R v HAYES [2004] NSWCCA 156 | Case summary

The offences (in chronological order) 5 The first offence was that of sexual intercourse without consent (s61I Crimes Act 1900, maximum penalty 14 years) committed at Surry Hills on 4 March 2001. 6 Early in the morning the applicant approached a 28 year old female Czechoslovakian tourist on a street in Surry Hills. On the pretext of taking her to a better location to hire a taxicab, he took her into a side street, physically assaulted her and then had forcible penile/vaginal sexual intercourse with her. He was identified as the perpetrator by DNA matching. He was charged on 28 February 2002 and admitted to bail. He was originally charged with aggravated sexual assault and the matter was listed for trial. A plea was negotiated during the course of voir dire proceedings concerned with the admissibility of evidence. 7 With respect to this offence there was taken into consideration by the learned sentencing Judge a charge of assault occasioning actual bodily harm. 8 Whilst on bail for the offence committed on 4 March 2001 (the rape) the applicant, 17 months later, committed the second offence on 4 August 2002. That was an offence of indecent assault under s61L Crimes Act 1900 which carries a maximum penalty of 5 years imprisonment. 9 The applicant engaged a prostitute in Kings Cross and, purporting to take her to his home, took her into a laneway where he grabbed her, swung her around, causing her to fall to the ground. He then pulled down her singlet, exposing her breast, and sucked it. Neighbours who heard the victim's cries for help called out and the applicant fled the scene, taking with him the victim's handbag. He was identified as the perpetrator by a DNA match. He was charged with this matter on 24 July 2003 during the course of voir dire proceedings in relation to the first matter and waived committal proceedings. 10 In connection with this second offence his Honour was asked by the applicant to take into account a charge of larceny arising from the taking of the victim's handbag. 11 The third offence was committed on 23 February 2003 and was that of entering a building with intent to commit an indictable offence, namely assault: s114(1)(d) Crimes Act 1900 which carries a maximum penalty of 7 years. The third offence was committed 6 months after the indecent assault and larceny, and 23 months after the rape and assault occasioning actual bodily harm 12 In relation to this matter the applicant had entered a unit block at the same time as a female occupant at almost 6 in the morning. He followed her to her unit and tried to force his way in. she managed to repel him but only after a struggle at the front door. Police were alerted and apprehended him at the scene. 13 In connection with this third charge (which had been committed whilst on bail in relation to the first two charges), the applicant asked to be taken into account on a Form 1 a charge of assault. 14 In his remarks on sentence his Honour found (ROS p3): "There are aggravating factors in each of these matters. All three attacks were upon defenceless young women who were alone at the time. Two of the attacks occurred in a street late at night and the attack in the block of units occurred when the victim was returning to her home early in the morning. Further, each of the offences involved the infliction of violence and putting the victims in fear of their safety. In relation to the offence committed on 4 March 2003, substantial violence was used, which resulted in the victim suffering injuries requiring hospital treatment. Further, both the second and third offences involved threats of violence being made by the offender". 15 The sentences imposed by Judge Solomon were: in relation to the second matter (indecent assault), a fixed term of 2 years to commence on 29 July 2003; in relation to the third matter (entering the building) a fixed term of 2 years to commence on 29 July 2005 and in relation to the first matter (the rape), a term of 8 years imprisonment commencing on 29 July 2007, with a non-parole period of 5 years and 3 months to commence on 29 July 2007 and thus a total sentence of 12 years with an effective non-parole period of 9 years and 3 months. 16 No complaint is made by the applicant in relation to approach by the learned sentencing Judge to the subjective features. Clearly his Honour gave them due and appropriate weight and it was not without some concern that his Honour approached that part of the psychological evidence tendered in the proceedings before him in which the psychologist had assessed this applicant in the high range on a measure of risk of sexual re-offending. 17 No complaint is made of "patent error" in his Honour's stated approach to sentencing for any of the individual features. Matters in aggravation were appropriately referred to and dealt with by his Honour. 18 In the course of his remarks on sentence his Honour said (ROS 4): "The offences are not part of the one episode of criminality, they are separate episodes of serious criminal conduct committed by the offender. The Crown has submitted that I should accumulate the sentences in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610. It is submitted that the offences involve separate criminality against different victims and the sentences should be accumulated. I agree with that submission and I will wholly accumulate the sentences. However, in considering the appropriate sentences, I must have regard to the principle of totality and ensure that the [aggregation] of the sentence is appropriate to the totality of the criminality". 19 I interpolate that I do not understand his Honour's reference to Pearce in any way to be a misconstruction of what the High Court decision is authority for. His Honour has referred to it in a very shorthand way. 20 It is contended that the error is that his Honour erred in carrying out the last task there referred to. It is not contended that his Honour erred in passing sentences properly calculated in relation to each offence for which it was imposed, but rather that the aggregation of those sentences has resulted in a total sentence which is not "just and appropriate" (see Mill v The Queen (1998) 166 CLR 59 at 63 and the citation therein from D A Thomas, Principles of Sentencing). 21 It is further not the position of the applicant that his Honour should have imposed concurrent sentences. It is acknowledged that these were distinct offences involving different victims on entirely separate occasions, each, I add, with their attendant aggravating features referred to above. 22 What is merely contended is that the correct application of the principle of totality should have brought about orders having the effect that the sentences be served partly concurrently and partly consecutively as provided for in s55(2) Crimes (Sentencing Procedure) Act 1999. 23 It cannot be said, in my view, by reference to the cited passage from his Honour's remarks on sentence, that his Honour did not turn his mind to the question of accumulation. It cannot be said that his Honour did not turn his mind to the question of totality. 24 I can state at this point that it is my view that his Honour having turned his mind to those matters, came to the view that the accumulated sentences properly reflected totality in terms of justness and appropriateness in the circumstances of these three offences. 25 In written submissions for the applicant reference is made to various cases: R v O'Rourke, NSWCCA, unreported, 25 July 1995; R v Windle, NSWCCA, unreported, 29 August 1995; R v Pastovsky, NSWCCA, unreported, 28 June 1996. None of these cases is available to make up a "range" against which it could be said that the 8 year sentence for the very grave offence committed against the young Czech woman can be judged. O'Rourke was a "triple jeopardy" case as at the time when sentence indications were available; Windle's case contained no pronouncement by the Court on the sentence imposed and in Pastovsky the appeal was dismissed. 26 The statistics also contained in the applicant's submissions do not show that the individual sentences imposed by his Honour are excessive. 27 A view might well be formed that each of the sentences was severe. The view is not advanced that any one of them was manifestly excessive. 28 I do not understand Mill v The Queen (1998) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 or Johnson v The Queen [2004] HCA 15 to "require" concurrence or partial concurrence of sentences for multiple offences. It can be said that each of those cases requires "consideration" of whether or not that step should be taken by the sentencing Judge in the context of the critical component, namely "totality". In Johnson at para [26] per Gummow, Callinan and Heydon JJ the following is stated: "[26] The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected." (Footnotes omitted) 29 There is no available submission here that his Honour in fact should have "lowered the individual sentences below what otherwise could be appropriate". There is no available submission that not having done so has brought about error with respect to totality. 30 The gravity of each offence must not be overlooked in terms of its individual facts and the aggravating circumstances. 31 In my view, the total sentence, when viewed in the light of the offences, and taking in account otherwise the propriety of his Honour's approach, cannot be regarded as manifestly excessive or inappropriate to the totality of the criminality or otherwise not "just and appropriate". 32 I propose that leave to appeal be granted but that the appeal be dismissed. 33 HIDDEN J: I agree with Levine J. **********

R v HAYES

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Cases Cited (3)

Cited By (3)