R v Sharrock

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0236; 98/31/0191; 98/31/0235. LOWER COURT JUDICIAL OFFICER : Woods QC DCJ

COUNSEL : Crown: R D Ellis. Appellant: R Burgess SOLICITORS : Crown: S E O'Connor. Appellant: T.A. Murphy. CATCHWORDS : Sentence - sentence in serious rape equal to or exceed sentence in murder case - statutory order - error of no affect. DECISION : Leave to appeal granted;; Sentence in relation to second victim be quashed; In lieu thereof, applicant be sentenced to a minimum term of penal servitude of ten years comecning 10 June 2001, expiring 9 June 2013; and additional term of six years commencing on 10 June 2013.; Sentences otherwise imposed by the sentencing judge are confirmed.

1 MEAGHER JA: On 6 May 1997 the applicant/prisoner entered, without invitation, the isolated home of an elderly lady who was aged 80. She was sitting in a wheelchair. She had one leg amputated. After threatening her with a knife the applicant had sexual relations with her. She did not consent and he knew that she did not consent. It was, to use old fashioned language, a most reprehensible and disgusting rape. It is the worst that I have come across in my ten years on the bench. The trial judge was fully entitled to sentence him in regard to this offence to sixteen years, being a minimum term of twelve years and an additional term of four years. 2 To make matters worse this was only one of a series of sexual assault cases for which he was tried. There was another crime of sexual assault of a slightly less serious character on 12 April 1997 and another on 25 May 1997. 3 The psychologist's report which was tendered on his behalf makes the matter, in my opinion, worse still as it demonstrates that he was suffering from no psychiatric illness, and incredibly enough, had no anti-social tendencies. If anything is left in the applicant's favour it should be dispelled by consideration of the fact he had an appalling prior record. The total of his Honour's sentences in this regard are as follows: that he fixed a minimum sentence totalling eighteen years with the total of all sentences required to be served of twenty two years. That is four additional years in regard to all the cases. The prisoner is to be eligible for release on parole on 9 June 2015 with an additional term expiring in four years in 2019. 4 Ms Burgess, who conducted an extraordinarily capable defence, made a number of points. She submitted that the sentence on the most important charge, the charge against the old lady, was too severe. In my view that submission must be rejected. It is difficult to imagine a case which could be more culpable than the case in question. It is idle to speculate about whether it could possibly have been worse but it is clearly within the category of the worst possible case. That would mean that on its own the sentence should be twenty years. His Honour then reduced the sentence from twenty years to sixteen for the reasons he gave in his judgment. 5 Ms Burgess also points out that potentially his Honour indicated that if you look at the totality of the sentences for the various offences referred to one reaches a figure in excess of the figure reached in many cases for homicide. That point is perfectly correct but I do not see where it leads. I can see no reason why in an appropriate case, and this is such a case, the sentences handed down for very serious rape should not exceed or equal the sentences handed down for a murder case. 6 The next submission with which we were concerned is one which is more defensible, that is Ms Burgess drew our attention to his Honour's remarks when his Honour was dealing with the serious offence against the elderly lady. His Honour made the following remark: "Special circumstances exist in structuring this sentence so as to justify a longer than usual additional period in (a) the complication caused by the accumulation of the sentences relating to victims one and three and (b) the need for this man to be closely supervised for a significant period on his release". 7 They are somewhat curious words because in fact twelve plus four is what his Honour had given to the prisoner which reflected the statutory order and does not require the justification of special circumstances. The matter is made more curious if one looks at the overall effect of all the sentences, that is his sentences in relation to all three events where his Honour says the overall effect of these sentences is a fixed minimum sentence totalling eighteen years, and a total of all sentences required to be served of twenty-two years. In light of what his Honour says about structuring the sentence to justify an additional period that makes his Honour's previous remarks even more difficult to understand. 8 It is clear that his Honour has got his mathematics confused. What his Honour has done, I think is misunderstand the arithmetic of the statute he was applying. He thought he had changed the statutory order but he had not done so. One thing he was quite clear about was that the minimum period in relation to the main charge in relation to victim 2 was that the minimum period should be twelve years and his Honour was perfectly clear that he was of the view that the additional period should be four years, whether that meant departing from the statute or not. For those reasons in my view if we set about the task of re-sentencing we would come to the same result though without any comments or alterations to the statutory order. 9 In those circumstances I think the error was immaterial and should have no consequences in this case. For these reasons I would propose the application for leave be granted and the appeal dismissed. 10 JAMES J: I agree with the judgment of the presiding Judge, subject to one qualification. That qualification relates to the division of the principal sentences between a minimum term and an additional term. 11 The applicant was sentenced to the following cumulative sentences: a fixed term of penal servitude of three years for the offence commenced against the first victim; a fixed term of penal servitude for three years for the offence committed against the third victim; and two sentences each concurrent with each other consisting of a minimum term of twelve years and two additional terms of four years for the two offences of aggravated sexual assault without consent committed against the second victim. It is unnecessary to refer to the other, concurrent sentences passed on the applicant. 12 The presiding Judge has already drawn attention to a passage in his Honour's remarks on sentence, in which his Honour said: "Special circumstances exist in structuring this sentence, that is the sentences imposed for the offences of aggravated sexual assault without consent, so as to justify a longer than usual additional period in (a) the complication caused by the accumulation of the sentences relating to victims one and three and (b) the need for this man to be closely supervised for a significant period on his release." 13 In this part of his Honour's remarks on sentence his Honour expressly found that two kinds of special circumstances within s 5(2) of the Sentencing Act existed, one arising from the accumulation of sentences and the other arising from the need of the applicant to be closely supervised for a significant period on his release from custody. However, as the presiding Judge has pointed out, his Honour did not give effect to those findings in the sentences which his Honour actually imposed for the offences of aggravated sexual assault without consent committed against the second victim. 14 I would not interfere with the length of the total terms imposed by his Honour and I would endorse the remarks made by the presiding Judge about the objective seriousness of the offences. However, in order to give effect to what his Honour said in his remarks on sentence I would propose that the sentences imposed for the offences of aggravated sexual assault without consent committed against the second victim be structured so that it consists of a minimum term of ten years and an additional term of six years. 15 Accordingly, I would propose that leave to appeal against sentence be granted, that the sentences imposed for the offences committed against the first and third victims be confirmed but that the sentences imposed for the offences of aggravated sexual assault without consent committed against the second victim be quashed and that in lieu of each of the sentences imposed by the sentencing Judge the applicant be sentenced to a minimum term of penal servitude of ten years commencing on 10 June 2003 and expiring on 9 June 2013 and an additional term of six years commencing on 10 June 2013 and that the sentences imposed by the sentencing judge otherwise be confirmed. 16 Those are the orders I would propose. 17 SPERLING J: In view of the trial judge's observations concerning special circumstances relative to the actual result in connection with the offence against the second victim, I am in serious doubt as to whether his Honour arrived at the result he intended. Accordingly, it is necessary that the sentence in that regard should be redetermined. 18 I agree with the orders proposed by his Honour Justice James. 19 MEAGHER JA: The orders of the court are those proposed by Mr Justice James.

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