R v WRIGHT

Facts

1. The Crown provided the court with a set of facts within the Crown tender bundle, exhibit A on sentence. Mr Hammond for the offender objected to the facts. The facts remain with the papers, but it was necessary for me to review the entire transcript in order to make findings on the facts.
2. The jury returned verdicts of guilty. The jury was directed a number of times that before they could return any verdict of guilty they would need to be satisfied beyond reasonable doubt of the truth accuracy and reliability of the victim. Consistent with those jury verdicts I find the facts as follows.
3. As at 15 March 2017 the victim lived in West Wyalong and a friend of the offender lived two doors down the same street. On 15 March 2017 the offender was at the house of his friend two doors from the victim drinking and celebrating his birthday. In the afternoon the victim went to the home of a friend in order to check on him. Walking home she saw the offender and his friend. The offender asked the victim for a smoke and she told him that she had one at home.
4. The offender followed the victim to her home and sat on a chair on the front porch. The victim gave the offender a cigarette and he then exposed his penis through the leg of his shorts and said, "look at this". The victim replied, "That's disgusting". That is drawn from p 15 lines 1 to 36 inclusive of the trial transcript. The accused denied exposing his penis.
5. It was submitted on behalf of the offender at the sentence hearing that I did not have to be satisfied beyond reasonable doubt that the offender did expose his penis. The offender exposing his penis is completely consistent with the verdict of guilty on count 1, noting that the exposing of the penis was one matter the Crown relied upon to prove the intent pleaded in count 1 on the indictment. I have already made the point that it is obvious from the verdicts that the jury accepted the victim beyond reasonable doubt. I am satisfied beyond reasonable doubt that the offender did expose his penis to the victim and said words to the effect of "Look at this" when he was on the porch of the victim's house.
6. The victim went inside her home and went to the toilet. When she came out of the toilet the offender was in the lounge room. The offender then grabbed the victim and pushed her on to the lounge. The victim ordered the offender out of her house but he said, "No, you're not going anywhere slut".
7. It is the actions of the offender in entering the house while the victim was in the toilet that constitutes the first count of the indictment. Clearly enough, given the verdict of guilty, the jury were satisfied beyond reasonable doubt that the offender had the specific intent to commit an indecent assault. There was ample evidence to support that, given that the offender had exposed his penis and what later occurred. The entry was through a closed but unlocked door.
8. The victim gave evidence (p 17 lines 36 and continuing) that the offender pushed her down by the hair and said, "I'm going to give it to you, you're nothing but a slut". With that the offender put his hands around the victim's throat and engaged in a choking action four or five times. The victim said (p 18 line 8) that she was scared and she thought she was going to die. The offender said a number of times, "You want it," and attempted to pull the victim's shorts down. This is the conduct that constitutes count 2. Again, clearly the jury accepted beyond reasonable doubt that the offender had the specific intent to commit an indecent assault on the victim.
9. So far as count 5 is concerned, the following appears, commencing at p 18 line 22: Q: What did he do? A: He tried to pull my shorts down, and I - he couldn't get them down so he got out the - he put his hand down the front and between my pants and put his finger in my vagina. Q: You said "finger". Singular? One finger? A: Yeah Q: How far inside your genitalia or your vagina did the finger go? A: He tried to get it right in there but he couldn't because I shut - tried to close my legs. Q: How long did this go on for? A: About four minutes, if that.
10. The complainant gave a number of conflicting answers so far as the time over which the indecent conduct occurred. It varied from about a minute to 4 to 5 minutes to 10 minutes. I could not be satisfied beyond reasonable doubt that it occurred for any more than about a minute. I understood the Crown accepted that at the sentence hearing.
11. The indecent assault however involved the offender forcibly putting his hand down the pants of the victim and inside her underwear touching her vagina skin on skin. The offending continued for approximately one minute. Given the evidence extracted above, it is not surprising that the jury could not be satisfied beyond reasonable doubt that penetration in fact occurred.

Assessment

1. Mr Hammond on behalf of the offender submitted that the offending in the first count is below mid-range. I understood the Crown to concede that that was the case. I agree. The entry into the house was through a closed but unlocked door and the entry was restricted to the room into which the offender initially entered through the door. The indictable offence to which the specific intent relates was Indecent Assault, which carries a maximum penalty of five years imprisonment. The offending occurred in the victim's home, which is a matter of statutory aggravation pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act, 1999.
2. The Crown submitted that count 2 was within the mid-range of seriousness. Mr Hammond on behalf of the offender submitted that it too was below mid-range. The Crown reminded the Court that the offending was an attempt and the assessment needed to be made in that context.
3. Mr Hammond helpfully referred the court to the decision in R v MW [2007] NSWCCA 291. Although dealing with a now repealed version of s 37 of the Crimes Act, the decision is still nevertheless useful in determining the seriousness of the matter. McClellan CJ at CL (Barr & Bergin (as her Honour then was) JJ 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. The maximum penalty provided by the statute is 25 years…."
4. Mr Hammond also referred the court to the decision of R v HQ [2003] NSWCCA 336. I read that decision. With respect it does not materially assist in the assessment of the seriousness of the matter presently under consideration save that the criminality with which the court was dealing with in the matter of HQ was more serious than that in the matter presently under consideration.
5. The offending occurred in the victim's home. The victim gave evidence that the offender said, "You're nothing but a slut" immediately before the conduct giving rise to count 2. Given the verdict, I see no reason not to accept that that was said. The offender is physically larger and stronger than the victim. The victim was scared and thought she was going to die. However, I note in particular the victim's description of the offence at pp 17-18 of the transcript. The evidence was as follows commencing p 17 line 37: A: That's when he said - like I said, he pushed me down by the hair and then he said 'I'm going to give it to you. You're nothing but a slut" then I said, 'You're not going to do anything to me' and he goes 'just watch me'. That's when he got his hands around my throat and he done this for like four, five times around my throat. He had his hands like that. … Q. I see you indicating with both of your hands grasping of your throat such that your fingers are towards the back and the thumbs are towards the front? A. Yeah. Where you breathe … Q. Yes. How did that make you feel as he grabbed you around the throat? A. I was scared. I thought I was going to die. Q. Could you breathe? A. No. Not at first, no. And I just kept trying to push him away, but he wouldn't leave. Q. What happened next? A. That's when he kept going 'you want it? You want it?' and all this sort of this. I said, 'no don't'. I said 'please just get out of my house. That's when he (not transcribable) downstairs to my vagina".
6. The conduct occurred over a short period of time, but was in the victim's home. The victim initially had difficulty with breathing but did not become unconscious. I accept her fear was very real. However, given the circumstances and the description of the offending by the victim I am of the opinion that the matter is slightly below mid-range.
7. Mr Hammond also submitted that the indecent assault was below mid-range. Again, the offending occurred in the victim's home. The offending lasted for approximately one minute. The offending involved skin on skin touching of the victim's vagina under her clothing. There is an element of actual violence to the offending. In all of the circumstances count 3 is well within the mid-range of seriousness.

Criminal History

1. The offender was born on 6 March 1987 and accordingly is now thirty-two years of age; he was thirty at the time of the offending. He has numerous matters recorded against him in his criminal history. Most of the matters are matters of violence including multiple convictions for assault occasioning actual bodily harm, contravene domestic violence order and intimidation. There are also offences of breaking and entering and serious driving offences. There is nothing of a sexual nature recorded against the offender. In all of the circumstances the offender has a criminal history that does not entitle him to any particular leniency.
2. Further, it is conceded that the offender was on parole at the time of the commission of the offences for which he now appears for sentence. On 2 December 2016 he was sentenced to a total sentence of 18 months imprisonment for Intimidate Police with non-parole period of 6 months. The total sentence expired on 14 December 2017. The commission of further offending while on parole is a factor of statutory aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. While a matter of statutory aggravation, this does not impact on the assessment of the seriousness of the matters.

Subjective case

1. No oral evidence was called from or on behalf of the offender. However the court is favoured with a comprehensive psychological report prepared by Ms Martens of LSC Psychology, which is exhibit 1 on sentence. The offender is the youngest of four children and he had a positive upbringing in West Wyalong. In this regard I note that the offender's parents were at court for the trial and at the sentence proceedings supporting the offender. His mother developed breast cancer when he was about thirteen years of age and this meant that he had large amounts of unsupervised time as his father was working and his mother was absent from West Wyalong receiving medical treatment.
2. The offender moved out of home when he was fifteen and it appears from the report that the offender has experienced times of homelessness. He has a good relationship with his parents but has no meaningful relationship with his siblings.
3. Further, the offender has experienced long periods of unemployment, which he attributes to his criminal history and being known in West Wyalong. He apparently has some prospects of employment in Townsville with a friend. No further details are given as to the nature or type of work involved.
4. The offender had a limited formal education, noting that he told the author of the report that he chose to consume alcohol and illicit substances rather than attend school. He left school part way through Year 8 and commenced work as a labourer. The author of the report maintains that the offender would benefit from support to find employment upon his release from custody.
5. The offender told the author of exhibit 1 that he is the healthiest he has been for a long time and attributed this to the cessation of ingestion of illicit substances. He was diagnosed with pancreatitis is 2014 as a result of alcohol and drug abuse. He is currently prescribed "Effexor" for symptoms of depression. Ms Martens opines (paragraph 20) that the offender's current symptoms did not suggest the presence of a current mental health disorder. Later at para 36 Ms Martens sets out that it is difficult to comment on the presence of any mental health disorder at the time of the offending behaviour because of the reported frequency and extent of substance use at the time.
6. Ms Martens also sets out in some detail the history of the offender's substance abuse. He commenced heavily using illicit substances in his teenage years. He had been regularly using cannabis and methyl amphetamine at the time of the offending. He has no intention of returning to the use of substances on his release. Ms Martens however recommends that considering the extent of the offender's drug use he will likely require intensive intervention on release in the form of residential rehabilitation. It was this recommendation that in part led to a submission that the court would make a finding of special circumstances.
7. The sentence imposed will be substantial and by far the longest sentence so far imposed on the offender. He will need some assistance in reintegration into the community and I accept that given his extensive poly-drug abuse over the years that he will require the intensive intervention recommended by Ms Martens. In those circumstances I will make a finding of special circumstances. However, such a finding will not be particularly significant.
8. In addition to exhibit 1, two testimonial references were tendered on behalf of the offender. These became exhibit 2 on sentence. The first of those is from the offender's mother, who makes it clear that the offender continues to have the support of his family and that the offender can reside with his parents upon his eventual release from custody. Mr Maxwell Lambe, the other referee, maintains that the offender has some good qualities and has a good work ethic.

Competing submissions

1. Mr Hammond submitted extensively on the seriousness of each of the three offences for which the offender appears for sentence. I have dealt with those submissions earlier in these remarks when making findings on the assessment of the criminality.
2. So far as the subjective case for the offender is concerned the court was reminded of the good relationship that the offender has with his parents and that his parents were at court supporting him. It was put that the offender had to be self-sufficient given that his mother was absent for extended periods receiving medical treatment. While this is so it appears from the psychological report that the offender made many bad choices.
3. The submissions continued that the offender got in with the wrong crowd and he was not receiving emotional support, which was the catalyst to the offending behaviour. The psychological report supports that submission to an extent. The offender's apparent good work ethic was emphasised with reference to Mr Lambe's reference.
4. It was put and I accept that the criminal history should be dealt with on the basis that it does not assist the offender. The lack of sexual offences on the offender's record was emphasised. Given the offender's record and the fact that the offences for which the offender appears for sentence were committed while the offender was subject to parole I am quite unable to find on balance that the offender is unlikely to re-offend.
5. There are some positive signs so far as rehabilitation is concerned. The offender is now abstinent from substances and he is receiving treatment for his depression. A submission was made, which I accept, that he wishes to remain compliant with the medication. He does enjoy considerable family support. It seems from the report of Ms Martens that the offender has gained insight into his offending behaviour and the connection between his past offending and substance abuse. Even so, I am not prepared to find on balance at this point in time that there are good prospects of rehabilitation. Certainly there are some positive signs. However much will depend on whether the offender remains abstinent and how meaningfully he engages with the appropriate agencies upon his eventual release.
6. There is no material which would justify a finding on balance that the offender is remorseful.
7. Mr Hammond submitted on behalf of the offender that given that all the offending occurred within a minute or so and that there was considerable overlap in the offences all sentences could be concurrent. In this regard counsel referred the court to the decision of Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] and MAK & MSK v R (2006) 167 A Crim R 159 at [15]-[18]. Howie J at [27] in Cahyadi said: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
8. As I observed at the sentence hearing, the principle goes back at least to what was said by Street CJ in R v Holder [1983] 3 NSWLR245 at 260, namely: "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
9. The offences were part of a single episode of offending that occurred over a short period of time. There are common factors to each of the offences and in particular this is so far as counts 1 and 2 are concerned with the specific intent pleaded in both offences. The Crown submitted that there should be partial accumulation between the sentences for each of the three offences, but this submission was not expanded upon in any way.
10. However, to my mind the sentences should not be wholly concurrent. It seems to me that the sentences must reflect the separate criminality of entry into the victim's home, the attempt to choke and the actual indecent assault. However, the level of accumulation would not be significant and in respect of counts 1 and 2 the extent of the partial accumulation would be slight.
11. The Crown submitted, in effect by agreeing with something I put to the Crown, that given the verdicts returned by the jury any factual dispute would be determined on the basis that the jury accepted the victim beyond reasonable doubt. Brief submissions were made as to the seriousness of the offending which have already been dealt with. The Crown submitted that the offender was a bully and a thug and in the past has been a hedonist. Further, the Crown submitted that the offender has not shown any personal responsibility.

General Remarks

1. I will need to give effect and have regard to ss 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided, particularly so far as count 2 is concerned, the conduct and the seriousness of the offending, noting that the offender was on parole at the time of the offending, a sentence of imprisonment is the only appropriate sentence. No submission was made to the contrary.
3. The parties agree that the sentence and non-parole period should commence on 22 December 2017.
4. I am of the opinion that this is an appropriate matter for the imposition of an aggregate sentence. These remarks have been reduced to writing and a copy of them will be made available to each of the parties upon pronouncement of sentence.
5. I will need to indicate the sentences that would have been imposed if separate sentences had been imposed. Those sentences are as follows: 1. In respect of count 1 a total sentence of three years imprisonment; 2. In respect of count 2 a total sentence of 6 years imprisonment; and 3. In respect of count 3 a total sentence of 2 years imprisonment.

Orders

1. In respect of each of the offences where verdicts of guilty were returned by the jury the offender is convicted.
2. I invoke s 53A of the Crimes (Sentencing Procedure) Act, and impose an aggregate sentence.
3. The offender is sentenced to an aggregate sentence of 7 years and 3 months with a non-parole period of 5 years. The non-parole period is to date from 22 December 2017 and will expire on 21 December 2022. The balance of term on parole will commence on 22 December 2022 and will expire on 21 March 2025.
4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. The non-parole period is approximately 70% of the total sentence, which reflects a finding of special circumstances the reasons for which have been enunciated within these reasons but include a need for assistance in reintegration into the community and intensive assistance in respect of issues relating to substance abuse.

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