R v Dawson

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0903 LOWER COURT JUDICIAL Dodd DCJ OFFICER :

COUNSEL : G E Smith - Crown Appellant in person SOLICITORS : S E O'Connor - Crown CATCHWORDS : SENTENCE - aggravated sexual assault - whether sentencing miscarried - whether sentence excessive - relevance of prior relationship between complainant and offender. D DPP v Cowey (CCA, 18 July 1995, unreported); R v Brooking (CCA, 7 December 1994, unreported); R v Dawson (CCA, 19 May 1998, unreported); R v Harvey (CCA, 23 August 1996,unreported); R v Hunter (CCA, 12 August 1992, unreported); CASES CITED: R v Kalache [2000] NSWCCA 2; R v Kay [2000] NSWSC 716; R v Lord (1986) 131 LSJS 420; R v O'Grady (CCA, 13 May 1997, unreported); R v Smith (CCA, 27 May 1996, unreported); R v Van Hung Truong (CCA, 8 December 1997, unreported); R v Wotherspoon (CCA, 4 December 1992, unreported). DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA 60205/99 DC 97/11/0903

Thursday 17 May 2001 REGINA v Glen Michael DAWSON (No 2) JUDGMENT

1 GILES JA: On 5 February 2001 this Court dismissed the applicant's appeal against his conviction on two charges of aggravated sexual assault. Judgment on his application for leave to appeal against sentence was reserved. These reasons address the application for leave to appeal against sentence. 2 Dodd DCJ sentenced the applicant to concurrent minimum terms of four years imprisonment commencing on 13 November 1998 with additional terms of two years to commence on 13 November 2002. The applicant appeared on the application unrepresented. His submissions in relation to sentence were in writing, and were brief - "In view of the allegations for which the appellant has been convicted, the appellant request the court take into consideration his honours summary in passing sentence his honour reflected on the appellants unblemished life, stated the chances of committing similar offences again were nil, the offence was slightly higher than the bottom end of the range and that there were significant differences in comparison to case of Harvey, unreported, CCA 23/8/1996. It is my submission, in view of his honours summary and given the fact the appellant has served two years in maximum security the courts give considerable weight to taking the sentence as time served." 3 Dodd DCJ described the circumstances of the offences as follows - "Arrangements had been made between you and your ex-wife that you would look after your son on the night of 6 June 1997 while she went out. You came to her house in accordance with those arrangements and looked after the child and in fact she went out. She came home and the two of you talked and in summary you asked her to have sex with you. She said no, a bed was made up, you asked her for sex again and she said no. You grabbed hold of her and grabbed a Stanley knife and thereafter required her to give you oral sex and then to engage in vaginal intercourse with you. You fell asleep subsequently and after you had fallen asleep she called the police. She was taken to hospital and found to have three superficial lacerations to the throat. Having seen photographs in evidence of those lacerations I would describe the use of the word lacerations as conveying rather more than the photographs show and in fact the marks on her neck were very faint but nevertheless they were marks. You maintained that you had sex with your ex-wife that night with her consent and not under threat of a knife as described by her." 4 The jury's verdicts meant that the applicant's assertion of consent was not accepted. It is clear that, for the purposes of sentencing, his Honour accepted the complainant's account of what occurred. It is desirable to amplify the description given by his Honour. 5 The applicant and the complainant had lived in a de facto relationship and then in a marriage for about 15 years. They had a handicapped child, at the time of the offences on 7 June 1997 aged about five and a half. They had separated in August 1996, but had maintained contact, and since a time in March 1997 the applicant had commonly stayed overnight on Saturdays in order to see their child as an addition to his Sunday access. 6 On these stays the applicant usually slept on a mattress made up as a bed in the lounge room of the complainant's flat. On a few occasions he shared the complainant's bed, according to the complainant because "it was too cold in the lounge room and also having had a relationship with him, I missed having someone to cuddle up to". Whether intercourse took place on these occasions was disputed, but the complainant agreed that there was occasional kissing and cuddling. 7 The applicant was at the complainant's flat on the evening of 6 June 1997 to look after the child while the complainant went out on a social occasion. When the complainant returned to the flat there was some conversation with the applicant. The applicant had been drinking wine, and the complainant said that it would not be a good idea for him to drive home. She said that he should stay the night and should help make up the mattress as a bed. According to the complainant, the applicant - " … said he assumed that he was going to be sleeping with me to which I replied that I didn't think it was a good idea because I thought that we would end up in an argument and I had had too enjoyable an evening to spoil it with an argument".

8 The mattress was made up. The complainant prepared herself for bed. While she was in the bathroom the applicant walked in naked, and said that he was going to be sleeping with her. The complainant replied, "No you're not". There was an argument, in the course of which they both walked into the hallway. The complainant went to go into her bedroom, and the applicant grabbed her from behind and dragged her towards the lounge room. He picked up a Stanley knife which the complainant had been using in that room, held it at her neck, and said that the complainant was "nothing but a little white piece of shit" and was getting her just deserts. 9 The complainant sought to calm the applicant down. The applicant turned her to face him and asked her to give him a "blow job". The knife was still in the applicant's hand, but no longer near the complainant's throat. The complainant refused, saying "No way. No.". The applicant raised the knife to her throat and repeated his request in a threatening manner. The complainant knelt and performed oral sex on the applicant. 10 The applicant then required the complainant to take her clothes off, which she did, and walked her over to the mattress. He pulled her down onto the mattress and climbed on top of her. He told her to open her legs, and when the complainant said "No" he picked up the knife from where he had put it down beside him, and again held it to her throat and repeated his demand. The knife was touching the complainant's throat. The applicant told the complainant that it could be of her own free will or he would force her. The complainant opened her legs and the applicant had sexual intercourse with her. 11 The applicant then told the complainant not to call the police or report the incident because if she did she would "suffer the consequences", saying that the police would find a quantity of heroin in the flat. A little later, after the applicant had fallen asleep, the complainant called 000 and the police and an ambulance came to her flat. 12 Dodd DCJ accepted that the applicant had been an exemplary father towards the child both during the marriage and after its breakdown and the separation. 13 His Honour noted that it was agreed that he need not resolve whether sexual intercourse had occurred on the earlier occasions. He said, however - "But no amount of prior sex or physical contact can override the fact as found by the jury that on this occasion your ex-wife said no. Instead of accepting that you resorted to threatening her with a knife and forced her to have sex with you." 14 His Honour referred to character evidence called on the applicant's behalf, and other evidence of his circumstances, and accepted that "save for these incidents that have occurred in the context of the breakdown of your marriage you have led an otherwise unblemished life" and that "the commission of these offences was not premeditated in the sense that you set out to carry out these offences before your ex-wife had in fact returned home that night". He accepted that as close contact with the complainant was not likely to occur again, the prospect of the applicant committing similar offences was "for all intents and purposes nil". 15 His Honour continued - "It has been put on your behalf by Mr Turnbull that this is not a worse case offence of its type. Nevertheless in considering that submission I must take account of the plain fact of the matter as found by the jury that you used a knife to threaten your ex-wife, as a result of which she submitted unwillingly to the sexual acts described. The Crown has submitted that the knife wound, such as it was, places the offences just slightly higher than the bottom end of the range for this offence and I accept that submission by the Crown. I have been referred to a number of cases but it seems to me that the case particularly in point is that of Harvey , Unreported Decision of the Court of Criminal Appeal delivered 23 August 1996 and in particularly [sic] the judgment of His Honour Mr Justice Studdert in which Mr Justice Sully concurred. In that case although there were differences from the case at hand a knife was used in respect of a sexual assault by the prisoner upon his wife. The Court came to the conclusion on a Crown appeal that the appropriate sentence would be a minimum term of four years with an additional term of two years. As I say although there were differences in the facts involved in that case it is a useful case for the purposes of comparison. Bearing in mind that I must have regard to the particular facts of this case it seems to me that a similar kind of penalty is appropriate in this case. I find special circumstances by reason of your age, noting that your date of birth is 26 March 1957 and your otherwise prior good character, and by reason of the fact that this is your first time in custody and taking into account the possibility that you may require or seek counselling in respect of alcohol use and for that purpose may need some longer period of supervision for the purpose of rehabilitation. I take into account the fact that you spent nineteen days in custody after arrest and before grant of Supreme Court bail and I therefore intend to backdate the commencement of the sentence to 13 November 1998. Taking account of those matters in respect of each matter you are convicted and sentenced to be kept in penal servitude for six years. Such penal servitude is to consist of a minimum term of four years, to commence on 13 November 1998 and to expire on 12 November 2004. I order that the prisoner is to be eligible for release on parole on 12 November 2002 and I note that I have already indicated that there are special circumstances by reason of which the additional term exceeds one third of the minimum term." 16 By s 61J of the Crimes Act 1900 any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation, and who knows that the other person does not consent to the sexual intercourse, is liable to imprisonment for 20 years. The circumstances of aggravation include that immediately before or at the time of the commission of offence the offender maliciously inflicts actual bodily harm on the victim or threatens to inflict actual bodily harm on the victim by means of an offensive weapon or instrument. 17 I do not think that Dodd DCJ's acceptance of the Crown submission "that the knife wound, such as it was, places the offence just slightly higher than the bottom end of the range for this offence" involved acceptance that the applicant's offences were at the bottom end of all offences falling within s 61J. His Honour said emphatically that the applicant had used a knife to threaten the complainant, as a result of which she had submitted unwillingly to the sexual acts. He found assistance in a comparison with R v Harvey (CCA, 23 August 1996, unreported) which, as will be seen, was not a low range offence. His Honour seems to have had in mind "the knife wound, such as it was", and to have distinguished the applicant's offences from an offence in which the offender maliciously inflicted actual bodily harm on the victim. In my opinion his Honour meant only that, in the range of offences of sexual intercourse at knife point, the applicant's offence was towards the bottom end of the range. 18 The applicant's offences remained serious offences, as his Honour said, involving that the applicant did not respect his estranged wife's refusal of sexual intercourse but forced her to engage in sexual acts against her will at knifepoint. I respectfully agree with Sully J, with whom Gleeson CJ and Hunt CJ at CL agreed, in R v O'Grady (CCA, 13 May 1997, unreported) - "The Courts have said - although, indeed, it should not be necessary to emphasise the point at all - that it must be a feature of the way in which modern personal relationships are conducted that if, for whatever reason, they break down, then the woman who is in the relationship is entitled to feel that whatever other consequences ensue, her personal safety will not be threatened at all, let alone by the commission of criminal offences of the gravity of those with which we are called upon to deal."

19 In R v Harvey the offender also forced his estranged wife to engage in sexual acts at knifepoint. As Dodd DCJ said, there were differences from the present case. The offence in R v Harvey was premeditated, the offender broke into his wife's home, and he told her that he intended to inflict pain upon her. On the other hand, the sentence of a minimum term of four years with an additional term of two years was imposed on a Crown appeal. I do not think his Honour erred in finding it a useful case for the purposes of comparison, but it is clear that in the end his Honour applied his mind to the particular facts of the applicant's offences. 20 Notwithstanding that the applicant's offences were not premeditated, that he had otherwise led a relevantly blameless life, and that there was no real prospect of his repeating the conduct towards the complainant, the applicant did not respect the complainant's refusal of sexual intercourse and forced her to engage in sexual acts in violation of her most personal integrity. He did so under threat of serious harm, and in frightening circumstances which left the complainant crying and in shock when the police and ambulance arrived. 21 Where the legislature has provided for a penalty of 20 years imprisonment, even when the circumstances of aggravation are threat of infliction of actual bodily harm rather than infliction of actual bodily harm I am unable to see that the applicant's offences should be so lightly regarded that the sentences imposed upon him are appealably excessive. 22 I have had the benefit of reading in draft Hulme J's analyses of the Judicial Commission's statistics relating to offences under s 61J and of the many cases of offences under that provision. The facts of individual offences are infinitely variable, as his Honour's analyses indicate. I do not consider that the sentences imposed on the applicant are so out of line with such guidance as may be gleaned from the Judicial Commission's statistics, which I confess I do not find particularly helpful because of the number and range of sentences for offences the particular facts of which are but imperfectly revealed, that there is reason to intervene. Nor do I consider that regard to the many cases to which Hulme J refers displaces as excessive the sentences imposed in this case on its own facts. 23 I would grant leave to appeal but dismiss the appeal. 24 JAMES J: I agree with Giles JA. 25 HULME J: On 2 December 1998 the abovenamed Appellant was found guilty by a jury of 2 counts of aggravated sexual assault committed upon his estranged wife on 7 June 1997. The aggravation was that immediately before the commission of the offences he threatened to inflict actual bodily harm by means of an offensive weapon, viz. a knife. On 16 April 1999 he was sentenced to concurrent terms of penal servitude each consisting of a minimum term of 4 years commencing on 13 November 1998 and an additional term of 2 years commencing on 13 November 2002. Dodd DCJ found special circumstances. 26 The Appellant appealed against both his conviction and sentence. On 5 February last the Court dismissed his appeal against conviction but reserved on the application to appeal against sentence. It is that topic to which these Reasons are directed. 27 Most of the salient facts are conveniently summarised in the remarks on sentence from which I quote:- "Arrangements had been made between you and your ex-wife that you would look after your son on the night of 6 June 1997 while she went out. You came to her house in accordance with those arrangements and looked after the child and in fact she went out. She came home and the two of you talked and in summary you asked her to have sex with you. She said no, a bed was made up, you asked her for sex again and she said no. You grabbed hold of her and grabbed a Stanley knife and thereafter required her to give you oral sex and then to engage in vaginal intercourse with you. You fell asleep subsequently and after you had fallen asleep she called the police. She was taken to hospital and found to have three superficial lacerations to the throat… in fact the marks on her neck were very faint but nevertheless they were marks. You maintained that you had sex with your ex-wife that night with her consent and not under threat of a knife as described by her. Except for one matter you have no criminal history. On 10 September 1996 at North Sydney Local Court you were given the benefit of the provisions of s556A and entered into a bond to be of good behaviour for two years. This arose out of an incident on 19 August 1996 where you assaulted your wife and from that time you were separated. Nevertheless, there was a degree of social and physical contact between you at least since 21 March 1997."

28 It is appropriate to give a little more detail of the offences. According to the complainant, while she was in the bathroom preparing for bed the Appellant walked in naked and informed her that he would be sleeping with her. She replied firmly "no you're not", having previously made up a mattress in the living room for him. After an argument the Appellant grabbed the complainant from behind and dragged her towards the lounge room holding her around the neck. He then picked up the Stanley knife, held it to her neck observing that she was "nothing but a little white piece of shit" and was getting her just deserts. The complainant urged him to calm down, after a little time he turned to face her by which stage the knife was no longer near her throat and asked for a "blow job". 29 On the complainant saying "no way no", he again raised the knife towards her neck but not actually touching it. 30 The complainant then put the Appellant's penis in her mouth. This activity stopped when she took her clothes off at his request, he helped her up and walked her over to the mattress where he pulled her down and got on top of her. The Appellant told her to open her legs and when she said "no" he picked up the knife again and held it to her throat touching her at this stage. He told her that events could be of her own free will or he would force her. She replied that it wasn't going to be of her own free will but did open her legs and sexual intercourse occurred until ejaculation. 31 The Appellant told the complainant not to report the incident because if she did she would suffer the consequence of the police finding a quantity of heroin in her house. The complainant did not take seriously this threat and sometime later, after the Appellant went to sleep, the complainant called 000. The complainant said she had no way of knowing how long the intercourse lasted although it seemed like forever. The knife was one the complainant had been using and had left on a table in the lounge room. 32 The complainant acquiesced in the proposition that the Appellant was drunk on the night. As to that, his Honour said that although alcohol must have had some effect, he did not see it as explaining the occurrence of the offence and it certainly did not provide any excuse. 33 Some further detail of the social and physical contact which had occurred between the complainant and the Appellant is also appropriate. They have a handicapped child who suffers from severe cerebral palsy and since 21 March 1997 at the complainant's request the Appellant regularly stayed overnight on a Saturday night in order to see that child and had been, in the complainant's words, "a huge help with doing odd jobs and helping me settle into the place." Generally the Appellant slept on a spare mattress on the lounge room floor but on four occasions the complainant had allowed him to sleep in her bed with her. There was dispute whether intercourse had taken place but the complainant agreed that there was at least occasional kissing and cuddling, the Appellant being allowed to share her bed because "he stated it was too cold in the lounge room and also for the need of company." Answers given towards the end of the complainant's evidence in chief would suggest the need was that of, or at least shared by, the complainant. At one stage the complainant said that the Appellant, but not she, was trying to effect a reconciliation although later she said that both had been trying in this regard. 34 The complainant and Appellant were married in 1990 having lived in a de-facto relationship for some 8 years previously. 35 His Honour also observed:- "I find that so far as your behaviour towards your child is concerned you have been an exemplary father both during the marriage and after its breakdown and your separation from your wife. I accept the submission made on your behalf that save for these incidents that have occurred in the context of the breakdown of your marriage you have led an otherwise unblemished life. I also accept that the commission of these offences was not premeditated in the sense that you set out to carry out these offences before your ex-wife had in fact returned home that night. … I accept the submission … that as the context in which these offences arose, that is close contact with your ex-wife is not likely to occur again, the prospect or chances of your committing similar offences again is for all intents and purposes nil."

36 The relevant provision in the Crimes Act is Section 61J which is in terms:- (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, circumstances of aggravation means circumstances in which: (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; or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument; or (c) the alleged offender is in the company of another person or persons; or (d) the alleged victim is under the age of 16 years; or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or (f) the alleged victim has a serious physical disability; or (g) the alleged victim has a serious intellectual disability. 37 The extent of the variation in circumstances which can amount to aggravation within the terms of the section means that the Judicial Commission's Statistics relating to offences under the section are, to a greater extent than usual, of only limited guidance. Those from April 1993 to March 2000 for all offenders show that of 256, 245 were sentenced to prison, that the median full term for those who were was 6 years and the median fixed or minimum term was about 3 to 3½ years. Of 58 offenders who fell into the category of "One Count No Priors" 56 were sentenced to prison and the corresponding median figures for these were 4½ years and 3 to 3½ years. Only 25% had full or minimum terms greater than those imposed on the Appellant. Of 19 offenders in the category "One Count No Priors Plea Not Guilty", all were sentenced to prison and the medians were 4½ years and 2½ years. Only 16% or 3 offenders had full or minimum terms in excess of 3 years. Although the Appellant was convicted on 2 counts, they were part of the one instance of criminality and in the circumstances, little turns on the presence of the second count. Of course, that may also be the situation with cases reflected in the above statistics. 38 It is also appropriate to record again my view, expressed in R v Kay, that the statistics "do raise a question whether adequate attention has been paid to the significant increase in penalties provided by Parliament when those provisions of the Crimes Act dealing with sexual offences was substantially rewritten and penalties increased, effective from March 1991 - see R v Van Hung Truong (unreported, CCA, 8 December 1997)". 39 When he came to address the question of where in the range of offences encompassed by s61J, the Appellant's offence lay his Honour said:- "… The Crown has submitted that the knife wound, such as it was, places the offences just slightly higher than the bottom end of the range for this offence and I accept that submission by the Crown. I have been referred to a number of cases but it seems to me that the case particularly in point is that of Harvey unreported decision of the Court of Criminal Appeal delivered 23 August 1996 and in particularly the judgment of His Honour Mr Justice Studdert in which Mr Justice Sully concurred. In that case although there were differences from the case at hand a knife was used in respect of a sexual assault by the Prisoner upon his wife. The Court came to the conclusion on a Crown appeal that the appropriate sentence would be a minimum term of four years with an additional term of 2 years. As I say although there were differences in the facts involved in that case it is a useful case for the purposes of comparison. Bearing in mind that I must have regard to the particular facts of this case it seems to me that a similar kind of penalty is appropriate in this case. I find special circumstances by reason of your age, noting that your date of birth is 26 March 1957 and your otherwise prior good character and by reason of the fact that this is your first time in custody and taking into account the possibility that you may require or seek counselling in respect of alcohol use … Taking account of those matters in respect of each matter you are convicted and sentenced to be kept to penal servitude for 6 years. Such penal servitude is to consist of a minimum term of 4 years … together with an additional term of 2 years …"

40 His Honour had earlier indicated that he accepted that "the fact that you have been unable to see your child since the occurrence of these offences in particular since being refused bail pending sentence in respect of these matters has caused you great distress". 41 Although the variety of matters that can constitute circumstances of aggravation within the section makes comparison difficult, the statistics to which I have referred, and despite my reservations concerning them, make one wonder whether his Honour in fact followed the Crown submission in the first of the paragraphs just quoted and which his Honour said that he had accepted. 42 But before I come to these cases, it is convenient to consider the decision in R v Harvey on which his Honour obviously heavily relied. In that case the offender had, in the course of pre-meditated activities, travelled from Newcastle to Wollongong where his wife, from whom he had separated over 12 months earlier lived, purchased some lubricant on the way, crawled under his wife's house to cut the telephone wires, broke into the house and when confronted by his wife told her he intended to inflict pain upon her such as he was suffering. Brandishing a knife he had brought, he followed his wife, then quite terrified into the bedroom, removed his and her clothing and had digital and penile intercourse. Afterwards the complainant at the offender's request wrote a suicide note before both fell asleep. The offender was still in the house the next morning when the complainant took the children to school and went to her sister's house where she complained. There was no actual physical violence apart from the sexual behaviour itself although there was the threat of actual bodily harm by means of the knife which had left the complainant terrified. The Appellant's attendance at his wife's premises was in breach of an AVO, a matter regarded as a serious aggravating feature. He had previously been on a recognisance for an earlier assault on his wife. Other convictions were regarded as of no relevance beyond disentitling the offender to leniency. He pleaded not guilty and exhibited no contrition but was regarded as having been in a distraught and disturbed state at the time of the offence, having suffered something of an emotional breakdown. 43 The sentence originally imposed involved minimum and additional terms of 2½ and 2 years. This Court, by majority held that to be manifestly inadequate and imposed the minimum and additional terms of 4 and 2 years to which I have referred. In his Reasons Studdert J indicated that the sentence reflected the fact that it was being imposed in a Crown appeal and thus was less than would have been appropriate at first instance. His Honour also observed that the "the use of a knife to cause an intended victim of a sex attack to submit to that attack will, in accordance with (the) accepted approach of the criminal courts, bring a significant increment in the sentence". 44 There are some obvious differences between R v Harvey and the instant case. One is that this Court was allowing a Crown appeal. Another was that Harvey's record was regarded as disentitling him to leniency: The Appellant suffers no such disadvantage. A third was that Harvey's offence involved a substantial degree of pre-meditation: The Appellant's did not. A fourth was that Harvey broke into the complainant's home to commit the offence - an incident which is always regarded as aggravating: The Appellant did not. A fifth was that Harvey set out inflict pain: There is no such evidence in this case. 45 Although acknowledging the existence of differences and saying the case of R v Harvey was useful for comparison and imposing the same sentence as was imposed in R v Harvey, his Honour did not analyse the differences. With respect, I find it difficult to make any useful comparison without such an analysis. The last 4 of the differences I have stated mean that Harvey's offence and his subjective circumstances were significantly worse than those of the Appellant here. 46 I return to the topic of whether his Honour's sentence reflects the view that the Appellant's offence was just slightly higher than the bottom end of the range for this offence. 47 In R v Hunter (unreported, CCA, 12 August 1992) this Court allowed a Crown appeal against sentence. The offender had been charged with two counts of threatening to inflict actual bodily harm with intent to have sexual intercourse and alternatively of having sexual intercourse without consent. On the first occasion the victim's hands were tied behind her back for some of the time. On both occasions, according to the complainant, the threat was accompanied by the presence of a rifle. In respect of the first pair of charges, he was convicted of sexual intercourse without consent - an offence which carries a maximum penalty of 14 years imprisonment - but in respect of the second pair, he was convicted of the charge of threatening to inflict actual bodily harm with intent, an offence which carries a maximum of 20 years imprisonment. The offender and victim 2 were married. They had separated, albeit at the time of the first offence still living in the one house. The second offence was committed some 5 days after the first, during which time the Family Court had made an order restraining the offender from approaching either the matrimonial home or the complainant. The offender had pleaded not guilty, and was held not entitled to any leniency for remorse. 48 Prior to being re-sentenced, the offender had served 3 months of periodic detention. The sentences imposed by this Court were concurrent terms, the longest of which had minimum and additional terms of 9 and 12 months respectively, the first of these commencing on the date of the Court of Criminal Appeal's order. It must be acknowledged that Mathews J said that, in consequence of factors relevant to a Crown appeal, the sentences were very substantially less than warranted by the objective seriousness of the offences. 49 In R v Wotherspoon (unreported, CCA, 4 December 1992) - a case where the offender and his victim had had a close and sexual relationship for a period of some 4 years but which the complainant had ended about one month prior to the offence, the offender had sought to resume the relationship as recently as the day before his offence. On the latter occasion he was admitted by the complainant to her home and there attacked her. In the course of a struggle he interfered with the complainant's breathing and produced a pocket knife but the complainant succeeded in taking this from him. Although the bodily trauma suffered by the complainant was of a relatively minor nature, she suffered severe psychological trauma. Studdert J observed that the fact the complainant was attacked in her own home was an aggravating circumstance. 50 Allowing a Crown appeal, this Court quashed a sentence of 2 years periodic detention commencing on 18 September 1992 and substituted a sentence consisting of minimum and additional terms each of 2 years, the minimum term commencing also on 18 September. Studdert J remarked that the sentence was less than he would have considered appropriate at first instance. Again, the offender had been disturbed by the breakdown of the previous relationship and had good prospects of rehabilitation. The charge was of sexual intercourse without consent, brought under s61I which prescribed a maximum penalty of 14 years. Studdert J noted that the maximum sentence had been increased from 8 years from March 1991 and that any sentence had to recognise the need for women to be protected from sexual assaults and to ensure that due consideration was given to the element of deterrence. 51 In R v Brooking (unreported, CCA, 7 December 1994) this Court allowed a Crown appeal from a sentence of periodic detention following a sentence indication hearing and imposed a sentence of 15 months including a minimum term of 9 months on a charge of sexual intercourse without consent. Other lesser concurrent sentences to which it is unnecessary to refer were also imposed, the Court referring to the element of triple jeopardy to which the offender had been exposed. 52 The offender and the complainant, his wife of some 26 years, had been living separate lives for some 2 years although the offender had been living in a caravan at the rear of the matrimonial home. He would not accept that his wife wished a divorce. When he received a letter from her solicitors he became angry and, telling her she would do as she was told, with a degree of violence raped her. She was left with a very sore throat, mouth, lips, arms, legs, thighs and lower back. She told the police that the offender had made her "feel dirty, degraded, sick, very miserable. What hurt the most was that he did those things to me." 53 There was evidence that some weeks prior to the offence there had been consensual intercourse. It seems to have been accepted that the respondent, who had pleaded guilty, had a psychological inability to come to terms with the break-up of his marriage, a strong attachment to his wife, and was of prior good character. 54 In R v O'Grady (unreported, CCA, 13 May 1997) this Court, allowing a Crown appeal, imposed a sentence of 5 years, including a minimum term of 3 years on an offender who was convicted of an offence under s61J. A fixed concurrent term of 3 years was imposed in respect of an offence under s89 of the Crimes Act (and which carries a maximum penalty of 14 years imprisonment) of unlawful detention with intent to have carnal knowledge. The victim was someone with whom the offender had a prior sexual relationship. On the day of the major offences he went to the victim's home armed with a knife and roll of electrical tape. She let him in and then for a period of some 28 hours he effectively imprisoned her, threatened her with the knife and intercourse on one occasion, maintaining possession of the knife while he did so. During at least some of this time the complainant believed the offender intended to kill her. In imposing sentence two offences of assault, one of which occurred on the following day, were also taken into account. 55 It is clear both that the offender's conduct in that case was far worse than that of the Appellant with whom I am concerned and that the sentence ultimately imposed reflected in no minor degree the fact that it was imposed in circumstances of double jeopardy. 56 Reference should be made to the decision of this Court in R v Smith (unreported, CCA, 27 May 1996) where this Court reduced the sentence for aggravated sexual assault from a minimum term of 4 years and an additional term of 2 years to one of a minimum term of 3 years and an additional term of 1 year. The case was unusual in that the trial judge had made no relevant findings of fact and the Court of Criminal Appeal proceeded on the basis of only the facts implicit in the jury's verdict i.e. digital penetration without consent and a threat with a knife. Subjective considerations were strong. The Appellant was 54 and of unblemished prior character. He had been drinking prior to what was, for him, uncharacteristic behaviour. One may infer from the report that there was no suggestion of any earlier long-standing emotional or sexual relationship. Comparing the facts with an earlier decision to which the Court had been referred, the Court said that the earlier case was more serious in that it involved actual injury and an adverse psychological response. 57 In R v Dawson (unreported, CCA, 19 May 1998) the appellant was found guilty on counts of (i) assault occasioning actual bodily harm, (ii) sexual intercourse without consent in circumstances of aggravation, and (iii) sexual intercourse without consent. The sentences which had been imposed, all concurrent, and which the Court of Criminal Appeal said were appropriate, were (i) penal servitude for minimum and additional terms of 2 years and 8 months respectively, (ii) penal servitude for minimum and additional terms of 5 years and 1 year 8 months respectively, and (iii) penal servitude for minimum and additional terms of 3 years and 1 year respectively. The aggravation consisted of holding a knife to the complainant and threatening to kill her if she screamed. The complainant suffered numerous injuries although the most serious seem to have been a loose tooth and extensive bruising. 58 The appellant had had a sexual relationship with the complainant previously, which she had broken off although friendship continued. The offences occurred on the one occasion after the appellant broke into the complainant's isolated home, woke her up with his hands around her neck and said "Prepare yourself to be bashed and raped tonight". Her vulnerability arising from her location was a matter which the Court said was required to be addressed in arriving at a proper sentence. 59 The appellant, aged 41, had no record of violence. He had a borderline personality disorder and came from a dysfunctional home where he had been subjected to physical and psychological abuse.

60 Recently, for the purposes of my decision in R v Kay [2000] NSWSC 716 I reviewed some dozens of cases of offences under s61J, summarising many in a schedule to my remarks in that case. Apart from 2 cases to which I have referred, Dawson and Smith, it is unnecessary to repeat those summaries here. My conclusion was that some supported the conclusion that total sentences of 6 and others that total sentences of 7 years were within the range of sentences appropriate for the worst of Mr Kay's 8 offences. Mr Kay was a predator who had gone looking for victims. His worst offence involved the premeditated grabbing of a 23 year old woman unknown to him at night as she walked along the street, forcing her into a dark tunnel, gagging her, applying a knife to her throat, tying up her hands, and penetrating her vagina a few times with his fingers and penis. The attack had a significant effect on the victim both from the psychological point of view and the lifestyle she felt constrained thereafter to adopt. I said that I regarded a total sentence of 7 years as appropriate for that offence if it was considered in isolation. 61 For 6 of Mr Kay's other offences, I indicated that I regarded sentences of 5 or 6 years as appropriate if each offence was considered in isolation. These offences took a similar form to that which I have described but involved less persistence, restraint of the victim and/or penetration. 62 One matter which seems to me of significance in any determination of the appropriate range of sentences within which that imposed on the Appellant should fall is the relationship which previously existed between him and the complainant. The topic of such relationships has been the subject of remark in a number of the cases to which I have referred. In Hunter, Mathews J, with whose reasons Sheller JA and Sharpe J agreed, said:- "It was conceded that the respondent, being a man of otherwise impeccable character, was entitled to considerable leniency particularly in the light of the fact stressed by his Honour that at the time of the offences he was under very considerable emotional pressure caused by the breakdown of his marriage. Nevertheless, the circumstances of each offence were very serious indeed. They involved threats, intimidation, degradation, humiliation and the physical debasing of the victim. The fact that the parties had been married was in no way relevant to the sentencing process except insofar as the breakdown of the marriage had created an emotional crisis for the respondent and therefore might in some way have contributed to the commission of the offences."

63 In Wotherspoon Studdert J, in whose judgement Gleeson CJ and Clarke JA agreed, said that "the circumstance that there had been an earlier consensual sexual relationship between the respondent and the complainant does not constitute a mitigating factor". It is not clear whether by those words Studdert J was intending to state a general proposition or dealing with the facts of that case although the fact that that bald statement was made without any examination of the factors likely to be involved in a situation such as that under consideration argues for the latter. 64 In Brooking Carruthers J, with whose reasons Newman and Dowd JJ agreed, quoted with approval the sentence of Mathews J commencing with the words "The fact that the parties had been married" which I have quoted above, adding that "The fact that at the time of the commission of the subject offences Mr and Mrs Brooking were married was not per se a relevant factor in the sentencing process.".

65 In Harvey Studdert J, with whom Sully J agreed, said that while it afforded the background to explain the offender's emotional crisis, "the respondent's marriage status was not per se a relevant factor in the sentencing processing", citing in support of that proposition R v Brooking. 66 In none of these decisions, the first 3 of which were ex tempore, were any reasons or explanations given for the bald assertions as to the significance of the marriage or other relationship. 67 In O'Grady Sully J, with the concurrence of Gleeson CJ and Hunt CJ at CL, said:-

"The Courts have said - although, indeed, it should not be necessary to emphasise the point at all - that it must be a feature of the way in which modern personal relationships are conducted that if, for whatever reason, they break down, then the woman who is involved in the relationship is entitled to feel that, whatever other consequences ensue, her personal safety will not be threatened at all, let alone by the commission of criminal offences of the gravity of those with which we are now called upon to deal."

68 The significance of a prior relationship between offender and complainant was also considered in R v Lord (1986) 131 LSJS 420. In that case the offender had broken into his wife's house while she was away. On her return he struck her twice with a baseball bat he had brought with him, bound her hands, forced her onto a bed and then raped her. In due course he left but not before he had threatened her in the event she should report the matter. 69 King CJ, with the concurrence of Cox and Millhouse JJ agreed with a submission of counsel that in some respects the offence was less serious than other rapes that come before the courts in that it did not involve the commission of the violent sexual act upon a stranger but upon someone who had had a prior sexual relationship with the offender. His Honour recognised that the crime arose out of the emotional turmoil which the offender had experienced in consequence of his matrimonial situation but said that it was important for the courts to impose punishments in such situations which have the effect of deterring those undergoing such emotional disturbance from resorting to rape or violent sexual assault as a means of giving vent to their frustrations and feelings of aggression. 70 R v Lord was referred to in DPP v Cowey (unreported, CCA, 18 July 1995), where the Court said that the earlier decision recognised that it was proper to take into account that a rape might not be upon a stranger but that no-one should think that a sentence for rape against a spouse would, as a matter of course, be lower than any other sentence for rape. 71 With respect, this seems to me to be a better way of putting the matter and one which is more in accord with sentencing principles, and in particular the requirement that one must always consider the facts of the particular case. For while I can accept that marriage is not, per se, a relevant factor, it would be wrong to ignore those factors which are commonly incidents of marriage or other emotional or sexual relationship. If Mathews J in Hunter was intending to make more limited the relevance of marriage I would, with respect, disagree with her. 72 In the first place, a prior or existing marriage or other sexual relationship, or the breaking up of it, is not unlikely to be a major catalyst or inspiration for the offence and one may well be entitled to conclude that an offender who yields to the emotion and frustrations which can arise out of such circumstances is less of a danger to the community than someone who is a predator on the female population at large. Particularly is this so if the offence is unpremeditated. Of course, danger in the future to the particular victim is not to be ignored but time is a great healer of emotions. So may well be the shock, particularly to someone who has otherwise led a blameless life, of incarceration for even a relatively short period. 73 Such factors may also lead to the view that personal deterrence is of less significance in a particular case compared with sexual offenders generally. 74 Furthermore, the impact on the victim is calculated to be significantly different than in the case where an attacker is unknown to her. It may, of course, be worse if, e.g. prior to the rape, feelings have reached the stage of hatred or revulsion. But one may expect that at least sometimes a victim will not feel as threatened by someone who they know, will not have the same fears of pregnancy or infection, and will not feel as degraded or humiliated, or psychologically traumatised by an event which, albeit with consent, may well have occurred hundreds of times before. I would certainly not be as ready to infer psychological, certainly significant psychological, injury as I would where the rape was by a stranger. 75 I do not suggest by these remarks that rape or other significant sexual assault of a present or former partner is not serious and deserving of punishment. Nor do I wish to convey any reservation concerning the remarks of Sully J in O'Grady which I have quoted. I merely wish to emphasise the point that general sentencing principles require one to look at the facts of a particular case. While all instances of rape share common features, they also commonly have differences and regard should be had to these too. 76 Provided they are properly understood, I do not understand the remarks which I have quoted to the effect that marriage is not per se a relevant factor as intended as a qualification to these general sentencing principles. 77 To the extent to which many of the cases to which I have referred were Crown appeals, and the sentences imposed would thus have been at, or lower than, the bottom of the range of appropriate sentences - see my discussion of the topic in R v Kalache [2000] NSWCCA 2 at [72] et seq. - it is not possible to derive from them an appropriate level of range of sentences at first instance. However, even making allowance for the double jeopardy aspect in those cases, the differences between some of the sentences imposed and those here are, when regard is had to the difference in facts, startling. For example, there were no factors beyond those I have stated arguing for particularly lenient sentences in the cases of Wotherspoon and Brooking and even making all possible allowance for the fact that the sentences in those cases were lower than appropriate at first instance, I find it impossible to reconcile them with the proposition that a six year term is just above the bottom of the range for offences of the character of the Appellant's. I do not forget that the charge in Wotherspoon was brought under s61I but the circumstances, though different, were at least as bad as those here. 78 The worst offence in the matter of R v Kay which I have detailed, in its premeditation, in its circumstances and in its effect on its victim was substantially worse than the Appellant's. Of course my view as to the appropriate sentence for that offence cannot be determinative of the permissible range of sentences for it although consistency in sentencing demands that the range be kept within reasonable limits. The Appellant's offence merited a sentence substantially lower than that indicated for Mr Kay's worst offence. 79 R v Smith does provide something of a starting point, albeit it must be recognised that the penetration was only digital. On the other hand there would seem to have been no emotional involvement contributing to Mr Smith's offence. 80 I return to the instant case. Judge Dodd's findings that, save for the incidents which had occurred in the context of the breakdown of his marriage, the Appellant had led an unblemished life and the prospect of the Appellant committing similar offences again was for all intents and purposes nil were significant. For the findings meant that the factors of personal deterrence and protection of the community required little weight to be afforded to them. General deterrence and retribution remained of significance but in relation to the latter, there seems to have been no evidence of any psychological trauma and as I have said, I am not disposed to infer it to the same extent as I would were the offence by a stranger. The absence of premeditation should also have been reflected in the weight given to the factor of retribution in the sentencing process. 81 His Honour's reasons do not reveal what weight he gave to the factors referred to in the preceding paragraph. However, I am satisfied that the sentence imposed does not properly reflect his Honour's acceptance that the Appellant's offence was just slightly higher than the bottom end of the range for the offence. R v Smith demonstrates that the bottom is significantly lower. And the sentences in Crown Appeals to which I have referred argue towards the same conclusion. Nor do I regard a six year sentence as close to the bottom of the range of those called for by the factors of general deterrence, retribution and protection of the complainant where the circumstances are otherwise as disclosed in this case.

82 So that there is no doubt, I should say that I agree with Giles JA that I do not understand Dodd DCJ to have been saying that the Appellant's offence was near the bottom of all offences against s61J. Rather, in my understanding, was his Honour comparing it with other offences of the same character as those charged against the Appellant. Nevertheless, I adhere to the view I have expressed. 83 In these circumstances, without needing to decide whether the sentence imposed on the Appellant was manifestly excessive, it is apparent that the sentencing of the Appellant miscarried and this Court should sentence him afresh. Having regard to the decision of this Court in R v Smith, I do not think the sentence imposed should be any less than imposed in that case. His Honour's finding that the Appellant's offence was slightly higher than the bottom of the range argues that his sentence should be more. On the other hand the relationship between the parties and the absence of any evidence of effect on the complainant beyond what is to be inferred and the findings to which I have referred two paragraphs above argues that it should be less than in a case not exhibiting those features. I would impose concurrent sentences, each of a total period of 4 years, including a non-parole period of 3 years. 84 Although his Honour found special circumstances and increased the additional term imposed at the expense of the minimum term, in light of some of the decisions to which I have referred and his Honour's finding that the Appellant's offence was higher than the bottom of the range, I do not think that the minimum should be reduced below 3 years. And the Appellant's past does not suggest he needs more than 1 year by way of additional term or parole period.

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