Piscitelli v R

Court of Criminal Appeal (NSW)|2012-08-01|Before: Hoeben JA, Johnson J, Button J

Judgment 1Hoeben JA: I agree with Button J. 2Johnson J: I agree with Button J. 3Button J: On 14 February 2011 in the District Court at Wollongong, his Honour Judge Frearson SC sentenced Tony Dominic Piscitelli ("the applicant") for four offences. Three appeared on an indictment and one was placed before his Honour on a certificate pursuant to s 166 of the Criminal Procedure Act 1986. All offences were of a sexual nature, and all of them arose from one incident on the evening of 13 April 2010. 4The details of the offences and the structure of the sentences imposed will be provided later in this judgment. It suffices to say at this stage that a total head sentence of imprisonment for 16 years 6 months with a total non-parole period of imprisonment for 11 years 6 months was imposed with regard to the four offences.

The offences 5The following summary is taken from the remarks on sentence. No ground of appeal impugns these findings of fact: "Now the facts are that the victim, an eighty-three year old widow resided alone at her home at Tuross Boulevard, Tuross Heads and the victim's residence is a small two bedroom unit contained in a small complex of three units. Her unit is located at the front of the property facing the street. She lived at the address for some eight years. The victim suffered from asthma and takes various forms of Ventolin to relieve her condition. On Tuesday 13 April 2010 the victim spent the evening alone watching television in the lounge room of her unit which is situated at the front of the unit. The front screen door was locked. During the evening she changed into her sleeping attire, namely a nightie, dressing gown, underpants and socks. It was about 9pm that the victim left the lounge room with a torch and entered the bathroom at the rear of the unit to use the toilet. She used the torch apparently to save on electricity. She went to the bathroom in darkness and at the same time the accused entered the unit, the facts say by cutting the flyscreen. There is a dispute about the precise method of entry, and unlatching the screen door. The victim did not turn the light on in the bathroom and the only light in the unit at that time came from the torch and the single light which had been left on in the lounge room. As the victim seated herself on the toilet the offender, who unbeknown to her had entered the bathroom, placed a hand over her mouth and throat and applied pressure. The victim attempted to push the hand away from her mouth and throat at which time she heard the offender say, "Don't make a noise, I'm not going to hurt you". She attempted to struggle against the accused but was unable to free herself of his grasp and it was very dark and she could only see a body towering over her. The offender grabbed the victim by the upper left arm and pulled her off the toilet. The offender continued to say to the victim, "I'm not going to hurt you, I'm not going to hurt you". The offender took the victim from the bathroom and pulled her towards the bedroom causing pain to her arm and during this time the victim pleaded with the accused saying, "Please don't do this, please don't do this". The offender pulled the victim into the bedroom, the room was in darkness and the offender said, "Take the dressing gown off". The victim was very scared and she complied. The accused said, "Take your nightie off", and the victim complied and the offender said, "Take your pants off", and she again complied. The victim did not argue and did fight against the offender but continued to plead with him stating, "Please don't do this, please don't do this". The offender ignored the victim's pleas and said, "Lay on the bed on your stomach". The victim did as she was told and the offender immediately attempted to penetrate her vagina with his penis without success and the victim actually felt the penis press against her anus. The offender made three or four attempts to penetrate the victim before inserting his fingers into her vagina and the accused moved his fingers around inside the victim's vagina and that is the activity that constitutes count 1. After a short time the offender removed his fingers from the victim's vagina and he was breathing heavily at this time. The victim was struggling to breathe and she felt disgusted and humiliated as one would expect. The accused then said, "Get up and lay on your back", and the victim stood up from the bed and turned around before lying on her back on the bed with her knees on the bed and her legs dangling over the side. The offender penetrated the victim's vagina with his penis from a standing position and commenced to engage in penile/vaginal intercourse with her. That is the activity that founds count 2. While this was occurring the offender placed his mouth on the victim's right breast, and this is the matter that is the indecent assault that founds the matter on the 166 certificate. The offender placed his face against her right cheek, the victim turned her head to the left in an attempt to move away from the offender and the offender stopped and said to the victim, "I've got a knife". She did not see a knife. He continued to have penile/vaginal sexual intercourse with the victim and the offender placed his arms around her in an embrace and demanded that she do the same. That seems rather odd. The victim, fearing for her life, did as the offender insisted. The offender became agitated and asked the victim if she was enjoying the sexual activity and the victim stated unsurprisingly, "I'm 83 years old what do you expect". The offender persisted in having penile/vaginal intercourse with the victim and ejaculated a short time later and the victim stated that the accused was pushing harder and faster prior to ejaculating causing her pain. She was struggling for breath and could feel her heart palpitating. The intercourse occurred for about three minutes. The offender said, "Stand up, sit down and put your back up against the wall". The victim stood up from the bed and sat down on the floor in a small place between the dressing table and the bedroom door with her back against the brick wall. The offender forcefully took hold of the victim's head with both of his hands on either side of her face. He brought the victim's head forwards towards him and immediately forced it backwards causing the rear of her head to strike against an internal brick wall. He repeated this at least four or five times. This is the activity that is said to have resulted in the wounding that is the specially aggravating feature of the attempted sexual intercourse which I referred to before. The blows caused a loud cracking noise and the victim had tears in her eyes and felt intense pain. The offender stopped and the victim was able to get back onto the bed and she was having great difficult breathing and was suffering extreme pain to her head. The offender was standing in front of her. She said, "I need my puffer I can't breathe", and the offender said, "Where is your puffer", and the victim replied, "It's out on the kitchen table", the offender said, "I'll go and get it", and he left the bedroom and the victim could see the silhouette of a tall thin man possibly wearing a checked shirt. The victim saw the offender turn towards the lounge room and took the opportunity to quickly replace her underpants, nightie and dressing gown. The victim then sat on the bed and waited for the accused to return with the puffer. He did not return. After a short time the victim left the bedroom and commenced to check all the rooms in her unit to determine whether the accused was still present. When she checked the laundry she saw that the back door was ajar. The victim closed and locked the door before entering the lounge room. The victim did not sight the offender and assumed him to have left the unit. She noticed that her puffer was where she had left it on the kitchen table. The victim sat in the lounge room and administered her puffer to assist her breathing. The victim saw that the front door to the premises was closed but not locked. She locked this door and returned to her chair. She feared calling the police and she was concerned the accused may still be nearby. About six to seven minutes after sitting in the chair the victim contacted a neighbour and the victim initially told the neighbour that there was an intruder in the home and she was in a mess. The neighbour contacted police with her husband and the neighbour and her husband attended the victim's unit. The victim was initially frightened to open the door when the neighbours arrived but ultimately she summoned the courage to let them in and they saw that the victim was covered in blood and she said, "I've been raped". One of the neighbours, Lynette Norton, called the police and ambulance and the victim was crying at this stage. Police and ambulance attended the victim's premises." 6The profound gravity of the criminality encompassed by the offences committed by the applicant requires no elaboration by me. His Honour found that the offences were "just below worst case".

The aftermath of the offences 7As a result of the offences, the victim suffered extensive bruising to most of her body. There were also injuries to her genitals. There were a number of lacerations to various parts of her body, the most serious of which was a laceration to her right temple that required seven sutures. She remained in hospital for a period of 11 days. A number of black and white photos before this Court go some way to showing the injuries inflicted upon the victim. 8A victim impact statement was read out in the proceedings on sentence. The victim described the impact of the offences upon her as "huge". She described flashbacks and memories that led her to "shudder with revulsion". She experienced nightmares and was being treated for depression as at the date of that statement. She was hypervigilant. 9The victim found it impossible to remain in the flat where the offences had been committed. She moved in with her daughter for three months and then with her son for two months. She found a new home away from Tuross Heads. She did not feel comfortable driving at her new home, and had lost a substantial degree of independence as a result. 10The victim revealed in the statement that, prior to the offences, the only person with whom she had had sexual contact in her life was her deceased husband. 11The victim impact statement concluded by saying that the victim believed on the evening in question that she would not survive her ordeal.

The position of the applicant after the offences 12A male DNA profile was obtained from the underwear of the victim. That profile was very promptly compared to a database, and it was found to be identical to the profile of the applicant on that database. The applicant was living in Tuross Heads at the time. On 19 April 2010 he was interviewed at length by the police, and flatly denied the offences. He was arrested and charged, and has been in custody ever since that date. 13On 21 April 2010, his mother visited the applicant at the police station and asked him about the offences. His Honour found in the remarks on sentence that: "[S]he asked him why he did it and according to the mother the offender replied, "I don't know, I don't remember mum, I remember going to the house and seeing her watching TV, the door was open but the screen door was locked. I cut the flyscreen and reached in and unlocked the latch". The offender stated, "I don't think she saw me because it was dark". He told his mother he could not remember anything else. On 22 April 2010 the accused's mother provided a statement to the police about those admissions." 14In a further ERISP on 4 May 2010, the applicant did not deny the offences, but claimed to have no memory of them. He also claimed to have no memory of the conversation with his mother, or indeed of the first ERISP. With regard to his amnesia regarding the offences, he referred to the fact that he had been intoxicated that evening by alcohol, cannabis, and some prescription medication provided to him by another person. 15The applicant pleaded guilty in the Local Court and was committed for sentence (I infer that, for some procedural reason, an indictment was presented in the District Court). He received a 25 per cent discount as a result of the utilitarian value of his pleas. Neither party impugned the quantum of that discount in this Court. 16Whilst in custody, the applicant wrote a letter to the victim expressing his embarrassment, shame, and remorse for what he had done. That letter was tendered in the proceedings on sentence.

Subjective features generally 17No psychological, psychiatric, or pre-sentence report was available to his Honour in the proceedings on sentence. The applicant gave evidence on oath, as did his mother. 18The applicant was born on 10 July 1986. Accordingly, as at the date of the offence, he was 23 years old. As at the date of sentence, he was 24 years old. 19The applicant was raised by his mother on her own and had few, if any, positive male role models in his life. He was diagnosed with Attention Deficit Hyperactivity Disorder at the age of 9 years, and took medication for that condition until he was aged 15. He was exposed to illicit drugs at the age of 10. He had left school in year nine and had worked in a number of short-term, unskilled positions. At the time of these offences, he was unemployed and living with his mother in Tuross Heads. 20There was no evidence of his level of intellectual functioning, but the impression one gains from the transcript of the ERISPs and his evidence on oath is that he is, at the least, an unsophisticated person. 21The criminal record of the applicant was not unblemished and did not assist him. It commences in the Children's Court with a charge when he was 12 years of age. It features offences of dishonesty, damage to property, and some violence, with resultant probation periods and short control orders, some suspended and some to be served in custody. As an adult in NSW, he had been convicted of malicious damage (for which he had been fined $100), and driving offences. 22In Queensland, he had been dealt with as an adult for a number of offences relating to drug possession and use, misuse of a carriage service, and dishonesty. 23His criminal record as a whole, whilst lengthy, revealed that the applicant had never been sentenced to imprisonment in an adult gaol. 24Of particular note were two offences dealt with in the Children's Court in 2003. The facts with regard to each of those offences were tendered in the proceedings on sentence. The details of those two offences are as follows. 25The applicant was dealt with for assaulting a school student in April 2003 whilst she was attending school. The facts were that an 8 year old girl entered the girls' toilet block of the public school she was attending. There she was grabbed around the mouth by the applicant. He told her to be quiet and said "I have a friend here". The victim escaped from the applicant, ran back to her class, and told her teacher what had happened. 26The applicant was sentenced to a control order with a very short non-parole period. Of note was that one of the conditions of his release was that he was "to participate in assessment and intervention as directed by the sex offender program" and "not to associate with children under the age of 12 years unless approved by the sex offender program". 27In August of the same year, the applicant committed an offence of peeping or prying. 28The facts were that one morning a 16 year old girl went to use the female toilets at a TAFE in North Wollongong. There were two cubicles in the toilets, and the victim noted that one of the cubicles had its door closed. She went to the other cubicle, locked the door, and commenced to take off her jeans. At that time she heard a noise from the other cubicle, looked up, and saw the applicant looking at her over the top of the cubicle wall. She became frightened and ran out of the toilet. 29For that offence, the applicant received a further control order with a non-parole period of 2 months. Again, included in the orders were the conditions that the applicant involve himself as directed with the sex offender program, and not associate with children under the age of 12 years unless authorised to do so. 30The significance of these two matters will be discussed further below. 31It was shown in the proceedings on sentence that the applicant would serve any sentences on protection, though the evidence as to the degree of restriction resulting from that fact was quite limited. 32As for the future, both the applicant and his mother accepted that treatment for his undoubted sexual problems was essential. 33The findings of his Honour with regard to the future included that prospects of rehabilitation were "extremely guarded", and that there was a "real danger that the offender will reoffend". Those findings are not the subject of criticism by the applicant.

Two findings in the remarks on sentence 34Two factual findings made by his Honour found grounds of appeal in this Court. 35The first was with regard to the offence committed in April 2003 described above. There was a dispute at first instance as to whether his Honour could be satisfied beyond reasonable doubt that that offence had a sexual component. There was no dispute that the later offence of August 2003 could be so characterised. After reviewing the facts of the two matters, his Honour said in the remarks on sentence: "These matters are relevant on the question of whether the offender has unresolved sexual issues and I will come back to that later. It is submitted on his behalf that the August 2003 incident [sic] does not have a sexual connotation. I am satisfied that it does and I am satisfied of that beyond reasonable doubt." 36There was also a dispute at first instance whether one could be satisfied beyond reasonable doubt that the applicant intended to sexually assault the victim at the time when he entered the home, or whether his Honour should proceed on the basis that the applicant formed that intention sometime after entry. His Honour said: "In relation to the facts I do find, and I find it beyond reasonable doubt, that the offender actually entered the premises with a view to the sexual exploitation of the victim. There is a close temporal connection between his entry into the premises and what he did and his evidence that he entered thinking something was wrong is inherently implausible and I find it unbelievable and I reject it beyond reasonable doubt."

Sentences imposed 37Annexed to this judgment is a diagram that seeks to show the structure of the sentences imposed upon the applicant in a readily comprehensible format. 38I shall discuss the sentences chronologically, in the sense that I deal with them in the order of their commencement dates. 39Count 3 was an offence of breaking and entering and committing a serious indictable offence (attempted sexual intercourse without consent) in circumstances of special aggravation, namely, wounding. The offence was brought pursuant to s 112(3) of the Crimes Act 1900. It was founded on the applicant opening the flyscreen door, entering into the dwelling of the victim, and thereafter unsuccessfully attempting to penetrate the genitalia of the victim with his penis. This offence carries a maximum penalty of imprisonment for 25 years, and a standard non-parole period of imprisonment for 7 years. His Honour imposed a head sentence of 10 years 6 months with a non-parole period of 6 years 6 months, both to commence on 19 April 2010. The head sentence expires on 18 October 2020, and the non-parole period expires on 18 October 2016. 40There was an indecent assault contained on the s 166 certificate. It was founded on the touching of the breast of the victim. The offence was brought pursuant to s 61L of the Crimes Act. The maximum penalty for that offence when dealt with on indictment is imprisonment for 5 years. There is no standard non-parole period applicable. When dealt with summarily, the maximum penalty is imprisonment for 2 years. 41His Honour imposed a fixed term of imprisonment for 2 years, to commence on 19 April 2010 and expire on 18 April 2012. It can be seen that that fixed term is completely concurrent with the sentence imposed on count 3. No challenge was made to this sentence, and it need not be discussed further. 42Count 1 was an offence of aggravated sexual intercourse, the circumstance of aggravation being the infliction of actual bodily harm. The form of sexual intercourse relied upon to found this count was penetration of the vagina of the victim by the fingers of the applicant. The offence was brought pursuant to s 61J(1) of the Crimes Act. The maximum penalty was imprisonment for a period of 20 years, with a standard non-parole period of imprisonment for 10 years. His Honour imposed a head sentence of imprisonment for 12 years, to commence on 19 October 2011 and expire on 18 October 2023. A non-parole period of imprisonment for 7 years 6 months was imposed, to commence on 19 October 2011 and expire on 18 April 2019. 43Count 2 was in identical terms. The form of sexual intercourse underpinning this count was penetration of the vagina of the victim by the penis of the applicant. A head sentence of imprisonment for 13 years to commence on 19 October 2013 and expire on 18 October 2026 was imposed, with a non-parole period of imprisonment for 8 years to commence on 19 October 2013 and expire on 18 October 2021. 44As noted above, the ultimate result is a total head sentence of imprisonment for 16 years 6 months, with a total non-parole period of 11 years 6 months.

GROUNDS 45Six grounds of appeal have been notified. I shall deal with them in turn.

"The learned sentencing judge failed to give appropriate weight to the applicant's contrition"

Background and submissions 46No written or oral submissions were made by senior counsel for the applicant in support of this ground. 47The background is that, in the remarks on sentence, his Honour said: "On the question of remorse I accept that the offender has acknowledged the gravity of his behaviour and I do accept that he is remorseful and I do accept that he has accepted responsibility for his behaviour. And I do accept that he is ashamed of his behaviour."

Decision 48In light of the position of senior counsel for the applicant, I consider that I can deal with this ground briefly. 49In light of that extract from the remarks on sentence, it is not possible to say that his Honour failed to take into account this topic, or made a wrong finding about it, or even an ungenerous finding about it. As for whether his Honour gave the matter appropriate weight, that surely calls for evaluation of the ultimate sentences, both individually and in their total effect: see my remarks in Hanania v R [2012] NSWCCA 220, with whom Hoeben JA and Johnson J agreed. I proceed to consider the question of whether the sentences appropriately reflect the contrition that was found to exist when I come to ground six. 50Accordingly, I do not uphold ground one as a separate ground.

"The learned sentencing judge fell into error in his treatment of the applicant's criminal history"

Background and submissions 51Senior counsel for the applicant submitted that it was not reasonably open to find that the offence in April 2003 (that is, the offence of assaulting the 8 year old girl in the toilet block by placing his hand over her mouth and holding her) had a sexual component. It was submitted that that finding was of some importance, because it played a role in the proposition that the applicant had longstanding sexual problems and that, as a result, his prospects of rehabilitation were extremely guarded. Senior counsel for the applicant referred to the portion of the remarks on sentence extracted by me above at [35], and submitted that there must have been some confusion about the topic. That was because defence counsel at first instance had never submitted that the incident in August 2003 did not have a sexual flavour. Rather, it was the characterisation of the earlier offence in April 2003 that was the point of contention in the Court below. 52Counsel for the respondent submitted that the reference to August, as opposed to April, in the extracted portion of the remarks on sentence was nothing more than a slip of the tongue. 53As for whether it was reasonably open to find that the offence in April 2003 had a sexual connotation, she made a number of submissions. First, all three victims were females. Secondly, the applicant accepted in the witness box that, in 2003, his problem with females had manifested itself. Thirdly, he also gave evidence that he had realised in that same year that he had issues relating to violence with females. Fourthly, the criminal record of the applicant revealed that, with regard to the April 2003 offence, he had been ordered to be involved in a sex offender program. Fifthly and finally, she emphasised that all three offences were committed in toilets, two public and one private.

Decision 54The limitations on review by this Court of findings fact made by a sentencing judge at first instance are well known and established by such cases as R v O'Donoghue (1988) 34 A Crim R 397, R v Kelly (1993) 30 NSWLR 64, and Aoun v R [2011] NSWCCA 284. In short, a finding of fact will not found the basis of a successful ground unless that finding was "not reasonably open". 55In light of all of the aspects of the evidence discussed above, I consider that the finding of fact under consideration was certainly reasonably open. 56It follows that I would not uphold ground two.

"The learned sentencing judge erred in reaching a conclusion, beyond reasonable doubt, that the applicant actually entered the premises with a view to the sexual exploitation of the victim."

Background and submissions 57In support of this ground, senior counsel for the applicant conceded that the acceptance by his Honour of the version given by the mother of the applicant of the conversation at the police station was open. However, in light of what the applicant said in that conversation, and having regard to all of the evidence, including what the applicant had said on oath, it was submitted that one could not be satisfied beyond reasonable doubt that, at the time he entered the home of the victim, the applicant had formed the intention of sexually assaulting the victim. 58Counsel for the respondent made a number of submissions in support of the proposition that the finding was reasonably open. First, the reason for entry given by the applicant to the effect that he thought something was wrong was spurious and liable to prompt rejection. Secondly, the victim was unaware of the presence of the applicant in her home at any stage prior to the commencement of the offences. Thirdly, the applicant left immediately after the conclusion of the offences. Fourthly, the applicant committed no other offences (such as stealing) whilst in the home of the victim.

Decision 59I need not repeat the limited basis upon which factual findings of sentencing judges may be overturned by this Court. 60To the factors identified by counsel for the respondent may be added that, in light of the untruths in the first ERISP, and repeated subsequent changes of the position of the applicant, his credibility by the time he gave evidence in the witness box was very substantially damaged. 61Again, I consider that it was well open to his Honour to make the finding under consideration. Accordingly, I would not uphold ground three.

"The sentencing judge placed undue weight on the objective circumstances of the offences."

Background and submissions 62This ground as developed focussed on some of the words used by his Honour in the remarks on sentence. Particular reliance was placed on the following portions at pp 8, 15-16: "One only has to read those facts out to be horrified and it is a fact that any right thinking member of the community would be thoroughly disgusted by the facts of this case. ... ...I have also noted in particular the photographs depicting the injuries to the victim and I must say the photographs on any view are disturbing. ... [I]t does seem to me that the injuries sustained by the victim go far beyond the threshold of what is necessary to constitute the particular offences. ... I have had regard to the Victim Impact Statement and that was a statement read by the victim's granddaughter and I must say when it was read out I think that nobody who heard it could have been unaffected by it. It was extremely disturbing to hear how an eighty-three year old woman was traumatised by these offences and very disturbing indeed ... It seems to me looking at the matter this was a savage, callous and predatory attack upon an eighty-three year old in her own home ... The offender's conduct towards the victim was particularly degrading and he entered the premises for the very purpose of engaging in that conduct and sexually exploiting the frail woman of advanced years." 63Attention was drawn by senior counsel for the applicant to the fact that his Honour found that the offences were "just below worst case category". 64It was also mentioned that his Honour had said of the offences "these are very serious offences that attract standard non-parole periods". As for that portion of the remarks on sentence, it was submitted that, to the extent that there had been pleas of guilty in the matters, his Honour was not correct in stating that the offences attracted standard non-parole periods. 65As I understand this ground, the complaint is that, with regard to the first two paragraphs extracted from the remarks on sentence, the language used by his Honour was intemperate and suggestive that, to quote the oral submissions: "it indicates an undue weight, in the overall circumstances, on the objective circumstances". 66Counsel for the respondent submitted that strong language was called for by the offences. She noted that the applicant himself, in denying the offences in the first ERISP, referred to the allegations as "disgusting". He used the same word in the witness box to describe the actions that by that stage he did not deny.

Decision 67The submission discussed at [64] may be disposed of quickly. The offences indeed attracted standard non-parole periods by way of the Crimes (Sentencing Procedure) Act 1999; the law at that time was that, because of the pleas of guilty, the sentencing did not call for their inflexible application. In any event, the whole flavour of the remarks on sentence demonstrates that his Honour was quite aware of the role of a standard non-parole period when there had been a plea of guilty. Finally, there is no substantial ground asserting error in the approach to the standard non-parole periods. I respectfully reject this submission. 68As for the language used by his Honour, it is noteworthy that, in his own letter of apology tendered in the proceedings on sentence, the applicant himself referred to the "terrible way I treated you" and the "pain and trauma" and "suffering" of the victim. Furthermore, in oral submissions in this Court in support of this very ground, senior counsel for the applicant referred to "the horror of what, undoubtedly, was a horrendous sequence of circumstances". Those characterisations adopted by the applicant himself and his own counsel lend support to the proposition that the language used by his Honour cannot be the subject of effective complaint on his behalf. 69The general purpose of remarks on sentence is to explain to the offender and to the community what sentence is being imposed and why. There is no requirement that remarks on sentence be anodyne or mealy-mouthed. If an offence is trivial, or comically inept, a sentencing judge is surely entitled to say so in the remarks on sentence. Conversely, where, as here, a series of offences is so serious as to inspire severe condemnation, I do not consider that a sentencing judge should be prohibited from using strong, even powerful, language, although it should never become inflamed or inflammatory. A similar approach to the use of powerful language in appropriate circumstances in remarks on sentence was taken by this Court in the recent decision of Lobsey v R [2012] NSWCCA 239 at [20] - [21]. 70In this case, every member of the Australian community would surely deplore the ordeal to which the applicant subjected an 83 year old woman in her own home. In describing what the applicant did to the victim that evening, one could expect such citizens to use language far more potent than the language used by his Honour. 71I do not consider that the language used by his Honour establishes an intemperate failure to approach the sentencing exercise properly, or a misjudgment as to the objective seriousness of the offences committed. 72It follows that I would not uphold ground four.

"With respect to count 2 the sentencing judge erred in commencing the sentencing process as if the offence fell into the worst category."

Background and submissions 73This ground was not the subject of written or oral submissions by senior counsel for the applicant. Nor was it addressed in writing by counsel for the respondent. 74Accordingly, I consider that I should deal with it very briefly.

Decision 75As I understand the ground, unilluminated by submissions, it seems to be suggesting that, if one subtracts the discount that resulted in a head sentence of imprisonment for 13 years on count 2, one arrives at a starting point head sentence of 17 years 4 months. That is approaching the maximum penalty of imprisonment available of 20 years. In light of that position, the ground seems to be asserting that that starting point head sentence is not consistent with the finding of his Honour that the offences were just below the worst case. 76In truth, therefore, ground five appears to be asserting that the head sentence imposed for count 2 is erroneously long. Accordingly, I shall deal with this particular argument when I come to consider ground six. 77I would not uphold ground five as a separate ground.

"The effective sentences imposed are manifestly excessive."

Background and submissions 78In written submissions, senior counsel for the applicant suggested that "the effect of the partial accumulation was such as to produce an overall sentence which is manifestly excessive". He invited attention to two decisions of this Court, both of which I will analyse shortly. 79Senior counsel for the applicant submitted that, if this ground were made out, this Court "ought to intervene and proceed to re-sentence an effective reduction in line with a disposition of the appeal" as to the total sentence in one of those decisions. 80Counsel for the respondent submitted that the degree of partial accumulation exhibited in this sentencing structure was open to the discretion of his Honour. She also submitted that the criminality encompassed by the offences called for condign punishment. She also referred to the very well-known principle to the effect that, in order to succeed in such a ground, an applicant must demonstrate not merely a severe sentence, but a sentence that is "plainly unreasonable or unjust": Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

Decision 81The applicant was sentenced for one explosion of criminality committed against one victim. No offence carried a maximum penalty of imprisonment for life. The offences of the applicant did not include homicide. He pleaded guilty at an early stage and was remorseful. He was 23 years old at the time of the offences. His criminal record, although lengthy, contained nothing approaching the seriousness of these offences; indeed, he had never been sentenced to imprisonment in a gaol before. In those circumstances, the imposition of a total head sentence of 16 years 6 months with a non-parole period of 11 years 6 months calls for careful consideration of this ground. 82I shall first consider the sentences individually, then totality, and then the total sentence in itself. 83Again, I will deal with the sentences in the chronological order in which they appear in the sentence structure. All offences, it will be recalled, are the subject of the undisputed characterisation by his Honour that they were "just below worst case". 84It will be recalled that count 3 featured a head sentence of imprisonment of 10 years 6 months with a non-parole period of 6 years 6 months, in the context of a maximum penalty of imprisonment for 25 years and a standard non-parole period of 7 years. The offence reflected the breaking and entering of the victim's house and the attempted penetration of the vagina of the victim with the penis of the applicant. That was attempted three or four times, and the victim felt the penis of the applicant press against her anus. The wounding was the circumstance of special aggravation. It will be recalled that the wounding was occasioned by way of the repeated bashing of the head of an elderly woman against a wall. Despite her request for her asthma inhaler, the applicant thereafter departed, leaving the victim bruised, bleeding, in great pain and struggling for breath. 85Taking everything into account, including of course the subjective features, I do not consider that sentence to be manifestly excessive. 86As for the sentence for count 1, it will be recalled that it consists of a head sentence of imprisonment for 12 years with a non-parole of imprisonment for 7 years 6 months. It was imposed in the context of a maximum penalty of imprisonment for 20 years with a standard non-parole period of imprisonment for 10 years. It featured the digital penetration of the vagina of the victim in the context of the infliction of a very substantial amount of actual bodily harm. 87I do not consider that the sentence is manifestly excessive. 88As for count 2, it will be recalled that a head sentence of imprisonment for 13 years with a non-parole period of imprisonment for 8 years was imposed. That was in the context of a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years. 89The sexual intercourse that founded the offence was penetration of the vagina by the penis of the applicant. It lasted for about 3 minutes. During the course of it, the applicant threatened the victim by way of claiming to have a knife (though his Honour was not satisfied that that was in fact the case). During the intercourse the victim was in pain, could feel her heart palpitating, and was struggling for breath. The applicant ejaculated inside her. The degradation of the victim was made more pronounced by the enquiry by the applicant as to whether she was enjoying the experience. 90As I have indicated with regard to this ground of appeal, I give consideration to the aspect that I understand is encapsulated in ground five. The head sentence is imprisonment for 13 years. Accordingly, when one adds on the discount for the utilitarian value of the plea of guilty, the starting point, reflecting all the objective and subjective features of the matter, must have been 17 years 4 months. The maximum penalty is imprisonment for 20 years. The finding of his Honour was that the offence was just below the worst class of case. Those circumstances give rise to the question as to whether the starting point was too high. 91Two things may be said with regard to that. The first is that this Court has cautioned against an analysis of starting points in order to determine whether a sentence is manifestly excessive: see SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [40], Rutkowsky v R [2008] NSWCCA 10 at [10] and Yousef v R [2011] NSWCCA 104 at [30]. Instead, attention should be focussed upon the sentence actually imposed. 92But even proceeding to undertake the analysis about which caution has been expressed, I come to the conclusion that the starting point is indeed approaching the maximum penalty but not inappropriately so, in all of the circumstances of this case. 93Considering the sentence as a whole, and leaving aside the analysis based on starting points, I do not consider that the sentence is manifestly excessive. 94In short, I do not determine that any individual sentence is manifestly excessive. 95I now consider the question of totality, reflected by the sentence structure adopted by his Honour. I proceed from the foundational proposition that a degree of partial accumulation was undoubtedly open to the discretion of his Honour; the question is whether the extent of the accumulation in this case has resulted in a total head sentence or total non-parole period that is manifestly excessive. 96Turning to the details of the sentencing structure, it can be seen that relatively short periods of custody are solely referable to the offences other than count 2. 97The structure is that the period actually to be served in custody for count 3 is 18 months. The s 166 offence is wholly concurrent with count 3. The period actually to be served in custody with regard to count 1 is 2 years. None of those aspects of the structure can be impugned by the applicant. 98The head sentence and non-parole period of count 2 are wholly cumulative on those two periods actually to be served. But they are, of course, substantially concurrent with the head sentences of both count 3 and count 1. 99I do not consider that those periods of accumulation can found a finding that error is established. It follows that I would not uphold the ground on the basis of an erroneous failure to reflect the principle of totality. 100I turn to the question of whether the total head sentence and total non-parole period are manifestly excessive. This was the focus of the oral and written submissions of senior counsel for the applicant. In particular he invited attention to two decisions of this Court: Brooks v R [2006] NSWCCA 169 and AA v R [2009] NSWCCA 109. Senior counsel did not provide this Court with any other materials, such as statistics, tables of cases at first instance or on appeal, case summaries, or further decisions of this Court, in support of this ground. 101In Brooks v R, the offender pleaded guilty to a number of offences. They were an offence of aggravated break and enter and committing an indictable offence, namely, aggravated sexual intercourse without consent; aggravated sexual intercourse without consent; attempted aggravated sexual intercourse without consent; a further offence of aggravated sexual intercourse without consent; and aggravated robbery. Each offence carried a maximum sentence of imprisonment for 20 years. For the aggravated break and enter offence there was a standard non-parole period of 5 years, and for the aggravated sexual assaults there was a standard non-parole period of 10 years. There were also offences on a Form 1. 102Briefly, the offender broke into the home of an 82 year old woman. He terrified her with a spanner. He penetrated her vagina digitally and with his penis. It is not clear whether the offender ejaculated. He also performed cunnilingus and attempted to force the victim to perform fellatio. The offender robbed the victim. It was found by the sentencing judge that the initial intention was to steal, not to sexually assault. 103The offender in that matter was aged 18 years at the time of the offences. He was on parole, and another sentence had expired only days before. He had a bad criminal record. He had been sexually assaulted as a child. His older brother had committed suicide. The offender in that case was not remorseful. His sentence was to be served on protection. A discount of 20 per cent was applied for the utilitarian value of pleas of guilty. At first instance an total head sentence of imprisonment for 17 years was imposed with an total non-parole period of imprisonment for 13 years. 104On appeal, a ground founded on the characterisation by the sentencing judge at first instance that the offences fell into the worst class of case was upheld. The aggregate sentence was reduced, with the result that there was a total head sentence of imprisonment for 14 years with a total non-parole period of 10 years 6 months. That was the result for which senior counsel for the applicant contended in this appeal in his written submissions. 105In some ways, the position of the applicant was more favourable than that of Brooks. In the case of the applicant, there was no robbery; there was no use of a weapon (although there was the threat thereof); the applicant had a less serious criminal record; there was a finding of remorse; and there was (one can assume from the discount given to Brooks) an earlier plea of guilty. 106In other ways, the position of the applicant was less favourable than that of Brooks. The applicant was aged 23, as opposed to 18, as at the date of the offences; he committed an offence carrying a maximum penalty of imprisonment for 25 years; he inflicted severe physical violence upon the victim above and beyond the violence inherent in the sexual offences; he intended to commit sexual offences at the time of entry, as opposed to opportunistically forming that intention later; his subjective features were less compelling; and there were prior offences that were found to have a sexual flavour. 107The exercise of comparing and contrasting the matter under consideration with the appeal in Brooks v R, with particular regard to the total head sentence and total non-parole period imposed on Brooks, does not persuade me that the total head sentence and non-parole period imposed upon the applicant are manifestly excessive. 108In AA v R, the offender detained and sexually assaulted a 32 year old woman in her car. There were two offences of aggravated sexual intercourse without consent, the circumstance of aggravation being the use of a knife to threaten to inflict actual bodily harm. Each of those offences carried a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years. There was also an offence of armed carjacking. That offence carried a maximum penalty of imprisonment for 14 years and a standard non-parole period of 5 years. There was also an offence of detaining with intent to obtain an advantage, which carried a maximum penalty of imprisonment for 14 years. 109A knife was used to effect the offences, and at times it was held firmly to the throat of the victim. There was digital penetration of the vagina of the victim, and penile penetration with ejaculation. It was found that, at the time he entered the vehicle, the offender intended to commit sexual offences. 110When he departed, the offender implicitly threatened the victim with death if she informed the authorities of his offences. 111The offender in AA v R was not yet 17 at the time of the offences. He entered an early plea of guilty, after having been served with DNA evidence. He had a bad record, including a previous matter of sexual intercourse without consent. His childhood had been marred by domestic violence and, at the age of 4, seeing his father commit suicide by way of a shotgun blast to the head. He suffered from Attention Deficit Hyperactivity Disorder and had low cognitive function. He was not found to be remorseful, on the basis that his level of functioning did not permit him to fully appreciate the gravity of what he had done. 112A ground founded upon the proposition that the total head sentence of imprisonment for 13 years with a total non-parole period of imprisonment for 9 years was manifestly excessive did not find favour in this Court. 113Again, in some ways the position of the applicant was more favourable than the position of AA. The applicant used no weapon; there was no threat of death; and the applicant had a less serious record. In other ways, the position of the applicant was worse: the applicant was substantially older than AA; the subjective circumstances of the applicant were less compelling; the victim of the applicant was more vulnerable; the offences were committed in the home of the victim; and finally, severe violence was visited upon an elderly and frail woman. 114Again, comparing of all of the salient aspects of the matter under consideration with the judgment in AA v R, and focussing in particular on the total head sentence and total non-parole period, I do not come to the conclusion that the total head sentence and aggregate non-parole period imposed in this matter are manifestly excessive. 115Speaking generally, it is not easy for this Court to seek to construe whether a sentence is manifestly excessive by comparison to one or two other cases that bear some objective or subjective similarities to the matter under appeal: see R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38. All cases turn on their own facts, and, as in the examples discussed here, there will be factors that point towards or away from a greater or lesser sentence. What needs to be shown by an applicant with regard to this ground is that the sentence is so far outside the range available to the discretion of the sentencing judge as to be clearly wrong. It is not easy for this Court to be satisfied of such a proposition on the basis of two other cases. 116Finally, although counsel for the respondent submitted that it was not appropriate, I consider that it is useful, in evaluating whether the total head sentence and non-parole period are manifestly excessive, to consider what the total head sentence and total non-parole period would have been if there had been a trial. That cannot be worked out mathematically, because the starting point reflects the finding of remorse, which would almost certainly have been absent if a trial had taken place. Nevertheless, if there had been a trial, I consider that it is useful to reflect on a total head sentence in the order of 22 years with a total non-parole period in the order of 15 years 6 months. Would such sentences have been appropriate in the circumstances? Apart from anything else, such a trial would have involved an 84 year old witness re-living the events of that evening. 117A hypothetical total sentence of that length would undoubtedly have been a heavy one. But the criminality to which it would have related was extreme. And the fact is that this Court does not shy away from the imposition of very lengthy sentences for offences of sexual violence of great brutality: see Haines v R [2012] NSWCCA 238. Ultimately, I am not satisfied that such a hypothetical sentence demonstrates that the total head sentence or total non-parole period actually imposed in this case is manifestly excessive. 118In short, I am not persuaded that any individual sentence is manifestly excessive; or that totality is erroneously reflected in the sentence structure; or that the total head sentence or total non-parole period actually imposed is manifestly excessive, whether by way of the comparisons with two other cases that senior counsel for the applicant invited this Court to undertake, or by way of consideration of the "starting point". 119It follows that I would not uphold ground six.

Orders 120I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed.

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: 04 February 2013

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