REGINA v Corey ALLAN

IN THE COURT OF CRIMINAL APPEAL 60518/03

TOBIAS JA KIRBY J BELL J

Thursday 29 April 2004 REGINA v Corey Anthony ALLAN Judgment 1 TOBIAS JA: I agree with Bell J. 2 KIRBY J: I agree with Bell J. 3 BELL J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant by his Honour, Judge Freeman (the Judge) sitting in the Tamworth District Court on 17 April 2003. The applicant was convicted following trial of each of the three counts charged in the indictment as follows: "(i) On 11 January 2002 at Tamworth he did break and enter a dwelling house situate at 11/104 Bridge Street within intent to commit a serious indictable offence therein, namely, sexual intercourse without consent; (ii) That on the same date and at the same place he did assault DMW and at the time of such assault did commit an act of indecency on DMW; (iii) That on the same date and at the same place did attempt to have sexual intercourse with DMW without her consent and knowing that she was not consenting thereto." 4 The applicant was sentenced to a term of four years' imprisonment to date from 4 April 2003 for the offence charged in count one. A non-parole period of one year expiring on 3 April 2004 was specified. A fixed term of imprisonment for one year to date from 4 April 2004 and to expire on 3 April 2005 was imposed for the offence charged in count two. A sentence of four years' imprisonment, to date from 4 April 2004 and to expire on 3 April 2008, was imposed for the offence charged in count three. A non-parole period of 18 months to date from 4 April 2004 and to expire on 3 October 2005 was specified with respect to this offence. The sentences in the aggregate amounted to a total of five years' imprisonment with an effective non-parole period of two and a half years. 5 The facts upon which the Judge sentenced the applicant were summarised by his Honour as follows: "The facts which the jury must have accepted and which were clearly upon to them (sic) on the evidence may be briefly stated as follows: - during the evening of 10 January 2002 and in the early hours of the morning of the 11th, the victim, her friends Ms Davis and a Mr Stead were drinking and dancing at an establishment here in Tamworth at which the prisoner was also present. The victim and the prisoner were known slightly to each other having attended the same school. The victim invited Mr Stead back to Ms Davis' flat at which the victim was going to spend the night, and the three, Ms Davis, the victim and Mr Stead walked from the establishment when it closed at about 3 in the morning to a nearby service station. There a further encounter took place between the prisoner and at least Mr Stead in which the prisoner made known his desire to have sexual intercourse either with Ms Davis or the victim. It appears that he was given no assurances by Mr Stead in that regard, but he, that is the prisoner, tagged along with the others when they walked from the service station to Ms Davis' flat. Soon after their arrival, Ms Davis, pleading a headache went to bed. The victim and Mr Stead returned to a second bedroom where there was apparently consensual sexual intercourse which took some period of time perhaps an hour and a half. During this time the prisoner waited in the lounge room of the flat. When it became clear that Mr Stead was about to depart, the prisoner tried to persuade the victim to engage in sexual activity with him, even going to the extent of offering her money, but these overtures were rebuffed. The two men, Mr Stead and the prisoner then left, the prisoner manifesting some chagrin at what he perceived to be Mr Stead's failure to assist the prisoner in pressing his suit upon the victim. After they left one another's company, Mr Stead proceeded to his home address some considerable distance away. The prisoner on the other hand clearly returned to the flat occupied by the two young women. It appears that he was able to obtain access to the flat because the front door, although closed, had not latched its lock properly, so that he entered and then opened the bedroom door of the room in which the victim was lying. There was a short conversation, he asking for a drink of water, then asking for a hug and then seizing the victim who was at that stage dressed only in a sheet wrapped around herself. He threw her to the floor, fondled and sucked her breasts and attempted to have his way with her. She screamed, roused Ms Davis, the prisoner fled." 6 The applicant was aged 21 years at the date of the commission of the offences. He had no prior convictions. A number of affidavits were tendered on his behalf. The Judge found the applicant to have been a devoted son, a good worker and a person who was interested in bettering himself, despite the fact that he had left school with limited literacy and numeracy skills. His childhood had been disrupted by the separation of his parents in circumstances of some acrimony. He had been profoundly affected by the loss of his close relationship with his mother following the separation. 7 The offences occurred at a time when the applicant was affected by the consumption of a considerable amount of alcohol. The Judge was of the view that the applicant needed assistance with a developing problem in this respect.

8 Three grounds of appeal were filed in support of the applicant's challenge to the sentences. Ground 3 contended that the sentences were manifestly excessive. This ground was abandoned on the hearing of the appeal. Grounds 1 and 2 are related and it is convenient to deal with them together:

1. That the learned sentencing Judge erred in ordering that the sentences for counts 2 and 3 be entirely cumulative on the sentence for count 1.

2. That the learned sentencing Judge failed to, or failed adequately to, address the principle of totality in relation to the sentences. 9 Counsel acknowledged that the two grounds stood to succeed or fail together.

10 The challenge to the sentences turned upon an analysis of the following passage in the Judge's remarks on sentence: "Obviously, as Mr Brady for the prisoner sensibly concedes, crimes of this seriousness do not give rise to much option apart from a sentence of fulltime custody, and in accordance with the dictates as I understand them, of the High Court in Pearce , it is necessary to identify each crime and assign an appropriate sentence to it in isolation as it were before then turning to consider and give effect to the principles of totality, the observance of special circumstances and the like. I should say that I regard the first offence of breaking and entering with the intention of having sexual intercourse without consent as complete in itself when he opened the front door. The subsequent actual assaults upon the victim are, in my view, additional crimes and it is appropriate to deal with the sequence by way of a sentence for the first offence and consecutive sentences for the other offences , although I apprehend that the indecent assault and the attempt to have sexual intercourse should be dealt with by way of sentences concurrent between themselves. It is a rather complicated method of dealing with things, but that as I understand it is my obligation in accordance with the principles." (emphasis added) (ROS 3-4). 11 Counsel submitted that two errors of principle were revealed in this passage. Firstly, it was contended that the Judge had determined that the sentences for the offences charged in counts two and three were to be accumulated on the non-parole period imposed on the offence charged in count one before he fixed the appropriate sentence for each offence. This was submitted to be contrary to the principles enunciated in Pearce v The Queen [1998] HCA 57; 194 CLR 610 per McHugh, Hayne and Callinan JJ at 623-4, [45]. Pearce was said to require that an appropriate sentence be fixed for each offence prior to any consideration of accumulation or the principle of totality. 12 In Johnson v The Queen [2004] HCA 15 the High Court made it clear that Pearce does not involve any departure from the principles, explained in Mill v The Queen (1988) 194 CLR 610, governing "totality" when sentencing for more than one offence. In their joint judgment Gummow, Callinan and Heydon JJ at [26] said: "The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence that is to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected." 13 No complaint is made that the individual sentences are outside the range. Nor, as I have noted, was any submission pressed that in the aggregate the sentences are manifestly excessive. Counsel acknowledged that a measure of accumulation was appropriate with respect to the sentences imposed on counts two and three. The error was said to be in the determination in advance that the latter two sentences would be wholly accumulated on the non-parole period specified for the sentence on count one. I do not understand the Judge to have determined to structure the sentences so as to allow for a measure of accumulation before he fixed on the sentences that were appropriate for each offence. The fact that he explained his reasons for deciding on a degree of partial accumulation before nominating the terms does not point to the contrary conclusion. Immediately prior to the passage that is the subject of complaint the Judge referred in a summary way to the statement of principle in Pearce at [45].

14 The second error that counsel discerned in the Judge's reasons is that his Honour referred to only one consideration in deciding that the sentences for the offences charged in counts two and three should be accumulated on the non-parole period specified for the sentence on count one. He is said to have been solely influenced by the fact that the first offence was complete before the commission of the other two. Counsel criticised this as being an overly simplistic approach to the question of the overall structure of the sentence. He called in aid the decision of the Court in Regina v AEM [2002] NSWCCA 58 at [90]. 15 I do not consider that AEM lends any support to the applicant's challenge. The Court was there critical of the approach of the primary judge in imposing concurrent sentences for a number of offences on the basis that they had been committed in the course of one extended episode. In the circumstances of that case the approach was described as being an overly simplistic one. It is not the approach that the Judge adopted in this case. His Honour differentiated the offences in a way that makes clear that he considered them separately. He referred to the circumstance that the first offence was complete before the applicant embarked on the two further offences. It was open for him to take this circumstance into account as one favouring accumulation.

16 As I have noted, it is not contended that the sentences produced a result that was manifestly excessive nor that viewed individually any sentence was excessive. The sentence imposed on count one was structured to allow the accumulation of the remaining two sentences without leading to an aggregate sentence that was inappropriate to the conduct of which the applicant had been convicted. It is to be remembered that the sentence imposed on count one was four years' imprisonment but that the non-parole period specified was 12 months.

17 For these reasons I propose that the applicant be granted leave to bring the appeal but that the appeal be dismissed.

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