Kendall v R

Court of Criminal Appeal (NSW)|2015-02-12|Before: Hoeben CJ, Johnson J, Hamill J

Offences and sentence After a trial before Maiden SC DCJ and a jury, the applicant was found guilty on 30 September 2013 of the following offences: 1. Break enter and commit a serious indictable offence, indecent assault, in circumstances of aggravation contrary to s112(2) Crimes Act 1900. 2. Intentionally inflict actual bodily harm with intent to have sexual intercourse, contrary to s61K(a) of the Crimes Act 1900.

The maximum penalty for an offence contrary to s112(2) is imprisonment for 20 years with a standard non-parole period of 5 years. The maximum sentence for an offence contrary to s61K(a) is imprisonment for 20 years.
The applicant was sentenced by his Honour to an aggregate term of imprisonment with a non-parole period of 6 years to commence 7 March 2013 and to expire 6 March 2019 and an additional term of 3 years to expire on 6 March 2022.
The applicant seeks leave to appeal against that sentence on the following grounds:

Ground 1 - The sentencing judge erred in his assessment of the offending and finding that it was "near what is described as the highest level of offending behaviour".

Ground 3 - The sentence imposed was manifestly excessive.

FACTUAL BACKGROUND

On 7 July 2012 the applicant was on bail, a condition of which required him to attend a residential rehabilitation facility conducted by "We Help Ourselves" in respect of an alcohol addiction. The rehabilitation program required attendance for four months. The applicant was discharged on 6 July after one month due to his aggressive and non-compliant behaviour.
Following his discharge from the rehabilitation facility, the applicant consumed a number of alcoholic beverages with a friend before purchasing further alcohol at a bottle shop. At approximately 3pm on 7 July he entered a gated retirement community in Port Macquarie and approached an elderly couple and their three grandchildren, asking directions to a certain address in the village. He was directed to a house owned by the victim and walked towards that house. Shortly afterwards screams were heard coming from the house and the applicant was seen by a neighbour running from the victim's house. The neighbour tried unsuccessfully to apprehend him.
The victim, who was aged 71, opened her front door leaving the screen door closed and locked when the applicant rang her doorbell. The applicant asked whether there was a "Julie" there, to which she replied that there was not. When the victim unlocked the screen door and went to step out to speak to the applicant, he pushed her back inside.
The applicant pushed onto the front of her chest with both hands, causing her to fall onto the floor just inside the front door. The applicant closed the front door and started shouting at the victim to take her pants off. The applicant put his hand over the victim's mouth and pulled at her pants and partly removed them from her waist. He put his hands into her underpants and felt the outside of her vagina.
When the victim resisted and started to scream, the applicant pushed his hand over her mouth. He was kneeling over the victim, who was still lying on the floor. When she continued to scream, the applicant shoved both his hands onto her mouth to quieten her. The victim described herself as lying on the floor with her face being pushed into the ground. The applicant moved away when the doorbell rang. The victim had bruising and lacerations to most of the front part of her face, cuts to her lips, hands and significant bruising to her arms and hands.
The applicant was identified as a result of information obtained from the victim and from persons in the retirement village to whom he had spoken. When interviewed by the police, the applicant denied any involvement in the offences.

Proceedings in the District Court

When his Honour was reciting the facts relating to the offences he said: "[The applicant] appears to have hit her with his fist to the face on a number of occasions and to other parts of her body." It was common ground that this misstated the facts in that there was no evidence that the applicant had hit the victim with his fist on any occasion.
His Honour reviewed the applicant's subjective case. He was born in 1986 and was 25 when the offences occurred. He was raised in a loving and caring household. At an early age he was diagnosed with ADHD and had difficulties at school. His literacy and numeracy skills were limited and he left high school at an early age because of behavioural problems.
The applicant became involved in drugs of various sorts in his teenage years which led to criminal behaviour. From 2005 he engaged in offensive behaviours which developed into a series of assaults and assault police matters. His criminal record included call ups for breaches of bonds and other matters. The Court had regard to three criminal matters which had occurred before this offending: an assault incident in a hotel on 22 December 2011, an assault occasioning actual bodily harm on 14 March 2012 and damage to property which occurred on 31 May 2012. On each occasion, the applicant was affected by alcohol.
His Honour noted that it was against that background while on conditional liberty that the applicant had attended the fulltime residential rehabilitation centre for one month before the offences.
His Honour summarised his conclusions as to the applicant's subjective case as follows. He was a young man with learning disabilities which adversely affected his ability to gain meaningful work. He had had significant behavioural problems from an early age which had not been successfully addressed. He was an alcoholic who was also using illicit substances. His Honour found that when consuming alcohol, the applicant was unable to control his behaviours. The applicant had never previously come under notice for any sexual matter.
His Honour summarised the effect of the offences on the victim as follows: "Critically, what it has left is a woman of senior years living as a widow who, for a period of time, has had to deal with the fears arising from her being alone, that is, of walking alone in parts of her environment where she had previously walked without fear. She was of the view that a trial in this matter would not be necessary and she identifies the trauma that she faced in having to undergo and revisit these traumatic events and injuries inflicted upon her. She is also a woman who has suffered cancer and has had years of dialysis in respect of renal difficulties, and in respect of her appearance before this Court was a woman who showed great dignity and presence of mind in the way that she gave her evidence and responded to what was, as I have already indicated, a traumatic event for her." (ROS 4.6)
His Honour reviewed a pre-sentence report which had been prepared by Ms Cox, a Senior Community Corrections Officer. Ms Cox was surprised that there had been no previous sexual incidents before these offences. The only link which she could find between his past behaviour and these offences was his inability to control his actions when under the influence of alcohol.
His Honour also reviewed a report of Dr Christopher Bench, psychiatrist. Dr Bench concluded that the abuse of alcohol had played a significant part in the offending, particularly because the applicant had been substantially abstaining from alcohol for about a month while in rehabilitation. Dr Bench did not diagnose any mental health condition but attributed the applicant's anti-social behaviour to his poly-substance abuse, in particular his abuse of alcohol. Dr Bench attributed the cause of this offending to be the applicant's abuse of alcohol.
His Honour assessed the objective seriousness of the applicant's offending as follows: "In respect of the seriousness of the offending, this Court finds that it is near what is described as the highest level of offending behaviour and in respect of the two matters the Court proposes to deal with them concurrently because effectively they were all part of the same actions that gave rise to the injuries to the victim." (ROS 7.4)
His Honour took into account general deterrence and concluded that the sentence must be such as would deter persons from not only committing such offences but even contemplating such an offence against a woman of advanced age and dignity who was isolated and vulnerable. His Honour took into account specific deterrence given the applicant's lack of insight and his lack of remorse.
His Honour set out the aggravating features of the offences as follows: "In respect of the other matters that I do need to consider in respect of the degree of severity of the matter, this was a matter where (1) he effectively misled the victim into a position in which she found herself; (2) that it was at her home; (3) that she was a vulnerable person; and (4) it was at a time when he had been released on parole and having been released from his rehabilitation he must have known that if he offended in any way that he would be back in custody straight away. As I have already stated, this man at this point of time lacks insight into his offending ways." (ROS 8.9)
His Honour was prepared to find special circumstances. His Honour then imposed a sentence of imprisonment with a non-parole period of 6 years and a balance of term of 3 years in respect of both offences. The sentence imposed by his Honour was clearly intended to be an aggregate sentence, even though his Honour did not in terms comply with the provisions of s53A Crimes (Sentencing Procedure) Act 1999. This, of course, does not invalidate the sentence and no point was taken in relation to s53A in the appeal.

Ground 1 - The sentencing judge erred in his assessment of the offending and finding that it was "near what is described as the highest level of offending behaviour".

The applicant submitted that his Honour's approach to the objective seriousness of the offences was erroneous. He submitted that the offences could not be said to be "near the highest level of offending behaviour". While conceding that the offending was abhorrent, he submitted that in order to assess their objective seriousness, it was necessary to compare the offences with other offences of that type.
The applicant placed before the Court a number of cases, which characterised the particular offending under consideration, as being either the "worst case" or being in the "worst category" of case. The applicant noted that while there was no definitive statement of what a "worst case" means, some guidance could be obtained from Regina v Twala (NSWCCA, unreported, 4 November 1994) where it was said: "In order to characterise any case as being in the worst category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)." He submitted that the facts of these offences did not reach that standard.
The applicant submitted that his Honour's factual error in finding that the applicant had punched the victim, led to an incorrect assessment of the objective seriousness of the offending. He submitted that for a case to be in the "worst category" what was required was a degree of heinousness that extended beyond what is ordinarily present in offences of that type. In that regard, the applicant submitted that the offence committed on the premises was at the lower end of the scale of what could constitute a "serious indictable offence" being an indecent assault of moderate seriousness.
The applicant submitted that to categorise an offence as approaching the worst case, more was required than that the case be regarded as a very serious one (R v Bilal Skaf [2005] NSWCCA 297 at [54]). He submitted that while the case was serious, it was demonstrably below the worst category of offending so that there was error in the approach of the sentencing judge when he assessed the objective seriousness of the offence.

Consideration

As was properly conceded by the Crown, his Honour's finding that the applicant punched the victim in the course of the assault was not correct. That error, however, had little effect on the assessment of objective seriousness of the offences. This is particularly so when an elderly woman was forced to the floor in her own home, was sexually assaulted and where her assailant forced his hands onto her mouth to stop her screaming. This occurred in circumstances where the elderly victim was left with bruising and lacerations to her face and mouth. Accordingly, while factual error has been identified, it was of little consequence.
It should be noted that in the course of submissions, the applicant moved from relying upon what his Honour actually said as to the objective seriousness of the offending to a discussion of what actions would constitute the "worst category" or "worst case" for offences of this kind. That is to misunderstand what his Honour said. His Honour at no time characterised the offences as being in the worst category or worst case. The effect of what his Honour said was that the offending was near to the worst category or worst case (see [19] hereof). That is an important distinction.
Another difficulty for the applicant is that his submissions somewhat artificially compartmentalised the elements of the offences as the only indicia of seriousness. In particular, the applicant made no mention of major aggravating features such as the vulnerability of the victim and the effect of the offences on her. The effects of the offences upon the victim in terms of physical injury and consequent impairment, disability and emotional and psychological consequences are important considerations (Little v R [2010] NSWCCA 210 at [31] per Hall J (with whom Macfarlan JA and Simpson J agreed). Moreover, an assessment of a case as being near the worst category of offence will not be regarded as erroneous merely because even worse cases can be envisaged than the case under consideration.
The difficulty confronting the applicant in these submissions was identified by Spigelman CJ (with whom Simpson and Adams JJ agreed) in Mulato v Regina [2006] NSWCCA 282 at [37] where his Honour said: "37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised."
The applicant has also ignored the fact that this was an aggregate sentence imposed for two serious offences, each of which carried a maximum penalty of 20 years imprisonment. This was an important guidepost which supported the assessment by his Honour of the objective seriousness. When one adds to that the circumstances of the offending, the vulnerability of the victim and the effect on her, together with the other aggravating features - that the offence occurred in her home while the applicant was on conditional liberty, his Honour's assessment of the objective seriousness of the offending was well open to him.
This ground of appeal has not been made out.

Ground 2 - The sentencing judge erred in finding that the applicant was on parole at the time of the offending.

It was common ground that at the time of the offending the applicant was not on parole, but on bail. The applicant submitted that this factual error led to his Honour not properly considering the issue of totality. What seems to be suggested, albeit faintly, is that his Honour should have backdated the commencement date of the sentence to have regard to the fact that the applicant had been sentenced to imprisonment with a non-parole period of 8 months, commencing 8 July 2012, for an offence of assault occasioning actual bodily harm. The submission went no further than that.

Consideration

There are two difficulties with the submission. The first is that being on parole or being on bail in the circumstances of this case is a distinction without a difference. The important matter is that s21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 identifies the aggravating factor as being "the offence was committed while the offender was on conditional liberty". Both parole and bail constitute conditional liberty.
The other difficulty insofar as the commencement date of the sentence is concerned arises from the sentence proceedings themselves where the following occurred: "CROWN: Whilst Mr Kendall has been in custody since the day of his arrest being 13 July 2012 your Honour will note from the criminal history that he has served concurrent sentences for unrelated matters during that time, the longest of which is a non-parole period of 8 months which expired on 7 March 2013. The Crown's submission would be any sentences that your Honour imposed should date from 8 March 2013. SENIOR COUNSEL FOR THE APPLICANT: We agree with that your Honour." (T 22.11.2013 .1)
It follows that this ground of appeal has not been made out.

Ground 3 - The sentence imposed was manifestly excessive.

The applicant submitted that the individual sentences were manifestly excessive as was the overall sentence imposed. While accepting that no specific error was identified, the applicant submitted that the sentence was unreasonable and unjust and that his Honour's sentencing discretion had accordingly miscarried.
The applicant relied upon the following cases to establish that the sentence was manifestly excessive: R v Shillingsworth [2003] NSWCCA 272; YS v R [2010] NSWCCA 98; R v Andrews [2011] NSWCCA 24 and Thompson-Davies v R [2013] NSWCCA 75.
In R v Shillingsworth the Court of Criminal Appeal dismissed an appeal against a sentence of 7 years with a non-parole period of 4 years imposed after trial for an offence against s112(2). In that case the serious indictable offence was sexual intercourse without consent.
In YS v R the sentence imposed at first instance was imprisonment for 8 years with a non-parole period of 5 years, the applicant being aged 16 at the time of the offending. The offence involved a series of sexual assaults on the complainant in her bed and involved the deprivation of liberty. Subjectively the applicant had mental health issues.
In R v Andrews the applicant was sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 6 months. The aggravating circumstances of this offence were that it occurred in the victim's home, the applicant knew she was there and he was subject to a good behaviour bond at the time. There was a degree of planning and deception involved in the offence. The Court of Criminal Appeal refused to increase the sentence, although it noted that it was very lenient.
In Thompson-Davies v R the applicant had confronted the victim in the kitchen, pushed her against a bench and sexually assaulted her by touching her breasts. At first instance he received a sentence of imprisonment for 7 years and 6 months with a non-parole period of 5 years and 7 months. The Court of Criminal Appeal found that the sentence was manifestly excessive and it was reduced to imprisonment for 6 years and 4 months with a non-parole period of 3 years and 10 months.
The applicant submitted that the sentences imposed in those cases were all substantially lower than that imposed in this case and that in at least two of those cases, the offending was significantly more serious. The applicant submitted that these cases provided a basis for a conclusion that the sentences imposed here were manifestly excessive.
In the alternative, the applicant submitted that these were the first offences which involved offending of a sexual nature. He submitted that he had desisted when someone rang the doorbell. He submitted that the sexual assault while serious was towards the lower level of seriousness. He submitted that if those matters were taken into account, the sentence imposed was crushing for an applicant, who apart from an earlier sentence of two months in custody, was in effect serving a custodial sentence for the first time. This was so if one took into account that this sentence was being served immediately after the 8 months of imprisonment received for the assault occasioning actual bodily harm offence.
The applicant submitted that in those circumstances, the Court should re-assess the sentence for itself pursuant to s6(3) of the Criminal Appeal Act 1912.

Consideration

The utility of referring to four decisions of the Court of Criminal Appeal involving s112(2) offences and the reference to sentencing statistics in relation to such offences is problematic. This is because s112(2) offences cover such a wide range of offending and factual circumstances. Observations to that effect were made in Marshall v R [2007] NSWCCA 24 per Howie J at [33], Thompson-Davies v R (supra) at [55] - [56]. Such a small sample of cases as was referred to by the applicant does not establish any sentencing range, particularly for an offence as broad as s112(2).
As has been often stated by this Court "to establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust". This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge." (Vuni v R [2006] NSWCCA 171 at [33].)
Similarly in Markarian v R [2005] HCA 25; 228 CLR 357 at [25] the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) said: "25 As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy". … 27 Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies."
It follows from that statement of principle, that a sentence is not wrong because it is not the same as the sentence imposed in what are said to be comparable cases, particularly when the facts of such cases are significantly different and where one is looking at a sentencing range.
As McHugh J said in Markarian: "65 Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation. At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case. There is no magic number for any particular crime when a discretionary sentence has to be imposed. … 66 This passage is not a testament of despair but a perceptive understanding of the reality of the sentencing process by one of the greatest judges that the common law system of justice has produced. It recognises that the judge must weigh all the circumstances and make a judgment as to what is the appropriate sentence. In R v Williscroft, the Full Court of the Supreme Court of Victoria referred to this value judgment as an "instinctive synthesis of all the various aspects involved in the punitive process." This was a candid recognition of the fact that in the end sentencing depends on the judge's assessment of what is the correct sentence. There is no objectively correct sentence, only a range of sentences that the majority of experienced judges would agree applied to the case. …"
Applying those principles to the facts of this case, it cannot be said that the sentence itself is reflective of error. The sentencing judge correctly identified the objective seriousness of the applicant's offending and found that general deterrence and specific deterrence were important elements in determining an appropriate sentence. He accurately recorded the aggravating features associated with these offences. The subjective features of the applicant were modest and did not significantly mitigate the objective seriousness of the offences. Although the applicant was intoxicated, this is not a mitigating feature. On the contrary, it demonstrated a propensity for violent behaviour when under the influence of alcohol and was indicative of a need for protection of the community and for specific deterrence.
Taking those matters into account, I am not satisfied that the sentence imposed was manifestly excessive. This ground of appeal has not been made out.
The orders which I propose are as follows: 1. Leave to appeal granted. 2. The appeal is dismissed.
JOHNSON J: I agree with Hoeben CJ at CL
HAMILL J: I agree with Hoeben CJ at CL.

Amendments 25 February 2015 - Omission of Judges' names on cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2015

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