[2015] HCA 9
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Panetta v R [2016] NSWCCA 85
R v Borkowski (2009) 195 A Crim R 1
[2009] NSWCCA 102
R v Thomson
R v Houlton (2000) 49 NSWLR 383
Source
Original judgment source is linked above.
Catchwords
[2015] HCA 9
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Panetta v R [2016] NSWCCA 85
R v Borkowski (2009) 195 A Crim R 1[2009] NSWCCA 102
R v ThomsonR v Houlton (2000) 49 NSWLR 383
Judgment (7 paragraphs)
[1]
Judgment
WARD JA: I have had the advantage of reading in draft RS Hulme AJ's reasons. I agree, for the reasons that his Honour gives, that grounds 2, 4 and 5 are not made out.
As to ground 3, the correctness of what was said in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 as to the range of discounts for the utilitarian value of a guilty plea, to which RS Hulme AJ has referred at [29]-[31], was not in issue (nor was it argued) in the present proceedings. It is not necessary for the determination of this appeal to express a view on the observations made by RS Hulme AJ at [33]-[34] and [36] and I do not do so. Suffice it to say that quantification of the discount is ordinarily a matter for the sentencing judge and the choice of 15% was in my opinion open to her. No error in her Honour's reasons has been disclosed. I am not persuaded that ground 3 has been made out.
Finally, I agree with RS Hulme AJ that her Honour erred in not taking into account the assistance given by the applicant and thus that ground 1, if understood as a "manifest excess" complaint, is made out. I agree, for the reasons that RS Hulme AJ gives, that on the re-exercise of the sentencing discretion the applicant should be sentenced as his Honour proposes. I therefore agree with the proposed orders.
DAVIES J: I agree with Ward JA and, with the qualifications expressed in her Honour's judgment, with the judgment of RS Hulme AJ.
RS HULME AJ: On 16 December 2013, this Applicant for leave to appeal was sentenced by Payne DCJ in respect of two offences of having sexual intercourse without consent, knowing the victim was not consenting, in circumstances of aggravation, namely that at the time the victim had a serious physical disability. One offence was committed on 21 September 2012 and in respect of that offence, and taking into account two matters on a Form 1, her Honour imposed a sentence of imprisonment of 8 years including a non-parole period of 5 years commencing on 2 February 2013.
In respect of the second offence, committed on 31 October 2012, her Honour imposed a sentence of 8 years including a non-parole period of 4 years commencing on 2 August 2016. The total effective sentence is thus one of 11½ years including a non-parole period of 7½ years.
The offences arose pursuant to s 61J(1) of the Crimes Act 1900 (NSW), which prescribes a maximum penalty of 20 years' imprisonment. A standard non-parole period of 10 years has also been prescribed.
The circumstances of the first offence are as follows. The victim, to whom I shall refer as "victim 2", was a resident of a nursing home. She was aged 82, had previously suffered a stroke, could not speak or communicate verbally, could not move well and could barely walk. The Applicant was a carer at the nursing home.
At about 4am on the day of the offence, the Applicant turned the victim's legs off the bed and assisted her into a position where her feet were on the ground and her stomach and chest on the mattress. He applied Sorbalene cream to her anus and then inserted his right index finger pushing it in and out. Another carer came into the room and observed the victim bent over the bed, the lights off and that the curtain was drawn.
The circumstances of the second offence were that at about 4am on 31 October he placed victim 2 in a position where her bottom was level with the edge of the bed. He applied cream to her anus and vagina, removed his semi erect penis out through his fly and inserted it into the victim's anus for a few seconds before leaving the room.
The offences on the Form 1, both of which were taken into account in the sentencing for the first offence charged, were of aggravated indecent assault contrary to s 61M(1) of the Crimes Act. The second of these offences also occurred on 31 October 2012 some two hours earlier than the charged offence. At that time he placed victim 2 into a position where her bottom was level with the side of her bed, pulled down her underwear and began rubbing her anus. He had his fly down but said he had changed his mind about getting his penis out.
Another carer Ms Watkins walked in at the time, observed that the curtains around the victim were closed and that the Applicant's fly was undone. Later Ms Watkins and another discovered cream around the victim's anus and vagina area. Another check by Ms Watkins, apparently after the second offence charged, found the victim lying with her bottom level with the edge of the bed and the sheets dishevelled. This was an unusual position, given the victim's limitations of movement.
The first offence on the Form 1 occurred on 31 October 2010 and involved another victim, "victim 1". That victim was observed by another carer to be in a semi-foetal position with her bottom level with the edge of the bed. She was wearing only a blouse, her pad had been removed, the Applicant had both hands on the victim's waist and his crutch was almost touching the victim's bottom. The other carer observed that the Applicant's pants zipper was down and there was a bulge in the front of his pants consistent with an erection.
Victim 1 was 46 years old at the time, suffered from Huntington's disease and as a result could not speak and had very limited control over her movements.
On 31 October 2012, the police were notified and commenced an investigation. On 13 November 2012 the Applicant participated in an electronically recorded interview in which he denied any wrongdoing in relation to victim 2. On 18 November 2012 he walked into Lake Illawarra Police Station and asked to speak to police. On that occasion, he volunteered that he had sexually assaulted victim 2 at about 4am on 30 October 2012 and, in the course of being interviewed at the police station, made full admissions of all the offences against her. Although subsequent to the 31 October offences the complainant had been subjected to a sexual assault examination, the result of which was not obtained, the Crown conceded that without the Applicant's admissions there would have been difficulty in proving the fact of any penetration. (Of course, 30 October is a date different from that specified as the date of two of the offences charged, but there is no suggestion that the Applicant was referring to different offences.)
Turning to the subjective factors, the Applicant was born in January 1971. He and his siblings were taken into care while young but he was adopted at age three and thereafter lived in a stable family environment. However, he described being sexually abused by an older foster sister at age 12 or 13.
His only prior recorded offence was of driving a vehicle whilst unlicensed and her Honour treated him as, prior to the subject offending, of good character. He was assessed by a psychologist as having an IQ in the lowest 1% of the population and suffering from a mild intellectual disability. The psychologist noted that nevertheless "in the practical domain his adaptive functioning appears to be reasonable in that he has been married and he has held down employment albeit with the assistance of his wife over the last several years." In fact he seems to have been employed ever since he left school, had been married twice and had a daughter to his first wife. Subsequent to the offences, his second wife left him. He however retains the support of his adoptive mother, brother and sister.
The psychologist also reported that depression and negative feelings of self-worth were prominent throughout his profile and he had a marked paranoid predisposition. She observed that his long term prognosis will largely depend on his response to treatment.
Since being incarcerated, the Applicant has been in protective custody or circumstances of limited association.
Despite his admissions, the Applicant did not plead guilty until he was arraigned in the District Court on 19 November 2013. The reasons for this are not apparent. He had been committed for trial on 8 May 2013 in respect of the three offences against victim 2. It was not until 2 October 2013 that he was committed for trial on the offence against victim 1. The Crown conceded that there had been some delay in the District Court in order that all matters could be dealt with together and acknowledged that prior to the Applicant pleading guilty there had been no preparation for trial.
Her Honour allowed a discount of 15% for the utilitarian value of the Applicant's plea, limiting her formal reasons on this topic to:-
In my view, an appropriate reduction for utilitarian considerations only is one of 15 percent.
In the course of submissions, the following discussion occurred:-
Her Honour: I see. So out of all of that do you say how many percent on arraignment? It was the day of the trial wasn't it?
Keay: No, it was never listed for trial.
Coulton: No your Honour, it was never listed.
Her Honour: It wasn't ever listed for trial. I see, one of those, 15%?
Coulton: Yes, and I do have some brief dot points which I'll hand up later, but that's certainly what I've indicated your Honour. It should just be the normal discount as per a plea in arraignment.
Mr Keay appeared for the Applicant, Mr Coulton for the Crown.
Her Honour accepted that the Applicant was remorseful but in view of the contents of the psychological report, remarked that his prospect for rehabilitation was guarded. Although making no express reference to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour accepted that a matter of significance was that weight should be given to the Applicant's attending the police station voluntarily and to his admissions of digital and penile penetration. What weight her Honour gave to this is not apparent although later her Honour observed that the Applicant's acknowledgement of the wrongfulness of his actions and the vulnerability of the complainant were factors which contributed to a finding of remorse. Her Honour concluded that there were special circumstances.
Her Honour regarded the Applicant's offending against victim 2 as more serious because of her vulnerability and all offending as aggravated by what her Honour described as a gross breach of trust. Her Honour noted that the offending had occurred where both victims were residing.
The grounds of appeal are:
1. The sentence imposed by her Honour Judge Payne of the District Court on 16 December 2013 was too severe.
2. Her Honour in sentencing the Offender erred in finding that the pleas, as a consequence of his full admissions to police on the 18 November 2012, were not effectively entered at the first available opportunity.
3. Her Honour in sentencing the Offender erred in allowing only a 15% reduction in sentence for the utilitarian value of the early pleas.
4. Her Honour erred in failing to take into account when sentencing the offender his being diagnosed as suffering a "mild intellectual disability".
5. Her Honour erred in calculating the appropriate accumulation of the Offender's sentences.
It is convenient to defer consideration of the first ground.
[2]
Ground 2
The "first available opportunity" that the Applicant had to plead guilty was during the committal proceedings. He did not then do so. Accordingly the second ground is not made out.
[3]
Ground 3
Although credit for pleas of guilty has long been a feature of sentencing, the origin of the current practice of quantified discounts is largely the product of the guideline judgment of this Court in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, where the Court laid down that discounts should generally lie in the range of 10-25%.
The topic has been considered in many cases since. It is sufficient for present purposes to refer to was said in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102. In that case an offender first pleaded guilty at arraignment, having participated in committal proceedings that were contested on at least one issue. The sentencing judge awarded a discount for the plea of 25%. Holding that the discount was erroneously high, Howie J, with the concurrence of McClellan CJ at CL and Simpson J, observed at [27]:-
In Thomson, the Chief Justice, when discussing the extent of the discount for the utilitarian value of the plea, stated:
[154] There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
Later, at [31]-[32], Howie J remarked:-
As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range.
It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application and are subject to the scheme set out in Criminal Case Conferencing Trial Act 2008 (NSW) and regulations made under that Act:
1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; R v Forbes [2005] NSWCCA 377 at [116].
…
12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.
The last of these principles is derived from the present judgment and is included for completeness.
There was no reasoning advanced in R v Thomson; R v Houlton for the proposition that "A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing …" and neither did Howie J advance any for his statement that "It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent.".
I have some difficulty with both of the statements. Prior to committal proceedings almost all investigative work will have been done, a brief containing virtually all of the material to be relied on by the Crown prepared and served and the matter reviewed by one or more officers of the DPP. Committal proceedings may be lengthy but are commonly very short, the matter being dealt with on the papers without any oral evidence. Assuming there is no change from a plea of "not guilty", between committal and trial, a deal of work is required. There will be a further review of the Crown case by the DPP, perhaps revision of the charges and negotiation between the DPP and Defence, the taking of steps to ensure that any gaps in the Crown case are closed, and counsel who is to prosecute mastering his or her brief. There may be conferences with witnesses. The extent of this work clearly justifies the conclusion that a plea of guilty at committal has a utilitarian value exceeding that of a guilty plea made on the first day of trial.
However my firm impression is that only a minority of this work occurs before what amounts to the first arraignment in the District or Supreme Court and which will often be only a limited time after committal and many months and perhaps years before trial. If, as is generally the case, a plea at committal inspires a 25% discount and one on the first day of trial a discount of only 10%, it seems to me that to allow only 15% for a plea at arraignment is to undervalue the utilitarian value of what occurs between arraignment and trial and to overvalue what occurs between committal and arraignment. Howie J was very experienced in criminal law and any views of his Honour in this area are entitled to respect but, particularly as he provided no reasons for the passage I have quoted, I feel entitled to disagree with it.
I have set out above Payne DCJ's reasons bearing on her selection of a 15% discount. There is no obvious error in what her Honour said in this regard during her formal remarks, but those made during the sentencing hearing give the impression that her Honour exercised no judgment but just followed a rule of thumb which was apparently known to Mr Coulton.
It may be of course that her Honour was just following the remarks of Howie J to which I have referred above and if so, it is difficult to criticise her, but I am certainly left with considerable disquiet as to the approach her Honour took. However, given the conclusion at which I have arrived in respect of ground 1, I do not need to come to a final conclusion in respect of this ground.
[4]
Ground 4
There was no evidence to connect any intellectual disability from which the Applicant suffered to his offending or to suggest it was likely to make his time in custody more difficult than usual. Given his clean record and history of employment there is nothing to suggest that disability was of significance to the sentencing exercise. Her Honour referred to the psychological report which amounted to the evidence of the Applicant's intellectual disability and I am not persuaded that her Honour was not fully conscious of its contents insofar as they are relevant to this ground.
The ground is not made out.
[5]
Ground 5
As has been said, the sentences imposed were of 8 years including a non-parole period of 5 years and 8 years including a non-parole period of 4 years. Her Honour made the non-parole periods concurrent to the extent of 18 months, resulting in an effective non-parole period of 7½ years.
Although both offences involved the same victim, they were committed a month apart and involved their own distinct criminality. As with many other aspects of sentencing, the extent to which offences should be accumulated or made concurrent is very much a matter of discretion.
This Court has pointed out on a number of occasions that the severity of a sentence increases disproportionately with length and the increases of 2½ years in the effective non-parole period and 3½ years in the effective total sentence are heavy. However, I am not persuaded that, against the background of the offending and the length of the individual sentences her Honour imposed, the increases were outside the legitimate exercise of her sentencing discretion.
This ground also fails.
[6]
Ground 1
That a sentence is "too severe" does not constitute a ground for this Court interfering. The Crown assumed that ground was intending to allege "manifest excess" and I shall so treat it.
One matter that merits specific mention in the context of this ground and which her Honour and both parties accepted was entitled to weight was the Applicant's voluntary attendance at a police station and there admitting the digital and penile penetration. Counsel for the Applicant relied on this factor as one entitling the Applicant to a greater discount than he received for his plea. As the discount for a plea is for its utilitarian value, the submission must be rejected, but the Court raised with the Crown that the Applicant's conduct was a matter that her Honour should have taken into account under the Crimes (Sentencing Procedure) Act s 23 and did not. So far as is presently relevant that section and a further relevant section provide:-
23 (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(a) (Repealed)
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:
(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and
(b) state the penalty that it would otherwise have imposed, and
(c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason.
(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
…
101A A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence.
Counsel appearing for the Crown accepted that her Honour had not mentioned the provision and thus may have erred but submitted that even if s 23 was taken into account this Court would not interfere with the sentence imposed.
Whatever may have been the understanding earlier, it is now clear that the assistance the Applicant provided by confessing to the offences, including penetration of victim 2, constitutes assistance within the section - CMB v Attorney General (New South Wales) (2015) 243 A Crim R 282; [2015] HCA 9 at [41], [71]; Panetta v R [2016] NSWCCA 85 at [33]-[34]. Demonstrably that assistance went further than being relevant merely to the issue of remorse as her Honour seems to have limited its significance.
I have also said enough to demonstrate that the assistance given by the Applicant was significant enough to entitle him to a discount under the section. It is not apparent from her Honour's reasons that her Honour took this section into account, which leads to the conclusion that her Honour erred in this regard and accordingly this Court is required to exercise the sentencing discretion afresh - Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
The nature, circumstances and consequences of the Applicant's assistance are such that paragraphs (f) to (h) of s 23(2) have no relevance but the others do. Furthermore, in assessing the significance of the assistance, it is relevant to bear in mind that, without the Applicant's admissions, the Crown may still have been able to prove penetration and in any event would seem to have had some prospect of obtaining a conviction for aggravated sexual assault in respect of the two incidents the subject of the sexual intercourse charges. Of course, the penalty for aggravated sexual assault of 7 years' imprisonment is much less than the 20 years' imprisonment to which the Applicant was liable for the sexual intercourse offences.
The general practice for years when discounts are given for a plea and assistance has been to combine the discounts. Sub-section 23(4) makes that practically impossible.
In sentencing the Applicant for the first offence charged, the Form 1 matters have to be taken into account. In sentencing the Applicant for the second offence charged, recognition should be given to the fact that the intercourse on that occasion was penile whereas that the subject of the first charge was digital. In the circumstances, and taking account of all of the matters to which I have referred, I would commence my determination of the appropriate sentences with a starting point for each of 9 years. I would apply a discount of 20% for the Applicant's guilty pleas for each offence, leading to a total sentence for each offence of, in round figures, 86 months. I would reduce this figure for assistance to the authorities by 8 months, resulting in a final figure of 6 years and 6 months for each sentence.
Her Honour found special circumstances, a conclusion with which I agree both because this is the Applicant's first time in custody and because there will be an accumulation of sentences. However, there is no reason why the non-parole period of the first sentence to be served should not be the 75% contemplated by s 44 of the Crimes (Sentencing Procedure) Act, i.e., in round figures, 58 months. In the case of the second sentence to be served I would fix the non-parole period at 3 years and 6 months and commence it so that the total effective non-parole period is 6 years and the effective total sentence is 9 years. For the purposes of s 23(4) I record that but for the assistance the Applicant has rendered I would have proposed sentences each of 7 years and 2 months, an effective total sentence of 10 years and an effective non-parole period of 7 years.
Accordingly the orders I propose are:-
1. Grant leave to appeal;
2. Allow the appeal;
3. Quash the sentences imposed by Payne DCJ on 16 December 2013;
4. In respect of the first count on the indictment dated 19 November 2013 and taking into account the offences on the Form 1 signed by the Applicant on 16 November 2013, sentence the Applicant to imprisonment for a non-parole period of 4 years and 10 months commencing on 2 February 2013 together with a further term of 1 year and 8 months;
5. In respect of the second count on the indictment dated 19 November 2013, sentence the Applicant to imprisonment for a non-parole period of 3 years and 6 months commencing on 2 August 2015 together with a further term of 3 years;
6. Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole 2 February 2019.
For the purposes of s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) it should be recorded that, but for the assistance the Applicant has rendered, the sentences imposed would have been:
1. imprisonment for 7 years and 2 months, including a non-parole period of 5 years and 4 months, and
2. imprisonment for 7 years and 2 months, including a non-parole period of 4 years and 2 months, and
3. an effective total sentence of 10 years including non-parole periods totalling 7 years.
[7]
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: 27 June 2019