Lee v Regina [2016] NSWCCA 66 | Case summary

Manifest excess

There remains a question as to whether the sentence imposed was manifestly excessive. There are three factors which might support such a conclusion. First, according to the sentencing statistics available for this State, the non-parole periods for the indicative sentences were undoubtedly at the high end of the range. Thus, of 133 cases involving non-parole periods for non-consecutive terms, between April 2008 and March 2016, only six offenders received higher sentences. With respect to the terms of sentences, again only six offenders received higher sentences and, taking the category of consecutive and non-consecutive terms (211 cases) only 16 offenders received higher sentences. However, these figures did not distinguish between those who had pleaded guilty and those who had gone to trial. Furthermore, the sentences were relatively evenly spread between two years and 10 years, reflecting the variety of the seriousness of the offending and, no doubt, the subjective circumstances of the offenders.
If there were more useful statistics available, they were not provided to the Court. All that can be said on the basis of this information is that the sentences indicated as appropriate in relation to the individual offences committed by the applicant were towards the top of the range, assessed with respect to the severity of the sentences, whereas the objective gravity of his offending was characterised as mid-range.
Secondly, the sentencing judge was presented with a table of sentences imposed over the years, most of which involved oral sex by male offenders with both male and female victims. At least one case pre-dated the enactment of standard non-parole periods and hence should be disregarded. The sentencing judge stated that he had not found the other cases very helpful, in part because the sample was relatively small. However, he did make express reference to Greenwood v Regina, [2] which was in fact the case involving the highest individual sentence. There the trial judge had imposed a sentence of 4 years 6 months, with a non-parole period of 3 years and 4 months; the Court of Criminal Appeal dismissed the offender's appeal.
The victim in Greenwood was an 18 year old woman, who had become inebriated to the point of losing consciousness. Whilst alone with her in a car, the offender removed her clothing and engaged in cunnilingus. In imposing the sentence, the trial judge had noted that "while the offences did not involve force, coercion or violence (largely because the victim was unconscious) they were nevertheless serious because of that very vulnerability - a vulnerability of which the applicant was aware and of which he took full advantage." [3] The offence was characterised as below the mid-range for an offence of that kind. The offender had favourable personal circumstances (a number of offences for physical violence apparently being related to the breakup of his marriage) and had "good prospects of rehabilitation." [4] There was no evidence of remorse; the occasion would be the first period of imprisonment. While the Court reiterated statements that the nature of the sexual intercourse is not to be considered in isolation and then "ranked in some form of hierarchy" there is no reason to suppose that an offence involving penile penetration could not have been considered more serious.
Noting the penalty imposed in Greenwood, the trial judge in the present case remarked that, "I do not consider that to be particularly helpful and I do consider a sentence of that magnitude generally to be manifestly inadequate." Having regard to the fact that there was no suggestion supportive of that view in the reasoning of the Court of Criminal Appeal, the case might have been treated as an indication of a sentence which was not outside an appropriate range. However, on the basis that the present offending could properly be characterised as within the mid-range, there was nothing in Greenwood which demonstrated that a non-parole period which was approximately one-third greater would be manifestly excessive.
Apart from the conventional description of the standard non-parole period as a guideline to the sentencing judge, there must be a real question as to whether an error of principle can be demonstrated in circumstances where the indicative sentences for each offence are about 75% of the standard non-parole period and (a) their objective gravity was characterised as mid-range, (b) the offender was convicted after a trial, with no discount available for a plea, (c) the offender had a prior criminal record which deprived him of any claim to leniency on that account and (d) his personal circumstances were not such as to warrant leniency.

Conclusion

Having regard to the various factors set out above, I agree with McCallum J that the sentencing process did not miscarry. I also agree that there should be a grant of leave to appeal against sentence, but that the appeal should be dismissed.
McCALLUM J: Hoe Fatt Lee seeks leave to appeal against the sentence imposed upon him in the District Court after he was found guilty by a jury of three counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty for each offence was a term of imprisonment for 14 years. A standard non-parole period of 7 years applied to each offence: s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW), item 7 of the Table.
Instead of imposing a separate sentence for each offence, the judge imposed an aggregate sentence, as allowed under s 53A of the Crimes (Sentencing Procedure) Act. The sentence was a term of imprisonment for 11 years with a non-parole period of 7½ years and a balance of term of 3½ years. The sentence was fixed to commence on 12 February 2013 (the date on which the applicant was arrested) and expires on 11 February 2024. The applicant will be eligible for release to parole after the expiration of the non-parole period on 11 August 2020.
The offences were committed against different men on different dates but had common features. Each victim was a young man in a state of extreme intoxication. In each case, the applicant approached the victim at Central railway station late at night and offered him a lift home. In each case, the applicant then drove the victim to a more secluded place and performed fellatio on him while the victim was either unconscious or barely aware of what was happening.
The first offence was committed in April 2009. The victim in that case had been celebrating the mid-semester break from university and had consumed a large amount of alcohol. At about 1 am he found himself at Central railway station. He was so intoxicated that he was losing his balance and throwing up. The applicant approached him and offered him a lift, saying that he was going in the same direction as the victim.
When he was dropped off at his house, the victim found his fly undone. His penis was in significant pain and his foreskin had been rolled back, prompting him to seek medical attention (and, presumably, to report the matter to police).
The second offence occurred in December 2010. The victim was an electrician from Sweden on a working holiday. He had been drinking at a barbeque and later at a bar near Central. After going to the bathroom at the bar, the next thing he recalls is waking up in a car with a man (the applicant) "going down" on him.
The third offence was committed in February 2012. The victim was another tourist. He had been drinking at the Rocks for a number of hours and began to feel strange and incapacitated. He walked to a train station and recalls sitting up against a wall before everything went black. His next recollection was of waking up in a car in the back seat with his trousers down and the applicant performing oral sex on him.
The evidence at the trial is not before this Court. According to the transcript of the proceedings on sentence, the applicant was charged with the offences on the strength of a "cold case" DNA match. The sentencing judgment records that the applicant gave evidence at trial that none of the victims was intoxicated and that each was awake and was a willing participant in the sexual intercourse in question. The jury's verdicts reject that account.
The judge considered each of the offences to be within the mid-range of objective seriousness. His Honour accepted a submission put by the Crown that the two later offences should be regarded as more serious being the second and third offence respectively. Separately, however, his Honour noted the aggravating factor of the first offence that the victim had sustained an injury to his penis, albeit one the judge evidently accepted had been inflicted inadvertently.
As required by s 53A(2) of the Crimes (Sentencing Procedure) Act, the judge indicated the sentences that would have been imposed had an aggregate sentence not been imposed. The indicative sentences were: 1. for the first and third offences, imprisonment for eight years with a non-parole period of five years and four months and a balance of term of two years and eight months; 2. for the second offence, imprisonment for seven years and nine months with a non-parole period of five years and two months and a balance of term of two years and seven months.
The applicant had prior convictions relating to offences committed in 1998, namely three acts of indecency with a person under 16, one offence of stalking and an aggravated indecent assault. The facts relating to those convictions were before the sentencing judge in the present matter.
In summary, the applicant made several approaches to a 13 year old boy over several weeks as the boy walked through a park on his way to school. On the first occasion the applicant showed the boy pornographic magazines and explained them to him. On a later occasion he showed the boy a condom with an instruction sheet and explained the instructions. On a third occasion he again showed the boy the pornographic magazines, put his arm around him and touched him on his genital area through his school pants. The boy was by this time very frightened of the applicant and had been trying to avoid him. The stalking charge related to three further occasions when the applicant attempted to approach the boy. After the matter was reported police kept the boy under surveillance; they arrested the applicant after a further attempted approach. On that occasion he was carrying a backpack containing eight pornographic magazines, condoms with an instruction sheet and tissues.
The applicant also had a conviction for offensive behaviour in 2008 but there was no reliable account of the facts of that offence before the sentencing judge. It appears to have related to an incident in a public toilet. The judge did not rely on the criminal record as an aggravating factor under s 21A of the Crimes (Sentencing Proceedings) Act but considered that the record deprived the applicant of any entitlement to leniency.
A pre-sentence report prepared for the purpose of the present matters recorded that the applicant agreed with the facts but "denied knowledge that it was an offence to perform sexual acts on a person that was unconscious as a result of being heavily intoxicated". Those remarks echo the position adopted by the applicant in respect of the 1998 matters as recorded in the pre-sentence report prepared for those proceedings, which stated that the applicant was co-operative during the preparation of the report but that "it seemed that he minimised his offending behaviour by indicating that he did not know that it was a serious offence to show materials; contraceptive aids and magazines that would aid in the boy's sexual education".
The applicant's claimed ignorance of the criminality of his conduct in the present matters rings hollow in that context. It is also in tension with his evidence in the trial to the effect the victims were conscious and willing participants in the sexual intercourse. The judge considered that the material revealed a "history of self-justification and a history of minimising the conduct".
The applicant relies on six specific alleged errors as well as a ground that the sentence imposed was manifestly excessive. It is appropriate to deal first with the specific errors alleged.
Ground 2 is that the judge erred in: "finding 'a systematic exploitation of intoxicated young men' and 'on the prowl' and 'systematic and calculated'" (as written).
It is appropriate to consider the relevant passage in full. The judge said: It is said that these were spontaneous offences. They were part of a systematic exploitation of intoxicated young men who were essentially helpless. The offender was on the prowl, seeking out young men to fellate regardless of consent and whatever view one takes of it these are serious examples of the offences contrary to this particular section. There was a calculated sexual exploitation of the vulnerable. I appreciate that I need to consider the discrete sentences in each case but the course of conduct to some extent does inform the degree of deliberation and determination. As I said these were systematic and calculated, each victim was degraded and humiliated.
The complaint made by ground 2 appears to be that it was not open to the sentencing judge to describe the applicant's conduct as being "systematic" or "calculated". The only submission put to support that ground was the observation that each offence was separated by period of about 18 months. It was submitted on that basis that the offences were accordingly not "systematic" but at most "opportunistic exploitation" of drunken men.
The findings complained of expressly responded to a submission put below that the offences were spontaneous. Even if each individual offence entailed a measure of spontaneity or opportunism, there was a pattern of offending revealing a degree of calculation that was plainly relevant to the sentencing task. In my view, the similarities between the three offences afforded support for the judge's findings. Ground 2 should be rejected.
Grounds 3 and 4 are that the judge erred in: "finding they are 'serious examples of the offences contrary to this section'. finding the offences were in the mid-range of objective seriousness".
The applicant sought to support those grounds by listing a series of features absent from his offending. He submitted that the offences were not serious examples of offences against s 61I, and did not fall in the mid-range of seriousness of that offence, because there was no penetration of the complainants' bodies or the leaving of semen; there was limited appreciation by the complainants of what had happened to them (due to their states of intoxication); the state of intoxication of each victim was not due to any action on the part of the applicant and there was no physical force or violence or fraud or threats made.
As submitted by the Crown, it does not follow from the fact that an offence under s 61I can involve more serious features not present in the applicant's offending that the offences were below mid-range. The judge correctly observed that the assessment of the seriousness of an offence of sexual intercourse without consent necessarily depends on the facts and circumstances of the individual case. This Court has frequently observed that that is an assessment which is quintessentially for the sentencing judge. In Mulato v R, [5] Simpson J, as her Honour then was, agreeing "most emphatically" at [45]-[46]: 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.
Justice Simpson's separate judgment emphasised the importance of respecting the role of a first instance judge "not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses" but "because it is a fundamental aspect of the appellate system." Her Honour said "each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance".
Whilst I would respectfully agree with those remarks, the evaluation of the evidence is an additional consideration militating against interference in this case. The sentencing judge presided over the trial and heard the evidence of the victims and the applicant. None of that material is before this Court.
The factors listed by the applicant as being absent from his offending do not, in my view, mandate the conclusion that the offences were below mid-range. I do not think the act of fellatio can be said to be intrinsically less serious than a sexual assault involving penetration. This Court has held that it is wrong to attempt to rank forms of forced sexual intercourse in a hierarchy for the purpose of determining their objective seriousness: Doe v R. [6] As Bellew J said, the objective seriousness of such offences is to be determined according to the entirety of the facts and circumstances of the case in question. A similar approach may be taken in relation to non-consensual acts, where the victim is an adult who temporarily lacks the ability to consent.
The sentencing judge in the present case gave careful consideration to the facts and circumstances of the offences including the nature of the intercourse (fellatio), the vulnerability of each victim and the degradation and humiliation to which each was subjected. In my view, as submitted by the Crown, it was well open to the judge to describe the offences as "serious examples of the offences contrary to this particular section" and to find that the offences were in the mid-range of objective seriousness. Grounds 3 and 4 should be rejected.
Grounds 5, 6 and 7 were addressed together by the applicant. They are that the judge erred in: "paying insufficient weight to the appellant's risk of re-offending and finding against the weight of the evidence without explaining rejection." "Paying insufficient weight to the appellant's evidence of character and remorse". Finding the appellant 'I do not consider that the offender has good prospects of rehabilitation and I cannot conclude he is unlikely to re-offend' ignoring the evidence before him and not it explaining it's (sic) rejection" (as written).
Those grounds are entirely without merit. The applicant argues, in substance, that the sentencing judge was obliged to accept the pre-sentence report, which provided an actuarial risk assessment assessing the applicant as "a low risk of offending", and the opinion of a psychiatrist, Dr Olav Neilssen, that the applicant is "at low risk of re-offending".
The judge felt unable to make a finding one way or the other as to the likelihood that the applicant would re-offend. As already noted, the circumstances of the applicant's earlier offending and his failure to acknowledge the criminality of his recent offending (set out above) were before the sentencing judge. In that context, the judge said: In my view the offender continues to minimise his conduct and I do not consider that the offender has good prospects of rehabilitation on the evidence and I cannot conclude that he is unlikely to reoffend on the evidence; I just do not know one way or the other".
In his discussion of that issue the judge expressly acknowledged Dr Neilssen's opinion that the applicant is "at low risk of re-offending". Although the judge did not expressly refer to it, there was material before his Honour which revealed that the applicant gave a much-diluted account of his earlier offending to Dr Neilssen, as follows: Mr Lee said that he had a criminal conviction from about fifteen years ago from showing a young man a pornographic magazine, for which he received a community service order. He said that the young person told a school teacher and he was identified and arrested the following day".
In fact, the material before the sentencing judge (not available to Dr Neilsson) revealed that the applicant approached the boy many times over several weeks; that on one occasion he touched the boy's genital area and that he was convicted of four offences including stalking.
The judge did not make a positive finding that the applicant was likely to reoffend. He observed, unexceptionably, that the applicant's likelihood of reoffending "will depend on whether he embraces some of the programmes and whether they can effect some type of change in his behaviour". The judge was not obliged to make a finding in the exact language of Dr Neilssen's opinion. There was no error in his approach. Grounds 5, 6 and 7 must be rejected.
I return to ground 1, which is that the sentence imposed was manifestly excessive. In addition to the specific submissions made in support of the other grounds, this ground rested primarily on a consideration of the sentencing statistics maintained by the Judicial Commission. The applicant submitted that the sentence imposed in the present case is "higher than all of those in the statistics". That submission was based on a misconception; it compared the aggregate sentence imposed in the present case with sentences imposed for individual offences in the statistics. Comparing the sentences indicated for each individual offence in the present case with the statistics, the indicative sentences in the present case were within the range of those recorded in the statistics but certainly toward the top of that statistical range. As noted by the Crown, the statistics are of limited assistance, since they do not identify the aggravating or mitigating factors of the offences dealt with.
The applicant observed (without any helpful analysis or even a citation for the decision) that the sentence imposed on him was "longer than the Hey Dad star Robert Hughes who was convicted of 10 charges with complainants aged between 7 and 15, was in a position of trust and received a sentence of 10 years 9 months and a non-parole period of 6 years". The comparison is unhelpful. As submitted by the Crown, it involved offending of a different nature giving rise to different charges with different, lower maximum penalties and was determined under a different, more lenient sentencing regime: Hughes v R. [7]
The Crown referred to a number of decisions with which more pertinent comparison can be made. Of those, perhaps the most relevant is the decision of this Court in Ewen v R, [8] the complainant in that case had gone to a person's house with a view to choosing a puppy. The afternoon developed into something of an impromptu party and she became intoxicated by drugs and alcohol. The facts of the offence were summarised by Simpson J as follows: During the evening, others came and went…a cousin of the complainant arrived sometime between 10.00pm and 11.00pm. Amphetamines were produced and consumed. The group sat around a table in the back yard. The complainant continued to drink the bourbon. She had become moderately affected by the alcohol. Sometime after midnight, [another woman] borrowed the complainant's telephone. Not long after that, the appellant and another man arrived and joined the party. A little later the complainant was preparing to leave. The appellant, who was standing in the doorway of a bathroom, invited her to join him, saying that he had something to show her. He ushered her into the bathroom, shut the door, pushed her head down and forced her to perform fellatio upon him. The complainant lost consciousness for a time. When she recovered, she was lying on the floor, partly undressed. The appellant was behind her, having penile/vaginal intercourse. The complainant told the appellant that he was hurting her and asked him to get off her. He left the room.
The appellant in that case was sentenced for other matters in addition to the two sexual assaults. On the first count of sexual intercourse without consent the judge imposed a sentence of 8 years with a non-parole period of 6 years and a balance of term of 2 years. On the second count of sexual intercourse without consent, his Honour imposed a sentence of 10 years with a non-parole period of 6 years and a balance of term of 4 years accumulated by 1 year on the earlier sentence.
The Court rejected an appeal against sentence. One of the grounds relied upon was that the severity of the sentences did not reflect the judge's findings that the offences were of mid-range objective gravity. Rejecting that ground, Simpson J confined herself to the following observation (at [232]): "the maximum sentence applicable is imprisonment for 14 years. The standard non-parole period of 7 years is a relevant guidepost": Muldrock v The Queen. [9]
To the extent that the statistics are helpful, they suggest that the aggregate sentence imposed in the present case was stern. However, I have not been persuaded that it was excessive to the extent of revealing latent error. The orders I propose are that leave to appeal be granted but that the appeal be dismissed.
DAVIES J: I agree with McCallum J and with the additional remarks of Basten JA.

Lee v Regina

At a glance

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