Moore v R

Court of Criminal Appeal (NSW)|2024-05-31|Before: Harrison CJ, Davies J, Sweeney J

(No 2) (1988) 164 CLR 465; [1988] HCA 14 Texts Cited: Nil Category: Principal judgment Parties: Michael Moore (Applicant) The King (Respondent) Representation: Counsel: R Rodger (Applicant) E Wilkins SC (Respondent)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2022/15706 & 2022/16601 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 3 March 2023 Before: Ellis DCJ File Number(s): 2022/15706 & 2022/16601

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Michael Moore, pleaded guilty to seven counts comprising two charge sets. Charge Set 1 included two counts of assault occasioning actual bodily harm and two counts of sexual intercourse without consent. Charge Set 2 comprised three counts of act with intent to influence a witness, aggravated detain for advantage and intentionally choke. The applicant was sentenced to imprisonment for 10 years with a non-parole period of 6 years 6 months expiring 18 July 2028. The offending took place over a six month period when the applicant and the complainant were in a sexual relationship. The relationship was characterised by domestic violence. On two separate occasions the complainant was taken to hospital with injuries inflicted upon her by the applicant. In August 2021, the applicant filmed himself having sexual intercourse with the complainant whilst she was unconscious. The offences were accompanied by a number of degrading acts, including slapping and spitting. The second charge set involved the applicant interrogating the complainant about her going to the police, physically abusing her and refusing to let her out of the car for approximately 90 minutes. The applicant did not give evidence at the sentence hearing. He relied chiefly on a report from the psychologist that disclosed a traumatic childhood characterised by domestic and sexual violence. The applicant was also diagnosed with drug use disorders, PTSD and anti-social and borderline personality traits. The sentencing judge reduced the applicant's moral culpability by reason of Bugmy factors (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37) and made a finding of special circumstances. The sentencing judge determined that the objective seriousness of the two sexual offences was at the lower end of the mid-range and slightly above the middle of the mid-range respectively. His Honour considered a submission that the violent acts perpetrated against the complainant were less serious by reason of the sado-masochistic sexual relationship that the applicant and the complainant had. The applicant sought leave to appeal against his sentence on three grounds: Ground 1: The sentencing judge erred in failing to have regard to relevant principles applicable to offenders with mental health issues and to whom Bugmy factors apply, including that less weight be placed on general and specific deterrence and/or failing to give reasons in that regard; Ground 2: The sentencing judge erred in the finding of objective seriousness in relation to the sexual assault offences; and Ground 3: The overall term of imprisonment is manifestly excessive. The Court (per Davies J, Harrison CJ at CL and Sweeney J agreeing) held, dismissing the appeal: As to Ground 1: (1) Where no submission was made about a causal connection between the applicant's background, mental health and the offending, the sentencing judge was not obliged to refer to every part of the psychological report and to make a separate link that had not been not put to his Honour: [1] (Harrison CJ at CL); [64]-[67], [71]-[73], [75] (Davies J); [109] (Sweeney J). Lloyd v R [2022] NSWCCA 18, distinguished. (2) Notwithstanding the applicant's reduced moral culpability, the sentencing judge did not err by giving weight to general and specific deterrence, particularly given the applicant's criminal record and the violence involved in the offending. The weight given to general and specific deterrence is a matter entirely for the sentencing judge: [1] (Harrison CJ at CL); [70], [75] (Davies J); [109] (Sweeney J). Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, cited. As to Ground 2: (3) The objective seriousness of sexual offences is not reduced by reason of what the parties had previously agreed to participate in. In circumstances where the offending was degrading, violent and took advantage of the complainant whilst she was unconscious, the sentencing judge's findings of objective seriousness were entirely open to his Honour: [1] (Harrison CJ at CL); [84]-[87] (Davies J); [109] (Sweeney J). Bussey v R [2020] NSWCCA 280, cited. Mulato v R [2006] NSWCCA 282, R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556, followed. As to Ground 3: (4) A consideration of "comparable" cases put forward by the applicant reveal that the indicative sentences for the sexual intercourse offences and the aggregate sentence were not excessive or plainly unjust. Comparisons were of limited utility given the number of offences and seriousness of the offending which revealed a serious course of domestic violence over a six month period: [1] (Harrison CJ at CL); [90]-[105] (Davies J); [109] (Sweeney J). Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528, cited. Mattiussi v R [2023] NSWCCA 289; Pender v R [2023] NSWCCA 291; Horne v R [2023] NSWCCA 276; Harper v R [2022] NSWCCA 211, distinguished.

Judgment

HARRISON CJ AT CL: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Local Court to the following offences:

Charge Set 1 (H 85198470) Sequences 3 and 5: Assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 5 years and there is no standard non-parole period. Sequences 1 and 10: Sexual intercourse without consent contrary to s 61I of the Crimes Act. The maximum penalty for this offence is imprisonment for 14 years and there is a standard non-parole period of 7 years. Each of these sequences had an offence on a Form 1 of intentionally record an intimate image of another person without consent contrary to s 91P(1) of the Crimes Act (sequences 9 and 11 respectively). The maximum penalty for this offence is imprisonment for 3 years and there is no standard non-parole period.

Charge Set 2 (H 85635940) Sequence 24: Act with intent to influence a witness to procure an acquittal contrary to ss 323(a) and 324 of the Crimes Act. The maximum penalty for this offence is imprisonment for 14 years and there is no standard non-parole period. Sequence 22: Aggravated detain for advantage with intent to commit a serious indictable offence (namely intimidation) and occasion actual bodily harm contrary to s 86(2) of the Crimes Act. The maximum penalty for this offence is imprisonment for 20 years and there is no standard non-parole period. The serious indictable offence of intimidation appeared on a Form 1 attached to sequence 22 (sequence 23). The maximum penalty for this offence is imprisonment for 5 years and there is no standard non-parole period. Sequence 11: Intentionally choke contrary to s 37(1A) of the Crimes Act. The maximum penalty for this offence is imprisonment for 5 years and there is no standard non-parole period. Two offences were attached on a Form 1 to sequence 11 being assault occasioning actual bodily harm (sequence 17) and damage property contrary to s 195(1)(a) of the Crimes Act (sequence 19). The maximum penalty for that latter offence is imprisonment for 2 years.

The applicant also pleaded guilty to an offence on a s 166 certificate of administering a prohibited drug contrary to s 13(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (sequence 20). The maximum penalty for this offence is imprisonment for 2 years and there is no standard non-parole period.
On 3 March 2023, the applicant was sentenced by Judge Ellis in the District Court to an aggregate sentence of imprisonment for 10 years commencing 19 January 2022 and expiring 18 January 2032 with a non-parole period of 6 years 6 months expiring on 18 July 2028. I will specify the indicative sentences when summarising the offending.

The offending

Judge Ellis sentenced the applicant on the basis of a Statement of Agreed Facts. The following account is largely taken from Judge Ellis's summary of those agreed facts.
At the time of the offending, the complainant was aged 32 and the applicant was aged 43 and 44. The parties met in about 2019, and in June 2021 the complainant moved into the applicant's house. They began to consume drugs together, predominantly GHB, and they commenced a sexual relationship in June 2021.

Charge Set 1

Sequence 3, assault occasioning actual bodily harm, occurred on 26 June 2021. The assault lasted for approximately five minutes, and it involved the applicant slamming the complainant's head against a tiled wall on numerous occasions, and then punching and spitting on her. It occurred within the applicant's home. The complainant started to bleed heavily from the head. The applicant started to panic and drove the complainant to Maitland Hospital. He apologised and begged her not to tell anyone. Records from Maitland Hospital say that the complainant said that she had fallen over in the shower.
The sentencing judge found that the criminality fell within the midrange of offending. The indicative sentence was imprisonment for 1 year 6 months.
In July 2021, the parties moved to an address in Hamilton South. They both continued to use GHB. The use of GHB would occasionally mean that the complainant passed out and slept heavily. The applicant began filming when he and the complainant had sexual intercourse. Although uncomfortable with this, the complainant agreed to it on occasions.
In August 2021 the applicant complained to the complainant that she was always drugged and falling asleep midway through sex so that he had to hit her to wake her up. After the argument that ensued, the complainant went through the applicant's phone and found two videos which he had filmed whilst she was unconscious after GHB use. The video depicted that the complainant was unconscious when the applicant performed cunnilingus on her. The offence was accompanied by a number of degrading acts as well as acts of violence, including slapping her face, breast and vagina. That constituted sequence 1.
Early in the relationship the parties agreed that on occasions they would film their sexual activity with the intention of selling the videos for financial gain. They agreed to make videos that included the use of sexual toys as well as dominating and degrading behaviour including such things as choking. However, the agreement did not extend to the taking of videos whilst the complainant was unconscious.
The sentencing judge found that the criminality of sequence 1 was in the midrange, but he added "[a]lbeit, arguably at the lower end of the midrange". His Honour indicated a sentence of 3 years 9 months with a non-parole period of 2 years 6 months, taking into account the offence on the Form 1 (sequence 9 - the filming offence).
Sequence 10 is a further count of sexual intercourse without consent. The offence occurred at about the same time as sequence 1. It also involved the act occurring whilst the complainant was passed out, and was the second video the complainant discovered on the applicant's phone. The act of intercourse involved the applicant penetrating the complainant's anus with his thumb repeatedly. The sexual intercourse was accompanied by degrading conduct and acts of violence such as slapping her face and her vagina, and spitting.
The sentencing judge found that the matter fell within the midrange but he added "probably slightly above the middle of the midrange". His Honour indicated a sentence of 4 years 6 months with a non-parole period of 3 years taking into account the offence on the Form 1 (sequence 11 - the second filming offence).
The next offence in time was a further offence of assault occasioning actual bodily harm (sequence 5). It occurred in November 2021 when the parties got into an argument at home about messages on the complainant's phone. The applicant punched the complainant to the head, bit her on the nose and grabbed her around the throat. The assault lasted for about five minutes. The complainant was bleeding from the head, and the applicant took her to John Hunter Hospital.
Medical records from the hospital say that the complainant suffered a laceration to the right forehead, a laceration to the bridge of her nose from a bite, and a bruise to her forehead. The medical records also disclosed that the complainant told the staff that the injuries were sustained during a prolonged attack by her "ex-partner".
The sentencing judge found that the matter fell within the midrange of offending. His Honour indicated a sentence of 1 years 6 months.
In relation to all of these offences, the sentencing judge noted that the offences were committed in the complainant's home, presumably to indicate that as an aggravating factor.
On 5 January 2022, the complainant attended Gosford Police Station. She provided a statement and showed the police the videos (constituting sequences 9 and 11) which she had transferred from the applicant's phone to her phone.

Charge Set 2

The remaining offences occurred on 15 January 2022. On that day, the complainant was to meet with the police at Newcastle Police Station, following her initial visit on 5 January 2022. She was waiting at Lisarow Railway Station for a train when she saw a white utility in the carpark with the applicant in the driver's seat. She approached the car and spoke to the applicant. He offered to give her a ride to Newcastle. Shortly after she entered the car, the applicant started arguing with her about a man called Dustin.
The applicant then interrogated the complainant about her going to the police and reporting his conduct. He told her she was not to see the police. When she insisted that she was going to the police, he told her what she was to say to them. He told her that she had to get him off everything. The sentencing judge characterised it as being pressure placed on her to participate in a lie to deny what she had previously told the police he had done. That constituted sequence 24. The sentencing judge found that the offending fell below the midrange. His Honour indicated a sentence of 1 year 3 months.
Following the conversation about the police, the applicant returned to the topic of Dustin. He punched her in the face and told her not even to try to get out of the car. He pulled her hair and slapped her across the head. She screamed and begged him to stop.
He kept abusing her and accused her of lying. He told her he would put her in the boot. He took her phone and told her he was going to jump on her face and smash her. He squeezed her fingers and told her that every time she lied to him he was going to break one of her fingers. The complainant was kept in the car for approximately 90 minutes. As a result of the assaults she had bruising to her face. This detaining of the complainant constitutes sequence 22. The sentencing judge found that the offending was at the lower end of the midrange or just a little below the midrange. His Honour indicated a sentence of 3 years 9 months taking into account the Form 1 (sequence 23 - intimidation).
At one stage the applicant choked the complainant to the point where she felt she could not breathe. The choking constituted sequence 11.
Thereafter, the applicant drove the utility to a friend's place. The friend was the owner of the utility. The applicant told the complainant that they were going into the house to have a shot of methylamphetamine. The complainant did not want to but the applicant told her that she was. He again hit her and threatened to break her jaw. He spat at her twice.
Whilst they were in the car, the applicant self-administered methylamphetamine with a syringe and then injected it into the right side of the complainant's neck with the same syringe. That constituted the offence on the s 166 certificate. His Honour considered that this offence was in the low range of offending.
After the injection of the drug, the parties went into the house. The assault occasioning actual bodily harm (sequence 17 on the Form 1 attached to the choking offence) was constituted by the applicant hitting the complainant whilst she sat on the toilet and thereafter headbutting her in the forehead, which caused a lump.
As they later left the house, the offender threw the complainant's phone on the ground, damaging it. This constituted sequence 19 on a Form 1 attached to the choking offence.
The sentencing judge did not assess the objective seriousness of the choking offence, but he noted it was not long in duration. His Honour indicated a sentence of 1 year 10 months taking into account the matters on the Form 1.
On 19 January 2022, the police arrested the applicant. He participated in an ERISP, and told the police the complainant had consented to all the activity in the video files.

Grounds of appeal

The applicant now seeks leave to appeal against his sentence on the following grounds: 1) The sentencing judge erred in failing to have regard to relevant principles applicable to offenders with mental health issues and to whom Bugmy factors apply, including that less weight be placed on general and specific deterrence and/or failing to give reasons in that regard; 2) The sentencing judge erred in the finding of objective seriousness in relation to the sexual assault offences; and 3) The overall term of imprisonment is manifestly excessive.

Subjective matters

The applicant did not give evidence at the sentence hearing. Information concerning his background, drug and mental health issues was chiefly derived from a report by a psychologist, Caroline Hare, who interviewed him on two occasions whilst he was held on remand. The applicant reported a traumatic childhood characterised by paternal violence, witnessing domestic violence committed by his father towards his mother, exposure to an anti-social lifestyle, parental separation and sexual abuse by an authority figure. He described his father as a drug-dealer and bikie type. His maternal grandmother frequently intervened to protect the applicant, his mother and his siblings from violence perpetrated by his father.
The applicant's parents separated when he was about 10, and he resided with his maternal grandmother for a few years before going back into his mother's full-time care. His mother's attempt to discipline him were unsuccessful, and he began associating with negatively influencing older peers in the local area. He engaged in truanting and delinquency that brought him to the attention of the authorities.
The applicant told Ms Hare that he was sent to a juvenile detention facility for 12 months aged 14 years. That is not borne out by the criminal record which was in evidence. He told Ms Hare that he escaped from the facility and was transferred to a stricter facility where he was raped by a male staff member. Certainly, his record identifies an escape when he was aged 14 and to the fact that he was sentenced to control orders for various periods of time (although not for 12 months) when he was aged 14.
The applicant said that he engaged in disruptive conduct at school and that intensified following his first period of juvenile detention, during which time he was sexually assaulted. He completed Years 9 and 10 of formal schooling within juvenile detention. He found Year 11 too difficult.
In his late teens and early 20s, the applicant endeavoured to forge a career playing rugby, but a diagnosis of ankylosing spondylitis ended those aspirations. He said he secretly used a cocktail of drugs to manage his physical pain when he was playing rugby, and that contributed to him developing long standing substance dependence. When his rugby career ended prematurely, he used drugs to distract from his disappointment.
The applicant reported a poor employment history which was destabilised by his substance dependence and arthritis. He has had a number of labouring and painting roles over the years, and at one stage he had an office-based position.
He told Ms Hare that he had five serious intimate relationships, the majority of which involved violence and infidelity. After one relationship of six years, the applicant was jailed for domestic violence offences against that partner. Some of his relationships also involved drug use.
The applicant said he was violently assaulted by a group of men in 2013. It may be that this occurred in prison because the applicant was incarcerated from 23 February 2013 with a non-parole period of 2 years and 6 months. In any event, he incurred head trauma, loss of consciousness and broken bones from the assault. He believed he would die during the incident and that triggered the onset of post traumatic symptoms. Following the incident, he was diagnosed with post traumatic stress disorder ("PTSD") by a Justice Health psychiatrist.
In 2021, a consultant psychiatrist diagnosed the applicant with amphetamine, methamphetamine and GHB use disorders, PTSD, and anti-social and borderline personality traits.
As noted, the applicant first misused drugs, opioid-based analgesics, to moderate his back pain and subsequently to block out negative emotions from his childhood. At 21 he commenced using amphetamine in the form of speed, and became addicted to it. Whilst in custody, from time to time, he achieved abstinence, but relapsed when returned to the community. He developed dependence on ice and GHB in 2021. He had used other drugs including cannabis, heroin and buprenorphine, and had also misused alcohol, drinking to the point of blackout.
The applicant said that it was the complainant who introduced him to GHB and he enjoyed its effects. Their sex life included bondage, sadomasochistic behaviours (including choking, hitting and spitting) and group sexual experiences with other males. He said the relationship rapidly became unhealthy due to jealousy, mistrust and violence. What began as consensual sadomasochistic sexual acts deteriorated into the applicant violently and sexually assaulting the complainant.
The applicant expressed remorse to the psychologist, saying that he lacked respect for the complainant at the time and became jealous. He indicated a willingness to engage in therapy to develop intimacy and relationship skills.
The psychologist assessed him on combined Static-99R and STABLE-2007 protocols as being within a high risk of reoffending.
The applicant's criminal record is lengthy and involves a great many offences of violence, intimidation and breach of apprehended violence orders as well as serious traffic offences. It includes a conviction for manslaughter whilst he was still a minor. At the time of some of the present offending, he was on parole for assault occasioning actual bodily harm, common assault and contravening an AVO, and for all of the offending he was on a Community Correction Order for common assault.

Remarks on sentence (ROS)

In relation to this ground of appeal the sentencing judge said: It seems to me that his prior criminal history is an aggravating factor in terms of s 21A and the principles set out by B (sic), meaning that general and specific deterrence is all the more important in order to protect the community from this offender's violence. (emphasis added - it was agreed that, rather than "by B", the sentencing judge likely said "in Veen")
The sentencing judge then summarised what was contained in Ms Hare's report, and said: I accept, though, that the report clearly established that he falls within the category of Bugmy factors which justify reduction in his moral culpability.

Submissions

The applicant pointed to remarks made by the sentencing judge during the course of the applicant's oral submissions on sentence concerning the applicant's background and deprivation. The sentencing judge had remarked that the offending did not involve the applicant defending himself in some excessive way, nor was it offending that arose from a need for money.
The applicant submitted that those exchanges were suggestive of a failure to consider the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and/or Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, which require a consideration of whether the mental health condition contributed to the commission of the offence in a material way, rather than a finding that there is a causal link between the mental condition and the offending.
The applicant submitted that in the same exchange, the sentencing judge accepted that the applicant had significant Bugmy/De La Rosa issues, but the only reference to Bugmy factors in the ROS was the mere statement that they resulted in a reduction of moral culpability. The applicant submitted that the sentencing judge failed to refer to the fact that the Bugmy factors did not diminish over time. The applicant drew attention to what was said by this Court in Lloyd v R [2022] NSWCCA 18 in that regard.
The applicant submitted that no reference was made regarding the effect of Bugmy factors upon the application of specific or general deterrence in circumstances where that had been submitted by counsel for the applicant. The applicant submitted that the sentencing judge did not discuss the effects of the applicant's childhood deprivation or the significance of it in terms of giving "full weight" to the finding that Bugmy factors were present. Further, the sentencing judge made no reference to the findings in the psychological report which addressed the significance of the childhood deprivation, the sexual assault as a child, the substance use and the PTSD to the offences.
The applicant submitted that no reference was made to De La Rosa in the ROS and no reasons were given for rejecting the submissions made on behalf of the applicant as to lesser weight being given to general and specific deterrence in circumstances where the Crown had accepted that the applicant's mental health warranted a reduction in the weight to be applied to general deterrence. Rather, the sentencing judge had focused on the need to protect the community from the applicant's violence.
The applicant submitted that there was no consideration of the link being made between the PTSD and the sexual assault, nor of whether the mental health condition contributed to the commission of the offences in a material way.
The applicant submitted that the failure to provide reasons when matters had been raised on behalf of the applicant was indicative of error in the exercise of the sentencing discretion.
The Crown submitted that the sentencing judge had accepted that the applicant had suffered from a deprived childhood which justified the reduction in his moral culpability pursuant to Bugmy.
The Crown submitted that the sentencing judge did give reasons for finding that a sentence reflecting both specific and general deterrence was required. His Honour found that the applicant's prior criminal record was a statutory aggravating factor so that the principles in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477 were applicable, meaning that weight needed to be given to both specific and general deterrence in order to protect the community.
The Crown submitted that the sentencing judge took into account the psychological assessment that the applicant was at a high risk of engaging in further sexual violence. That clearly required weight be given to specific deterrence in the sentencing exercise.
The Crown submitted that the psychological evidence did not suggest on the balance of probabilities that there was a causal link between his sexual abuse and the sexual offending against the complainant or that it was a contributing factor. Rather, the evidence indicated that there were a number of other factors involved in the current offending.
The Crown submitted that the applicant's counsel on sentence did not submit that no weight should be given to general and specific deterrence, but rather that there was a reduced need for general deterrence and that specific deterrence should be moderated to a degree. The Crown submitted that the applicant's complaint on appeal amounts to no more than a submission that the sentencing judge should have given less weight to specific and general deterrence as part of the instinctive synthesis. In that regard the Crown submitted, questions of weight are essentially matters within the discretion of the sentencing judge and do not raise appellable error.
The Crown submitted that the remarks on sentence were delivered ex tempore and are not therefore to be reviewed in the same way as a judgment in which time was available for lengthy explanations or revision.
The Crown submitted that the sentencing judge took into account the applicant's need for treatment for his mental health issues in finding special circumstances.

Consideration

It must first be borne in mind that this was an ex tempore judgment delivered immediately after counsel's addresses concluded. Most of the oral submissions of the applicant's counsel concerned the objective seriousness of the offending as result of the unusual sexual relationship that the applicant and the complainant had. This is of particular relevance to ground 2 of the appeal.
The Crown's submissions should be accepted.
In this Court counsel for the applicant sought to analyse the sentencing judge's remarks on sentence in the light of what was said in Lloyd at [37]. This involved going through the psychological report from Ms Hare and determining which parts of it were not referred to by the sentencing judge in a manner similar to what had occurred in Lloyd. Such an analysis was not really helpful because different submissions had been made in Lloyd at first instance to the sentencing judge in that case, and the findings of the sentencing judge in the present case differed from the findings of the sentencing judge in Lloyd. In that regard, Lloyd does not provide a template of how sentencing judges should go about their task.
Indeed, McCallum J in Lloyd at [33] responded to a submission from the Crown in that case which sought to draw comfort from a number of other decisions where findings had been made that moral culpability had been properly considered notwithstanding a failure to record a specific finding. Her Honour said: Each of those decisions turned on a consideration of the substance of the sentencing judge's reasons in the particular case. To invoke them to inform the analysis of a different statement of reasons reflects a misconception of the operation of precedent. The decisions relied upon by the Crown have no precedential value for present purposes other than to establish that the question whether Bugmy principles were properly considered is one of substance rather than form: Dellow at [45]. As Basten JA explained in Sypher v R [2020] NSWCCA 336 at [2], the question whether a matter was properly taken into account is not an issue that can be determined by reference to precedent: "There is no doubt that the judge set out, and therefore had regard to, relevant evidence in respect of these matters. In some cases it will be possible readily to infer that the setting out in reasons for judgment of mitigatory circumstances will permit the court to be satisfied that those factors were properly taken into account - see, eg, Wood v R [2019] NSWCCA 309 at [121]-[123]. However, whether such an inference should be drawn in a particular case does not depend upon precedent, but on a proper analysis of the circumstances of the case and the judge's reasons."
Further, the sentencing judge is not obliged to refer to every part of a psychological report. The proper approach is to examine what submissions were made to the sentencing judge and to examine how those submissions were dealt with by his Honour in the light of established principles.
Two significant differences from what occurred in Lloyd are, first, that in the present case the sentencing judge determined that by reason of the Bugmy factors the applicant's moral culpability was reduced, and, secondly, that no submission was made in the present case of a causal connection or contribution of the applicant's background factors and his mental health issues with the offending.
In the applicant's written submissions to the sentencing judge, the following appeared in relation to the applicant's deprived background: 31. …The gravamen of Bugmy v R is that the effects [of] the early deprivation are ongoing and warrant a reduction in the assessment of moral culpability of the offending behaviour. This reduction in moral culpability would apply equally to all matters before the Court.
In oral submissions, counsel for the applicant reminded the sentencing judge of what appeared in the written submissions about the applicant's upbringing, and there followed a discussion between counsel and the sentencing judge about Bugmy and De La Rosa issues which concluded: HIS HONOUR: But I agree that there is significant - there are significant Bugmy/De La Rosa issues. KRISENTHAL: Yes. HIS HONOUR: And that that generally brings with it forever a reduction in moral culpability. But at the same time, of all the people that fall within those categories and who are entitled to reduction of moral culpability, there are still great variations in terms of what they've done in their life and I'm saying he - there's been a lot more what I'll call gratuitous violence as distinct from reacting in a way out of his trauma to defend himself, in other words. KRISENTHAL: Yes. HIS HONOUR: Which is a little concerning in terms of assessment of prospects, albeit that he's now 45. KRISENTHAL: 45, yes. I accept that as with the De La Rosa factors that it doesn't lead to an automatic reduction. HIS HONOUR: Not the same reduction for everybody, I guess, is what I'm saying. KRISENTHAL: Yes, yes, and there has to be an element of specific deterrence as well and community protection. But in my respectful submission, the offending that your Honour has before you today is another example of the effects of the ongoing deprivation.
It is clear from what the sentencing judge determined (set out at [46] and [47] above) that his Honour had regard to the submissions made to him. He found a reduction in moral culpability for Bugmy factors. Although the applicant's counsel in this Court submitted that it was a failure on the part of the sentencing judge not to have noted that Bugmy factors do not diminish over time, nothing flows from that in circumstances where his Honour held that those factors reduced his moral culpability for the present offending. Nor was there any need for his Honour to discuss the deprivation in terms of giving "full weight" to the presence of the factors. The applicant had submitted to the sentencing judge that there should be a reduction in his moral culpability for those factors. His Honour acceded to that submission. It was not necessary to say anything more.
In relation to the applicant's mental health issues, the written submissions made to the sentencing judge said only this: 56. Ms Hare reports that Mr Moore suffers from an ongoing psychiatric condition of Post Traumatic Stress Syndrome which includes flashbacks, disrupted sleep, and hyper-alertness. This condition has its genesis in the earlier sexual assault and a vicious assault in which he was the victim. Medication has been prescribed for this condition and at present he is well maintained on that medication. 57. The Court is well aware of the relevance of a person's mental condition in the sentencing process. Relevantly it is submitted that Mr Moore's time in custody will be more onerous for him as a result of his condition and that there is a reduced need for general deterrence given the issues experienced by the offender. Additionally specific deterrence should be moderated to a degree.
In oral submissions counsel for the applicant said to the sentencing judge: KRISENTHAL: And your Honour's experienced enough to know that people that are getting to his age are finding jail a lot more difficult. So in my respectful submission, and I won't go into the psychiatric conditions, he does have some prospects. They're guarded. I say that there are special circumstances. He's got to be getting to the stage of possible institutionalisation. But he needs ongoing support, and what he got upon his last release was beneficial. He successfully completed that short period of supervision and he was going well. But if he gets the assistance that he needs, his prospects are far more enhanced.
Those submissions in relation to the applicant's mental health were of a limited nature. They did not assert that there was a link between the PTSD and the offending. The sentencing judge was not obliged, as counsel for the applicant submitted in this Court, to refer to much of the material relating to the applicant's mental health history to make a separate link to the offending that was not put to his Honour. The sentencing judge made a finding of special circumstances, to assist in relation to treatment and counselling for his mental health issues and to assist in terms of requiring treatment and counselling for substance abuse relapse prevention…
The sentencing judge did not accept in the circumstances that general deterrence should be reduced because the applicant's criminal record and the violence in the present offending meant that community protection was important, as De La Rosa acknowledges. The applicant's counsel acknowledged to the sentencing judge that the fact that there were De La Rosa factors did not automatically result in a reduction in the importance of general deterrence. Counsel also acknowledged to the sentencing judge (see above at [69]) that there needed to be some specific deterrence and community protection. His Honour was not obliged to adopt the Crown's submission that the applicant's mental health reduced but did not eliminate the need for general deterrence. In oral submissions the Crown stressed the need for specific deterrence and community protection.
It is not without significance that at the conclusion of the judge's remarks before he turned to the sentence to be imposed his Honour asked: Are there any other matter (sic) that I need to deal with or any corrections to anything I have said? The fact that experienced counsel said that there were no such matters or corrections may be taken as counsel's view that his Honour had dealt with the issues that counsel had raised. It also gives rise to the concern that this ground of appeal is based upon an unnecessary over-parsing of the sentencing judge's ex tempore remarks, and is an attempt to put the issues from the applicant's deprived background and his mental health issues in a manner different from the way they were argued before the sentencing judge, contrary to what was said in Zreika v R [2012] NSWCCA 44 at [79]-[82].
I would reject this ground.

Ground 2: Objective seriousness in the sexual assault offences

Remarks on Sentence

As noted earlier, the sentencing judge found that the criminality of the first count of sexual intercourse without consent was "in the mid-range. Albeit arguably at the lower end of perhaps the mid-range". His Honour found that the second count of sexual intercourse without consent fell within the mid-range "probably slightly above the middle of midrange".
The following is the passage in his Honour's reasons discussing these offences: That video depicts that the victim was unconscious at the time the offender performed cunnilingus. And that offence was accompanied by a number of degrading acts as well as acts of violence. Which included slapping of her face, breast and vagina. And she was unconscious at the time. … I note that in terms of the addendum to the facts that it is agreed, as between the Crown and the defence, that in the early stages of the relationship between the offender and the victim there had been discussions about potentially making money by taking videos of consensual sexual activity. There had previously been some agreement that on occasion they would film their sexual activity with the intention of selling it for financial gain. There had previously been an agreement to make videos that included the use of sex toys, and dominating and degrading behaviour. Including physical acts such as choking. However, the agreement between the victim and the offender did not extend to the taking of videos while the victim was unconscious. Whilst their previous sexual conduct may have included not dissimilar conduct to that that is displayed on the two videos taken, and which relate to counts 1 and 4, there was no consent from the victim that there be sexual intercourse with her whilst she was unconscious. In any manner, that is degrading, aggressive sex or anything less than that. In my view, the criminality of that seq 1 is in the midrange. Albeit arguably at the lower end of perhaps the midrange. Sequence 10 is count 4 and that is the second count of sexual intercourse without consent. That also occurred in that time frame, June July 2021. Again, the incident was a video. When the victim was unconscious the offender penetrated her anus with his thumb repeatedly. Again, the sexual intercourse was accompanied by degrading conduct and acts of violence such as slapping of her face and vagina and spitting. Again, it occurred in the victim's home and at a time when the offender must have known that she was not consenting. The sequence on the Form 1 is seq 11, intentionally record. In my view, that matter falls within the midrange. Probably slightly above the middle of midrange. (reproduced as in original)

Submissions

The applicant submitted that the sentencing judge erred in his assessment that the applicant commenced having sexual intercourse with the complainant without her consent when the evidence did not establish that fact. The applicant submitted that the proper assessment of the offending, as set out in the agreed facts, was at the point in time when the offending commenced, the complainant was unconscious, as opposed to any sexual acts participated in consensually prior to her loss of consciousness.
The applicant submitted that the objective seriousness of the present matter, in the light of the particular circumstances of the relationship, was such that the relevant feature of objective seriousness ought to have been limited to the fact that the complainant was unconscious and not as to the degrading nature of the acts per se, given that such acts were within the scope of the agreed consent.
The applicant pointed to what the sentencing judge had said during the sentencing hearing that the complainant was not consenting and that "he ties her up and treats her very poorly". The applicant submitted that in the remarks on sentence his Honour did not make clear that the offending commenced after she was already tied up. The significance of his Honour's failure to make that clear in the remarks on sentence arose from the nature of the sexual relationship between the applicant and the complainant where being tied up was something that she had previously consented to in the course of their sexual activity.

Consideration

Much of the time in oral submissions by counsel for the applicant before the sentencing judge was concerned with counsel trying to draw a distinction between the parties in the present case where they agreed to engage in bondage and sado-masochistic sexual behaviour involving degrading acts, and parties who do not engage in sexual acts of that sort. The submission being put to his Honour was that the fact that those acts were perpetrated against the complainant when she was not consenting should not be regarded as seriously as if they had been done to a complainant who had not previously agreed to that sort of sexual activity.
Towards the end of that debate the following exchange occurred: KRISENTHAL: Well, the criminality involved in this particular matter is that she engaged - that he engaged in sexual behaviour which was part of their relationship but without consent on this occasion. HIS HONOUR: I know but my struggle with that is that without consent, she is not consenting, and what he actually does to her is fairly serious. He did not just have sex with her; he ties her up and treats her very poorly, acknowledging arguably that that is happening while she is unconscious and in that sense I probably would agree that it is not as bad as if she was conscious and that was happening. It was this passage that the applicant focused on to suggest that the sentencing judge wrongly judged the objective seriousness on the basis that the applicant tied the complainant up when she was not consenting. The applicant submitted that the video starts when the complainant is already tied up but asleep.
His Honour's findings of fact about the two offences of sexual intercourse without consent (set out at [78] above) accord entirely with the Statement of Agreed Facts. Nothing in his Honour's remarks suggest that he took into account the fact that the applicant tied up the complainant whilst she was unconscious or that the complainant was not consenting at the commencement of the sexual intercourse. It should not be inferred from a passing remark in the course of exchanges with counsel that his Honour has impliedly taken into account a matter he does not mention in the remarks. What his Honour did find was that the sexual intercourse was accompanied by "degrading conduct and acts of violence such as slapping of her face and vagina and spitting", as appeared in the agreed facts. No error was made by his Honour in that regard.
To the extent that the applicant wishes to contend, as was submitted to the sentencing judge, that the objective seriousness of what occurred was reduced by reason of what they had agreed to participate in previously, the remarks of Harrison J (as his Honour then was) in Bussey v R [2020] NSWCCA 280 are apposite (with those remarks specifically endorsed by Hoeben CJ at CL and Bellew J): [95] The cases reveal a consistent and commendable emphasis upon the need to consider each offence of sexual assault upon a woman by her partner or former partner with special and particular regard to the circumstances of the case. However, there has in my view been a regrettable tendency in some cases to refer to the fact that the assault occurred within, or following the breakdown of, a relationship as something that might "mitigate" the seriousness of the particular offence. This type of language has the unfortunate potential erroneously to dilute the significance of the offence under consideration. Put simply, the objective seriousness of sexual intercourse without consent cannot be reduced because of factors such as a prior sexual history between an offender and his victim without making unjustified and impermissible assumptions about the effect upon the victim. It depreciates the notion that no means no, whatever other factors may be involved. To accept that a prior relationship can ever operate to mitigate the seriousness of the offending completely abandons that uncontroversial wisdom and reverts to the type of attitude that once saw domestic violence treated as less culpable than other assaults. It also proceeds upon the implicit and unsafe adoption of non-consensual sexual intercourse with a stranger as the default position. [96] I cannot accept that a statement such as "the violation of the person and the defilement that are inevitable features where a stranger rapes a woman are not always present to the same degree when the offender and the victim had previously had a longstanding sexual relationship" is now or could ever have been an acceptable, far less correct, summary of the law or that it should continue to influence this Court in the determination of cases such as the present. Violation and defilement of the victim are quintessential aspects of the offence and the victim's familiarity with an assailant can have no bearing upon that fundamental circumstance. Indeed, such an assault, committed by a person with whom the victim may have had a formerly close and respectful relationship, is potentially more likely to exacerbate the seriousness of the offence than otherwise. I cannot accept the proposition that there can be varying degrees of violation and defilement. Such a concept appears to derive from the offensive notion that a man should in certain circumstances be entitled to raise his prior relationship with the victim as some kind of limited excuse for disregarding the absence of consent to an act of intercourse with him to which activity the victim had historically consented. [97] As I have indicated, Mr Bussey's submissions implicitly rely upon the proposition that the offence of which he was found guilty could have been more serious. The fact that one can imagine the commission of more serious offences of this type is not controversial. It does not, however, mean that the sentence imposed by his Honour for the offence committed by Mr Bussey should somehow be assessed by reference to that fact. It certainly does not mean that the objective seriousness of Count 3 is diminished or reduced because Mr Bussey and RM had previously been in a consensual sexual relationship. Once it is accepted that no means no, that should be the end of the matter.
It is trite to observe that the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46]. Such a determination can only be challenged if the finding made was not open to the sentencing judge: R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556 at [84].
The sentencing judge determined that the first such offence was arguably at the lower end of the mid-range and the second offence was probably slightly about the middle of the mid-range. Such findings were entirely open to the sentencing judge, given the degrading conduct and violence, and the advantage being taken of the complainant when she was asleep or unconscious.
I would reject this ground.

Ground 3: The sentence is manifestly excessive

The applicant submitted that the overall term of imprisonment was manifestly excessive as a result of the errors asserted in grounds 1 and 2, but also upon consideration of the comparable cases and the sentencing statistics.
The principles relevant to a consideration of whether a sentence is manifestly excessive were set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. They are well-known and do not need to be reproduced here.
The applicant put forward some statistics from JIRS in relation to offences of sexual intercourse without consent, and submitted that only 6.9% of offenders received a higher non-parole period than the applicant and only 5.7% received a higher total sentence. The applicant did not make clear how these figures were derived, or how they were relevant to the aggregate sentence in the present matter, with no oral submissions being addressed to this ground of appeal by the applicant. The assumption must be that the applicant is contending that the indicative sentences for the sexual intercourse offences are excessive.
The significant matter is that the challenge can only be to the aggregate sentence, although the indicative sentences may be a guide to whether error is established. However, even if the indicative sentences are assessed as being excessive that does not necessarily mean that the aggregate sentence is excessive: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].
To the extent that the indicative sentences for those offences provide any guide to whether the aggregate sentence is manifestly excessive, it should only be observed that the undiscounted starting points for those two offences were 5 and 6 years respectively where the maximum penalty was 14 years' imprisonment and each offence was found to be within the mid-range. Even making allowance for the applicant's subjective case, which was by no means outstanding particularly given his criminal record, it cannot be said, to start with, that those indicative sentences were not open to his Honour.
The applicant sought to rely on four cases which were said to be comparable. The applicant submitted, in respect of them, that none of the offenders received a higher sentence than the undiscounted indicative sentences in the present matter. Again, it is assumed that the applicant's ultimate submission, although not made, is that the cases put forward show that the indicative sentences for the sexual intercourse offences are excessive and that this results in the aggregate sentence being manifestly excessive.
In Mattiussi v R [2023] NSWCCA 289 the applicant had been found guilty after trial of two offences of sexual intercourse without consent and one count of intimidation. For the two offences of sexual intercourse without consent the sentencing judge indicated a sentence of 3 years 6 months with a non-parole period of 2 years 5 months 13 days, and a sentence of 5 years with a non-parole period of 3 years 6 months respectively. The indicative sentence for the intimidation offence was 2 years 6 months and the aggregate sentence was 7 years 6 months with a non-parole period of 5 years 3 months 2 days. Both of the sexual intercourse offences involved some form of degrading conduct, with the latter more seriously so. The indicative sentence for the second of those offences was not materially different from the undiscounted indicative sentences in the present case. Ultimately, however, it is the aggregate sentence that is relevant and Mattiussi bears no relationship to the present case by reason of the number of offences within the aggregate sentence, and the nature of those offences.
In Pender v R [2023] NSWCCA 291 the applicant was found guilty after trial of two counts of sexual intercourse without consent. He was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years 6 months. The indicative sentences were 5 years with a non-parole period of 3 years, and 5 years 6 months with a non-parole period of 3 years 6 months respectively. The two offences consisted of a short act of oral intercourse followed by penile-vaginal intercourse during the course of which the applicant ejaculated on the complainant's leg. The applicant and the complainant did not have a prior sexual relationship but were known to one another. The applicant had a deprived background which was taken into account by the sentencing judge.
On any view, the acts of sexual intercourse in the present case were at a far more serious level than those in Pender. Yet the undiscounted indicative sentences in the present case were comparable to those in Pender. If Pender suggests anything it is that the indicative sentences in the present matter are lenient. Again, the aggregate sentence cannot be held to be comparable in the light of all of the offences in the present case.
In Horne v R [2023] NSWCCA 276 the applicant was found guilty after trial on two counts of sexual intercourse without consent and one count of indecent assault. All of the offences were committed in a single episode when the complainant was unconscious and unable to consent. The offences were only discovered when a search of the applicant's premises produced a USB showing the applicant carrying out the relevant acts. The complainant was a friend of the applicant who had never been intimate with him previously and who was entirely unaware that the offending had taken place until the USB was discovered.
The indicative sentences for the two counts of sexual intercourse without consent were 3 years 6 months with a non-parole period of 2 years 4 months and 4 years 6 months with a non-parole period of 3 years. An aggregate sentence of 5 years 3 months was imposed taking into account an indicative sentence on the indecent assault charge of 12 months. The only ground of appeal in this Court was that a miscarriage of justice had occurred because the applicant's lawyers failed to tender the handwritten notes of a clinical psychologist. The ground was dismissed, and nothing was raised or said about the sentence. It may be accepted that the indicative sentences are less than the undiscounted indicative sentences in the present case but the only relevant comparable fact was that the offences occurred when the complainant was unconscious and they were filmed. No assistance can be derived from that case.
In Harper v R [2022] NSWCCA 211 the applicant was charged with nine counts of sexual intercourse without consent involving parties who were in a sexual relationship. The applicant was also charged with assault occasioning actual bodily harm and intimidation. After a trial he was found guilty of two counts of sexual intercourse that occurred in the same incident and common assault. He pleaded guilty to the count of intimidation. He was sentenced to an aggregate term of imprisonment for 6 years with a non-parole period of 4 years. The indicative sentences for the counts of sexual intercourse without consent were 3 years with a non-parole period of 2 years, and 5 years with a non-parole period of 3 years 4 months respectively. The first count of sexual intercourse involved penile-vaginal intercourse after the applicant had tried to have anal intercourse with the complainant. She successfully resisted the anal intercourse, but having lubricated his penis by having vaginal intercourse with her for a short time, he then had anal intercourse with her against her will, ejaculating in her anus. The sentencing judge indicated in her remarks that the sentence imposed (her Honour meant indicated) for count 3 could comprehend the criminality involved in count 2 so that the sentences should be notionally concurrent.
In this Court, Button J (with whom Bell CJ and N Adams J agreed) said that the sentencing judge's approach was lenient when the offences were entirely separate. The Court held that the aggregate sentence for two "grave penetrative sexual offences" could not be said to be manifestly excessive.
The overall offending in that case bears little relationship to the overall offending in the present matter. The indicative sentences were those imposed at first instance where this Court said only that the aggregate sentence was not manifestly excessive. It provides no comparison with the present matter.
Although there is some variation in the indicative sentences in those four cases from the undiscounted sentences in the present matter, the present indicative sentences cannot be said to be out of line with them. In any event, no attempt was made to demonstrate how the indicative sentences for two offences in the present case resulted in the aggregate sentence for eight offences becoming manifestly excessive.
The offences for which the applicant was sentenced show a serious course of domestic violence over a six month period. Apart from the two sexual intercourse offences, the offences of detaining the complainant, choking her, and trying to influence her to change her story with the police were serious offences. Further, both of the assault occasioning offences were serious enough that the complainant had to attend hospital. All of the offences were committed whilst the applicant was on some form of conditional liberty. Some of the indicative sentences, particularly for the detain and attempt to influence offences, might be regarded as lenient. There were also uncharged acts of violence and intimidation: see [24] above.
In the light of the applicant's previous criminal record, that he has been assessed at an above average risk of recidivism in relation to future sexual offending, the seriousness of the present offending, and despite his subjective case and his remorse, when the appropriate reduction for moral culpability and the allowance made for special circumstances are taken into account, the applicant does not establish that the sentence is plainly unjust.
I would reject this ground.

Conclusion

The applicant requires an extension of time to appeal. The delay is adequately explained in the affidavit of the applicant's solicitor. The Crown does not oppose the extension of time and in the circumstances it should be granted.
I propose the following orders: 1. Extend the time for the applicant to seek leave to appeal to 2 April 2024. 2. Grant leave to appeal. 3. Dismiss the appeal.
SWEENEY J: I agree with Davies J.

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: 08 July 2024

Crimes Act 1900(NSW)ss 37, 59, 61I, 86, 91P, 195, 323, 324

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