FRIDAY 17 FEBRUARY 2006
ISAAC ROBERT DOOLAN v REGINA
1 McCLELLAN CJ at CL: I agree with Buddin J
2 JAMES J: I agree with Buddin J.
3 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court after he was found guilty of six offences by a jury. Two offences were of common assault which attracts a maximum penalty of two years imprisonment. There were also three offences of sexual intercourse without consent, contrary to s 61I of the Crimes Act, each of which attracted a maximum penalty of 14 years. The final offence was an offence contrary to s 61J(1) of aggravated sexual intercourse without consent. The circumstance of aggravation was a threat with an offensive implement issued by the applicant to the complainant immediately before intercourse. That offence attracts a maximum penalty of 20 years imprisonment. A standard non-parole period of 7 years applies in relation to each of the offences of sexual intercourse without consent and a standard non-parole period of 10 years applies in relation to the aggravated sexual assault offence.
4 The offences occurred on 21 February 2004. The applicant was arrested the following day and taken into custody. Between that date and 21 August 2004 the applicant was serving a sentence imposed in respect of unrelated offences albeit that they involved offences perpetrated against the same complainant. It was against that background that the applicant came to be sentenced for the present offences.
5 In respect of each of the two offences of common assault, the applicant was sentenced to fixed terms of four months imprisonment to be served concurrently with each other, commencing on 22 August 2004 and expiring on 21 December 2004. In respect of each of the three offences of sexual intercourse without consent he was sentenced to fixed terms of four years' imprisonment commencing on 22 August 2004 and expiring on 21 August 2008. In respect of the offence of aggravated sexual assault, the applicant was sentenced to a non-parole period of 5 years commencing on 22 August 2006 and expiring on 21 August 2011, with a balance of term of 3 years commencing on 22 August 2011 and expiring on 21 August 2014. The effective non-parole period is thus one of 7 years with the total term being10 years.
6 The applicant and the complainant had lived in Bathurst in a de facto relationship for a period of about two years. In October 2003 the complainant obtained an apprehended violence order against the applicant. He subsequently breached that order as a result of which the complainant terminated the relationship. The applicant was charged with various offences arising from that incident, including assault occasioning actual bodily harm. For that offence he received a sentence of imprisonment. The non-parole component of that sentence, to which reference was made earlier, commenced on 22 February 2004. It is to also be observed that the applicant was on bail for that offence at the time he committed the offences which are the subject of the present application.
7 After their relationship ended, the complainant moved to Cowra but continued to travel back to Bathurst for work. The applicant also worked in Bathurst but had family and friends in Cowra including his young son (the applicant has subsequently had another child). On Friday 20 February 2004 the applicant travelled to Cowra as did the complainant. The complainant spent the evening drinking at various locations in that town. At about 3 am the applicant approached the complainant as she was sitting on the step of a hotel. After a brief conversation the complainant set off towards her home. The applicant pushed her in the chest and grabbed her by the hair (this incident gave rise to the first of the charges of assault). They then went to a schoolyard where they talked for a few minutes before departing. A short while later they then returned to the schoolyard where the applicant proceeded to sexually assault the complainant. The first such act consisted of penile/vaginal intercourse. The applicant then threatened to strike the complainant with a brick as she was lying on the ground. Immediately after threatening her, he digitally penetrated her vagina (this incident gave rise to the offence of aggravated sexual assault). The complainant indicated that she wanted to go home. She and the applicant then walked together to her flat. Upon reaching the flat the complainant told her flatmate about what had occurred and also informed the applicant that she was going to call the police. She then did so. Following the phone call, the applicant pursued the complainant and struck her on the arm with a stick (this was the second offence of assault relied upon by the Crown).
8 A little later the applicant and the complainant went to Bathurst in the complainant's car which the applicant drove. There they briefly went to the applicant's premises. Later still, they went down to the river where the applicant committed two further acts of sexual assault upon the complainant. One such act was constituted by digital penetration and the other involved an act of penile/vaginal intercourse.
9 Following those assaults the complainant then drove herself back to Cowra where she made a further complaint to her flatmate. She then reported the matter to police She was medically examined and although she had no injuries to her genitalia, she did have minor abrasions and light bruising to her body. Apart from the injuries observed by the doctor (which were consistent with the complainant's account), there was other evidence which demonstrated that the complainant and the applicant had been together during the period of time in question. The applicant denied all but one of the acts of intercourse, which act he claimed was consensual. The sentencing judge nonetheless described the Crown case as being "strong".
10 The sentencing judge concluded that during the time that they were together, which was "about seven hours in all, the offender kept the complainant under his control and he subjected her to two physical assaults and four sexual assaults". Regarding the applicant's motivation, his Honour concluded that "it was not to obtain sexual gratification, it was to control her and teach her a lesson".
11 The applicant was aged 24 at the time of the offences. He is of Aboriginal descent. He grew up in the country and appears to have had a difficult upbringing. His parents separated shortly before he was born. His mother was unable to care for him because she was suffering from the effects of alcoholism. He was raised, for all practical purposes, by his aunts, one of whom has since died. The applicant left school when he was 15. After leaving school he undertook and completed a number of trade courses at TAFE colleges. Is to his credit that he has been in regular employment since leaving school, mainly as a labourer. At the time of the offences he was working in a childcare centre in Bathurst and the evidence indicates that he was regarded as a hardworking and respected employee. The applicant suffered a collapsed right lung at the age of 17. His other lung collapsed when he was 22. The evidence indicated that he nonetheless was a keen and active sportsman. The applicant admitted that he was intoxicated on the night of the offences and conceded that he was a "binge" drinker on weekends.
12 As I have indicated, the applicant has a criminal record. Apart from the matter to which reference has already been made, the only offences of any moment occurred in 1999 when he was placed on a recognisance in respect of matters of common assault and assault occasioning actual bodily harm. None of the other matters on his record had attracted a custodial sentence.
13 As I have said, apart from the matters of common assault, standard non-parole periods applied to the offences in question. The sentencing judge explained his reasons, as the relevant legislation required him to do, for not setting those periods. His Honour said:
I consider that, viewed objectively, the offences of sexual intercourse without consent and the offence of aggravated sexual intercourse without consent committed by the offender upon the complainant for (sic) below the mid range of offences of those kinds. That is not to say that the offences committed by the offender were not serious offences. They were obviously objectively serious offences. However, they were not planned, being opportunistic, and the injuries suffered by the complainant were relatively minor, albeit that, as I have said, forced sexual intercourse, whether aggravated or not, causes a substantial emotional harm. Because I consider that the offences fall below the mid range of objective seriousness for those kinds of offences I need not set the standard non parole period for the offences.
14 His Honour found "special circumstances" but only by reason of the fact that he was imposing sentences that were partly accumulated.
15 At the forefront of the applicant's submission is a complaint that the sentencing judge had regard to various aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act in a manner that was impermissible. Upon this aspect of the matter his Honour observed:
Having regard to what I have said about the offences and the offender, in so far as the aggravating factors are concerned, they are those lettered (d), (g) because I regard forced sexual intercourse as causing substantial emotional harm, (j) and (l) because the complainant was alone at night when she was confronted by the offender, in subs 2 of s 21A of the Crimes (Sentencing Procedure) Act .
16 The first complaint is that the sentencing judge regarded the applicant's prior criminal record as an aggravating factor. Of a similar submission in R v Blair (2005) 152 A Crim R 462, Grove J (with whom James and Barr JJ agreed) said:
I would suggest that it is unfortunate that the legislature has included "a record of previous convictions" in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualification in s 21A(4) that a court does not have regard to any such factor as specified if it is contrary to "rule of law" to do so. "Rule of law" is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution, deterrence or community protection Veen v The Queen (No 2) 1998 164 CLR 465; R v Wickham [2004] NSWCCA 193. (at par 53)
17 In R v Hathaway [2005] NSWCCA 368, McClellan CJ at CL pointed out that such an approach had also been adopted in R v Shankley [2003] NSWCCA 253; R v Johnson [2004] NSWCCA 76; R v Berg [2004] NSWCCA 300; R v McQueeney [2005] NSWCCA 168 and R v Bellamy [2005] NSWCCA 329.
18 His Honour then continued:
In Veen v The Queen (No 2) (1988) 164 CLR 465 the High Court considered the correct approach when sentencing an offender with previous convictions. Veen was, of course, decided before s 21A was enacted. In the well known passage in the joint judgment of Mason CJ and Brennan, Dawson and Toohey JJ at p 477 their Honours provide a statement of the principles relevant to the sentencing of an offender with an antecedent criminal history.