R v Adamson

(iii) The trial judge gave appropriate weight to all relevant circumstances, including the youth of the offender.

(iv) The trial judge did not err in not finding special circumstances.

(v) Discussion as the relevance of statistical information.

(i) Although the sentence imposed in respect of each offence was not manifestly excessive the overall sentence was.

(ii) The correct length of the sentences in totality is 12 ½ years after taking into account the gravity of the offences, the applicant's plea of guilty, his attempts to revive the deceased and his youth. The sentence for manslaughter should commence from 7 June 2001.

(iii) The trial judge did not err in not finding special circumstances. Considering the gravity of the offence, the non-parole period should be, on a totality basis, 9 years.

(ii) Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL CCA 60495/01

BEAZLEY JA BELL J SMART AJA

Monday, 26 August 2002 REGINA v adamson Judgment

BEAZLEY JA: Introduction 1 This is an application by the offender, Gerald Adamson, for leave to appeal against the severity of the sentences imposed by his Honour Justice Howie in respect of one count of manslaughter and two counts of aggravated sexual assault. 2 The applicant pleaded guilty before his Honour to all three counts. His Honour sentenced the applicant to a total sentence of 14 years with a non-parole period of 10½ years. The sentence was structured as follows:

(i) in respect of each offence of aggravated sexual intercourse he imposed a fixed term of 8 years to commence on 7 January 2000 and expire on 6 January 2008; and

(ii) in respect of the manslaughter offence, he imposed a sentence of 11 years with a non-parole period of 7½ years to commence on 7 January 2003.

Facts 3 There is no challenge on the application for leave to appeal to the facts upon which his Honour sentenced the applicant. In summary those facts were as follows. 4 On 31 October 1999, the applicant attended a party at a home in Putney. He did not know the host but was 'invited' by one of the guests who had gone to the local hotel, where the applicant was with some friends, to purchase some alcohol. The applicant arrived at the party at about 11.30pm. 5 The deceased had arrived at the party at about 9.30 pm with a female friend, and, it appears, drank fairly heavily during the evening. She was described as being well affected by alcohol at different times during the evening, although it was possible that because of a medical condition, she was more intoxicated than might otherwise have been expected from the amount of alcohol she drank. 6 At about 3am the deceased and the female friend decided to stay the night at the premises because the deceased did not want to drive home and felt she might be ill if she went home in a taxi. The deceased and her friend went to an upstairs bedroom with another male friend. The deceased fell asleep and the other two friends who had been talking left the room. The male friend checked on the deceased several times over the next hour as the female friend had expressed concern for the deceased because of her state of sobriety. On each occasion he went to the room, the deceased was asleep. On the last occasion he checked he again observed the deceased to be asleep. On this occasion however, there was a man lying on the bed beside the deceased and he also appeared to be asleep. 7 Shortly before 6am the host and a friend entered the bedroom in search of one of the other guests and observed the applicant and another person (who was clearly the deceased) on the floor next to the bed. The applicant was on his hands and knees and was wearing only his underpants. He was leaning over the person and appeared surprised to see them. Assuming that the applicant was involved, or about to become involved, in sexual intercourse, the two men left the bedroom. Shortly after this incident, sometime between 6am and 6.30am, the deceased was observed by different people who entered the room, to be lying on her stomach on the floor beside the bed. 8 At approximately 6.30am the applicant alerted others in the house that something was wrong with the deceased. The deceased by then was lying at the left side of the bed, face down, with her head to one side. She was very cold and did not appear to have a pulse. An ambulance was called and the applicant and another person commenced an attempt to resuscitate her. The applicant was quite agitated, swearing and urging the deceased to wake up. When the attempts at resuscitation did not appear to be succeeding, the applicant lifted the deceased and carried her outside to the front of the house. He and others again attempted resuscitation. The applicant continued to be highly agitated and was still swearing and yelling when paramedics arrived. 9 The deceased by this time had no pulse and was not breathing. Ambulance offices were able to regain a pulse but the deceased did not return to spontaneous respiration. The deceased was taken to hospital and remained on life support until that support was removed. She died in the early evening of the next day. 10 An autopsy was conducted on 2 November 1999 by Dr Bradhurst. The particular injuries noted by Dr Bradhurst were a bruise to the left lower eyelid, injuries to the right cheek and tongue, bruising to the lower lip and fingernail abrasions to the neck. He concluded from the presence of the haemorrhages over her face that she had died from asphyxiation and considered that injuries to her face and mouth were consistent with a hand having been placed over her mouth and nose and that the abrasions to the neck were possibly consistent with an attempt by the deceased to release the hand which was stopping her from breathing. She had a serious recent injury to her anus. 11 Dr Edwards, an expert in sexual assault trauma, was of the opinion that the deceased had been subjected to anal intercourse painful enough to wake her even if she were under the influence of alcohol. 12 Although the applicant pleaded guilty to manslaughter, and thereby admitted that he was responsible for the death of the deceased due to an unlawful and dangerous act, there was a dispute at the hearing on sentence as to the precise manner in which death had occurred. His Honour held that he was satisfied beyond reasonable doubt that the applicant placed his hand over the deceased's mouth thereby blocking her nose and that this act resulted in her death. His Honour was also satisfied beyond reasonable doubt that he deliberately placed his hand over the deceased's mouth so that during intercourse she would not be able to attract the attention of other persons in the house. His Honour stated that upon those findings the manslaughter was "a very serious one". He explained his reasons for reaching this conclusion as follows: "This is so notwithstanding that, unlike most cases of unlawful and dangerous act manslaughter, the [applicant] did not use a weapon in order to injure or threaten the victim. But the act causing death was committed in the course of the [applicant] carrying out two serious sexual assault offences upon the victim in circumstances where the [applicant] knew she had virtually no opportunity or capacity to resist his attack upon her. Further, he intentionally performed the act causing the death of the deceased so that he could carry out the sexual assaults upon her." 13 His Honour sentenced the applicant "on the basis that" his criminal conduct: "was not planned to any extent and may have arisen on the spur of the moment when he saw the opportunity that the sleeping victim presented to him."

However, he considered that, given the grave seriousness of the criminal conduct in which he was engaged, lack of premeditation was not a matter of "significant" mitigation. 14 His Honour allowed a little more than a 10% discount for the plea of guilty and accepted that, albeit belatedly, and still with a degree of confusion and resistance, the applicant had shown some remorse and some acceptance of responsibility for his conduct. 15 The applicant was aged 19 years and 3 months at the time of the commission of the offence. He is now nearly 22 years of age. He came to Australia from New Zealand with his family when he was 10. He comes from a caring and supportive family and on psychiatric assessment is not suffering from any psychiatric disease or personality disorder, although he exhibits some anti-social traits in his personality, in the form of aggression and self centred tendencies. 16 The applicant has two previous serious convictions for malicious wounding and supply a prohibited drug. On appeal from his sentence in respect of the malicious wounding conviction he was sentenced to 100 hours community service. A supervision order was made in respect of the drug offence.

Grounds of Appeal 17 The applicant seeks leave to appeal against sentence on 3 bases: first, that the sentence imposed in respect of each offence is manifestly excessive; secondly, that the overall sentence and non-parole period was manifestly excessive; and thirdly, his Honour erred in failing to find special circumstances. There is no complaint made in respect of the partial accumulation of the sentences except to the extent that the overall sentence was manifestly excessive.

Sentence in Respect of Each Offence was Manifestly Excessive 18 In support of the submission that the sentence was manifestly excessive the applicant drew attention to the following matters. First, he said there were significant mitigating factors in his favour: the lack of pre-meditation; the applicant's attempts to rescue the situation by alerting others and then by performing CPR; the admissions made to the police; his remorse; his youth; and the fact that except for his two previous serious offences, one involving violence, he was a young person with a number of positive features which undoubtedly pointed favourably to his rehabilitative prospects. 19 Secondly, the applicant also contended that the sentences imposed by his Honour for the sexual assault offences were at the top of the range when regard was had to the Judicial Commission's sentencing statistics. 20 In this regard, there was a significant difference between the approach taken by the applicant and that of the Crown in relation to the s 61J offences. The applicant submitted that an examination of those statistics revealed that the sentences imposed for these offences was at the top of the range. In the 7 year period from January 1994 until December 2000, 253 people were sentenced for offences under s 61J. According to the applicant's analysis only 17 offenders or 6.71%, received a non-parole period of 8 years or more. The median non-parole period was 3 years and 4 months. 21 The applicant did a further analysis of the statistics for the year 2000 where there is a particular breakdown of s 61J offences according to aggravating feature. In respect of offences under para 2(a), "at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby", being the matter of aggravation involved in this case in respect of both the s 61J offences, 9 offences were listed. On the statistical information only one person received a non-parole period of the same magnitude. That was Stephen Boney. Stephen Boney was sentenced to a term of 12 years for the offence of aggravated assault. The Court specified a non-parole period of 8 years. It was submitted that R v Boney (unreported, New South Wales District Court, Bellear J, 30 October 2000) involved considerably greater criminality than the present case. 22 Two things need to be observed about this submission. First, Howie J in this case did not specify a non-parole period for the s 61J offences because of the lack of utility in doing so, as the non-parole period he specified for the manslaughter sentence exceeded the sentences imposed for the s 61J offences. That approach was appropriate given the sentences imposed by his Honour. It also underscores the point made by the Crown on this issue - namely, that it is inappropriate to compare the sentence imposed for the s 61J offences in this case with the non-parole period specified in Boney. The correct comparison is as between the full term. A consideration of the statistics for almost a similar period relied upon by the Crown (July 1994 to June 2000) indicated that a head sentence or full term of 8 years or more was imposed on 26% of the total of offenders. A further break down of those statistics revealed that 13% were given a head or full term sentence of 8 years, 11% were given 7 years and 2% were given 9 years. 23 The Crown also drew attention to the care which needed to be exercised in the use of statistics. According to the Judicial Information Research System (JIRS): "… The statistics are appearance (or person) based and only the 'principal offence' for each finalised matter is retained for use in JIRS. All secondary offences are excluded from the data. … Where two or more charges are proved against a person, the charge with the most severe penalty is taken as the 'principal offence' …"

See R v Bloomfield (1998) 44 NSWLR 734; R v Shorten (unreported, New South Wales Court of Criminal Appeal, 10 September 1997); R v AEM [2002] NSWCCA 58. 24 With respect to the applicant's argument on this point, it is imperative to compare like with like when using statistics. In this case, his Honour chose not to impose a non-parole period. On the statistical evidence these sentences were clearly within a discretionary range of sentences imposed for the offence. 25 Putting the statistical material to one side, the second point which needs to be observed in relation to the applicant's submission is that sexual assault is a very serious crime. Howie J recognised this when he said that these two offences of themselves called for serious punishment. 26 What then of the particular circumstances of the commission of these offences and the personal circumstances of the applicant? Did they disclose that the sentences imposed in respect of the s 61J offences were manifestly excessive? 27 The appellant submitted that there were a number of mitigating factors which were relevant to be considered in determining the appropriate sentence. The appellant acknowledges that the trial judge accorded some weight to certain of these factors. In particular he acknowledges that some weight was given to the fact that the offences were not premeditated and to the fact that he alerted a number of the guests at the party that he had found the victim unconscious and had also performed CPR on her in an attempt to revive her. In my opinion his Honour gave these matters appropriate weight for the reasons he gave. 28 The real matter of complaint is that his Honour failed to give appropriate weight to the appellant's youth. In this regard, the appellant submitted: "He was 19 years old when he committed the offences. Even in the most serious crimes, the Court should give significant weight to the fact that the applicant was only a very young man when he committed the offences." 29 The significance to be attached to the youth of an offender in the sentencing process has been the subject of frequent judicial comment. This is not the occasion to review those decisions in any detail. It is helpful however to have a broad understanding of the court's approach to the treatment of young offenders. In doing so, it is important to keep in mind that often when a court has entered upon such discussion the offender whose sentence is being considered was a juvenile when the offence was committed. Care must therefore be taken when considering the application of any of these statements to a particular case. It is also relevant that there are a variety of reasons why the youth of an offender may be a significant factor in the sentencing process, including "the immaturity which is usually involved": R v Hearne (2001) 124 A Crim R 451 at para 25. 30 Sometimes it is appropriate, having regard to the youth of an offender, for a court to give prominence to the rehabilitation of the offender and less significance to general deterrence. In GDP (1991) 53 A Crim R 112, the Court cited with approval the acceptance by Gleeson CJ in C, S and T (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Allen J and Studdert J, 12 October 1989) of a submission that "in sentencing of young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed." The Court in GDP observed at 116 that "rehabilitation must be the primary aim in relation to an offender as young as this applicant" . The offender in that case, however, was only 15 years of age at the time of commission of the crime and the Court has already found that he had "extraordinary prospects of rehabilitation" and " had already rehabilitated himself to a substantial degree". 31 The other factor accepted by Gleeson CJ in the passage quoted above is the lesser role which should be attached to general deterrence in the case of a young offender. The interrelationship between youth and general deterrence was considered by this Court in R v AEM [2002] NSWCCA 58, this Court (Beazley JA, Wood CJ at CL and Sully J) stating at para 97: "It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society ." (emphasis added)

The Court then referred to R v Nichol (1991) 57 A Crim R 391 where Lee CJ at CL said at 395: "True it is however that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided … However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way ." (emphasis added) 32 This case is very different from the factual circumstances in AEM and the appellant's acts were not premeditated. However, there were two serious sexual assaults involved, carried out in circumstances of such violence as to result in the death of the victim. In my opinion, the role of general deterrence in a case of this nature should not be given any lesser emphasis merely because the offences committed were not premeditated. 33 The appellant did not advance any reason beyond his 19 years of age as to why his youth was "the most important subjective mitigating factor". He was young but he was not a juvenile. I do not consider that there was anything in the nature or circumstances of the offence or the personal circumstances of the appellant which required any significant allowance to be made for his youth. It is clear that the sentencing judge had the age of the appellant firmly in mind when determining the appropriate sentence: see his Remarks on Sentence para 61. I do not consider that there was any error in the weight he gave to this factor. 34 The applicant also relied upon statistical material to argue that the sentence imposed for the manslaughter offence was at the top of the range and particularly so for an offender within the appellant's age group. The statistics indicated that between January 1994 to December 2000, 196 people were sentenced for one or more offences of manslaughter. Of those, 11.71% received sentences of 12 years or more and 9.61% received a non-parole period of 8 years or more. 35 There were 38 offenders under the age of 21 sentenced to one or more offences of manslaughter. One offender received a sentence of 12 years. The maximum non-parole period imposed was 7 years (in 3 cases). 36 The Crown submitted that the data did not disclose that the sentence was beyond the range when consideration was given to the wide variety of variables in such data. Those variables include whether in other cases there were or were not other offences for which the same offenders were standing for sentence at the same time; if so, how serious those offences were; what weight was being given to the relative youth of those offenders when the sentences were imposed and so on. 37 As to the use of the statistics for comparison purposes, the offence of manslaughter covers a particularly wide range of factual circumstances and is therefore one where appropriate penalties vary, perhaps more than for any other serious crime contained within the criminal calendar: see R v Elliott (unreported, New South Wales Court of Criminal Appeal, 14 February 1991). 38 In R v Bloomfield, Spigelman CJ noted at 739 that "[s]tatistics are least likely to be useful where the circumstances of the individual instances of the offence vary greatly, such as manslaughter". 39 There is no doubt that the sentence imposed for manslaughter was severe. His Honour said: "The sentence I am about to impose is what would generally be considered by the courts to be a harsh sentence for an offender as young as the prisoner was when he committed these offences. The sentence for the manslaughter offence will be one of the longest sentences imposed upon a person of the prisoner's age after a plea of guilty." 40 His Honour gave the following reasons for imposing that sentence: "[In the present case] the sentence must both denounce the prisoner's conduct and attempt to act as a deterrent to other young men who might be minded as the prisoner was to take advantage of a defenceless young female for his sexual gratification." 41 In my opinion his Honour's approach was justified. This Court has consistently emphasised the need for general deterrence and public denunciation of serious crime: see R v Harrison (1997) 93 A Crim R 314. The particular conduct involved in the manslaughter offence committed here calls for full application of those principles. A harsh sentence is not of itself manifestly excessive. 42 Subject to the considerations arising under the second ground of appeal (including the effect of the partial accumulation of the sentences) the sentences on their face are not manifestly excessive.

The Overall Sentence and Non-Parole Period was Manifestly Excessive 43 The applicant further submitted that his Honour erred in that he penalised the applicant twice for the same criminal conduct: see Pearce v The Queen (1998) 194 CLR 610. 44 Pearce was concerned with offences under ss 33 and 110 of the Crimes Act NSW. Relevantly for present purposes, s 33 is the offence of maliciously inflicting grievous bodily harm with intent. Section 110 is the offence of entering a dwelling house and inflicting grievous bodily harm. The two charges had arisen out of the same incident. Concurrent sentences were imposed in respect of these offences. One of the questions which arose for consideration was whether the offender had been doubly punished for the same act. McHugh, Hayne and Callinan JJ observed at 613 that the elements of the offences overlap, but were not identical. They concluded on this issue at 623: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 45 Although their Honours in this passage referred to common elements of the offence, it is apparent from their consideration of the issue that the concern is to ensure that an offender sentenced for more than one offence is not punished twice for the same conduct, except to the extent that that is required by statute. See also R v Hoar (1981) 148 CLR 32 at 38. 46 The matter of aggravation in respect of both sexual assaults (being counts 2 and 3 in the indictment) was the infliction of actual bodily harm. In respect of count 2, his Honour identified the actual bodily harm as the injury inflicted during anal intercourse. His Honour did not specify the actual bodily harm which was the matter of aggravation in respect of count 3. However, on the appeal, both counsel for the appellant and the Crown proceeded on the basis that the relevant conduct was the infliction of the injuries to the face and neck. In relation to the infliction of those injuries his Honour found: "1. the injuries to the face are consistent with a hand being placed over her mouth and there are some injuries which were unlikely to have been caused by resuscitation attempts; 2. the injuries to her neck were consistent with an attempt by her to remove the object inhibiting her breathing; 3. there was evidence that the prisoner's DNA was found under the fingernails of the deceased; … 5. the evidence of the deceased's state of sobriety is not consistent with her being comatose at the time sexual intercourse took place nor does it suggest that she was intoxicated to such a degree that she would have been unable to respond to a blockage of airways; …" 47 Those findings formed part of his Honour's reasoning in determining that he was satisfied beyond reasonable doubt that the applicant placed his hand over the mouth of the deceased and as a result suffocated her. 48 The applicant argued that he had been doubly punished in two respects. First, it was said that the "same criminal act", namely the placing of the applicant's hand over the victim's nose and mouth and the injury caused to her neck was relied on both in the second s 61J offence and as a matter of aggravation in the manslaughter offence. Secondly, it was further submitted that his Honour held that the commission of the sexual assaults also justified imposing a longer sentence for manslaughter. 49 In support of this submission, counsel for the applicant said: "[b]y increasing the sentence for the manslaughter offence and then partially accumulating that sentence on the sexual offences, his Honour punished the applicant twice for the same acts." 50 It is important to recognise that there are two aspects of the first part of the applicant's argument. The first is whether, in the manner in which his Honour dealt with the offences, there were common aspects of the second count of sexual assault and the manslaughter offence. The second is whether, if there were common aspects, his Honour took that into account on the sentence so as to ensure that the applicant was not doubly punished for what was effectively the one act. 51 The Crown submitted that his Honour in fact made two discrete but related findings of fact. First, the injuries to the face and neck were the actual bodily harm referable to the second s 61J offence. Secondly, the applicant's placing and keeping his hand over the mouth and nose of the deceased was the act by which the death of the deceased occurred. It was submitted that notwithstanding that the injuries to the face and neck were caused at the same time and were the result of the applicant's hand being placed over the deceased's mouth, the two matters are in fact distinct and were so treated by his Honour. 52 For my part, I am not sure that his Honour drew that distinction. His remarks on sentence are silent on the question just as they are silent on the question of what constituted the actual bodily harm on the second sexual assault count. More importantly, however, I am not satisfied that such a distinction can reasonably be drawn. The injuries to the face and neck were inflicted by the applicant as part of the act which caused the death. In other words, the one act, the placing of the hand over the deceased's mouth and nose had two consequences - the infliction of injury and suffocation. But it remained the one act. It is not an error of course to find that the one act formed part of the conduct in the commission of separate offences. The error is if an offender is thereby doubly punished. This is the second consideration referred to in para 43. 53 In Pearce the High Court assumed that there had been double punishment because concurrent sentences had been imposed. Here, his Honour partially accumulated the sentence for manslaughter on the sentences for the aggravated sexual assaults. There are a number of reasons why a judge might accumulate sentences. One is to ensure that the punishment thereby imposed reflects the separate criminality of the offences. In my opinion, even though I have concluded that there were common acts involved, there is nothing in his Honour's reasons to indicate that he imposed a double punishment. Partial accumulation of the sentences would indicate that he did not. 54 The applicant also contended that his Honour erred in that he found that the manslaughter was aggravated by the fact that it was committed as part of the carrying out of the sexual assaults. I have already set out the relevant part of his Honour's remarks on sentence: see para 12 above. The applicant submitted that in lengthening the sentence for the manslaughter and accumulating it upon the sentences for the sexual assaults, his Honour thereby punished him twice for the same act. I do not agree. At that point in his Honour's judgment he was considering the seriousness of the offences. In doing so he was required to look at the circumstances in which the offences were committed. To do that is not to thereby inflict double punishment. 55 Although the effect of the sentences imposed by his Honour is that the overall sentence is severe, it cannot be said, in my opinion, that his Honour erred as alleged. Nor can it be said that the overall effect of the sentence is such that it is manifestly excessive. In the passage to which I have referred at para 12 above and which is relied upon by the applicant to indicate error, his Honour explained why the offences committed here involved serious objective criminality. As I have already explained, to the extent there were mitigating features they were of a minor order. In my opinion, the sentence imposed was one which could have properly imposed by the sentencing judge and it is not open, therefore, for this Court to interfere.

Special Circumstances 56 The applicant also submitted that his Honour erred in finding that there was no reason in this case to set a non-parole period greater than that specified in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour stated: "Clearly because of his youth, the fact that this will be his first time in custody and his general subjective features a court would normally be prepared to find special circumstances existed were the overall sentence not as long as that which must be imposed for these offences. In my view the relationship between the total sentence and the non-parole period prescribed by s 44 of the Crimes Sentencing Procedure Act is sufficient to provide him with an adequate parole period. Therefore, I am not persuaded that there are special circumstances requiring or justifying a reduction in the non-parole period." 57 Section 44 is the successor to the provisions of s 5(2) of the Sentencing Act 1989. In relation to that section the Court said in R v GDR (1994) 35 NSWLR 376, at 381 - 382: "Section 5(2) is a statutory provision which constrains a sentencing judge's exercise of discretion. The language of the provision is clear. The additional term must not exceed one-third of the minimum term unless the court considers that there are special circumstances. The statute does not provide that the additional term must not be less than one-third of the minimum term. The discretion of a sentencing judge who would otherwise be minded to set an additional term exceeding one-third of the minimum term is constrained by s 5(2). There is nothing in s 5 which constrains the discretion of a sentencing judge in relation to setting an additional term less than one-third of the minimum term." 58 In my opinion, although others may have found special circumstances and by virtue of that specified a different non-parole period, it is necessary for an applicant to show error. It must be remembered that s 44 acts as a fetter on the exercise of discretion which is required to be exercised. As Spigelman CJ pointed out in R v Simpson [2001] NSWCCA 534, there are well known restraints on an appellate court interfering with a sentencing judge's determination of this matter. His Honour said: "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 59 The appellant did not point to any specific error in his Honour's remarks on this issue. It must said that there seems no more in the complaint than that in circumstances such as these it would be expected that there would be a finding of special circumstances. That sentiment does not reveal error.

Orders 60 Accordingly, the orders I would propose are:

(ii) appeal dismissed. 61 BELL J: I agree with Beazley JA. 62 SMART AJ: The applicant challenges his sentences for manslaughter (count 1 of the indictment) and two counts of aggravated sexual assault (counts 2 and 3) individually and as a matter of totality. The applicant was sentenced to imprisonment for a fixed term of 8 years on each of the two counts of aggravated sexual assault, commencing on 7 January 2000, to be served concurrently. For the manslaughter he was sentenced to imprisonment for 11 years with a non-parole period of 7½ years commencing on 7 January 2003. Thus the total term of imprisonment was 14 years and the non-parole period was 10½ years. A full narration of the facts appears in the careful and detailed remarks of the sentencing judge. A brief summary follows. 63 On the evening of 30 October 1999 a party was in progress at a large three-level home in Putney. It had been organised by the son of the owners who were absent. The son had asked quite a number of guests and some guests, with the concurrence of the son, invited other guests. The deceased, who was aged 21, and known to the son drove herself and several of her friends to the party arriving about 9.30pm. 64 On that evening the applicant, who was then aged 19, and several of his friends were at a hotel in Gladesville when they were invited to attend the party by a guest who was collecting more alcohol. They accepted the invitation and travelled with this person to Putney, arriving at the party about 11.30pm. Most of the guests at the party were tertiary students and in the age bracket of 19 to 23. The applicant and some of his friends did not fit in to this category. It seems that the party was a lively affair with a lot of drinking, much use of the spa and pool and watching the semi-final of the World Cup Rugby competition between Australia and South Africa. Some of the American students were celebrating Halloween. It was a large party with the estimated attendance being about 70 guests. 65 The deceased appears to have spent her first few hours at the party drinking alcohol and generally socialising with other guests. At times during the party she was well affected by alcohol. She drank both wine and spirits. About 3am the deceased and a friend decided they were going to stay the night at the premises. The deceased was feeling the effects of her consumption of alcohol and thought that she might be ill if she went home in a taxi. A short time later she went to one of the upstairs bedrooms with a female friend followed by a male friend. The deceased lay on the bed and within a short period she fell asleep. The female friend told the male friend that the deceased was very drunk and they would have to watch over her. The medical evidence was to the effect that about 6.30am the deceased's blood alcohol level would not have been less than 0.088 and would not have exceeded 0.106. She had been either resting on the bed or sleeping from about 3am until an uncertain time but probably between 5.15am and 5.45am. 66 Several times between about 3am and 4am the male friend went upstairs and checked on her. A little later the male friend and others noticed the deceased and a male person lying on opposite sides of the bed, apparently asleep. Shortly before 6am two males saw that the applicant and another person were on the floor next to the bed. The applicant was on his hands and knees wearing only his underpants. Assuming that he was involved, or about to become involved in sexual intercourse, the two males left the bedroom. Between about 6am and 6.30am the deceased was observed lying on her stomach on the floor beside the bed. 67 About 6.30am the applicant alerted others in the house that something was wrong with the deceased. Urgent attempts were made by him and others to resuscitate her, but she did not return to spontaneous respiration. She died in the early evening of the next day after life support was removed. 68 Dr Bradhurst, who conducted an autopsy on the deceased on 2 November 1999, concluded that the existence of certain haemorrhages over her face indicated that the cause of death was asphyxiation from smothering. Dr Edwards, an expert in sexual assault trauma, thought that the deceased had been subjected to anal intercourse that was likely to have been painful enough to wake her even if she were under the influence of alcohol. 69 Initially, the applicant denied any involvement in the death of the deceased. He was less than frank and truthful. The police persisted with their investigation and eventually he made a number of admissions. 70 The judge summed up what the applicant told the police thus: "In summary the account given by the prisoner was that he entered the bedroom wearing only underpants, as he had been swimming in the spa. He saw the deceased lying on the bed. He began to fondle her and they rolled off the bed onto the floor. The prisoner then took off his underpants and pulled the deceased's underpants to the side. While the deceased was kneeling head down on the floor, the prisoner knelt behind her and engaged in vaginal and anal intercourse. He said that he recalls her head was turned to the side and resting on a pillow or an item of clothing. The deceased did not speak a word while he was in the bedroom."

The judge continued: "The plea of guilty to manslaughter admits that the prisoner was responsible for the death of the deceased as a result of an act of his that was both unlawful and dangerous. The plea of guilty to the two aggravated sexual assault offences admits that he had sexual intercourse with the deceased and he was at least reckless as to whether she was consenting to sexual intercourse. The matter of aggravation alleged is that he caused her actual bodily harm, that being the injury inflicted during anal intercourse." 71 The judge did not specify further the matters of aggravation. However, it appears from the post mortem report that there was a posterior ano-rectal haemorrhoid next to a small longitudinal superficial linear recent red ano-rectal abrasion. They constituted an injury to her anus and were consistent with anal intercourse. This was the subject of the first count of aggravated sexual intercourse (count 2 of the indictment). The other matters of aggravation relating to the other count of aggravated sexual intercourse were petechial haemorrhages over the face and around the eyes, some small bruises over her face and some very small linear abrasions on the right side of her neck. 72 After reviewing the evidence the judge held that he was satisfied of these matters beyond reasonable doubt:

(i) the applicant had sexual intercourse with the deceased knowing that she was not consenting, and

(ii) he placed his hand over her mouth thereby blocking her nose and that this act resulted in her death.

(iii) he deliberately placed his hand over her mouth so that during intercourse she would not be able to attract the attention of other persons in the house. 73 The judge reached these conclusions "Upon these findings the manslaughter is a very serious one … the act causing death was committed in the course of the prisoner carrying out two serious sexual assault offences … in circumstances where the prisoner knew she had virtually no opportunity or capacity to resist his attack upon her. Further, he intentionally performed the act causing the death of the deceased so that he could carry out the sexual assaults upon her." 74 The judge sentenced the applicant on the basis that his criminal conduct was not planned to any extent and may have arisen on the spur of the moment when he saw the opportunity that the sleeping victim presented to him. However, the judge took the view that this was "hardly a momentary lapse". 75 The judge found some mitigation in the applicant raising the alarm, not leaving the house, and trying to resuscitate her. He allowed an overall discount of about 12½ per cent for what he regarded as the late plea of guilty and some contrition by the applicant. He deducted 2 years from the total sentence he would otherwise impose. The judge noted that there was some evidence from the applicant's father and the consultant psychiatrist that the applicant was finally accepting some responsibility for what he did. 76 The judge noted that when the applicant was aged 16 he was sentenced to 100 hours community service. Following an argument over drugs, the applicant chased a fellow student and stabbed him. The judge said that there was a disturbing aspect of the applicant's personality as evidenced by two serious offences within three years and thought that this required attention. The applicant was dealt with earlier in 1997 for supplying a prohibited drug and placed on probation to be supervised for 18 months. The judge noted that the applicant came from a good and supportive family. The judge declined to find special circumstances because he thought that the 3½ years which the applicant would normally spend on parole (one-quarter of 14 years) was an adequate parole period. 77 The judge recognised that he was imposing very long sentences. He stated that he had given them anxious consideration because of the applicant's youth and the need to avoid a sentence which would crush his incentive and prospects for reform. He continued: "But in the present case the sentence must both denounce the prisoner's conduct and attempt to act as a deterrent to other young men who might be so minded as the prisoner was to take advantage of a defenceless young female for his sexual gratification." 78 The judge received in evidence a victim impact statement by the mother of the deceased. That reminded the Court of the tragedy and the suffering of the deceased's family. 79 The evidence of the applicant's father reveals that while at school the applicant had trouble academically. He was not a fast learner. His parents kept him at school until the School Certificate. Since leaving school he had been employed, but on relatively unskilled or labouring work. His capacity is limited. 80 Dr B Westmore, consultant psychiatrist, said that the applicant needed drug and alcohol counselling and contact with a psychologist because of the magnitude of his difficulties. They included the occasional acts of violence as well as the substance abuse. The psychologist would need to explore whether the applicant was by nature aggressive in sexual activity or this was an isolated incident occurring following the ambience of the night and after the consumption of a large amount of alcohol. At T64 of 18 May 2001 Dr Westmore and the judge seemed to be agreed that what happened was not a planned activity but opportunistic, the applicant coming across a young lady who was the worse for wear from alcohol and he took advantage of her, he too being under the influence of alcohol. 81 Initially the applicant was charged with murder not manslaughter. A voir dire was held to determine the admissibility of, in effect, three recorded interviews between the applicant and the investigating police. Issues of some substance were raised but ultimately the judge was not required to determine the admissibility of the evidence. On the sixth day of the voir dire hearing the applicant was re-arraigned and pleaded not guilty to murder but guilty to manslaughter and to the two charges of aggravated sexual assault. The Crown wisely accepted those pleas in full satisfaction and discharge of the indictment. The applicant would not have changed his pleas as he did if the Crown had not indicated that it would accept a plea of guilty to manslaughter. While the applicant could have pleaded guilty to manslaughter when first arraigned, that would be an unrealistic course to take in the circumstances of this case unless it were known that the Crown would accept a plea of manslaughter in discharge. In the circumstances it is unsound to treat the plea of guilty to manslaughter as a late plea. 82 At the time the plea was entered the jury had not been empanelled and the plea avoided what would have been a lengthy trial. There were about 45 Crown witnesses, some of whom would have been lengthy. The statements of the witnesses at the party were not wholly consistent. Indeed, the judge, in his remarks, rejected some of the evidence of the son who organised the party. The plea also avoided the distress that some of the witnesses, especially the family members and close friends, would have experienced in giving evidence. The plea facilitated the administration of justice as did the admissions earlier made by the applicant to the police. I have not overlooked the initial denials. 83 In support of his argument that the sentences were manifestly excessive the applicant relied heavily upon his youth (19 years 3 months) at the time of the commission of the offences. The legal principles applicable to sentencing young offenders have been discussed extensively in the courts of the United Kingdom, the courts of other Australian States and this Court. 84 One of the earliest cases dealing with the significance of the youth of the offender was R v Smith noted at [1964] Crim LR 70 and The Times, 15 November 1963, p3. That has been the starting point for many later cases. One of the most comprehensive statements of principle is to be found in R v Mihailovic, Howard, Morgan and Young (unreported, 15 April and 24 July 1991). A group of young men caused a male who had left his telephone number on a toilet wall to be lured to a public toilet, savagely beaten and kicked to death. Three of the young men were convicted of murder while Young was convicted of manslaughter. In his reasons Badgery-Parker J stated at 19: "Judgments of this court have repeatedly recognised the significance of the youth of an offender in the determination of an appropriate sentence. Even in respect of crimes as serious as that of which these young men stand convicted, different policy considerations apply from those which apply in the case of a mature adult. … Considerations of the prospects of rehabilitation of the offender may properly be preferred to considerations of punishment and of general deterrence."

and at 20-21: "The Court of Criminal Appeal in Regina v Fitzpatrick, 20 December 1979 recognised the principle in Smith to which reference has just been made but emphasized that there may yet be cases where the nature of the crime committed, and the public reaction to it and expectation of retribution may require the imposition of a minimum period of imprisonment of some substance. In every case, all of the relevant factors must be balanced. It does not automatically follow from the application of the principle in Smith that a young offender will not receive a heavy sentence of imprisonment; by the same token, punishment is not to be determined by reference simply to the objective facts, horrific though they may be.

… There is always a tension between the purposes sought to be achieved by the imposition of a punishment for serious crime. The youth of the offenders and the importance of their rehabilitation necessarily plays a large part in the sentencing process but does not permit the court to disregard other important elements of punishment - where appropriate, personal deterrence of the offender; general deterrence, that is to say the need to dissuade others from similar conduct; and public vindication of the law. The sentences imposed must be such as will demonstrate with the utmost clarity that the community will not tolerate violence of this kind." 85 There were other issues. On the men's appeal various other issues loomed larger. [R v Howard & Ors1992) 29 NSWLR 242 at 258]. This Court (Gleeson CJ, Sheller JA and Lee AJ), after dealing with these acknowledged that the youth of the appellants was a matter calling for special care and that it was given close and proper consideration by Badgery-Parker J. They too had anxiously considered it. That case was decided in November 1992 86 It followed on the decision of this Court in Pham and Ly (1991) 55 A Crim R 128. The Court was there dealing with the case of a Griffith remand for 12 months for robbery-related offences in company against victims who were in the privacy of their own home. Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed) said: "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft [1975] VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, ie, coercive action is fundamental to correctional treatment in our society." 87 Reference was made to the earlier statement by Lee CJ at CL in R v Nichol (1991) 57 A Crim R 391 at 395: "True it is however that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided … However, there is a point at which the seriousness of the crime committed by a man of 19, even though, a young man is of such a nature, is so great, that that principle must in the public interest, give way." 88 I have reservations about stating the principle in that way. First, the courts have always emphasised the need to have regard to the objective gravity of the offence. As a result a young offender may receive a heavy sentence of imprisonment for a very grave crime or crimes. However, in the case of a young offender, punishment is not determined simply by reference to the objective facts however grave they may be. A balance has to be achieved. Secondly, if in the passage quoted Lee CJ at CL intended to suggest that the youth of the offender effectively plays no part in the sentencing exercise where serious crime is involved, I would respectfully disagree. Such an approach is not consistent with what Hunt CJ at CL said in R v Townsend & Cooper (unrep. CCA 14 February 1995) and R v Hearne [2001] NSWCCA 37, para 39. 89 While special care is taken where the offender is young and deep consideration given to the rehabilitation of that offender and the interests of the community in that rehabilitation, these matters are not allowed to outweigh the gravity of the offence. There are the further important aspects of denunciation of the applicant's conduct, deterrence, punishment, retribution and vindication of the law. A proper balance has to be achieved in the light of the circumstances of each case. From his remarks, the judge attempted to achieve that balance. That is not an easy task. The applicant contends that the judge did not achieve that balance and gave insufficient weight to the youth of the applicant. 90 The applicant contended that he had been punished twice for essentially the same act, namely, placing his hand over the nose and mouth of the deceased. It was that act which led to the smothering of the deceased and the injuries she received to her face. It was the injuries to the deceased's face and neck which constituted the actual bodily harm. The judge accepted that the injuries to the neck were consistent with an attempt by her to remove the object inhibiting her breathing. He was satisfied that the applicant deliberately placed his hand over her mouth so that during intercourse she would not be able to attract the attention of other persons in the house. The judge found that the act causing death was committed in the course of the applicant carrying out two sexual assault offences. 91 It is not in doubt that essentially the same act may be involved in the commission of two offences, that is, the aggravated sexual assault or assaults and manslaughter and that different aspects of that act may be important in respect of the different offences. It is possible to have an assault occasioning actual bodily harm to the deceased's face which does not lead to her death. In the present case, however, it was the placing of the hand over the nose and mouth of the deceased (including keeping it there) which constituted the circumstances of aggravation and led to the aggravated sexual assault and also constituted the act causing death. 92 The judge did not embark upon subtle and unreal distinctions. The principal gravamen of counts 2 and 3 was the sexual assault. The act occasioning actual bodily harm was, in each case, a circumstance of aggravation, which was pleaded and admitted. The placing and keeping of the hand over the nose and mouth, while preventing the applicant calling for help, did not add a great deal to the rape (sexual assault) which was occurring. The same act was of critical importance in the manslaughter. While I accept as a matter of practice, if not as a rule of law, that a person should not be twice punished for what is substantially the same act (The Queen v Hoar (1981) 148 CLR 32 at 38) that is not what happened in the present case. The overlap was relatively small and is offset by the overlapping of the sentences. Of course, where the bodily injury relied on was the anal injury, no question arises of the same act constituting both the circumstance of aggravation and the act causing death. 93 I do not wish to add anything to what Beazley JA has written on the applicant's reliance on statistics. I do not regard any of the individual sentences as manifestly excessive. Accordingly, I would reject Appeal Ground 1, namely, that the sentences in relation to each offence were manifestly excessive. Each of the offences was a very serious one, warranting the sentence imposed. As to the sexual assault, the applicant took advantage of a young lady who was sleeping and had had too much to drink at a party at which he also was a guest. He was aware of her condition and that either she was not consenting or he was reckless in that regard. As to the manslaughter she died of asphyxiation when he put his hand across her nose and mouth. 94 Appeal Ground 2 alleges that the overall total sentence and non-parole period were manifestly excessive. All three sentences were towards the top of the range for the offences in question. While three serious offences were committed they were all part of one brief episode lasting some minutes. The applicant never intended to kill the deceased. Placing and keeping his hand over her mouth and nose was unlawful and dangerous. Allowance has to be made when considering the totality of the sentences that the act causing death also constituted the circumstance of aggravation on one of the sexual assault counts. 95 After placing the primary emphasis upon the objective gravity of the offences, but taking into account the applicant's pleas of guilty, his attempts to revive the deceased including the help he sought, the circumstances of the evening and his youth, the sentences in totality are manifestly excessive. The correct length of the sentences in totality is 12½ years. I would commence the sentence of 11 years for manslaughter as from 7 June 2001. 96 Having regard primarily to the youth of the offender I propose to consider the contention that the non-parole period was manifestly excessive in conjunction with Appeal Ground 3,namely that the judge erred in failing to find special circumstances. 97 The judge took the view that the relationship between the total sentence and the non-parole period prescribed by s.44 of the Crimes (Sentencing Procedure) Act was sufficient to provide the applicant with an adequate parole period. On the law as it was generally understood prior to R v Simpson [2001] NSWCCA 534 this approach was unobjectionable. Simpson, a decision of a five judge Bench, considered s.44 of the Crimes (Sentencing Procedure) Act 1999, the successor of s.5 of the Sentencing Act 1989 and the question of special circumstances in some depth and tended to re-focus the approach that had previously been taken to the matter of special circumstances. 98 In Simpson at para 45 Spigelman CJ, with whom Mason P, Grove J and Newman AJ agreed, stated that while Hunt CJ at CL in Phelan (1993) 66 A Crim R 446 at 449-450 expressly adopted the perspective of a longer than usual period of supervision on parole when dealing with the issue of special circumstances under s.5 of the Sentencing Act 1989 he was identifying the most common rather than an exclusive perspective. Again, as Spigelman CJ pointed out in Simpson, supra at para 49, in R v GDR (1994) 35 NSWLR 376, this Court constituted by five judges, indicated that while the perspective involved in approaching the determination of special circumstances from the point of view of a longer than usual non-parole period is a permissible one, it does not constitute an exclusive perspective. 99 In Simpson at para 57 Spigelman CJ said: "The reasoning in Power [(1973) 131 CLR 623] indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as primary perspective. This has the effect that the scope of the considerations relevant to the determination of 'special circumstances' must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected." 100 In Simpson at para 65 the Chief Justice stated (citations omitted): "In addition to the need to identify and articulate 'special circumstances', in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. " 101 At para 68 the Chief Justice continued: "By s44(2) the non-parole period is not to be less than three quarters of the head sentence 'unless the court decides there are special circumstances for it being less'. This qualificatory clause requires a 'decision' by application of the composite requirement that the 'circumstances' be sufficiently 'special' for the statutory proportion to be reduced. 102 At para 69 the Chief Justice rejected a restrictive approach to the scope of considerations relevant to the determination by a court of what constitutes special circumstances in a particular case. 103 The question of the non-parole period should be determined primarily from the perspective of the length of the minimum period required of actual incarceration. That period is in the range of eight years six months to nine years six months. Any period less than eight years six months would not adequately reflect the gravity of the offences. Any period more than nine years six months would be excessive. The applicant's youth, the fact that he had never been in custody prior to these offences and the fact that when he is eligible to be released he will have spent most of his adult life in prison point in favour of a finding of special circumstances. However, a major allowance cannot be made on this account otherwise a non-parole period would be set which does not adequately reflect the gravity of these three very serious offences. In the circumstances of the present case the correct non-parole period on a totality basis is 9 years. It follows that I would not disturb the non-parole period of 7½ years for manslaughter. 104 I propose the following orders:

(iii) Dismiss the appeals against the sentences of imprisonment of 8 years fixed term commencing on 7 January 2000 on each of the counts of aggravated sexual assault (counts 2 and 3);

(iv) Dismiss the appeal against the sentence of imprisonment of 11 years for manslaughter (count 1) with a non-parole period of 7½ years but vary the date of the commencement of that sentence of 11 years to 7 June 2001 so that the sentence expires on 6 June 2012 and the non-parole period commences on 7 June 2001 and expires on 6 January 2009. On that date the applicant will be eligible for release on parole.

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