R v Shepherd

LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0148 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60342/02

HEYDON JA HULME J HIDDEN J Thursday, 6 February, 2003 REGINA v Gregory SHEPHERD Judgment 1 HEYDON JA: I agree with Hidden J. 2 HULME J: Section 61I of the Crimes Act provides: "Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to that sexual intercourse is liable to imprisonment for 14 years." 3 On 2 February 2001 Gregory Shepherd committed an offence against this section upon a defenceless 69 year old woman, at night, in her own home after he had entered it for that purpose. Unsurprisingly, Williams DCJ, before whom the Respondent appeared for sentence, described the offence as a "very serious matter" and referred to the age of the victim and the fact the offence occurred in her own home as "very severe aggravating features". He was right to do so. As Wood J said in a passage quoted in R v Spinks (unreported, CCA, 7 August 1997), "Elderly or disabled or defenceless people are entitled to feel safe in their own homes and to look to the Courts to imposes sentences which will deter similar attacks". While that was a case of murder, the principle applies generally. An attack in one's home is regarded as an aggravating feature - R v Previtera (1997) 94 A Crim R 76 at 78. And see R v Preston (unreported, CCA, 9 April 1997), at p41 where it was said that the criminality of a sexual assault was aggravated when committed against a defenceless woman in the sanctity of her own home. 4 Despite the remarks which I have quoted and saying that there needed to be a significant element of general deterrence and some element of specific deterrence reflected principally in the minimum term and after allowing the Respondent a discount of 1 year on account of his plea of guilty, his Honour imposed a sentence of imprisonment of 4 years including a non-parole period of 2 years. The Crown submits that such a sentence does not reflect his Honour's remarks or the gravity of the offence and is manifestly inadequate. I agree. 5 In approaching the question of whether the sentence imposed on the Respondent was manifestly inadequate, it seems to me there is advantage in looking in the first instance at the relevant principles which govern the determination of any sentence. The first consideration is the relevant statutory provision. I have set that out above. 6 It is an elementary principle of sentencing that a maximum penalty laid down by the legislature "is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v R (1987) 163 CLR 447" - Veen v R [No 2] (1988) 164 CLR 465 at 478. In lesser cases, "In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing (the offence)" - R v Peel (1971) 1 NSWLR 247 at 262. See also Dodd (1991) 57 A Crim R 349 at 354. 7 It is also relevant to bear in mind the principal factors to be reflected in sentencing - "the protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform" - Veen v R (1987-1988) 164 CLR 465 at 476. 8 It is also appropriate to recognise that there will be cases falling within s61I which are significantly worse than that here. For example, significant pre-meditation would have aggravated the objective criminality. Neither is the case one where the victim has suffered a devastating psychological impact. In saying that, I do not intend to minimise the impact which the evidence shows the victim has suffered. As she says in her victim impact statement, she has since felt the need to affix security screens to her house but still becomes nervous and scared. 9 Mr Craigie, appearing for the Respondent suggested also that recognition should be given to the absence of acts of degradation and violence but it does not seem to me that, in the context of s61I much, if any, weight can be given to these matters. Most, if not all of such acts would have meant the Respondent committed offences under other sections of the Crimes Act, rendering him liable to either additional or heavier penalties than provided for in s61I. 10 But while it is clear that the Respondent's offence did not fall into a worst case, it was also a long way from the bottom in terms of seriousness. There was no conduct of the victim which may have encouraged the Respondent or led him on. It was, as has been said, an attack on a defenceless 69 year old woman at night, in what should have been the sanctity of her own home, and where the Respondent had no right to be. When regard is had to these aggravating features it seems to me beyond argument that, in terms of its objective seriousness, the offence fell no lower than the middle of those for which s61I provides. 11 Of course, any sentencing judge must also have regard to the subjective circumstances of an offender. But these were not wholly favourable to the Respondent. In an opinion his Honour obviously accepted, Miss Robilliard, a psychologist whose report was tendered on behalf of the Respondent, said that the Respondent was at medium to high risk of re-offending. Indeed his Honour said that this was a case where there had to be some element of specific deterrence reflected principally in the minimum term. 12 The Respondent was aged 19 at the time of the offence but, given its nature, it is impossible to regard his youth as a significant mitigating factor. As was said in R v Tran [1999] NSWCCA 109, at [14]:- "The nature and circumstances of the offence were accordingly such that the Respondent should have been considered as having conducted himself like an adult, with the consequence that relatively little weight should have been given to his age." 13 That was a case of armed robbery but the principle is equally valid in the case of sexual assaults. Thus in R v AEM Snr [2002] NSWCCA 58, where the offender was 19 years and 5 months at the time he, with two others, had committed, over a 3 to 4 hour period, a series of aggravated sexual assaults and connected offences on two 16 year old females, this Court said [171-172]:- "However, and giving full recognition to that principle, it must be said that it will be rare that the relative youth of an adult offender will be a reason for giving less weight to general deterrence than otherwise would be the case for offences of the kind which are before the court. There was nothing in AEM Snr's individual circumstances which would cause us to consider his youth as a factor which calls for less weight to be given to general deterrence. There was no suggestion that AEM Snr did not understand the nature of his conduct. His conduct during the course of these attacks, especially in the matter referred to in the next paragraph, shows that his youth can play no role in any way in diminishing the extent of his culpability." 14 The Respondent is an aboriginal and his Honour felt entitled to give him some consideration within the confines of R v Fernando (1992) 76 A Crim R 58 on that account. Although there had been some stress within the Respondent's family in the past, including excess consumption of alcohol by both of his parents, by the time of the offence his family situation would seem to have become stable. 15 His Honour seems to have accepted that alcohol was a contributing cause of the offence and it is clear that alcohol and cannabis abuse are problems the Respondent had for some years prior to February 2001. By the time of sentence the Respondent was addressing his alcohol problem. It is also appropriate to record that the Respondent's problems with alcohol would seem to have commenced in response to stress imposed on the Respondent when only 14 and when, it would seem, at least one parent was also abusing it. In these circumstances, it seems to me that, as in the case of other addiction not the result of a willed act - R v Henry (1999) 46 NSWLR 346 at 383-5 - the Respondent's intoxicated state at the time of his offence should be regarded as a mitigating factor. 16 It seems clear that he was remorseful, if not "disgusted in myself" after the offence. The Respondent had not been to prison before - a fact which, together with the Respondent's age led his Honour to find special circumstances. The Respondent's criminal antecedents seem to have been confined to 3 offences of dishonesty in 1996 and 1997. 17 The courts have made clear that a sentence imposed must reflect the objective seriousness of an offence. As was said in R v Camilleri (unreported, CCA, 8 February 1990). "In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community.

It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment, that is the protection of the public." 18 And this principle that the sentence must reflect the objective seriousness of the offence extends to the non-parole period - R v Simpson (2001) 53 NSWLR 704 at [63]. 19 In my view neither the 4 year nor the 2 year component of the sentence imposed on the Respondent accords with these principles. Nor do they appropriately reflect the 14 year maximum Parliament has prescribed for the offence or the principles for which I have cited the decisions of R v Peel, Dodd and Veen v R [No 2]. Even when all the matters favourable to the Respondent are taken into account, I find it impossible to regard the offence as one only about one third up the range of seriousness, as his Honour's starting point of 5 years imprisonment would suggest, or one where, even after allowance is made for the Respondent's plea and the existence of special circumstances, a total sentence of 4 years and a non-parole period of 2 years is within the legitimate range of the sentencing judge's discretion. Against the statutory criteria set out in s61I, both terms seem to me manifestly inadequate. 20 Furthermore, with respect to those who take a different view, the suggestion that a 2 year non-parole period is appropriate for a drunken youth who enters the home of a defenceless 69 year old woman at night, and then rapes her, is calculated to offend, rather than accord with, the general moral sense of the community. 21 I have so far approached the matter by reference to what Parliament has provided and basic sentencing principles and without regard to the Judicial Commission statistics or other sentences imposed for offences under s61I. Given the fact that the statistics contain no specification of the circumstances of the offences reflected in them, they are of limited assistance. It may be noted that they show median head sentence and non-parole periods are 4 years and 2 years respectively but when one has regard to the fact that of the 177 cases reflected in the statistics from January 1995 to December 2001, only 7% of head sentences and no non-parole periods exceeded half of the statutory maximum of 14 years, I am led yet again to the impression that inadequate attention is being paid by sentencing judges to what Parliament has prescribed. 22 Nor in the circumstances is it likely to be profitable to attempt a detailed review of the cases reflected in the statistics or of any significant selection of them. Most will but reflect the application, correctly or incorrectly, of the principles to which I have referred to facts different to a greater or lesser degree from those here. But as Hidden J has referred to R v Wotherspoon (unreported, CCA, 4 December 1992), R v Balfour (unreported, CCA, 23 July 1996), and R v Radford (unreported, CCA, 4 March 1998), it may be appropriate to say why these decisions do not persuade me from the conclusion at which I have arrived. 23 In R v Wotherspoon, this Court allowed a Crown appeal from a sentence of 2 years periodic detention, imposing a sentence which included minimum and additional terms of 2 years. The Court said that this was less than should have been imposed at first instance. The offence occurred in the complainant's home which was regarded as an aggravating circumstance even though the complainant had admitted the offender. The two persons had had a close relationship, including a sexual one, for some 4 years which had ended about a month before the offence. It may be that the psychological impact of the offence on the complainant was worse than that suffered by the victim in this case but the offender was himself considerably disturbed by the breakdown of the relationship. The offender's pre-sentence bail conditions had also been very restrictive. 24 In R v Balfour this Court dismissed an appeal against a sentence comprised of a minimum term of 2½ years and an additional term of 2 years. Again the complainant and offender had had prior contact including sexual relations. On the night of the offence, conversation between them had "led to a reasonable conclusion on the part of the applicant that the complainant would be willing to engage in sexual intercourse with him on that night". Both were affected by liquor, he well affected. She suggested that they go to her place and they left where they were in her vehicle. On the way the offender commenced to fondle her. She then said "It's just not going to work" but the offender would not take no for an answer. When the car stopped he raped the complainant. 25 The offender had been systematically sexually abused as a child and this had had a profound effect on his psycho-social development and precipitated excessive indulgence in alcohol. Grove J, with the assent of the other members of the Court, said that had it not been for findings the sentencing judge had made favourable to the offender in this regard a much higher sentence should have been imposed. 26 In R v Radford this Court dismissed an appeal against a sentence which included a minimum term of 3½ years and an additional term of 1½ years. The Appellant had pleaded guilty on the morning of the trial. He had attacked a woman who knew him by nickname and was giving him a lift one evening in her vehicle. The penetration was only digital but there was a significant degree of violence on the offender's part directed to overcoming the victim's resistance to his endeavours. The report is brief but it does record that the offender had had a "somewhat disturbed personal background and history". He had "a criminal record involving some offences of violence and some of dishonesty, but he had never previously been sentenced to any significant custodial sentence". 27 I regard the objective facts in this case as significantly worse than in any of the first 2 of these cases and, if more than lip service is afforded to the courts' frequent reference to the sanctity of a person's home, worse than the facts in the third. I regard the subjective circumstances here as no more deserving of leniency than those in R v Wotherspoon and R v Balfour. I would need more information prior to making any comparison between the Respondent here and Mr Radford. 28 This being a Crown appeal, and there being nothing which argues for a more lenient approach, the sentence which this Court should impose is one which falls at the bottom of the range of those properly available at first instance - R v Rose (unreported, CCA, 23 May 1996), R v Tony Giam (No 2) [1999] NSWCCA 378 at [28], R v Hanley (unreported, CCA, 9 October 1998). In my view such a sentence would involve a full term of 6 years and, in recognition of the existence of the special circumstances his Honour found, a non-parole period of 3½ years. 29 HIDDEN J: This is an appeal by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act, against a sentence passed upon the respondent in the District Court after he pleaded guilty to a charge of sexual intercourse without consent, an offence under s 61I of the Crimes Act, carrying a maximum sentence of fourteen years imprisonment. He was sentenced to imprisonment for four years, to date from 28 January 2002, with a non-parole period of two years.

Facts 30 A helpful summary of the facts is to be found in the Crown's submissions: "Late in the evening of 2 February 2001, the victim, Mrs Nell Cross was at her home in Warren. Whilst she was preparing to go to bed, she heard noises which sounded like an intruder in the house. Mrs Cross went into the kitchen and caught a glimpse of someone later identified to be the respondent. She said "I know you are there, what are you doing?" The intruder left through the back door and Mrs Cross then locked it. The intruder was the respondent. Shortly afterwards, Mrs Cross was standing in the hallway when she heard the sound of someone entering the house through the window which faced the carport. It was the respondent. The respondent confronted Mrs Cross, pushed her into the bedroom, forced her onto the bed, placed his hand over her mouth, and forced her to have penile-vaginal intercourse. During the assault, Mrs Cross struggled and attempted to remove the respondent's hand from her mouth so that she could breathe. After the intercourse there was some conversation. The respondent then went into the kitchen, obtained a knife and returned to where Mrs Cross was standing. Mrs Cross asked the respondent to leave. He did so, exiting through the back door. The following morning Mrs Cross contacted police. A formal statement outlining what had happened was obtained from her.

A forensic examination made of Mrs Cross' home located fingerprints on the base of the window where the respondent had entered. These fingerprints were found to match those of the respondent. Dr Neil McCarthy physically examined Mrs Cross in accordance with the sexual assault protocols. Swabs were taken of her vagina where semen was detected and DNA samples obtained for later analysis.

At about 8.00 pm on 3 February 2002, the respondent was arrested. He declined to participate in an electronically recorded interview. A buccal swab was obtained from the respondent. The DNA from the swab was compared to the samples taken during the physical examination of Mrs Cross and the result was a perfect match.

Police also obtained a statement from a Mr Dennis Riley, who placed the respondent in close proximity to Mrs Cross' home at the time of the offence." 31 The respondent gave an account of the offence to a psychologist, Ms Anna Robilliard, which the sentencing judge accepted. He had been drinking heavily since mid morning that day. He first entered the victim's home to steal money so that he could continue drinking. He took her handbag outside and removed $50 from it. He had difficulty describing his state of mind when he re-entered the house, but he acknowledged that he was "thinking about sex." It is unclear why he picked up the knife but he did not threaten the victim with it. 32 It is apparent that there was a strong Crown case and the respondent pleaded guilty on the day the matter was listed for trial. Nevertheless, his Honour accepted that the plea was offered as soon as he had obtained appropriate legal advice. Apart from its utilitarian value, the plea was seen as an expression of his remorse. His Honour's starting point was a sentence of imprisonment for five years, which he reduced to four years on account of the plea. 33 His Honour found special circumstances in the respondent's youth and the fact that this was his first custodial sentence.

Subjective case 34 The respondent is Aboriginal. He was nineteen years old at the time of the offence and is now twenty. He has a minor criminal record, comprising offences of dishonesty but no offences of a sexual nature. 35 He was brought up in the Warren area. His family background was not without its difficulties but it was stable enough. A significant event was the death of his stepbrother when he, the respondent, was fourteen years of age. This had an impact upon the whole family, but particularly upon him. He began to drink and to smoke cannabis. He left school in Year 9 and his drinking increased. 36 He told Ms Robilliard that he had moderated his drinking since the offence, but acknowledged a continuing drug and alcohol problem. He said that he wanted to undergo a rehabilitation program and that he would try to attend drug and alcohol courses while in custody. He also told her that he was disgusted with himself because of the offence. 37 Ms Robilliard's tests found him to be of average intelligence, although he displayed features of a borderline personality disorder. He achieved scores consistent with severe drug and alcohol abuse. One test, designed to eliminate the probability of sexual recidivism, placed him in the "medium/high risk of re-offending category." Ms Robilliard's report does not explain how this result was arrived at. As I have said, he has no record of sexual offences and the evidence about his background does not disclose any sexually aberrant behaviour. 38 Ms Robilliard saw the respondent's intoxication as "a very significant contributing factor" to his offence, but not an adequate explanation for it. She reported that he needs professional help to address his sexual behaviour, as well as drug and alcohol problems. 39 In his remarks on sentence his Honour referred to the respondent's aboriginality, although he noted that he had a relatively stable background which was different from the circumstances of dispossession and deprivation referred to by Wood J (as he then was) in Fernando (1992) 76 A Crim R 58.

The appeal 40 Clearly, this was a very serious and disturbing offence. It was committed against an elderly woman at night in her own home. The respondent was a young man, much stronger physically than she. These matters were recognised by his Honour and described by him as "very severe aggravating features." His Honour also expressly recognised the need for deterrence, both general and specific. In his remarks, his Honour said: "The prime purpose of punishing individuals for offences is the protection of the community and here there must be a significant element in determining the sentence, having regard to the protection of the community, particularly having regard in this case to the victim's age. She is at the most vulnerable end of our community and people in that age group must be protected from these sort of depravations. In that regard in my view there needs to be a significant element of general deterrence. As far as Mr Shepherd is concerned personally the offence is somewhat inexplicable. Miss Robilliard obviously feels that there are unresolved areas that need to be dealt with. But clearly there has to be some element of specific deterrence that is reflected principally in the minimum term to be applied to this matter." 41 The Crown's complaint in this appeal is that the sentence fails to reflect those observations. It was submitted that both the head sentence and the non-parole period are manifestly inadequate. The Crown prosecutor did not suggest that special circumstances should not have been found, but it was argued that the resultant non-parole period fails to mark the respondent's criminality: R v Simpson [2001] NSWCCA 534, per Spigelman CJ at para 54 ff. 42 His Honour was supplied with Judicial Commission sentencing statistics for the offence under s 61I. I am well aware of the caution, frequently expressed by this Court, with which those figures should be approached. Nevertheless, they disclose that both the head sentence of four years and the non-parole period of two years are at about the mid point of the range of sentences recorded. In addition, both the sentence and the non-parole period are roughly conformable with sentences upheld, or imposed, by this Court in three cases dealing with offences under s 61I to which we were referred: R v Wotherspoon (CCA, unreported, 4.12.92), R v Balfour (CCA, unreported, 23.7.96) and R v Radford (CCA, unreported, 4.3.98). 43 Notwithstanding the respondent's youth and the subjective case he was able to make out, the objective facts of this offence are such that a significantly higher sentence might properly have been imposed. However, the sentence which his Honour passed, while undoubtedly lenient, does not demonstrate such inadequacy as to call for the intervention of this Court on a Crown appeal. 44 I would dismiss the appeal. **********

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