Friday 20 May 2005
REGINA v David Frederick JOHNSON
Judgment
1 HUNT AJA: The applicant, David Frederick Johnson, appeared for sentence before Judge Norrish QC in the District Court on three charges:
· One charge of aggravated breaking and entering a dwelling house in circumstances of aggravation (knowing at the time that there was a person present in the premises) and whilst there committing a serious indictable offence, the offence of stealing (a mobile telephone and its charger and a wallet);
· one charge of having sexual intercourse without consent on the same occasion with the person present in the premises; and
· a second charge of aggravated breaking and entering a dwelling house on a second occasion (knowing at the time that there was a person present in the premises) and whilst there committing a serious indictable offence, another offence of sexual intercourse without consent, again with the person present in the premises.
2 In relation to the first and second charges, the applicant in February 2001 had broken into the victim's unit, stolen a mobile telephone and its charger and a wallet, and had sexual intercourse with the victim whilst she was asleep in bed. In relation to the third charge, the applicant had in March 2002 broken into the second victim's apartment and had sexual intercourse with the second victim without her consent. She had been asleep but was awakened by his presence when he undressed and then had sexual intercourse with her. The applicant was in each case identified as the offender after a DNA sample obtained from him a considerable time later was compared with various forensic samples retrieved from each of the two victims.
3 The applicant pleaded guilty to the first and third charges in the Local Court and was granted bail. He pleaded guilty to the second charge some three months later, a week before the trial of that charge was to commence. The judge allowed a utilitarian discount of 25% for the pleas in the Local Court and one of 10% for the plea one week before trial.
4 The basic facts of the first and second charges were that the victim had gone to sleep in her unit, leaving the front door ajar to allow her boyfriend access when he arrived home. She awoke some time after midnight, having become aware of the presence of a man (who was the applicant) in her room, and feeling wet from the semen he had left on her legs. The mobile telephone and its charger belonging to her boyfriend and her wallet were missing. Various items in the unit had been disturbed.
5 The basic facts of the third charge were that the victim had gone to sleep in her unit leaving the front door ajar but believing that she had shut the security grill. She awoke, having become aware (though still half asleep) of the presence of a man in her room. Again, it was the applicant. He undressed, lay on top of her and had sexual intercourse with her. She attempted to push him away, but he was too strong, and she screamed at him to get out. He remained on her for about five minutes and dressed before leaving. She saw the presence of semen when she showered. Her wallet and keys were missing, but the applicant was not charged in relation to their theft.
6 The judge commented that in each instance there had been "a violation not only of the victim's physical person, but also a gross violation of [her] sense of security". In each case the victim underwent what the judge fairly described as the "torment" of not knowing for a lengthy time whether she had contracted any sexually transmitted disease which could be potentially fatal. The first victim had the added torment of not knowing precisely what the applicant had done to her whilst she was asleep. In each case, the victim suffered considerable dislocation of her private and professional life, a destruction of personal relationships, continuing anxiety and gross feelings of insecurity. The second victim suffered the destruction of her capacity to maintain her career. Each victim has been hindered in her ability to return to any semblance of a normal lifestyle such as she had previously enjoyed. Each victim has required continuing counselling.
7 The applicant was twenty-three years of age at the time of the first offence in 2001. He had committed a variety of offences since the age of sixteen, including robbery, theft and taking a motor vehicle without authority. He had received various suspended sentences with and without accompanying good behaviour bonds. He had breached one of those bonds before these offences were committed. He was on a bond to be of good behaviour at the time of the third offence, as well as on bail in relation to an offence of aggravated break and enter and an indecent assault on a female. That offence was committed on 24 November 2001, between the two occasions with which this appeal is concerned. He was given a custodial sentence for this offence by Judge Norrish before being charged with the present offences, and this fact is relevant to the second of the specific complaints made by the applicant concerning the sentences for the present offences, a matter to which I will return. The non-parole period relating to that sentence had expired prior to the trial, but the applicant had remained in custody in circumstances which are also relevant to that complaint.
8 The judge correctly observed that the offences against the second victim in the matters with which this appeal is concerned had to be considered in the context of the offences against the first victim and the aggravated break and enter and an indecent assault on a female which occurred between these two occasions. He expressed the views that the applicant has been a continuing danger to the community and particularly to single women in the community, and that his conduct on these two occasions cannot therefore be described as uncharacteristic. He held that each of the offences with which this appeal is concerned was not opportunistic in nature, but rather a planned and calculated crime committed clearly without regard to the rights of the victim. He said that the similarities of the offences involving attacks on single women alone in their "pregnable premises" were "very disturbing indeed".
9 The judge reviewed the applicant's background with some care. The applicant is an Aboriginal man who lived his early years in rural New South Wales. There was considerable tension and dislocation in the family, particularly between his parents who separated when he was fifteen or sixteen years of age. The judge referred favourably to the applicant's intelligence, and said that there was little in his upbringing which could explain his conduct which led to these offences. There had been only occasional employment since his departure from school, a significant gambling addiction and considerable participation with "sub-cultural elements" involved in drug use and other offending behaviour.
10 The applicant's explanation for the first and second offences was that he was "searching around for money and free sex". He needed to support his drug and gambling lifestyle. The judge commented on the circular process by which, having obtain money for the goods he stole, the applicant spent all that money on gambling and drugs and then claimed that he needed to steal more goods to feed his gambling and drug habits. In relation to the sexual offences, the applicant said that for a period before the first of the two occasions he had had sexual fantasies about having sexual intercourse with women, particularly white women. He had felt "pleased and relieved" after the first occasion, pleased because of the opportunity to have sex with a white woman but also guilty for having cheated on his partner. He had no feelings of guilt about the offence itself. The judge said that the material before him indicated that the applicant had rationalised that, as the victim had not objected, she may even have enjoyed what he did. She was, of course, asleep throughout the sexual assault.
11 The applicant's explanation for the third offence is that he had just lost his money at the TAB and so was looking for a victim and some more money. He said that he wanted "to get sex first, it was the more dominant [motive]". He expressed feelings of guilt for cheating on his partner but no real feelings of guilt for what he had done to his victim.
12 The judge accepted that there had been some recognition by the applicant of these misconceptions during the residential treatment programme at the gaol for sexual offenders, but he doubted whether there had been any true resolution of the applicant's delusional beliefs in relation to the responses of these two women whom he had sexually assaulted. He was still unable to face up to the full extent of the offence he had committed against the first victim, an offence which the judge described as one of the most serious offences of its type which could be committed. He had also initially sought to downplay the extent to which he had interfered with the two victims. The applicant had, however, confirmed the predatory aspects of his conduct and the deliberation involved in choosing his victims. The report which was before the judge records the applicant as "hanging around" hotels at night where he might find intoxicated women walking alone, or watching women leave taxis to enter houses by themselves, following them to their homes and observing whether they lived alone, then waiting for the time when they have gone to bed or might be asleep, when he would enter the home and sexually assault them. His admission of such other offences was not taken into account by the judge other than as confirmation of the planning in the two occasions with which he was concerned.
13 The judge held that there were concerns that the applicant would offend again in the future. Various factors led the judge to this conclusion - the facts that his offending behaviour gave him a sense of invincibility and that he derived excitement from his conduct, his involvement in cannabis use, his dysfunctional relationship with his wife, the character of his sexual activities since his mid-teens, his interest in pornography, his other fantasies in relation to sexual activity, and matters relating to his own sexual functioning. The applicant is regarded as being in a high risk category in relation to future offences relevant to other adult male sexual offenders, although the judge recognised the notorious difficulty in making such assessments, and said that he would deal with this assessment only on the basis that there was a possibility of re-offending. He preferred the assessment by the manager of the gaol sexual offenders programme (a psychologist) that there was an "overall moderate to high" risk of sexual recidivism at this time. Such a finding that there is a risk of re-offending is sufficient for sentencing purposes: Regina v SLD (2003) 58 NSWLR 589 at [32], [40].
14 The judge said that he would take into account in the sentences imposed the objective seriousness of the offences and the need to deter both the applicant and others from committing like offences and also to denounce the applicant's conduct. He accepted that the need for public deterrence may properly be tempered by considerations of compassion: Regina v Fernando [2002] NSWCCA 28; but he correctly observed that the present case was not one in which the applicant deserved too much sympathy.
15 The judge paid close attention to the relevance of the applicant's previous record as laid down by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. There is no suggestion that he erred in relation to the applicant's prior record. The judge also referred to the principles relating to the sentencing of Aboriginal offenders identified by Wood J in Regina v Fernando (1992) 78 A Crim R 58 at 62-63, but he found that there appeared to be no direct relationship between the applicant's social conditions at the time he committed these offences and the conduct which led to them. The judge nevertheless considered that the applicant's background and the circumstances of his upbringing must have had some influence on both the attitudes he possessed and his reasons for offending. Again, there is no suggestion that the judge erred in that finding.
16 The judge gave careful attention to the authorities relevant to making sentences either wholly or partially concurrent in order to achieve an appropriate total sentence for all of the offences. He referred, for example, to Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15. He determined that the better way to approach the present case was to make the sentences partially concurrent.
17 The judge referred to several matters in aggravation and a few in mitigation. The matters taken into account in aggravation were the fact that "the offences themselves involved violence of a sexual character", the applicant's previous convictions, the substantial injury and emotional harm to the victims, the fact he was on conditional liberty at the time, the number of victims, the series of criminal acts, the vulnerability of the victims and the planning involved. The inclusion of the first of those matters constitutes the principal complaint by the applicant in this application for leave to appeal. The matters taken into account in mitigation were the pleas of guilty and the applicant's expression of remorse, although the judge was unable to say how genuine that remorse was. He found special circumstances warranting a longer balance of term than the prescribed proportion of one-third of the non-parole period: Crimes (Sentencing Procedure) Act 1999, s 44(2). The reasons the judge gave in accordance with that sub-section were the structure of the sentences he was imposing, and the applicant's need for professional assistance on release in adjusting to community living. Both matters were appropriate to be taken into account.
18 The sentences imposed were as follows:
On the first count , for aggravated break and enter and stealing, carrying a maximum sentence of imprisonment for twenty years - a fixed term of imprisonment for three years, commencing on 10 February 2004.
On the second count , for sexual intercourse without consent on the same occasion, carrying a maximum sentence of imprisonment for fourteen years - a fixed term of imprisonment for eight years and one month, also commencing on 10 February 2004.
On the third count , for aggravated break and enter and sexual intercourse without consent, carrying a maximum sentence of imprisonment for twenty years - a total term of imprisonment for nine years with a non-parole period of four years, commencing on 10 February 2009 (that is, five years after the sentence on the second count commenced).
The effective total sentence is one of imprisonment for fourteen years with a combined non-parole period of nine years.
19 The applicant argued before this Court that the sentences were "too long" and were attended by two specific errors. Although the written submissions asserted that the sentences were "manifestly excessive", the only argument put in the written submission in support of that assertion was that, accepting the findings made by the judge, a lesser sentence should have been imposed in order to rehabilitate the applicant and yet protect society with a shorter non-parole period. In the light of all the circumstances of the case (including the judge's acceptance that the applicant's risk of sexual recidivism was overall moderate to high), I see no basis on which the submission that the sentences were manifestly excessive should succeed. Significantly, there was no oral argument put forward to support the assertion made.
20 The applicant's principal complaint is, as I say, that the judge took into account as a matter in aggravation the fact that "the offences themselves involved violence of a sexual character". This is the only complaint argued in relation to the length of the sentence. It is necessary to note the context in which this statement was made:
Specifically, the aggravating factors in this matter to my mind include the factor that the offences themselves involved violence of a sexual character, notwithstanding the fact that the prisoner did not inflict other physical violence, such as blows to his victims. He had no need to in any event as he overpowered both women. One of the women of course was taken advantage of whilst she was asleep.
21 Section 21A(2) of the Crimes (Sentencing Procedure) Act provides that none of the aggravating factors it specifies may be taken into account in aggravation "if it is an element of the offence". The actual or threatened use of violence is one of those aggravating factors specified and, although violence of a sexual character is not specifically mentioned in the subsection, s 21A(1) provides that any other matter which is permitted to be taken into account under any statute or rule of law may still be taken into account. Section 21A was introduced in its present form by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2000, which commenced on 1 February 2003, but the new s 21A itself applies to any determination of a sentence after that date, whenever the offence was committed, unless the offender had been convicted before that date: Crimes (Sentencing Procedure) Act, Schedule 2, clause 45(2). In the present case, the offences took place in 2001 and 2002, but the applicant was not convicted until July 2004. Section 21A therefore applied.
22 In any event, the provision in s 21A(2) does no more than reflect the common law. A matter is taken into account by way of aggravation of sentence when, by reason of that matter, the judge imposes a sentence more severe than he or she would otherwise have imposed: The Queen v De Simoni (1981) 147 CLR 383 at 388. In my view, it is a fundamental principle of sentencing which needs no statute to support its existence that a matter may not be taken into account in aggravation of sentence if it is already an element of the crime, for that would necessarily amount to double counting of the same matter. The importance of the inclusion of that principle in s 21A(2) is to remind judges who inevitably use the provisions of the section as a "check list" applicable to all offences to ensure that any particular matter listed as an aggravating factor is not already an element of the offence.
23 When defining the offence of sexual intercourse without consent, s 61I of the Crimes Act 1900 makes no reference to violence, and its title "Sexual Assault" does not go beyond the common assault which is inherent in the "sexual connection" to which the definition of "sexual intercourse" in s 61H refers. It does not include any suggestion of either violence or (as violence is usually defined) the exercise of physical force. Many sexual assaults do involve violence, and that violence is appropriately taken into account by way of aggravation in a sexual assault charge under s 61I - provided that it does not involve the infliction of actual bodily harm, when the offender becomes exposed to a greater maximum sentence, one of imprisonment for twenty years (s 61J "Aggravated Sexual Assault"), in lieu of imprisonment for fourteen years (s 61I "Sexual Assault"). The principle laid down in The Queen v De Simoni (at 388-392), that a matter may be taken into account in aggravation of sentence only where it does not render the accused liable to a greater punishment, would otherwise be infringed.
24 In the present case, the judge accepted (in the passage I have quoted) that there was no physical violence beyond the violence of a sexual character involved in the offences themselves. He did find that the applicant had "overpowered both women". There was no overpowering in any sense of the first victim, who was asleep. The finding that the second victim was unable to push the applicant away because he was "too strong" would be an insecure basis for a finding that there was violence in the sense of the exercise of physical force. To interpret this finding in that way would be inconsistent with the judge's finding that there was no physical force used beyond what was involved in the offences themselves. It therefore appears that, by his finding that the offences themselves involved violence of a sexual character, the judge must have been referring only to what is inherent in the "sexual connection" involved in sexual intercourse.
25 The judge had earlier commented that the applicant's conduct in each instance had constituted "a violation … of the victim's physical person", which is how the common law crime of rape was often defined. It may be that the judge was intending only to repeat in the quoted passage that description of the applicant's conduct, but the problem lies in his identification of the violence of a sexual character as a matter of aggravation of sentence rather than as, perhaps, an explanation that the law treats the offence of sexual intercourse without consent as a very serious one because of the violation of the woman's person involved. The offence of sexual assault defined in s 61I has already factored in the sexual character of the assault as an element of the offence, making that character very relevant to the punishment of the offender for the crime - without reference to aggravation - by imposing a maximum sentence for sexual assault of imprisonment for fourteen years, compared with the maximum sentence of imprisonment for two years for common assault (s 61).
26 The judge's inclusion of the violence of a sexual character in the aggravating factors he took into account was therefore erroneous. Did that error have any effect on the sentence which he imposed for the two offences involving sexual intercourse without consent? The judge stated that he noted the terms of s 21A(5) in relation to both the aggravating and mitigating factors he took into account. That subsection states:
The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.