R v Rozynski [2001] NSWCCA 257 | Case summary

(ii) there was a discrete and later group of offences reflected in four counts reflected in four counts consisting of: (a) a count of aggravated sexual assault; (b) two counts of detaining for advantage; (c) a fourth count of stealing a motor vehicle. 3 It is necessary to record the history of what occurred concerning the firearms offences which Judge Williams had to consider. After being charged in 1993 with two counts of possession of shortened firearms and two charges of armed robbery, the applicant was found guilty at a trial commencing in February 1994 on all four charges. For the armed robbery offences, Judge Graham sentenced the applicant to terms of imprisonment of four years comprising in each case a minimum term of three years and an additional term of twelve months. For each of the firearms charges, a concurrent fixed term of twelve months commencing on 11 March 1994 was imposed. Later, the Court of Criminal Appeal quashed the convictions for those four matters and a new trial was ordered. That trial took place before Judge Williams and jury in 1998 and the jury acquitted the applicant on the armed robbery charges but convicted him of the two firearms offences, for which he faced sentence in December 1998. 4 The applicant was sentenced for the second group of offences, committed in August 1996, after pleading guilty to them. 5 For the firearms offences, Judge Williams sentenced the applicant only to time already served. In doing so, his Honour adopted the approach invited by counsel for the Crown that the applicant had been sufficiently punished for the firearms offences by spending that period in custody after sentence in 1994 and prior to his release on bail in July 1995. At that time the applicant was granted bail pending the hearing of his appeal. 6 For the counts of aggravated sexual assault and detention for advantage, his Honour imposed concurrent head sentences of seven years for each offence, with a minimum term of four years six months, and for the car stealing offence his Honour imposed a concurrent sentence of twelve months imprisonment. Those four sentences were fixed to commence on 17 February 1998, that being the date the applicant was charged for that group of offences. 7 Shortly expressed, the applicant complains that having regard to all the time spent in custody for the firearms offences, his aggregate punishment for the two groups of offences was excessive. 8 The offence of aggravated sexual assault is an offence which attracts a maximum penalty of twenty years imprisonment: s 61J(1) of the Crimes Act . The offences of detain for advantage are offences in respect of which the maximum penalty is one of twenty years imprisonment: s 90A of the Crimes Act . The offence of steal motor vehicle attracts a maximum penalty of five years imprisonment: s 154(1)(a) of the Crimes Act . 9 Each of the offences attracting the sentences that commenced on 17 February 1998 was committed on 2 August 1996. The victim of the sexual offence was a sixteen year old girl who informed the applicant before he assaulted her that she was a virgin. The victim of the second charge under s 90A was the eighteen year old boyfriend of the first victim I have identified. The learned judge summarised the objective features of the offences committed on 2 August 1996 in the following passage in his remarks on sentence: "The facts are that two young people [and his Honour was, of course, referring to the young man and young woman I have mentioned] were sitting in a car, parked near Warwick Farm railway station when Mr Rozynski entered the vehicle and began a conversation. The young man in the car was aged eighteen and the young girl was aged sixteen. Mr Rozynski produced a knife when the young man went to get up out of the vehicle. He pulled a knife out of his jacket and said, 'Lie back down. No-one's going to get hurt.' As he said this, he had the knife at the throat of…the young woman. He had a further conversation with the victims and then said to the young man, 'Get up and get in the back seat. If you don't do it, I'm going to cut her.' The young man then climbed into the back seat of the motor vehicle and Mr Rozynski climbed through to the front seat. He then tied the wrists of the young man together with some tape and placed a jacket over his head. He then drove the vehicle to various locations around the area, stopping twice and having further conversations, during which other threats were made as well as promises not to harm either of the young persons. He finally stopped outside 14 Gallop Street, Warwick Farm. At this location, he led both victims to a laundry which is attached to Unit 4, 14 Gallop Street. The laundry was located at the rear of the units. He then put the knife to the young man's back and told them to walk into the laundry. Once all three of them were inside, he turned the light on for a couple of seconds and then tied the young man's feet together and put his legs through his arms. He then made the young lady take all her clothes off and lie on a car seat that was in the laundry. He then performed cunnilingus on her, then penile penetration and ejaculated on her stomach. He then took his jumper and wiped her stomach and then he performed digital penetration. Whilst doing this, he said, 'I'm going to kill myself after what I've done to youse. It's not my fault. I'm taking drugs. It's the drugs that do it to me.' He then got dressed and left the laundry and drove off in the young person's car which was located later that afternoon in Hart Lane, Warwick Farm, about 30 metres from where he lived. There are a number of aggravating features. Firstly, the offences occurred in the early hours of Saturday morning. Secondly, the victims were young people enjoying a night out. Thirdly, Mr Rozynski threatened both on a number of occasions, both with a knife and with words and actions. Fourthly, he tied the young man up, taping his hands and tying his feet. Fifthly, he committed three types of sexual assault on the young lady, she protesting that she was a virgin and this was occurring in the sight of her companion who was tied up." 10 Plainly, viewed objectively, these were very serious crimes, particularly the sexual offence. 11 The applicant was thirty-two years of age at the time he was sentenced. He was born on 20 September 1966 and had a lengthy and significant criminal record which began as a juvenile in 1997. His many offences included offences of dishonesty, break enter and steal, stealing motor vehicles, and other offences concerned with misuse of vehicles, and firearms offences. He had convictions for armed robbery in Victoria. I will return to consider this record. 12 The applicant appeared unrepresented before the sentencing judge. His Honour took into account in the applicant's favour the plea of guilty to the 1996 offences with the attendant saving to the community and the avoidance of distress to the applicant's victims that would have been occasioned by them being required to give evidence at his trial. The judge accepted that the applicant was contrite and that the sexual offence, at least, appeared to be out of character. The judge considered a psychological report and a pre-sentence report that had been before Judge Graham in 1994 when that judge was sentencing the applicant for the armed robbery convictions later quashed on appeal. It is unnecessary for present purposes to review those reports that dealt, in 1994, with subjective features of the case. In summary, the evidence in point invited the inference that the applicant had had an unstable and unhappy childhood, that he had developed a severe drinking problem and that by later adolescence he had an impaired sense of self-esteem. The pre-sentence report available in 1994 recorded the author's opinion that it is was impossible to assist the court as to the applicant's rehabilitation prospects. 13 So it was that in the absence of any recent pertinent reports addressing subjective features, Judge Williams had no useful material before him directed to this issue. In sentencing the applicant, his Honour found there were no special circumstances and, clearly, that was a finding he was entitled to reach. 14 The gravity of the applicant's criminality concerning the offences committed in August 1996 was such that the concurrent sentences of seven years penal servitude with a non parole period of four years six months for the offences charged in the first, second and third counts and of the sentence of twelve months for the stealing of the motor vehicle, again to be served concurrently, viewed by themselves were entirely appropriate. Indeed, Mr Craigie, who has appeared for the applicant, has not sought to argue that the sentencing process miscarried other than by reason of the time spent in custody referable to the firearms offences. 15 This brings me to the nub of Mr Craigie's submissions. 16 The applicant spent more than sixteen months in custody for the firearms offences even though following conviction in 1994 he had been sentenced only to twelve months in respect of them. Mr Craigie argued that Judge Williams could not have appreciated, when structuring the sentences imposed, that the applicant had spent so long in custody for the firearms offences, coupled, as they were, with the armed robbery sentences later quashed. Had the judge had a full appreciation of the time so spent, he submitted it would have been appropriate for him to have reduced the sentences having as their commencement date 17 February 1998, or, as I understand it Mr Craigie submitted this was the preferred option, to have backdated them so as to credit the applicant the time spent in custody exclusively for the firearms offences to the extent that such time exceeded twelve months. On this approach, he submitted that it would have been appropriate for the sentencing judge to have sentenced the applicant to sentences backdated to commence on 6 September 1997, and, of course, emphasis was given to the circumstances that the sentence that Judge Graham had imposed for the firearms offences in 1994 was, after all, a sentence of twelve months. 17 Mr Craigie relied upon the decision of the Court of Criminal Appeal in Karageorge (unreported, 30 July 1999). That was a case in which this court determined that it was appropriate for an offender to be given credit for time spent in custody pending trial when refused bail, notwithstanding that the offender was at the same time serving a sentence for another conviction where that other conviction was later quashed. However, the period for which credit was given in that case was a period spent in custody in relation to the offences for which the relevant sentences were imposed. That situation is to be distinguished from the present case. 18 The time spent in custody for the firearms offences extended from 11 March 1994 to 10 March 1995, and from 10 March 1995 to 27 July 1995 and from 5 February 1998 to 17 February 1998. All that time was spent in custody prior to the custody referable exclusively to the offences committed in August 1996. There was no period, as I understand the position, during which the applicant was detained concurrently on the two groups of offences with which the sentencing judge was concerned. 19 I do not consider that what the sentencing judge here did was wrong in principle or that it resulted in any unfairness such as could properly be disturbed by this Court. It was appropriate for the judge to take into account time which the applicant spent in custody in relation to the offences to which the sentences related. Indeed, the Crimes (Sentencing Procedure) Act required that he do so: ss 24(a) and 47(3). His Honour correctly backdated the sentences for the 1996 offences to commence on 17 February 1998. 20 However, the period in excess of twelve months upon which Mr Craigie's submissions focus, was not a period during which the applicant was being held in custody in relation to the sentences for the offences committed in August 1996. That period preceded the date of the charging for those offences. It seems to me that it would be wrong in principle to make any adjustment to the sentences imposed on the basis advanced by Mr Craigie. Indeed, the authorities to which the Crown has taken the Court invite the contrary conclusion. 21 Whilst time spent in custody prior to sentence is to be taken into account where the custody relates to the offence for which sentence is to be imposed, a period of time spent in custody for an unrelated offence should not be taken into account: see Niass (unreported, NSWCCA, 16 November 1988); Chung (unreported, NSWCCA, 9 March 1994); Webster & Jones (unreported, NSWCCA, 3 August 1992); and David (unreported, NSWCCA, 20 April 1995). 22 In Niass , the Court of Criminal Appeal rejected the submission that the sentencing judge erred in declining to take into account time in custody which was not referable to the offence for which sentence was to be imposed: see in particular the judgment of Lee CJ at CL at p 2. That decision was cited with approval by the Court of Criminal Appeal in Webster & Jones : see in particular the judgment of Gleeson CJ at p 16: "In the case of the appellant Jones, it was argued he should be given credit for time that he had spent in prison following a conviction in relation to another matter of an alleged corruption…which was ultimately set aside by this Court… However, such a course would be contrary to authority and to principle. R v Niass …" 23 In Chung, Niass was again cited with approval. Dunford J at p 6, with whose judgment the other members of the court agreed, said: "It has been submitted that in assessing the appropriate sentence, the Court should take into account in the applicant's favour the time spent in custody, bail refused, on the charge of which he was subsequently acquitted. However, such a proposition has been consistently rejected." 24 His Honour went on to cite Niass and Webster as authority for that. 25 Then in David , James J, with whose judgment Ireland J agreed, said (at p 6): "In my opinion, the then Chief Judge at Common Law should be taken as having laid down a general principle in Regina v Niass that, although when a person is being sentenced for an offence a period which he has already spent in custody in relation to that offence should be taken into account, a period which the person has spent in custody in respect of an unrelated offence should not be taken into account." 26 His Honour went on to refer to the later decisions in Webster & Jones and Chung . 27 The challenge to the sentences imposed by Judge Williams has not been substantiated. 28 The applicant delayed some twenty-one months before seeking leave to appeal. His reasons for that delay are addressed in the application for leave to appeal, and, in the list of authorities provided by Mr Craigie, he has referred the Court to a decision of this court in Young NSWCCA 275, a case in which the court extended the time for leave to appeal against sentence. However, having regard to the conclusion I have reached as to the merits of the application for leave to appeal, it becomes unnecessary to consider whether it would, in any event, have been an appropriate case in which to extend time for leave to appeal. 29 In my opinion, leave to appeal in this case should be refused, and that is the order which I propose. 30 McCLELLAN J: I agree. 31 STUDDERT J: Leave to appeal is accordingly refused. **********

R v Rozynski

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