JT v R

[2012] NSWCCA 133

Court of Criminal Appeal (NSW)|2011-02-27|Before: Whealy JA, Rothman J, Davies J

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Court

Court of Criminal Appeal (NSW)

Decision date

2011-02-27

Before

Whealy JA, Rothman J, Davies J

Catchwords

(2005) 228 CLR 357 Pearce v The Queen [1998] HCA 57

Source

Original judgment source is linked above.

Catchwords

(2005) 228 CLR 357 Pearce v The Queen [1998] HCA 57

Judgment (20 paragraphs)

[1]

Judgment 1WHEALY JA: I agree with Rothman J. 2ROTHMAN J: JT seeks leave to appeal the sentences imposed upon him by the District Court on 19 September 2008 and 6 March 2009. If leave be granted, JT (hereinafter the appellant) appeals the sentences. 3The appellant was sentenced on 19 September 2008 for 10 offences and on 6 March 2009 he was sentenced for a further offence, which was omitted from the earlier sentencing process. 4The appellant was charged under the Crimes Act 1900 with the following offences: Counts 1 and 11: malicious wounding, said to have occurred on 16 April 2000 and 29 September 2000 respectively; the maximum penalty for which is 7 years imprisonment; Count 2: sexual intercourse without consent, said to have occurred on 16 April 2000; the maximum penalty for which is imprisonment for 14 years; Count 3: assault occasioning actual bodily harm, said to have occurred on 12 May 2000; the maximum penalty for which is imprisonment for 5 years; Counts 4, 5, 6, 8, 9, 10 and 12: aggravated sexual assault without consent, said to have occurred variously between 1 May and 31 May 2000, and on 18 May 2000, 21 August 2000 and 25 December 2000; the maximum penalty for each being imprisonment for 20 years; Count 7: maliciously inflicting grievous bodily harm, said to have been committed on 25 June 2000; the maximum penalty for which is imprisonment for seven years. 5Following a trial in the District Court, a jury found the appellant not guilty in relation to Count 3 and guilty of all other charges. The sentencing judge imposed the following sentences: Count 1: Imprisonment for a fixed term of 4 years, commencing 19 May 2005; Count 2: Imprisonment for a fixed term of 5 years, commencing 19 May 2006; Count 7: Imprisonment for a fixed term of 3 years, commencing 19 May 2007; Count 11: Imprisonment for a fixed term of 3 years, commencing on 19 November 2007; Count 12: Imprisonment for a fixed term of 6 years, commencing 19 May 2008; Counts 5 and 6: Imprisonment for a fixed term of 12 years, commencing 19 May 2010; Counts 8, 9 and 10: Imprisonment for a non-parole period of 9 years and a head sentence of 12 years, commencing 19 May 2012; Count 4: Imprisonment for a non-parole period of 8 years and a head sentence of 14 years, commencing 19 May 2015. The overall sentence was a head sentence of 24 years' imprisonment, with a non-parole period of 18 years. The non-parole period expires on 18 May 2023.

[3]

Facts and sentencing proceedings 9The following is a summary of the sentencing judge's recital of the facts. 10In October 1999, Larnie Brennan (also referred to as the complainant), who was then eighteen years of age, formed a relationship with the appellant. They began living together in La Perouse. 11On 16 April 2000, the complainant and the appellant were having a few drinks. They ended up in an argument and the appellant attacked the complainant with an iron bar, by hitting her across the forehead with it. She was taken to the Prince of Wales Hospital and treated for the injury. This incident is count 1. 12The second count occurred on the same day, after the complainant returned from hospital. The complainant went to bed and pretended to go to sleep. The appellant pulled down her pants and inserted a VO5 mousse bottle into her vagina, she jumped out of bed and the appellant left. 13Sometime in May 2000, the appellant and the complainant were drinking in the lounge room at their premises. They started to argue and the appellant came at the complainant with a wood chisel. The appellant started to stab her shoulders, arms and upper body with the chisel. Simultaneously, he was stabbing her with a metal dinner fork. He then took hold of a little wooden baseball bat and started hitting Ms Brennan on the vagina. The appellant pinned the complainant down on the ground and penetrated her vagina with his penis. Ms Brennan was screaming as this occurred, but the appellant's response was to tell her to "shut up" saying he could do anything he wanted to her because she was "his woman". This incident is count 4. 14On 18 May 2000, the complainant and the appellant were drinking when the appellant bashed her with a baseball bat. She said he "chucked" her on the bed in the front room, was hitting her and told her to take her clothes off. After that he effected penile penetration of her vagina. This was count 5. 15Count 6 occurred immediately after count 5. The appellant turned Ms Brennan on to her stomach, continued to hit her with the baseball bat on her back and effected penile penetration anally. 16Count 7 occurred on 25 June 2000, when the appellant and the complainant argued. The complainant left the house and the appellant chased her to the front of the building where he began choking her. He dragged her to a block of flats next door, where he pinned her up against the wall and punched her all over her face. Her jaw was broken as a result. 17Count 8 occurred on 21 August 2000. The complainant and appellant argued and the appellant hit her with the same iron bar that he had used previously. This time he hit her in the left eye and told her to get into the caravan. Once in there he told her to get on to the bed where he pulled her pants down and performed oral sex on her. 18Count 9 occurred on this same date immediately after the offence that is count 8. The appellant still had the iron bar in his hand and jumped up, pulled down his pants and said, "Suck me cock". She complied, as a result of the previous assault. 19Count 10 occurred immediately after count 9. The appellant told Ms Brennan to take off her clothes because, he said, he wanted sex and the complainant refused. She said: "Fuck off, I don't want you near me", to which he replied: "Shut up you mole, and I can do whatever I want". After this, he raped her by penile penetration of the vagina. 20On 29 September 2000, Ms Brennan was preparing to go to a birthday party. She walked into her lounge room, as she was about to leave, and the appellant informed her that she was not going anywhere. The appellant broke a ceramic plate, on the corner of the lounge and used one part of it to slice Ms Brennan's left thigh. The appellant then remarked: "You won't be walking nowhere now [sic]". Ms Brennan was taken to hospital, but lied about her injury. She still has a significant scar as a result of this incident. This was count 11. 21Count 12 occurred on Christmas Day, 2000. The appellant attacked the complainant with a hammer and began hitting her. He dragged her inside their house. Ms Brennan was refusing sexual demands in response to which the appellant pulled out the little baseball bat he had previously used and a golf club. The appellant began hitting her all over the body with these instruments. He put an orange extension cord around her throat before raping her (penile penetration of the vagina) while simultaneously choking her with the cord and hitting her with the hammer. 22Before the learned sentencing judge, understandably, the appellant conceded, through his counsel, that full-time imprisonment was the only appropriate penalty for each of the subject offences. Each offence was committed at a time when the appellant was subject to conditional liberty, being either a recognizance, or parole. 23The appellant had a pre-existing significant criminal history including offences of violence. Nevertheless, the appellant, at sentencing, relied upon a report of Dr Lennings to submit that a lighter sentence should be imposed because of the appellant's disabilities to which Dr Lennings referred and the consequential effect those disabilities would have, namely, by increasing the onerous nature of custody for the appellant. 24It was submitted to the sentencing judge that the appellant had less moral culpability and that, therefore, less weight ought to be given to general deterrence. Further, it was submitted that the offences were not part of a planned or organised criminal activity. 25The appellant's counsel at sentencing relied, necessarily, on the principle of totality and the necessity of the sentencing judge to avoid double punishment. The appellant did not rely upon the principles in R v Fernando (1996) 76 A Crim R 88. 26Nevertheless, Dr Lennings referred to the appellant as part of the Aboriginal community in the course of his thorough report. The appellant was 30 years of age at the time that Dr Lennings dealt with him. The report said, in part: "[JT] has been found guilty of a number of violent and sexually violent crimes. The fact that he continues to protest his innocence at one level makes the assessment of risk somewhat more difficult as he clearly does not accept the charges that have been made against him. In relation to violent risk I note that his criminal record indicates a number of other violent offences both involved in company and usually involved with some form of significant substance abuse. It seems that his risk of violence relates to both his lack of inhibition against violence as well as the additional disinhibiting affects of substances and peers that approve of or help model aggressive behaviours. Nonetheless he has also revealed considerable impulse energy in his background and a poor capacity to deal with rules and a poor attitude towards authority. I note that on occasion he has not been able to comply with parole conditions and it seems that when left to himself he has been unable to formulate appropriate ways of being able to manage. Clearly any reduction in his risk of violence would depend not only upon whether or not he attended anger management courses but the extent to which he is able to avail himself of case management services in the community that are going to help him develop the kind of life management skills that he will require. In regards to this risk of sexual violence it would appear that [JT]'s charges occurred in the context of a dysfunctional [relationship] and there is no indication of risk in relation to strangers or to children. On formal risk assessment [JT]'s list level is moderately high. It appears that the sexual violence was a function of the aggression and anger and dysfunction generally within that relationship and it is probably best seen as an outgrowth of anger and dysfunctional relationship behaviours than sexual deviance per se. Nonetheless the description of the offences presents a person whose lack of remorse and consideration of another indicates a high need for victim empathy training. As he continues to deny his offences I am unsure as to whether he will be able to find treatment services for sexual offending behaviour in gaol." 27In cross-examination, Dr Lennings clarified that the moderately high-risk assessment to which the above report refers was a reference to the risk of further sexual re-offending. In contrast, Dr Lennings' evidence was to the effect that "the assessment of risk of violence [simpliciter] would fall into the high range", as distinct from the moderately high range. 28The foregoing recitation of the circumstances surrounding the commission of the offences of which the appellant was found guilty disclose offences involving significant violence, and little regard or sensitivity for the harm being perpetrated to others, particularly women who are in a relationship with the appellant. The sentencing judge (and Dr Lennings) remarked that the appellant displayed little, if any, remorse. 29The appellant raises eight grounds of appeal, which are: (1) The sentences imposed were unduly harsh and severe; (2) The sentencing judge erred in making insufficient allowance for totality; (3) The sentencing judge erred in [the] application of the principles of Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465; (4) The sentencing judge erred in respect to the [use of] the [appellant's] prior criminal record; (5) The sentencing judge erred in failing to take into account intoxication; (6) The sentencing judge erred in failing to apply the principles in Fernando; (7) The sentencing judge erred in making no allowance for delay; (8) The sentencing judge erred in respect to special circumstances.

[13]

Fernando 50I deal firstly with the submission that the sentencing judge failed to apply the principles in Fernando. The evidence before the sentencing judge, in Fernando, was that the appellant came from a dysfunctional background, in which forceful behaviour and abuse had been part of his upbringing. Ordinarily, such a background would give rise to the application of the principles in Fernando. The appellant gained the benefit of such principles on an earlier occasion. 51In this matter, the sentencing judge found, as fact, that the appellant came from a supportive environment, with no suggestion that the family in which he was raised experienced problems with either alcohol or domestic violence (Remarks on Sentence, page 5). There is evidence upon which this finding could have been made: see exhibit 2.1 and pre-sentence report, at page 2. Similar comments were found in other psychiatric and/or psychological reports. 52Notwithstanding what seems to be implied in the Crown's submission, there is no limit to the number of times upon which the principles in Fernando may be applied, if they remain appropriate. 53There may come an occasion where consideration of principles that go broader than those adumbrated in Fernando is appropriate. There are many psychological studies that provide much evidence to suggest that acts of discrimination, disempowerment and exclusion, which have been suffered by members of the Aboriginal community, have directly caused certain behaviour, as opposed to certain behaviour being caused by a history of abuse. Of course, this principle may apply to other groups of people, but it applies quintessentially to the Aboriginal community. 54This is not the case for consideration of such a principle. In this case, with full instructions, counsel at the sentencing hearing did not raise the Fernando principles before the sentencing judge. No broader sentencing principle is or was suggested. In those circumstances, considerations arise of the kind to which Rule 4 of the Criminal Appeal Rules are directed. 55In my view, the appellant ought not now be permitted to appeal on a basis that could have been, but was not, addressed below; in circumstances where the factual basis (or lack of it) was well known to counsel who appeared below, to the Crown and to the sentencing judge. It would require a challenge to a finding of fact by the sentencing judge, which finding was available to him. No such challenge has been made. Leave to raise this ground should be refused.

[16]

Use of prior criminal record and preventative detention 61The sentencing judge, at page 9 of his Remarks on Sentence, said: "It is of course legitimate for a sentencing judge to take into account the need to protect the community when imposing a sentence upon an offender. What is not permitted is a sentence, which is extended beyond that which would otherwise be appropriate in order to give effect to the desire for preventative detention. I am not going to mince words here. Given the offender's history of violence and given Dr Lennings' assessment of the probability of future violence is my confident prediction that once released from custody the offender will harm someone else through a further offence of violence in a serious way. The two cases of Veen v The Queen (No 1) (1979) 143 CLR 458 and Veen v The Queen (No 2) (1988) 164 CLR 465 set out quite clearly the proper approach to preventative detention and the circumstances of the offences of Mr Veen demonstrate why it is that preventative detention can and should, in appropriate cases, be an important factor in determining an appropriate sentence. I repeat I will not extend the sentence I would otherwise have imposed upon the offender, extension by reason of preventative detention is impermissible but in exercising my sentencing discretion I will have regard to the protection of society, among other factors of course." 62Unless this Court were prepared to assume that his Honour has deliberately misstated his approach, it could not find that his Honour has extended the sentence otherwise to be imposed upon the appellant by reason of preventative detention. This Court is not prepared to assume that his Honour meant anything other than that which he has expressed. 63The sentencing judge may have used slightly infelicitous terminology, but the above passage makes clear that his Honour was taking into account protection of society as a factor in sentencing, but was not allowing himself to extend the sentence in order to implement any form of preventative detention. 64His Honour noted, and counsel for the appellant conceded, at the sentencing hearing, that all of the offences were committed while the appellant was on conditional liberty. That fact, together with the appellant's record of serious violent offences, denied the appellant any leniency associated with first offences and disclosed that specific deterrence and punishment should be given greater weight and rehabilitation lesser weight than would otherwise be the situation. In those respects, his Honour has not displayed any error of law, error of principle or mistake of fact such that would allow this Court to intervene in the exercise of discretion in which he was engaged.

[18]

67That submission compares an overall sentence imposed for 11 offences - each of which is serious although some are part of the one course of conduct - with a sentence imposed for one offence of murder. Such a comparison is inappropriate. 68In the conduct of the appellant, counts 1 and 2 arise out of the same course of conduct; counts 5 and 6 arise out of the same course of conduct; and counts 8, 9 and 10 arise from the same course of conduct. Each of the foregoing courses of conduct is separate from the other and, in turn, each is separate from the courses of conduct involved in counts 4, 7, 11 and 12. 69When a sentencing judge is called upon to impose a sentence involving two or more offences that involve common elements, the sentencing judge is required to ensure that no double punishment occurs for the one offending course of conduct: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]. That task involves the Court approaching the matter as a matter of common sense and identifying whether a single act was an element of each offence for which the sentence is being imposed: Pearce at [42]. 70Where the sentencing judge is required to impose a sentence for more than one offence, involving disparate conduct, the sentencing judge must impose an appropriate sentence for each separate offence, after which questions of accumulation and concurrence should be considered. That consideration involves a determination of the appropriate totality of the overall sentence to be imposed: Pearce at [45]. 71The exercise involved in determining accumulation and concurrence and the application of the principles of totality are inconsistent with the proposition that one single correct answer will be derived in every circumstance by every judge. The application of the principle of totality is an exercise of discretion, intuitive or instinctive synthesis, and cannot be conducted arithmetically: Pearce at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. The principle assumes that each individual sentence imposed will reflect the criminality of that offence and that the combination of the sentences shall reflect the total criminality of all of the crimes committed: Pearce. 72The sentencing exercise carried out by the sentencing judge, in this case, was complicated. As one would expect of an experienced sentencing judge, his Honour imposed a sentencing regime that reflected that complexity. His Honour initially imposed commencement dates, for subsequent offences, 12 months after the earlier sentence and two years and three years after for the more serious offences. The sentence imposed for count 11 was imposed on 6 March 2009, after each of the other sentences had been imposed and interrupted that pattern, but made no difference to the overall sentence imposed. 73Generally, in the application of the principle of totality, it is difficult, if not impossible, for a sentencing judge to do more than state and apply the principle on the facts as found. Greater transparency is extremely difficult. The process is at the essence of intuitive or instinctive synthesis. As a consequence, once a sentencing judge notes that the principle is being applied (or plainly, by an examination of the process involved, has applied the principle), assuming the facts are correctly stated, in order for an appeal court to intervene, the result must manifest an incorrect application of the principle. Otherwise, interference with the result is impermissible. 74The result of the exercise of discretion of the sentencing judge in this matter may be the imposition of a heavier sentence than another judge would impose, but it is not manifestly excessive in the circumstances of the offences and the circumstances of the offender. The principle of totality has been applied and no error is disclosed. 75A significant amount of concurrence is involved in the sentences imposed by the sentencing judge. A number of them are wholly concurrent. Others added as little as six or 12 months to the overall sentence imposed. 76Each of the sentences is a significant sentence, but none of them represents more than approximately 60 percent of the maximum sentence available for that offence. One cannot be arithmetical in the approach. There is no suggestion in the sentences that there was an abuse of the application of any standard non-parole period, because none was applicable to the sentences imposed. These are heavy sentences. When they are added together it is a heavy overall sentence. But it is a heavy overall sentence for 11 offences, each of which is serious. 77In those circumstances, statistics are of even less use than might otherwise have been the case. The strict use of statistics is a self-fulfilling prophecy. Such statistics are useful for the purpose of showing a trend in the sentences that have been imposed, but each sentence must be imposed on the basis of the sentencing principles and not on the basis of an adherence to statistical averages: Hili and Jones v The Queen at [54]. 78These were sentences imposed after pleas of not guilty and in circumstances where little or no remorse has been displayed. The statistics are generally unhelpful because of the small sample involved. 79Ultimately the manner in which the sentencing judge has accumulated the sentences was a matter within his discretion and the discretion has not miscarried: R v XX at [52].

[19]

Special Circumstances 80Lastly, I deal with the appellant's reliance on the failure to find special circumstances. This submission is misconceived. 81In R v Simpson (1992) 61 A Crim R 58, Hunt CJ at CL (as his Honour then was) (with whom Grove and Sharpe JJ agreed), and in many cases since, the Court made clear that the accumulation of sentences may itself warrant the finding of special circumstances so that a sentencing court "can ensure a proper proportion between the total minimum term and the effective additional term" (at 61). 82The principle requires an appropriate period of parole in an overall sentence. Where, in sentencing for a number of offences, the sentence for each offence reflects an application of a ratio between non-parole period and the remainder of the term that is not reflected in the overall sentence, then a question arises as to whether there has been consideration of the effect of accumulation. 83It is the effect of accumulation itself that gives rise to a reason, without more, to apply a different ratio than that prescribed by the statute. To use a simple example, assume a sentencing judge imposes two sentences of 4 years' imprisonment, with a 3year non-parole period. If the sentences were imposed wholly concurrently, no issue arises. Once the sentences are imposed with some accumulation, or wholly consecutively, the ratio necessarily alters. 84If, in the above example, the sentences imposed were to be served consecutively (i.e. the second sentence to be served immediately following the expiry of the non-parole period of the first sentence), then the overall sentence would be a non-parole period of 6 years, with an additional term of 12 months; a ratio of 6:1, compared with the statutory ratio of 3:1. Any lesser degree of accumulation will lessen, but not eliminate the effect on the overall ratio. 85In order to overcome that effect, the last sentence imposed requires a ratio that results in an overall ratio that the sentencing judge considers appropriate. Here, the sentencing judge has done just that. The last sentence imposed on the appellant has a ratio between non-parole period and remainder of term of 4:3. This was calculated, clearly, in order to effect a ratio in the overall sentence of 3:1 (i.e. 18 years: 6 years). 86His Honour expressly took account of the harsher conditions that may be experienced during incarceration in fixing the sentences to be imposed. Otherwise, the finding of special circumstances is within the discretion of the judge. No error has been disclosed on this account.

JT v R

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