R v Rose

LEGISLATION CITED : Crimes (Sentencing) Procedure Act 1999 CASES CITED: R v McHugh (1985) 12 NSWLR 588 R v Frascella (2001) NSWCCA137 DECISION : Leave to appeal granted - appeal dismissed.

1 SIMPSON J : The applicant seeks leave to appeal against the sentences imposed upon him in the District Court in Lismore on 15 June 2000. That was the date fixed for the trial of the applicant on a charge of sexual intercourse without consent and another charge of assault occasioning actual bodily harm. At the commencement of the trial the jury had been empanelled and the trial was about to commence when the applicant entered pleas of guilty to the offences.

2 The offences were committed on 23 January 1999. The same woman was the victim of both. In short, the applicant had met the victim, who was a twenty-nine year old woman, earlier that day and they had agreed to meet later at a nightclub. After some hours there they returned to the victim's home together. They were sexually attracted to one another. However, the applicant made sexual overtures which were rejected by the victim. Despite her rejection he persisted and became violent. The violence was such that both fell to the floor. The applicant removed the victim's underwear and used his fingers to penetrate her vagina; he forced her to perform fellatio upon him and finally used his penis to rape her vaginally.

3 The victim was able to dial the telephone emergency number and what followed was recorded. A transcript of the tape recording was in evidence before the sentencing judge. It demonstrates beyond doubt that the victim did not consent to the applicant's sexual demands and that he could have been under no illusion about that. Police attended in response to the call and the applicant was arrested at the scene.

4 The applicant was born on 30 August 1971. He was twenty-seven years of age at the time of the offence. Four months earlier he had been released from a Queensland prison where he had served a sentence for assault occasioning bodily harm whilst armed with an offensive weapon and an offence of deprivation of liberty. He had earlier offences on his record.

5 There was considerable amount of subjective material before the sentencing judge, particularly concerning the applicant's early history. He had an unsatisfactory start in life. His mother abandoned the family when he was three years old and he and his siblings were raised by his father. His mother abused alcohol. One sister was adopted at the age of two and the applicant had no contact with her until he was twenty-three years of age when he was able to locate her. Only a week after this meeting his sister committed suicide. Another sister also committed suicide when the applicant was fifteen years of age.

6 His father remarried but his step-mother did not relate well to the applicant and he appears clearly to have been deprived of a good deal of emotional support. Between the ages of six and eight years he was regularly the subject of sexual abuse by a friend of his father.

7 The applicant himself developed an alcohol problem and there is evidence of some violent behaviour towards a partner with whom he had a relationship for a number of years. As a result of this relationship the applicant has a seven year old son who lives with the applicant's former partner, and with whom the applicant has occasional and cordial contact.

8 Before the sentencing judge were a number of references attesting to the applicant's good work record. Further, there was material including oral evidence from a pastor, showing that the applicant has become a committed Christian and a regular attender at church.

9 The offence of sexual intercourse without consent carries a maximum penalty of imprisonment for fourteen years; the offence of assault occasioning actual bodily harm carries a maximum penalty of imprisonment for five years. The sentencing judge imposed a term of imprisonment for five years, with a minimum term of three years, on the sexual intercourse charge, and a sentence of two years, with a minimum term of fifteen months, on the assault charge. The latter charge he specified was to be served concurrently with the former.

10 Initially the substance of the application for leave to appeal relied upon what was later concluded to concern the manner in which the sentencing judge treated a period of pre-sentence custody. The applicant was arrested on 23 January 1999, the date of the offences, and was released on bail on 8 February 1999. He was, accordingly, in custody prior to sentence for a period of seventeen days. Counsel for the applicant has referred the court to s 47 of the Crimes (Sentencing Procedure) Act 1999, and to authorities as to the appropriate manner in which to treat pre-sentence custody.

47. Commencement of sentence (1) A sentence of imprisonment commences: (a) subject to section 70 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence. (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates. (4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. (6) A sentence of imprisonment starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.

11 Pursuant to sub s (3) the court is obliged, in deciding whether or not to back-date a sentence, to take into account any time of custody related to the offence for which the offender is being sentenced.

12 There is authority for the proposition that, generally, a sentence should be back-dated to accommodate periods of pre-sentence custody: R v McHugh (1985) 1 NSWLR 588.

13 In the course of relatively lengthy remarks on sentence, the judge said: "I have taken into account the twenty-four days spent in custody". This was rather more generous to the applicant than the facts warranted. The error appears to have been that of the Crown Prosecutor who, at the commencement of the sentencing proceedings, told the judge that the applicant had spent twenty-four days in prison, from 23 January to 16 February 1999. However, that is immaterial. The question for present determination is whether the acknowledgment by the sentencing judge of the time of pre-sentence custody is sufficient to discharge the obligation imposed by s 47(3).

14 Counsel for the applicant very fairly and properly drew our attention to a decision of this court in Regina v Frascella (2001( NSWCCA 137 in which case there had been an almost identical argument relating to a pre-sentence period of custody of six weeks and five days. Smart J, with whom O'Keefe J agreed, rejected the ground saying: "It is true that under section 47(3) the judge must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates. The judge did so. Section 47(3) does not oblige the judge to, in fact, backdate the sentence. He has the discretion whether to do so under section 47(2). The judge having expressly stated that the matter had been taken into consideration - and that obviously means in determining the sentence - I do not think that this ground of appeal should be sustained."

15 In my opinion the court presently constituted should adopt a similar approach. Further, in this case, I am of the opinion that the context makes clear that the judge did take the period of pre-sentence custody into account both on the question of the length of the sentence and as to the commencement date. The acknowledgment of the twenty-four days in custody was immediately followed by the specification of the commencement date of the minimum term. While it appears that his Honour took into account the period of pre-trial custody also in relation to the term of the sentence, it is to my mind plain that he took it into account as required by sub s (3) in determining the commencement date of the sentences.

16 Accordingly I would grant leave to appeal but dismiss the appeal.

18 SIMPSON J: The order of the court will be as I have proposed.

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