Porter v R

[2019] NSWCCA 117

Court of Criminal Appeal (NSW)|2019-05-01|Before: Hoeben CJ, Hulme J, Davies J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2019-05-01

Before

Hoeben CJ, Hulme J, Davies J

Catchwords

[2013] HCA 37 Dimian v R [2016] NSWCCA 223 Imbornone v R [2017] NSWCCA 144 Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37 Mill v The Queen (1988) 166 CLR 59

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Catchwords

[2013] HCA 37 Dimian v R [2016] NSWCCA 223 Imbornone v R [2017] NSWCCA 144 Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37 Mill v The Queen (1988) 166 CLR 59

Judgment (24 paragraphs)

[1]

Solicitors: Aboriginal Legal Service Solicitor for Public Prosecutions File Number(s): 2015/269235 Decision under appeal Court or tribunal: District Court Date of Decision: 19 February 2018 Before: Jeffreys DCJ File Number(s): 2015/269235

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Anthony Francis Porter (the applicant) was sentenced in respect of offences of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offences were committed against the same victim on the same occasion, namely late on the evening of 5-6 January 2002 in Griffith. The offences were reported at the time; although the applicant was not identified until DNA testing occurred in 2015. In February 2018, the applicant was sentenced to an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years. Relevantly, the applicant had been convicted and sentenced for similar serious sexual offences on two other occasions in February 2001 and February 2002. His sentences for those offences expired in 2016. The applicant sought leave to appeal in respect of the aggregate sentence imposed by Jeffreys DCJ. The grounds of appeal were: The sentencing judge erred in his approach to the principle of totality. The sentencing judge failed to make a determination as to remorse. The sentencing judge failed to make a determination as to the applicant's prospects for rehabilitation. The sentencing judge failed to make a determination as to the applicant's likelihood of reoffending. Whether the sentencing judge erred in his approach to the principle of totality (i) The sentencing judge should have addressed the question of "what would likely have been the effective head sentence imposed if the applicant had been sentenced at the one time for the three sets of aggravated sexual assaults against the three victims?" The sentencing judge erred in his failure to give reasons for his consideration of the "principle of totality in criminality", an issue which implicitly arose from consideration of the question. [50]-[55] (R A Hulme J); [1] (Hoeben CJ at CL); [94] (Davies J). Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 66, referred to. (ii) A relevant matter in consideration of the relevance of delay between offending and sentencing is whether it is attributable to the action or inaction of the offender. [69]-[74] (R A Hulme J); [1] (Hoeben CJ at CL); [94] (Davies J). R v Todd [1982] 2 NSWLR 517, Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, R v Kay [2004] NSWCCA 130; R v Hall [2017] NSWCCA 313 and WAP v R [2017] NSWCCA 212 referred to. (iii) Considering the principle of totality and the question posed in Mill v The Queen, if the applicant had been sentenced for all offences at the one time, the sentence for an offence committed last in time would likely have been longer. A third episode of serious sexual assaults within a relatively short time would have indicated that the offender was a danger to women. Personal deterrence and community protection would have been very significant factors. [76] (R A Hulme J); [1] (Hoeben CJ at CL); [94] (Davies J). Whether the sentencing judge failed to make a determination as to remorse, rehabilitation prospects and likelihood of reoffending (iv) The sentencing judge erred in his failure to make any determination in relation to the applicant's submissions and evidence in support of remorse as a mitigating factor in sentencing. [56]-[61] (R A Hulme J); [1] (Hoeben CJ at CL); [94] (Davies J). (v) The sentencing judge erred in his failure to give reasons for his determination in relation to the applicant's submissions as to prospects for rehabilitation and likelihood of reoffending. [62]-[66] (R A Hulme J); [1] (Hoeben CJ at CL); [94] (Davies J).

[4]

Facts

There was a statement of agreed facts. The applicant met the victim at a kebab shop in Griffith late on the night of 5-6 January 2002 as she was making her way home after a night out at a hotel. They were not previously known to each other. The applicant invited the victim to come to his house for coffee and she agreed. The pair were kissing and cuddling as they walked to the applicant's house. The victim was alarmed when he locked the back door after they entered. However, once inside the house they continued to kiss and cuddle. At some point, the victim said she was "not ready" as she was not "over" her ex-partner. The applicant "snapped" in response and punched her in the face a couple of times with a closed fist.
A fight ensued during which the applicant pulled the victim's hair. He grabbed a knife off the kitchen bench and told her that he was going to cut her. She was very frightened as the applicant held the knife in a threatening way. She sustained cuts to her hands during a struggle to defend herself.
The applicant dragged the victim by the hair, forcing her to walk backwards into the living area where there was a bed. He ripped some buttons off her shirt and jeans and threw her onto the bed with such force that the legs broke and the bed collapsed. By this stage, her clothing had been removed and she was wearing only underwear.
The fight continued on the bed with the victim trying to stop the applicant hitting her by pushing him away. He still had the knife in his hand and he made a threat concerning her daughter. He then proceeded to have penile/vaginal intercourse while holding the knife and tapping it against her leg so that she was aware that he still had it. When he removed his penis, the knife was pressed against her inner upper thigh. During the course of the assault, the applicant bit her on the upper part of her breasts which caused her immediate pain. That incident constituted the first count in the indictment.
The applicant continued to hold the knife in a threatening manner and placed it under her throat. He then forced her to perform fellatio, telling her that he would cut her if she did not swallow his semen. She complied with his demands because she feared for her life. The applicant ejaculated into her mouth and she swallowed. That incident constituted count 2 in the indictment.
The applicant told the victim that he was going to let her go, but if she went to the police he was going to do to her daughter what he had just done to her. Her daughter was 13 years old. She put her clothes back on but could not button up her shirt because it had been damaged. She was allowed to leave.
The victim walked away from the house in a disoriented state because she was in shock. She found herself outside the Griffith Hospital. She told hospital staff what had happened and she was treated. She submitted to a Sexual Assault Investigation Kit (SAIK) forensic medical examination. The police were called and she gave a brief version of the incident which was recorded. She did not say where the assault had occurred or the name that the applicant had given her because she was fearful for her safety and that of her daughter. She was frightened by the threats he had made and told police that she did not want the matter investigated.
The victim was unable to return to her work in Griffith due to the trauma of the assault. She moved her family to Leeton and then to Queensland. In 2015 she made contact with police. She gave approval for the SAIK to be tested which revealed semen in the high vaginal swab with the same DNA profile as the applicant. She made a detailed statement to police on 29 June 2015.
The applicant was arrested on 16 September 2015 and declined to be interviewed.
The statement of agreed facts concludes by indicating that there had been an issue with the continuity and integrity of the SAIK which was not resolved until the day before the applicant's trial was due to commence. Pleas of guilty were entered on 21 November 2017. The judge said he would reduce the sentences he would otherwise have imposed on the applicant by 12½ per cent.

[8]

Detaining for advantage and aggravated sexual assault of a woman in Griffith on 2 February 2002

The applicant was sentenced by his Honour Judge Knight on 20 February 2003 in respect of two offences committed against another victim at Griffith on 2 February 2002. The first offence was one of detaining the victim without her consent and with intent to hold her for advantage, namely sexual gratification, contrary to s 86(1) of the Crimes Act. For that offence, the maximum penalty was imprisonment for 14 years. The second offence was sexual intercourse without consent with the infliction of actual bodily harm contrary to s 61J of the Crimes Act.
Taken into account in the assessment of sentence for the s 61J offence was one offence of assault, one of sexual intercourse without consent, two of aggravated sexual intercourse without consent, and one of indecent assault.
The offences occurred in the early hours of the morning when the victim was walking home in the company of the applicant. After she refused his request to go to her home for coffee he violently assaulted her, forcing her to take his penis in her mouth and then engaging in penile/vaginal intercourse. The applicant threatened to kill the victim a number of times during the incident. When it concluded, she ran home and reported the matter.
Knight DCJ found the offences involved very considerable criminality. He noted that at the time they were committed the applicant was on a good behaviour bond for an offence of assault, and was also on bail in respect of the offences for which he had since been sentenced by Coleman DCJ. He took into account the applicant's pleas of guilty as a mitigating factor in a variety of ways. He referred to his subjective circumstances, including his having had a disadvantaged upbringing of the type referred to by Wood CJ at CL in R v Fernando (1992) 76 A Crim R 58. He noted that the applicant was very heavily intoxicated on the night of the offences which he regarded as an explanation but not an excuse.
Knight DCJ said that he had regard to the principle of totality in looking at the total sentence which would result from the combination of the sentences imposed by Coleman DCJ and the sentences that he was to impose. He reduced the sentences he imposed for each offence by 5 days to take account of a period of pre-sentence custody. He imposed sentences of 4 years, 360 days as a fixed term and 8 years, 360 days with a non-parole period of 4 years, 360 days. Both sentences were specified to date from 28 July 2007, which was the date on which the non-parole period imposed by Coleman DCJ was to expire.

[10]

Personal circumstances of the applicant

There was no documentary or oral evidence in the applicant's case. The only source of information about his personal circumstances was a Pre-Sentence Report included in the Crown tender bundle, supplemented by information derived from the sentencing remarks of Coleman DCJ and Knight DCJ.
The sentencing judge summarised the applicant's background as follows. He was 44 years of age at the time of sentencing and 29 at the time of the offences. He was brought up at West Wyalong. His mother was of Aboriginal background and he had never met his father who had left when the applicant's mother was pregnant. She later remarried but his stepfather drank and was violent towards his mother and the children.
The applicant left school after Year 9 after a history of adjustment problems and reading difficulties. He had three adult children from two relationships but had had no contact with them for about 12 months prior to sentencing. He had no contact with his siblings for a number of years. His mother remained supportive and he was intending to live with her and his stepfather on release.
The applicant commenced drinking alcohol at the age of 13 and developed a weekend pattern of binge drinking. By the age of 16 he was consuming alcohol daily. He told the Community Corrections officer that he had significantly reduced his alcohol intake to a recreational level by about the age of 29. The judge observed that this was in contrast to a report by Dr Nielssen, psychiatrist, which was referred to in the judgment of Coleman DCJ. Dr Nielssen had made a diagnosis of alcohol use disorder. The applicant told the Community Corrections officer that he was heavily intoxicated at the time of the index offences.
The applicant was released on parole in 2012. Conditions of his parole required that he abstain from the use of alcohol, comply with an exclusion zone and submit to electronic monitoring. Community Corrections indicated that he appeared to remain compliant on parole, obtained employment, and maintained attendance upon a counsellor with the Sex Offender Program Unit. His progress was considered positive.
On 30 April 2014, the applicant returned to custody in relation to fresh charges. His parole was revoked as a consequence, but after the fresh charges were dismissed he was released again on parole on 29 April 2015. Parole was then revoked on 19 February 2016 due to non-compliance with the alcohol abstention condition. He was released upon completion of his sentence on 23 July 2016.
The sentencing judge noted that the applicant had a criminal record prior to the time he was sentenced by Coleman DCJ on 22 November 2002, but he did not consider it to be of any significance. He referred to the record (prior to that sentencing) as containing "some driving offences in relation to driving with a midrange prescribed concentration of alcohol, there was a matter when he was in West Wyalong Children's Court, and an offence of driving in a manner dangerous to the public".
His Honour did not mention that at the time of the offence, the applicant was on a good behaviour bond that had been imposed on 10 August 2001 for an offence of assault. That was prior to the sentencing by Coleman DCJ and the bond was current at the time of commission of the index offences. It is also pertinent to note that the sentencing judge said nothing about the fact that at the time the index offences were committed, the applicant's prior offending included a similarly violent sexual assault.
The judge concluded this part of his sentencing remarks by noting again that the applicant had told the Community Corrections officer that he was intoxicated at the time of the offence. He also told the officer that his memory of the offences was fragmented. The judge said that being intoxicated at the time of the offending "does not mean that the use of alcohol is an excuse but it is a matter that I need to take into account in relation to the offending". The judge did not explain how he fulfilled the perceived need to take this into account. He was prohibited from regarding it as a mitigating factor by s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [2]

[12]

Ground 1 - error in the approach to the principle of totality

The applicant acknowledged that the judge had referred to and summarised the sentencing remarks of both Coleman DCJ and Knight DCJ. However, it was submitted that he did not at any stage refer to the fact that the overall effective sentence which resulted from the sentences imposed by those two judges was 14 years with a non-parole period of 10 years. Nor did the judge ask himself what the overall effective sentence would be when the aggregate sentence he had in mind was added to this total.
It was submitted that what the judge should have done was to consider what would be the appropriate head sentence if the applicant had been sentenced for all of the offences at the one time. Reference was made to Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 and Dimian v R [2016] NSWCCA 223 at [61] (Davies J, Hoeben CJ at CL and Hall J agreeing). It was submitted that "the combined overall effective sentence was … 22 years with a non-parole period … of 14 years". [3]
It was submitted that the judge should have either further backdated the sentence pursuant to s 47 of the Crimes (Sentencing Procedure) Act or have otherwise reduced the sentences, and it is not apparent that he did either of those things. It was submitted that the only way in which the judge appeared to have taken the earlier sentences into account in relation to totality was by adding it to the list of factors supporting the finding of special circumstances.
The Crown submitted that the judge recognised that the totality of the sentences imposed for all offences must be taken into consideration. He was aware of the sentences imposed by the other two judges and said: "Insofar as the question of totality is concerned it seems to me that I need to consider the sentences imposed by his Honour Judge Coleman and his Honour Judge Knight and the fact that there has been some delay in relation to sentence for the offender in relation to these matters. It seems to me I need to, in accordance with authority, consider the effect of sentencing the offender in relation to all three episodes of offending at about the same time."
The Crown also submitted that it could be inferred that the judge had considered issues of totality and reduced the sentences accordingly. The basis for this inference was said to be found in his Honour's description of the offences as "objectively very serious" and his reference to various aggravating and other factors that bore upon objective seriousness.
Reference was also made to the judge's finding of special circumstances, partly on the basis of totality, and the "considerable leniency" in reducing the non-parole period to 50% of the aggregate head sentence.

[13]

Consideration

The applicant's primary submission in relation to this ground involves a contention that the judge erred by not asking himself the question suggested in Mill v The Queen (at 66). Translated to the facts of this case, the question would be: what would likely have been the effective head sentence imposed if the applicant had been sentenced at the one time for the three sets of aggravated sexual assaults against the three victims? Implicit in the question is the need to consider the principle of totality of criminality which, to state it briefly, requires a judge to ensure that the total effective, or aggregate, sentence is derived through a process of accumulation or concurrency of individual sentences so that it appropriately reflects (but does not exceed) the overall criminality in multiple offences: see, for example, Mill v The Queen (at 63).
The judge alluded to the question by stating, "I need to, in accordance with authority, consider the effect of sentencing the offender in relation to all three episodes of offending at about the same time". Unfortunately, the judge did not then say how he considered that effect. The only express indication of his Honour's thinking is that he took "totality" into account in finding special circumstances for reducing the proportion of the sentence represented by the non-parole period. He gave no reason for confining the consideration of totality to that issue. The High Court confirmed in Mill v The Queen (at 66) that the issue relates to the assessment of both the total term and the non-parole period.
The applicant is correct to say that the judge did not refer to the total effect of the sentences imposed by Coleman DCJ and Knight DCJ, being a period of imprisonment for 14 years with a non-parole period of 10 years. He is also correct to say that the judge did not state that the effect of the sentence he was imposing was "an overall effective sentence of just under twenty-two years with a non-parole period of just under fourteen years". [4]
It might be a desirable matter for a judge to indicate an awareness of such a state of affairs, particularly if the earlier sentences are still operative so that there is a continuous period of custody. But in this case, the earlier sentences had all expired, and the applicant had been released. This introduces a degree of artificiality in the applicant's argument. If the sentences had all been imposed at the same time and the sentence for the present matter completely accumulated upon the sentences for the others, the result would have been a term of 18 years with a non-parole component of 14 years. But given the expiry of the preceding sentences, the applicant says the overall effect is a term of 22 years with a non-parole period of 14 years. This is artificial because, for example, if it is thought that totality required that the applicant serve an additional 4 years for the present offences, it was hardly to be expected (and was not contended) that the judge would impose fixed terms of that length.
In any event, the preponderance of authority supports the proposition that totality is a relevant matter for a sentencing judge to consider in a case such as this. There is, as such, a lack of reasoning in the judgment of the sentencing judge on this issue, with his only apparent response to the issue appearing to be confined, for some unstated reason, to the amelioration of the non-parole period. The contention by the Crown that he must have also reduced the overall sentence from what it otherwise would have been is, because of the absence of reasons, speculative.
This ground must be upheld. It will be a matter for this Court to make its own determination in the course of exercising the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (per French CJ, Hayne, Bell and Keane JJ).

[19]

Delay and totality

This case is to be contrasted with R v Todd [1982] 2 NSWLR 517 and Mill v The Queen in that in those cases, the delay in sentencing the offenders was beyond their control. It was a result of an aspect of the criminal justice system, namely that they had committed crimes in different jurisdictions and had to wait until they had served terms of imprisonment in one jurisdiction before being transferred to another jurisdiction for sentencing. In this case, the delay was largely attributable to the psychological trauma the applicant caused the victim. Part of that trauma derived from his threat that if she reported the matter to police, he would do to her 13-year-old daughter what he had just done to her. It prompted her to leave the town in which she lived, then ultimately moving interstate.
A consideration of some other cases that have come before this Court where the delay has been attributable to the actions or inactions of the offender is of guidance in determining the approach to be taken in resentencing.
In R v Kay [2004] NSWCCA 130 and in R v Hall [2017] NSWCCA 313, the delay was largely attributable to the offenders avoiding detection for their crimes for many years. The consequence was that delay was of reduced significance in the assessment of sentence. The same applies to the present case.
In WAP v R [2017] NSWCCA 212, the offender was sentenced for sexual assaults and an armed robbery committed in March 1992. He committed other serious sexual assault offences in July 1993 for which he was sentenced in 1994 and resentenced following an appeal to this Court in 1996. He was released on parole in 2003. He was identified as the perpetrator of the March 1992 offences by a "cold case" DNA match made in 2012. He was arrested in 2013 and sentenced in 2016. The sentencing judge expressly took delay into account, but noted that it was largely caused by the time it took to identify the offender as the perpetrator and the time between his arrest and his delayed plea of guilty. The judge also said "other sentences imposed in respect of the 1993 offences [were] taken into account in the overall assessment of totality".
A ground of appeal in this Court was that "the sentencing judge erred in failing to give adequate weight to the circumstances of delay and the principle of totality in relation to sentences imposed for other offences committed by the Applicant in 1993". Johnson J (with the concurrence of the other members of the Court) said (at [91]) that "in the circumstances of this case, delay was of very limited assistance to the Applicant". He had not been left in a state of uncertain suspense; nor had he demonstrated rehabilitation; nor was he still serving a sentence imposed for the second set of sexual offences in 1993 (nor any other later sentence of imprisonment). His Honour continued: "[93] Although the totality principle can be called in aid by an offender in the position of the Applicant, it is necessary to keep in mind the particular circumstances of the case in determining what weight could be given to it. [94] When sentence came to be imposed in the District Court and then the Court of Criminal Appeal for the 1993 offences, the Applicant's case was assessed upon the basis that he had no prior sexual assault offences. In truth, he had committed the very serious offences in 1992 against the present victim. [95] Had the same sentencing court sentenced the Applicant for both sets of offences at the same time, this aspect would have worsened the Applicant's position on sentence. [96] When the Applicant came to be sentenced in 2016 for the 1992 offences, the Court could have regard to the 1993 offences only with respect to his further offending in a similar fashion after the 1992 offences. [97] In truth, the Applicant came to be sentenced by two different sentencing courts on different occasions without the Applicant being sentenced upon the basis that, when he committed the very serious 1993 offences, he had committed very serious offences of a similar type in the previous year. To approach notional totality in circumstances such as this involves a measure of artificiality."
In the present case, a concession was made to the primary judge by the applicant's solicitor: "I note, with respect to some delay cases, a factor which courts take into account is whether the offender is left in a state of uncertain suspense. In Hall [R v Hall [2017] NSWCCA 313] it was considered that that was not an appropriate consideration where the offender had decamped and it was by reason of the offender's silence that the delay was prolonged, and that is a similar consideration here." (POS 17.6) (Emphasis added)
This tends to explain why the applicant's case in this Court has not been directed to aspects of delay of the type described in Todd v R. Submissions have been confined to the need to apply the principle of totality. But there is, as Johnson J pointed out in WAP v R, a "measure of artificiality" about this.
During the course of the hearing in this Court, [6] the Crown Prosecutor pointed out that a particularly egregious aspect of the offending was that not only was the applicant on bail for the offences ultimately dealt with by Coleman DCJ, but the offences were committed just six weeks prior to the first trial date that had been fixed for those offences. [7] Moreover, the offences ultimately dealt with by Knight DCJ occurred only 2½ weeks before that trial date.
When considering totality and the question posed in Mill v The Queen (what would be likely to have been the effective head sentence imposed if the applicant had been sentenced for all of the offences at the one time), the answer is that the applicant would likely have received a further sentence for the offences in question that would have been accumulated, substantially or completely, upon the other sentences. In addition, he would likely have received a longer sentence in respect of the offences committed last in time, because at that time he would have had two prior occasions of serious sexual offending, not one. Putting it bluntly, it would have been apparent that by the commission of the third set of sexual assaults within the space of a year, the applicant would not have been regarded merely as an offender with a prior single occasion of similar offending, but an emerging serial rapist who posed a significant danger to women. Personal deterrence and protection of the community would have been very significant factors in the assessment of sentence.
The result of all of this is that if the applicant had been sentenced for all three of these terrible sexual assaults at the one time, the present incident would have warranted a significant extension upon the term that would otherwise have been imposed for the other incidents.

[21]

Rehabilitation prospects and unlikelihood of reoffending

As indicated earlier, the applicant advanced a number of factors that were said to support the primary judge making a finding that the mitigating factors of the applicant's unlikelihood of reoffending and good rehabilitation prospects were established: Crimes (Sentencing Procedure) Act, s 21A(3)(g) and (h). On the material before this Court, the following matters appear significant.
The Pre-Sentence Report included that while the applicant appeared to make progress during his initial period on parole, he breached that parole by breaching the condition as to alcohol abstention, which resulted in his parole being revoked. The report also included that the applicant had a criminal history indicating violent behaviour, and a perusal of Corrective Services NSW records indicated that in 2012, the applicant admitted to being unable to control his anger. Although he claimed at that time to have implemented strategies to address this issue, Community Corrections were unable to verify that.
On 4 September 2016, after having completed his earlier sentence and while on bail for the present offences, the applicant breached an apprehended domestic violence order for which he ultimately received a good behaviour bond.
Although the Pre-Sentence Report included that the applicant's mother would provide accommodation for him on release, he did not have any other extended family support available to him.
The applicant's custodial history contains 10 entries for disciplinary infractions including possession or creation of prohibited goods, refusing or failing to provide a urine sample, and failing a prescribed urine test. Most of these are some years ago (2009-2012) but there is one in 2016 and the last ("unlawfully deliver/receive article inmate") was on 16 March 2019.
The author of the Pre-Sentence Report made an assessment that the applicant presented a medium risk of reoffending. She considered that he would benefit from a period of supervision when released on parole, and that case management strategies should include referral to Forensic Psychological Services for community based treatment. Earlier in the report it was indicated that such treatment would be for a period of 6 to 12 months.
An affidavit affirmed by the applicant on 4 March 2019 describes his progress and behaviour in custody since being sentenced. He has completed a vocational course; he has been employed; and he is currently classified for minimum security. He has employment arranged for when he is released as a wood splitter with a firewood organisation. He has maintained contact with his three adult children. He will be eligible for an intensive custody-based sex offenders' treatment program in the 12 months preceding his anticipated release.
These various matters point in different directions. Having regard to their combined effect, it is not established on the balance of probabilities that the applicant's rehabilitation prospects are "good" or that his prospect of reoffending is "unlikely".

Porter v R

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