R v O'Brien

LEGISLATION CITED : Crimes Act Lowe v The Queen (1984) 154 CLR 606 Siganto v The Queen (1998) 194 CLR 656 R v Huttenberger (unreported, NSWCCA, 3 March 1993) R v Hartikaanen (unreported, NSWCCA, 8 June 1993) CASES CITED: R v May [1999] NSWCCA 40 R v RSS (unreported, NSWCCA, 27 February 1996) R v Da Silva (unreported, NSWCCA, 30 November 1995) R v Carr [1999] NSWCCA 200 R v Martin [2000] NSWCCA 332 R v Hill (unreported, NSWCCA, 28 October 1994) DECISION : Leave to appeal granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60477/01

STUDDERT J SMART A-J

Tuesday 26 March 2002 REGINA v MICHAEL ANTHONY O'BRIEN Judgment 1 STUDDERT J: On 20 March 2001 the applicant, Michael Anthony O'Brien, was sentenced to a term of imprisonment of four years after a jury had found him guilty of sexual intercourse without consent on 8 February 2001. Having imposed a term of imprisonment of four years, the sentencing judge set a non parole period of eighteen months, to expire on 19 September 2002. That sentence was so structured after the judge found special circumstances. 2 The applicant now seeks leave to appeal against the sentence imposed. 3 The offence charged is an offence for which s 61I of the Crimes Act imposed a maximum penalty of imprisonment for fourteen years. 4 The sentencing judge considered the circumstances of the offence in his remarks on sentence and the objective circumstances can be shortly stated. The victim of the offence was twenty-six years of age at the time of its commission and the applicant was three years her senior. The complainant, the applicant and his wife were staying overnight at the home of the complainant's cousin where there was a birthday celebration. The complainant went to bed, tired, somewhat intoxicated and fully clothed. She was awakened to find the applicant was having sexual intercourse with her. He had one of his hands over her mouth. According to the complainant, when she spoke to him and said "Michael, what are you doing?", he desisted and left the room. She said that it was only a matter of seconds from the time she woke up to the time he left. 5 The complainant immediately raised the alarm concerning what had happened, and the applicant, when first confronted, denied what had occurred. Later he admitted to the sexual intercourse but claimed that it was with the complainant's consent, denying that the complainant was asleep whilst he was having intercourse with her. 6 At his trial the only issue for the jury was whether or not the complainant had consented. The applicant's case was that the complainant was awake at all relevant times and an active participant, but the jury's verdict means that the jury accepted the complainant's version of events beyond reasonable doubt. 7 In a notice of appeal dated 11 July 2001 the applicant asserted that he was not guilty and, to begin with, set out to appeal against his conviction as well as the sentence. However, the appeal against conviction was not pursued. 8 The applicant was born on 13 February 1972. At the time of trial he had been married for six or seven years and had two young daughters aged six and five. There were many favourable subjective features to be considered for the applicant. He was a person of previous good character. His only conviction was for a driving offence involving a mid range PCA in 1995. The applicant was a nurse, nursing disabled patients, and amongst those who gave evidence in his favour was a Ms Walker, who had been nursing for over thirty years and who spoke highly of the applicant's commitment to his work. Ms Walker said that the applicant handled his nursing work very well, that he had a very pleasant attitude, that he was hard-working and that he was always well respected. 9 The applicant also had strong family support notwithstanding the nature of the offence. His wife gave evidence which indicated her continuing support and Mrs O'Brien told the judge that the applicant had been a very good father and a very good husband. The applicant's father gave evidence that he and the family were being supportive of the applicant. So, too, did Ms Whitten, a lady who had known the applicant and his family for twenty years. 10 The applicant himself gave evidence of his remorse and contrition. He said he was disgusted with himself, that alcohol had had something to do with the commission of the crime. The applicant said, and the judge accepted, that he had not had any alcohol since the night of the incident and he had resolved to abstain from alcohol in the future. 11 Mr Berman of Senior Counsel submitted that this sentence was manifestly excessive. The judge rejected a submission that the objective circumstances of the offence placed it at "the lower end of the scale", and in doing so, it is submitted, he fell into error. The features of the case which it is submitted place this matter at the lower end of the scale included the following features, all of which his Honour indicated he accepted:

(i) there was no violence, apart from the intercourse itself;

(v) it was explicable by excessive consumption of alcohol;

(vi) the applicant had abstained from alcohol since the offence;

(vii) the applicant was unlikely to offend again. 12 All those features in aggregate called for a more lenient approach, Mr Berman submitted. 13 Moreover, it was submitted that comparison with other cases supported the proposition that this sentence was excessive. Mr Berman, in developing that argument, took the Court to the dicta of Mason J, as he then was, in Lowe v The Queen (1984) 154 CLR 606 at 611 and the dicta of Gaudron J in Siganto v The Queen (1998) 194 CLR 656 at 670. 14 Those statements of principle to be drawn from those judgments emphasis the necessity for consistency in punishment as being a fundamental element in any fair system of criminal justice and it was submitted here by Mr Berman that when one looks at the cases to which the Court was referred, the sentence does not meet that required principle of consistency. 15 Mr Berman referred the Court to cases where the features involved an offence of a sexual nature committed against a complainant at a time when the complainant was sleeping. None of those cases attracted a sentence higher than four years as a head sentence and whether or not the present case was to be regarded as being at the bottom of the scale or somewhere above the bottom, it ought not to have been treated by the sentencing judge as a case that attracted a head sentence of four years. 16 The cases to which the Court was taken each, of course, depends upon its own particular circumstances. One of them, Huttenberger (unreported, NSWCCA, 3 March 1993) was a Crown appeal and at the time of the offence the applicable maximum penalty was eight years imprisonment. Hartikaanen (unreported, NSWCCA, 8 June 1993) was also a Crown appeal and it was a case in which the offender had pleaded guilty. May [1999] NSWCCA 40 was another Crown appeal. RSS (unreported, NSWCCA, 27 February 1996) and Da Silva (unreported, NSWCCA, 30 November 1995) were cases involving offences of digital penetration. Such offences, of course, are not to be treated lightly, but, as has been pointed out in many cases, including in Da Silva itself by Grove J, digital penetration is not treated as seriously as penile penetration. Carr [1999] NSWCCA 200 was a case in which the offender was sentenced to four years imprisonment. This court interfered to reduce the minimum term to two years and three months simply because it was a sentence that had been imposed cumulatively. Martin [2000] NSWCCA 332 was a case in which the sentence was obviously regarded as being a light one, as is reflected in a comment made by Ireland J. We were referred also to a case of Hill (unreported, NSWCCA, 28 October 1994) where, although the non parole period was in excess of two years, the total sentence was under four years. 17 The principle of consistency is to be heeded. Mr Berman has submitted that had the sentencing judge had those authorities before him to which this Court's attention has been directed, he would have imposed a lesser sentence. I am not persuaded that that is so. 18 I am not greatly assisted by these cases to which the Court has been referred in the setting of the present case. 19 Notwithstanding the favourable subjective circumstances, I am not persuaded that this sentence was outside the permissible range. That remains the position having considered these cases to which Mr Berman took the Court. a consideration which I made over the luncheon adjournment. 20 This is a category of offence for which a maximum penalty has been provided by the legislature of fourteen years imprisonment. To violate a sleeping woman is to commit an offence which warrants stern punishment. 21 Whilst it is true that the complainant said that the applicant had immediately desisted, there must have been, as the Crown has submitted, a degree of pre-meditation involved in this crime and not only was the victim asleep when she was penetrated but she had gone to her bed affected by drink, having left the group within this house of which the applicant was one. Moreover, the sentencing judge was correct to perceive that it is inevitable that a young woman, the victim of an offence such as this, would have significant ongoing problems, as indeed the impact statement that had been tendered disclosed. 22 The sentencing judge, having received evidence on sentence, reserved his decision overnight. In his sentencing remarks, his Honour referred to the subjective features of the case in such a way as to indicate his accurate appreciation of the subjective features, and, indeed, it is not suggested that in the remarks on sentence there is to be detected any error of approach, save that at the end of the day it is contended that the sentence fixed was outside the permissible range. 23 This was to be the applicant's first experience of imprisonment and the sentence was to be served on protection. However, the judge was alert to this. The judge also found in the applicant's favour that there were special circumstances which called for the sentence to be structured in the way that it was. The sentence was fixed to commence on the date of sentence, but there had been no earlier period in custody. 24 It may be that another judge embarking upon the sentencing exercise would have fixed a lesser non parole period but at the end of the day, for my part, I am simply not persuaded that the sentence imposed was outside the permissible range. 25 Tragic as have been the consequences for the applicant, who has lost his nursing career and the measure of respect he enjoyed before this crime was committed, I do not consider that error has been demonstrated. I would grant leave to appeal but I propose that the appeal be dismissed. 26 SMART A-J: I agree. 27 STUDDERT J: The orders of the Court then will be those that I have proposed. **********

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