances in the present case are of a very different order. There was no evidence before the Judge or before this Court to suggest that the applicant's co-offender was older than the applicant, so that it could be reasonably inferred that the applicant committed the offences under the influence of that co-offender. The only information available to the Court accords with the remarks by the Judge, and the content of the Juvenile Justice report, to the effect that the applicant and his co-offender were part of a group of youths who regularly frequented the shopping centre where the complainant worked. It may be correct to describe the co-offender as the more active of the two participants in the joint criminal enterprise to sexually assault the complainant, but that does not necessarily lead to the conclusion that the applicant was relevantly vulnerable in the company of that co-offender. 14 It was within the applicant's power to give or call evidence in order to provide a basis for the findings which his counsel now presses upon this Court, and which, it is submitted, were overlooked by the Judge below. The difficulty of course with that proposition is that the applicant continues to deny his participation in the assaults upon the complainant. The applicant displays, according to the author of the Juvenile Justice report, a "predisposition for selfish use of others, particularly using manipulative behaviour". Such a personality characteristic tends to suggest that the applicant does the leading, not the following. 15 In any event, I am not persuaded that the Judge failed to have appropriate regard to the sentencing principles applicable to juvenile offenders. The greater emphasis upon rehabilitation and the correspondingly reduced weight ordinarily given to deterrence in sentencing juveniles is reflected in the Judge's remark that he was mindful of the fact that "rehabilitation must be at the heart of the matter in sentencing one so young as this and .. general deterrence may be removed from centre stage." These considerations, in the Judge's view, could not, however, stand in the way of appropriate punishment for serious sexual offences. The Judge was entirely correct in describing the offences as "most serious, …. committed on a young girl of 15 in an utterly cowardly fashion". This approach is consistent with what the Court has said in R v MA [2004] NSWCCA 92 at [28] and in R v AEM [2002] NSWCCA 58. 16 It is not the youth of an offender per se that justifies the amelioration of a sentence that would otherwise be imposed, in accordance with the common law principles underlying s 6 of the Children (Criminal Proceedings) Act (the Act). It is only where the circumstances of a particular juvenile offender and the circumstances of a particular offence indicate that general deterrence and retribution ought play a lesser role, that the principles are given their full expression : R v Voss [2003] NSWCCA 182. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation. Given the serious criminality inherent in these offences, together with the assessment of the applicant as an offender within the lower end of the medium to high risk of re-offending, there was little scope for the operation of the principles under the Act. Whether the Applicant's Youth Constituted an Objective Feature of the Offences. 17 The applicant's submission on this ground relies upon the following passage from R v Way (2004) 60 NSWLR 168 at [86] :- Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of the causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment.

18 According to this argument, just as an offender's mental illness or intellectual disability may be causally related to the commission of an offence, so too can the juvenile status of an offender constitute an objective factor in sentencing, in so far as immaturity and a lack of life experience potentially reduces the ability to reason and make sound judgments. 19 The difficulty with this submission is that Way recognises in the same par. that :- Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence. (italics not in original)

Moreover, in R v P [2004] NSWCCA 218 at [34], the offender's youth was recognised as a purely subjective consideration. 20 Acceptance of the applicant's proposition on this ground gives rise to a number of difficulties, the most prominent of which is an element of "double-dipping". The applicant's counsel fairly conceded that the argument necessarily engages the youth of an offender at two stages in the sentencing exercise, namely, when the objective gravity of the offence is being assessed and again when consideration is being given to the weight to be afforded to principles of general deterrence and rehabilitation. Such an approach would, in my view, distort the sentencing exercise, in that the objective gravity of the offence may be "discounted" because of the offender's youth, and that same factor may further ameliorate an already discounted penalty, should general deterrence give way in favour of a greater emphasis on rehabilitation. 21 More fundamentally, the passage in Way upon which the applicant relies makes it clear that factors impinging upon the mens rea of an offender are those which are "causally related to the commission of the offence" in a significant respect. There is no bright line between the emotional and intellectual maturity of a 15 year old offender and that of a 17 year old offender. It would be necessary in each case to determine whether the individual offender was so immature that he/she lacked the capacity to reason or to fully appreciate the rightness or wrongness of his/her act. As soon as one embarks upon that exercise, the inquiry is revealed for what it is, namely, an examination of factors personal to the offender. 22 There is no merit in this ground.

Manifest Excess 23 The substance of this ground is that the aggregate non parole period and the aggregate sentence are manifestly excessive, particularly when account is taken of the Judge's strong recommendation to the Parole Board in his remarks on sentence that the offender "not be granted parole unless he has undergone and completed successfully any sex offender's course available to him." 24 The apparent rationale for this recommendation arose from, in part, the contents of the Juvenile Justice report, in particular :- Clinical assessment archival information and collateral review would indicate that [IE] does not appear to present with the characteristics considered to be typical of psychopathy. He does however, exhibit some interpersonal and effective traits which are considered to be related to constructs commonly associated with psychopathy. These traits relate to a predisposition for selfish use of others, particularly using manipulative behaviour, a lack of concern for negative consequences that his actions have on others, being focused on the effect that his actions would have on himself and blaming others or extenuating circumstances for his actions and unwillingness or inability to accept personal responsibility for his actions or the consequences of his actions. 25 The applicant maintains that this recommendation has reduced the beneficial effect of the finding of special circumstances. It can only do so if it is accepted that the Parole Board will inevitably refuse the applicant release to parole at the end of the non parole period, if he has not successfully completed a sex offender's programme. It is said that, as long as the applicant asserts his innocence, he will not be able to successfully complete such a programme, although that stance does not prohibit entry to the programme : see Langbein v R [2008] NSWCCA 38 at [107]. 26 Such a recommendation has no legal effect, in the absence of any statutory basis : Elliot v The Queen ; Blessington v The Queen [2007] HCA 51. The Judge recognised that the grant of parole at the end of five years was "a matter entirely for [the Board]." It may be accepted that the Parole Board will consider the remarks on sentence when it comes to determine the question of the applicant's release to parole, but it is not possible to predict with any certainty what rehabilitative steps the applicant might make in the interim and what course those proceedings might take. To infer that the outcome will be adverse to the applicant is entirely speculative.

27 The applicant's submissions on this ground are a variant of those addressed to the Court in R v Reyes [2005] NSWCCA 218 and Wray v R [2007] NSWCCA 162. In Reyes, Grove J (with whom Wood CJ at CL and Hoeben J agreed) dealt with a submission that the unsuitability of an offender for a sex offender programme (CUBIT) ought be taken into account in assessing the severity of a sentence. This aspect of Grove J's judgment was cited with approval by the Court in Wray at [65] :- [74] The submission that this should be taken into account as a reduction factor in the assessment of sentence should be rejected. The core of jurisdiction to impose any sentence is guilt of the offender. It is an election of the offender not to accept guilt but it would be inconsistent with the task of the sentencer to make an assessment other than on the basis that guilt has been proved beyond reasonable doubt. 28 In my opinion, it cannot be suggested that the Judge did anything other than assess the appropriate penalty on the basis that the applicant had been proven guilty of a number of sexual offences, three of which carried a maximum penalty of life imprisonment with a standard non parole period of 15 years. Indeed, as the Crown noted, the applicant was fortunate in some respects to have received wholly concurrent sentences for five offences. 29 The Judge determined that the objective seriousness of the offences under s 61JA fell "just below the middle range" for a combination of reasons, including that the complainant was penetrated on only one occasion in the course of the sexual assaults and that was by the applicant, that no overt threats were made to induce her to go with them, that there were no more than two assailants, that the period of time during which she was deprived of her liberty was a matter of minutes, that she was subjected to no more indignity than the offences themselves described, that there were no threats of reprisal made to her, that she was not struck by either of her assailants, that there was no threat of summoning others, that each of the assailants attacked her in the absence of the other and that she was allowed to leave as soon as the assaults had finished. No issue was taken with this finding. 30 It may be observed that a non-parole period of 5 years in respect of each of these counts is about half of what might be thought appropriate to offences falling just below the mid range of objective gravity. Far from indicating any manifest excess, both the individual sentences imposed and a fortiori the aggregate sentence, demonstrate a significant departure from the benchmark or guidepost established by the standard non parole period. 31 The applicant has failed to make out any of his grounds of appeal. Accordingly, the orders I propose are :- 1. Leave to appeal allowed. 2. Appeal dismissed. **********

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Judgment (18 paragraphs)

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Cases Cited (11)