R v Hibberd

Crimes Act 1900 s 61, s 61I, s 61L, s 562I(1), LEGISLATION CITED: s 562(1) Criminal Procedure Act 1985 s 166,

House v The Queen (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Pearce v The Queen (1998) 194 CLR 610 Regina v Fernando [2002] NSWCCA 28 Regina v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) R v Allpass (1994) 72 A Crim R 561 R v Hallocoglu (1992) 29 NSWLR 78 CASES CITED : R v Hiron [2007] NSWCCA 336 R v Jeffries [2008] NSWCCA 144 R v Johnson [2004] NSWCCA 140 R v McNaughton [2006] NSWCCA 242 R v M.A.K R v M.S.K [2006] NSWCCA 381 R v Ponfield (1999) 48 NSWLR 327 R v Simpson (2001) 53 NSWLR 704 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168

PARTIES: Regina Stephen Eric Hibberd

COUNSEL: P Ingram (Applicant) D Stewart (Respondent)

SOLICITORS: S Kavanagh Public Prosecutions (Applicant) S Danieli (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: O'Connor QC DCJ

LOWER COURT DATE OF DECISION: 20 March 2008

IN THE COURT OF CRIMINAL APPEAL 2006/7605

TOBIAS JA JAMES J PRICE J

1 TOBIAS JA: I agree with the orders proposed by Price J and, subject to what I say below, generally with his reasons. 2 At [56] of his judgment his Honour has noted the 1995 decision of this Court in Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) which purported to draw a factual distinction between non-consensual digital penetration on the one hand and, for example, penile penetration on the other, Grove J (with the agreement of Gleeson CJ and Ireland J) observing that the former was likely to be less serious than the latter. I agree with Price J that there is no canon of law that mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. However, the contrary has never been suggested. 3 At the conclusion of the hearing the Crown was asked to provide a list of authorities that touched or concerned what Grove J had said in Da Silva. That list was duly provided. 4 The starting point of any discussion of this issue is the fact that s 61I of the Crimes Act 1900 provides for a general offence of "sexual intercourse" without consent, an expression defined in s 61H to mean, relevantly, "(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, …" 5 Identical provisions in the Criminal Code of Western Australia were considered by the High Court in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447. At 451 [4] Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ referred to the judgment in the Court of Criminal Appeal in that case in which Burt CJ, with whom Smith J agreed, had observed "The offence carries a maximum sentence of 14 years imprisonment and as I observed in Reg v Ginder (1987) 23 A Crim R 1 at 3-4, 'it is apparent that the (Code as amended) … creates one offence which embraces without distinction inter se all the identified kinds of penetration by one of another if achieved without consent' and that it should not be supposed that for the purposes of punishment 'one means of penetration is more heinous than another'." 6 Their Honours in Ibbs then referred to the following further statement of Burt CJ in Ginder (at 4) where the Chief Justice said that in fixing the sentence in a particular case "…it should not be supposed that one means of sexual penetration, divorced from the circumstances, is more heinous than another. To make that distinction would, I think, be to hark back to notions which have, by the reforming Act, been abandoned." 7 Their Honours then remarked as follows (at 451 [4]): "It appears that the majority regarded the Chief Justice's judgment in Ginder as stating a principle which should govern the fixing of sentences for offences of sexual assault. Although neither that judgment nor the judgments in this case suggest that the particular facts of each case are to be disregarded, the judgments appear to adopt as a sentencing principle the proposition that, 'divorced from the circumstances', each kind of sexual penetration as defined in s 324F [equivalent to s 61H] is neither more nor less heinous than another. That proposition cannot be accepted. The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s 324D [equivalent to s 61I] … The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling in each of the respective categories of sexual penetration described in s 342F." 8 Their Honours then said: "The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider whether the facts of the particular case lie in a spectrum at one end of which lies the worst case of sexual assault perpetrated by any act which constitutes sexual penetration as defined ." (emphasis added) 9 In R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575, Simpson J with whom, relevantly, Adams and Howie JJ agreed, referred (at 582 [22]) to the passage from Ibbs to which I have referred at [8] above and, at 582 [23], cited the following observations of Woods CJ at CL in R v Davis [1999] NSWCCA 15 at [66]: "In Ibbs v The Queen … the High Court rejected the proposition that each kind of sexual penetration as defined in the section, there under consideration, was to be regarded as neither more nor less heinous than another. The Court said that such a proposition cannot be accepted. It appears to me that any other view would beggar common sense, and that penile/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A [which provides that any person who has sexual intercourse with another person who is under the age of 10 years should be liable to imprisonment for 25 years]." 10 Simpson J then continued in the following terms:

"24 It might be true, as senior counsel suggested, that penile/vaginal intercourse would, in the circumstances, have amounted to a more serious offence. But does that avail the respondent? Let it be supposed that his Honour had not excluded as irrelevant the nature of the sexual activity in question. It is difficult to think that that of itself would have led him to the conclusion that the offence was of something less than mid range gravity. It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s66A (and defined in s61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness . While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the mid point of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio. ... 25 Other appropriate areas of inquiry in the consideration of the objective seriousness of a s66A offence are, for example, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim. ..." (emphasis added) 11 It is to be noted that Grove J in Da Silva did not refer to Ibbs as support for his statement that he generally agreed that it was likely that digital penetration is less serious than, for example, penile penetration. Nor was that decision called in aid by Studdert J, with whom Smart AJ agreed, in R v O'Brien [2002] NSWCCA 102 where his Honour observed (at [16]) that digital penetration, although not to be treated lightly, "is not treated as seriously as penile penetration". 12 Nor was Ibbs referred to by Sully J, with whom, relevantly, Hidden and Hall JJ agreed, in Regina v O [2005] NSWCCA 327 where his Honour observed: "32. I would accept that, as a general proposition, an act of digital penetration, as such, is less serious than an act of penile penetration as such. I do not agree, however, that such a general proposition is, more or less as of course, a proposition of universal applicability in cases of digital penetration. One only has to read the victim impact statement of KW and JS to see at once how damaging to a particular victim an act of digital penetration, let alone more than a single such act, can be to a very young child. 33. I would at once agree that the acts of digital penetration are not properly to be regarded as the worst types of sexual intercourse on a scale of statutory penalties that peaks at a sentence of imprisonment for 20 years. That said, however, I do not agree that the offences here relevant are to be treated as though they were more or less trifling offences. They were in my opinion, nothing of the kind. They were, for the reasons earlier herein explained, in my opinion offences of significant objective criminality." 13 I would refer to two further authorities. The first is R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported), where Mahoney JA, with whom Newman and James JJ agreed, in a case involving digital penetration of a female adult, observed: "As I have indicated, every offence of this kind is a serious offence. But those whose duty it is to deal with crimes of this kind and to sentence those who commit them know that though each case is inherently serious, some are more serious than others. In some cases, the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise, are much greater than are involved in this case. It is to be understood that in sentencing it is appropriate - indeed in most cases it is necessary - that the sentencing judge form and record his assessment, of where, on the relevant scale of seriousness, the particular offence lies." 14 The second is R v O'Donnell (Court of Criminal Appeal, 1 July 1994, unreported), a case of anal penetration of a child under 10. In that case the sentencing judge was asked to take into account five additional offences, one or more of which involved fellatio with a young child. In that context Hunt CJ at CL with whom, relevantly, Simpson J agreed, remarked: "When I read the evidence and then turned to the sentences which were imposed, I was struck by their severity notwithstanding the quite horrible circumstances of the offences themselves. My next step was to read the judge's remarks on sentence to see where the explanation lay for that severity which, on its face, was of a crushing nature. My concern as to whether error occurred arose from the absence of any express recognition in the remarks of the judge of the principle - applicable where different crimes of sexual assault with varying degrees of serious are somewhat inappropriately encapsulated by the Legislature within the single definition of sexual intercourse - that the seriousness of the conduct in a particular case depends not upon the description of sexual intercourse as defined but upon the facts of that case, and that the maximum penalty prescribed for all such offences is not appropriate in relation to those offences of a less serious nature. That is the principle stated by the High Court in Ibbs … Fellatio, in my opinion, is clearly less criminal than, say, anal or vaginal penetration. That is a distinction of vital importance in this case …" 15 The critical part of the judgment in Ibbs to which I have referred at [8] above is that part which I have emphasised. True, their Honours rejected the proposition that each kind of sexual penetration as defined in s 61H of the Crimes Act is to be regarded as neither more nor less heinous than another. But this was because, as the High Court pointed out, such a proposition cannot be "divorced from the circumstances". As Simpson J observed in AJP (at [24]), it might be the case that penile/vaginal intercourse would have amounted to a more serious offence "in the circumstances". 16 Further, as Mahoney JA observed in Gebrail, although each form of sexual intercourse as defined in s 61H is inherently serious, some are more serious than others depending on the circumstances to which his Honour referred. In taking into account the objective seriousness of a particular offence, a number of factors are relevant including, of course, the form of forced intercourse. 17 Nor do I understand Wood CJ at CL in the passage from Davis cited by Simpson J in AJP at [23] to be saying anything different. His Honour was there dealing with penile/vaginal penetration of a child under 10 which, as a matter of common sense as his Honour observed, was significantly more serious in the case of a young child than many of the other forms of conduct encompassed within s 61H such as fellatio. That was because of the physical and emotional impact that the particular offence in the circumstances would have upon a child victim. I do not regard the learned Chief Judge as otherwise stating a general proposition of universal application. 18 Furthermore, although Sully J in Regina v O accepted that as a general proposition an act of digital penetration "as such" was less serious than an act of penile penetration "as such", his Honour did not agree that such a proposition was one of universal application. 19 However, with respect to his Honour's long experience in the criminal law, I consider there to be a danger in adopting, at least in the case of sexual assault upon an adult, a general proposition that an act of digital penetration, without more, is less serious than an act of penile penetration, without more. The problem is that it is never "without more". True it is that penile penetration, contrasted with digital penetration, may carry risks to a female adult victim such as pregnancy or sexually transmitted disease. On the other hand, digital penetration has the potential to cause more physical damage than penile penetration. These are some of the many factors which are required to be taken into account when determining the objective seriousness of the offending act and the point on the scale of seriousness where that act should be placed. 20 My point is that any notion that one particular form of penetration may generally be regarded as more or less serious than another form should be rejected. In my view such a generalised proposition was rejected in Ibbs where their Honours emphasised that the heinousness of the conduct in a particular case depended not on the statute defining the offence but on the facts of the case. Any form of hierarchy of seriousness between the various kinds of sexual intercourse identified in s 61H was also specifically rejected by Simpson J in AJP in that part of [24] of her judgment which I have emphasised at [10] above. 21 In my respectful view the time has come for this Court to depart from any prima facie assumption, let alone general proposition, that digital sexual intercourse is to be regarded as generally less serious than penile sexual intercourse. If one was to accept such a proposition, then it may well be appropriate to also assert that the forced vaginal penetration in some of its more gross forms is likely to be more serious than penile penetration. As the objective seriousness of the offence is wholly dependent on the facts and circumstances of the particular case as the High Court and Simpson J emphasised in Ibbs and AJP respectively, any resort to prima facie assertions that one form of penetration is likely to be or generally will be more serious than another, is to be avoided. It can, in my view, only lead a sentencing judge to erroneously attribute more weight to the general proposition or assumption than the particular facts of the case. 22 It was the undue emphasis that the sentencing judge in the present case placed upon the proposition that digital penetration was to be regarded as less serious than penile penetration which, in my view, led him into error particularly with respect to Count 4. Price J at [54] of his judgment has correctly noted that the focus of his Honour's consideration was plainly upon that form of forced intercourse. By adopting the remarks of Grove J in Da Silva the sentencing judge failed to give appropriate weight to the other matters referred to by Price J resulting in an erroneous finding as to the objective seriousness of the offending act. 23 Subject to the foregoing observations, I agree with the orders proposed by Price J. 24 JAMES J: I agree with Price J. 25 I have read in draft judgment of Tobias JA. 26 I agree that digital sexual intercourse without consent is a serious offence and that there is no rule that it is necessarily less serious than penile sexual intercourse without consent. 27 I would like to reserve my position on whether this Court should now depart from statements made in previous cases to the effect that generally an act of digital penetration is likely to be less serious than an offence of penile penetration. 28 The point was not fully or even adequately argued before this Court. No submission was made by the Crown in its written submissions that it is an error to regard digital sexual intercourse as being generally less serious than penile sexual intercourse. The point was raised, for the first time, by the presiding judge in the course of the oral hearing. It was apparent that neither counsel had come to court prepared to argue the point and the court did not receive much assistance from counsel.

29 PRICE J: This is a Crown appeal against the manifest inadequacy of sentences imposed upon the respondent in the District Court. 30 The respondent had pleaded not guilty to seven counts on an indictment but was found guilty by a jury on each count. On 20 March 2008 the sentencing Judge imposed the following sentences: · Count 1 (an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900) to a term of imprisonment of 5 years consisting of a non-parole period of 3 years 6 months commencing on 23 July 2006 and expiring on 22 January 2010 with a balance of term of 1 year 6 months commencing on 23 January 2010 and expiring on 22 July 2011. · Count 2 (an offence of common assault contrary to s 61 of the Crimes Act) to a fixed term of imprisonment of 6 months commencing on 23 July 2006 and expiring on 22 January 2007. · Count 3 (an offence of common assault contrary to s 61 of the Crimes Act) to a fixed term of imprisonment of 6 months commencing on 23 July 2006 and expiring on 22 January 2007. · Count 4 (an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act) to imprisonment for a term of 6 years consisting of a non-parole period of 3 years 9 months commencing on 23 July 2009 and expiring on 22 April 2013 with a balance of term of 2 years 3 months commencing on 23 April 2013 and expiring on 22 July 2015. · Count 5 (an offence on common assault contrary to s 61 of the Crimes Act) to a fixed term of imprisonment of 6 months commencing on 23 July 2009 and expiring 22 January 2010. · Count 6 (an offence of common assault contrary to s 61 of the Crimes Act) to a fixed term of imprisonment of 6 months commencing on 23 July 2009 and expiring on 22 January 2010. · Count 7 (an offence of indecent assault contrary to s 61L of the Crimes Act) to a fixed term of imprisonment of 12 months commencing on 23 July 2009 and expiring on 22 July 2010. 31 During the proceedings on sentence a related offence involving a breach of an apprehended domestic violence order was listed for sentence before the sentencing Judge pursuant to s 166 of the Criminal Procedure Act 1985. This was an offence contrary to s 562I(1) of the Crimes Act. The respondent was sentenced to a fixed term of imprisonment of 6 months commencing on 23 July 2006 and expiring on 22 January 2007 for this offence. 32 The overall sentence which was imposed as a result of partial accumulation and concurrence was a term of 9 years consisting of a non-parole period of 6 years 9 months commencing on 23 July 2006 and expiring on 22 April 2013 with a balance of term of 2 years 3 months commencing on 23 April 2013 and expiring 22 July 2015. 33 The earliest date the respondent is eligible for release to parole is 22 April 2013. 34 An offence contrary to s 61I of the Crimes Act is punishable by 14 years imprisonment. A standard non-parole period of 7 years applies. An offence contrary to s 61L of the Crimes Act is punishable by 5 years imprisonment whereas an offence contrary to s 61 is punishable by 2 years imprisonment. The standard non-parole period provisions of the Crimes (Sentencing Procedure) Act 1999 do not apply to these offences nor do they apply to an offence contrary to s 562I(1) of the Crimes Act which attracts a maximum penalty of imprisonment of 2 years and/or a fine of $5500.

The facts 35 The sentencing Judge found that the jury accepted the complainant's evidence and the facts may be stated in accordance with his Honour's findings. 36 The complainant first met the respondent in 2005 when she was 16 years old. The respondent was then about forty-one. A de facto relationship between them commenced when the complainant was seventeen.

Count 1: On 9 May 2006 the respondent woke the complainant and repeatedly asked for sex, which she declined. She told him that she could not have sex in case it brought on labour. The complainant was in the eighth month of pregnancy. Despite her refusal the respondent forced the complainant's legs apart and inserted at least one finger into her vagina. She described a scratching sensation and stinging pain in her vagina. The respondent called her a slut and accused her of "fucking around" saying that he knew that she had "shagged someone". He told her to get into the shower.

Count 2: Whilst the complainant was in the shower the respondent jumped into the shower and again accused her of "shagging someone". When she denied any infidelity, the respondent hit her around the head, pushed her down and then pulled her back up by the hair, bashing the side of her face with either his fist or elbow.

Count 3: After getting out of the shower the complainant made the respondent a cup of coffee. He then hit her on the head with his fist.

Count 4: On 10 May 2006 the respondent woke the complainant and accused her of "fucking someone". The respondent said to her, "let me shove it in you." He was told by the complainant, "I can't in case I go into labour." The respondent said, "You're lying." She said the respondent shoved his fingers up her vagina and said, "Someone else's cum is up there." The complainant said that she kept on telling him to stop and felt pain in her vagina. She said that "his hand was up there", she tried to remove his hand but he would not remove it. When she tried to scream, the respondent shoved her head into the pillow, telling her to shut up. She felt strong pain in her vagina and following the incident saw blood on the bed. The sentencing Judge referred to the evidence given by Dr Holland, the obstetric and gynaecological registrar at Gosford Hospital, that on examination she observed that the complainant's labia appeared slightly swollen and bloodstained mucous was observed at the introitus. There was also complaint of vaginal pain. Dr Holland testified that the complaints of vaginal pain and bleeding were not normal during pregnancy. Dr Holland said that the swelling of the labia and bleeding was consistent with having a fist inserted into the vagina.

Following a review of the whole of the evidence the sentencing Judge found that he could not be satisfied beyond reasonable doubt that the respondent had inserted his whole hand or fist into the complainant's vagina. His Honour was satisfied that the respondent had inserted "at least three fingers into the complainant's vagina making it a more serious sexual assault than the offence in count 1, bearing in mind also that some injury was occasioned to the complainant's vagina, causing bleeding to occur".

Count 5: After having a shower the complainant returned to bed. The respondent again accused her of having sex with someone. He tried to force her legs apart and slapped her, hitting her on the head.

Count 6: On 11 May 2006 the complainant was woken up by the respondent who accused her of "shagging someone", slapped her, pulled the pillow from under her head, put it on her face so she could not scream and at the same time had his forearm on her neck so that she was choking and had difficulty breathing.

Count 7: The respondent called the complainant a "dirty slut" and urinated on her saying at the same time "take that". This was in effect, the sentencing Judge said, a continuation of the assault in count 6.

Subjective circumstances 37 Evidence of the respondent's subjective circumstances was put before the sentencing Judge by way of a Probation and Parole report dated 13 August 2007 and two character testimonials. The respondent did not give evidence during the proceedings on sentence. 38 The respondent was born on 30 July 1964 and at the time of sentence was aged 43 years. He was the middle of five children whose parents separated when he was about 12 years old. He left school in year 10 and after working in a number of labouring positions, secured stable employment with the electricity commission as a fitter, rigger and welder where he worked for 13 years. Since 2003 he had been working as a strapper in the horse racing industry. The respondent told Ms Ellen, the author of the Probation and Parole report, that he started smoking cannabis when about 14 years of age and claimed that he had stopped completely in about 2004. He had also used amphetamines (speed) but claimed to have ceased altogether in 2004. Ms Ellen noted from the custody records that the respondent tested positive to cannabis on 7 November 2006. The respondent denied smoking cannabis stating that he may have tested positive as a result of breathing in his cell mate's cannabis smoke as his cell mate was a chronic cannabis smoker or the cannabis could still be in his system. The sentencing Judge remarked that the respondent had not given evidence during the sentence hearing and rejected these explanations. 39 Ms Ellen noted that the respondent maintained his innocence and claimed that the complainant had consented to his sexual advances. He denied any wrongdoing or violence within his relationship with her. Ms Ellen opined that he appeared to be in denial and his presenting issues were anger management and illicit drug use. 40 During the trial the respondent had given evidence in which he denied the allegations of assault and indecent assault. He had testified that no sexual intercourse took place on 9 May 2006 at all, that the sexual intercourse in respect of count 4 was consensual and involved the use of three fingers and that consensual penile vaginal sexual intercourse took place on 10 May 2006. 41 The respondent has eight children, including a one-year old child, (at the time of the report) to the complainant. Ms Ellen stated that the respondent remained in a relationship with the complainant who had visited him regularly whilst he was in custody. The sentencing Judge noted that the complainant had been a reluctant witness who despite her evidence remained supportive of the respondent. His Honour described the complainant as being "a fairly unsophisticated young woman from an unfortunate background which included periods of homelessness during which she resided in refuges". (ROS at 2) 42 At the time of the commission of the offences the respondent was on bail in relation to charges of assault occasioning actual bodily harm and stalking which were ultimately withdrawn by the complainant. The sentencing Judge found that the respondent's breach of conditional liberty was a factor of aggravation regardless of whether or not the charges were ultimately dismissed. 43 As to the respondent's prior criminal history the sentencing Judge noted that he had multiple offences involving violence which included three offences of assault occasioning actual bodily harm and three offences of contravening an apprehended domestic violence order which were committed between November 2001 and March 2002. For these offences he had been sentenced to terms of imprisonment. He had also been sentenced on 3 June 2003 to imprisonment for 3 months for his failure to comply with the terms of a good behaviour bond and to 12 months imprisonment for common assault, a non-parole period of 5 months 6 days being set. His Honour remarked that the respondent's record demonstrated "a continuing attitude of disobedience to the law with a disturbing number of offences involving violence and breaches of apprehended domestic violence orders". The current offences, his Honour said, represented a continuation of the respondent's disposition towards violent behaviour and in particular behaviour towards those with whom he had a domestic relationship. Considerations of deterrence and protection of the community were, his Honour said, of importance and would be taken into account when determining sentence. 44 The sentencing Judge accepted that the offences were spontaneous and to that extent a mitigating factor. His Honour did not regard the relationship between the respondent and the complainant as a mitigating or an aggravating factor so far as the objective seriousness of the offences was concerned.

Dealing with the appeal 45 Counsel for the respondent reminded this Court that it is not sufficient that an appellate court would have imposed a more severe sentence: R v Hallocoglu (1992) 29 NSWLR 67 at 78. It was submitted that, even if it could be established that the sentence was to some degree lenient, this was not a case where the Court would interfere with the sentencing Judge's wide discretion. 46 The principles that apply to the determination of Crown appeals against sentence were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]: "…it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85

(c) A Crown appeal against sentence is concerned with establishing matters of principle " for the governance and guidance of courts having the duty of sentencing convicted persons ": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62."

47 Although the Crown relies on the sole ground of manifest inadequacy, the Crown submitted that there were a number of individual errors made by the sentencing Judge. 48 It was first contended that the sentence imposed for count 1 was manifestly inadequate. The Crown complained that his Honour had substantially failed to expose the reasoning behind the determination of the relative objective seriousness of the offence and the extent of departure from the middle of the range was not articulated. The Crown submitted that the circumstances of the offence required a finding that the offence was only marginally below the middle range of objective seriousness and the non-parole period of 3 years 6 months was so much less than the standard non-parole period of 7 years so as to be manifestly inadequate. 49 In written submissions to the sentencing Judge the Crown had contended that count 1 fell below the middle range of objective seriousness having regard to the following matters: (i) the offence involved an act of digital penetration;

(iv) the nature and extent of force used. 50 The sentencing Judge in his remarks on sentence expressly referred to these submissions and to various decisions of this Court which the Crown had brought to his attention concerning offences of violent attacks in domestic settings. His Honour then said (ROS at 14): "Having considered all the circumstances, I am of the view that the offence in count 1 falls below the mid-range of objective seriousness for offences of this nature, particularly having regard to the fact that the offence involved digital penetration rather than penile vaginal penetration." 51 His Honour's determination was in accordance with the submissions that had been made to him by the Crown. The Crown argued in this Court that the circumstances of the offence in count 1 required a finding that the offence was only marginally below the middle range of objective seriousness having regard to the circumstances that the offence involved: (i) digital/vaginal penetration accompanied by abusive language and forceful overpowering the attempts by the complainant to resist the penetration; (ii) occurred in the course of personally degrading and abusive remarks that accompanied overbearing demands for sexual intercourse from a domestic partner;

(iii) the complainant was eight months pregnant at the time. 52 The respondent submitted that his Honour had comprehensively taken into account every relevant consideration in determining whether in his discretion it would be appropriate in the circumstances of count 1 to depart from the standard non-parole period and had recorded his reasons for doing so. His Honour in particular made it clear that he placed particular weight on the fact that the offence involved digital penetration rather than penile penetration in his determination that the offence fell below the mid-range of objective seriousness. 53 The sentencing Judge was obliged to consider where the offence lay on the scale of objective seriousness: R v Way (2004) 60 NSWLR 168. 54 A determination of where the subject offence lies on the scale of seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v The Queen (1936) 55 CLR 499. As was said by Simpson J in R v Johnson [2004] NSWCCA 140 at [36]: "For the Crown to succeed on this aspect of the appeal, it is necessary that it establish that the finding, which is essentially one of fact, was not open to his Honour. The finding, being an evaluation, is akin to an exercise of discretion and may only be held to be wrong if it can be shown that some wrong principle was applied, or irrelevant consideration taken into account (or a relevant consideration overlooked) or that the finding itself simply was not open on the evidence: House v The King…"

55 The definition of "sexual intercourse" is found within s 61H(1) of the Crimes Act and includes conduct which extends beyond what is ordinarily understood by that expression. The "heinousness" of the offending conduct depends on the facts of the case and not on the statute defining the offence: Ibbs v The Queen (1987) 163 CLR 447; R v Allpass (1994) 72 A Crim R 561.

56 Relevant considerations in determining where on the scale of seriousness an offence contrary to s 61I of the Crimes Act lies include "the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation…" See Regina v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced intercourse is an important factor it is not to be regarded as the sole consideration.

57 It is evident from his Honour's sentencing remarks that the principal basis of his determination that the offence fell below the mid-range of objective seriousness was that it involved digital penetration rather than penile vaginal penetration. His Honour had earlier in his sentencing remarks referred to the circumstances of aggravation and of mitigation that were present. Although the complainant was eight months pregnant, the forced intercourse was of short duration and involved the use of a single finger. Whilst accompanied by abusive and personally degrading language, the violence employed was of a low level and the physical hurt inflicted was slight. I am not persuaded having regard to all the circumstances of the offence that the sentencing Judge's characterisation of the offence as falling below the middle range of seriousness was not open to his Honour nor am I persuaded that the reasons provided were inadequate. His Honour further found special circumstances justifying an adjustment to the statutory ratio. There has been a proper evaluation, to my mind, of the respondent's criminality by the sentencing Judge for count 1 and the sentence of 5 years with a non-parole period of 3 years 6 months was appropriate to the gravity of that crime.

58 The Crown further contended that the sentence imposed on count 4 was manifestly inadequate. Counts 1 and 4 were, as I have earlier detailed, offences contrary to s 61I of the Crimes Act attracting a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years. The sentence for count 4 imposed by the sentencing Judge was a term of 6 years with a non-parole period of 3 years 9 months.

59 The Crown was critical of the sentencing Judge's determination that the offence was "slightly below the mid-range" and argued that the circumstances of the offence required a finding that the offence was in the middle range of objective seriousness. The Crown said that the penetration was with three fingers and occasioned bleeding to the complainant who was eight months pregnant and was accompanied by abusive and personally degrading remarks and forceful overpowering of the attempts by the complainant to resist. The Crown further submitted that his Honour had failed to provide adequate reasons for the determination of objective seriousness and for the extent of departure from the middle of the range. It was argued that the non-parole period imposed was so much less than the standard non-parole period as to be manifestly inadequate even for an offence having the relative objective seriousness of "slightly below the mid-range" as found by the sentencing Judge and more so for an offence in the middle of the range. The factual finding by his Honour that the whole hand or fist had not been used was not challenged.

60 The respondent submitted that whilst his Honour acknowledged that this offence was more serious than count 1 as it involved three fingers rather than one, the fact that it was still a case of digital rather than penile sexual assault was a reasonable basis for determining that it fell below the mid-range of offence. His Honour, it was said, was a very experienced sentencing Judge who was in an ideal position to assess the degree of force used in the commission of the offence, and to make a comparative assessment of objective criminality against the full range of such offences coming before the courts. The head sentence of 6 years which was a full year longer than count 1 and the non-parole period of 3 years 9 months, the respondent argued, was not demonstrably inadequate.

61 Both the Crown and the respondent referred in this Court to Judicial Commission sentencing statistics. More than the usual cautions should be borne in mind in having regard to the statistics for offences contrary to s 61I of the Crimes Act because of the wide range of conduct embraced in the definition of "sexual intercourse". In this area careful attention is to be paid to the different facts of each offence.

62 In written submissions to the sentencing Judge the Crown had contended that count 4 fell within the middle of the range of objective seriousness having regard to the following matters: (i) the offence involved an act of digital penetration and penetration by the hand; (ii) the complainant was eight months pregnant; (iii) the act caused pain and bleeding; and (iv) the nature and extent of force used. 63 The sentencing Judge recited these submissions in his remarks on sentence, but as I have previously recounted, was not satisfied that the whole hand or fist had been used in the commission of the offence. His Honour was satisfied that at least three fingers had been inserted making it a more serious offence than count 1, bearing in mind that some injury was occasioned to the complainant's vagina. His Honour said (ROS at 16): "As mentioned, I am not satisfied that the act of digital penetration was achieved by the offender inserting his whole hand. The question then to resolved is whether the circumstances of this offence is elevated to mid-range or above by the offender using three fingers to commit the offence. I am of the view that the offence can still be categorised as one involving digital penetration, placing it in the less serious category. That is not to say that such acts cannot fall in the mid-range or above if the court was satisfied that a fist or a whole hand was used in the commission of the offence, or other aggravating circumstances. Taking all those circumstances into account I am of the view that the offence, although more serious than the offence in count1 is slightly below the mid-range for offences of that nature. Accordingly, I do not regard the matter as appropriate for the imposition of the standard non-parole period, but again take into consideration as a benchmark or guidepost to determine the appropriate sentence."

64 Unlike this Court the sentencing Judge had the particular advantage of seeing and hearing the complainant giving evidence during the trial and was in a strong position to assess the objective seriousness of the offence. This Court would ordinarily respect that advantage unless it appears in the circumstances of this appeal that wrong principle may have been applied or a relevant consideration overlooked. During argument in this appeal attention was directed to the following passage within his Honour's remarks quoted at [51] above: "I am of the view that the offence can still be categorised as one involving digital penetration, placing it in the less serious category." (italics added) 65 Should his Honour's understanding have been that a finding of digital penetration required as a matter of law the characterisation of the offence as being in the less serious category then, as I have explained at [56], wrong principle was applied. I am, however, not persuaded that this was the case as his Honour went on to state: "That is not to say that such acts cannot fall in the mid-range or above if the court was satisfied that a fist or whole hand was used in the commission of the offence, or other aggravating circumstances…" (italics added) and specific reference had been made earlier on in the sentencing remarks to that which Grove J said in Santos Da Silva that [he] "generally agreed with a submission that digital penetration may be considered less serious that penile penetration". (ROS at 13)

66 The focus of his Honour's consideration was plainly upon the form of forced intercourse. The violence, however, which had accompanied the commission of this offence on a heavily pregnant woman was not to be overlooked. The respondent had ignored her entreaties to stop and resisted her attempts to remove his fingers from her vagina. The offending conduct was not of short duration. When she tried to scream her head was shoved into the pillow and she was told to shut up. Whilst his Honour had recited the Crown submissions, in his determination of where in the scale of objective seriousness the offence lay no mention was made of the violence that had been used. In my respectful opinion his Honour failed to give sufficient weight to the extent of the violence used in the commission of the offence. This offence involved the forcible insertion of at least three fingers into the vagina of a woman who was eight months pregnant and was accompanied by the violence to which I have referred. I consider the offence to be within the middle range of objective seriousness and that his Honour erred in finding otherwise.

67 In any event the Crown's criticism that the assessment by his Honour of the objective seriousness of the offence as being slightly below the mid-range did not justify the substantial departure from the standard non-parole period of 7 years to 3 years 9 months is, in my view, justified. There was little which could be said to mitigate the offence. The sole mitigating factor identified by his Honour was that the offence was spontaneous. On the other hand, the offence was committed whilst the respondent was on bail. The commission of an offence whilst on conditional liberty has long been recognised as a factor of aggravation requiring the passing of deterrent sentences for those who abuse their freedom on bail: see, for example, Regina v Fernando [2002] NSWCCA 28 at [40-42] and R v Ponfield (1999) 48 NSWLR 327 at [48]. Furthermore, as his Honour said, the respondent's prior criminal history of offences involving violence and breaches of apprehended domestic violence orders demonstrated "a continuing attitude of disobedience to the law". His Honour was entitled to have regard to the respondent's record by giving more weight to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist: see R v McNaughton [2006] NSWCCA 242; R v M.A.K. R v M.S.K. [2006] NSWCCA 381 at [51].

68 This offence had been committed the day after the forced intercourse which was the subject of count 1 and called for a greater punishment than the earlier offence, if solely for reasons of personal deterrence. The non-parole period set by his Honour for count 4 was only 3 months longer than the non-parole period set for count 1. Although a finding of special circumstances was made resulting, as his Honour said (ROS at 19), in "a modest adjustment to the statutory ratio between the non-parole period and the balance of term as the sentences are being partially accumulated", the non-parole period "must itself appropriately reflect the criminality involved in the offence": R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [63]. In my opinion the non-parole period of 3 years 9 months failed to do so. The sentence for count 4 was, in my view, not merely lenient but manifestly inadequate. 69 The Crown further submitted that the sentence imposed on count 7 was manifestly inadequate. The Crown pointed to the maximum penalty of 5 years imprisonment and to his Honour's finding that the offence was in the middle of the range. This was an offence of indecent assault contrary to s 61L of the Crimes Act which did not attract the standard non-parole provisions. 70 The offence involved the respondent urinating upon his partner, the complainant, who was then eight months pregnant. It was accompanied by personally degrading and abusive remarks. It was undoubtedly a vile act which humiliated the complainant. This Court has emphasised, as the Crown pointed out, the seriousness of the offences committed in the course of domestic relationships: see, for example, R v Jeffries [2008] NSWCCA 144; R v Hiron [2007] NSWCCA 336 at [32]. Notwithstanding all of these matters, I am not persuaded that a fixed term of 12 months imprisonment was not properly within his Honour's sentencing discretion. 71 The respondent contended that the total effective sentence could not be considered manifestly inadequate. It was, the respondent argued, within his Honour's discretion to commence the sentences for counts 1, 2 and 3 on 23 July 2006 as all these offences occurred on 9 May 2006. Furthermore, it was within his Honour's discretion to commence all the sentences imposed in respect of the remaining counts on 23 July 2009 as counts 4 and 5 occurred on 10 May 2006 and counts 6 and 7 on the following day and were in effect one ongoing course of conduct. The respondent pointed out that the significant aspect of the structuring of the sentences in reflecting the totality of the criminality of all seven counts is that the second set of offences (counts 4-7 inclusive) do not commence until three years after the commencement of the first set of offences (counts 1-3 inclusive) and the second set of offences apart from 6 months accumulates upon the first set of offences. It was submitted that the degree of accumulation of the second set of offences was a particularly harsh aspect of the sentences and was an eloquent expression of the court's denunciation of the respondent's conduct. 72 The sentencing Judge was obliged (as his Honour recognised) to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality: Pearce v The Queen (1998) 194 CLR 610. 73 As I have indicated, the sentence imposed for count 4 was manifestly inadequate. Whilst it is true that the sentences for what have been described as the second group of offences did not commence until 23 July 2009 considerable leniency was extended by his Honour to the respondent by the concurrency of the sentences for counts 6 and 7 with the sentences for counts 4 and 5. These offences did not occur on the same day and involved separate harm and humiliation to the complainant. The overall sentence did not adequately reflect, in my respectful opinion, the totality of the respondent's criminality and fell outside the appropriate range. 74 I am of the opinion that the Court should not exercise its discretion to refuse to intervene.

Re-sentencing 75 I have regard to the double jeopardy that the respondent has faced as a result of the Crown appeal and that the sentence to be imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the court at first instance and will generally be towards the lower end of the available range. I am of the opinion that the sentence for count 4 should be increased to a term of 7 years consisting of a non-parole period of 4 years 6 months with a balance of term of 2 years 6 months. The overall effective sentence will be a term of 10 years consisting of a non-parole period of 7 years 6 months commencing on 23 July 2006 and expiring on 22 January 2014 and a balance of term of 2 years 6 months expiring on 22 July 2016. 76 I propose the following orders: (1) The Crown appeal against sentence be upheld. (2) The sentence imposed in the District Court on 20 March 2008 in respect of count 4 being an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act be quashed. (3) In lieu thereof the respondent in respect of count 4 is sentenced to a term of imprisonment of 7 years consisting of a non-parole period of 4 years 6 months commencing on 23 July 2009 and expiring on 22 January 2014 with a balance of term of 2 years 6 months commencing on 23 January 2014 and expiring on 22 July 2016. (4) The sentences imposed for counts 1, 2, 3, 5, 6 and 7 are confirmed. The earliest date on which the respondent will be eligible for release to parole is 22 January 2014. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.