R v El-Chammas

JUDGMENT OF: Giles JA at 1; Howie J at 2; Buddin J at 3

1 Allow the Crown appeal. DECISION: 2 Quash the sentence imposed in the District Court. 3 In substitution therefore sentence the respondent to a non-parole period of 4 years imprisonment to commence on 11 May 2008 and to expire on 10 May 2012 with a total term of 6 years 6 months imprisonment to expire on 10 November 2014. 4 The respondent will be eligible for parole on 10 May 2012.

CATCHWORDS: Criminal law -sentencing - aggravated sexual intercourse without consent - young offender - vulnerable, 81 year old victim - significance of departure from standard non-parole period - whether manifestly inadequate

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Anderson v R [2008] NSWCCA 211 Carroll v The Queen [2009] HCA 13 Coleman v R (1990) 47 A Crim R 306 Deng v R (2007) 176 A Crim R 1 MS2 & Ors v R (2005) 158 A Crim R 93 CASES CITED : Mulato v R [2006] NSWCCA 282 R v AEM Snr [2002] NSWCCA 58 R v GDP (1991) 53 A Crim R 112 R v Hearne (2001) 124 A Crim R 451 R v Wall (2002) 71 NSWLR 692 R v Way (2004) 60 NSWLR 168 Waters v R [2007] NSWCCA 219

PARTIES: Regina Robert El-Chammas

COUNSEL: V Lydiard (Crown) (Applicant) P Hamill SC (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) Armstrong Legal (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/13152

GILES JA HOWIE J BUDDIN J

TUESDAY 2 JUNE 2009 REGINA v ROBERT EL-CHAMMAS Judgment 1 GILES JA: I agree with Buddin J. 2 HOWIE J: I agree with Buddin J. 3 BUDDIN J: This is an appeal by the Crown against the asserted inadequacy of a sentence imposed upon the respondent in the District Court following his plea of guilty to one count of aggravated sexual intercourse without consent brought pursuant to s 61J(1) of the Crimes Act 1900. The circumstance of aggravation was the infliction by him of actual bodily harm upon the victim. The respondent also requested that two matters on a Form 1 document, of assault police and resist police, be taken into account on sentencing. The respondent was sentenced to a non-parole period of 3 years imprisonment with an overall term of 5 years imprisonment. The maximum penalty for the offence is 20 years imprisonment and a standard non-parole period of 10 years imprisonment is applicable to the offence. 4 The essential facts in relation to the matter are not in dispute and can be briefly stated. The victim was an 81 year old Korean national who was in Australia on a tourist visa. She had been staying with her niece at West Ryde. At about 6.10 am on Sunday 11 May 2008 the victim went on an early morning walk around Anzac Park. The respondent came across her in the park. He grabbed her from behind and pulled her hair back towards him. He then grabbed hold of her waist and picked her up before throwing her onto the ground, causing her to land face down. He then punched her several times to the left side of her face and straddled her with one leg on either side of her body. He continued to punch her to the face and body causing her to lose consciousness. As a consequence, the victim was unable to provide a detailed account of what had occurred during the attack upon her although she thought that her assailant had been wearing a glove. 5 The attention of numerous persons, who resided in units which overlooked the park, was attracted when they heard the victim screaming out in a foreign language. The respondent was observed on top of the victim endeavouring to pull her pants down from her waist. After he managed to pull her pants down, the respondent was seen to forcefully push his hand in and out from between the victim's legs on a number of occasions. The respondent then turned the victim over so that she was on her back. He then straddled her waist area and was observed by witnesses, after taking his own pants down, to make thrusting motions with his pelvis. He was then seen to grab the victim's legs and lift them over his head so that her legs were resting on his shoulders. As he did so he continued to thrust his pelvis towards the victim. 6 In the meantime police were called to the scene. Upon arrival the police observed the respondent lying on top of the victim. He then stopped what he was doing and ran away although his pants were still down around his ankles. The police gave chase and shortly thereafter detained the respondent and placed him under arrest. The respondent struggled and resisted their attempts to handcuff him. During the struggle he kicked out at one of the constables, connecting with his leg. [It was this conduct which gave rise to the Form 1 matters]. Throughout this period of time the respondent verbally abused the officers by repeatedly swearing at them. In due course he was subdued and taken to Ryde Police Station. Upon arrival at the police station he continued to act in an extremely aggressive fashion. 7 The victim was taken to Royal North Shore Hospital where she was examined. That examination revealed that she had suffered injuries consisting of soft tissue damage to the left side of her jaw and cheek. She was found to have grass and dirt through her hair, as well as abrasions, tenderness, bruising and other superficial injuries to various other parts of her body. She also complained of soreness to her left abdomen and the rib area. A genital examination revealed that she had sustained red petechial bruising adjacent to her urethra, red bruising across the top of her vaginal opening below her urethra, as well as bleeding and a linear laceration of her vaginal wall on the right side, extending from inside the vaginal wall to the outside. There was also major bruising to the entire area of her vagina which was consistent with penetration. 8 The victim's niece provided a statement to police. In it she said that she observed that following the incident the victim had been bleeding from her genital region and that the bleeding had continued for a number of days. She went on to say: After the examinations were completed I went with my aunty and nephew back home to West Ryde. My aunty is a very private person and due to cultural reason (sic) she does not want to talk to anyone about this matter. She will not tell me exactly what has happened and I believe that she remembers more than what she has told me. She does not want anyone to know and does not want to bring shame upon her family in Australia or Korea. I have tried to talk to my aunty about this but she will always ask me to stop talking about it. No other members of my family know about the incident and it is very hard for my aunty and I to talk about it. I have noticed that my aunty is not the same woman that she used to be. Even though she is 81 years old, she was very active before this incident happened. She is now scared to leave the house and has not gone past my front fence since the incident. She is scared when someone comes to my front door and does not want to see or speak to anyone. She only speaks to me or my family, even about other matters, only when she is asked a question. She was never like this. I feel that she is depressed and upset about what has happened but I know she will not talk to anyone about it and she will never be the same person as she was before this assault. 9 Later that day the respondent was interviewed by police. In it he gave an account of events which had occurred prior to the incident. He said that he had spent most of the preceding day with his girlfriend and that they had been intimate that evening. Thereafter he said that he had gone to Kings Cross with two friends, arriving there at about midnight. He said that he had had a lot to drink during the course of the evening but could not be sure how much he had consumed. He said that he had never previously drunk that much alcohol. He said that he and his friends had then caught a taxi back to his friend's place which was in the general vicinity of where the attack had occurred. He told police that he recalled walking into Anzac Park and seeing a female there but that he had thereafter "blacked out". He professed to have no memory of his attack upon the victim. The respondent stated that the next thing he could recall was being in custody at Ryde Police Station. He did say however that he felt disgusted with what he had done. He also said that because he had drunk too much he had not known what he was doing. 10 The respondent also gave evidence at the sentence hearing about the amount of alcohol which he had consumed. The effect of his evidence was that he had spent approximately $200 on purchasing premixed drinks of Vodka Smirnoff that evening. On the other hand, the respondent's two friends who were with him in Kings Cross provided statements in which they expressed the view that he did not seem to them to be particularly drunk by the time that they arrived back home. Moreover, a blood sample taken some 10 hours after the offence did not reveal the presence of alcohol in the respondent's system. 11 Reports prepared by a clinical psychologist, Dr Borenstein and by a consultant psychiatrist, Dr Nielssen respectively were tendered in evidence. Dr Borenstein expressed the opinion that the respondent had a sensitivity to alcohol which had led to his "blackout" and that there may have been an interplay between the amount of alcohol which he had consumed and the residual effects of a serious concussion which he had sustained two years earlier. He concluded that there were no obvious psychological or psychiatric grounds for the respondent's behaviour but he did recommend that the respondent undertake a neurological investigation "to rule out frank organic causes" as providing an explanation for his conduct. 12 In his report Dr Nielssen noted that both an electroencephalogram (EEG) and a magnetic resonance imaging (MRI) scan of the brain had been performed on the respondent. He observed that those tests had been reported to be normal. Dr Nielssen also said that he could not find "a psychiatric or neurological explanation for [the respondent's] behaviour". Nor, he concluded did he suffer from any psychiatric disorder. 13 Having reviewed the evidence, the sentencing judge made the following finding: Extensive medical tests and examinations in relation to the offender have been carried out both physically and psychiatrically, but these provide no rational explanation. The only possible explanation, upon the evidence available, is therefore that the offender, was very, very drunk and this somehow triggered in him some aspect of his personality or psyche that led him to behave in this way, particularly as it seems to have been totally out of character, for reasons to which I will come. 14 Although the Crown submitted that the sentencing judge had overstated the extent of the respondent's state of intoxication, it accepted that his Honour was nonetheless entitled to have regard to it in reaching the conclusion that it had impaired his judgment and had led to his acting out of character: see Coleman v R (1990) 47 A Crim R 306 at 321; Waters v R [2007] NSWCCA 219 [at para 38]. Nevertheless the fact remains, whatever be his state of sobriety, that the respondent was unable to furnish any explanation as to why he had attacked the victim.

15 His Honour accepted that the fact that the victim was "vulnerable", in the sense in which that expression is used in s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, was a matter which aggravated the offence. Her vulnerability, his Honour found, was "evidenced from her age and the obvious frailty that would go with a woman of such age". 16 As I have said, the respondent gave evidence at the sentence hearing. A large number of testimonials and other reports were tendered on his behalf. The respondent had just turned 18 at the time of the offence. He was living with his parents at the time and had been in gainful employment since leaving school at the end of Year 10. He was also undertaking a TAFE course. His father was described as being a very heavy drinker and a chronic gambler who was abusive towards his mother. That had led his parents to separate for a period of time although they had later reconciled. Indeed, the respondent was working with his father at the time of his arrest. 17 The sentencing judge referred to the factors, which he concluded served to ameliorate the otherwise appropriate sentence, in the following terms: Clearly this crime was not part of a planned or organised criminal activity. The offender has no prior record of any sort and he was previously of good character. Indeed having regard to some of the evidence and the references, it might be suggested that he was of very good character. Having regard to these circumstances, the various reports before me, and his presentation in the witness box, I am satisfied that he is unlikely to re-offend. I am also satisfied that this offender has very good prospects of rehabilitation. Those prospects arise not just by reason of his very young age, he having been just over the age of eighteen at the time of the offence, but there is also significant family support, which is demonstrated in the documentation and references and also by the number of people who have attended here in court today to demonstrate that support. In particular he has shown insight in the sense that he seems to have accepted that the only explicable cause of his behaviour was alcohol, as to which he has vowed never to consume alcohol ever again. I accept that that clearly is his present intention and I can only hope that it will remain so in the future, having regard to what seems to be its potential in terms of affecting him. I turn to the question of remorse, which I think plays an important part in these proceedings. I am satisfied that there is genuine remorse of a significant nature, which has been demonstrated from the outset both during the ERISP interview, in the interviews by doctors and in the witness box here today. Specifically he has given evidence, which I accept, that he has accepted responsibility for his actions, even though he cannot remember what he did in precise terms and, secondly, that he has acknowledged the injury and damage caused by his actions. In particular I have regard to his spontaneous handwritten apology, which he wrote whilst in prison some months after the events in question, which he intended to send to the victim but on the advice of his lawyers, for reasons I am unable to comprehend, did not do so. But I accept that letter as a spontaneous expression of genuine regret, remorse and contrition. There was pre-trial disclosure and also a plea of guilty at the earliest possible opportunity, in respect of which he is entitled to the full utilitarian discount. The defence argued that I should allow an additional discount beyond the utilitarian 25 per cent, based upon the fact that neither the offender nor the victim has any memory for the episode. Whilst I am not persuaded that that is a relevant factor, I am persuaded that it is appropriate to allow further discount to have regard to the level of his contrition and remorse to which I have referred. Whilst he is and was at the time of the act technically an adult, his age clearly is a factor which would be taken into account in accordance with the cases which say that in respect of a person of this age the objective of rehabilitation should be more pronounced than that of deterrence. Although general deterrence, and even particular deterrence to this offender are important, in setting the sentence, particularly in respect of a crime as serious as this, I will give more weight to rehabilitation than deterrence. I also accept the evidence of the offender's inexperience with alcohol and for those reasons I am satisfied that the episode involved was something of an aberration in an otherwise unblemished life in the community. I am also cognisant that, having regard to the nature of the offence, his time in gaol will be harsher than it would be for others due not just to his age but also to the fact that he will be under a high level of security and protection for most of his period of imprisonment and his access to amenities such as courses and the like will be correspondingly diminished. 18 A little later his Honour said: In this case there are clear special circumstances which I find, being the fact that this was the first and only offence that this offender has committed, his extreme youth, his potential for rehabilitation, the unlikelihood of his re-offending and the need for an extended period of supervision following the non-parole period in which he will be imprisoned. 19 The sole ground of appeal is that the sentence is manifestly inadequate. The Crown submitted that there were a number of errors committed by the sentencing judge which led to the imposition of such a sentence. They were described in the following fashion: · His Honour erred in determining that the objective severity of the offence fell within the middle of the mid range for this type of offence. · His Honour erred in the application of the standard non parole period. · His Honour erred in finding that the respondent has very good prospects of rehabilitation. · His Honour erred in finding that the respondent is unlikely to re-offend. · His Honour erred in giving undue weight to the respondent's youth, given the objective seriousness of the offence. · His Honour erred in failing to take into account the matters on the Form 1 so as to reflect the totality of criminality. 20 In Carroll v The Queen [2009] HCA 13, the High Court observed that:

[t]he particular principle which the Director sought to invoke in his appeal to the Court of Criminal Appeal against the sentence passed upon the present appellant was the last category of case identified in the well-known classification stated in House v R : …

The Director's allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was "manifestly inadequate", was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence.

In support of that ground of appeal the Director submitted to the Court of Criminal Appeal that there were three reasons the sentence was manifestly inadequate… …it is as well to point out that none of the three matters identified by the Director was, or was advanced as being, an error of principle or fact such as would have enlivened any of the forms of error identified in House v R other than the last category. Each of the three arguments advanced was put as no more than some explanation for what was alleged to be a sentence which, on its face, was "unreasonable or plainly unjust ". (at paras 8-9) (emphasis added) 21 It is apparent from the written submissions relied upon by the Crown that the present appeal falls into the same category as the case with which the court was dealing in Carroll (supra). 22 It is convenient to first deal with the complaint that the sentencing judge erred in finding that the offence fell into the mid-range of objective seriousness for an offence of this type. In seeking to justify the sentencing judge's assessment of the objective seriousness of the offence, counsel for the respondent pointed out, that s61J of the Crimes Act encompasses a wide range of offences. Counsel went on to observe that a number of features which may serve to aggravate the offence, such as a case in which the victim is a child, or in which the offence is committed in company or in which a weapon is used, were absent from the present case. So much may be accepted but that consideration, in my view, does not diminish the fact that the present offence was one of very considerable gravity. The injuries which the victim sustained, including those to her genital area, suggest that considerable force was used by the respondent. Moreover, he was a fit, strong young man who was able to easily overpower the victim who was a small, frail woman in her 80s. One can only imagine the terror and sense of isolation that she must have felt particularly as she was a visitor to this country and unable to speak the language. Moreover, the fact that the offence was committed in full view of members of the public added an unpleasant extra dimension to the offence. The sentencing judge understandably described the offence as involving a "nasty vicious attack" upon the victim. 23 It is well-established that this Court should be loathe to find error in an assessment by a first instance judge of the objective seriousness of an offence: Mulato v R [2006] NSWCCA 282 [at paras 37, 46]; Deng v R (2007) 176 A Crim R 1 [at paras 69-71]. Even though I regard his Honour's assessment as being a generous one, I am unable to conclude that the impugned finding was not open to him. Accordingly I would not be disposed to find error upon this basis. 24 The Crown next complains that, even if it was open to the sentencing judge to find that the offence lay within the mid-range of objective seriousness, his Honour nevertheless erred "in the application of the standard non-parole period". The correct approach to be followed in relation to this question is well-settled: R v Way (2004) 60 NSWLR 168; Anderson v R [2008] NSWCCA 211. The sentencing judge approached this issue in the following fashion: Having found this offence to be within the mid range objective seriousness, I need to deal with the standard non-parole period which the court is required to impose unless it determines that there are reasons for setting a non-parole period that is longer or shorter than the standard period. The maximum penalty is and remains the primary expression of legislative intention as to the seriousness of a particular offence. The question to be asked is whether there are reasons for not imposing a standard non-parole period, considering both the facts, including those explaining why an offence was committed, and the circumstances of aggravation and mitigation. In my view, there are in this case factors that do call for a departure from the standard non-parole period, both in respect of the facts which explain or which by inference must explain why this offence was committed, and in the circumstances of mitigation to which I have referred which, when weighed against the circumstances of aggravation, far exceed them. 25 Due allowance must of course be made for the fact that the remarks on sentence were made ex-tempore during the course of what was no doubt a very busy list. Nevertheless it does not appear to me that the sentencing judge has sufficiently complied with the statutory requirement to state his reasons for departing from the standard non-parole period. Those reasons need to be stated with some specificity and the greater the departure from the standard non-parole period, the more compelling the reasons need to be. That said, clearly enough there were reasons which warranted such a departure. The authorities make clear, as counsel for the respondent pointed out, that the standard non-parole period is not to be treated as either a "straitjacket" or even as a "starting point". Furthermore, by reason of the plea of guilty, the standard non-parole period operated as a "guidepost" to the imposition of the appropriate sentence. It is also clear that there were other significant features of the respondent's case which were to be weighed in the balance including his youth, his prior good character and his expression of remorse. But even allowing for those factors to be given their full weight, I am unable to discern how the non-parole period which was imposed could have been arrived at using the standard non-parole period as a "guidepost". In my opinion the reasons for departure could not justify the difference between the standard non-parole period of 10 years imprisonment, as a guide, and the 3 years imprisonment at which the sentencing judge arrived. 26 Complaint was also made by the Crown about the findings which the sentencing judge made about various aspects of the respondent's subjective case. They included the weight given to the respondent's youth, the fact that he was said to have "very good prospects" of rehabilitation and that he was unlikely to re-offend. In essence, this complaint is closely allied to the submission with which I have just dealt. It is to the effect that the sentencing judge, in imposing the sentence which he did, clearly gave too much weight to the various aspects of the respondent's subjective case. In view of what I have already said about the issue, it is unnecessary to deal with the current complaint at any great length. The respondent's prior good character, his plea of guilty and expressions of remorse, his age, and his stable employment all pointed in the direction of his having favourable prospects of being rehabilitated. Nevertheless, his Honour's findings about his prospects in that respect and the likelihood of his re-offending must be regarded as somewhat surprising given, as I have said, that no satisfactory explanation was forthcoming as to why he had committed the offence. I do not see how those findings could be made when the sentencing judge found that an aspect of the respondent's personality or psyche had been triggered. The Crown concedes, and properly so, that the sentencing judge was entitled to give weight to the respondent's youth in accordance with well established principles. See, for example, R v GDP (1991) 53 A Crim R 112; R v Hearne (2001) 124 A Crim R 451; R v AEM Snr [2002] NSWCCA 58; MS2 & Ors v R (2005) 158 A Crim R 93. However, I accept the Crown's contention that his Honour's repeated references to the matter suggest that there has been an element of "double-counting". 27 Criticism is also made of the following finding made by his Honour: There are other offences that I am required to take into account arising out of the circumstances, namely the assault on the police officer and the resist the police officer during the course of his arrest. However, no one suggested that those matters should be taken into account in the sentencing process so as to increase it. Nevertheless, I take those matters into account. 28 The Crown's representative at first instance quite properly conceded that the matters on the Form 1 were minor matters and "would not vary [the overall sentence] significantly". It appears to be common ground that the sentencing judge somewhat overstated the position in that passage to which I have just referred. Nonetheless, those matters could not have had any meaningful impact upon the ultimate sentence to be imposed in this particular case. Even if his Honour did err in respect of this matter, it was, in my view, of little moment in the context of the present sentencing exercise. 29 The principles governing the determination of Crown appeals are well-established and do not require repetition for present purposes: see generally R v Wall (2002) 71 NSWLR 692 at 707. Notwithstanding those considerations, I have reached the view that the Crown appeal must be upheld. I do not accept the respondent's submission that the sentence which was imposed was merely lenient. On the contrary, I find it impossible to escape the conclusion that it was manifestly inadequate. Upon the question of resentencing an affidavit sworn by the respondent's mother was read. I do not discern in that affidavit, or in any of the other material, any basis upon which the Court should exercise its discretion not to intervene even though error has been established. 30 Given the normal constraints, referred to in Wall (supra), which operate in respect of a Crown appeal, the sentence which I propose should now be imposed is considerably less than the sentence which, in my view, ought to have been imposed at first instance. I would confirm the finding of "special circumstances" for the reasons given by the sentencing judge. 31 I propose the following orders:

2 Quash the sentence imposed in the District Court.

3 In substitution therefore sentence the respondent to a non-parole period of 4 years imprisonment to commence on 11 May 2008 and to expire on 10 May 2012 with a total term of 6 years 6 months imprisonment to expire on 10 November 2014.

4. The respondent will be eligible for parole on 10 May 2012.

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