Reaburn v R

Avondale Motors (Parts) Pty Limited v FCT (1971) 45 ALJR 280 at 283 Elyard v R [2006] NSWCCA 43 Fahs v R [2007] NSWCCA 26 Mulato v Regina [2006] NSWCCA 282 R v Davies [2004] NSWCCA 319 at [6] CASES CITED: R v Engert (1995) 84 A Crim R 67 at 71 R v Hung Lo [2005] NSWCCA 436 R v Sangalang [2005] NSWCCA 171 R v Simpson (2001) 53 NSWLR 704 R v Way (2004) 60 NSWLR 168 R v Wickham [2004] NSWCCA 193 Vu v R [2006] NSWCCA at 188 at [52]

PARTIES: Vance Matthew Reaburn - Applicant Crown - Respondent

COUNSEL: AP Cook - Applicant R Herps - Crown

SOLICITORS: SE O'Connor, Solicitor for Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/2594

SULLY J BELL J HOEBEN J

Friday 16 March 2007 Vance Matthew REABURN v REGINA Judgment 1 SULLY J: I agree with Hoeben J. 2 BELL J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence The applicant was arrested on 28 September 2005 and subsequently pleaded guilty at the Downing Centre Court on 24 January 2006 to the following offences:

Count 1 - That on 26 September 2005 at Dee Why the applicant did have sexual intercourse (oral) with the victim without her consent and knowing that she was not consenting in circumstances of aggravation in that immediately before the offence he threatened to inflict actual bodily harm on the victim by means of a kitchen knife. This offence was contrary to s61J(1) of the Crimes Act 1900 and carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.

Count 2 - That on 26 September 2005 at Dee Why the applicant did have sexual intercourse (vaginal) with the victim without her consent and knowing that she had not consented. This offence was contrary to s61I of the Crimes Act 1900 and carried a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.

Included on a Form 1 to be taken into account in relation to count 1 was the offence of assaulting the victim and thereby occasioning actual bodily harm, contrary to s59(1) of the Crimes Act 1900. 4 The sentencing proceedings were heard in the District Court by Nield DCJ on 24 March and 12 April 2006. Bail was revoked from 24 March 2006. His Honour passed sentence in respect of the offences on 26 April 2006. 5 The sentences imposed were as follows:

Count 1 (including the Form 1 matter) - Imprisonment with a non-parole period of 9 years to commence on 24 March 2006 and to expire on 23 March 2015 with a balance of term of 3 years to expire on 22 March 2018.

Count 2 - Imprisonment with a non-parole period of 4 years and 4 months to commence on 24 November 2012 and to expire on 23 March 2017 with a balance of term of 3 years and 8 months to expire on 23 November 2020. 6 Because count 2 was partially concurrent and partially cumulative on count 1, the overall sentence was imprisonment with a non-parole period of 11 years with a balance of term of 3 years and 8 months. 7 The applicant seeks leave to appeal from those sentences.

Factual background 8 The victim of the offences was a Japanese tourist who was sharing a flat with the applicant's girlfriend. On 26 September 2005 at about 9.55am while his girlfriend was away from the flat the applicant entered the victim's bedroom naked. The victim screamed and moved to a corner of the bedroom. The applicant covered the victim's mouth with his hand and threatened to stab her if she continued to scream. At that point he did not have a knife. He dragged the victim from the bedroom into the lounge-room where the victim broke free. The applicant got a knife from the kitchen as the victim was trying to open the front door. The applicant took hold of the victim and threatened her with the knife holding it in front of her face. 9 When the applicant made an attempt to push the knife away from her face, she suffered a small cut on her right hand. The applicant took her back into the bedroom and told her to lie down on the bed, to take off her clothes and untie her hair. When the victim was naked, the applicant threw away the knife and rubbed moisturising cream on her thighs, stomach, chest and vagina. He then told her to suck his penis. She complied but was crying all the time. 10 The applicant left the bedroom, got an eye mask and returned and blindfolded the victim with it. He told her to get on all fours and inserted his penis into her vagina from the rear. She was still crying. He thrust his penis in and out of her vagina and told her that if she kept quiet it would all be over soon. He did not use a condom. He ejaculated on the bed. 11 While this was going on, the applicant said to the complainant "No-one will believe you because there's no proof of what happened. If you tell somebody I will do the same thing to you again. Everyone will think we are friends like this anyway once they know we exchanged SMS. Since the moment I first met you, I always wanted to have sex with you." The applicant then went into kitchen and washed the knife. He removed the sheets from the bed. 12 Fearing that no-one would believe her, the victim obtained, activated and secreted her video camera so as to record part of the conversation that took place between her and the applicant after he had returned to the room and each of them had dressed. The transcript of the recorded conversation shows the applicant apologising to the victim for what he had done. 13 A victim impact statement was put in evidence. It disclosed a significant degree of trauma suffered by the victim. The victim was afraid that she might have contracted AIDS. She was in a state of apprehension about this until the return of test results in the following January showed that this was not the case.

Subjective matters 14 The applicant was born on 6 August 1970 at Moora in Western Australia. His father left the family when the applicant was about three or four. The family thereafter lived in a variety of places, including Queensland and the Northern Territory, before settling in New South Wales. In New South Wales his mother entered into a new relationship which ultimately led to marriage. Following the marriage the family moved back to Western Australia and lived in various rural areas including Kalgoorlie. 15 It is not necessary to set out in detail the course of the applicant's life thereafter. It would be fair to say, however, that he had a highly disrupted and fragmented upbringing. The applicant's stepfather was abusive to him and in 1978 he was placed in emergency foster care by the Western Australian Department of Community Services. This occurred because of injuries he had sustained at the hands of his stepfather. 16 Thereafter until 1987 the pattern of his life comprised periods of living with his family culminating inevitably with him being returned to the Department of Community Services. There were instances of him being abandoned by his family in remote locations in the care of "friends". He spent more time in the care of the Department than with his family. He was made a ward of the state in December 1983. Not surprisingly in March 1984 he said that he had no desire to have any further contact with his family. 17 He developed psychological problems and was undergoing psychiatric and psychological treatment between 1985 and 1987. In January 1985 the following opinion was expressed: "Vance presents as an overtly passive, compliant lad who is uncertain of his own self. The combination of parental rejections and foster placement moves had left him feeling vulnerable but as wanting to "fit in" and be accepted by adults." 18 In March 1987 another psychologist expressed this opinion: "I feel he has coped well with his traumatic background in that he displays a desire to relate positively, to gain acceptance from adults and to accept responsibility (eg his involvement as a cub leader). There is however evidence of emotional immaturity, anxiety, impulsivity and lack of insight consistent with Vance's history of emotional deprivation, abuse and rejection." 19 Unsurprisingly, given the nature of his upbringing, he developed problems with alcohol and illegal drugs. During 2001 there were nine attendances at Royal Prince Alfred Hospital for treatment for drug and alcohol problems, depression and suicidal ideation. In July 2001 he was admitted to the Rozelle Hospital for drug rehabilitation, the relevant drugs being opoids, cocaine and cannabinoids. He was admitted to the Phoenix Unit at Manly Hospital in November 2001 with a history of consuming cocaine, heroin and pills in significant quantities. He sought medical assistance in December 2002 in relation to his drug and alcohol dependency and depressive illness. 20 He then appears to have been drug and alcohol free for over three and a half years until 2005. It is not clear why he relapsed. Relevant to these offences is the fact that on 18 August 2005 he was admitted to the "Foundation House Rehabilitation Program" as a voluntary patient and remained for twenty eight days and appeared to satisfactorily complete the program. 21 Despite his drug and alcohol problems, he was in employment during much of the period. Between March 1997 and September 1998 he was employed at the Haberfield Post School Options Program as a social educator. He performed occupational therapy for disabled people, worked in a funeral parlour and worked at a child care centre. In 2004 he was made redundant at the Seaforth Child Care Centre. Thereafter he worked casually as a child care assistant until April 2005. He has been unemployed since that date. 22 The report from a psychologist, Ms Duffy, prepared for the sentencing proceedings seems to me to adequately bring together the various threads of the applicant's unfortunate background. "Your client Vance Reaburn gives a history of a dysfunctional, chaotic as well as abusive family background. The family moved many times, he was subject to frequent beatings from his stepfather to the extent that the Authorities intervened and he was placed into foster care. As a result of these early abusive experiences, Vance has felt extremely disconnected from his family of origin and has had very little to do with them during his adult years … Having lacked stable constructive adult role models it appears his own level of self identity is somewhat weak and he cannot control his emotions. Vance has a history of self destructive behaviour amounting to self mutilation and occasional suicide attempts. Some suicidal attempts often occurred in response to abandonment by others … To cope with these emotional problems Vance has had at various times been dependent on substances including alcohol, cannabis, LSD and more recently heroin and cocaine. To his credit he underwent comprehensive rehabilitation and follow up treatment and was drug and alcohol free for over three and a half years until July 2005. … Vance has at times engaged in impulsive and self destructive behaviour, consistent with his borderline personality. On this occasion, however, his behaviour was also destructive and very frightening for the victim. His actions show an inability to control his behaviours and emotions and these aspects of his personality need to be addressed in a therapeutic setting." 23 Despite his unfortunate background and substance abuse, his criminal record is not particularly serious. It comprised a break enter offence and some stealing offences in Western Australia in November 1983, three further offences of false pretences in Western Australia in May 1991 and break enter and steal and a number of make and use a false instrument offences in New South Wales in November 2001. He was sentenced to community service orders in respect of those offences in New South Wales and placed on a s9 bond. All of the offences involved dishonesty. There were no offences involving violence or sexual assault. This will be the first time that he has served a term of imprisonment. 24 As can be seen from the transcript of the conversation recorded by the victim immediately following the offences, he expressed considerable remorse and contrition for what he had done. This was confirmed in the evidence which he gave before the sentencing judge and in a letter which he sent to the victim. He said that he was horrified by the reality of what he had done. 25 It was common ground that the applicant pleaded guilty at the earliest opportunity.

Remarks on sentence 26 His Honour reviewed the applicant's unfortunate history and concluded that it had nothing to do with the commission of the offences. 27 His Honour assessed each of count 1 and count 2 as serious offences but found: "That each falls close to but not within the middle range of seriousness of offences of its kind and that, therefore, I am not required to set the non-parole period as a non-parole period for either offence. However although I am not required to set the standard non-parole period as the non-parole period for either offence, the standard non-parole period is nonetheless a benchmark or guideline for an appropriate sentence for each offence." (ROS 10.1) 28 His Honour found that the plea of guilty had been entered at the earliest opportunity and that the applicant was therefore entitled to a discount on sentence of twenty five percent. His Honour found that the applicant had shown some remorse, that he had reasonable prospects for rehabilitation and that he was unlikely to re-offend in this way. 29 His Honour then took into account the aggravating and mitigating features referred to in s21A of the Crimes (Sentencing Procedure) Act 1999. By way of aggravating features his Honour found that subsections 2(g) and 2(n) applied, ie that the injury, emotional harm, loss or damage caused by the offence was substantial and that the offence was part of a planned or organised criminal activity. By way of mitigating factors his Honour found that subsections 3(g), (h), (i) and (k) had been made out, ie that the applicant was unlikely to re-offend, that he had good prospects of rehabilitation, that he had shown remorse for the offence and that he had entered an early plea of guilty. His Honour also noted that personal deterrence was not particularly important because of the unlikelihood that the appellant would re-offend. Nevertheless, his Honour thought that general deterrence remained an important consideration in offences of this kind. 30 Having carried out that analysis his Honour concluded: "34 When I take into account the purposes of sentencing, the objective features of the offence, the subjective features of the offender and the aggravating and mitigating factors, including the discount for the guilty pleas, I have determined that the appropriate non-parole period for the aggravated sexual intercourse without consent offence is 9 years and for the sexual intercourse without consent offence is 6 years. 35 I have referred already to the objective circumstances of the offence, the subjective features related to the offender and the aggravating and mitigating factors. I cannot see anything in what I have referred to which I consider to be special such as would justify a departure from the statutory ratio between the non-parole period and the parole period. Accordingly, the sentence for the aggravated sexual intercourse without consent offence will be imprisonment for 12 years with a non-parole period of 9 years and a parole period of 3 years and for the sexual intercourse without consent offence imprisonment for 8 years with a non-parole period of 6 years and a parole period of 2 years." 31 His Honour then made the sentences partially concurrent and partially cumulative. When his Honour came to pronounce the sentence in respect of count 2, the head sentence remained 8 years but the non-parole period was 4 years and 4 months.

Appeal Ground of Appeal 1: The sentence is manifestly excessive. 32 Although the ground of appeal was expressed in that way, it was obvious from the form of the written submissions that the real basis of complaint was the way in which his Honour had dealt with and applied the standard non-parole periods applicable to the two offences. Accordingly, the Court gave leave to the appellant to rely upon an additional ground of appeal as follows: "His Honour erred in placing undue weight on the standard non-parole periods referable to each offence."

It is for that reason that I propose to deal with both of these grounds of appeal together. 33 The error identified in the submissions and specifically referred to in the additional ground of appeal is the use of the standard non-parole period as a "starting point" or fulcrum for the subsequent sentencing process. That his Honour approached the matter in this way is clear from his initial description of the offence in count 1: "… It is an offence which, if it is an offence which falls in the middle of the range of objective seriousness for offences of its kind, carries a standard non-parole period of 10 years, which, having regard to the statutory ratio between the non-parole period and a parole period, would produce a parole period of 3 years 4 months, with the result that the sentence would be imprisonment for a total period of 13 years 4 months. I am required to set the standard non-parole period, as the non-parole period for this offence unless I determine that there is a reason for setting a longer or shorter non-parole period than the standard non-parole period with the reason for setting a longer or shorter non-parole period than the standard non-parole being one or other of the factors referred to in s21A of the Act." (ROS [20]) 34 The error referred to in the amended ground of appeal was comprehensively analysed by Spigelman CJ in Mulato v Regina [2006] NSWCCA 282 as follows: "13 It is now well established that it is an error of principle to select a specific figure - whether that be a maximum sentence or a standard non parole period or a 'subliminally derived figure' (see Markarian at [39]) - and to add or subtract matters item by item in some sort of mathematical process. The reason that this approach constitutes legal error is because it impermissibly confines the sentencing discretion. Indeed, the use of the maximum sentence in such a manner was precisely the error identified by the High Court in Markarian . 14 In R v Way (2004) 60 NSWLR 168 this Court considered the introduction of the standard non-parole period regime into the Crimes (Sentencing Procedure) Act 1999 and specifically the obligation imposed by s54B(2) that: "… the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period." 15 In Way, this Court determined that the standard non-parole period, like the maximum sentence, was an appropriate benchmark, guidepost or reference point and, as such, had an important role to play in ensuring consistency in sentencing. The standard non-parole period serves a role as a reference point even in the case in which it is not directly applicable, e.g. as here where there is a plea of guilty. (See R v Davies [2004] NSWCCA 319 at [6]; Vu v R [2006] NSWCCA at 188 at [52] and cases referred to therein.) 16 The breadth of the sentencing discretion was confirmed by the express terms of s54B - "there are reasons for serving a non-parole period that is longer or shorter" - and the need to take into account the full range of circumstances referred to in s21A of the Act. This Court affirmed in Way, especially at [127]-[130], that the new regime is consistent with the instinctive synthesis approach to the exercise of the sentencing discretion.

17 In Way, the Court concluded: "[131] What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of the seriousness, and irrespective of whether the offender's guilt was established after a trial or by a plea), at the standard non- parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act." 18 This reasoning rejects the use of the standard non-parole period as a "starting point" or fulcrum for a mathematical process. Even where the offence attracts a standard non-parole period, because it is in the middle of the range of objective seriousness, error occurs whenever the standard non-parole is used as a "starting point" rather than as a "reference point". (See R v Sangalang [2005] NSWCCA 171 esp at [19]-[24]; R v Hung Lo [2005] NSWCCA 436; 159 A Crim R 71 esp at [64]-[71].) The description in AT supra at [36] of the maximum sentence as "a more appropriate start point" should not be understood as indicating a different view." 35 In my opinion the error identified in R v Mulato and raised in the additional ground of appeal did arise in this case. 36 There is another matter raised in the submissions which needs to be addressed. His Honour found that the applicant was entitled to a discount of twenty five percent for his early plea of guilty. His Honour also found that the offences were below the middle range of seriousness of offences of this kind. Against that background the fixing by his Honour of a non-parole period of 9 years in respect of count 1 bespeaks error. The inevitable inference is that his Honour did not give to the applicant the benefit of the twenty five percent discount in respect of count 1. The Crown conceded in its submissions that his Honour had not applied the twenty five percent discount to count 1. 37 Error has been established both in his Honour placing undue weight on the standard non-parole period and in his Honour failing to apply a twenty five percent discount in respect of count 1.

Ground of appeal 2: Insufficient weight was given to the compelling subjective circumstances including the mental condition of the applicant 38 His Honour found that except for the lack of an adult male role model the applicant's sad background was irrelevant to the sentencing process. His Honour did so because he considered that sad as it was, the applicant's unfortunate upbringing and background was not causally connected to the offences. 39 On behalf of the applicant it was submitted that his Honour had erred in that approach in that he failed to have regard to the applicant's fragile mental condition influenced as it undoubtedly was, by his traumatic upbringing. It was the "borderline aspect of his personality" which Ms Duffy identified as causing the applicant to have difficulty in controlling his affect and behaviour, particularly "impulsive outbursts sometimes of a self destructive nature". The applicant relied upon R v Engert (1995) 84 A Crim R 67 at 71: "The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case." 40 It was the submission of the applicant that his Honour had incorrectly fettered his sentencing discretion by failing to give proper consideration to subjective matters, in particular the mental condition of the applicant. The applicant did not refer to any particular part of the sentence which would have been altered had this matter been taken into account. 41 It seems to me that his Honour did unduly fetter his discretion. His Honour was entitled to take into account the applicant's tragic upbringing which clearly contributed to his mental condition generally and in particular to his difficulties in controlling his affect and behaviour. If those matters are taken into account with the applicant's comparatively good employment record and the fact that this will be the first term of imprisonment which he has served, the applicant had a strong subjective case. His Honour should have taken that into account in the sentencing process.

Ground of appeal 3: His Honour erroneously took the view that the crimes were aggravated as a result of the application of s21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999. 42 It was submitted on behalf of the applicant that to the extent that there was any planning in the offence it was not the sort of planning which was envisaged by subsection 21A(2)(n) of the Act. It was accepted by the applicant that he intended to do what he did and had formed that intention for at least some period prior to his so doing. On the evidence that period was likely to have been relatively short and depended upon his girlfriend having left the flat. It was submitted that the offence was therefore essentially opportunistic rather than being "part of a planned or organised criminal activity". 43 This question was considered in Fahs v R [2007] NSWCCA 26. The Court there held that the finding that there was "a level of planning in the offences" was not sufficient to justify the finding of the aggravating factor in s21A(2)(n). As Howie J explained: "21 The aggravating factor under s 21A(2)(n) is that "the offence was part of a planned or organised criminal activity". The wording of this provision seems to me to convey more than simply that the offence was planned. The fact that there was a "level of planning in the offences" as found by the Judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In R v Wickham [2004] NSWCCA 193 the Court stressed the importance of making findings under s 21A in accordance with the words of the provision. 22 Had the only relevant factor been the existence of planning in the commission of the offence, there might have been a valid argument that planning was an inherent characteristic of every offence involving on-going or commercial drug trafficking: see Elyard v R [2006] NSWCCA 43. But it is not an inherent characteristic of supplying drugs that it is "part of a planned or organized criminal activity" in the sense that those words convey. For example, I do not believe those words apply to the normal street dealer who purchases drugs from various sources simply to obtain the wherewithal to purchase drugs for his own use. Therefore, in an appropriate case this aggravating factor can be taken into account when sentencing for drug trafficking offences. In this case it would have been open to the Judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order." 44 Following that line of reasoning the relatively low level of planning involved in these offences would not meet the description of being "part of a planned or organised criminal activity". Accordingly his Honour erred in taking into account s21A(2)(n) as an aggravating factor in respect of these offences. Conclusion 45 For this Court to quash a sentence and impose a lesser one, it is not sufficient for the applicant to establish error. It is necessary that this Court be satisfied that "some other sentence … is warranted in law and should have been passed" - subsection 6(3) of the Criminal Appeal Act 1912, R v Simpson (2001) 53 NSWLR 704 at [79] and [99-100]. 46 In relation to count 1 some other sentence is clearly warranted in law. By using the standard non-parole period as a start point and then structuring the sentence around it, his Honour deprived himself of the opportunity of standing back and assessing the appropriate balance between the head sentence and the non-parole period. Moreover the failure to apply the 25% discount to the sentence for count 1 worked an injustice against the applicant which needs to be rectified. 47 The offence charged in count 2 carried a maximum sentence of 14 years. A sentence of 8 years suggests that the starting point for his Honour was around 11 years. Taking into account his Honour's finding that the objective seriousness was below the midrange, and also taking into account the applicant's strong subjective case including the fact that he has not previously served a sentence of imprisonment, this start point appears high and outside the range appropriate for the offence. 48 I have concluded that it is necessary for this Court to re-sentence the applicant. 49 In re-sentencing I propose a reduction in the non-parole period and in the balance of the effective sentence. This is achieved by taking a lower starting point which reflects the strong subjective case along with the finding that the objective circumstances of each offence were below the midrange of seriousness. Nevertheless it does not seem to me to be appropriate to go below a non-parole period of 6 years and 9 months in respect of count 1 having regard to the standard non-parole period as a reference point. 50 In respect of count 2 although the offences were closely linked in point of time, they were quite distinct and separate and accordingly some accumulation is required. It follows that I find special circumstances in respect of count 2 because it is partly accumulated on the sentence for count 1. The aggregate sentence that I propose does not involve any significant departure from the 75% proportion specified by statute with respect to the effective non-parole period. Its overall effect is imprisonment with a non-parole period of 7 years and 6 months with a balance of term of 2 years and 8 months. 51 The orders which I propose are as follows:

(2) The appeal is allowed and the sentences passed by Nield DCJ on 26 April 2006 are quashed.

(3) In lieu thereof the following sentences are passed:

Count 1 - Imprisonment with a non-parole period of 6 years and 9 months to commence on 24 March 2006 and to expire on 23 December 2012 with a balance of term of 2 years and 3 months to expire on 22 March 2015.

Count 2 - Imprisonment with a non-parole period of 4 years and 4 months to date from 24 May 2009. The non-parole period is to expire on 23 September 2013. There is to be a balance of term of 2 years and 8 months which is to expire on 22 May 2016. **********

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