R v O'Connor

Court of Criminal Appeal (NSW)|2014-04-04|Before: Hulme J, Davies J, Adamson J

Judgment 1R A HULME J: I agree with Adamson J. 2DAVIES J: I agree with Adamson J. 3ADAMSON J: This is an appeal brought by the Director of Public Prosecutions (the DPP) pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the respondent on 29 November 2013 by Haesler DCJ on the single ground of manifest inadequacy. 4Following a trial by jury between 7 and 14 May 2012, the sentencing judge, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), imposed an aggregate sentence of 9 years imprisonment upon the respondent, which commenced on 31 January 2012, and fixed a non-parole period of 3 years and 10 months. The non-parole period is due to expire on 30 November 2015. The overall term expires on 30 January 2021. 5The sentence was backdated to reflect the period of one year and about nine months that the respondent had spent on remand in pre-trial and pre-sentence custody following his arrest on 19 February 2011 before he was released to bail on 17 December 2012. He was returned to custody on the day sentence was imposed, 29 November 2013. 6Pursuant to s 53A(2)(b) of the Act, the sentencing judge indicated the sentences that would have been imposed but for the imposition of the aggregate sentence: Count no. Section Offence Maximum Penalty Indicative sentence 1 Section 37 of Crimes Act 1900 Attempt to choke with intent to intimidate on 19 February 2011 25 years imprisonment Imprisonment for 4 years 2 Section 37 of Crimes Act 1900 Attempt to choke with intent to intimidate on 19 February 2011 25 years imprisonment Imprisonment for 4 years 3 Section 61J of Crimes Act 1900 Aggravated sexual assault on 19 February 2011 20 years imprisonment with standard non-parole period of 10 years Imprisonment for 7 years with a 3-year non-parole period. Form 1 (taken into account on count 3) Various, including S 112(2) of Crimes Act 1900 Aggravated break and enter and commit serious indictable offence in company; steal motor vehicle; larceny (x 2); contravene restriction in AVO; unlawfully obtain goods and possess prohibited weapon.

7A notice of appeal was signed by the DPP on 23 December 2013 and served personally on the respondent two days later.

The Facts 8The facts as found by the sentencing judge were as follows. The victim met the respondent in 2010. They formed an intimate relationship. On the evening of 18 February 2011, they went out together to two local clubs where they drank and socialised. They returned to the victim's flat in the early hours of the morning. The victim went to bed. The respondent wanted to engage in sexual intercourse with her but she told him that she was too tired and was feeling unwell. The respondent straddled her, put his hands around her neck and choked her, causing her to fall off the bed and hit her head on the base of a fan. This conduct was count 1 on the indictment. 9Ultimately, the respondent and the victim went to bed. The respondent fell asleep but the victim, who was upset, remained awake. She woke the respondent and asked him to leave. He refused. Eventually, the victim picked up a knife to try to get him to leave and started collecting his possessions to remove them from her flat. 10At this point, the respondent put his hands around her throat. He lifted her up from the floor and pushed her to a nearby lounge. She described the feeling of being choked as "a thousand times worse than the earlier occasion". The respondent said to her, "I should have fuckin' killed you the first time". Eventually the victim lost consciousness from the force applied to her throat. This conduct was the second count on the indictment. 11When the victim regained consciousness some time later she found herself in her bed. Her mouth was gagged with a bloodstained sock, her hands were tied behind her back with cable ties and she had urinated in her underwear. The respondent slapped her face and said: "Wakey, wakey". He removed her underpants, dried her with a towel and took off the dress she was wearing by cutting it from her body with scissors, leaving her naked, gagged and bound. 12The respondent laughed at her and threatened her. He removed the gag from her mouth. When the victim told the respondent that she was going to be sick he dragged her to the bathroom, where she vomited on the floor. The respondent put her in the shower to wash her, and then took her back to the bed, wet, naked and still bound. He continued to threaten her. Eventually, she was so scared that she stopped struggling. 13The respondent cut the cable ties that had bound her hands from behind. He then bound her hands to the front with a dressing gown cord. He rolled her on her side and had penile-vaginal intercourse from behind. He withdrew his penis and ejaculated on her hip. This conduct was the third count on the indictment. The respondent undid the ties and left. 14The victim was bleeding from the nose and eyes. She went outside and vomited. A neighbour took her to the Campbelltown Police Station. She was initially too distressed to give a formal statement, although she told police what had happened. 15She was taken to Campbelltown Hospital where she was examined. Her face and forehead were bruised. Burst blood vessels, indicative of strangulation, had resulted in bruising around her eyes. There were marks on her hands and wrists where she had been bound. She had vaginal redness.

Subjective circumstances 16The respondent was 30 at the time of the offending. He had an extensive criminal history, both in New South Wales from 1995 and in Victoria from 1998, which involved several serious offences, including dishonesty offences, multiple offences of serious personal violence, as well as arson and other property damage offences. 17At the time of the commission of present offences, the respondent was on bail for serious traffic matters.

Post-offending events 18The respondent was arrested on 19 February 2011 and was remanded in custody, where he remained throughout his trial. Following conviction he was transferred to Parklea prison pending the sentence hearing. On 23 May 2012, about a week after the jury returned its verdicts, the respondent was assaulted in his cell by another inmate who hit him over the head with a sandwich maker. The respondent sustained a serious traumatic brain injury.

The proceedings on sentence 19The sentence hearing commenced on 23 November 2012. 20The Crown tendered the indictment, the Form 1 and a statement of agreed facts for the Form 1 offences as well as the respondent's criminal and custodial history. It also tendered two reports as to the respondent's medical condition following the assault in custody. 21The respondent adduced the following evidence which dealt with the injuries inflicted upon him during the gaol assault, the rehabilitation and therapeutic requirements for his optimal recovery and a proposal for accommodation were he to be granted bail to obtain such treatment: (1)a psychological report by Dr Robilliard dated 14 November 2012; (2)medical reports by Dr Gurka dated 26 October 2012 and 12 December 2012 (about the respondent's need for rehabilitation for his brain injury); (3)a letter from Diane Martin of the Brain Injury Rehabilitation Unit dated 29 November 2012; (4)an affidavit from Leanne Hall dated 7 December 2012 (as to his residence were he granted bail); 22As a result of this evidence the sentencing judge became concerned that if the respondent remained in custody he would not receive the optimum treatment to promote his recovery from the brain injury. Accordingly, on 17 December 2012, his Honour adjourned the sentence hearing pursuant to s 11 of the Act and granted the respondent bail. 23The sentencing hearing resumed on 29 November 2013. The sentencing judge received further evidence from both parties before delivering the remarks on sentence and imposing the sentence. 24At the resumed hearing on sentence the Crown tendered two surveillance films. One showed the respondent riding a motorcycle and the other showed him walking up the stairs of a railway station texting and carrying a bag. It also tendered a copy of the respondent's criminal history in Victoria, a pre-sentence report dated 26 November 2013, together with a pre-sentence consultation report. 25The respondent tendered the following further evidence: (1)Medical reports by Dr Nguyen dated 3 June 2013 (as to gains from therapy provided by the Liverpool Brain Injury Rehabilitation Service) and 15 November 2013 (update report), respectively; (2)Medical reports of Dr Ette dated 30 October 2013 (as to the treatment that would be available to the respondent for his brain injury while in custody); (3)Medical reports by Phillip Snoyman from the Statewide Disability Service within Corrective Services, dated 11 October 2013 and 21 November 2013 (as to the hardship the respondent would be likely to encounter in custody); and (4)A medical information sheet concerning dysphasia. 26By the time of sentence, the respondent had recovered well from his injuries, and was able to engage normally in community life. He had some residual dysphasia which made complex communication difficult and frustrating. 27The Crown referred the sentencing judge to R v MW [2007] NSWCCA 291 (MW) and R v Cutrale [2011] NSWCCA 214 (Cutrale) as comparable sentences imposed for offences under s 37 of the Crimes Act 1900 (NSW). The Crown also referred the sentencing judge to Silvano v R [2008] NSWCCA 118 (Silvano) on the need for a causal connection to be established between an assault in gaol and offending behaviour before any such assault could be taken into account on sentence as extra-curial punishment.

The remarks on sentence 28The sentencing judge found that the events of 19 February 2011 were "terrible" and that the victim "was subject to significant violence and terror and justifiably fought for her life". His Honour considered that each offence required "a degree of separate punishment". His Honour noted that the respondent was on bail at the time of the offending which was an aggravating factor. His Honour found each offence to be "objectively serious" and found, in respect of count 2, that to choke another person until she lost consciousness involved the risk of death "and must be regarded as a crime of the utmost gravity". His Honour described the sexual assault as "demeaning and brutal". His Honour said, in respect of the Form 1 and particularly the aggravated break and enter, that the offences "would have merited some measure of independent punishment upon which the present matters would be accumulated". 29The sentencing judge found that the respondent's record demonstrated: "a well entrenched pattern of criminal offending from since he was very young". 30The sentencing judge said, with reference to the respondent's record: "Generally such a record requires greater emphasis to be given to retribution, deterrence and community protection. This background obviously would not merit any leniency nor would it mitigate offences which call for a significant severity." 31In respect of the two s 37 offences the sentencing judge indicated the same four-year sentence for each count. His Honour nominated an indicative non-parole period of three years for Count 3, in accordance with s 44(2C) of the Act which require a non-parole period to be indicated only in respect of those offences, such as s 61J of the Crimes Act, for which a standard non-parole period is specified. 32The non-parole period was expressed to expire on 30 November 2015. The length of the non-parole period accommodated the two-year period that the sentencing judge considered would be required for the courses the respondent would undertake in custody. It also served to meet the sentencing judge's concern expressed in the remarks on sentence about "the additional pressure" of being in custody during January as creating "problems both for prisoners and Corrective Services". 33Of the 109 paragraphs in the remarks on sentence, [43]- [101] were concerned with, and entitled, "The events of 23 May 2012". The only reference to extra-judicial punishment in the remarks on sentence appears in the first paragraph following this heading: "Mr O'Connor was arrested on 19 February 2011. He has been in custody since that date. He was convicted after trial on 14 May 2012. On 23 May 2012 the offender sustained a serious head injury when assaulted at Parklea Gaol. It appears he was hit over the head with a sandwich maker. He spent 17 days in Intensive Care at Westmead Hospital, five weeks at Westmead's Brain Injury Unit and since 20 July 2012 spent considerable time at Long Bay Hospital. He was then discharged from the hospital wing and until December of last year was housed in the Metropolitan Special Program Centre, 'MSPC' Area 10, at Long Bay. There is no evidence other than that brief recapitulation of events to indicate that the crime committed against him involved any form of extra curial punishment: see Silvano v R [2008] NSWCCA 118." 34The sentencing judge's concern for the respondent as victim was evident from passages such as the following: "This case presented a worrying example of the problems that arise when dealing with unbending bureaucracy, which is incapable of sensitivity to the peculiar and particular needs of prisoners. This occurred when this matter came for sentence on 23 November 2012. The warrant was clearly endorsed 'audio/ visual link (AVL)' but the offender was brought to Campbelltown, at risk to his physical and mental health. He spent considerable time in a closed van and in the cells below court. These things happen but there is a risk that similar things will happen again." 35His Honour found that the recordings tendered by the Crown showed that the respondent had "significantly improved physical co-ordination and can engage in normal community life". 36His Honour referred to the pre-sentence report in the following terms: "It indicated that if he is to engage in sexual offender treatment while in gaol, that a considerable period in custody would be required. It notes that he is still in denial and that he still blames his victim; indicating that he may have some memories of the event or that he has a fixation upon some reconstructed memory. He notes that communication issues are still a day to day challenge but he is otherwise co-operative and open." 37His Honour also said: "In conclusion, there are still some concerns about the offender. It is also clear he does not comprehend or understand the enormity of the crime he committed." 38His Honour found that the injuries sustained by the respondent lessened the importance of both general and specific deterrence. His Honour said: "The evidence about his time on bail indicates that he can now lead a law abiding life in the community and he can use his time well. That provides a great distinction from his behaviour prior to and including the commission of this offence and his incarceration. The sentence must do what it can to promote his rehabilitation. It must be recognised that the longer he spends in custody the greater is the risk to that rehabilitation. It cannot be ignored that these injuries occurred in gaol." 39His Honour explained the substantial leniency inherent in the sentence about to be imposed in the following terms: Sentencing is not, and should never become, an exercise in simple mathematics. When I did the calculations in this matter and formulated the sentence I believed 2 years more in custody before parole was possible was required. I have also allowed the offender to be released prior to Christmas. It has been my experience that the additional pressure of being in custody for a very short period during January creates problems both for prisoners and Corrective Services. . . . Often sentences can be used as an indicator of the seriousness with which the court views the crime committed. Sometimes as here, particular and extraordinary considerations mean such a direct correlation is impossible. The victim should, as I said, never equate her injury with the punishment actually inflicted. For these reasons I feel it is appropriate to note that the sentence that I would have imposed had the events of 23 May 2012 not occurred would have been significantly more severe. The sentence I intend to impose is much shorter and the non-parole period considerably shorter."

The Crown's submissions on appeal 40The Crown submitted that the sentencing judge attributed such disproportionate weight to the intervening assault on the respondent that his Honour allowed it to become determinative of the sentences imposed. It contended that the sentence was, as a result, manifestly inadequate to reflect the gravity of the offending conduct or the respondent's moral culpability. 41The Crown contended that the respondent's crimes were in the upper range of criminality. The respondent, who was on conditional liberty, brutally assaulted his partner because she declined his sexual advances. She suffered loss of consciousness and numerous injuries, including haemorrhaging to and from the eyes, ligature marks and significant bruising. It was an assault carried out over an extended period, in the victim's own home, by a person she should have been able to trust not to harm her. The manner of offending was calculated to humiliate her. The Crown contended that heavy punishment was called for.

Sentences imposed in comparable cases 42The Crown sought to make good its submission that the sentence imposed was substantially at odds with sentences imposed for similar offences by referring to the following cases which document the sentences imposed on offenders for offences which are similar in that they each involve male offenders who have committed violent, sexual offences on females in circumstances which involve, as in the present case, attempted choking, degradation and humiliation of the victim. 43In R v HQ [2003] NSWCCA 336 the applicant had pleaded guilty to two counts of attempt to choke contrary to s 37 of the Crimes Act and one of aggravated sexual assault contrary to s 61J of the Crimes Act. The victim was his fifteen-year-old stepdaughter. The applicant was the only father she had ever known. The applicant woke the victim in the early hours of the morning and asked to touch her. When she refused, he threatened her with a knife, saying he would kill her, her brother and cousin. The applicant tried to touch his stepdaughter's breasts but she told him to leave her alone. He grasped her throat with both hands and began to choke her. He desisted, and again tried to touch the girl. When she continued to resist, he took hold of her throat again and choked her to the point when, unable to breathe, she lost control of her bladder and lapsed into semi-consciousness. The applicant then had penile-vaginal intercourse to ejaculation with his stepdaughter. She was left with haemorrhages to the eyes, bruising and swelling to various parts of her body, and tenderness and inflammation to her genital area. There were continuing psychological consequences. 44The applicant had a criminal history including matters of violence, although not sexual violence. He suffered from depression and was likely to spend his sentence in protection. 45After a discount for the pleas of guilty there was an effective sentence of 13 years imprisonment with a non-parole period of 10 years and 3 months. The two s 37 offences attracted sentences of a 7-year fixed term, and 11 years with a non-parole period of 8 years and 3 months respectively. These sentences were accumulated by two years. A (wholly subsumed) fixed term of 10 years was imposed for the s 61J offence. The offender's appeal to this Court was dismissed. 46In McKechnie v R [2006] NSWCCA 13, the appellant was convicted at trial of a s 37 offence and a s 61J offence. He attacked his victim, a stranger, on a beach. He grabbed her around the throat with his hands. He forced her onto the sand and squeezed her throat until she could not breathe and thought she was going to die. The victim resisted by scratching the appellant's face. When she ran away, the appellant chased and caught her. He forced her head into the sand and choked her. He penetrated her vagina with both his fingers and penis, to ejaculation. The victim, who was extremely distressed, suffered injuries to her throat (bruising, reddening and areas of broken skin and bleeding), bruising and tenderness to other parts of her body, and reddening and abrasions to her genital area. 47The appellant had a lengthy criminal record, which included offences of attempted choking and other violence. He had been at liberty on bail and in breach of bail at the time. The sentencing court imposed concurrent sentences of 15 years imprisonment with a non-parole period of 11 years. 48This Court dismissed the appeal against sentence (and also the conviction appeal) on the basis that the offences were of great gravity, and a sentence that reflected the very great seriousness of the crimes was required (per Hall J, with whom Mason P and Barr J agreed, at [86]). 49In MW, this Court allowed a Crown appeal on the ground of manifest inadequacy. The respondent was sentenced for one count of aggravated sexual assault contrary to s 61J of the Crimes Act and one count of attempt to choke contrary to s 37. There was a further, related, offence of commit act of indecency which was taken into account in the sentence for the s 37 offence. The sentencing judge imposed a total sentence of eight years imprisonment, with a non-parole period of five years and six months. 50The victim was the respondent's seventeen-year-old stepdaughter. The respondent, who was 38, lured the girl to a reserve where he tried to gag her with a tea towel and tape, which he had brought with him. When the victim struggled, the respondent forced her to the ground and pushed his finger into the girl's vagina. He told her that it was "payback" for her mother calling the police during an earlier incident of violence. He threatened to kill her. The respondent was masturbating throughout (the Form 1 offence). The respondent tried to have penile-vaginal intercourse with his victim. When she resisted, he took her throat in both his hands and choked her until she lost consciousness. When she regained consciousness, she found herself semi-naked, lying under a pile of sticks in the reserve. 51The respondent had a long-term history of drug abuse, and was intoxicated when committing the offences. The sentencing judge found that his capacity for reasoning when committing the offences was impaired by his intoxication. He had participated in rehabilitative courses whilst on remand. A 25% discount was awarded for his early pleas of guilty. Special circumstances were found. 52This Court upheld the Crown's appeal noting that, even having regard to the early pleas, the sentence was "excessively lenient" (at [42]). Both crimes were held to be objectively very grave. On re-sentence the respondent was ordered to serve a fixed term of 6 years for the s 61J offence. A term of 11 years was imposed for the s 37 offence, made up of an 8 year non-parole period with a further term of 3 years. There was some degree of accumulation, resulting in an overall effective term of 12 years with a non-parole period of 9 years. The Court noted at [45] that the sentence was "at the bottom of the available range" because it was a Crown appeal, and would have been significantly greater if imposed at first instance. 53In Munn v R [2009] NSWCCA 218 the brain-injured applicant had been tried and ultimately sentenced for an offence of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900 and a further offence of attempt to choke contrary to s 37. He was ordered to serve an total term of 10 years imprisonment, with a non-parole period of 6 years and 6 months. The individual sentence for the s 37 offence was 9 years with a non-parole period of 5 years and 6 months. The sentence incorporated a 15% discount for assistance given to the authorities. 54The applicant and his victim had been involved in a romantic relationship for some time, although the victim had been seeking to end it. After the victim had again ended the relationship, the applicant tried to see her at her parents' home. She tried to forestall this by driving off, but found the applicant standing in the road blocking her path. The victim allowed the applicant to get into the car, intending to drive him away from her parents' home. During the drive the applicant began to punch the victim in the head. She lost control of the car as a result and, after a collision with another vehicle, the car rolled to a stop on the roadway. The applicant immediately grabbed his victim by the throat and began to choke her. He continued, even when passers by were trying to force their way into the car to stop him. The victim was seen to be frothing blood from the mouth, and her eyes were bulging and bruised. She almost lost consciousness. 55The applicant had a lengthy criminal history with many offences for violence or dishonesty. He was subject to a good behaviour bond at the time of the offences. He had frequently been dealt with pursuant to the provisions of the Mental Health (Criminal Proceedings) Act 1900 (as it was at the time) due to the cognitive deficits that he suffered after sustaining a severe head injury as a child. He was considered to have frontal lobe damage, with consequent impairment of impulse control and related functioning. 56The applicant's appeal against severity was dismissed. RA Hulme J (Spigelman CJ and McClellan CJ at CL agreeing) said at [43]: There will be varying degrees of criminality in an offence contrary to s 37. In the present case the choking inflicted upon the victim was of such severity that she was rendered unconscious, the respondent believing that she had died. As a consequence of the harm inflicted the victim has suffered significant psychological injury. It must be remembered that the offence itself is defined as an "attempt to choke." When that attempt results in the victim becoming unconscious the offence is one of considerable gravity. 57In Cutrale the Crown appealed against a sentence imposed on the respondent after he entered pleas of guilty to one count of attempt to choke (s 37 of the Crimes Act) and one of sexual intercourse without consent (s 61I of the Crimes Act), which carries a maximum sentence of 14 years imprisonment. The sentence imposed for the former was 9 years with a non-parole period of 6 years and 9 months. The wholly concurrent sentence for the latter was 7 years with a non-parole period of 5 years 3 months. A discount of 25% was allowed for the early pleas. 58The 39-year old respondent had accosted a young English woman who was travelling in Australia as she walked from a taxi to her accommodation. He dragged her into a nearby park and, as she lay on her back on the ground, choked her so that she could neither cry out nor breathe. She struggled against the respondent and scratched his face. She eventually lost consciousness. On regaining consciousness, she found that her shoes and lower clothing had been removed and her top had been pulled up, exposing her breasts. Semen was later found in her vagina, indicative of intercourse. The respondent was crouching nearby, saying "I'm sorry". 59The subjective case was limited: the respondent had a prior conviction for indecent assault interstate. No prediction could be made about his prospects of rehabilitation. 60This Court held that an overall term of 9 years with a non-parole period of 6 years and 6 months was "insufficient to mark the gravity of these offences" (at [34], per Hidden J, McClellan CJ at CL and Grove AJ agreeing). The sentence was quashed. The Crown's appeal was limited to the concurrency of the original sentence and not its term. This Court adjusted the commencement date of the terms which resulted in a total effective term of 11 years, with a non-parole period of 8 years and 3 months. 61In the present case, the Crown also submitted that the sentence imposed was insufficient to signify the community's intolerance of domestic violence. The Crown referred to what was said in Munda v Western Australia [2013] HCA 38 at [55] (per French CJ, Hayne, Crennan, Kiefel, Gageler And Keane JJ): A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.

The Crown's submissions about the individual indicative sentences 62The Crown submitted that his Honour must have failed to have regard to the 25-year maximum penalty for the s 37 offences, in light of his Honour's findings as to their seriousness. The Crown submitted that the end result was that the overall term was inadequate, with a further significant degree of leniency in the structure of the non-parole period, it being only 42 per cent of the total sentence.

The respondent's submissions on appeal 63Mr Barrie, who appeared on behalf of the respondent, submitted that this Court ought not interfere with the sentence because it was an "extraordinary" case where the particular circumstances made the sentence imposed within the range, having regard to the intervening events. 64He also submitted that the respondent was a "different man" when ultimately sentenced than he had been when he committed the offences for which he was sentenced and that he had been rehabilitated, thereby obviating the need for a longer sentence. 65Mr Barrie accepted that it had not been submitted, nor did he submit, that the injuries inflicted on the respondent amounted to extra-curial punishment. Accordingly, he accepted that extra-curial punishment was not a relevant factor before the sentencing judge or in this appeal.

The relevant principles 66A claim of manifest inadequacy requires the Crown to establish that the sentences imposed were unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: R v Dinsdale (2000) 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]. 67Whether a sentence is manifestly inadequate is a conclusion. It is not necessary to identify any particular error in the process; it is the examination of the result that leads to the conclusion. Nonetheless it can be helpful to ascertain why and how the sentence was arrived at since this inquiry may explain the conclusion and expose the reason for any manifest inadequacy.

Analysis of the approach of the sentencing judge 68The respondent's crimes warranted severe punishment and unconditional denunciation. The cases to which the Crown referred, which are summarised above, indicate that the sentence was well outside the range for similar instances of like offences. 69In respect of the two s 37 offences the sentencing judge indicated the same four-year sentence for each count. It is not apparent why the same sentence was indicated when, during the second of the two attempts to choke her, the victim lost consciousness and the sentencing judge described the second as one of the "utmost gravity". His Honour's conclusion is not reflected in the indicated term for that offence. Nor does the sentence imposed appear to have taken account of the statutory maximum penalty for the s 37 offences of 25 years imprisonment. 70As to the third count, it is difficult to see how such a term could adequately reflect the criminality of the principal offence, even without regard to the offences that were before the Court on a Form 1 document. The sentence imposed is difficult to reconcile with the sentencing judge's comment that the aggravated break and enter offence alone would have required additional punishment if dealt with separately. However, in any event, the Form 1 contained seven further offences including contravention of an Apprehended Domestic Violence Order made for the protection of the victim. His Honour appears to have disregarded the Form 1 and failed to increase the sentence on the principal count, in derogation of the purpose of the Form 1 procedure: Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at [42]; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. 71In my view, the aggregate non-parole period of 3 years and 10 months involved an inadequate degree of accumulation of the indicated sentences. The period of actual imprisonment for the two attempts to choke offences amounted to only 10 months (over and above the three year non-parole period for the third count). Although the degree of accumulation is generally discretionary, the 10-month partial accumulation of the sentences for Counts 1 and 2 in this case was, in my view, manifestly inadequate in light of the maximum penalty of 25 years and his Honour's findings as to the objective seriousness of these offences. 72The aggregate non-parole period reflects a further reduction which appears to have been given by the sentencing judge at least partly on the ground that Christmas occurred towards the end of the non-parole period that would otherwise have applied. I accept the Crown's submission that there is no apparent justification for this "discount". There was no evidence to support his Honour's concern about "the additional pressure" of being in custody during January as creating "problems both for prisoners and Corrective Services". Although there is some room for mercy in sentencing, there is no room for sentiment. The timing of Christmas cannot, in my view, provide a legitimate basis for a discount on sentence. 73It appears from the remarks on sentence and a reading of the medical evidence that his Honour calculated the sentence so that the non-parole period yet to serve was two years, which corresponded with the period which would be required for the respondent to complete the rehabilitation programmes available to him in custody. This is consistent with the Crown's argument that the sentencing judge's concern for the respondent himself, his injuries and recovery came to dominate the sentencing exercise.

Whether the sentence was manifestly inadequate 74It is difficult to see how the assault on the respondent could, rationally, have made such difference to the appropriate sentence, particularly in circumstances where the respondent did not contend that the assault constituted extra-curial punishment. The respondent had a lengthy record for serious offences. He had done little to address his criminal lifestyle. There was nothing in his history to suggest his prospects of rehabilitation (as distinct from recovery from his physical injuries) were anything but bleak. Ordinarily, there could have been little leniency extended to him in determining the sentences to be imposed for his terrible crimes. The respondent was assessed on a Static analysis as being in the moderate to high-risk range for recidivism. He had shown neither remorse, nor insight, nor concern for the victim, whom he continued to blame for his actions. 75The respondent continued to maintain that the sexual intercourse was consensual. He maintained his innocence in his interview for the Pre-Sentence Consultation in late 2013. The pre-sentence report dated 26 November 2013 contained the following assessment of the respondent: "Mr O'Connor was co-operative in making himself available for interviews and providing information for the preparation of this report. He was open in describing his childhood and his behavioural issues. It would appear that he enjoys the benefits of a close family network. Mr O'Connor during interviews denies being responsible for the offences relaying that it was consensual and that the break and enter matter was perpetrated by the victim." 76These reports showed that the respondent's attitude towards his offending remained constant throughout the trial, after he himself had been the victim of assault and after he had completed his intensive rehabilitation treatment while on bail. The submission made on behalf of the respondent that he was a "different man" after the trauma of the assault in custody cannot be accepted in light of the respondent's own statements. There was no evidence to show that his traumatic brain injury prevented him from appreciating the gravity of his offences, although it is possible that it may have affected his memory of them. 77The sentencing judge was entitled to have regard to the potential difficulties the respondent would face in custody because of the lingering dysphasia that afflicted him. However, the medical evidence and the surveillance film established that the respondent had recovered well from his injuries, and that his physical rehabilitation had been reasonably successful. 78In my view, the sentencing judge's conclusion that the risk posed by the respondent to the community was significantly reduced by the consequences of the assault upon him was not properly based in the evidence. I do not accept the sentencing judge's view that the yearlong crime-free period on bail indicated that the respondent had been rehabilitated. He had spent the year under close medical and family supervision and had, so far as the evidence disclosed, not been in an intimate relationship. That he would continue to blame the victim for his offending conduct is a powerful indication that he had not been relevantly rehabilitated at all, although he had recovered from his physical injuries. 79The respondent's criminal record meant that specific deterrence was of particular relevance. General deterrence remained of considerable importance: the respondent was not impaired when he committed the crimes. He had recovered well when sentenced for them. 80I accept the Crown's submission that the sentencing judge appears to have been unduly influenced by the intervening assault on the respondent to impose a sentence that was manifestly inadequate, in terms of the length of individual sentences, the degree of concurrence, the non-parole period and the total term. 81In the passage from the remarks on sentence set out above the sentencing judge referred to Silvano, which concerned whether extra-judicial punishment had been made out. James J (Hislop and Hoeben JJ agreeing) said in Silvano, at [35]: In my opinion, it is not sufficient to enable injuries suffered by an offender in prison to be taken into account as extra-curial punishment, that the injuries would not have been suffered, if the offender had not been arrested and remanded in custody as a result of having committed the offences. If such a connection between the offences and injuries suffered by a prisoner was sufficient, then injuries suffered by a prisoner could be taken into account as extra-curial punishment, even if they had resulted merely from some mishap occurring in the prison, such as the prisoner accidentally falling. 82However, it is possible that, notwithstanding that the respondent did not contend that the assault amounted to extra-curial punishment and there was no evidence aside from the bare chronology to establish that it was, his Honour nonetheless treated it as such and took it into account as a matter that warranted a significant reduction in the sentence that would otherwise have been appropriate. 83Extra-curial punishment, if established, is a relevant consideration in sentencing. In R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398, James J (Tobias JA and Hulme J agreeing) undertook a careful analysis of the authorities and said at [62]: I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight. [Citations omitted] 84In light of Mr Barrie's concession that the assault on the respondent did not amount to extra-curial punishment, it is not necessary for this Court to decide either whether, had the assault on the respondent amounted to extra-curial punishment, the sentence would, nonetheless, have been manifestly inadequate or what sentence would, in that event, have been appropriate as a re-sentence on a Crown appeal. It is sufficient to say that I do not consider that, even had extra-curial punishment been established, the sentence would have been other than manifestly inadequate.

Residual discretion 85This Court retains a residual discretion in the exercise of its jurisdiction under s 5D of the Criminal Appeal Act to refuse to interfere in a sentence, even if error has been demonstrated and manifest inadequacy established: Griffiths v The Queen (1977) 137 CLR 293; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462. 86This Court is obliged to consider the exercise of the residual discretion: Bugmy v The Queen [2013] HCA 37 at [24]; Reeves v The Queen [2013] HCA 57 at [10], [12], [60]-[61]. 87Mr Barrie, on behalf of the respondent, submitted that it was appropriate to exercise the residual discretion in the present case because of the "extraordinary circumstances" of the assault on the respondent. I do not accept this submission. 88Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion. 89Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J. Another associated purpose is to prevent the community from supposing that justice could ever require the infliction of extra-curial punishment to make up for any perceived inadequacy of a sentence imposed by a court. As Lord Lane CJ said in R v Darby (1986) 8 Cr. App. R (S.) 487 at 490: ". . . one of the objects of punishment and by no means the least important object of punishment, is to prevent, so far as possible, the victims of crime from taking matters into their own hands. It is no great step from private vengeance to vendetta, and there is no knowing where vendetta will stop." 90Offences by men against women with whom they are in an intimate relationship are not a separate category, although the expression "domestic violence" is apt to imply that they are. The present offences were committed in circumstances where the victim refused the respondent's sexual advances. He took advantage of her physical weakness and the privacy that her home afforded him to assault, injure, humiliate and vilify her because she would not obey him or submit to his will. When she sought to remove him from her home, he was so affronted that he degraded her still further and satisfied his sexual desire after rendering her incapable of resisting him, escaping him or obtaining help. 91I do not consider that his Honour regarded the offences as less serious because they occurred in these circumstances. Indeed the remarks on sentence indicated that the sentencing judge regarded the offences as grave. However the sentence imposed was, in my view, such as to create the impression that the punishment of the respondent for his horrendous acts and the protection of the victim and others like her were of little significance when compared with the trauma the respondent had suffered when he was assaulted in gaol. This Court is, in my view, obliged to correct that impression by re-sentencing the respondent. 92In my view, the sentence that ought be imposed is an aggregate sentence of 14 years with a non-parole period of 10 years and 6 months comprised of the following sentences for the three counts: (1)Count 1 (s 37): 4 years (2)Count 2 (s 37): 10 years (3)Count 3 (s 61J) (and Form 1): 10 years with a non-parole period of 7 years and 6 months. 93On re-sentence, the ratio between the total term of the aggregate sentence and the aggregate non-parole period conforms to the statutory ratio of 75% (s 44(2) of the Act) since I do not accept that there was a proper basis for the finding of special circumstances made by the sentencing judge.

Proposed orders 94The orders I propose are: (1)Appeal allowed. (2)Quash the sentence imposed by Haesler DCJ on 29 November 2013 and in lieu thereof: (a)impose a sentence of fourteen years to commence on 31 January 2012 with a non-parole period of ten years and six months; (b)note that the earliest time the respondent is eligible to be released is 31 July 2022.

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. Decision last updated: 15 April 2014

Mental Health (Criminal Proceedings) Act 1900(NSW)

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