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[2000] NSWSC 716
Supreme Court of NSW
2000-07-26
Hulme J
Original judgment source is linked above.
The applicant was 35 years at the time, diagnosed as suffering from an anti-social personality disorder not normally responsive to psychiatric treatment and would be serving his sentence on protection. He had pleaded guilty but only during the course of a trial. There had been a prior sentence indication hearing, sentence, successful Crown appeal and withdrawal of the plea of guilty.
In R v Pratt (unreported CCA 26 July 1996) the Court dismissed an appeal against a sentence consisting of a minimum term of 4½ years and an additional term of 18 months imposed for an offence of sexual intercourse without consent in circumstances of aggravation viz. the infliction of actual bodily harm. The victim had been on a "pub crawl", she was the last passenger in a mini-bus and the applicant had taken the opportunity to grab her by the head, bash it hard against the bottom of the bus saying "I will knock you out if you want me to. We can do this the easy way or the hard way" and then had intercourse. He had no relevant record and the conduct was out of character.
In R v Presta [2000] NSWCCA 40 the Court of Criminal Appeal dismissed an appeal against an effective sentence of imprisonment for a minimum term of 14 years 3 months and an additional term of 4 years 9 months in respect of 5 counts of kidnapping and 21 counts of aggravated sexual assault. Again it will be sufficient to record the offences involving the first of the five victims as not untypical.
A 15 year old boy was walking home from a party. He passed near the Appellant who produced what appeared to be a handgun. He covered the victim's eyes, forced him into a car and drove him to the offender's home. There he was tied to a bed with his arms and legs spreadeagled. He was given 5 or 6 tablets and an alcoholic drink to wash them down. He then passed in and out of consciousness. There, among other things, he was struck with a belt, and forced to commit fellatio and to lick the offender's anus. The offender had anal intercourse with the victim and inserted a baton into the victim's anus. The victim was then taken back to the motor car, driven away and thrown out. He was located, unconscious, by a passer by. Much of this activity was recorded by the offender on video.
In R v Rivera (unreported, CCA, 19 February 1996) the Court dismissed an application for leave to appeal against sentences of a minimum term of 6 years and an additional term of 3 years and a concurrent fixed term of 4 years on 2 counts of aggravated sexual assault. The applicant had followed his victim out of an hotel, offered to walk her home. The offer seems not to have been accepted but he followed her and near a park grabbed her neck, took her inside the park and raped her twice, persisting in this activity to such an extent that after the police arrived he had to be bodily lifted from the victim.
He was on a good behaviour bond for a prior offence of sexual attack and had two earlier convictions for offences of violence. Prior to his offences, he had suffered head injuries and brain damage in a motor vehicle accident but the court regarded these injuries and their impact on the Applicant as a two edged sword. They made general deterrence of lesser importance but the protection of society and the deterrence of the Applicant of greater importance, than might otherwise have been the case.
In R v Roach (unreported, CCA, 29 September 1994) the applicant was found guilty of two charges of homosexual intercourse with a boy aged 7 - an offence which carried a maximum penalty of 25 years penal servitude. The offences arose out of the one occasion when the applicant was left alone with a child of a friend. In reliance on a review of prior decisions carried out in R v Moore (unreported, CCA, 12 April 1994) and on R v O'Donnell (unreported, CCA, 1 July 1994) the Court reduced the sentence from terms of 10 years and 3 1/3 years to minimum and additional terms of 8½ years and 2 years and 10 months.
In R v Roberts (unreported, CCA, 8 August 1994) the applicant had been sentenced to terms aggregating 13 years including an additional term of 2 years for a series of offences consisting of 5 counts of aggravated sexual intercourse without consent and 4 counts of indecent assault. Using a knife he had forced his way into his victim's house and there engaged over an extended period in, among other things, oral, vaginal and anal intercourse, urinated upon her and left her naked and bound. He had a substantial criminal record including an offence of threatening to inflict bodily harm with intent to have sexual intercourse. The Court of Criminal Appeal took the view that the trial judge had given insufficient attention to the proportion between the effective minimum and the additional terms and altered them to 10 and 3 respectively. Gleeson CJ with the concurrence of the other members of the Court,] said that the applicant's conduct came close to being a worst case.
In R v Russell (unreported, CCA, 15 December 1995) the applicant had sexual intercourse without consent with a girl he was walking home, and while on two recognisances. Shortly after his release on bail on that offence he, armed with a knife, approached a girl riding a bike in Redfern and forced her to a secluded area where he made her perform fellatio and had penile-vaginal intercourse with her. This incident led to one count for forcible abduction and two of aggravated sexual assault. Again released on bail, he was seen driving in a dangerous manner and sought to avoid arrest by forcing his vehicle against a police car.
On the first charge, a fixed term of 3 years penal servitude was imposed. Arising from the second incident he was sentenced to a minimum term of 4 years penal servitude with an additional term of 4 years. The sentence consequent on his attempt to avoid arrest was a fixed concurrent term of 2 years.
The applicant had a bad criminal record and was described as mildly intellectually handicapped. He also had a hearing disability and probably an associated learning deficit and immaturity. He was an aboriginal but, given the offences which he had committed, these matters were not regarded as entitling him to any significant discount. By majority, the Court of Criminal Appeal refused to interfere.
In R v Russell (unreported, CCA, 21 June 1996) the respondent to a Crown appeal had knocked on the victim's door while masked. When the door was opened he forced his way in, grabbed her in a head lock, hit her when she screamed and dragged her to the bedroom. After a number of unsuccessful attempts he achieved anal penetration but was unsuccessful in vaginal penetration. The charges were aggravated sexual assault without consent and attempted aggravated sexual assault without consent. The victim suffered bruising in a number of areas and post-traumatic stress disorder, finding herself unable to live alone, distrustful of others, particularly men and found it impossible to live her life, including work, as she had done previously.
The respondent was 24, had an extensive criminal record since he was 12, six prior convictions for assault and assaulting police and was on parole at the time. He was aboriginal. Drug and alcohol seemed to have been involved.
The Court said there was a degree of planning and pre-meditation. After referring to a number of cases in the Court of Criminal Appeal which showed a pattern of sentences ranging from minimum terms of 6 to 9 years following a plea of guilty to similar offences, the Court allowed the Crown appeal and imposed concurrent sentences including minimum terms of 5½ and additional terms of 2½ years.
In R v Smith (unreported, CCA, 27 May 1996) the Court reduced the sentence for aggravated sexual assault from a minimum term of 4 years and an additional term of 2 years to one of a minimum term of 3 years and an additional term of 1 year. However the case was unusual in that the trial judge had made no relevant findings of fact and the Court of Criminal Appeal proceeded on the basis of only the facts implicit in the jury's verdict i.e. digital penetration without consent and a threat with a knife. Subjective considerations were strong. The applicant was 54 and of unblemished prior character. He had been drinking prior to what was, for him, uncharacteristic behaviour.
In R v Truong (unreported, CCA, 8 December 1997) the Court of Criminal Appeal increased to a minimum term of 2 ½ years and an additional term of 2 years the sentence imposed on a charge of under s61J. the respondent had forcibly had penile intercourse with the complainant while driving her home, the circumstance of aggravation being that the respondent was in the company of another. The Respondent had no prior convictions and there were other favourable subjective considerations. According to a victim impact statement the complainant had suffered trauma and been prescribed anti-depressant medication, presumably in consequence of the attack upon her. The Court said that the sentence reflected the fact of double jeopardy and should not be seen as providing guidance to primary sentencing judges.
In R v Wap (unreported, CCA, 19 August 1996) the applicant went to the home of one victim, knocked and when the door was opened, brandished a knife and forced the occupant inside, then taking hold of the occupant's wife. The occupant escaped, called for police assistance, and the appellant decamped. This conduct led to charges of entering a building with intent, and assault.
The applicant then proceeded to the home of his second victim where he again knocked and the door was opened. By this time not only was he carrying a large knife but was disguised with a black stocking mask. He forced his way in to the house. There he committed a number of penile penetrations of each of the victim's vagina and anus, penetration of her vagina with an aerosol can and his fist, and of her anus with a carrot, and fellatio.
The applicant was 26 years at the time of his appeal with formidable criminal record commencing when he was 13 albeit there was only one earlier offence of violence and no prior sexual offences. The offences were committed within days of his release from custody and, one may infer, while on parole. To reflect his total criminality, he had been sentenced to imprisonment for a minimum term of 9 years and an additional term of 3 years. The Court of Criminal Appeal reduced the minimum term by one year for subsequent assistance to the prison authorities and, at least in part, in recognition that he would have to serve his sentence in strict protection.
Last Modified: 09/26/2000 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.
R
KAY
CITATION : R v KAY [2000] NSWSC 716 FILE NUMBER(S) : SC 70084/97 HEARING DATE(S) : 1.3.99; 17.3.99; 28.4.99; 25.6.99; 3.12.99 JUDGMENT DATE : 26 July 2000
102 Of course the principle of totality must be borne in mind. "It is well established that in sentencing a person in respect of multiple offences, regard must be had to the total effect of the sentence on the offender" - Griffith v R (1989) 167 CLR 372 at 393. "When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable." - Gordon (1994) 71 A Crim R 459 at 466. It is not simply a case of determining the appropriate sentence for each offence in isolation and adding all together. Furthermore, as I have said elsewhere - R v Spiteri [1999] NSWCCA 3 - "I take the view that actual imprisonment for, say 10 years is more than twice as severe as imprisonment for 5 years. … (the longer period) is likely to have an impact on an offender's life in terms of wife, children, job prospects and the like from which he may well never recover".
121 There is nothing in the circumstances of the individual offences to justify any of them being made concurrent. They were unconnected, except insofar as the Prisoner participated in each. However, the principle of totality requires that they be not simply accumulated. One must recognise that they are incidents in one course of criminality of the Prisoner and consider what penalty is appropriate for that. That inquiry raises a number of issues. It seems to me that one relevant question is whether his offences deserve a greater punishment than is commonly imposed for murder - see R v Sharrock [1999] NSWCCA 289. The Prisoner had 8 victims and although there was at least one instance of what I would regard as serious psychological damage, none of the victims lost their lives. On the other hand, his offences were premeditated and planned and in that respect, his criminality was worse than that of some instances of murder. It is appropriate also to recognise that his course of conduct is likely to have affected more people than his individual victims. Contemporaneous press reports of his offences are likely to have led to a number of persons at say, Artarmon, changing their pattern of life to avoid the risks his conduct created. The public are entitled to be protected, not only against the risks, but also against the fear which his type of conduct is calculated to engender. That said, I do not suggest that the Prisoner's sentence should be extended beyond that appropriate to his crimes - see Veen v R (No 2) (1987-88) 164 CLR 465 at 473.
126 Despite the remarks in the immediately preceding paragraph, there is one case in the Schedule to which I wish to refer. It is R v Presta [2000] NSWCCA 40 where the effective sentence imposed was one of 19 years including a minimum term of 14 years and 3 months - both periods less than I regard as appropriate here. Although there were only 5 victims in that case as compared with 8 here, the extent of offending was in my view worse. I wish to make it clear that in my view, insofar as there may be inconsistency in the sentences imposed in that and the instant case, it arises because the sentence in R v Presta was lenient and probably unduly so. In the Court of Criminal Appeal Greg James J described the sentence in that case as "very lenient" and while Grove J said that the sentences imposed were entirely appropriate, those remarks must be considered in light of the fact that the appeal was by the offender, contending that the sentence was manifestly excessive. 127 In order to effect the above conclusions, I decline to set a non parole period in respect of the offences the subject of the first, second and fourth counts of the indictment and the orders I make are as follows:- 1. In respect of the offence the subject of the first count of the indictment, the Prisoner is sentenced to a fixed term of imprisonment of 3 years and nine months commencing on the day of his arrest, viz 18 February 1997 and concluding on 17 November 2000. 2. In respect of each of the offences the subject of the second and fourth counts of the indictment, the Prisoner is sentenced to a fixed term of imprisonment of 4½ years commencing on 18 February 1997 and concluding on 17 August 2001.
(1998) 72 ALJR 1416
(1986) 6 NSWLR 603
(1971) 1 NSWLR 247
(1987) 163 CLR 447
(1988) 164 CLR 465
(1989) 167 CLR 372
(1998) 1 VR 664