Director of Public Prosecutions (NSW) (Crown)
Cunningham's - The Law Practice (Offender)
File Number(s): 2017/00316455
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EX TEMPORE Judgement (REVISED)
Jeffrey Thomas Hill appeared before me for trial in the District Court of New South Wales at Bathurst upon an indictment containing one count expressed in the following terms: that he on 16 October 2017 at Bathurst in the State of New South Wales did have sexual intercourse with BM without his consent and knowing that he was not consenting to the sexual intercourse in circumstances of aggravation, namely that at the time of the offence [the accused] threatened to inflict actual bodily harm on BM by means of an offensive weapon, namely a razor.
The offence is contrary to s 61J (1) Crimes Act 1900.
The maximum penalty specified for that offence is imprisonment for 20 years. There is a standard non-parole period specified for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999. That is set at ten years. Although that is the standard non-parole period provided for the offence, it does not follow that is what will be imposed in this case, because there are other considerations that must be brought to account to determine the appropriate sentence and the appropriate non-parole period.
At the time of this offence, the offender was in custody serving a sentence. The offence, as I noted, was on 16 October 2017. The offender was to be released to parole on 13 July 2018 but for this offence. The sentence to which he was subject ultimately expired on 12 November 2018 and from that date on his custody was solely referrable to this offence. Thus, but for this misconduct, he would have been released on 30 July 2018 but has, by reason of this misconduct, been required to remain in custody.
The parole period to which he would have been subject had he been released was one of 4 months.
In the exercise of my discretion, as discussed by Simpson J in the decision of Callaghan v R [2006] NSWCCA at 58, I propose to commence this sentence on 14 September 2018.
The fact that he committed this offence in custody is a matter that I must bring to account in determining the punishment that he must face. He has a poor record of antecedents to which I shall come, but I make clear that although that is to brought to account as an aggravating factor in accordance with the decision of the Court of Criminal Appeal in McNaughton [2006] NSWCCA 242, the fact of antecedent misconduct does not increase the objective gravity of the offending, nor does it increase what is otherwise a proportionate sentence to be applied upon the assessment of that offending. It informs questions such as the weight to be given to the aspect of specific deterrence in the assessment of sentence and the extent to which the offender might have otherwise been entitled to leniency but for his background of offending.
The facts upon which sentence is to be imposed are a matter for me to decide now, having had the benefit of hearing the evidence given by the complainant and other occupants of the cell where the offence occurred.
I have had to form my view of the facts consistent with the verdict given by the jury upon my assessment of the evidence that was led. I am not bound to find facts that are most favourable to the offender. The facts upon which I have to determine sentence must be found upon the standard of proof beyond reasonable doubt.
There is no evidence before me offered in mitigation of the misconduct because the offender denies that any offence occurred. There is a representation attributed to him in the report provided by the psychologist, at p 7 of the report para 51 where it records,
"He continues to deny guilt in relation to the sexual assault offence," and at para 52, "He admitted to trying to stab his cellmate."
There was an offer of violence alleged in the course of the evidence but it does not sit comfortably with the phrase, "Trying to stab his cellmate." The allegation made against him is that he put the blade of a disposable razor from which the guard had been broken off against the throat of the victim at the time that he demanded that the victim perform the act of fellatio upon him.
It is not entirely clear what was meant in the representation attributed to him by the psychologist. The offender has not given evidence in these proceedings. It becomes unnecessary to resolve that question in the circumstances where I have evidence before me by witnesses upon which there could be no other finding but that the offender was armed with the disposable razor from which the guard had been removed and that he did apply it to the neck of the victim at the point that he demanded the fellatio.
Thus, for the determination of sentence I shall put aside the content of para 52 of the psychologist's report.
The trial was relatively short. The evidence was led over two days as I recall it and the jury returned with their verdict of guilty on 15 August 2018. Clearly there has been some time pass since the matter has been ready to proceed for the determination of sentence. As I recall, the matter was adjourned from August to resume before me here at Parramatta for determination of sentence but there was some delay with the report sought from the psychologist and ultimately the matter could not be reached until today, 26 April 2019, when the report was available. The report was written on 18 February 2019 I note.
The fact that this offence carries a standard non-parole period requires that I make reference to those provisions. They were introduced into Part 4 Division 1A Crimes (Sentencing Procedure) Act and later amended after the decision of the High Court of Australia in Muldrock v R [2011] HCA 39 whereupon the Act now provides that the standard non-parole period for an offence is that which is included in the table to the provisions, and that the standard non-parole period represents the non-parole period for an offence in the table that falls within the middle of the range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of the offence.
In more recent authority and in particular in a judgement delivered by Mr Justice Johnson in Tepania v R [2018] NSWCCA 247, the range of factors affecting the relative seriousness of the offence will include other considerations that on one view might be thought to be more subjective than objective. These will include the location where the offence occurred and the circumstances in which it did occur, whatever the motivation might have been for committing the offence, and other considerations that might explain the misconduct.
The Crimes (Sentencing Procedure) Act also provides that the standard non-parole period is a matter that is taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The Court must record its reasons for setting a non-period that is longer or shorter, identifying each factor taken into account. The objective gravity will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending, bringing into account relevant factors provided in s 21A Crimes (Sentencing Procedure) Act, except for those that are sexual elements or integral characteristics of the offence.
In this respect, the Crown concedes that all of the relevant factors are found within the parameters of the provision under which the prosecution was brought, namely s 61J (1) and (2)(b) Crimes Act.
The fact that the offender was in custody at the time is not an aggravating factor within the context of this analysis, though, in accordance with the decision in McNaughton to which I earlier referred, it does inform other questions.
The fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences.
I must not embark upon an arithmetical stage or tiered process of reasoning when assessing an appropriate sentence but must identify all relevant matter bearing upon the question of the appropriate sentence in a process of intuitive synthesis discussed for example by McHugh J in Markarian v R [2005] HCA 25.
The maximum penalty and the standard non-parole period are legislative guideposts for the determination of sentence along with other established sentencing practices and by reference to matters identified where relevant in s 3A, 21A and 22 Crimes (Sentencing Procedure) Act.
The parties are ad idem upon the question of objective seriousness. It is conceded by the Crown and argued on behalf of the offender that the objective seriousness of this offence should be determined to fall a little below midrange. It is always a matter of judgment to decide where one would place an offence on the scale of seriousness but I tend to agree with a view that in this case, bringing into account those matters in accordance with the principles I have stated, this offence does fall at that point on the scale.
As I said, it does not follow that the standard non-parole period of ten years or something close to it will be employed reflecting that finding because the determination of sentence involves what is described as intuitive synthesis of all of the material before me speaking to the objective and subjective factors.
The parties have brought to my attention the decision of the Court of Criminal Appeal, R v Daley [2010] NSWCCA 223. I am urged to the view on behalf of the offender that it would provide guidance with regard to the range of sentences that I should employ when considering what punishment to impose. This was found upon an analysis of the New South Wales Public Defenders database and it provided by way of example only perhaps the range of sentences or a range of sentencing that I would bring to account. I have not overlooked what the Court of Criminal Appeal decided in that case. The Crown presented the offender in that instance with an offence contrary to s 61J (2)(b) Crimes Act, that with an alternative available of sexual intercourse without consent contrary to s 61I Crimes Act. The Crown accepted the plea for the alternative count and the sentencing judge imposed a non-parole period of 3 years and 6 months with a further period of parole of 1 year and 6 months, thus an overall head sentence of 5 years. The offence occurred when the respondent to the Crown appeal against inadequacy was serving a sentence at a correctional facility. There was also a sexual aspect of past offending. However, the offence upon which sentences were imposed carried with it a maximum penalty of imprisonment of 14 years and a standard non‑parole period of 7 years. The Court of Criminal Appeal chose not to interfere with the sentence at first instance and although the case has comparable features to the circumstances that are before me, I am dealing, as I have already noted, with an offence with a maximum penalty of 20 years and a standard non-parole period of 10 years.
I accept that this offender has no prior sexual offences on his antecedent record.
The statistics from the Judicial Commission include a range of offences charged contrary to the provision with which I am concerned and the sentence there recorded, particularly in the Court of Criminal Appeal, exceed the sentence that was imposed and maintained in the proceedings against Daley and though that authority does provide a measure of assistance, I am not persuaded that the penalty imposed in that case is indicative of what ought to be imposed in this case.
The facts in this instance fall within a fairly narrow compass and I shall not take long to deal with them. The offender and the victim were housed in a cell at the Bathurst Correctional Centre with two other inmates. The victim was on a lower bunk. One of the inmates had a television set that was operating with the inmates watching television. At some point prior to the commission of the offence, the offender began to throw things around the cell. His conduct was described in terms of him trashing the cell, throwing things on the floor including cereal, and fruit. He walked through those items, pacing back and forth, generally making a mess. That conduct is said to have occurred for up to about half an hour. Thereafter he calmed and cleaned up the mess. Then he went back and sat on his bunk and not long after, though a period could not be specified, he jumped down from his bunk and walked over to the victim. He held the disposable razor with the guard removed against the victim's neck and threatened to kill the victim if he did not perform fellatio.
The circumstances of aggravation relied upon by the Crown are in s 61G (2)(b) which provides:
"In this section, circumstances of aggravation means circumstances in which:
At the time of, or immediately before or after, the commission of the offence, the alleged threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, ..."
To the extent that the threat involved more than actual bodily harm, I disregard it and proceed upon the basis that the threat made was of the infliction of actual bodily harm only. Clearly a razor modified in the way it was is an offensive weapon by reason of its very nature and the manner in which it was presented to the victim.
Fearing harm, the victim complied with the offender's instruction. The offender removed his erect penis from his clothing and the victim took that in his mouth and performed fellatio for 3 to 4 minutes to the point when the offender ejaculated into the victim's mouth. He then returned to his bunk and the victim went to the sink and rinsed his mouth out to rid himself of the ejaculate.
The evidence given by the victim was, in my view, compelling, strongly supported by the evidence given by the other inmates who saw between them at least a significant part of these events. I am satisfied beyond reasonable doubt of the description of the event given by the complainant including the act of fellatio and the use of the offensive weapon to achieve it.
I have taken into account the circumstances where this offence occurred, the nature of the act of sexual intercourse by way of fellatio, and the fact that the offender ejaculated into the mouth of the victim, in my assessment of the objective gravity of the offending for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act.
The offender is now 35 years of age and has been appearing in courts since April 1999, his first appearance in the Children's Court. He has been regularly before the courts. His antecedent document extends over 13 pages.
His past offending has been for breaking and entering offences, custody of a knife in a public place, damaging property, contravening an apprehended violence order, assaults, using an offensive weapon with intent to commit an indictable offence, possessing equipment for the administration of prohibited drugs and self‑administration of prohibited drugs, larceny, goods in custody, behaving offensively, entering enclosed lands, dishonestly obtaining a financial advantage by deception, robbery armed with an offensive weapon, and possession of prohibited drugs, receiving stolen property. There are multiples of some of those offences on his record.
The courts have used various options including conditional liberty and custodial sentences, no doubt in an endeavour to address the aspect of rehabilitation when determining sentence, but without success in light of the history that the offender has accumulated.
He has spent a good part of his adult life in gaol. The custodial record tells me that the first incarceration into an adult facility occurred on 16 November 2002. He was only in custody for two days on that occasion but from 30 March 2003 he was held until 28 December 2003 and from 6 June 2004 until 4 December 2004, from 29 May 2005 to 27 September 2005, from 23 December 2005 through to 20 December 2007, from 13 February 2008 to 2 October 2008, from 6 March 2009 to 23 May 2009, from 28 March 2010 to 1 April 2010, from 23 May 2010 through to 25 July 2011, and from 4 October 2011 through to 20 July 2013, from 24 January 2014 to 29 July 2014, from 24 February 2015 through to 22 August 2016, from 14 September 2017 until the present time.
His classification has him at the present time in non-association after the events with which he is presently charged. That limits his opportunities to socialise and must increase the burden that he suffers in custody, although it is difficult to quantify the impact upon the offender without hearing evidence from him. That said I have the psychologist's assessment dealing with his limitations and the challenges in life that attract the application of the Bugmy principles (Bugmy v The Queen [2013] HCA 37) upon which I am satisfied I can conclude that his time in custody will impact upon him more heavily than might otherwise be the case.
Unfortunately, there is a history of custodial offending, the most recent on 2 January this year of failing to comply with the Correctional Centre routine, and before then disobeying directions, unlawfully using a phone, damaging property. The offence with which he is presently charged is also reflected in events recorded on 19 November 2017 in the custodial record, and before then being in possession of a drug implement, creating or possessing prohibited goods, refusing or failing a drug sample, failing a prescribed drug test and the list goes on, all the way back to August 2003.
It is apparent that he is a challenge to the people responsible for his supervision and care in custody, with this offence before me being the most serious infraction upon which he might have engaged, exposing him now to a significant period of imprisonment.
I am reminded of the application of the statements of principle in Bugmy v R [2013] HCA 37 and the statements of the High Court making it clear that the burden suffered by those from a deprived background, whether indigenous or otherwise, will continue to suffer the impact of those circumstances throughout their life.
According to the material before me he comes from a background where alcohol abuse and violence was common and it is unfortunate that he lost the benefit of the care and the positive environment provided by his grandparents with the passing of his grandfather which, when taken with his level of intellectual functioning, clearly explains why he followed, as was said to me, the well-trodden path beginning with the sniffing of petrol, alcohol abuse, cannabis abuse, and then ultimately heroin use, which he replaced with the abuse of methylamphetamine when heroin was not readily available.
The psychologist's report I found to be of assistance, written on 18 February 2019 by Anne Lucas from Duffy Robilliard. I am conscious of the circumspection with which one must approach such material, as discussed in the decision of the Court of Criminal Appeal, Hami Qutami [2001] NSWCCA 353 and in particular the discussion by Smart AJ. One must always be circumspect when attributing weight to representations attributed to an offender by someone called upon to assess him and who might provide a report when there is no evidence from the offender of the facts upon which the opinions are reached.
My confidence, however, in this case is informed by the fact that the psychologist had access to other material from this young man's history supporting what was reported to her. I have also noted that the assessment was made via an audio-visual link between wherever the psychologist was and where the offender was housed at the time. That is not the most desirable arrangement, but there are other occasions when it is the most that can be achieved because of the remote locations where an inmate might be held and the difficulty with having busy psychologists and psychiatrists available at those times when access might be granted in a correctional centre to the offender.
On balance, I accept the material provided in the report and the opinions reached by the psychologist.
According to this, the offender grew up on an Aboriginal mission and was given into the care of his grandmother and grandfather who are said to have provided well for him in those days when they were alive.
His biological father was in and out of gaol with a history of alcohol abuse. His mother was reported to have had significant drug and alcohol abuse problems at the time. He is the eldest of five children, the only one to be assumed into his grandparents' care.
He has a sister with a significant physical disability, raised in the residential care of the State; his other siblings were raised by his biological parents.
For most of his childhood he believed that his grandparents were his biological parents. He described them in the most positive terms and reported that they provided excellent care for him throughout his childhood.
He had occasional exposure to his biological parents and in those periods was exposed to family violence between his parents. He reported that his father demonstrated violence towards him and his brothers during his childhood and he was fearful of him.
His grandfather passed away at the offender's age of 13 and as a consequence he lost the supervision and guidance that had been offered by his grandfather in conjunction with the elders at the mission and shortly thereafter he began substance abuse. This was contemporaneous with him learning of his true status within his family, with his biological parents being other than his grandparents.
He began his criminal activities about this time to provide resources to assist his grandmother who he said would have been horrified had she known what he was about. He continued in this pattern until his mid-twenties and from about then and up until the present time, as I have indicated, he spent a significant period of time in custody.
There is, I find, a risk of institutionalisation in this young man, reflected perhaps, apart from the time he spent in gaol, in the fact that he committed this criminal offence in custody at a point when his release to parole was imminent.
When he was aged 26 his grandmother passed away and thus the extent of any control and guidance that he had dissipated at that point. He was in custody when she passed away it appears and that has had an impact upon him.
He has been in two relationships. He has a daughter aged six from the first and twin children aged three from the second and in the second of those relationships there was violence and some of the convictions for assault offences were as a result of his misconduct towards that partner.
He would like to restore his relationship with his children but there is much work to be done, I would have thought, before that might be achieved.
His substance abuse escalated over time and he committed further crimes and consequently went to gaol. He has suffered some severe drug overdoses. He suffered from bouts of depression. He has experienced psychotic episodes whilst under the influence of intoxication from prohibited drugs. He attempted suicide it is said following his conviction for this offence by overdosing on his prescribed psychotropic medication.
He has been taking Seroquel since July 2018 for intermittent aggressive episodes and auditory hallucinations. Custodial records indicate that in 2005 he was an involuntary patient under the Mental Health (Forensic Provisions) Act 1990.
He has Hepatitis C as a consequence of sharing needles but he claims to be drug-free at the present time and has been so, he reports, for the last nine months according to the report.
The last issue involving drugs in custody was on 1 October 2017. There has been nothing since then, although he has been engaged upon other episodes of misconduct, nothing to do with prohibited drugs, which one might have expected to see if that representation was untrue.
He has been prescribed methadone but that did not prevent him from continuing in his use of prohibited drugs. He was expelled from primary school halfway through Year 6 because of violence toward a teacher, but in custody has completed the equivalent of Year 10 studies and has undertaken other courses including the operation of heavy machinery, management of handling of chemicals, shearing and wool classing.
His employment history is almost zero, marred by unreliability, the product of his drug misuse. He has not worked for many years, but has existed on disability support from the Commonwealth on the basis of his chronic polysubstance abuse, the history which began, as I have said, with inhaling petrol, binge drinking, smoking cannabis and then evolving into stimulants, heroin and ultimately with methylamphetamine.
Psychological assessment includes representations made vigorously that he is innocent of the charge upon which he has been convicted. There is a record of prior intellectual testing which has him at a borderline range of performance. I do not need to amplify what is written at para 41 of the report other than to note that he has his challenges in this regard.
There is occasional auditory hallucination it appears, apparently when he is stressed or under the influence of drugs. He has difficulty controlling anger which is entirely consistent with his record of antecedents. There is no other sexual offence appearing on his record other than the present matter. He continues to deny guilt, as I have said, and I have already referred to the admission that he tried to stab his cellmate that I have put to that one side to the extent that it might extend beyond the facts which I have found for the purposes of sentencing, that he was armed with the offensive weapon in the form of the modified razor.
At para 53 the report deals with the proposition that he learned of his six year old daughter having been sexually assaulted and the consequent anger that he was not there to protect her because he was in gaol. It appears, according to this, that he was ruminating upon those circumstances building up to the offending. He was of the view, according to this, that the victim was incarcerated for child sex offending. There was evidence in the trial that the victim had committed child abuse material offences for which he was in gaol. Regardless, that was in no way a circumstance that offered any justification for the misconduct upon which the offender engaged.
There was also the perception, according to him, that he was hearing voices from deceased relatives telling him that his cellmates were out to get him. He did not, however, display any symptoms for psychosis in the course of the assessment and the psychologist could not offer an assessment of the veracity of these claims of auditory hallucination at the time of the commission of the offence.
Paragraph 57 deals with a part of the Crown case statement to which the psychologist had access which apparently referred to the offender making sexual advances toward the victim for several days including exposing himself prior to the offence. That was not evidence that was led in the course of the trial. There is no other reference to that in the material before me. I put that to one side. And he is attributed with the proposition that he identified the victim as being a child sex offender which he linked to conduct similar to that suffered by his daughter.
He was assessed for the risk of future offending. The difficulties with an assessment in circumstances where he does not acknowledge his wrongdoing are discussed. Ultimately the opinion at para 75 is that his current rating for committing another general offence within the next five years is in above average range.
His mental health should be assessed and hopefully stabilised with appropriate medication without the intrusion of prohibited drugs, and he would benefit, it is said, from the intensive drug and alcohol treatment programme that is likely to be available to him in custody.
The Crown does not wish to be heard against the proposition that there are special circumstances which would justify a shorter period in custody and a longer period on parole under supervision.
I am satisfied that there are special circumstances. First of all there is to be brought to account the period of imprisonment to which he was subject at the time of the commission of the offence. He has remained in custody since then and thus one needs to look at the totality of the sentence to which he is subject which commenced on 14 September 2017.
He had been in custody until he was released on parole on 28 August 2016 and he was thereafter in custody but for one month when he committed this offence. He had a year and a month or thereabouts at large before he was returned to custody on 14 September 2017.
Commencing the sentence on 14 September 2018, as I have indicated I brought to account the preceding custody when assessing the overall custodial component of the sentence. That is one aspect of special circumstances.
I also bring to account that he is suffering from impaired mental health that requires ongoing management and treatment as I indicated, that includes prescribed Seroquel. I also bring to account that he is in a classification which is more limiting than otherwise would be the case by reason of the misconduct upon which he engaged.
Finally, there must be an extended period on parole under supervision so that those who are available to assist him in the community might have every opportunity if it is possible to rehabilitate him.
Should he fail to take the opportunities presented of course, he will simply be returned to custody for whatever breach of parole he is found to have committed.
I have brought into account the limited capacity that he has to which the psychologist spoke when dealing with his intellectual challenges and I have brought into account his deprived background of which there can be little doubt in my assessment. Also informing my decision with regard to his impulsivity and the extent to which that is the product of his intellectual and mental health issues is the behaviour which preceded the crime when he, as described, trashed the cell, thereafter cleared his mess and thereafter committed this serious crime.
The offender is convicted of the offence of which he was found guilty at trial. I impose a non-parole period of imprisonment of 4 years commencing on 14 September 2018 to expire on 13 September 2022.
I impose a further period of imprisonment of 3 years and 6 months to commence at the expiration of the non-parole period. That shall expire on 13 March 2026.
Thus the overall sentence is one of 7 years and 6 months with a non‑parole period of 4 years.
The offender is eligible to make application for his release to parole on 13 September 2022.
The exhibits shall remain on file for such period as the parties might require.
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Decision last updated: 03 June 2019