R v Baverstock

WOOD CJ at CL SIMPSON J ADAMS J

Thursday 14 August 2003 Regina v Alan Baverstock Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence imposed by his Honour Judge Sides on 7 June 2002 in the District Court at Campbelltown. The applicant pleaded guilty to six counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. In respect of count 6, three additional offences of sexual intercourse without consent were taken into account on a Form 1, along with a count of common assault. 2 An agreed statement of facts was tendered which indicated that the applicant had met the complainant in 1998 in China after having been introduced by the complainant's cousin. They married in China on 3 March 1998. Afterwards the applicant returned to Australia. The complainant, however, remained in China awaiting the processing of her immigration visa. She was granted a temporary resident visa on 16 October 2000 after which she came to Australia. Thereafter she resided with the applicant in his unit at Warrick Farm. 3 The series of charges all relate to episodes of somewhat bizarre behaviour by the applicant. In essence, they related to a period between January and February 2001 during which time the applicant forced his wife to engage in acts of bondage where he tied her with neck ties, and/or wrist ties, and/or ankle ties to the bed against her will, and then performed the various acts of sexual intercourse complained of. 4 The applicant was aware of the absence of consent, on the part of the complainant, to these acts since that was evidenced by her continued crying throughout the various incidents, and by her protestations, for example, "No, no, I'm very scared" and "Stop". On one occasion the applicant said to her, "Alan happy" to which she replied, "Ti not happy" and added, "Don't do this to me. Don't make love to me until you untie me". The applicant replied, "This Australia, not China". He also said on occasions, "Go China", or words to a similar effect, which she understood to mean that she would be returned to China if she did not comply with his sexual demands. 5 The complainant was overcome by these threats, being vulnerable by reason of her temporary visa status. While she no doubt would have agreed to the individual acts of sexual intercourse, it was the fact of the bondage demands which negated her consent. Apart from her own cries or protestations about his demands, her cousin, had remonstrated with the applicant on one occasion, and had asked him not to tie her up. He had, however, responded that his former wife had enjoyed such practices. He did indicate that he would cease these requests but it was a false promise in that he continued to behave in a similar way. 6 The sentences were set to be served concurrently, although with a one year accumulation of the sentence for count 6. They were as follows: (a) Counts 1 and 2, sexual intercourse without consent involving incidents of cunnilingus (count 1), and fellatio (count 2) occurring on 15 February 2001, - imprisonment for four and a half years on each count, to commence on 7 June 2002, with non-parole periods of two years, also to commence on 7 June 2002 and to expire on 6 June 2004. (b) Counts 3, 4 and 5, sexual intercourse without consent involving incidents occurring on 24 February 2001, cunnilingus (count 3), digital penetration of the vagina (count 4), digital penetration of the anus and vagina (count 5), - imprisonment for three years on each count, to commence on 7 June 2002, with non-parole periods of two years, also to commence on 7 June 2002 and to expire on 6 June 2004. (c) Count 6, taking into account four matters on the Form 1, involving a continuation of events on 24 February 2001, during which the applicant digitally penetrated the complainant's vagina and anus for another two minutes, - imprisonment for six years to commence on 7 June 2003 with a non-parole period of two years and six months, to expire on 6 December 2005. 7 The four matters on the Form 1 related to offences occurring as follows: (a) Early January 2001, common assault involving an incident when the applicant tied the complainant to a bed with neck ties without her consent. (b) - (d) A few days before 15 February 2001, sexual intercourse without consent involving incidents of tying the complainant up and then engaging, irrespectively, in penile penetration of her vagina and mouth, and also in cunnilingus. 8 The effective sentencing order was accordingly one of imprisonment for seven years with an effective non-parole period of three years and six months.

Ground 1 - The manner in which his Honour dealt with the offences on the Form 1. 9 When taking the Form 1 offences into account, his Honour had remarked: "So far as count 6 is concerned, that is the offence for which the Court has indicated it will take the matters into account on a form 1 schedule. As I have said, in my view, the assault would normally, if it stood to be sentenced alone, call for a section 9 bond and I do not see that it is appropriate to extend the sentence for count 6 at all in relation to the assault. So far as offences 2 and 3 on the form 1 schedule [they being acts of penile penetration of the vagina and of the mouth] the sentence in relation for count 6 should be extended by two years for each of them. The final count is an act of cunnilingus on 15 February. In my view, the sentence should be extended by eighteen months in relation to that matter. The Court then needs to consider the question of totality so far as count 6 and the matters on a schedule are concerned. In my view, the sentence for that matter should be extended by two year[s] to reflect the matters on the schedule." 10 After providing for 12 months accumulation in relation to count 6, so as to allow for the total criminality involved in the various counts, and also to allow for the special circumstances which were found to exist relating to the applicant's age, the fact that this would be his first time in custody, and also the fact of accumulation of sentence, his Honour determined that there should be a non-parole period set for count 6 of two and a half years, equivalent to three and a half years after accumulation. 11 It was submitted that in the way that the Form 1 offences were taken into account, his Honour had failed to give proper effect to the principles which were subsequently expressed in the guideline judgment of this Court in Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518, and in particular to the following passages in the judgment of Spigelman CJ: "39. The sentencing court is sentencing only for the "principal offence". It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence. 40. In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, i.e. the primary offence. 41. In Barton at [64], in a passage subsequently referred to in R v AEM Snr at [81] and R v Perese at [81], I made some observations which I repeat. 42. The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

… 44. The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69].)"

12 It is to be observed that his Honour came to sentence the applicant prior to this judgment being handed down, however, he did have the benefit of the decision of Spigelman CJ in Regina v Barton (2001) 121 A Crim R 185, much of which formed the genesis of the guideline judgment. 13 To the extent that his Honour followed a practice of quantifying the individual sentences, in relation to the Form 1 matters, and then indicated the extent to which the sentence for count 1 should be enlarged, it would appear that his Honour did depart from the preferred approach for a sentencing judge which was identified, in particular, in paragraph 44 of the reasons of the Chief Justice in the guideline judgment. When sentencing in relation to the primary count, it is for that offence that the sentence needs to be set. However, consistently with the guideline judgment, there has to be some additional punishment imposed in relation to the Form 1 offences. 14 It is important that sentencing judges do not approach the exercise upon the basis that they are also sentencing individually for the Form 1 matters, and then adding the sentences which would have been considered appropriate for those matters to the sentence that would have been set for the primary offence. 15 It does not seem that his Honour did fall into that error, since, if each of the individual sentences which he had thought appropriate for the Form 1 matters had been added to the sentence which his Honour said was appropriate for count 6, then it might have been expected that he would have extended the sentence for that count by five and a half years, rather than 2 years. However, having regard to a possibility of error in the approach which was taken, I am of the view that it is necessary for us to review the sentence. 16 In that regard, it has also to be borne in mind that, if an error of this kind is shown to have occurred, that does not necessarily mean that the Court will quash the sentence and impose a lower sentence. In Regina v Kay [2002] NSWCCA 286, Carruthers AJ said: "It is common ground that the hearing of the appeal, particularly in the light of decisions handed down by this Court, subsequent to the sentencing process, errors of law had been established on the part of the sentencing judge. Counsel for the applicant realistically acknowledged, however, that it is not sufficient for the applicant to establish error before this Court would quash the subject sentences and impose lesser sentences. It is necessary that this Court be satisfied that `Some other sentence is warranted in law and should have been passed.' (See ss 63 of the Criminal Appeal Act 1912 and Regina v Simpson 2000, NSWCCA 534 at 79 and 89-100)".

Ground 2 - Sentence Excessive 17 It was submitted that in the light of the objective and subjective circumstances, which so far as I can see were sufficiently and carefully noted by his Honour, the sentence for count 6 taking into account the Form 1 matters was excessive. In particular it was submitted that a lesser sentence, perhaps one of five years, would have adequately catered for the elements of general deterrence, and personal deterrence. It was contended that the latter element was of somewhat less significance in a case such as the present, where the applicant was being sentenced for the first time, and had excellent prospects of rehabilitation. 18 The subjective background of the applicant can be briefly summarised as follows:

(a) At the time of sentence he was 50 years of age and had no relevant criminal convictions.

(b) His parents had separated when he was an infant, and he had not had contact with his father after he had turned four years of age. (c) He had left school at the age of 15 and had immigrated to this country from the United Kingdom a year later.

(d) He had married in 1972 and that union had lasted for 13 years and produced two children.

(e) He had remarried in 1989 and had a son and daughter, now aged twelve and ten years from that union.

(f) He had married the complainant in 1998, having been introduced by her cousin.

(g) At the time of sentence he was in a stable and supportive relationship with his de facto partner.

(h) Enquiries made of his first wife and current de facto, had indicated that he had never been sexually violent towards them.

(i) He described a history of consensual sexual relations involving bondage with his other partners.

(j) He had worked in various forms of semi-skilled employment, including truck driving.

(k) He suffered from some ill-health and had been on a disability pension for the six to seven years preceding the sentence, as a result of a back injury, and in addition he had recently undergone heart surgery.

(l) There was no evidence arising from psychological assessments to indicate any current mental illness.

(m) The pre-sentence report noted that: "The offender claimed that despite his plea of guilty, he did not rape or at any time assault his wife. He admitted to practising bondage with both his second ex-wife and his current partner and stated that at no time did he force his wife to engage in any activities she did not wish to participate in. He claimed that he was set up in order that his wife might remain in Australia, and the charges were only laid after he told his wife's cousin that he planned to continue his de facto relationship and end his marriage". 19 This latter observation did not indicate much in the way of contrition or remorse. His Honour, however, accepted that the guilty plea did reflect some contrition and that it had also saved the complainant the anguish of having to give evidence in open court in relation to intimate matters. 20 The pleas, his Honour held, justified a discount of 20 percent. It has been submitted that the pleas should have attracted a larger discount having regard to the circumstances in which they were given. In that regard, it appears that there had been an early plea of guilty to one count of intercourse without consent and an arrangement made that the further offences would be taken into account on a Form 1. However, when the matter was later pursued, it is asserted there was some change on the part of the Crown so far as it wished to proceed in relation to other counts. 21 Ultimately after some discussion, the indictment that was before his Honour was presented and the pleas of guilty offered. 22 His Honour took into account all of those matters and came to the conclusion that the 20 percent discount should reflect the utility of the plea. It cannot be said that the plea was a late plea, but I am not persuaded that a 20 percent discount was an inappropriate reflection of utility. The remorse, as I have indicated, was somewhat qualified, and I am not persuaded that error was shown in that regard. 23 Some reference was made to the Judicial Commission statistics which shows that a sentence of six years for a s 61I offence is towards the top of the range. It is not at the top thereof, and by definition, it is not out of range. 24 I would wish only again to repeat that reference to these statistics at best provides some general guidance to sentencing trends. It is not a particularly useful tool in determining the sentence appropriate for an individual case, particularly bearing in mind the different subjective and objective circumstances which are conceded in the statistics, and also bearing in mind that very often the sample is not a large sample. 25 Each case does depend upon its own facts and the present case displayed, in my view, a particularly unpleasant pattern of behaviour by the applicant. 26 The criminality involved in count 6, taking into account the Form 1 matters, in my view was such that the sentence could not be held to be manifestly excessive. In that regard, matters of particular relevance for sentence included the flagrant abuse of the vulnerability of the appellant, the degrading acts involved against her will, and the fact that it had been made perfectly clear to the applicant that, whatever his prior sexual partners or current sexual partners may have enjoyed or accepted, the complainant did not reciprocate his wishes. 27 I would allow leave to appeal but I would dismiss the appeal. 28 SIMPSON J: I agree. 29 ADAMS J: I also agree. 30 WOOD CJ at CL: The order of the Court will therefore be as I have proposed.

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