REGINA v. LAKE [2003] NSWCCA 27

FRIDAY 21 FEBRUARY 2003 REGINA v. CLARENCE VICTOR LAKE Judgment 1 GREG JAMES J: This is an application for leave to appeal against sentence brought by Clarence Victor Lake in respect of sentences imposed upon him in the District Court of New South Wales at Dubbo by his Honour Judge Williams. Mr. Lake came forward on 30 January 2002 for sentence. Sentences were imposed on 12 April. 2 He came forward having pleaded guilty to four crimes. The first, one of aggravated sexual intercourse without consent. The aggravation was expressed to lie in his having maliciously inflicted actual bodily harm. That is an offence punishable under s.61J of the Crimes Act 1900 by a maximum penalty of 20 years imprisonment. The second, of sexual intercourse without consent. That is an offence under s.61I of the Crimes Act 1900 punishable by a maximum penalty of 14 years of imprisonment. The third was of detain for advantage. That is an offence which is often referred to as kidnapping. That is an offence which is punishable by a maximum penalty of 14 years imprisonment, except in its more aggravated form which was the form charged here. The aggravated form was applicable because at the conclusion of the detention the applicant was released suffering from injury. The aggravation turns on that fact. The fourth was a crime of malicious wounding, an offence under s.35(1)(a) Crimes Act 1900 for which a maximum penalty of seven years imprisonment is provided. It can be seen from this recital of offences that the applicant pleaded guilty to offences which in their very nature were of considerable gravity. 3 The trial judge imposed sentences in respect of those offences on the first a sentence of imprisonment for eight years to commence on 26 January 2004 to expire on 25 January 2012. He imposed in respect of that sentence a non-parole period of five years to expire on 25 January 2009. On the second, he passed a sentence of imprisonment for a fixed term of five years to commence on 26 January 2002 and to expire on 25 January 2007. On the third, he imposed a sentence of eight years to commence on 26 January 2002 and to expire on 25 January 2010. For the fourth, his Honour imposed a non-parole period of five years expiring on 25 January 2007. On count four his Honour imposed a fixed term of imprisonment for four years to commence on 26 January 2002 and to expire on 25 January 2006. Thus it came about that the total effect of the sentences that his Honour passed was for imprisonment for a total of 10 years with a non parole period of seven years. 4 As I have said the matter came before his Honour on pleas of guilty. These pleas had been entered in the District Court on 30 January 2002. The matter had thereafter been remanded to 12 April 2002. On that latter occasion the material that supported the pleas was provided to his Honour. That material included the Crown documents which had apparently been handed up on 30 January and which included a statement of facts, a New South Wales criminal history, a statement of the victim, a statement from Dr. Berrill and in due course additional material by way of victim's impact statement. 5 The statement of facts provided to his Honour was Exhibit A in the proceedings. It is a three page document which sets out the detail of the applicant's detention and appalling treatment of his partner in their home over a 10 hour period. That appalling treatment included the applicant obtaining a 30 centimetre silver cake knife, expressing his view that his victim's attentions were to be solely focussed upon him rather than another and striking and slashing her with the cake knife causing a number of wounds to the face and neck. He plainly evinced his jealousy concerning her and in particular concerning what he apparently believed were her relations with another man. He shredded a photograph with the knife making it quite clear that he was jealous of the person depicted. When the victim attempted to leave he pulled her back by her hair. He used the knife to threaten her. He said:- "I can't live without you, I'll kill you and I'll kill myself." 6 He berated the victim concerning money he had leant her in the past, a considerable quantity of money. He demanded she remove her clothing, he tormented her by flicking her with the knife during which she sustained injuries to her face and neck. When demanding she remove her clothing he threatened to stab her in the eye. She complied at knife point with his threats and found herself standing naked after having been so tormented. She said:- "If you're going to kill me you can do it in the bathroom." 7 She went to the bathroom but was struck by him with the knife causing bruising. Again, he said in the bathroom that he was going to kill her and stick the knife into her eye. During the night he said to her that she will not live until one, apparently meaning one o'clock in the morning. She attempted to leave but was prevented by him, he grabbed her and smashed her into the wall. He then commenced to stab her. She sustained a cut to the left hand. Apparently, he said words to the effect that she would not live to see her grandson. She tried a number of times to leave but he blocked her. 8 At some stage during the evening he put down the silver knife apparently in response to her saying she would not talk to him while he had the knife and he obtained another black handled knife. He demanded of her that if she loved him she would submit to sexual intercourse and took a blue Viagra tablet. He took the black handled knife with him to the bedroom demanding that she remove her clothes and get on to the bed. He had sexual intercourse with her at that time and subsequently and in a discrete episode, had sexual intercourse with her again. Whilst this was occurring the telephone rang three times and subsequently at about 8.15 am there was a knock on the door when the victim's mother attended at the house. At that point the applicant left the premises via the back door. There had been some conversation between the applicant and the victim in respect of that. The applicant was seen by the mother and the victim in the bedroom. He started to cry and said "I can't live without her" and then left. The victim was taken to the Dubbo Base Hospital for treatment and police were contacted. 9 Having regard to these matters it is entirely remarkable that the only injuries referred to in the statement of facts were that the victim had suffered abrasions to the head and to her face and a reddened right eye due to conjunctival bleeding, lacerations and bruising. It is also apparent from what I have said that the matter was put before the trial judge on a global basis. That is to say there was no dissection within the factual material of what particular facts applied to which charge except in the case of the sexual assault elements of the two sexual assault offences. 10 This was an appalling display of emotional and brutal behaviour by the applicant. His Honour rightly held that these were extremely serious offences. His Honour referred in detail to the injuries noted in a medical report with which he had been provided, as including a laceration to the left knee, a laceration to the right breast, a six centimetre laceration to the left breast, a number of small puncture wounds, two to the right abdomen, four to the left leg which were not stitched, a number of wounds which extended through the upper layer of the skin and involved full thickness lacerations which required stitching. There was a laceration to the left chest which was originally thought to be life threatening but that was revised in surgery. There were wounds to the left knee and the left finger which required stitching and to the right lip. There were a number of bruises as well as the swelling to the left eye, eyebrow and forehead area. Copies of photographs showing those injuries were provided to the trial judge. 11 The trial judge having regard to those matters and having referred in detail to the agreed facts turned to the applicant's subjective circumstances. His Honour noted the applicant's minor record which in the context of the offences charged was of limited relevance. He referred to the psychologist's report provided on the applicant's behalf. He is a person aged 52. The matters on his criminal record were old and in particular constituted matters involving drive with a prescribed concentration of alcohol. He referred to the applicant's statement to the psychologist that "the bottle let him down". In that regard and taking that matter in conjunction with the record relating to drive with a proscribed concentration of alcohol, his Honour was of the view that perhaps alcohol played a greater part in the applicant's life than he was prepared to admit. His Honour referred to the applicant's Aboriginality and the fact that although he was not brought up by his parents he seemed to have been provided a reasonable family environment and maintains family associations, that he had been able to sustain employment ever since leaving school and had maintained two domestic relationships. His Honour referred to the applicant's own description of the present relationship as "essentially very good except when she (a reference to the victim) drank". 12 He referred to the applicant's other circumstances as not indicating any substantial risk of re-offending. He set out the conclusion the psychologist had come to, that is that the applicant was genuinely sorry and remorseful over his conduct, that although he still loves the woman he has no intention of pursuing her and that his intake of alcohol is now much reduced. His Honour noted the psychologist expressed the view that there was a low to medium risk of re-offending and particularly in the context of a lengthy period of monitoring and supervision through the Probation and Parole Service. 13 His Honour referred to the general effect of the facts when he said that the victim continued to suffer significant psychological trauma in regard to the matter. His Honour was of the view that an event like this would have the most significant effect on any person who was subjected to it no matter what the relationship that person might have had with the perpetrator. He said:- "Indeed in many respects it may be worse for someone having something like this done to you by a person with whom you had been in a relationship for such a long period of time." 14 One can only agree that violence of this sort inflicted, whether within a domestic relationship or not, is entirely repugnant and that when it is inflicted within a domestic relationship it assumes a particular complexion of criminality which the Courts must visit with condign punishment, not only for the purpose of seeking to deter an offender but in order to denounce the conduct to the community as a whole. However that said, it is also necessary for the court to pass sentence in accordance with the law and that requires the sentence to represent the synthesis of a number of considerations. 15 In that regard the High Court in Pearce v. The Queen (1998) 194 CLR 610 has recently drawn to the attention of courts the necessity when dealing as here with charges where the elements may overlap, to ascertain what are the precise factual bases upon which the sentences are passed for each individual charge to ensure that there is not an overlapping or doubling, as it was referred to in that case, of penalty. In this case, his Honour having been of the view that the sentences in their totality tended towards the more serious end of the offending range, but recognising that there might be more serious offences, said in p.11 of his Honour's remarks on sentence:- "However, in regard to the fact that there are four separate charges and adopting the principle of totality, except for one instant I see no reason why the sentences should not be basically concurrent, although in regard to the two more serious charges there will be an element of accumulation having regard to their severe nature and to reflect the overall criminality in this matter. I agree that there must be a very high degree of general deterrence in a case like this." 16 Later his Honour said from the bottom two lines of p.11:- "Applying Pearce's case, I am required to, as it were, impose separate penalties for these four offences. I will do so, but again I do have regard to the principle of totality and the objective fact that this was basically a single incident albeit it took place over some 10 hours." 17 And his Honour then said at the bottom of p.12:- "Looking at the matter as a whole, in my view, an appropriate penalty without breaking the offences up into separate periods, having regard to the overall criminality of this matter would have been one of 11 years imprisonment." 18 His Honour had regard to the early pleas of guilty which although not at the earliest possible opportunity had saved the victim the ultimate preparation for the trial and from the trauma of having to give evidence, although, since there had been two earlier trials fixed, it had not saved her from having been required to prepare herself for the ordeals that each of those occasions may have produced. His Honour was of the view that there should have been a discount for the pleas of guilty reflective of the applicant's remorse which his Honour found in his favour, and in respect of his willingness to facilitate the course of justice. Although his Honour expressed the view that he did not propose to reduce the sentence for the plea of guilty on a utilitarian basis, in my view, that element was embraced by the matters to which his Honour referred, having regard to the fact that sentence was passed at a time at which the High Court's decision in the The Queen v. Cameron (2002) 187 ALR 65 and this court's decision in the The Queen v. Sharma (2002) 54 NSWLR 300 had not unequivocally resolved what course should have been taken by trial judges in New South Wales. his Honour allowed for the plea in all its ramifications, what appears to have been a discount of one year in 11. Referring to the 11 years imprisonment he would have imposed he said:- "I reduced that to 10 years having regard to the plea of guilty overall." 19 His Honour found special circumstances and was prepared to vary the normal sentence to non-parole ratio. 20 As I have said, nowhere in his Honour's remarks does his Honour seek to dissect the factual material so as to avoid the overlapping, effect that could have been occasioned by charges such as these having been considered globally. Indeed in Pearce (supra) that was exactly the vice the majority of the High Court detected. At p.624 in the judgment of the majority in Pearce (supra) appears the following:- "Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless we consider that the individual sentences imposed on counts nine and 10 were flawed because they doubly punished the appellant for a single act, namely the infliction of grievous bodily harm. Further to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error, in that to do so fail to take account of the differences in the conduct which were the subject of punishment on each count. The appeal under s.5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against 'a sentence', it was of course the individual sentences that fell for consideration not just their overall effect. If the court 'is of opinion that some of a sentence...is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefore.'" 21 It was on that basis that their Honours allowed the appeal. I am of the view that those remarks are apposite to what occurred here, notwithstanding what has been powerfully urged by the Crown that for the overall misconduct of such an appalling kind involved in the episode to which the offences relate the sentence when one considers it in its total effect is a moderate one. The component sentences however, absent reference to totality and questions of concurrence or cumulation are heavy and if one dissects the matter there is a real prospect that what has occurred has involved a double or multiple penalising of the applicant for acts which have been reflected more than once in the elements of the different counts. 22 For my part I would see the sentence as affected by error in that regard and thus exceeding that which is appropriate having regard to s.6 of the Criminal Appeal Act 1912. Bearing in mind the course that I consider should be taken and in particular, the appropriate course to be taken in this court, although I regard the advantage that should have been accorded to the applicant for his plea as having been underestimated at trial, having regard to the important message that should be sent out in cases of this kind of the advantage that might be incurred by avoiding trauma to the victim, I need not consider whether what occurred in respect of the plea as was itself a discrete error warranting the setting aside of the sentence. In my view, for the reasons that I have given, the appeal should be upheld and an appropriate overall sentence be crafted in accordance with Pearce (supra) and the principles of totality, to be attained by appropriate concurrence or cumulation, of nine years imprisonment with a non-parole period of six years. Having regard to the finding of special circumstances. 23 Mr. Crown I would appreciate your assistance should it be the view of the Court that such a sentence is appropriate, as to how such a sentence should appropriately be passed having regard to Pearce (supra). 24 JAMES, J: I agree with the judgment of Greg James, J. and agree that for the reasons given by his Honour leave to appeal against sentence should be granted and the appeal against sentence should be allowed. And I agree with his Honour's view that an appropriate total sentence would be a head sentence of nine years with a non-parole period of six years and I would join with his Honour in asking counsel to formulate sentences which will carry into effect what his Honour has said.

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